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train | 001-88399 | ENG | RUS | CHAMBER | 2,008 | CASE OF DENISOVA v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1938 and lives in Novovoronezh, a town in the Voronezh Region. 5. As a victim of Chernobyl, the applicant is entitled to benefits. Considering herself underpaid, she brought six sets of proceedings against the local welfare authority. 6. On 18 October 2000 the Novovoronezh Town Court awarded the applicant arrears and legal costs in the amount of 3,014.09 Russian roubles (RUB). This judgment became binding on 28 October 2000 and was partly enforced on 24 September 2003. 7. On 16 June 2003 the Town Court awarded the applicant more arrears in the amount of RUB 19,315.50. This judgment became binding on 19 August 2003 and was enforced on 17 December 2004. 8. On 16 February 2004 the Town Court awarded the applicant arrears in the amount of RUB 16,765.50, and on 1 April 2004 the appeal court in addition fixed a new amount of periodic payments. This judgment became binding on 1 April 2004 and was enforced on 3 August 2005. 9. On 15 March 2004 the Town Court awarded the applicant arrears in the amount of RUB 4,973.57. This judgment became binding on 25 March 2004 and was enforced on an unspecified date. 10. On 26 August 2004 the Town Court awarded the applicant arrears in the amount of RUB 21,118.50. This judgment became binding on 6 September 2004 and was enforced on 24 August 2005. 11. On 26 August 2004 the Town Court also awarded the applicant further arrears in the amount of RUB 1,772.30 and fixed a new amount of periodic payments. This judgment became binding on 6 September 2004 and was enforced on an unspecified date. 12. On the applicant’s request, on 31 May and 16 November 2005 the Town Court compensated the applicant’s inflationary loss caused by the delayed enforcement of the judgments in the total amount of RUB 9,369.86. 13. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. | 1 |
train | 001-82839 | ENG | CZE | ADMISSIBILITY | 2,007 | HADRABOVA v. THE CZECH REPUBLIC | 3 | Inadmissible | Peer Lorenzen | The applicants, Ms Dana Hadrabová, born in 1956, Ms Lenka Hadrabová, born in 1983, Ms Zdenka Křivánková, born in 1945, Mr Dušan Křivánek, born in 1949, Ms Lenka Horká, born in 1947, and Mr Miloš Horký, born in 1944, are Czech nationals and live in Omice and Brno respectively. They are represented before the Court by Mr J. Brož, a lawyer practising in Brno. Another applicant, Ms Hedvika Hadrabová, born in 1921, died on 21 August 2004. The second applicant became her legal successor. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 May 1990 the first, third, fourth, fifth, sixth and seventh applicants and two other persons lodged an action for damages with the Brno-venkov District Court (okresní soud) against Waterworks (Vodohospodářské stavby, s.p.), a State owned company, requesting the court to order the defendant to cease operating a stone quarry and to pay them damages. On 13 March 2002 the District Court, following two successive inheritance proceedings, admitted the second applicant, as approved heir, to the proceedings. On 18 November 2002 the court decided that the fourth applicant was the legal successor of another original claimant who had meanwhile died. On 5 August 2004 the District Court discontinued the proceedings. On 30 September 2004 the applicants appealed against this decision. It appears that the proceedings are still pending before the appellate court. | 0 |
train | 001-22257 | ENG | HRV | ADMISSIBILITY | 2,002 | JOVANOVIC v. CROATIA | 1 | Inadmissible | Christos Rozakis | The applicant, Mr Želimir Jovanović, is a Croatian citizen of Serbian national origin, who is born in 1959 and lives in Požega, Croatia. He is represented before the Court by Mr Nikola Bastaić, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was employed as an agricultural technician in the Požega Penitentiary and Rehabilitation Home - a State prison for young offenders - (Kazneno popravni dom Požega). On 21 January 1992 the director of the prison dismissed the applicant and four other employees, as a disciplinary penalty, for allegedly having voted for the formation of the so called Serbian Autonomous Territory of Western Slavonia (Srpska Autonomna Oblast “Zapadna Slavonija”) and the secession of that Territory from Croatia, in the Referendum for Serbian Autonomy in Croatia in August 1990 (hereinafter the “Referendum”). The decision of the applicant's dismissal stated that the Referendum was part of the efforts to change the State frontiers by secession of parts of the Croatian territory and their annexation to another State, which amounted to a criminal offence under Section 236 (b) of the Penal Code. The Referendum was found to be contrary to the Croatian Constitution, thus illegal and participation in it was declared incompatible with service in State organs. The decision was, in addition, based on the Enforcement of Penalties Decree, enacted in 1991. The applicant appealed against his dismissal. On 25 March 1992 the Disciplinary Board of the Požega Penitentiary and Rehabilitation Home (Disciplinski sud pri Kazneno popravnom domu u Požegi) dismissed the appeal. On 3 March 1992 the applicant filed an action challenging his dismissal in the Požega Municipal Court (Općinski sud u Požegi). He claimed that he did not take part in the Referendum. He also claimed that the Enforcement of Penalties Decree was enacted after his alleged participation in the Referendum and should not have been retroactively applied. On 14 October 1992 the Požega Municipal Court upheld the decision of the applicant's dismissal. It found the applicant’s participation in the Referendum incompatible with his service in the Požega Penitentiary and Rehabilitation Home. On 13 November 1992 the applicant lodged an appeal against the above judgment with the Požega County Court (Okružni sud u Požegi), reiterating his previous arguments. On 22 December 1992 the appellate court dismissed the appeal and upheld the first instance judgment. On 19 February 1993 the applicant filed a request for revision with the Supreme Court (Vrhovni sud Republike Hrvatske). On 20 December 1995 the Supreme Court upheld the lower courts’ judgments. On 2 May 1996 the applicant filed a constitutional complaint. He claimed that he had not taken part in the Referendum. He argued that the Enforcement of Penalties Decree provision, prescribing that an employee in the prison may be dismissed if he was not fit for working in that institution, lacked sufficient clarity and, therefore, was inconsistent with the requirement of foreseeability. In his opinion the decision of his dismissal on account of his alleged participation in the Referendum violated his right to freedom of expression. On 20 October 1999 the applicant’s constitutional complaint was rejected. The Constitutional Court (Ustavni sud Republike Hrvatske) found the applicant’s dismissal to be a consequence of his participation in the Referendum which it found incompatible with the applicant’s employment in the Požega Penitentiary and Rehabilitation Home, pursuant to Section 8 (3) of the Enforcement of Penalties Decree. Section 8 (3) of the Decree on the enforcement of penalties for crimes, economic offences and misdemeanours committed during the state of war or the state of immediate danger for the independence and unity of the Republic of Croatia (the Enforcement of Penalties Decree - Uredba o izvršenju sankcija izrečenih za krivična djela, privredne prijestupe i prekršaje za vrijeme ratnog stanja ili u slučaju neposredne ugroženosti neovisnosti i jedinstvenosti Republike Hrvatske, Official Gazette no. 55/91) provides that the director of an institution may decide to dismiss an employee who is not fulfilling his duties or when it is established that he is not fit (podoban) to work in that institution. | 0 |
train | 001-22397 | ENG | DEU | ADMISSIBILITY | 2,002 | GÖRGES v. GERMANY | 4 | Inadmissible | Ireneu Cabral Barreto | The applicant, Uwe Görges, is a German national, who was born in 1946 and lives in Hamburg, Germany. He is represented before the Court by Hans Kober, a lawyer practising in Hamburg. The facts of the case, as submitted by the applicant, may be summarised as follows. In spring 1986, criminal investigations were initiated against the applicant on the suspicion of his participation in planning several transactions of illegal sales of weapons to the Republic of Iran. On 30 September 1991, the Hamburg District Court convicted the applicant of several counts of offences under the Law to Control International Weaponry (Kriegswaffenkontrollgesetz). It found that he had counselled and participated in planning the illegal sales of weapons to the Republic of Iran. The applicant was sentenced to seven months’ imprisonment on probation. On 20 July 1994, the Hamburg Regional Court, upon the applicant’s appeal, amended the District Court’s decision to the effect that he was found guilty of only one offence under the Law to Control International Weaponry. It imposed a fine amounting to 90 daily rates of 60 DEM (approximately 30 Euro). On 2 September 1996, following the applicant’s appeal on points of law, the Hanseatic Court of Appeal repealed this decision and referred the case back to a different chamber of the Hamburg Regional Court. It found that the procedural delays caused by judicial organs had not been taken into account by the lower court. On 11 April 1997, the Hamburg Regional Court confirmed its decision of 20 July 1994. It briefly mentioned the delays in proceedings, but found that, bearing in mind the gravity of the offence, 90 daily rates was the lowest possible sentence. On 15 October 1997, the Hanseatic Court of Appeal, following the applicant’s second appeal on points of law, also quashed the decision of April 1997 and referred the case back to yet another chamber of the Hamburg Regional Court. It found that the judicial organs had unnecessarily prolonged proceedings for more than four years and that this constituted a violation of the German Basic Law (Grundgesetz) and of Article 6 of the Convention. However, it found that, contrary to the applicant’s submissions, this did not constitute a procedural impediment that would warrant for proceedings to be discontinued. Finally, the Court of Appeal noted that in its decisions, the Regional Court had failed to show if and to what extent the excessive length of proceedings had an effect on the sentence. On 13 January 1998, the Hamburg Regional Court amended the decisions of 20 July 1994 and 2 September 1996 while changing the sentence to the effect that the fine was reduced to 80 daily rates of 60 DEM. It found that the following delays had been unnecessary and were attributable to the judicial organs: although the Office of the Public Prosecutor of Hamburg had been in possession of most of the relevant information by December 1988, the indictment was not submitted before July 1990, which amounted to a delay of about one year and five months. The District Court’s decision of 30 September 1991, having been finalised for service on 9 December 1991, was not served upon the applicant before 11 March 1992, i. e. three months later. The proceedings were not furthered between April 1992 and April 1993, when the case was transferred to another Chamber of the Regional Court. In appeal proceedings before the Hanseatic Court of Appeal, the Office of the Public Prosecutor took about one year and eight months (October 1994 - June 1996) to submit its memorial to the Court of Appeal. These delays amounted to four years in total. The Regional Court found that the delays and the excessive length of proceedings were in breach of the German Basic Law and Article 6 of the Convention. Having regard to all circumstances, the Regional Court concluded that the procedural delays did not require that the proceedings be discontinued. Weighing all personal mitigating and aggravating factors, the Regional Court found that, without taking account of the procedural delays, it would have imposed a fine of 120 daily rates of 60 DEM. It reduced the fine to 90 daily rates, on account of the above-mentioned delays in the past, and, in a second step, further reduced the fine to 80 daily rates, considering the further delays caused by the appeal proceedings. On 26 April 1999, the Hanseatic Court of Appeal rejected the applicant’s appeal. On 28 June 1999, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. The Federal Constitutional Court found, in particular, that the Hamburg Regional Court had given a detailed account of the delays attributable to the judiciary and had taken these delays into account when reducing the fine by 40 daily rates. The reduced fine did not reach the statutory limits for inclusion in a certificate of good conduct (Führungszeugnis) and would be removed from the applicant’s criminal record after the minimum statutory period. The Regional Court had therefore sufficiently reduced the sentence on account of the procedural delays. | 0 |
train | 001-86105 | ENG | RUS | CHAMBER | 2,008 | CASE OF ROLGEZER AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicants live in the village of Naumovka in the Tomsk region in the vicinity of a radiochemical plant of the Siberian Chemical Industrial Complex (hereinafter “the plant”), owned and operated by the State. 6. On an unspecified date in July 1997 the applicants sued the plant for compensation for the damage to their health caused by its activity. They also sought an injunction banning the burial ground disposal of nuclear waste. On 27 July 1997 the Seversk Town Court of the Tomsk Region registered the statement of claim and listed the first hearing for 3 November 1997. 7. As the Town Court was situated in the area with restricted access, the court asked the applicants to provide personal information necessary to prepare a pass for them. 8. The applicants did not appear at the hearing of 3 November 1997. Their representatives were present. The Town Court ordered an expert examination. On 9 December 1997 the Tomsk Regional Court quashed the decision because it had been taken in the applicants’ absence. 9. On 28 April 1998 the applicants provided their personal information and were issued with a pass by the Seversak Town Administration. 10. At the hearing of 15 May 1998 the applicants modified their claims. They challenged the exploitation licence granted to the plant by the Tomsk Regional Government and claimed compensation in respect of non-pecuniary damage. The Tomsk Regional Government was cited as co-defendant and the hearing was adjourned until 14 July 1998. 11. On 14 July 1998 the applicants did not appear and the hearing was adjourned until 31 August 1998. 12. On 31 August 1998 only two plaintiffs came to the court and the hearing was adjourned until 21 October 1998. 13. On 21 October 1998 the applicants again modified their claims and asked the court to call witnesses. The hearing was adjourned until 24 November 1998. 14. Hearings were held on 24 November and 7 December 1998. 15. On 7 December 1998 the Seversk Town Court of the Tomsk Region ordered the Ministry of Public Health to perform an expert examination at the defendant’s request and stayed the proceedings. On the same day the case file was sent to the Ministry of Public Health. 16. On 29 January 1999 the Tomsk Regional Court upheld the decision of 7 December 1998 on appeal. 17. During the following three years the Town Court sent ten warnings to the Ministry of Public Health, asking it to perform the examination or, if it was not possible, to return the case file to the court. 18. On 22 April 2002 the Ministry of Public health returned the case file to the Town Court, stating that it had not been possible to perform the examination because the defendant had not paid for it. On the same day the Town Court resumed the proceedings. 19. At the hearing of 26 June 2002 the applicants withdrew their claims against the Tomsk Regional Government and amended their claims against the plant. The hearing was adjourned until 4 July 2002. 20. The Town Court held hearings on 4 and 15 July 2002. On 15 July 2002 the Seversk Town Court of the Tomsk Region dismissed the applicants’ claims as unsubstantiated. 21. On 5 November 2002 the Tomsk Regional Court upheld the judgment on appeal. | 1 |
train | 001-106894 | ENG | POL | ADMISSIBILITY | 2,011 | KONCZELSKA v. POLAND | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 1. The applicant, Ms Katarzyna Konczelska, is a Polish national who was born in 1979 and lives in Gliwice. She is represented before the Court by Mr J. Gałkowski, a lawyer practising in Bielsko-Biala. The Polish Government (“the Government”) are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In December 2002 the applicant visited Dr J.R. at his private practice and was registered as a pregnant patient. During her pregnancy she visited J.R. fourteen times and had four ultrasound scans which demonstrated that the foetus was developing normally. 4. During a visit on 23 July 2003 J.R. found that the delivery was imminent. At midnight the pains started. On 24 July 2003 the applicant was admitted to Zabrze District Hospital. The birth did not progress normally. After 11 hours of labour the applicant and her husband asked J.R. to proceed to a caesarean section. He refused. 5. The applicant’s daughter, A., was born after 35 hours. She showed no signs of life and had to be resuscitated, which took over ten minutes. The child suffered from serious health problems (cerebral palsy), mostly of a neurological character and required permanent supervision and medical attention. She could not speak, see or walk. 6. The applicant believed that J.R. was responsible for her daughter’s condition. On 10 October 2003 a criminal investigation was instituted at her request by the Zabrze District Prosecutor. 7. A medical expert opinion submitted to the prosecuting authorities on 21 March 2005 by specialists from the Warsaw Medical Academy established that there had been serious shortcomings in the manner in which the delivery had been handled. However, the experts concluded that there was insufficient evidence for a finding that the child’s problems had been caused solely by the manner in which she was delivered. 8. On an unspecified date the Regional Medical Tribunal in Katowice found J.R. guilty of a breach of his professional obligations in that he had failed to monitor the child’s condition properly during the second period of the delivery. 9. On 30 June 2005 the Zabrze District Prosecutor, referring to this opinion, discontinued the proceedings on the ground that no criminal offence of exposing the child to serious danger to life or limb, punishable under Article 160 of the Criminal Code, had been committed. 10. The applicant appealed, indicating shortcomings in the investigation. She submitted, in particular, that the prosecution had failed to take into consideration the case file relating to the professional liability proceedings conducted before the authorities of the Silesian Medical Board, and that the criminal proceedings had been conducted superficially. She requested that a number of witnesses be questioned. As a result, the facts of the case had not been established properly. 11. On 3 November 2005 the Regional Prosecutor allowed her appeal, quashed the decision and remitted the case. He observed that the evidence had to be completed by the questioning of the three witnesses requested by the applicant, and who had not been questioned so far; that complete and uptodate medical records of the child had to be included in the file and examined; that the file from the medical liability proceedings had to be joined to the prosecutor’s file; and that an additional medical opinion should be sought to complement the findings of the opinion referred to above. 12. By a decision of 3 April 2006 the Zabrze District Prosecutor asked the Department of Forensic Medicine of the Warsaw Medical Academy to complete its earlier expert opinion. It was submitted on 14 July 2006. In their opinion the experts stated that there was a causal link between the medical error committed by J.R. in his handling of the applicant’s delivery and her daughter’s condition. 13. On 29 December 2006 the Zabrze District Prosecutor filed an indictment against J.R. with the Zabrze District Court. He was charged with an offence punishable under Article 156 § 1 (i) and 2 of the Criminal Code by failing to monitor the labour properly. 14. On 11 January 2007 the applicant and her daughter declared their intention to become auxiliary prosecutors in the proceedings. 15. On 28 February 2007 the court held a session with a view to organising a hearing (the Zabrze District Court, II Criminal Division, II K 25/07). Subsequently, hearings were scheduled for 15 March, 13 April and 18 May 2007. Because J.R. failed to attend any of the hearings and none of them was actually held because of his absence, on 13 April and 18 May 2007 the court ordered that he be brought to the courtroom. However, apparently no steps were taken to do so. On one occasion J.R. was admitted to a psychiatric hospital one day before the date of the hearing. 16. The hearing scheduled for 5 June 2007 was adjourned, also because of his absence. 17. At a hearing held on 20 June 2007, the court read a letter from a psychiatric hospital in T. Having regard to the doubts which had arisen as to whether J.R. was able to participate in the proceedings, it ordered that an additional expert opinion be prepared in this respect. An opinion was submitted to the court on 13 July 2007. The experts found that J.R. suffered from reactive depression accompanied by alcohol abuse and, as a result, was unable to participate in the judicial proceedings for a period of three months. 18. By a letter of 27 July 2007 the applicant’s lawyer drew the court’s attention to the fact that the experts had failed to address the issue of whether J.R. had himself contributed to his inability to participate in the proceedings. He further submitted that the provisions on criminal procedure allowed for a hearing to be held in the defendant’s absence when it had been shown that he or she had made himself or herself unable to participate in hearings. In the present case the accused had failed to comply with all the summonses and had thereby effectively boycotted the proceedings. On one occasion he had been admitted to a psychiatric hospital just one day before the date of the last hearing, which cast doubt on the credibility of the medical certificates he had submitted so far in the case. The applicant’s lawyer further requested that the defendant’s ability to participate be examined by doctors from outside the Silesia region. This would, in the applicant’s view, ensure their impartiality. 19. The court allowed his request on 15 October 2007 and appointed new experts, tasking them with establishing the defendant’s ability to participate in the proceedings. 20. On 21 October 2007 J.R. died. 21. On 30 November 2007 the court discontinued the criminal proceedings. The applicant appealed against this decision in so far as it concerned costs. The court dismissed the appeal by a decision of 4 February 2008, served on the applicant on 14 February 2008. 22. On 16 May 2008 the applicant’s child died. 23. On 5 September 2003 the applicant lodged a complaint against J.R. with the Regional Officer for Disciplinary Matters (Okręgowy Rzecznik Odpowiedzialności Zawodowej) at the Katowice Medical Board. On 27 April 2005 the Agent, having completed the investigation, transferred the complaint for examination to the Katowice Regional Medical Tribunal. 24. On 30 January 2006 that court found J.R. guilty of a breach of his professional obligations in that he had failed to monitor the child’s condition properly during the second period of the delivery and had failed to notice that the applicant had had an infection during her pregnancy. The court confirmed the fact that largescale damage to the child’s brain had been caused during the labour. 25. On 27 March 2007 the Supreme Medical Tribunal in Warsaw upheld the firstinstance judgment in so far as it concerned the inappropriate monitoring of the child’s condition during the second period of the delivery. The court further concluded that there was insufficient evidence to hold that J.R. had failed to diagnose the infection. 26. On 6 December 2004 the applicant, acting on her own behalf and on behalf of her daughter A., sued Zabrze District Hospital for damage and suffering caused as a result of medical malpractice during A.’s birth. The applicant claimed 20,000 Polish zlotys (PLN) for nonpecuniary damage and a monthly pension of PLN 1,800 for her inability to work caused by the fact that she had to take care of her daughter. In respect of her daughter the applicant claimed PLN 200,000 for nonpecuniary damage and a monthly pension in the same amount. 27. On 21 January 2009 the Gliwice Regional Court found the legal successor of the Zabrze District Hospital, which had in the meantime changed hands, civilly liable for the applicant’s child’s condition as a result of medical malpractice during the applicant’s labour. It established that the child was totally and permanently incapacitated, required roundtheclock attention and care. It awarded the applicant and her daughter, jointly, compensation in the amount of PLN 258,847. 28. On 20 January 2010 the Katowice Court of Appeal, having examined the applicant’s appeal, increased the amount of compensation to PLN 408,847, plus interest. The court observed that the child had been totally physically incapacitated as a result of cerebral palsy resulting from brain damage caused by the negligent handling of her birth. However, her mental faculties had most likely been intact. She had therefore been locked within her own body which could not but be seen as causing her acute and continuous suffering for not being able to either express herself or to attend to her simplest needs. Her condition necessitated constant care and attention. She had been fragile and often suffered from additional ailments. The court was of the view that the enormity of the child’s infirmity and the applicant’s suffering it caused justified increasing the compensation to be paid by the defendant to PLN 408,847. The court held that while compensation for damage to one’s health could not be unduly high so as to cause unfair enrichment, the respect for priceless values such as life and physical integrity dictated that it should be sufficiently elevated so as to offset the negative psychological consequences of medical malpractice. 29. Article 156 § 1 of the Criminal Code of 1997 provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment. | 0 |
train | 001-89831 | ENG | UKR | ADMISSIBILITY | 2,008 | BALAGUTA v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Mr Oleg Anatolyevich Balaguta, is a Ukrainian national who was born in 1965 and lives in Feodosiya. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 1997 the applicant lodged a claim with the Feodosiya Town Court against his former employer seeking recovery of salary arrears for additional work allegedly performed by him in December 1996 and January 1997, recovery of salary arrears for the period from 1 February 1997 to 22 May 1997, compensation for the delays in payment of salary and compensation for non-pecuniary damage resulting from such delays. On 7 July 1997 the Feodosiya Court returned the applicant’s claim without consideration on the ground that by the decision of 2 June 1997 the Labour Dispute Commission had already ordered the respondent to pay the applicant the salary arrears sought. On 6 February 1998 the Presidium of the Crimea Supreme Court, following the protest introduced by its President upon the applicant’s request, quashed the ruling of 7 July 1997 and remitted the case for a fresh consideration to the first instance court. On 13 May 1998 the Feodosiya Court allowed the applicant’s claim in part. On 22 July 1998 the Crimea Supreme Court quashed that decision upon the applicant’ On 17 August 1999 the Feodosiya Court again allowed the applicant’s claim in part. On 30 August 1999 the applicant appealed in cassation. On 12 November 1999 he modified his appeal. On 16 February 2000 the Crimea Supreme Court held that the applicant’s appeal in cassation had been lodged out of time and transferred it to the first instance court for a decision as to its admissibility. The court also found that the text of the judgment did not contain a description of all the applicant’s claims. On 13 July 2000 the Feodosiya Court granted the applicant leave to appeal in cassation finding that the appeal had been lodged out of time due to the applicant’s illness and rectified the shortcomings in the text of its judgment of 17 August 1999. On 6 December 2000 the Crimea Supreme Court quashed that judgment finding that the court of first instance had misapplied law and remitted the case for a fresh consideration to the same court. On 12 July 2001 the applicant amended his claims. On 13 September 2001 the Feodosiya Court awarded the applicant 1,023.02 Ukrainian hryvnas (UAH) in salary arrears for the period from 1 February to 22 May 1997 and rejected the remainder of his claims as not being based on law. On 27 February 2002 the Crimea Court of Appeal rejected the applicant’s appeal and upheld that judgment. On 8 November 2002 the applicant was informed about the ruling of the court of appeal. Following the applicant’s request, on 4 December 2002 the Feodosiya Court renewed the time-limit for lodging his appeal in cassation. On 21 October 2003 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation as unsubstantiated. On 25 November 2003 the applicant received a copy of that decision. Out of seventeen hearings held by the courts, three were adjourned either at the request of the applicant or due to his failure to appear, two were adjourned due to both parties’ failure to appear, six were adjourned due to the respondent’s failure to appear and two were adjourned due to absence of the judge. | 0 |
train | 001-108216 | ENG | UKR | COMMITTEE | 2,011 | CASE OF BURYAK v. UKRAINE | 4 | Violation of Art. 6-1 | André Potocki;Ganna Yudkivska;Mark Villiger | 4. The applicant was born in 1982 and lives in the Kyiv Region. 5. On 14 July 1999, in the presence of others, the applicant shot Mr P. who eventually died in a hospital. 6. On 15 July 1999 the police started criminal investigations into the event. 7. On 19 July 1999 the applicant was accused of inflicting bodily injuries; on the same day he gave an undertaking not to abscond. 8. On 15 October 1999 the police also instituted criminal proceedings against the applicant on suspicion of unlawful possession of arms. 9. On 20 October 1999 the police changed the legal qualification of the applicant’s actions and accused him of murder. 10. On 24 October 1999 the police accused the applicant of murder and unlawful possession of arms. 11. On 29 October 1999 the police submitted the criminal case to the Kyevo-Svyatoshynskyy District Court for trial. 12. On 29 February 2000 the court convicted the applicant of premeditated murder committed in the state of extreme emotional disturbance and sentenced him to three years and six months’ imprisonment. 13. On 12 April 2000 the Kyiv Regional Court upheld that judgment, which thus became final. 14. On 6 September 2000 the prosecutor lodged a protest against the decisions in the case. On 12 October 2000 the Presidium of the Kyiv Regional Court rejected the protest. 15. On 6 January 2001 the Deputy Prosecutor General lodged a new protest. 16. On 25 January 2001 the Supreme Court found that the lower court had not duly established the motive of the crime, quashed the decisions in the case and remitted it to the prosecutors for additional investigations. 17. On 12 July 2001 the investigations were completed and on 19 July 2001 the case was submitted to the Kyevo-Svyatoshynskyy Court for trial. 18. On 12 December 2001 the court convicted the applicant of premeditated murder and sentenced him to seven years’ imprisonment. 19. On 10 April 2002 the Kyiv Regional Court of Appeal changed that judgment. On 17 September 2002 the Supreme Court found that the court of appeal had not duly established the motive of the crime and remitted the case to that court for fresh consideration. 20. On 6 November 2002 the Court of Appeal, in the applicant’s absence, upheld the judgment of 12 December 2001 with some minor modifications. 21. On 10 June 2003 the Supreme Court quashed the decision of 6 November 2002 as it had been taken in the applicant’s absence and remitted the case to the Court of Appeal for fresh consideration. 22. On 13 August 2003 the Court of Appeal changed the judgment of 12 December 2001 and sentenced the applicant to four years’ imprisonment for murder committed in the state of extreme disturbance. By the same judgment the court amnestied the applicant. 23. On 1 April 2004 the Supreme Court found that the Court of Appeal had not duly established the motive of the crime, quashed this decision and remitted the case for fresh consideration on appeal. 24. On 1 October 2004 the Court of Appeal sentenced the applicant to four years’ imprisonment and changed the judgment of 12 December 2001. 25. On 17 November 2005 the Supreme Court found that the severity of the applicant’s sentence did not correspond to the gravity of the crime, quashed the decision of 1 October 2004 and remitted the case for fresh consideration to the Court of Appeal. 26. On 6 February 2006 the Court of Appeal upheld the judgement of 12 December 2001 with minor modifications. 27. On 6 April 2007 the Supreme Court rejected the appeal in cassation lodged by the applicant’s lawyer. 28. In the course of the proceedings nine forensic examinations were ordered. Four times the applicant was placed in detention after conviction. Subsequently, he was released twice following the annulment of the convictions and twice on specific conditions. There were seven witnesses and a number of experts heard by the courts. The applicant and his lawyer lodged four procedural requests and four appeals against the courts’ judgments and decisions. | 1 |
train | 001-102131 | ENG | ALB | CHAMBER | 2,010 | CASE OF VRIONI AND OTHERS v. ALBANIA | 4 | Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 7. On 18 March 1996 and 14 December 1999 the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”), recognised the applicants' title to two plots of land measuring 1,100 sq. m and 537 sq. m, respectively. The Commission held that it was impossible for the applicants to have the whole of the original plot of land allocated to them. It decided to restore to the applicants a vacant plot of land (një truall i lirë) measuring 1,456 sq. m., which was situated within the grounds occupied by the Italian Embassy, and ordered the authorities to pay compensation in respect of a plot of land measuring 181 sq. m. Moreover, it ordered that the applicants' title to the property be entered in the Tirana Property Register. 8. The applicants lodged a civil action in view of their impossibility to recover the plot of 1,456 sq. m. By virtue of the Court of Appeal's decision of 29 October 2002 it was decided that the applicants should receive compensation in lieu of the original property in one of the forms provided for by law in respect of the plot of land measuring 1,456 sq. m. The Court of Appeal found that, in so far as that plot of land was an integral part of the Italian Embassy's premises, it could not be considered vacant and thus recoverable by the applicants. This decision was upheld by the Supreme Court on 15 June 2004. Consequently, the applicants were to receive compensation in accordance with the Property Act for the totality of the 1,637 sq. m. of land (see §§ 24-25 of the principal judgment). 9. Further details are set out in the principal judgment. 10. The 1994 Act contained the criteria to be employed for assessing the financial compensation to be awarded to former landowners. According to the 1994 Act, Tirana was to be divided into three zones A, B and C. The price reference for the property located in zone A was fixed at 1,600 Albanian leks (ALL) per square metre. 11. By virtue of three decisions, two of which were adopted in 2007 and one in 2008, the Government approved and issued property valuation maps as listed above. The maps, which were to be used in the determination of the award of financial compensation by the competent authorities, included the reference price per square metre throughout the country. 12. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. According to that decision, the reference price per square metre for the area in which the applicants' property was located was valued at ALL 180,000. | 0 |
train | 001-71121 | ENG | RUS | CHAMBER | 2,005 | CASE OF KORCHAGINA AND OTHERS v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings | Christos Rozakis | 4. The applicants are residents of Voronezh. 5. The applicants are in receipt of welfare payments for their children. In 1999 – 2000 they brought separate sets of civil proceedings against a local welfare authority, claiming arrears in those payments. 6. On the dates set out in the appendix the domestic courts granted the applicants’ claims and ordered the welfare authority to pay them the respective amounts. The enforcement proceedings were commenced accordingly. 7. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgments in the applicants’ favour and returned them the writs of execution referring to the lack of the debtor’s funds. 8. In 2002 – 2004 the applicants unsuccessfully applied to various public bodies seeking to have the judgments in the favour enforced. 9. On 2 June 2004 the applicants were paid the amounts due pursuant to the writs of execution. 10. 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. 11. 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. | 1 |
train | 001-22959 | ENG | GBR | ADMISSIBILITY | 2,002 | STANFORD v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Mr Bryan Stanford, is a United Kingdom national, born in 1949 and currently in prison in Durham. He is represented before the Court by Mr M. Farrar, a lawyer practising in Bradford. In 1988 the applicant was convicted of rape, indecent assault, kidnapping and threats to kill in relation to two girls, aged 15 and 10 respectively. He was sentenced to 10 years’ imprisonment. In 1997 he was again imprisoned having been found guilty of three counts of indecent assault. On 22 June 2000 the applicant was convicted by the Crown Court on three counts of rape and five counts of indecent assault concerning two male minors, two brothers aged 13 and 6. He was further convicted on one charge, and he pleaded guilty to two charges, of taking indecent photographs of one of those minors. He was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 in relation to the rape conviction. In that regard, the trial judge stated inter alia: “the evidence and your demeanour in the witness box throughout this case demonstrate that you are a scheming, manipulative and highly plausible paedophile with a quite appalling record behind you... You are in my view a dangerous man when at large where young children of either sex are involved. Under section 2 ... I have no alternative but to pass an automatic life sentence, which I do with no lack of conviction or enthusiasm.” The applicant was also sentenced to four years’ imprisonment for each indecent assault conviction, the four years being concurrent to each other but consecutive to the rape sentence. For each of the indecent photograph convictions, he was sentenced to 30 months’ imprisonment, concurrent with each other and with the indecent assault sentences. In fixing the tariff in respect of the life sentence, the trial judge made it clear that if he had been required to set a determinate sentence, he would have chosen 15 years’ imprisonment, made up of 11 years in respect of the rape offences and 4 years to run consecutively in respect of the indecent assault offences. He explained that the period of 15 years had been chosen in view of: “the aggravating features, that is to say your previous convictions and indeed the rest of your track record, the breach of trust, the number of victims here, their youth, the frequency of the acts and the nature of them.” The trial judge accordingly fixed the tariff at 7 1/2 years’ imprisonment since the applicant would normally have had to serve some half of any determinate sentence. Taking account of the period already spent in custody pending trial (9 months), the minimum period to be served by the applicant was fixed at a further 6 years and 9 months. The trial judge stated that in matters of parole: “... my present feeling is that great care should be exercised. I do not doubt that it always is, but in this case particular care should be exercised before you are let loose on the community.” The applicant applied for leave to appeal against conviction and sentence. Concerning his conviction, he argued that the judge was wrong to refuse to sever the indictment so that the jury would not be aware of the counts of the taking of photographs to which he had pleaded guilty as this was likely to have an overwhelmingly prejudicial effect on the jury so as to render a fair trial impossible. He also argued that the judge had been wrong to direct that the jury could consider the evidence of one of the boys as probative in respect of the evidence of the other. Concerning his sentence, he argued that the life sentence was imposed in breach of Articles 3 and 5 of the Convention. On 25 October 2000 leave to appeal was refused by a single judge. On 6 March 2001 the Court of Appeal dismissed his renewed application for leave to appeal against sentence and conviction. On the grounds of appeal against conviction, they found no point of merit, there being no ground to criticise the refusal to sever the indictment and the judge’s direction being clear and appropriate concerning the relevance of the photographs and the supportive value of the boys’ evidence. As regarded the applicant’s sentence, it stated that it had no doubt that this was a case which called for severe sentences. It reiterated the trial judge’s remarks and stated: “So far as that is concerned, the applicant contends that the imposition of an automatic life sentence, pursuant to the then current Act was contrary to the Articles 3 and 5 of the Convention in that it was arbitrary to impose that sentence without any specific assessment of whether the accused is dangerous. Of course that is wholly wrong. The sentencing remarks just quoted clearly indicated the judge’s view as to the dangerousness of this particular applicant. It is not the view of this Court that these automatic life sentences were obviously contrary to Article 3 or Article 5, the contentions are not supported by authority and are not supportable by authority and are not sustainable. In any event, within the context of this case, as the Single Judge observed, a discretionary life sentence would not have been excessive in any event.” The applicant applied to the Criminal Cases Review Commission for a review of his conviction and sentence. In a decision dated 29 November 2001, the CCRC found no grounds for referring his case to the Court of Appeal on either sentence or conviction. The 1997 Act came into force on 1 October 1997. Section 2(1) and (2) provide as follows: “(1) This section applies where - (a) a person is convicted of a serious offence committed after the commencement of this section; and (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence. (2) The court shall impose a life sentence, that is to say - (a) where the person is 21or over, a sentence of imprisonment for life; (b) where he is under 21, a sentence of custody for life under section 8(2) of the Criminal Justice Act 1982, unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so. (3) Where the court does not impose a life sentence, it shall state in open court that it is of that opinion and what the exceptional circumstances are.” Section 2(5) listed the offences considered “serious” for the purposes of the section. The offences listed in section 2(5) were already punishable by a maximum of life imprisonment and they include rape. Sections 3 and 4 of the 1997 Act impose mandatory penalties of seven and three years for a third conviction on class A drug trafficking offences and domestic burglaries, respectively. Both sections oblige the court to impose the fixed sentence when the statutory conditions are fulfilled except: “where the court is of the opinion that there are specific circumstances which -- (a) relate to any of the offences or to the offender; and (b) would make the prescribed custodial sentence unjust in all the circumstances.” In this case, decided after the entry into force of the Human Rights Act 1998, the Court of Appeal adopted a more flexible interpretation of the words “exceptional circumstances” in section 2 of the 1997 Act. The appellants contended that section 2 was incompatible with, inter alia, Articles 3 and 5 of the Convention. The Court of Appeal agreed that the manner of interpreting section 2 to date meant that that section could clearly operate in a disproportionate manner, it not being difficult to find examples of situations where it would be wholly disproportionate to impose a life sentence even for a second serious offence. It considered that the problem would disappear if the words “exceptional circumstances” in section 2 were construed in a manner which accorded with the policy of Parliament in adopting the section. That policy was to protect the public. Accordingly, a finding that an offender does not constitute a significant risk to the public should be considered to constitute “exceptional circumstances” which approach, the Court of Appeal considered, would accord with parliamentary intent and with the provisions of the Convention. | 0 |
train | 001-58060 | ENG | AUT | CHAMBER | 1,996 | CASE OF GAYGUSUZ v. AUSTRIA | 2 | Violation of Art. 14+P1-1;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | C. Russo;R. Pekkanen | 9. Mr Cevat Gaygusuz, a Turkish national born in 1950, lived in Hörsching (Upper Austria) from 1973 until September 1987. Since then he has been living in Izmir (Turkey). 10. The applicant worked in Austria, with interruptions, from 1973 until October 1984. From then until 1 July 1986 periods when he was unemployed alternated with periods when he was certified unfit for work for medical reasons, and he was in receipt of the corresponding benefits. From 1 July 1986 to 15 March 1987 he received an advance on his retirement pension in the form of unemployment benefit. When his entitlement expired he applied to the Linz Employment Agency (Arbeitsamt) on 6 July 1987 for an advance on his pension in the form of emergency assistance (Antrag auf Gewährung eines Pensionsvorschusses in Form der Notstandshilfe). 11. On 8 July 1987 the agency rejected the application on the ground that the applicant did not have Austrian nationality, which was one of the conditions laid down in section 33 (2) (a) of the 1977 Unemployment Insurance Act (Arbeitslosenversicherungsgesetz - see paragraph 20 below) for entitlement to an allowance of that type. 12. Mr Gaygusuz appealed against the above decision to the Upper Austria Regional Employment Agency (Landesarbeitsamt). He argued in particular that the distinction drawn by the section in question between Austrian citizens and foreign nationals was unjustified, unconstitutional and contrary to the European Convention on Human Rights). 13. On 16 September 1987 the Regional Employment Agency found against the applicant and upheld the impugned decision. It emphasised that not only did he not have Austrian nationality, but in addition his case did not fall into any of the categories where exemption from that condition was provided for (see paragraph 20 below). 14. On 2 November 1987 the applicant applied to the Constitutional Court (Verfassungsgerichtshof), alleging a violation of Article 5 of the Basic Law (Staatsgrundgesetz), Articles 6 para. 1 and 8 of the Convention (art. 6-1, art. 8) and Article 1 of Protocol No. 1 (P1-1). 15. On 26 February 1988, after considering the application in camera, the Constitutional Court declined to accept the case for adjudication (Article 144 para. 2 of the Federal Constitution - see paragraph 23 below), giving judgment in the following terms: "The applicant alleged the breach of rights guaranteed by the Constitution in accordance with Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights, Article 5 of the Basic Law and Article 1 of Protocol No. 1 to the Convention (P1-1), and Article 8 of the Convention (art. 8). Regard being had to the Constitutional Court's established case-law relating to these rights, the application is so unpersuasive as to the existence of the alleged violations or the infringement of any other right guaranteed by the Constitution or the infringement of another right through the application of an unlawful general provision, that with regard to the alleged violations to be considered by the Constitutional Court it does not have sufficient prospects of success. In addition, the case is not excluded from the jurisdiction of the Administrative Court [Verwaltungsgerichtshof]." 16. The Constitutional Court therefore referred the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution - see paragraph 23 below). 17. On 16 May 1988 the Administrative Court asked Mr Gaygusuz to expand on his application. 18. On 7 July 1988 the applicant did so, complaining of an infringement of his legal right to obtain an advance on his pension in the form of emergency assistance, in accordance with the relevant provisions of the Unemployment Insurance Act. He requested the Administrative Court to set aside the decision of the Upper Austria Regional Employment Agency of 16 September 1987 as unlawful by reason of its content (section 42 (2) (i) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) - see paragraph 27 below) and to suspend the proceedings and refer the case to the Constitutional Court for consideration of the constitutionality of section 33 (2) (a) of the Unemployment Insurance Act. 19. On 19 September 1989 the Administrative Court, sitting in camera, ruled that it did not have jurisdiction to deal with such an application and rejected it (section 34 (1) of the Administrative Court Act - see paragraph 25 below). It noted that the application, as expanded by Mr Gaygusuz, referred solely to the constitutionality of section 33 (2) (a) of the Unemployment Insurance Act. It further noted that the applicant had asked the Administrative Court to refer the case to the Constitutional Court for consideration of the constitutionality of a statute, but ruled that it was established that such questions came under the jurisdiction of the Constitutional Court (Article 144 para. 1, first paragraph, of the Federal Constitution - see paragraph 23 below), which, moreover, had already ruled on the issue. 20. In the 1977 version, which was applicable at the material time, the relevant provisions of the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz) were worded as follows: "(1) Unemployed persons who have applied for an invalidity insurance benefit ... may receive an advance in the form of unemployment benefit or emergency assistance ... provided that, in addition to the capacity to work and availability for work, the other conditions for the award of the benefit concerned are satisfied ..." "(1) Unemployed persons who have exhausted their entitlement to unemployment benefit or maternity leave may be granted emergency assistance, at their request. (2) For a grant to be made, the unemployed person must (a) possess Austrian nationality; (b) be fit for work and available for work; and (c) be in urgent need. (3) The requirement of Austrian nationality is not applicable to persons who have been uninterruptedly resident in the present territory of the Republic of Austria since 1 January 1930, or to persons who were born after that date in the present territory of the Republic of Austria and have subsequently been uninterruptedly resident there. (4) There is urgent need where the unemployed person is unable to provide for his essential needs. (5) Emergency assistance cannot be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave." "(1) If long-term labour-market conditions are favourable to specific categories of unemployed persons or in specific regions, the Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, exclude those categories or regions from entitlement to emergency assistance. (2) The Federal Minister of Social Affairs may authorise the grant of emergency assistance to unemployed persons who are nationals of another State where that State has a benefit equivalent to Austrian emergency assistance which is payable to Austrian citizens in the same manner as to its own nationals. (3) The Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, authorise the grant of emergency assistance to unemployed persons who do not have Austrian nationality and have not been granted assistance under paragraph 2, on condition that during the five years preceding the date of the application for emergency assistance they have been employed in Austria for not less than 156 weeks with compulsory payment of unemployment insurance contributions. In order to calculate this period of five years, no account shall be taken of periods when the person concerned was in receipt of unemployment benefit (or emergency assistance). Authorisation may be given for a specific period and in respect of specific categories of unemployed persons." 21. Emergency assistance is assistance paid to persons who are no longer entitled to unemployment benefit, in order to guarantee them a minimum income. Entitlement to emergency assistance continues for as long as the person concerned is in need, even though payment itself is granted for a maximum period of 39 weeks, which must be renewed. The amount cannot exceed the amount of the unemployment benefit to which the person concerned would otherwise be entitled, nor may it be lower than 75% of the amount of that benefit. The amount of unemployment benefit is established in accordance with the recipient's income and it is financed partly from the unemployment insurance contributions every employee has to pay (section 1 of the Unemployment Insurance Act) and partly from various governmental sources. 22. Since 1992, after amendment of the text and a change of numbering, sections 33 (3) and (4) and 34 (3) and (4) have read as follows: "... (3) There is urgent need where the unemployed person is unable to provide for his essential needs. (4) Emergency assistance may not be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave. To this period shall be added periods of rest within the meaning of section 16 (1) and periods of self-employed work, paid employment not covered by unemployment insurance or training which has occupied a preponderant part of the unemployed person's time." "... (3) The following categories of persons may claim emergency assistance under the same conditions as unemployed persons having Austrian nationality: 1. refugees within the meaning of Article 1 of the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951; 2. stateless persons within the meaning of Article 1 of the Convention relating to the Status of Stateless Persons, signed at New York on 28 September 1954; 3. persons born in the present territory of the Republic of Austria who have subsequently been normally resident there uninterruptedly; 4. persons who have been normally resident in the present territory of the Republic of Austria uninterruptedly since 1 January 1930; 5. foreign nationals, in so far as that is provided for in bilateral agreements or international treaties; 6. holders of exemption certificates or assimilated persons, within the meaning of paragraph 4; 7. displaced persons in possession of an identity document issued by an Austrian authority; 8. resettled persons from South Tyrol and the Val Canale [Südtiroler- und Canaltaler-Umsiedler]. (4) After exhaustion of entitlement to unemployment benefit or maternity leave, the following categories of persons shall be granted emergency assistance, for a period of 52 weeks, or special emergency assistance, for the period laid down in section 39(1): 1. persons who, at the time of their application for emergency assistance, can produce a valid exemption certificate, within the meaning of the Aliens' Employment Act, issued in the version in force at the time of issue; 2. persons who do not have Austrian nationality but who, at the time of their application for emergency assistance, nevertheless satisfy the conditions for an exemption certificate, and to whom such a certificate has not been issued on the sole ground that their occupation is not covered by the Aliens' Employment Act." 23. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law. Article 144 para. 2 provides: "Up to the time of the hearing the Constitutional Court may by means of a decision [Beschluß] decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133." Paragraph 3 of Article 144 is worded as follows: "Where the Constitutional Court considers that the impugned administrative decision has not infringed a right within the meaning of paragraph 1 and the case is not excluded from the jurisdiction of the Administrative Court by Article 133, the Constitutional Court, at the applicant's request, must refer the application to the Administrative Court so that it may determine whether the impugned decision has infringed one of the applicant's other rights." 24. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. 25. Section 34 (1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides: "Applications upon which . on account of the Administrative Court's manifest lack of jurisdiction, it is not appropriate to adjudicate, or which are manifestly barred as res judicata or for lack of the right to bring proceedings, shall be rejected, without further proceedings, by a decision taken in closed sitting." 26. Section 41 (1) of the Administrative Court Act provides: "In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2) (2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary." 27. Section 42 (1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision. By section 42 (2), "The Administrative Court shall quash the impugned decision if it is unlawful 1. by reason of its content, [or] 2. because the respondent authority lacked jurisdiction, [or] 3. on account of a breach of procedural rules, in that (a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or (b) the facts require further investigation on an important point, or (c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority." 28. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law [Rechtsanschauung]" (section 63 (1)). | 1 |
train | 001-72772 | ENG | SWE | ADMISSIBILITY | 2,006 | GOMES v. SWEDEN | 4 | Inadmissible | null | The applicant, Mr Francis Gomes, is a Bangladeshi national born in 1966 and currently living in Sweden. He was represented before the Court by Mr Gazi Ziauddin, Bromma. The respondent Government were represented by Ms Anita Linder, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant left Bangladesh on 6 May 1993 and came to Sweden where he applied for political asylum. He claimed that he used to be a member of the Bangladesh Sharbahara party (hereinafter “the party”), an opposition left-wing party. He further claimed that, due to his political involvement, he had been arrested and jailed in 1986 and subjected to repeated torture. He had been released after 15 days. On 18 November 1992 the Dhaka Judge Court had sentenced him to life imprisonment with hard labour for illegal possession of arms. However, the verdict had allegedly been an attempt to put an end to his political activity. His application was rejected by the then Immigration Board (Invandrarverket) on 17 June 1994 and by the Aliens Appeals Board (Utlänningsnämnden) on 7 February 1996, which concluded that the applicant would have the opportunity to receive a fair trial upon return to Bangladesh, and that political activity did not, as such, entail persecution by the authorities in Bangladesh. The applicant was sent back to Dhaka in April 1996. The applicant returned to Sweden on 24 November 1999, again applying for asylum. He claimed that, upon arrival in Bangladesh in April 1996, he had been arrested by the military and brought to a police station where he had been questioned. Before the questioning, a member of the military had made the secret sign of the Sharbahara party. During the questioning, the soldiers had said that they had been looking for him and that they wanted to know whether he was Francis Gomes, member of the Sharbahara party. He was then tortured badly and transferred to a prison from which he had escaped in December 1996, with the help of a party friend. In spite of the torture he had not revealed his identity, which was, the applicant claimed, probably why the sentence of life imprisonment had not been executed. After having escaped, he had lived in hiding for a few months but had continued to work for the party. The applicant further stated that he had been arrested at a party conference in Jehore in April 1997, after which he had been jailed and repeatedly tortured. After eight months’ imprisonment a party friend had helped him escape. Following his escape he had found out that he had been charged with the murder of another prisoner. He had again lived in hiding, but had continued to work for the party. He had distributed leaflets and had been able to work quite freely. However, during a demonstration in May 1998, he had been arrested and tortured anew. Three party members had been killed during the demonstration and he had been accused of the killings. Proceedings had been instituted against him in Jeshore. He believed that he had escaped sometime in November or December 1998. This time too, he had received help from a party member. He had subsequently found out that a court in Dhaka had sentenced him to death in absentia on 3 March 1998 for the murder of his cell-mate of which he had been accused in 1997. In a letter to the Aliens Appeals Board in February 2000 the applicant submitted that after his escape in December 1996 his political party had helped him to contact ‘Refti’, a nursing home in Dhaka where he had been treated daily for his torture injuries. After his escape in November 1997, he had returned to Refti and had been treated there daily between 26 November 1997 and 18 January 1998. Following his escape in December 1998, he had received treatment in a nursing home in Bashabo. The party had helped him leave Bangladesh. He submitted before the Immigration Board that he risked being killed by his own party, because members who had been jailed were regarded as a security risk since they could reveal secret information concerning the party. His life was also threatened by Muslim fundamentalists since he was a Christian. He had once been taken captive by such people and was to be killed. He had, however, managed to scare off his captors. Besides the death sentences against him, the Government had ordered the police to shoot members of the Sharbahara party. On 22 December 1999 the Immigration Board rejected the applicant’s request for asylum. It made the following observations: The applicant had travelled to Sweden with a false passport and had not applied for asylum until this had been discovered. He had also submitted unclear information regarding the details of his journey and had thus tried to hide information relevant to the investigation. Considering his submissions that he had on numerous occasions been arrested and tortured, that a life sentence had not been executed because the authorities had not been able to identify him, that he had in the meantime continued to work for the party, that he was persecuted by Muslim fundamentalists, and that he risked being executed by his party despite having been continuously helped by the party to escape and in the end to leave the country, the Immigration Board concluded that the applicant was not credible. It also remarked that he had not been able to submit any documentation regarding his allegations. Upon appeal, the Aliens Appeals Board, by a decision of 20 June 2000, granted the applicant a permanent residence permit. It reiterated that the applicant had been committed under the Act on Compulsory Psychiatric Care between 16 February and 20 March 2000, having been suicidal and diagnosed with potential post-traumatic stress disorder (PTSD), which had however not been confirmed. The applicant had also submitted a medical certificate concluding that it was probable that he had been subjected to torture as alleged. The Appeals Board deferred to the conclusions of the Immigration Board with regard to his credibility. However, due to his medical condition, the applicant was entitled to stay in Sweden. The applicant’s wife joined him in Sweden in May 2003 together with their daughter Sara, born in 1997. Sara is physically handicapped and dumb. The applicant also has a 12-year-old son in Bangladesh with whom he has no contact. On 23 October 2003 the applicant was charged with aggravated assault against a woman (grov kvinnofridskränkning), it being alleged, inter alia, that on several occasions he had beaten his wife when she had refused to have sex with other men who had promised the applicant money, and had otherwise systematically abused her. The applicant had replied that, due to the torture he had become impotent and for this reason his wife had met another man. It was the applicant’s understanding that they had conspired to put him in jail. On 17 November 2003 the District Court (tingsrätten) of Stockholm convicted the applicant as charged. He was sentenced to one year’s imprisonment and subsequent expulsion from Sweden, being forbidden to return before 17 November 2010, in accordance with Chapter 1, section 8 of the Penal Code, in conjunction with the relevant provisions of the Aliens Act. Subsequent to the applicant’s conviction, divorce proceedings between the applicant and his wife had been initiated at the Stockholm District Court. The same court had also awarded the applicant’s former wife custody of their daughter. The applicant had appealed this latter decision. Concerning the issue of the applicant’s expulsion, the Migration Board (Migrationsverket) submitted to the District Court that there was no obstacle to expelling the applicant to Bangladesh. The court did not make any separate assessment in this respect, but deferred to the conclusion of the Migration Board. It further noted that, ever since the applicant had been granted a permanent residence permit in Sweden, he had received a social security allowance and had been on sick-leave due to psychiatric problems until May 2003. It therefore questioned to what extent he had acquired a real connection to Swedish society. Moreover, the violence of which he had been convicted had been aimed at one of his two family members, his only relatives in Sweden. The court held that, considering the nature of the violence and the applicant’s ruthlessness, it could not be excluded that he would again commit a crime in Sweden. Having regard to his weak links with Sweden, as well as to the fact that he had had a residence permit for less than four years, the Court held that he could be expelled. Both the prosecutor and the applicant appealed against the sentence, and the applicant also appealed against the expulsion order. On 5 March 2004 the Svea Court of Appeal (Svea hovrätt) raised the sentence to one year and six months’ imprisonment, but otherwise confirmed the verdict and agreed with the assessment of the District Court. On 11 May 2004 the Supreme Court (Högsta Domstolen) refused the applicant leave to appeal. The applicant’s expulsion was to be enforced on 5 October 2004. On 28 September 2004 the police authority decided that he should be taken into custody upon his release from prison on 30 September 2004, to await the execution of his expulsion order. On 29 September 2004 the applicant submitted a petition to the Swedish Government, asking that the Government stay or quash the planned expulsion. No information has been submitted as to the outcome. In support of the petition, the application claimed that proceedings had been initiated against him in Bangladesh for the alleged killing of a Mr Anisur Rahman which had supposedly taken place in 1999. A group of investigators had found the applicant guilty of the killing. On 13 and 22 September 2004 a court had issued an arrest warrant for the applicant, referring to a provision in the Bangladeshi penal code under which the penalty, according to the applicant, was death or life imprisonment. The applicant has submitted copies of Bangladeshi documents and translations thereof. One of the documents is a “charge sheet”, dated 20 September 2003, according to which the injured party is the widow of the above-mentioned Mr Rahman. The applicant is mentioned as the “hidden guilty person”, apparently registered in an area called Christian Para within the district of Pirjopur. It follows from the document, without further clarification, that a “preliminary report” had been issued on 31 May 1999. The charge sheet refers to the applicant as one of the two perpetrators of the alleged crime, the effect of which appears to have been the death of Mr Rahman. It states that a body was found covered in blood and that all the evidence was sent to the court. The second document is a Magistrate’s “court order”, dated 13 and 22 September 2004. It refers to a provision in the Bangladeshi Penal Code under which, according to the applicant, the penalty is death or life imprisonment. The document states that, on 21 December 2003, the investigation group found the applicant, who was in hiding, to be guilty as charged. Upon the request of the prosecutor, a warrant for his arrest was issued. The document states at the end “Accused has been accepted”. The copies of the Bangladeshi documents are accompanied by a statement from a Mr Narayan Chandra Saha, senior advocate in the Dhaka and Gazipur Judge Court. The letter in English is dated 23 September 2004, addressed to the applicant and reads, inter alia, as follows: “The punishment of the case might be either death sentence or life imprisonment and the facts of your absconding from the prosecution will contribute and confirm such depth of punishment. I understand quite well that a great unavoidable circumstances like torture and persecution which has been used for you in jail and the possibility of killing by the members of your [Sharbahara party] compelled you to leave the country but the nature of the case is ignoring such facts of circumstances. By the fact in issue, you are the master mind and the authority of the event and the possibility of escaping is less as the procedural materials developed in the case.” The applicant has also submitted transcripts from his medical journal and some medical certificates. In a transcript dated 17 August 1993 from the Centre for Torture Survivors (Centrum för tortyrskadade) at Karolinska Hospital (“the Centre”), the doctor concluded that the applicant had many scars and other marks on his body which could very well be the result of certain of the alleged acts of torture. A new transcript from his medical journal at the Centre is dated 11 January 2000 and states that, after his visit in 1993, the applicant submitted that he had been beaten, subjected to electric shocks, burned with cigarettes, drenched with hot water, suffocated, had needles put under his fingernails and his fingernails pulled out, and subjected to strong light and high volume noise. In a certificate dated 19 January 2000, also from the Centre, Dr Erik Edston, specialist in forensic medicine, noted that the applicant had acquired new injuries, many of which were consistent with scarring from cigarette burns. It could not be excluded that some of the marks had been contracted due to disease, but it was less probable that the scars would have arisen due to accidents or that they had been self-inflicted. He concluded that it was probable that the applicant had been tortured or beaten as alleged, and that many of the torture methods mentioned would only occasionally leave any lasting marks. The torture described was furthermore to a great extent compatible with the Centre’s previous experience of torture in Bangladesh. In a certificate from the Centre dated 26 January 2000, Dr Hans Peter Søndergaard, chief physician and specialist in general psychiatry, noted that the applicant had urgent thoughts of suicide and was completely absorbed by the memories of traumatic experiences. He had severe sleeping problems and difficulties to eat. His speech was partly incoherent but he described electric torture in a manner indicating that he had experienced it. | 0 |
train | 001-84464 | ENG | CZE | ADMISSIBILITY | 2,008 | FARSKY v. THE CZECH REPUBLIC | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Milan Farský, is a Czech national who was born in 1953 and lives in Teplice. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked for a State enterprise. In 1986 he submitted a proposal for improvement which was subsequently adopted and used by the enterprise. However, the applicant’s copyright was never officially approved and royalties were never paid to him. On 19 April 1990 the applicant filed an action with the Ostrava District Court (okresní soud) against the enterprise, claiming compensation for the use of his improvement. On an unspecified date, the applicant withdrew his action, the enterprise having promised to compensate him. As the enterprise had not fulfilled its promise, the applicant brought a new action on 26 June 1990. On 3 March 1995 the Prague High Court (Vrchní soud) referred the case to the Teplice District Court which in an interim judgment of 26 September 2000 accepted the legitimacy of the applicant’s claim. On 29 June 2001 the Ústí nad Labem Regional Court (krajský soud) quashed this judgment and remitted the case to the District Court which, on 2 April 2002, again declared the applicant’s claim justified. On 10 April 2003 the Regional Court upheld the District Court’s judgment which became final on 25 May 2003. On 22 July 2003 the applicant quantified his claim for compensation. In a judgment of 14 December 2004 the District Court partly granted the applicant’s action. The defendant filed an appeal but withdrew it on 1 April 2005. The Regional Court stayed the proceedings on 29 April 2005. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-100092 | ENG | ARM | ADMISSIBILITY | 2,010 | HOVHANNISYAN AND GEVORGYAN v. ARMENIA | 4 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicants, Ms Shushaniki Hovhannisyan and Mr Gegham Gevorgyan, are Armenian nationals who were born in 1945 and 1968 respectively and live in Verin Ptghni, Armenia. They are represented before the Court by Mr T. Atanesyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) are represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants jointly owned a house which measured 49.2 sq. m and was situated at 15 Byuzand Street, Yerevan. It appears that they also enjoyed a right of lease in respect of the underlying plot of land. 4. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. 5. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Vizkon Ltd. 6. On 1 October 2004 Vizkon Ltd and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 7. It appears that Vizkon Ltd unsuccessfully attempted to organise a valuation of the applicants' house in order to offer them compensation for the purpose of expropriation, since the applicants created obstacles. 8. On an unspecified date Vizkon Ltd instituted proceedings against the applicants on behalf of the State. Referring to, inter alia, Government Decree no. 1151-N, the plaintiff sought to oblige them to allow a valuation of their house, to terminate their ownership of the house through payment of compensation based on the results of such valuation, and to have them evicted. 9. On an unspecified date the applicants lodged a counter-claim with the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) in which they contested the constitutionality of Government Decree no. 1151-N. It appears that this counter-claim was not admitted on the ground that the District Court was not competent to decide upon the constitutionality of Government decrees. The applicants further requested the court to put into motion the procedure for testing the constitutionality of the above Decree, which was similarly rejected. 10. It appears that at some point the value of the applicants' house was estimated at USD 21,000 by a valuation company. 11. On 17 March 2005 the District Court granted the claim of Vizkon Ltd, terminating the applicants' ownership in respect of the house, awarding them the Armenian dram (AMD) equivalent of USD 21,000 and ordering their eviction. The court based its findings on Articles 218 and 283 of the Civil Code, while the amount of compensation was determined on the basis of the above valuation report. 12. On 30 March 2005 the applicants lodged an appeal. 13. On 13 May 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Vizkon Ltd on the same grounds as the District Court. 14. On 26 May 2005 the applicants lodged an appeal on points of law. In their appeal they argued, inter alia, that the deprivation of their property was unlawful and contravened Article 28 of the Constitution. 15. On 8 July 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants' appeal. 16. On 8 August 2005 the relevant enforcement proceedings were instituted. 17. On 20 October 2005 the applicants signed an agreement with Vizkon Ltd on termination of their ownership in respect of the immovable property situated on a plot of land to be taken for State needs and payment of compensation. According to this agreement, which was concluded for the purpose of implementation of construction projects envisaged by Government Decrees nos. 1151-N and 909-N, the applicants agreed to give up their ownership of the house and their lease of the underlying plot of land in favour of Vizkon Ltd for a compensation in the net total amount of AMD 13,433,310 and to vacate the premises by 20 November 2005. 18. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-35, 23 June 2009). 19. Section 8 provides that the parties are entitled to reach a friendly settlement in the course of enforcement proceedings. 20. According to Section 42 § 1 (3), the bailiff shall terminate the enforcement proceedings if the creditor and the debtor have reached a friendly settlement which has been approved by a court. | 0 |
train | 001-93113 | ENG | RUS | CHAMBER | 2,009 | CASE OF SOKOREV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1964 and lives in the village of Bolshaya Rechka, Irkutsk Region. 5. As an employee of a State-owned company, in 1987 the applicant and his family were granted a room in a shared flat. After his dismissal in 1992, the company sought his eviction. In 1993 the company was reincorporated as a limited liability company. 6. On 1 October 1993 the applicant brought proceedings against the company asserting his right to live in the room. According to the Government, the applicant’s claim was received by the Sverdlovskiy District Court of Irkutsk on 12 November 1993. The respondent sought the applicant’s eviction. 7. By a judgment of 1 February 1994, the District Court rejected the applicant’s claim and ordered his eviction. On 13 April 1994 the Irkutsk Regional Court upheld the judgment. The applicant obtained a stay of execution of the eviction order. On 20 June 1994 the Presidium of the Regional Court quashed the above judgments by way of supervisory review and remitted the case for fresh examination. 8. Thereafter the District Court examined the case twice and rendered two judgments. Each time the Regional Court quashed the judgments and remitted the case for fresh examination. It appears that in the meantime the applicant resettled and the respondent company withdrew their claim for eviction. 9. On 5 May 1998 the Convention entered into force in respect of Russia. 10. In yet another round of the resumed proceedings, the applicant confined his claim to asking the court to require the respondent to provide him with housing. By a judgment of 23 November 1998, the District Court granted this claim and ordered the company to provide the applicant with a flat. On 12 March 1999 the Regional Court upheld the judgment. The respondent sought supervisory review. On 12 April 1999 the Presidium of the Regional Court quashed the above judgments by way of supervisory review and remitted the case for re-examination. 11. In the resumed proceedings, the applicant amended his claim and sought to substitute the respondent by the new company. On 2 July 1999 the District Court required the company to provide the applicant with housing. On 1 December 1999 the Regional Court quashed the judgment on appeal and remitted the case for fresh consideration. 12. On 24 April 2000 the District Court issued a new judgment in the applicant’s favour. On 30 June 2000 the Regional Court set aside this judgment on appeal and ordered a new examination of the case. The district judge was on annual leave from 26 July to 5 September 2000. One hearing was adjourned due to the applicant; two hearings were adjourned at the respondent’s request. On 20 February 2001 the District Court dismissed the applicant’s claim. On 23 May 2001 the Regional Court upheld the judgment. The applicant sought supervisory review. On 19 August 2002 the Presidium of the Regional Court quashed the above judgments and remitted the case for fresh examination. 13. Between October 2002 and January 2004 a number of hearings were scheduled and adjourned mostly because the respondent failed to attend or sought adjournments. Several hearings were adjourned because of the applicant. One hearing was adjourned in view of the judge’s illness. By a judgment of 12 February 2004, the District Court rejected the applicant’s claim. On 21 April 2004 the Regional Court upheld the judgment. | 1 |
train | 001-101922 | ENG | HRV | ADMISSIBILITY | 2,010 | JAKUSIC v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Ms Antonija Jakušić, is a Croatian national who was born in 1950 and lives in Zlatar Bistrica. She was represented before the Court by Mr N. Perišić, an advocate 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. The applicant was born in 1950 and lives in Zlatar Bistrica. In 1979 the applicant’s mother, together with other heirs, inherited twenty plots of land from her husband. She thereby became a co-owner of various proportions of that property. On 29 August 1989 the applicant and her sister signed a contract of lifelong care (ugovor o doživotnom uzdržavanju) with their mother before the Zlatar Municipal Court (Općinski sud u Zlataru), stipulating that the daughters were to provide for their mother until her death while the mother transferred the ownership of all her immovable property, that is, her share of the above twenty plots of land, to the daughters after her death. On 23 March 1992 the parties amended the above contract so that the applicant and her sister, at the moment of signing of the amendment to the contract, became the co-owners of their mother’s share of the above twenty plots of land. On the basis of the above amendment of 23 March 1992, on 24 April 1992 the applicant was recorded in the land register as the co-owner of those twenty plots of land in various proportions. Meanwhile, on 27 February 1990 the applicant’s aunt B.J. brought a civil action in the Zlatar Municipal Court against the applicant’s mother, with a view to being declared the owner of part of the above property. After the death of the applicant’s mother in May 1992, in October 1992 the applicant and her sister became parties to the proceedings. On 26 June 2000 the Zlatar Municipal Court adopted a judgment. However, that judgment was quashed on 24 March 2004 by the Zlatar County Court (Županijski sud u Zlataru) and the case was remitted to the first-instance court for fresh proceedings. On 29 March 2004 the applicant and her sister lodged a constitutional complaint under section 63 of the Constitutional Court Act, complaining about the length of the civil proceedings. On 4 November 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) found a violation of their constitutional right to a hearing within a reasonable time, awarded them each 7,250 Croatian kuna (HRK) in compensation and ordered the Zlatar Municipal Court to adopt a decision in their case in the shortest time possible but no later than ten months from the publication of its decision in the Official Gazette. The Constitutional Court’s decision was published on 22 November 2004. On 19 July 2005 the Zlatar Municipal Court dismissed the plaintiff’s action. That judgment was upheld by the Zlatar County Court on 21 December 2005 and thereby became final, with the consequence that all concerned remained, as before, co-owners of the twenty plots of land. On 13 July 2006 the applicant instituted non-contentious proceedings before the Zlatar Municipal Court against the other co-owners B.J., Ž.J. and I.J., seeking partition of the co-ownership of six of the above twenty plots of land. At the hearing held on 18 September 2006 the applicant appeared before the court but the defendants failed to appear. An on-site visit was carried out on 9 November 2006 in the presence of the judge assigned to hear the case, the parties and an expert. The expert submitted his opinion and a drawing of the site the same day. The next on-site visit, scheduled for 27 March 2007, was adjourned because the defendants did not attend. During the following on-site visit, on 26 April 2007, the defendants prevented the experts present from taking the necessary measurements The subsequent on-site visit, scheduled for 22 May 2007, was adjourned and the parties agreed to arrange for the measurements to be taken again. The next on-site visit, scheduled for 2 April 2008, was adjourned because the defendants did not attend. At a hearing held on 9 May 2008 the parties reached a settlement whereby they remained co-owners of one plot of land, the defendants B.J., Ž.J. and I.J. became co-owners of one third of three plots of land and the applicant became the sole owner of two plots of land. On 28 May 2008 the applicant approached the Land Registry Division of the Zlatar Municipal Court seeking to enforce the above in-court settlement of 9 May 2008 by recording the partition of co-ownership in the land register. On 30 May 2008 the Land Registry Division of the Zlatar Municipal Court dismissed the applicant’s request. It found that the changes stipulated in the in-court settlement of 9 May 2008 could not be recorded in the land register because the share of the property in question belonging to Ž.J. was subject to enforcement proceedings instituted in 2006 and 2007 by his creditors before the same court, after which it was not allowed, under the Enforcement Act, to record any changes in ownership or other rights in rem in respect of that property in the land register. On 18 June 2008 the applicant appealed against that decision to the Zlatar County Court. On 25 November 2009 the Zlatar County Court in part upheld and in part quashed the first-instance decision. It held that while the Enforcement Act indeed did not allow the changes stipulated in the in-court settlement of 9 May 2008 to be recorded in respect of Ž.J.’s share of the property, they could be recorded in respect of B.J. and I.J.’s share of the property. Due to the outcome of the civil proceedings for annulment (see below), it appears that no further steps were taken with a view to recording the changes stipulated in the in-court settlement of 9 May 2008 in the land register. On 4 July 2008 the applicant brought a civil action in the Zlatar Municipal Court against B.J., Ž.J. and I.J. seeking to annul the above in-court settlement of 9 May 2008 because at the time it had been entered into Ž.J. had concealed the fact that enforcement proceedings had been pending in respect of his share of the property. On 24 March 2009 the court delivered a judgment whereby it annulled the in-court settlement, with the effect that all concerned remained, as before, co-owners of the six plots of land in question. On 26 March 2009 the applicant instituted a second set of non-contentious proceedings against B.J., Ž.J. and I.J. for partition of co-ownership before the Zlatar Municipal Court. This time she sought partition of the co-ownership of four plots of land. On 4 November 2009 the court issued a decision ordering the partition of the co-ownership by sale of the four plots of land in question at a public auction and distribution of the proceeds of the sale to the co-owners in proportion to their shares. It held that partition in kind (geometrijska dioba) was not feasible and therefore ordered partition by auction (civilna dioba). The applicant and B.J. appealed as they both objected to partition by auction and sought partition in kind. It would appear that the case is currently pending before the Zlatar County Court. The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000, 114/2001, 79/2006, 141/2006, 146/2006, 38/2009 and 153/2009), which entered into force on 1 January 1997, reads as follows: “(1) A co-owner has the right to partition of co-ownership if that is practicable and permissible. That right is not subject to statute of limitations. (2) A co-owner may require partition at any time, except when that would be detrimental to the interests of other co-owners ...” “Partition may not be detrimental to the rights of third persons ...” | 0 |
train | 001-89395 | ENG | RUS | ADMISSIBILITY | 2,008 | MERKUSHEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Aleksey Nikolayevich Merkushev, is a Russian national who was born in 1959 and lives in Gatchina, a town in the Leningrad Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. A retired serviceman, the applicant sued his command for the provision of a flat and discharge allowance. By a judgment of 25 October 2000, amended on appeal on 20 November 2000, the Military Court of the Pushkin Garrison ordered the command to provide the applicant out of turn with a flat located at his last place of service and meeting statutory norms, and to pay him the discharge allowance due. This judgment became binding on 20 November 2000, but has not been fully enforced. On an unspecified date the command paid to the applicant the discharge allowance. On 14 March 2001 the command offered the applicant a flat of 42.4 m² in Krasnoye Selo, but the applicant refused this offer because he considered the flat too small. On 6 September 2002 the Military Court clarified the judgment's mode of enforcement. According to the court, the command had to give to the applicant's family a flat to be allocated to the command by federal authorities, or to pay to the applicant's family a housing subsidy allocated to the command by federal or local authorities. In November 2003 and January 2004 the command offered to the applicant two other flats, but he refused them too. In February 2006 the command offered the applicant a flat under the Programme “State Housing Vouchers”, but the applicant refused this offer. On bailiffs' requests, in 2002–07 courts several times adjourned the enforcement because the applicant had refused the command's offers, and because no other flats were available. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. | 0 |
train | 001-71481 | ENG | NLD | ADMISSIBILITY | 2,005 | KOMAN v. THE NETHERLANDS | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Arjen Mathijs Koman, is a Netherlands national who was born in 1966 and lives in The Hague. He is represented before the Court by Mr J.A.W. Knoester, a lawyer practising in The Hague. The Government are represented by their Agent, Mrs J. Schukking of the Netherlands Ministry for Foreign Affairs. On 24 October 1999 the applicant entered a snackbar at Gouda Central Station wearing a balaclava and forced the staff at knife-point to hand him money from the till. He was stopped by railway police as he tried to leave the station. It was later reported that his breath smelt of drink. The applicant was arrested and detained for questioning (ophouden voor verhoor) at 3.59 p.m. At 4.30 p.m. the applicant was seen by an assistant public prosecutor (hulpofficier van justitie), a senior police officer competent to give certain orders in criminal cases. At 7 p.m. the applicant was seen by a doctor. Both found that the applicant was not in a fit state to be questioned. It appeared that he was much the worse for drink and drugs. The six-hour time-limit within which the applicant should have been either released or ordered taken into police custody (inverzekeringstelling) ended at 9.59 p.m. The applicant was brought before an assistant public prosecutor the following morning, 25 October 1999, at 9.45 a.m. He was questioned by police officers at 10.02 a.m. and 10.51 a.m. At 11.50 a.m. the applicant was again brought before the assistant public prosecutor, who ordered him to be placed in police custody at noon. On 27 October 1999, the applicant, assisted by counsel, was heard by an investigating judge (rechter-commissaris). He asked to be released immediately. This the investigating judge refused to do. She found the police custody to be unlawful as a matter of domestic law but ordered that the applicant be taken into detention on remand. The official record drawn up by the investigating judge contains her decision, which is in the following terms: “The suspect [verdachte; i.e. the applicant] was arrested on 24 October at 3.59 p.m., but was unresponsive (niet aanspreekbaar). He was then locked in a cell to sober up and brought before the assistant public prosecutor on 25 October 1999 at 9.45 a.m. The suspect was questioned at 10.02 a.m. and 10.51 a.m., after which he was again brought before the assistant public prosecutor at 11.50 a.m. and taken into police custody at 12 noon, that is, 20 hours after his arrest. Since it appears that the applicant was responsive (aanspreekbaar) by 9.45 a.m., he ought not to have been taken into police custody only at 12 noon. In view of the seriousness of the crime of which the suspect is suspected and the serious indications (ernstige bezwaren) that have arisen in his regard, the request for immediate release must be refused, the applicant having been taken into detention on remand without preliminaries (nu de verdachte rauwelijks in bewaring is gesteld).” The applicant was tried by the Regional Court (arrondissementsrechtbank) of The Hague on 2 February 2000. The judgment notes that he was taken into police custody on 25 October 1999. On 16 February 1999 the Regional Court gave judgment finding the applicant guilty of extortion (Article 317 of the Criminal Code – Wetboek van Strafrecht). It sentenced him to twenty-four months’ imprisonment, six months of which was suspended on condition that he undergo treatment for his addiction problems, as an in-patient if need be, under appropriate supervision. Its reasoning included the following: “The suspect’s counsel has stated at the hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the expiry of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure (Wetboek van Strafvordering) and argued that in the event of a conviction this procedural violation (vormverzuim) should lead to a reduction of sentence. On this point, the Regional Court holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.” The applicant appealed to the Court of Appeal (gerechtshof) of The Hague. A hearing was held on 13 September 2000, at which the applicant stated that he had drunk a bottle of port wine and taken cocaine on 24 October 1999. The applicant’s counsel again argued that the applicant’s sentence should be reduced in view of the unlawfulness of the order placing him in police custody. The Court of Appeal gave judgment on 27 September confirming the applicant’s conviction. Echoing the reasoning of the Regional Court, it rejected the plea for a reduction of sentence in the following terms: “The suspect’s counsel has stated at the appeal hearing that the order for the applicant to be taken into police custody was given too late, i.e. after the end of the time-limit prescribed by law. Counsel has invoked Article 359a § 1 a of the Code of Criminal Procedure and argued that in the event of a conviction this procedural violation should lead to a reduction of sentence. On this point, the Court of Appeal holds, considering also the seriousness of the crime committed by the suspect, that the procedural violation mentioned is not of such a nature that it should lead to a reduction of sentence. In so holding the Court of Appeal has had regard to the fact that it is not apparent that the said violation caused the suspect any substantial prejudice.” Noting that the applicant had evaded treatment of his addiction in an institution, it imposed an unconditional sentence of sixteen months’ imprisonment and ordered the execution of an earlier suspended 256-day prison sentence not relevant to the present case. The applicant lodged an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad), which gave judgment dismissing the appeal on 5 February 2002. The following provisions of the Code of Criminal Procedure (Wetboek van Strafvordering), as in force at the time, are relevant to the case before the Court: “1. The public prosecutor or the assistant public prosecutor before whom the suspect is brought, or who has himself arrested the suspect, may, after having questioned him, order in the interests of the investigation that he shall remain at the disposal of the authorities responsible for the administration of justice (de justitie) and shall be placed in police custody for that purpose in a place indicated in the order. ...” “1. A police custody order shall only be given in the case of a punishable act (strafbaar feit) for which detention on remand is permitted. 2. The police custody order shall be valid for no more than three days. In cases of urgent necessity the order can be prolonged once for a further period of no more than three days. 3. As soon as the interests of the investigation so allow, the assistant public prosecutor shall order the suspect released. Otherwise, he shall propose to the public prosecutor that police custody be prolonged. The public prosecutor may order the suspect to be brought before him to be heard.” “1. The suspect shall be brought before the investigating judge for interrogation no later than three days and fifteen hours from the moment of his arrest. ... 4. At the time of his interrogation [by the investigating judge], the accused may request the investigating judge to release him [from police custody]. 5. If the investigating judge considers the police custody unlawful (onrechtmatig), he shall order the accused’s immediate release. Otherwise, the investigating judge shall make a note of his decision in the official record of the interrogation or, if the suspect has made a request for his release, the investigating judge shall reject it. ...” “1. If the suspect is not taken into police custody ... nor ... brought before the investigating judge, he shall be released promptly (dadelijk) after questioning. 2. Under no circumstances (in geen geval) shall the applicant be detained for questioning for longer than six hours, not counting the time between midnight and nine a.m.” “1. The investigating judge may, upon an application (vordering) by the public prosecutor, order the suspect’s initial detention on remand. ...” “1. The [trial court] may, if it appears that there have been procedural violations during the preliminary investigation which can no longer be redressed and the legal consequences thereof are not apparent from the law, decide that: a. the sentence shall be reduced in proportion to the seriousness of the procedural violation, if the harm done by the violation in question can be thus compensated; ... 2. In applying the first paragraph, the [trial court] shall consider the interest that is intended to be served by the procedural rule that has been violated, the seriousness of the violation and the harm thereby caused.” In a decision in camera of 7 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports) 1989, no. 510, the Supreme Court held that a failure to observe legal requirements in relation to police custody might affect the lawfulness of the police custody but did not of itself prevent the investigating judge from subsequently ordering the suspect’s initial detention in remand. Section 2 of the 1993 Police Act (Politiewet) provides as follows: “The duty of the police shall be to ensure, in subordination to competent authority and in conformity with the law in force, the actual maintenance of the legal order and to provide help to those who need it.” In a judgment of 11 March 1929, Nederlandse Jurisprudentie 1929, page 895, the Supreme Court held under the predecessor provision (which was identical to section 2 of the modern Police Act, save for its more archaic grammar) that the task of the police comprised securing public order, safety and peace; that this preventive task included removing an inebriated person from the public highway; and that a patrolling police officer made reasonable use of this authority by detaining such a person for as long as it took them to sober up. | 0 |
train | 001-67232 | ENG | SWE | ADMISSIBILITY | 2,004 | LITON v. SWEDEN | 3 | Inadmissible | Nicolas Bratza | The applicant, Mr Rob Abdur Al Haj Liton, is a Bangladeshi national who was born in Bangladesh in 1969 and is currently in Sweden. He is represented before the Court by Mr P-E Nilsson, a lawyer practising in Bromma, Stockholm. The respondent Government are represented by their Agent, Ms I. Kalmerborn of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant applied for asylum to the Migration Board (Migrationsverket) on 9 April 2001, claiming that he had arrived in Sweden three days earlier. He presented a Bangladeshi passport to the authorities but he could produce neither his ticket to Sweden nor the required visa. On 10 April 2001 the Migration Board held an initial interview with the applicant in which he briefly recounted his family background and up-bringing in the city of Karanigonj. He further stated that he had travelled to Stockholm on 5 April 2001 via Delhi and Moscow and that the passport he had given to the Swedish authorities was forged. It had been paid for by his father and the Jatiya Party and given to him by a smuggler. Asked by the Migration Officer about his reason for asylum, the applicant submitted that he had been reported to the Bangladeshi police on false accusations of possessing illegal weapons and of having murdered a supporter of the Bangladeshi Government. He claimed to have been arrested once by the police and detained for two months. In response to further questions, the applicant stated that he had been the treasurer of the Jatiya Party, to which he belonged, and that he had been arrested by the police in 1991 and in 1999, allegedly to prevent the party from continuing with its activities and returning to power. He also claimed that he had been tortured by the police, which had caused damage to his knee and ankle joint and left him with difficulties in walking and lapses of memory. Furthermore, the police had been constantly looking for him in Bangladesh. At the end of the interview, the Migration Officer noted that the part of the record concerning the reasons for asylum had been re-read to the applicant and that he had had nothing to object or add to it. The applicant had moreover confirmed that he had understood the interpreter well during the interview. On 9 May 2001 the Migration Board held a second interview with the applicant where his legal representative was present and given the opportunity to ask questions. During this interview the applicant submitted, inter alia, the following. He had held the post as treasurer of a welfare fund within the Jatiya Party, the purpose of the fund being to provide support for education of the poor and to provide food in case of famine. His office had been located in Dhaka. He had been arrested twice, both times in his home town Karanigonj, because of false accusations from supporters of the Awami League (the ruling party at the time). Neither arrest had been followed by a trial against him nor had he been appointed a lawyer. The first arrest occurred on 30 March 1999, following a report to the police by the Awami League that he had murdered a person named Anwar. He had been detained for two months during which time he had been beaten with bottles filled with water, sandbags and rifle butts, mostly on his legs. He had been released because he fell ill from the maltreatment. The second arrest had occurred on 10 August 2000, again after false accusations by the Awami League which this time had affirmed that he was, or had been, in possession of illegal weapons. He had been released on 30 August 2000, again due to ill health following physical abuse. Upon release he had been urged by the police to abandon his contacts with his party or he would be killed. During both arrests, he had been held at the central prison in Dhaka. After his release in August 2000 he had lived on the run until he left for Sweden and, consequently, he had not continued to work for the Jatiya Party. However, despite several questions from the Migration Officer, the applicant could not give a clear answer as to where he had lived following his release in August 2000. He stated both that he mainly lived at home with his parents and that he rarely did so since the police had come looking for him almost every other day for more than six months. With reference to the records from the initial interview where he had stated that he had been arrested in 1991, he claimed that it must have been a misunderstanding and that he had said that he began his political activities in 1991. He further claimed that he had already in the initial interview mentioned that he had been arrested in August 2000 and that it was also a mistake that this had not been included in the record. To support his statements the applicant submitted a certificate dated 7 January 2001 and signed by a Mr Akther Hossain, member of the central committee of the Jatiya Party, which certified that the applicant was a member of the party and had worked for it since 1992, currently holding the post of welfare secretary within the unit of the Karanigonj area. It further stated that he had been arrested more than twice and detained in the Hazat jail where he had been severely tortured. According to the certificate, the police were looking for him and the party had therefore recommended him to leave the country. Last, Mr Hossain requested the Government of Sweden to grant the applicant political asylum. On 11 July 2001 the Migration Board rejected his application for asylum and ordered that he be expelled to his home country. It first noted that the applicant had not been able to substantiate how he had travelled from Bangladesh to Sweden and consequently it remained unclear how long he had been in Sweden before applying for asylum. It then went on to state that the general situation in Bangladesh was not such as to entitle him to asylum per se. Moreover, there was freedom of political opinion in Bangladesh and the applicant had worked for a party that was legal. The Migration Board considered that his political activities had been very limited and that it was not probable that his political affiliation alone would give rise to a risk of persecution. With regard to the false accusations against the applicant, the Migration Board observed that he had been released both times and that there had been no trial. It was acknowledged that false accusations occurred as part of political life in Bangladesh but this was not found to be a sufficient reason in itself to be granted asylum. What the applicant had submitted in the present case did not give reason to believe that he was in need of protection on account of the accusations. Neither did his submissions provide support for his claim that he would be at risk of renewed arrest if he had to return to his home country. Furthermore, the Migration Board did not question that the applicant had been exposed to ill-treatment or torture during his previous arrests, but considered that he did not risk such ill-treatment, or being punished by death or corporal punishment, if returned. Thus, it was concluded that the applicant was neither a refugee who could be granted asylum nor a person otherwise in need of protection who could be allowed to stay on humanitarian grounds. The latter conclusion was reached after consideration by the Migration Board even though the applicant had not expressly requested it. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), renewing his request for asylum and requesting that he be granted a residence and work permit. He maintained his earlier claims and added that there was a warrant for his arrest and proceedings pending against him before the national courts in Bangladesh. The pending cases concerned the previously mentioned accusation by political opponents. He submitted several documents, most of them in Bengali, to support his statements. Among the documents there was a warrant for his arrest, in English, dated 26 January 1999, and two letters from his defence lawyer in Bangladesh, Mr Bijoy Panna Bhadra. The first letter, written in English, dated 15 April 2001, informed the applicant that Mr Bhadra would be representing him in court against the charges of attempted murder. The second letter, in Bengali, dated August 2002, stated, according to the applicant, that he had been convicted of attempted murder and sentenced to seven years' imprisonment and to pay a fine. Moreover, the applicant submitted a medical certificate, dated 16 May 2002, to the Aliens Appeals Board in which the chief physician of Western Stockholm's Psychiatric Sector stated that the applicant suffered from Post Traumatic Stress Disorder (PTSD), was depressed and had shown suicidal tendencies. He considered that the applicant was in need of advanced psychiatric treatment. On 5 July 2002 the Aliens Appeals Board rejected the appeal. It gave the following reasoning: “The Aliens Appeals Board shares the Migration Board's assessment of the reasons that [the applicant] has invoked before the Migration Board. His submissions now, that legal proceedings have been instituted against him, does not entail that he can be considered to be persecuted or in need of protection. .... The Aliens Appeals Board, which does not question that [the applicant] has been subjected to ill-treatment in his home country and that his psychological health is poor, cannot however find that a residence permit should be granted to him on this ground. Nor,a residence permit for humanitarian reasons should be granted.” At the end of August 2003 the applicant lodged a new application with the Aliens Appeals Board for a residence permit on humanitarian grounds, according to Chapter 2, section 5b, of the Aliens Act, and requested that his expulsion be stayed until the new application had been considered and a new medical examination had been carried out. He submitted a medical certificate, dated 1 October 2002, which stated that he was very depressed and lacked the ability to care for himself. He was diagnosed as suffering from PTSD with anxiety and suicidal thoughts. Before the Court, the applicant claimed that he had also invoked a document stating that he had been convicted to 14 years' imprisonment, in absentia, by a court in Bangladesh. However, this has been disputed by the Government which claim that no such document had been invoked before the national authorities at any time during the proceedings. The alleged document has not been produced before the Court. On 2 September 2003, the Aliens Appeals Board decided not to stay the execution of the expulsion order and, on 12 September 2003, it rejected the application. It first observed that the decision to expel the applicant had gained legal force through its decision of 5 July 2002 and that the decision could not be appealed against or re-examined. However, according to Chapter 2, section 5b, of the Aliens Act, the Aliens Appeals Board could examine a new application for a residence permit lodged by an alien who was to be expelled following a final decision. Under this provision, such a new application could be granted only if it was based on circumstances which had not already been examined and if the alien was in need of protection or if it otherwise would be contrary to humanitarian standards to implement the expulsion order. Turning to the issue before it, the Aliens Appeals Board noted that it did not concern a need for protection pursuant to the Aliens Act (i.e. a new request for asylum). It then observed that the medical certificate which the applicant had invoked was almost one year old and that he had not submitted more recent medical certificates. It went on to find that the medical evidence invoked did not show that the applicant's current health condition was of such a character that it would be contrary to humanitarian standards, within the meaning of the Aliens Act, to enforce the expulsion. On 5 September 2003 the applicant's representative requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court to suspend the applicant's expulsion. On the same day, the applicant allegedly tried to commit suicide by swallowing an unspecified number of cigarettes following which he was taken to hospital. After having received treatment, he was placed in a closed psychiatric care unit. On 8 or 9 September 2003 he escaped from the hospital and went into hiding. On 17 September 2003 the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of the Court, to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Bangladesh until the Chamber had had an opportunity to examine the application. On 23 September 2003 the Chamber decided, under Rule 54 § 2 (b) of the Rule of the Court, that the Government should be invited to submit written observations on the admissibility and merits of the case. Moreover, it decided to prolong, until further notice, the interim measure indicated under Rule 39. Following the Court's indication under Rule 39 of the Rules of Court on 17 September 2003, the Migration Board decided on the same day to stay the enforcement of its decision to expel the applicant until further notice. The Migration Board's decision is still in force. On 28 March 2004, after the Court had received both parties' observations on the admissibility and merits of the case, it received a fax signed by Mr Bijoy Panna Bhadra in which he disputed all the Government's claims concerning him personally as put forward in their observations. He stated that he was a Bar Council licensed lawyer and working at the address mentioned in the letterhead of his letters. As regarded the court case in Bangladesh against the applicant in which he had been convicted of attempted murder, Mr Bhadra stated that it was a mystery that it had disappeared but that sometimes court officials kept files secret, which must have happened in the present case. | 0 |
train | 001-58243 | ENG | TUR | CHAMBER | 1,998 | CASE OF AYTEKIN v. TURKEY | 2 | Preliminary objection allowed (non-exhaustion of domestic remedies) | null | 6. The applicant, Mrs Gülten Aytekin, is a Turkish citizen, born in 1969 and currently living in Istanbul. She is the widow of Mr Ali Rıza Aytekin, who she alleges was unlawfully killed by a soldier on 24 April 1993 at a checkpoint outside a gendarmerie headquarters on the road between Diyarbakır and Sason in south-east Turkey. Her deceased husband had been a building contractor and a partner in the Aytekinler Construction and Trading and Industry Company Ltd, which had its office in Diyarbakır. He was 27 years old at the time of his death. 7. The circumstances in which the applicant’s husband was killed on 24 April 1993 are disputed. 8. On 24 April 1993, Ali Rıza Aytekin, his brother, Feyzullah Aytekin (a building contractor), and his cousins, Salih Aytekin and Resul Aytekin (both building workers), were travelling in a private car to check the construction of two bridges in the Sason district of the province of Batman, south-east Turkey. Ali Rıza Aytekin’s company had been awarded a contract by the State authorities for the construction of the bridges. Ali Rıza Aytekin was at the wheel of the car. 9. At about 1.30 p.m. just as the vehicle had passed the Yanıkkaya gendarmerie headquarters near Kozluk, a soldier on duty outside shouted to the vehicle to pull over and stop. Ali Rıza Aytekin, who was driving relatively slowly due to the presence of speed ramps, pulled over or began to pull over to the right-hand side of the road in response to the soldier’s order. 10. Just as he stopped, the soldier, Private Tuncay Deniz, shot in the direction of the vehicle. The bullet went through the rear window of the vehicle, entered the back of Ali Rıza Aytekin’s head, came out through his forehead and exited the car through the windscreen. Ali Rıza Aytekin was killed instantly. 11. When Feyzullah Aytekin, Salih Aytekin and Resul Aytekin got out of the car, Private Tuncay Deniz raised his rifle as if to fire at them. However, when other soldiers came out of the gendarmerie headquarters and surrounded the car, Private Tuncay Deniz changed his mind and approached the car. 12. All the persons in the car were unarmed and there was nothing in the vehicle except their personal belongings, the tools of their trade, a map and a calculator. 13. Following the conduct of a post-mortem examination of the body and the issuance of a burial certificate Feyzullah Aytekin, Salih Aytekin and Resul Aytekin had to procure a car from local villagers in order to transport the deceased’s body back to Diyarbakır. The applicant was living in Istanbul at the time of her husband’s death. 14. The applicant maintains that the above description of the circumstances surrounding the killing was confirmed by, inter alia, Feyzullah Aytekin, Salih Aytekin and Resul Aytekin in the statements which they each gave to the public prosecutor shortly after the incident (see paragraph 21 below). She also relies on the evidence of Mehmet Bayram and his son Ramazan who were waiting to be picked up by her husband at a café about 50–60 metres down the road from the gendarmerie headquarters and who both gave statements to the Batman Criminal Court (see paragraph 32 below). 15. The Government, in their memorial, rely on the facts as outlined in the judgment of the Batman Criminal Court which convicted Private Tuncay Deniz of manslaughter on 2 October 1997 (see paragraphs 32–35 below). 16. Private Tuncay Deniz, a conscript who was 21 years old at the time, was performing his military service at the Yanıkkaya gendarmerie headquarters in Kozluk in Batman province, south-east Turkey. He was on guard duty on 24 April 1993. Part of his functions was to check passing vehicles. 17. At about 1.30 p.m. a car driven by Ali Rıza Aytekin and containing three passengers approached the checkpoint. Private Tuncay Deniz warned the driver of the car to stop, first by blowing his whistle and then by firing a shot in the air. Despite these warnings and despite the fact that a “Stop – Gendarmerie” warning sign had been placed 65 metres before the checkpoint, the car failed to stop. When it had travelled more than 50 metres past the checkpoint, Private Tuncay Deniz fired a shot towards the car. This shot, fired from behind, caused the driver’s death. The incident was immediately reported to the prosecuting authorities by the commanding officer of Kozluk gendarmerie headquarters. 18. It is not disputed that shortly following the shooting the public prosecutor of Kozluk, Ümit Ceyhan, arrived at the scene with a doctor, Mehmet Kökcü, to conduct a post-mortem examination. The autopsy report confirmed the entry and exit points of the bullet and that the brain of Ali Rıza Aytekin had been shattered by the impact of the bullet. An incident report was prepared, a sketch made of the scene and a burial certificate issued. 19. On 24 April 1993 Major Cengiz Eryılmaz, the Kozluk district commander, took statements from Private Tuncay Deniz as well as from Sergeant Bekir Çakır who was also on duty on that day. 20. The Kozluk public prosecutor, who arrived at the scene shortly after the fatal shooting, immediately commenced an investigation into the incident (file no. 1993/112). At 4.50 p.m. on 24 April 1993 he took written statements from Feyzullah Aytekin, Salih Aytekin and Resul Aytekin. 21. The statements provided by Feyzullah Aytekin, Salih Aytekin and Resul Aytekin reflect the applicant’s account of the incident. When Feyzullah Aytekin was asked by the public prosecutor whether he wished to file a complaint against anyone, he replied that he wished to file a complaint against those who shot his brother. 22. On 26 April 1993 the public prosecutor took statements from Private Tuncay Deniz and Sergeant Bekir Çakır, both of whom had been interviewed by Major Cengiz Eryılmaz on the day of the incident, as well as from Sergeant Murat Hekim who drew up the sketch of the incident. In his statement Private Tuncay Deniz affirmed that it was never his intention to kill the driver, only to stop the car by firing one shot at the tyres. According to Private Tuncay Deniz, the car had been driven towards him at speed forcing him to jump aside. The driver continued beyond the checkpoint failing to heed his warning whistle and shot. 23. On 27 April 1993 the public prosecutor decided that he lacked jurisdiction in the matter and that the case, since it involved a soldier, should be dealt with under the Prosecution Against Public Officials (Official Conduct) Act. The file was subsequently transferred to the Kozluk district governor. 24. On 29 April 1993 the Kozluk district governor referred the file to the Batman Administrative Council which in turn appointed Major Osman Gökçen to investigate the incident. Statements were taken on 11 May 1993 from Private Tuncay Deniz and from Sergeants Bekir Çakır, Murat Hekim and Expert Sergeant Kutlu Alkurt, the latter also having been on duty on the day of the incident. Major Osman Gökçen also had regard to the statements which Feyzullah Aytekin, Salih Aytekin and Resul Aytekin gave to the public prosecutor. 25. Major Osman Gökçen drafted his summary report on 11 May 1993. In his report, he concluded that: “On 24 April 1993 at 1.30 p.m. when the incident took place, the accused soldier, Tuncay Deniz, was posted at the road checkpoint by his commander. This area has a critical importance in terms of security. The terrorist organisation, PKK, is known to be transferring weapons and other goods along this route. It is also a route for other sorts of smuggling. The soldier on duty saw the car travelling from Batman in the direction of Sason and waved to it to stop. Instead, the car increased its speed, came towards the soldier and passed him. The soldier tried to stop the car by whistling and firing a warning shot. The car failed to stop and as a last resort the soldier fired once at the tyres of the car. Due to reasons beyond the control of Tuncay Deniz and to the fact that the car was moving, the bullet entered through the rear window and caused the death of the driver, Ali Rıza Aytekin.” 26. On receipt of the report, the Kozluk public prosecutor, on 8 June 1993, contacted the military prosecutor in respect of competence to proceed further with the case. In the opinion of the public prosecutor, the investigation should be completed by the military prosecutor in accordance with section 87(4) of Law no. 211 which regulates investigations against members of the armed forces. The military prosecutor in turn sent Private Tuncay Deniz for trial before the Diyarbakır Military Tribunal on a charge of intentional homicide committed in excess of his duties contrary to Article 448 taken together with Article 50 of the Criminal Code. 27. On 6 and 26 May 1993 the applicant gave general powers of attorney to Mr Sedat Aslantaş and Mr Arif Altınkalem, both of the Diyarbakır Bar. On 8 June 1993 Mr Aslantaş wrote to the Kozluk public prosecutor submitting that the applicant’s husband’s death was the result of an act of intentional homicide and that the necessary steps should be taken to prosecute the soldier for murder and the gendarmerie commander for negligence. 28. On 27 September 1993 Private Tuncay Deniz was put on trial before the Seventh Military Tribunal in Diyarbakır, charged with intentional homicide committed in excess of his duties. Statements obtained pursuant to letters rogatory were submitted to the Diyarbakır Military Tribunal by Sergeants Murat Hekim and Bekir Çakır and Expert Sergeant Kutlu Alkurt. Feyzullah Aytekin testified before the Diyarbakır Military Tribunal on 22 March 1994, repeating the version of the incident which he had given to the public prosecutor on the day of the incident (see paragraph 21 above). 29. On 10 May 1994 the tribunal decided that as the crime was not one against another soldier or committed in a military location it had no jurisdiction to hear the case. The tribunal transferred the file accordingly to the Batman Criminal Court so that the case could be tried under Articles 448 and 50 of the Criminal Code. 30. The applicant applied to the tribunal on 10 May 1994 to join the proceedings as a civil party in accordance with the provisions of Article 365 of the Code of Criminal Procedure. She averred that her spouse had been intentionally murdered by Private Tuncay Deniz and for that reason wished to participate in the hearings as an intervening party. On the same date she also requested the tribunal to take statements from Mehmet Bayram and Ramazan Bayram, who had been waiting to be picked up by her deceased husband on the day of the incident (see paragraph 14 above). Since the tribunal had declared the same day that it lacked competence to hear the case against Private Tuncay Deniz it was unable to take a decision on the applicant’s requests. Notwithstanding, it added the applicant’s requests to the file. 31. The case file was transferred to the Batman Criminal Court. In transferring the file, the Diyarbakır Military Tribunal declared: “After the examination of the files, it is clear that the accused, who was the soldier on duty for road inspection and control at Yanıkkaya gendarmerie headquarters, first warned the private car to stop (licence plate number: 34 Z 9189) then whistled to warn it; immediately after that he fired a warning shot in the air, then fired once again towards the car without aiming at any specific target. The single bullet fired from his rifle hit the civilian, Ali Rıza Aytekin, in the head and caused his death.” 32. When it was seized of the case (file no. 1994/283), the Batman Criminal Court organised on 13 July 1994 the future procedure for dealing with the case and to that end drew up a list of witnesses and documents. The court ordered that the evidence of the witnesses be taken by other domestic courts by letters rogatory and their statements forwarded to it for inclusion in the case file. In accordance with the procedure so fixed, the Batman Criminal Court obtained the statements of a number of witnesses, including Resul Aytekin, Mehmet Bayram and Ramazan Bayram. A statement was also obtained from Private Tuncay Deniz in which he claimed that he was not guilty of the charges against him as well as from Sergeants Murat Hekim and Bekir Çakır and Expert Sergeant Kutlu Alkurt. 33. On 20 September 1994 the court accepted the submissions of the prosecuting counsel that the applicant be acknowledged as an intervening party in the proceedings on account of the possibility that she may have suffered as a result of the offence committed by Private Tuncay Deniz. The court had regard in this respect to the petition which the applicant submitted to the Diyarbakır Military Tribunal on 10 May 1994 (see paragraph 30 above). The court acknowledged at the same time that she would be represented in her capacity of intervening party by the lawyers to whom she had given a power of attorney (see paragraph 27 above). A statement was taken from the applicant by letters rogatory on 20 October 1994 and forwarded to the Batman Criminal Court. In her statement she informed the court that she had learned of the circumstances of her husband’s death from Feyzullah Aytekin and relied on his account of the circumstances in which her husband was killed. She also declared that she filed a complaint against the defendant. 34. On 19 January 1995 the Forensic Department of the Ministry of Justice submitted to the Batman Criminal Court at the latter’s request a ballistics report on the two spent bullets found at the scene of the incident. According to the report, the bullets had been fired from Private Tuncay Deniz’s gun. 35. On 2 October 1997 Private Tuncay Deniz was convicted under Article 452 § 1 of the Criminal Code (see paragraph 51 below) which governs causing death unintentionally, in conjunction with Article 50 thereof (using force in excess of that required by lawful self-defence) and was sentenced to three years and four months’ imprisonment. The court also ordered the defendant to pay the legal fees of the applicant as from the moment she became an intervening party in the proceedings. In its judgment the Batman Criminal Court considered that: “According to the defendant’s evidence and the preliminary statement of his friend Bekir, who was at the gendarmerie headquarters, the defendant signalled the approaching vehicle to stop; when the vehicle failed to stop he gave a warning with his whistle and fired one round in the air. The vehicle still not having stopped he fired towards it without taking any particular aim when it was 50 metres away. By doing so he caused the death of Ali Rıza Aytekin. According to the passenger witnesses’ account they were not warned to stop in any way. However, if the driver was not warned to stop, it would have been illogical for him to have moved to the right. Under these circumstances the driver was warned one way or another, even after he had passed. Nevertheless witness Feyzullah Aytekin declared in his preliminary statement, and there is no reason for this statement not to be taken seriously, that he heard the sound of a whistle. The witness Ramazan Bayram’s account that the defendant fired from a distance of 10 to 15 metres without seeing anything at all was not confirmed by his father who was sitting in the same location. The primary issue to be resolved is whether the defendant acted with the intention to kill in this incident... As it may be concluded from the content of the file, the defendant did not know the victim and the other passengers. The incident sketch in the file indicates that the firing distance was 40–50 metres. In addition to the driver, there were two persons seated in the back and one other passenger in the front. Under these circumstances and at that distance it would not have been possible to identify the driver through the persons sitting in the back seat and take aim. Despite there being nearly twenty bullets in his rifle, the defendant fired one single shot and despite that he still did not know whether this caused death. If his intention was to kill, he could have continued firing. Nevertheless there is no reason to ground a finding of murder. Having considered all these elements it is concluded that the defendant did not act with the intention to kill. Therefore, in due fairness, it is more appropriate to conclude that the intention was a wrongful assault. Although the defendant was on duty he should have assumed that the individuals in the vehicle did not hear him and he could have fired more than one shot in the air; and having considered the fact that a serious situation such as an escape or apprehending someone in the act was not present and since an assumption must be made that he knew the specification of his weapon, he should have been more careful and should have fired his weapon in a way which would not have harmed the persons in the vehicle. As a result of failing to comply with these considerations he exceeded the limits of his duty. However, the reduction of his sentence based on this factor is to be minimal as a result of the reasons, importance and seriousness of the offence, and the gravity of the harm caused by the offence...” 36. The applicant, through a domestic lawyer, Mr Oktay Bagatır, appealed to the Court of Cassation on 13 October 1997 against the judgment of the Batman Criminal Court on the grounds that the accused should have been convicted of intentional homicide. 37. According to the information provided by the Government at the hearing, the victim’s brother, Mr Feyzullah Aytekin, requested that as one of the intervening parties in the domestic proceedings he be permitted to exercise separately his right to appeal against the judgment. The Court of Cassation acceded to this request on 22 April 1998. Furthermore, the Batman public prosecutor appealed to the Court of Cassation on 14 October 1997 against the judgment of the Batman Criminal Court on the ground that Private Tuncay Deniz should have been convicted of the more serious offence of wilful homicide as defined under Article 448 of the Criminal Code. 38. The appeal is currently pending before the Court of Cassation. 39. Although the Government submitted to the Commission on 14 October 1996 details of the investigation into the death of the applicant’s husband as well as of the trial of the accused soldier before the Diyarbakır Military Tribunal and the state of the proceedings against him before the Batman Criminal Court, the Commission did not in fact have the benefit of the full file when assessing the evidence surrounding the killing since the Government’s submissions had been misplaced as a result of a clerical error. 40. As a consequence of this error, the Commission based its assessment of the case on the following official documents only: the incident report prepared by Major Cengiz Eryılmaz; the sketch map of the incident drawn by hand by Sergeant Murat Hekim; the post-mortem and autopsy report prepared by the medical examiner; statements taken by Major Cengiz Eryılmaz on 24 April 1993 from Private Tuncay Deniz and Sergeant Bekir Çakır; statements taken by Major Osman Gökçen on 11 May 1993 from Private Tuncay Deniz, Sergeant Bekir Çakır, Expert Sergeant Kutlu Alkurt and Sergeant Murat Hekim (see paragraphs 18, 19 and 24 above). The Commission also had regard to the following: four statements of Feyzullah Aytekin, two of which had been taken by the Diyarbakır Human Rights Association; a statement of the applicant taken by the Diyarbakır Human Rights Association on 30 April 1993; an expert statement dated 7 February 1995 of Dr Christopher Milroy, a consultant pathologist for the British Home Office. 41. The Commission accepted firstly that there were speed ramps in place outside the gendarmerie headquarters which would have made it difficult and unlikely that the applicant’s husband could have driven the car at speed through the checkpoint. 42. Secondly, no explanation was offered as to why the deceased would have driven recklessly through the checkpoint causing the soldier to jump to safety. For these reasons, the Commission found the soldier’s account of being at risk to be unconvincing. 43. Thirdly, while the Commission was unable to determine on the evidence whether the car was stationary or was still moving when the gendarme opened fire, it found it established that Private Tuncay Deniz signalled the car to stop. However, in its view there was insufficient material to conclude that he had fired a warning shot in the air as alleged since no ballistics report had been submitted. 44. Fourthly, the Commission considered that there must be a very strong inference either that Private Tuncay Deniz aimed into the back of the car at the driver or fired so quickly as to render his aim inaccurate. 45. In view of the above findings the Commission concluded that the car driven by the applicant’s husband was driven slowly up to and through the checkpoint, that the soldier signalled it to stop and that very shortly afterwards he opened fire intending to stop the car, either aiming at the driver or failing to take proper aim. 46. In the absence of detailed submissions on domestic law and practice, the Court, like the Commission, has had regard to the relevant provisions and submissions made in the context of previous cases involving the respondent Government and the applicant’s representatives. 47. Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” 48. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the authorities, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the authorities may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 49. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the state of emergency, which provides: “... actions for compensation in relation to the exercise of powers conferred by this Law are to be brought against the authorities before the administrative courts.” 50. The Turkish Criminal Code contains provisions dealing with unintentional homicide (Articles 452, 459), inadvertent and negligent homicide (Article 455), intentional homicide (Article 448) and murder (Article 450). Articles 49 and 50 of the Criminal Code address the commission of offences carried out inter alia in excess of a duty. 51. According to Article 448 any person who intentionally kills another shall be sentenced to a term of imprisonment of twenty-four to thirty years. According to Article 450, the death penalty may be imposed in cases of, inter alia, premeditated murder. Under Article 452, where death results from an act of violence but it was not the intention of the offender to kill his victim, a sentence of eight years’ imprisonment shall be imposed on the offender. Where death results from an act of carelessness, negligence or inexperience on the part of the offender in breach of a law, orders or regulations, Article 455 stipulates that the guilty party shall be sentenced to a term of imprisonment of two to five years and to a substantial fine. 52. According to Article 49 of the Code, a person shall not be punished for committing an act which was carried out in pursuance of a law or on the orders of a competent authority or where the person was obliged to commit the act in immediate necessity to repel an unjustified assault against his own or another’s person or chastity or in order to save his life or the life of another from an immediate and grave personal danger for which he was not responsible and the commission of the act was the only way in which the danger could be avoided. Article 50 qualifies the provisions of Article 49 in stipulating that where the person in committing the act exceeds the limits of a duty prescribed by law or by the competent authority or exceeds the exigencies of the situation, that person shall be sentenced to a minimum term of imprisonment of eight years if the punishment in respect of the act is the death penalty, and to a minimum term of imprisonment of between six and fifteen years if the punishment in respect of the act is life imprisonment. 53. Pursuant to section 23(1) of Law no. 2935 on the state of emergency, when a state of emergency has been proclaimed the security forces, special forces on duty and members of the armed forces when carrying out their duties are empowered to use their weapons in situations where recourse to them is considered justified under law. According to section 23(2), when a state of emergency has been declared under section 3(b) of the Law, members of the security forces when on duty may without hesitation open fire directly on a person who fails to heed their orders to surrender, returns fire or when they are obliged to act in self-defence. 54. For all such offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings (Article 165). 55. If the suspected authors of the impugned acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected person’s hierarchical superior (sections 93 and 95 of Law no. 353 on the constitution and the procedure of military courts). 56. If the alleged author of a crime is a State official or civil servant, which includes members of the security forces, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly) which carry out a preliminary investigation (Article 4 § 1 of Decree no. 285). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 57. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Turkish Civil Code, an injured person may file a complaint for compensation against an alleged perpetrator who has caused him or her damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Civil Code and non-pecuniary or moral damages may be awarded under Article 47. 58. Proceedings against the authorities may be brought before the administrative courts, whose procedure is written. A plaintiff has one year in which to lodge a complaint against the authorities in respect of an impugned act and thereafter 120 days in which to bring the complaint before the administrative courts. 59. The Criminal Code also makes provision to allow a person to constitute himself or herself a civil party in respect of pecuniary loss resulting from the commission of an offence. According to Article 365 of the Code of Criminal Procedure, any person injured by a crime may, at any time during an investigation, by means of a complaint declare himself or herself a civil party and request compensation for damage which is the direct result of the accused’s criminal act. This remedy is only available to direct victims and cannot be exercised on behalf of a deceased victim. The remedy is not applicable if the accused is acquitted of the offence. The acquisition of civil party status is dependent on the fact that that party has not sought compensation from the civil courts in respect of the damage resulting from the offence. 60. The applicant points to certain legal provisions which in themselves weaken the protection of the individual which might otherwise have been afforded by the above general scheme. 61. Articles 13 to 15 of the Constitution provide for fundamental limitations on constitutional safeguards. 62. Provisional Article 15 of the Constitution provides that there can be no allegation of unconstitutionality in respect of measures taken under laws or decrees having the force of law and enacted between 12 September 1980 and 25 October 1983. That includes Law no. 2935 on the state of emergency of 25 October 1983, under which decrees have been issued which are immune from judicial challenge. 63. Extensive powers have been granted to the regional governor of the state of emergency by such decrees, especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430. 64. Decree no. 285 modifies the application of Law no. 3713 of 1981 on the prevention of terrorism in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. | 0 |
train | 001-93184 | ENG | ARM | CHAMBER | 2,009 | CASE OF MINASYAN AND SEMERJYAN v. ARMENIA | 3 | Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of P1-1;Just satisfaction reserved | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 4. The first and the second applicants, who are mother and daughter, were born in 1960 and 1990 respectively and live in Los Angeles, USA. 5. The first applicant was the owner of a 26 sq. m. flat in an apartment building situated at 9 Byuzand Street, Yerevan. The flat was acquired by the first applicant on 30 May 1995. The building in question was situated on a plot of land owned by the State. 6. The applicants alleged that the second applicant enjoyed a right of use in respect of the above flat as the first applicant’s family member residing in it. 7. The Government contested this allegation and claimed that the second applicant did not enjoy the right of use in respect of the first applicant’s flat and simply had the right to live in it. 8. On 5 October 2001 the Government adopted Decree no. 950, approving the procedure for taking plots of lands and immovable property situated within expropriation zones of Yerevan and for preparing the relevant price offers. The Mayor of Yerevan was entrusted with its implementation. According to that Decree, the amount of compensation was to be determined on the basis of the market value of the immovable property, which was to be determined by a licensed valuation organisation or organisations selected through a tender process. Financial incentives were envisaged for those proprietors who, within ten days of receiving the price offer, gave their consent to hand over their property. Persons who were registered within the expropriation zones and their minor children were to be awarded 2,000,000 Armenian drams (AMD) as a support. 9. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. 10. On 4 March 2004 the Government adopted Decree no. 399-N, authorising the Mayor of Yerevan, for the purpose of facilitating the construction works in the expropriation zones, to include in the compensation offers in specific cases the grant of construction permits without a tender process through direct negotiations. 11. On 17 June 2004 the Government adopted Decree no. 909-N, authorising the Mayor of Yerevan to grant such a construction permit for one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Glendale Hills CJSC. 12. On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor’s Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property. 13. On 23 December 2004 Glendale Hills CJSC informed the first applicant that her flat was situated in the expropriation zones approved by Government Decree no. 1151-N. An independent licensed organisation, Orran Ltd, had carried out a valuation of her property, in accordance with the procedure prescribed by Government Decree no. 950. According to the valuation report prepared by Orran Ltd, the sum of compensation to be paid to her was the Armenian dram equivalent of 7,000 US dollars (USD). An additional sum equivalent to USD 6,720 would be paid to her as a financial incentive, if she agreed to sign an agreement and to hand over the property within the following five days. The sum of compensation and the financial incentive to be paid to the second applicant, pursuant to Government Decree no. 950, amounted to the equivalent of USD 2,000 and USD 1,500 respectively. 14. It appears that the applicants did not accept this offer. 15. On an unspecified date, Glendale Hills CJSC instituted court proceedings against the applicants on behalf of the State. Referring to, inter alia, Government Decree no. 1151-N, the plaintiff argued that the construction project of the Main Avenue, which was supposed to replace Byuzand Street, was impossible without demolition of the building in which the flat in question was situated and sought to terminate the applicants’ rights through payment of compensation and to evict them. In support of its claim, the plaintiff submitted the valuation report prepared by Orran Ltd. 16. On 3 February 2005 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) granted the claim of Glendale Hills CJSC. The District Court found that it had been decided by the authorities to take the relevant plot of land for State needs, which was impossible without terminating the applicants’ rights in respect of the immovable property situated on that land. It decided to terminate the first and the second applicant’s rights and to award them the Armenian dram equivalent of USD 7,000 and USD 2,000 respectively as compensation. The court based its findings on Articles 218, 225 § 2 and 283 of the Civil Code, while the amount of compensation awarded to the first applicant was determined on the basis of the valuation report prepared by Orran Ltd. 17. On an unspecified date, the applicants lodged an appeal. 18. The first applicant alleged that, in the proceedings before the Civil Court of Appeal, she filed a motion requesting the court to order a commodity expert opinion in order to contest the valuation carried out by Orran Ltd. This motion was allegedly rejected by the Court of Appeal. 19. On 18 April 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld the judgment of the District Court. 20. On 29 April 2005 the applicants lodged an appeal on points of law. In their appeal they argued, inter alia, that the ownership in respect of the flat had been unlawfully terminated by a Government decree and not a statute, as required by the domestic law. 21. On 27 May 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants’ appeal, referring to the findings of the lower courts. 22. On an unspecified date the flat in question was demolished. 23. The relevant provisions of the Constitution, as in force at the material time, read as follows: “...Public authorities and public officials are competent to perform only such actions as authorised by law.” “Armenia is a State based on rule of law. The Constitution of [Armenia] has a supreme legal force and its provisions are directly applicable. Laws which are found to be incompatible with the Constitution, as well as other legal acts which are found to be incompatible with the Constitution and laws, have no legal force. ...” “Every one has the right to property and the right to bequeath. ...[A person] can be deprived of [his or her] property only by a court in cases prescribed by law. Property can be expropriated for the needs of society and the State only in exceptional cases of paramount public interest, on the basis of a law and with prior equivalent compensation.” “The Constitutional Court, in accordance with a procedure prescribed by law: (1) decides on the conformity of the laws, the resolutions of the National Assembly, the edicts and directives of the President of [Armenia] and the decrees of the Government with the Constitution; ...” 24. The Law on Legal Acts prescribes the types and hierarchy of legal acts in Armenia. The relevant provisions of the Law, as in force at the material time, provided as follows. 25. Section 4 listed the legal acts adopted in Armenia which included, inter alia, the Armenian Constitution, the Armenian laws and the decrees of the Government. 26. Section 8 provided that the Constitution laid down the principles of legal regulation on the territory of Armenia and was the legal foundation of the Armenian legislation. It had supreme legal force and its provisions were directly applicable. The laws and other legal acts were adopted on the basis of the Constitution or for the purpose of its implementation and were not to contradict it. 27. Section 9 provided that laws regulated the most important, inherent and stable social relations and were enacted in compliance with the Constitution through a referendum or by the National Assembly. They were not to contradict the Constitution, the active laws and the decisions of the Constitutional Court. 28. Section 14 provided that the Government adopted decrees within the scope of the powers vested in it by the Constitution and the laws. The decrees of the Government were not to contradict the Constitution, the laws and the decisions of the Constitutional Court. They were to regulate any relations not regulated by the laws, unless those relations, pursuant to the Constitution and the laws or the edicts and directives of the President of Armenia, were to be regulated by other legal acts. 29. Section 64 of the Constitutional Court Act provided that the decisions of the Constitutional Court were final and not subject to appeal. They entered into force from the moment of their delivery and had a binding effect on the territory of Armenia. 30. Articles 218-221 of the Civil Code and Articles 104 and 108 the Land Code, as in force at the material time, stipulated the conditions for taking plots of land for the needs of society and the State. 31. Article 283 of the Civil Code provided that, if it was impossible to take a plot of land for the needs of society and the State without terminating the ownership in respect of buildings, constructions and other immovable property situated on it, the State could take such property from the owner by compensating its value. 32. The provisions of the Immovable Property Act, the conformity of which with the Constitution was examined by the Constitutional Court on 27 February 1998 (see paragraph 33 below), provided: “...[2.] The equivalent amount of compensation for expropriation of immovable property for the needs of society and the State is determined by a decree of the Government of [Armenia] on the basis of the results of the negotiation between the Government of [Armenia] and the owner of the property subject to expropriation and upon [the owner’s] written consent. [3.] If the owner of the property disagrees with the expropriation of the property by the Government of [Armenia] or the amount of compensation, then the immovable property may be expropriated by the Government of [Armenia] only through court proceedings. [4.] The owner of the immovable property subject to expropriation for the needs of society and the State must abstain from causing damage to the immovable property before the entry into force of the court decision. [5.] The procedure for expropriation of immovable property for the needs of society and the State is established by the Government of [Armenia], pursuant to the provisions of this Section. ...” 33. When deciding on the conformity of paragraphs 2, 3, 4 and 5 of Section 22 of the Immovable Property Act with, inter alia, Article 28 of the Constitution, the Constitutional Court provided the following interpretation of that provision. Since the phrases “for the needs of society and the State” and “only in exceptional cases” were concepts requiring assessment and concerned a fundamental constitutional right, the Constitution stipulated that expropriation of property on such grounds could be carried out only on the basis of a law, thereby creating necessary legislative safeguards. The phrase “on the basis of a law” implied not a normative legal act which regulated the expropriation procedure in general, but a law pursuant to which the property in question was to be expropriated. Thus, a person’s property could be expropriated and – in the absence of his consent – his ownership could be terminated by the State only through the adoption of a law in respect of the concrete immovable property, which would substantiate the exceptional importance and significance of the expropriation and which would indicate the needs of society and the State to be satisfied by the expropriation. The law would also oblige the Government to fix the amount of compensation, taking market prices into account, on the basis of a financial-economic assessment, the results of the negotiation between the Government and the owner of the property subject to expropriation, and upon the owner’s written consent. The Government was not entitled to establish a procedure for expropriation of property for the needs of society and the State that would authorise it to expropriate immovable property. 34. For the purpose of implementation of construction projects in Yerevan, the Government decided to approve the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State, with a total area of 345,000 sq. m. Byuzand Street was listed in Annex 2 to this Decree as falling within these expropriation zones. 35. The Mayor of Yerevan was instructed to determine the boundaries of the plots of land to be taken for the needs of the State and to register them at the Real Estate Registry. The owners and users of the immovable property situated within the expropriation zones were to be informed about the deadlines, sources of financing and the procedure for taking their immovable property. Valuation of the immovable property in question was to be organised and carried out by the relevant licensed organisations. 36. Article 54 provided that members of the tenant’s family included his spouse, their children and their parents. Other persons could be recognised as the tenant’s family members, if they lived with him or her and ran a common household. 37. Article 120 provided that family members of the owner of a house, whom the owner had accommodated in his or her house, had the right, equally with him or her, to use the accommodation, if no reservations had been made at the time when the family members were accommodated. Persons mentioned in the first sentence of Article 54 of this Code were considered as members of the owner’s family. These persons were to continue to enjoy the right of use of accommodation even in case of disruption of family ties with the owner. 38. Article 135, which concerns State registration of property rights, provides that the right of ownership and other property rights in respect of immovable property, including the right of use, are subject to State registration. 39. Chapter 14 of the Civil Code entitled “Ownership of Accommodation and Other Property Rights” contained specific provisions related to the right of use of accommodation which, at the material time, read as follows: “1. The family members of the owner of accommodation and other persons have the right of use of accommodation, if that right has been registered in accordance with the procedure prescribed by the Law on the State Registration of Rights in Respect of Property. 2. The origination, implementation and termination of the right of use of accommodation are stipulated by a notarised written agreement concluded with the owner. If no agreement is reached concerning the termination of the right of use of accommodation, that right can be terminated upon the owner’s request by a court through payment of compensation equivalent to the market value. 3. The right of use of accommodation may not be an object of sale or purchase, mortgage and lease. 4. The person enjoying the right of use of accommodation may demand from anybody, including the owner, to redress the violations of his [or her] right in respect of the accommodation. 5. The right of use of accommodation does not terminate in case of transfer of ownership in respect of a house or a flat to another person, except when the person enjoying the right of use of accommodation has undertaken a notarised obligation to give up that right prior to the transfer of ownership.” 40. The above Article 225 was amended following the circumstances of the present case, namely on 4 October 2005, and its fourth paragraph read as follows: “4. The amount of compensation for a one-month period is determined on the basis of the amount of rent payable for given accommodation at the moment of termination of the right [of use] and is calculated the following way: for each person, whose right of accommodation is registered, the area [is calculated] by means of dividing the living area by the total number of persons enjoying the right of gratuitous use of accommodation and the owners, but [should not be] less than five or more than nine square metres. The compensation is calculated for a period of three years and is paid at once, unless agreed otherwise by the parties.” 41. Section 41 of the Law on the State Registration of Rights in Respect of Property provides that rights of spouses, children and other dependants in respect of property, which are conferred on them by law, are effective even if they have not been registered separately. 42. Section 16 of the Children’s Rights Act provides that a child family member of the tenant or owner of accommodation, regardless of his or her place of residence, has the right to live in the accommodation occupied by that tenant or owner. 43. Article 47 of the Family Code provides, inter alia, that a child has no ownership in respect of his or her parents’ property, while the parents have no ownership in respect of the child’s property. Children and parents living together may dispose of and use each other’s property by mutual agreement. | 0 |
train | 001-95847 | ENG | HUN | CHAMBER | 2,009 | CASE OF HORVATH AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicants are sixteen Hungarian nationals and two Hungarian companies (see list in Annex). 5. In June 1997 the applicants brought an official liability action against the Budapest IXth District Municipality. The Budapest Regional Court held several hearings and obtained the opinions of experts. It stayed the procedure for altogether one year and five months pending the successions of two plaintiffs who had died in the meantime. 6. On 5 May 2003 the Regional Court gave judgment. On 18 November 2003 the Budapest Court of Appeal quashed this decision and remitted the case. 7. In the resumed proceedings, several hearings took place and the opinion of an expert was obtained. According to the information in the case file, the case is still pending before the first-instance court. | 1 |
train | 001-103350 | ENG | RUS | CHAMBER | 2,011 | CASE OF PREMININY v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-4;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicants were born in 1981 and 1953 respectively and live in the town of Surgut in the Tyumen Region. They are son and father. 5. On 19 January 2002 criminal proceedings were instituted against the first applicant. He was suspected of having broken into the online security system of an American bank, Green Point Bank (hereafter – the Bank), and having stolen the Bank’s client database. According to the prosecution, in November 2001 the first applicant contacted the Bank using a fake name. He demanded money in exchange for a promise not to publish the Bank’s database on the Internet. The Bank agreed to pay and the first applicant provided it with his real name and address. At the same time he published a part of the Bank’s database on the Internet. The Bank transferred 10,000 United States dollars to the first applicant. 6. At the beginning of April 2002 the first applicant was charged with aggravated extortion. He gave a written undertaking not to leave the town. 7. On 23 April 2002 a deputy prosecutor general of the Russian Federation authorised the first applicant’s placement in custody on the ground that he had been charged with a serious criminal offence and was liable to pervert the course of justice, reoffend or abscond. 8. The first applicant was arrested on 7 May 2002 and placed in a detention ward at Surgut police station. On the following day he lodged a complaint with the Surgut Town Court challenging the grounds for his placement in custody. His lawyer submitted a separate complaint. On 9 May 2002 the first applicant was transferred to a detention facility in Tyumen. 9. On 24 May 2002 the Surgut Town Court declined to examine the first applicant’s and his lawyer’s complaints, noting that it did not have territorial jurisdiction over the matter. The Town Court advised the first applicant and his lawyer to lodge complaints with a court in Yekaterinburg. 10. On 11 July 2002 the first applicant’s counsel, Mr Ch., lodged a complaint with the Surgut Town Court arguing that the first applicant’s arrest and detention were unlawful. 11. On 17 July 2002 the Surgut Town Court declined to examine the complaint giving the same reasons as those cited in its decision of 24 May 2002. On 20 August 2002 the Khanty-Mansi Regional Court upheld the Town Court’s findings. 12. On 22 July 2002 Mr Ch. complained to the Surgut Town Court that the first applicant’s arrest and subsequent detention were unlawful and asked for his release. 13. Three days later the Surgut Town Court declined to examine the complaint, once again relying on a lack of territorial jurisdiction. On 20 August 2002 the Khanty-Mansi Regional Court, acting in its appellate jurisdiction, confirmed the lawfulness of the Town Court’s decision. 14. On 25 July 2002 the Sverdlovsk Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and issued an expert report. The relevant part of the report read as follows: “... the psychiatric examination concludes that [the first applicant] is showing signs of brief reactive psychosis. The examinee reports that the illness emerged after the offence, during his stay in the temporary detention facility where he developed strong feelings of fear and hopelessness accompanied by psychologically understandable feelings of depression as a result of additional traumatic experiences, systematic ill-treatment, and physical and psychological abuse inflicted on him by his fellow inmates. There is no information in the medical record concerning [the first applicant’s] mental health during his stay in the hospital of the temporary detention facility with concussion and broken ribs. ... [The first applicant] cannot take part in any investigative or judicial activities. [The first applicant] needs to be placed in a psychiatric hospital for compulsory treatment ... until his recovery from the psychosis ...” 15. On 28 September 2002 a deputy prosecutor of Surgut sent the case to the Surgut Town Court for trial. He noted that the first applicant was mentally ill, presented a danger to public safety and was liable to cause substantial damage. The deputy prosecutor argued that compulsory measures of a medical nature ought to be applied to the first applicant. 16. On 18 October 2002 the Surgut Town Court fixed the first hearing for 4 November 2002. It also examined a request from the second applicant seeking his son’s release or, alternatively, his transfer to a psychiatric hospital. The Town Court decided that the first applicant was to remain in custody because he had been charged with a serious criminal offence. However, he was to be transferred to the Tyumen Regional Psychiatric Hospital in view of the state of his mental health. The first applicant was placed in that hospital on 4 December 2002. 17. On 22 November 2002 the Presidium of the Khanty-Mansi Regional Court considered, by way of supervisory review, that on 24 May 2002 the Surgut Town Court had incorrectly applied the law and had wrongfully concluded that it had not had territorial jurisdiction over the matter of the first applicant’s detention. The Presidium quashed the decision of 24 May 2002 and sent the case to the Town Court for fresh examination. 18. In the meantime, on 3 December 2002 the Surgut Town Court found that the first applicant had committed aggravated extortion but absolved him of criminal responsibility finding that he was mentally incapacitated. The Town Court ordered that compulsory measures of a medical nature should be applied to the first applicant and that he should be placed in a psychiatric hospital for general care. The judgment was not appealed against and became final. 19. On 10 December 2002 the Surgut Town Court declined to re-examine the complaints of the first applicant and his lawyer that his arrest and detention were unlawful. The Town Court held that on 3 December 2002 it had examined the criminal case, found that the first applicant had committed aggravated extortion and ordered that he be placed in a psychiatric hospital. It had no competence to examine the subject of the applicant’s detention after the criminal case had been decided on its merits. 20. On 24 October 2003 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review and giving the same reasons as it had given on 22 November 2002, quashed the decisions of 25 July and 20 August 2002 by which the lawyer’s request of 22 July 2002 for the first applicant’s release had been refused. The Presidium ordered an examination of the detention on its merits. 21. On 5 February 2004 the Surgut Town Court, having re-examined the lawyer’s complaint concerning the lawfulness of the first applicant’s detention, dismissed it finding that the criminal case had already been closed, the first applicant was being detained by virtue of the final judgment and the Town Court could no longer examine the matter. 22. On 30 March 2004 the Khanty-Mansi Regional Court quashed the decision of 5 February 2004 and ordered a fresh examination of the applicant’s detention. The relevant part of the decision read as follows: “By virtue of Article 123 of the Russian Code of Criminal Procedure, parties to criminal proceedings and other persons, in so far as their interests have been affected by procedural actions and decisions, can appeal against [the] actions and decisions of a pre-trial investigation body, an investigator, an interviewing officer, a prosecutor or court in accordance with the procedure established by the present Code. Article 125 of the Russian Code of Criminal Procedure sets forth the judicial procedure for an examination of such complaints. Examination of the presented materials shows that the [town] court did not in fact examine the grounds for [the first applicant’s complaints] or check the lawfulness of the actions and decisions of the indicated persons. The record of the court hearing does not show which materials were examined by the court. The [town] court’s conclusion that the subject of the complaint no longer existed was not based on law; the fact that a court has given a judgment in a criminal case cannot serve as a ground for declining to examine the lawfulness of procedural actions and procedural decisions taken in the course of that criminal case and affecting the [first applicant’s] interests, [and cannot serve as a ground] for declining to examine the [first applicant’s] complaints. Moreover, that complaint was lodged with the court long before the examination of the criminal case by the court.” 23. On 19 May 2004 the Surgut Town Court found that the first applicant’s arrest and subsequent detention had been lawful. The first applicant’s lawyer attended the hearing. However, the second applicant, despite having been properly summonsed, defaulted and did not notify the Town Court of the reasons for his absence. 24. On 21 July 2004 the Khanty-Mansi Regional Court upheld the decision on appeal. 25. On 17 June 2003 Lebedyovskaya Psychiatric Hospital examined the first applicant and recommended that he be released from hospital because he no longer presented a danger to himself or the public. On 30 June 2003 the Director of Lebedyovskaya Psychiatric Hospital applied to the Surgut Town Court seeking the release of the first applicant. 26. On 4 July 2003 the Surgut Town Court sent the request to the Zavudkovskiy District Court, finding that the latter had territorial jurisdiction over the matter. 27. On 8 October 2003 the Zavudkovskiy District Court returned the case file to the Surgut Town Court noting that the matter should be examined in Surgut. 28. On 12 March 2004 the Presidium of the Khanty-Mansi Regional Court, by way of supervisory review, quashed the decision of 4 July 2003 and ordered the Surgut Town Court to examine the request for the first applicant’s release. 29. On 13 July 2004 Tyumen Regional Psychiatric Hospital carried out a psychiatric examination of the first applicant and considered that the conclusions reached by Lebedyovskaya Psychiatric Hospital on 17 June 2003 had been incorrect and that the first applicant should remain in a psychiatric hospital for further compulsory medical treatment. 30. On 2 September 2004 the Surgut Town Court dismissed the request for the release of the first applicant on the ground that the expert report of 17 June 2003 had been inconclusive, that on 13 July 2004 it had been found that the first applicant was still suffering from schizophrenia and had been considered in need of further compulsory psychiatric treatment. The decision was not appealed against and became final. 31. On 2 February 2005, following a new psychiatric examination of the first applicant and a request from Tyumen Regional Psychiatric Hospital, the Surgut Town Court authorised his release from hospital. 32. At the end of May 2002 the first applicant was transferred to Yekaterinburg no. 1 temporary detention facility and placed in cell no. 131. The cell housed four inmates. According to the first applicant, he was systematically humiliated and ill-treated by warders and detainees alike. On 10 June 2002 his cellmates, acting upon an order of the administration of the detention facility, severely beat him up with long wooden sticks which they had received from the warders. 33. The Government disputed the first applicant’s version of events, arguing that on the night of 9 June 2002 the first applicant had initiated a conflict with one of his cellmates, calling him names. A fight broke out and the first applicant received injuries. The Government insisted that the first applicant’s allegations of the authorities’ instigating role in the dispute were not supported by any evidence. 34. The Government submitted medical certificate no. 226 drawn up in the detention facility on 10 June 2002 following an examination of the first applicant by a prison doctor. It appears from the certificate that the prison doctor diagnosed the first applicant with concussion and numerous abrasions to his arms, legs, back, shoulders, face and ears and prescribed him bed rest. The doctor also noted that the first applicant had received those injuries over a period of a week in cell no. 131. The first applicant was transferred to the medical unit of the detention facility on the afternoon of 10 June 2002. 35. According to a copy of the facility’s logbook produced by the Government, on the morning of 10 June 2002 an officer on duty made an entry in the log of an incident involving the first applicant and listed his injuries. 36. On 11 June 2002 the acting director of detention facility no. 1, having examined the information about a possible offence committed against the first applicant, refused to institute criminal proceedings. He found that on 10 June 2002 the first applicant had had a heated argument with one of his cellmates, Mr K. The latter had kicked the first applicant once in the stomach, as a result of which the first applicant had fallen, having hit his head and back against a wall. The first applicant had got back to his feet and attempted to strike back, but was stopped by two other cellmates who broke up the fight. The director of the facility also noted that, when questioned about the incident, the first applicant had confirmed that he had verbally assaulted Mr K. and asked that criminal proceedings against the latter not be instituted. The two remaining cellmates gave similar descriptions of the incident. A copy of the director’s decision of 11 June 2002 was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor’s Office to verify that the domestic law had been properly applied in the case. 37. In April 2004 the second applicant was appointed the legal guardian of the first applicant. On 21 April 2004 he complained to the Sverdlovsk Regional Prosecutor’s Office about the decision of 11 June 2002. 38. On 16 August 2004 the Sverdlovsk Regional Prosecutor quashed the decision of 11 June 2002 finding that it had been issued “prematurely” and ordered an additional investigation into the first applicant’s complaints. The prosecutor also noted that the first applicant suffered from a serious mental illness impairing his legal capacity and that in those circumstances his alleged request that no proceedings be instituted against cellmate K. should not have had any legal implications. 39. On 18 August 2004 the administration of the temporary detention facility refused to institute criminal proceedings in respect of the first applicant’s complaint of ill-treatment on the ground that the statutory limitation period had expired. That decision was quashed on 14 December 2004 and an additional investigation was authorised. 40. On 24 December 2004 an assistant to the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against Mr K. because the statutory limitation period of two years had expired on 10 June 2004 and Mr K. could no longer bear criminal responsibility. In his decision the assistant also listed statements by warders who had insisted that the first applicant had had a dispute with Mr K. The latter had beaten up the first applicant. The fight had been stopped by the two other cellmates. The warders had not asked the cellmates to threaten the first applicant or to beat him up. At the same time, Mr K. retracted his previous statements and claimed that he had not beaten up the first applicant. The other two inmates were not questioned because their whereabouts were unknown. A copy of the decision of 24 December 2004 was served on the second applicant. 41. The Government submitted that on 29 August 2007 the decision of 24 December 2004 had been quashed by a higher-ranking prosecutor and the investigation was now pending. 42. The first applicant complained that he had been systematically beaten up by warders. He claimed that on 14 June 2002 the warders had broken three of his ribs. 43. The Government argued that on the night of 14 June 2002 the first applicant had fallen over on his way to the lavatory, breaking two ribs. 44. As can be seen from a copy of the first applicant’s medical record drawn up in detention facility no. 1 and submitted by the Government, on 14 June 2002 the first applicant was examined by a neurologist and the head of the detention facility’s medical unit. They noted an injury to the first applicant’s chest and authorised a chest X-ray. The X-ray was taken on 18 June 2002 and showed that the first applicant had two broken ribs on his right side. Four days later the first applicant was again examined by the facility doctors, who noted his anxious state. The doctors recorded that the first applicant had refused to remain in his cell, had been disorientated and inert, and had not given proper responses to their questions. Following a further medical examination on 24 June 2002 the doctors noted that the first applicant had had difficulty formulating sentences and concentrating, that his reactions had been slow and that he had constantly stared straight ahead. A psychiatric examination of the first applicant was recommended. 45. On 21 June 2002 the director of the facility closed an investigation into the cause of the first applicant’s injury, finding that he had broken his ribs when falling over in a cell on 14 June 2002. The decision was based on statements by the first applicant’s three cellmates who had insisted that no force had been used against him. The director also noted that it had been impossible to interview the first applicant as his behaviour had been strange and he had not answered the questions put to him owing to the poor state of his mental health. A copy of the director’s decision was served on the first applicant and sent to the Sverdlovsk Regional Prosecutor for verification. 46. On 21 April 2004 a deputy to the Sverdlovsk Regional Prosecutor quashed the decision of 21 June 2002 and ordered an additional investigation, having found that it was necessary to carry out a forensic medical examination of the first applicant and to question his cellmates and the warders. The deputy prosecutor stated that his decision was a response to information received on 21 June 2002 from the director of detention facility no. 1 about a possible criminal offence. 47. On 30 April 2004 a senior inspector, having concluded that on 14 June 2002 the first applicant had slipped, fallen to the floor and injured himself, found that the complaint was unsubstantiated. The decision was based on evidence collected during the internal investigation carried out by the administration of the detention facility in June 2002. In addition, the senior investigator relied on a report by forensic medical experts who had studied the first applicant’s medical documents in April 2004 and concluded that there was insufficient evidence to confirm that the first applicant had had broken ribs. 48. On 14 December 2004 the decision of 30 April 2004 was quashed and an additional investigation was ordered. 49. On 24 December 2004 an assistant of the Sverdlovsk Regional Prosecutor refused to institute criminal proceedings against the warders, finding no prima facie case of ill-treatment. The assistant’s decision was based on the statements of one of the first applicant’s cellmates, a warder and a medical assistant who had examined the first applicant on 22 June 2002. The first applicant’s cellmate stated that he had fallen over. He had had no visible injuries, but had complained of being in pain. The warder, while noting that conflicts among detainees had been very frequent and that it was impossible to remember each and every one of them, insisted that no force had been used against the first applicant on any occasion. The medical assistant stated that prior to his placement in the detention facility’s medical unit on 22 June 2002 the first applicant had acted aggressively towards other inmates and provoked, in turn, aggressive actions towards himself. The assistant was unable to locate and question the first applicant’s other cellmates. 50. It appears from the Government’s submissions that the decision of 24 December 2004 was quashed on 29 August 2007. A fresh investigation appears to be pending now. 51. The Code of Criminal Procedure of the Russian Federation (in force since 1 July 2002, “the CCrP”) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities’ own initiative where there are reasons to believe that a crime has been committed (Articles 146 and 147). The prosecutor is responsible for the overall supervision of the investigation (Article 37). He or she can order specific investigative measures, transfer the case from one investigator to another or order an additional investigation. If there are no grounds upon which to initiate a criminal investigation, the prosecutor or investigator shall give a reasoned decision to that effect, which must be brought to the attention of the interested party. The decision is amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by Article 125 of the CCrP (Article 148). Article 125 of the CCrP provides for judicial review of decisions given by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court. 52. Russian law sets out detailed guidelines for the detention of individuals in temporary detention facilities. These guidelines are found in Ministry of Justice Decree no. 189 on Internal Regulations of Temporary Detention Facilities (“the Decree”), enacted on 14 October 2005. In particular, Section II of the Decree provides that an investigation should be carried out into the circumstances in which a detainee has sustained injuries. Case-file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor’s office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of the Russian Code of Criminal Procedure (paragraph 16 of Section II). 53. Chapter III of the Prosecutor’s Offices Act (Federal Law no. 2202-I of 17 January 1992) identifies the jurisdiction and powers of prosecution authorities in the field of prosecution supervision. In particular, if information about a possible violation of Russian law is received, prosecution authorities should carry out their supervisory function. Prosecutors are authorised to monitor the enforcement of the Russian Constitution and laws by various federal and local authorities and their officials, including the administrations of detention facilities (section 21). They should also ensure that the rights and freedoms of detained individuals are respected in places of detention. In performing their task prosecutors should respond to information about possible violations of human rights and freedoms and take measures to prevent or eliminate such violations, bringing those responsible to justice, which can include instituting administrative or criminal proceedings and awarding damages (sections 26, 27 and 32). While supervising the work of the administration of a detention facility, prosecutors are to demand that the administration creates conditions in which the rights and freedoms of detained individuals are fully respected, to check that the administration’s decisions comply with domestic legal norms and to receive additional explanations from officials of the detention facility if needed (section 33). 54. The complexity and importance of prevention of violence in detention facilities, specificity of procedures to be employed by facility administration addressing inter-prison violence and necessity of special care, including psychiatric care, of detainees was discussed by the European Committee for the Prevention of Torture in its General Reports. The following are the extracts from the Reports: “54. Effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment’s premises. Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general. 55. It is also in the interests of both prisoners and prison staff that clear disciplinary procedures be both formally established and applied in practice; any grey zones in this area involve the risk of seeing unofficial (and uncontrolled) systems developing. Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences it is alleged they have committed, and to appeal to a higher authority against any sanctions imposed. Other procedures often exist, alongside the formal disciplinary procedure, under which a prisoner may be involuntarily separated from other inmates for discipline-related/security reasons (eg. in the interests of "good order" within an establishment). These procedures should also be accompanied by effective safeguards. The prisoner should be informed of the reasons for the measure taken against him, unless security requirements dictate otherwise1, be given an opportunity to present his views on the matter, and be able to contest the measure before an appropriate authority.” “ii) psychiatric care 41. In comparison with the general population, there is a high incidence of psychiatric symptoms among prisoners. Consequently, a doctor qualified in psychiatry should be attached to the health care service of each prison, and some of the nurses employed there should have had training in this field. The provision of medical and nursing staff, as well as the layout of prisons, should be such as to enable regular pharmacological, psychotherapeutic and occupational therapy programmes to be carried out. 42. The CPT wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment (eg. depression, reactive state, etc.), with a view to enabling appropriate adjustments to be made to their environment. This activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff.” “Staff-prisoner relations 26. The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job. Building positive relations with prisoners should be recognised as a key feature of that vocation. Regrettably, the CPT often finds that relations between staff and prisoners are of a formal and distant nature, with staff adopting a regimented attitude towards prisoners and regarding verbal communication with them as a marginal aspect of their work. The following practices frequently witnessed by the CPT are symptomatic of such an approach: obliging prisoners to stand facing a wall whilst waiting for prison staff to attend to them or for visitors to pass by; requiring prisoners to bow their heads and keep their hands clasped behind their back when moving within the establishment; custodial staff carrying their truncheons in a visible and even provocative manner. Such practices are unnecessary from a security standpoint and will do nothing to promote positive relations between staff and prisoners. The real professionalism of prison staff requires that they should be able to deal with prisoners in a decent and humane manner while paying attention to matters of security and good order. In this regard prison management should encourage staff to have a reasonable sense of trust and expectation that prisoners are willing to behave themselves properly. The development of constructive and positive relations between prison staff and prisoners will not only reduce the risk of ill-treatment but also enhance control and security. In turn, it will render the work of prison staff far more rewarding. Ensuring positive staff-inmate relations will also depend greatly on having an adequate number of staff present at any given time in detention areas and in facilities used by prisoners for activities. CPT delegations often find that this is not the case. An overall low staff complement and/or specific staff attendance systems which diminish the possibilities of direct contact with prisoners, will certainly impede the development of positive relations; more generally, they will generate an insecure environment for both staff and prisoners. It should also be noted that, where staff complements are inadequate, significant amounts of overtime can prove necessary in order to maintain a basic level of security and regime delivery in the establishment. This state of affairs can easily result in high levels of stress in staff and their premature burnout, a situation which is likely to exacerbate the tension inherent in any prison environment. Inter-prisoner violence 27. The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks. Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.” | 1 |
train | 001-68817 | ENG | DEU | ADMISSIBILITY | 2,005 | MATTICK v. GERMANY | 1 | Inadmissible | null | The applicant, Mr Horst Werner Mattick, is a German national who was born in 1945 and is currently detained in the Straubing correctional facility (Justizvollzugsanstalt). He was represented before the Court by Mr O. Schmidl, a lawyer practising in Regensburg. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 November 1998 the applicant was remanded in custody (vorläufig festgenommen) on suspicion of attempted homicide. On 24 November 1998 he was placed in pre-trial detention on the basis of an arrest warrant issued by the Deggendorf District Court on the same day. On 24 March 1999, at the public prosecutor’s request, W., a physician, gave an initial psychiatric expert opinion on the applicant, stating that the requirements of Article 21 of the German Criminal Code (diminished criminal liability – verminderte Schuldfähigkeit) were met. However, he further stated that the requirements of Article 64 of the Criminal Code (placement in an alcohol detoxification clinic – Unterbringung in einer Entziehungsanstalt) were not fulfilled. On 20 April 1999 the Deggendorf public prosecutor’s office issued a bill of indictment indicating that, on account of his previous convictions, the applicant met the requirements for placement in compulsory confinement (Sicherungsverwahrung) under Article 66 of the German Criminal Code (see “Relevant domestic law” below). On 19 May 1999 the applicant’s defence counsel requested access to the applicant’s present and previous case files in order to prepare his defence. He stated that, in view of the applicant’s possible placement in compulsory confinement, it was necessary to have access to the case files relating to his previous convictions. Furthermore, he requested an expert opinion on the question whether the requirements of Article 66 of the Criminal Code regarding compulsory confinement were met in the applicant’s case. On 17 May 1999 the Deggendorf Regional Court opened the main proceedings (Eröffnung des Hauptverfahrens). On 26 May 1999 it granted the defence counsel access to the file concerning the present case as well as those concerning two previous convictions. The defence counsel received those files on 2 June 1999. On 2 June 1999 the Deggendorf Regional Court set the case down for hearing on 1 July 1999 and summoned witnesses and W. to appear on that date. On 7 June 1999 the public prosecutor’s office asked for an expert opinion on the question whether the requirements of Article 66 of the Criminal Code were met. On 15 June 1999 the Regional Court requested the case files regarding the applicant’s previous twenty convictions. The court received only eight of these files, five of which contained only the judgments (Strafurteile) or sentence orders (Strafbefehle), but no other documents. The court was unable to obtain the other case files. On the same day the public prosecutor’s office requested a supplementary expert opinion on the question whether the requirements for placement in compulsory confinement were met. On 21 June 1999 W. submitted his expert opinion to the public prosecutor’s office. On 28 June 1999 the defence counsel received a copy. It comprised only seven pages, two of which were dedicated to the expert’s conclusion that the requirements of Article 66 of the Criminal Code were met. On the same day, 28 June 1999, the applicant’s defence counsel also received the case files relating to the eight previous convictions. On 1 July 1999 the defence counsel requested the adjournment of the trial (Aussetzung des Verfahrens), relying on Article 6 § 3 (b) of the Convention. He argued that he had not had enough time to prepare the applicant’s defence. The court rejected his request, stating that the defence counsel had known since the bill of indictment had been served that the issue of compulsory confinement would form the subject matter of the trial. Furthermore, it observed that there had been no change of circumstances (Sachlage) that might have justified an adjournment in accordance with Article 265, paragraph (4), of the German Code of Criminal Procedure. It also pointed out that the expert opinion had been ordered at the applicant’s request. The court further noted that the expert’s written submissions had been much less important than his oral remarks during the hearing. The applicant’s defence counsel also requested the taking of further evidence. The trial was resumed on 8 July 1999. W. delivered his expert opinion and was questioned by the applicant’s defence counsel. On a motion by the defence counsel, the court ordered a supplementary psychological expert assessment, to be carried out by a second expert, T. On 13 July 1999 the court ordered the two experts to deliver their opinions on 21 July 1999. T. conducted a psychological assessment of the applicant on 14 July 1999 and produced his written opinion on 15 July 1999. During the last hearing on 21 July 1999, T. gave an oral presentation of his psychological assessment. W. then made supplementary statements regarding his own opinion and T.’s assessment. The applicant’s defence counsel subsequently requested an additional expert opinion. His motion was five pages long and included comments on W.’s opinion. However, the court rejected the request as unnecessary, as it considered the expert’s opinion convincing. The court then closed the procedure for taking evidence and later delivered its judgment. It convicted the applicant of attempted homicide and of having caused grievous bodily harm by one and the same act (versuchter Totschlag in Tateinheit mit gefährlicher Körperverletzung) and sentenced him to five years and six months’ imprisonment. Moreover, the applicant was placed in compulsory confinement. The court stated that the requirements of Article 66 of the German Criminal Code were met, taking into consideration the applicant’s present and previous convictions. It concluded that the applicant had to be considered dangerous and that placing him in compulsory confinement was a proportionate measure. On 7 December 1999 the Federal Court of Justice dismissed an appeal on points of law by the applicant. On 14 February 2000 the Federal Constitutional Court refused to entertain a constitutional appeal by the applicant. The Dangerous Habitual Offenders Act (Gesetz gegen gefährliche Gewohnheitsverbrecher), which came into force on 24 November 1933, provides for certain correctional and preventive measures (Maβregeln der Besserung und der Sicherung). These measures are not designed as punishment, but rather as an attempt to prevent future offences by reforming the offenders and thus preserving public order. The measures are governed by Articles 61 et seq. of the Criminal Code. They include placement in a psychiatric hospital, placement in a detoxification clinic (Entziehungsanstalt), compulsory confinement, supervision of conduct (Führungsaufsicht), withdrawal of driving licence and prohibition on practising a certain profession. Article 62 provides that the measure has to be proportionate to the offence committed and to the danger presented by the offender. Paragraph (2) of Article 66 states that an offender may be placed in compulsory confinement if he has committed three intentional offences each of which is punishable by at least one year’s imprisonment and if he has been sentenced to at least three years’ imprisonment for one or more of these acts and poses a threat to public order. Article 66 reads as follows: “(1) If a person is convicted of an intentional offence and is sentenced to at least two years’ imprisonment, the court shall place the offender in compulsory confinement in addition to the sentence, if 1. the offender has already been sentenced twice to at least one year’s imprisonment for intentional offences before committing the new offence; 2. the offender has served a prison sentence of at least two years for those previous convictions or has been detained as a correctional or preventive measure; and 3. an assessment of the offender and his offences shows that he poses a threat to the general public owing to his inclination to commit serious offences, in particular those which inflict severe psychological and physical damage on the victims or which cause severe economic damage. (2) If a person has committed three intentional offences, each of which is punishable by at least one year’s imprisonment, and has been sentenced to at least three years’ imprisonment for one or more of these offences, the court may, under the provision indicated in paragraph (1), point 3, above, place the applicant in compulsory confinement in addition to the sentence even in the absence of a previous conviction or deprivation of liberty (paragraph (1), points 1 and 2, above). ...” Paragraph (1) of Article 67c reads as follows: “If a prison sentence is served before placement in compulsory confinement, the court shall examine, towards the end of the sentence being served, whether the aim of the measure still requires placement in compulsory confinement.” Former Article 67d limited the length of compulsory confinement to ten years. It was amended by the Sixth Criminal Code Amendment Act (Sechstes Gesetz zur Reform des Strafrechts), which came into force on 26 January 1998, and the new Sexual and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten). Paragraph (3) of the new Article 67d reads as follows: “After a period of ten years in compulsory confinement has been completed, the court shall declare the measure to be terminated, as long as there is no danger that the detainee will, owing to his inclination to crime, commit further serious offences which would risk inflicting severe psychological and physical damage on the victims. If the measure is considered to have been terminated, the detainee shall be placed under supervision of conduct.” Section 1a of the Introductory Act to the Criminal Code states that the new Article 67d applies without any temporal limitations, and hence retrospectively. Article 67e states that the court may examine of its own motion at any given time whether the execution of a measure of compulsory confinement could be suspended on probation, but it is required to do so at least every two years. | 0 |
train | 001-70364 | ENG | GBR | CHAMBER | 2,005 | CASE OF SHANNON v. THE UNITED KINGDOM | 2 | Violation of Art. 6-1;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Josep Casadevall;Nicolas Bratza | 7. The applicant was born in 1948 and lives in Belfast. 8. The applicant was the chair of the Irish Republican Felons Club, a registered social club operating on the Falls Road, Belfast. In May 1997, the Royal Ulster Constabulary (“RUC”) carried out a search of the premises and removed many documents. 9. The applicant was subsequently required to attend for interview with a financial investigator appointed under the Proceeds of Crime (Northern Ireland) Order 1996. He did so on 27 January 1998 and answered all questions put to him. 10. On 16 April 1998, the applicant was charged by the police with false accounting and conspiracy to defraud. 11. On 2 June 1998, a further notice was served on the applicant under the 1996 Order, requiring his attendance before financial investigators at a police station on 11 June 1998. The maximum penalty for failure to attend an interview was six months' imprisonment or a fine not exceeding GBP 5,000. The notice, which was dated 1 June, stated that the investigation was into whether any person had benefited from theft or false accounting, contributing to the resources of a proscribed organisation or from contraventions of betting regulations. The applicant was required to attend at Woodbourne Police Station on 26 June 1998. 12. On 9 June 1998, the applicant's solicitors sent a letter seeking a written guarantee that no information or statements obtained during the interview would be used in criminal proceedings. 13. On 16 June 1998, a further notice, dated 16 June, was served on the applicant, again requiring him to attend the interview on 26 June 1998. The notice was served with a letter in which the investigators confirmed that they were aware of the criminal proceedings pending against the applicant. They set out the safeguards in paragraph 6 of Schedule 2 to the Order, and stated that the applicant therefore had the guarantees he sought. They added that paragraph 7 of Schedule 2 restricted the disclosure of information obtained by a financial investigator, and added that “this does not prevent the answers or information being used to further the investigation”. 14. On 22 June 1998, the applicant's solicitor sent a letter to the financial investigators indicating that the applicant's replies could become admissible evidence at a trial and suggesting that the purpose of the interview was to compel him to disclose his defence. He added that the applicant had been advised not to attend an interview unless a satisfactory response to the letter was received. 15. On 23 June 1998, the applicant's solicitor was informed by letter that the reason for the interview was not to force the applicant to disclose his defence but that a number of matters from the earlier interview required clarification and additional matters had also arisen. 16. On a request by the investigators, on 25 June the applicant's representatives informed the investigators that the applicant would not attend the interview. The interview did not take place. 17. On 14 September 1998, a summons charged the applicant with the offence of failing without reasonable excuse to comply with the financial investigator's requirement to answer questions or otherwise furnish information, contrary to paragraph 5(1) of Schedule 2 to the 1996 Order. On 25 February 1999, the applicant was convicted of this offence in the Magistrates' Court and fined the sum of GBP 200. 18. On 5 July 2002, the Belfast County Court allowed the applicant's appeal against conviction, finding that the prosecution had not proved the absence of a reasonable excuse. The judge noted that the Northern Ireland Court of Appeal had dealt with a similar case (Clinton v. Bradley [2000] NI 196) which related to the same legislation and the same investigation. The Northern Ireland Court of Appeal had held that as Parliament had put in place certain express limitations on the use of information obtained by investigators, it could not have intended that the person concerned could put forward the risk of self-incrimination as a “reasonable excuse”. In Clinton v. Bradley, however, the accused had refused to answer questions at an interview, and he had not been interviewed by the police, or charged with any offence. 19. The judge further noted that one of the grounds on which the information obtained by investigators could be used in criminal proceedings was where evidence inconsistent with the information was relied on by the defence. That ground had been amended in the light of the Court's judgment in the case of Saunders v. the United Kingdom, and the amendment would have afforded the applicant the protection he sought had it been in place at the time. The judge took the view that once he had been questioned by the police and charged, the applicant had a right not to answer questions that would have tended to incriminate him. The only outstanding matter was whether the applicant should have attended the interview and then refused to answer questions, or, as he did, refuse to attend the interview once he failed to receive the assurances he had asked for. The judge regarded the distinction as technical, and found that the prosecution had failed to establish the absence of a “reasonable excuse” for not answering questions about the proceeds of a crime, with which he had been formally charged. 20. On 17 July 2002, the prosecutor requested the County Court to state a case for the purpose of an appeal to the Court of Appeal in Northern Ireland. 21. On 11 December 2002, the Court of Appeal in Northern Ireland heard the appeal. On 20 December 2002, Lord Justice Carswell, giving judgment, considered, in the light of R. v. Hertfordshire County Council, ex parte Green Environmental Industries Ltd ([2000] AC 326), that Article 6 § 1 of the Convention is directed towards the fairness of the trial itself and is not concerned with extra-judicial inquiries “with the consequence that a person to whom those inquiries are directed does not have a reasonable excuse for failing or refusing to comply with a financial investigator's requirements merely because the information sought may be potentially incriminating”. The appeal was upheld, and the applicant's conviction confirmed. 22. The criminal proceedings for false accounting and conspiracy to defraud (see § 10 above) were struck out on grounds of delay by the Belfast Magistrates' Court in June 2002. The magistrate was asked by the office of the Director of Public Prosecutions to state a case for the Court of Appeal, but he died before having prepared the stated case. 23. The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct. 24. Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: (a) on a prosecution for an offence under the Perjury (Northern Ireland) Order 1979; (b) on a prosecution for some other offence where evidence inconsistent with any such answers or information is relied on by the defence, or (c) on a prosecution for failing to comply with a requirement of the 1996 Order, such as attending to answer questions On 14 April 2000, paragraph 6(b) was limited by the Youth Justice and Criminal Evidence Act 1999 to permit use of the statements only if they are adduced, or if they are the subject of questions at trial, by the defence. 25. According to paragraph 7 of Schedule 2, information obtained by a person in his capacity as a financial investigator may not be disclosed by him except to (a) a constable; (b) any Northern Ireland department or government department discharging its functions on behalf of the Crown; (c) to any competent body as defined, or (d) any foreign equivalent of (a) –(c). | 1 |
train | 001-106650 | ENG | CZE | ADMISSIBILITY | 2,011 | HAVELKA v. THE CZECH REPUBLIC | 3 | Inadmissible | Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | The applicant, Mr Josef Havelka, is a Czech national who was born in 1946 and lives in Rychnov u Jablonce nad Nisou. The facts of the case, as submitted by the applicant, may be summarised as follows. On 22 December 1999 the applicant sued his former lawyer for unjust enrichment and sought payment of 3,561 Czech korunas (CZK), around 99 euros (EUR). At the same time he applied for a lawyer to be appointed to act on his behalf and for a waiver of the court fees. In February 2000 the Jablonec nad Nisou District Court discontinued the proceedings; in June 2000 the decision was quashed by the Ústí nad Labem Regional Court, which also noted that the applicant should clarify his claims. In November 2000 and March 2005 the applicant extended his action to two judges and the Ministry of Justice. In response to the applicant’s request, on 16 February 2001 the Regional Court referred the case to the Liberec District Court on the grounds that the judges of the Jablonec nad Nisou District Court could have been biased owing to the applicant’s action against one of them. Later, the applicant sought the exclusion of the Liberec District Court judges from the case; however, the Regional Court dismissed this request. The applicant also challenged, before the High Court, the impartiality of the Regional Court judges to examine the exclusion of the first-instance court judges, and later he challenged the impartiality of the High Court judges before the Supreme Court. All these requests were refused. Throughout 2005 the Liberec District Court appointed two different lawyers to act on the applicant’s behalf and dismissed his request for the extension of the action to the other three parties. The relevant lawyers successfully challenged their appointments in view of their relationship to the case. In February 2006 the Regional Court changed this decision in part and granted the request for the extension of the action to one judge. On 11 August 2006 the District Court revoked the exemption from the court fees granted to the applicant in 1999 and refused to appoint any more lawyers on his behalf. Based on the Land Registry records it found that the applicant possessed four big plots of land and that he had obtained EUR 9,000 as a result of his application before the Court (Havelka v. the Czech Republic, no. 76343/01, 2 November 2004). The applicant did not challenge this decision. On 8 February 2007 the District Court held a hearing, refused the applicant’s request for the exclusion of the District Court judges from the case, granted the applicant’s action in relation to his former lawyer and dismissed it concerning the judge. The applicant did not attend the hearing, without providing any explanation in a timely manner and despite having been duly notified. On 7 May 2008 the Regional Court refused the applicant’s request for the hearing to be rescheduled as unsubstantiated, refused his former request for the exclusion of a District Court judge from the proceedings and upheld the judgment. It became final on 16 June 2008. In February 2007 the applicant lodged a claim for compensation for non-pecuniary damage arising from the excessive length of the proceedings with the Ministry of Justice under Law no. 82/1998, as amended by Law no. 160/2006. As the Ministry did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action for damages against the Ministry on 17 January 2008. He specified the non-pecuniary damage that he had suffered at CZK 500,000 (EUR 19,135). In a letter of 8 February 2008 the Ministry of Justice acknowledged that the proceedings had been unreasonably lengthy. Taking into account the complexity of the proceedings and the applicant’s substantial contribution to the delay, the Ministry awarded him CZK 26,000 for non-pecuniary damage. On 8 April 2009 the Prague 2 District Court granted the action in part and awarded the applicant CZK 14,000 in addition to the just satisfaction granted by the Ministry. The court concluded that the proceedings on the merits had been delayed from 2002 to 2004; however, they had been carried out smoothly after that period. It considered that the applicant had significantly contributed to their length when repeatedly applying for the exclusion of judges from proceedings, raising the issue even before the High and Supreme Courts. Although he had exercised his undisputed rights, the examination of all his requests must objectively have taken due time. On 14 October 2009 the Prague Municipal Court refused the applicant’s request to exclude the judges of the Municipal and High Courts from the proceedings for their alleged bias and upheld the judgment, finding that the applicant had initially claimed a sum representing less than half the minimum monthly salary and that the litigation could have hardly caused considerable non-pecuniary damage. Overall, the applicant was awarded just satisfaction of CZK 40,000 (EUR 1,515). The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-83335 | ENG | GBR | CHAMBER | 2,007 | CASE OF STEFF v. THE UNITED KINGDOM | 4 | No violation of Art. 14+P1-1 | Josep Casadevall;Nicolas Bratza | 5. The applicant was born in 1955 and lives in Hertfordshire. 6. The applicant’s wife died on 9 February 1999, leaving two children, born in 1987 and 1992. On 11 May 2000 the applicant applied for widow’s benefits. By a letter dated 15 May 2000, the Benefits Agency informed him that it was unable to pay him any of the benefits claimed because he was not a woman. 7. On 6 June 2000 the applicant applied for an allowance under the Income and Corporation Taxes Act 1988 on the same basis as he would receive it if he were a widow whose husband died in similar circumstances. He only received a letter of reply on 25 July 2000. 8. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no social security or tax benefits were payable to widowers under United Kingdom law. 9. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV and Hobbs, Richard, Walsh and Geen v. United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, 26 March 2007. | 0 |
train | 001-95562 | ENG | SVK | CHAMBER | 2,009 | CASE OF SEFCIKOVA v. SLOVAKIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 5. The applicant was born in 1926 and lives in Prešov. 6. The applicant's mother had a share in a plot of agricultural land. The land is located in the Bardejov area and is registered as plot number 2612. 7. In 1958 the Bardejov local authority (Miestny národný výbor) assigned the “right of use” in respect of the plot to the Bardejov State Property Enterprise (Štátny majetok). 8. The right of use was later conferred on the Bardejov Agricultural Cooperative and, under a 1980 contract on the Bardejov Union of Gardeners. 9. The area where the plot is located was turned into a “garden community” named Kira-Juh and consisting of individual gardens which were put at the disposal of members of the above Union (“the gardeners”). The plot has been used as such a garden area since. It is situated outside the built-up area of Bardejov and it has been entered in the land register as arable land. 10. On 9 October 1995 the Bardejov District Court issued an inheritance decree confirming that the ownership of 6,557.25 square metres of land in the above plot had devolved to the applicant. 11. On 26 March 1997 special legislation on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “Law no. 64/1997”) entered into force (see “Relevant domestic law and practice” below). 12. Pursuant to section 3 of Law no. 64/1997, if no other arrangement has been made between an owner and a tenant of land in a garden community, their relation would become ex lege that of the parties to a lease. The applicant attempted twice to terminate the lease of her land by notice. She argued that, despite her efforts, no fair agreement concerning the use of the plot had been reached and that the statute used for the calculation of the rent in the absence of an agreement was outdated. Moreover, the Union of Gardeners was in any event in default of payment. 13. In 1998 the applicant sued the gardeners before the Bardejov District Court. She claimed that the defendant should be obliged to conclude a lease contract with her and pay 19,671 Slovakian korunas (SKK) as rent. On 2 October 2000 the District Court rejected the action as the defendant, as indicated in the applicant's action, lacked standing in the case. On 14 February 2001 the Prešov Regional Court upheld the first-instance judgment. 14. On 30 October 2000 the Bardejov District Office informed the applicant, with reference to sections 3 and 4 of Law no. 64/1997, that rent payable by the gardeners amounted to 10% of the value of the land, determined pursuant to Regulation 456/1991. In any event, the minimum rent was SKK 0.3 per square metre. 15. In 2000 the gardeners sent SKK 5,208 to the applicant as rent for the period from 1997 to 1999. In 2001 the gardeners paid another SKK 1,736.6 to the applicant as rent for 2000. Those sums correspond approximately to SKK 0.3 per square metre a year. 16. In letters of 9 October 2000 and 9 April 2001 the applicant informed the gardeners that the sums paid were inadequate in view of the actual value of her land and that no agreement had been reached between her and the gardeners as to the lease of the land. It appears from the applicant's submission of 22 August 2006 that between 1996 and 2005 the gardeners had paid to her the overall sum of SKK 15,629 as rent for the use of her land. 17. On 20 November 1998, the gardeners requested that the ownership relations in respect of their gardens be settled in a procedure under section 7(1) of Law no. 64/1997. 18. On 27 September 1999 the District Office formally announced the commencement of a land consolidation procedure in respect of the gardens in question. The announcement contained a register of the original ownership and a surveyor's plan concerning the current state (“the preliminary inventory”). 19. On 26 October 1999 the applicant challenged the preliminary inventory, opposing the consolidation procedure as such and claiming possession of the original plot. 20. The challenge was dismissed by the District Office on 12 January 2000. The administrative authority noted that the gardeners had proposed to buy the applicant's land for SKK 7.5 per square metre and that the applicant had declined that offer in that she had claimed SKK 10. As to the applicant's arguments under the Land Ownership Act 1991, the authority noted that that piece of legislation (and namely section 22(3)) had ceased to be applicable to the land issue following the entry into force of Law no. 64/1997 on 26 March 1997. 21. The applicant appealed. On 4 May 2000 the Prešov Regional Office quashed the District Office's decision on the ground that it had not checked whether there were valid contracts on the use of the land entitling the gardeners to request its transfer under Law no. 64/1997. 22. In a new decision of 25 May 2000 the District Office again dismissed the applicant's objection to the preliminary inventory. It was noted, inter alia, that the applicant had no power to terminate the lease. No agreement had been reached between the owner and the gardeners on the transfer of the land in issue. On the basis of the contracts on use of the land included in the file the District Office was satisfied that the users of the land were entitled to request a consolidation procedure under Law no. 64/1997. 23. The applicant appealed. She claimed that the land should have been returned to her and requested that the rent payable by the gardeners should be determined. 24. On 13 December 2000 the Regional Office dismissed the appeal. The decision stated that the Land Ownership Act 1991 had ceased to be applicable after enactment of Law no. 64/1997. Any outstanding issues concerning the rent of the land fell to be determined by a court. 25. On 12 February 2001 the District Office approved the preliminary inventory. The applicant challenged the approval by an administrative appeal, arguing that Law no. 64/1997 was unconstitutional. She demanded that the consolidation be carried out according to market economy principles. 26. On 30 June 2001 the Regional Office upheld the decision of 12 February 2001. It noted that conformity with the Constitution of Law no. 64/1997 had been already examined and confirmed by the Constitutional Court and that the consolidation procedure had been conducted in compliance with that Act. 27. In a letter of 15 November 2001 the District Office invited the applicant to present her position by stating whether she preferred to be compensated for her title in the plot by being granted a substitute plot or paid an amount of money in lieu. The letter indicated that the applicant owned 5,720 square metres of land in the garden community concerned. The value of the land pursuant to section 11(5) and (6) of Law no. 64/1997 was SKK 3. Given that the land was located in a town which was a spa, the compensation was to be increased by 150% to reach SKK 7.5 per square metre. 28. In response, the applicant rejected the proposed options and reiterated her request for her plot to be restored to her. As to the proposed financial compensation, she objected that it was inadequate. 29. On 20 May 2002 the District Office ruled that the applicant was to be financially compensated for her title to the plot. It was observed that she had made no claim for substitute land in which case, under section 10(3)(a) of Law no. 64/1997, the compensation was automatically to be financial. The decision stated that the applicant owned 5,720 square metres of land in the area concerned and that she would receive SKK 42,900 (that is SKK 7.5, which is equivalent to EUR 0.249, per square metre) in compensation. 30. In November 2002 the District Office informed the land owners of the details of the consolidation project under Law no. 64/1997. On 9 July 2003 the Regional Office dismissed the applicant's objection to the project. On 11 May 2004 the Ministry of Agriculture dismissed the applicant's appeal against that decision. The authorities established that the applicant had claimed that the Land Ownership Act 1991 be applied and that her purchase price should be determined on the basis of its market value. 31. On 10 June 2004 the applicant lodged an action with the Supreme Court in which she challenged the decision of the Ministry of Agriculture. On 30 May 2005 she extended her claim in that she challenged the above Regional Office's decisions of 13 December 2000, 30 June 2001 and 9 July 2003. 32. On 27 October 2005 the Supreme Court discontinued the proceedings concerning the Regional Office's decisions of 13 December 2000 and 30 June 2001 as the action had been lodged outside the statutory two-month time-limit. It dismissed the claim concerning the decision of the Ministry of Agriculture of 11 May 2004. 33. The Supreme Court noted that in her action the applicant had claimed that the contested administrative decisions were unlawful on the ground that the administrative authorities had failed to correctly and reliably establish the relevant facts. The decision stated that the applicant had failed to specify, as required by the law, on the basis of which particular facts she considered the law to have been breached in the proceedings leading to the decision of the Ministry of Agriculture. The applicant rather expressed her disagreement with the land consolidation procedure as such and the amount of compensation offered to her in that context. 34. In the meantime, on 26 October 2004, the Land District Office in Bardejov approved the land consolidation project under Law no. 64/1997. The decision became final on 25 November 2004. 35. On 4 October 2007 the same authority ordered implementation of the land consolidation project pursuant to section 15(1) of Law no. 64/1997. On 4 June 2008 the Regional Land Office in Prešov upheld that decision. It noted that the applicant had challenged the decision of 4 October 1997 without submitting any reason for her appeal. She had merely stated that she had made an application to the European Court of Human Rights. At a later stage the applicant had requested that the administrative authorities should proceed pursuant to the Land Ownership Act 1991 and that the ownership rights in respect of the land should be determined in accordance with the Civil Code. 36. The regional land office noted that in the context of the consolidation proceedings the compensation for the landowners had been determined by a decision which had become final on 25 November 2004. None of the land owners had sought judicial review. Adequacy and form of compensation to be provided to land owners could therefore no longer be addressed in the subsequent proceedings, which concerned the implementation of the consolidation project. 37. On 12 February 2009 a real estate agency issued a certificate, at the applicant's request, according to which the approximate value of the applicant's land is EUR 20 per square metre. 38. On 2 April 2009, at the Government's request, the Forensic Engineering Institute in Žilina submitted an opinion according to which the market value of the applicant's land is EUR 4.31 per square metre. The opinion states that the land is located in the area of the town of Bardejov and that it has not been planned to use it for construction purposes according to the current plans. Furthermore, the land is in a zone of environmental protection of water resources whereby its use for purposes other than gardening is considerably affected. 39. In a reaction to the latter valuation the applicant proposed that the Court should accept that the value of her land was EUR 13.28 per square metre. 40. The relevant domestic law and practice, as well as the general background to consolidation of land used by garden communities, are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 7-13 and 40-80, ECHR 2007... (extracts)). 41. As from 1 November 2004, after Regulation 465/1991 had been repealed (see Urbárska obec Trenčianske Biskupice, cited above, § 64), sections 4(1) and 11(2) of Law no. 64/1997 have provided for the value of the land in the allotments to be determined in accordance with a special law. In particular, section 4(1) has fixed the rent at 10% of its value thus determined. Reference is made to the Land Consolidation Act 1991, as amended. Section 43(2) of that Act empowers the Ministry of Agriculture to issue a binding regulation in that respect. 42. Such regulation was enacted with effect from 15 February 2005 (Regulation 38/2005). In it valuation is based on a scheme of “quality pedo-ecological units” (bonitované pôdno-ekologické jednotky) categorising agricultural land and other areas in Slovakia. Section 1(5) provides that such valuation is applicable also to gardens located outside a municipality's constructed area. The scheme provides for value of agricultural land within a range from EUR 0.0216 to EUR 0.402 (Annex 1). Pursuant to Annex 5, the value of a particular plot is determined by multiplying the unitary value as set out in Annex 1 by its surface area. 43. In addition, the following legal provisions and practice are relevant in the present case. 44. Article 152 § 4 of the Constitution provides that constitutional laws, laws and other generally binding legal regulations are to be interpreted and applied in conformity with the Constitution. 45. Pursuant to Article 154c § 1 of the Constitution, international treaties on human rights and fundamental freedoms which the Slovak Republic has ratified and which have been promulgated in the manner laid down by a law prior to the entry into force of Constitutional Act 90/2001 on 1 July 2001 form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms. 46. In judgment I. ÚS 36/02 delivered on 30 April 2003 the Constitutional Court, with reference to Articles 152 § 4 and 154c § 1 of the Constitution, held that the Convention and the case-law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions with a bearing on fundamental rights and freedoms. The Convention and the case-law of its organs thus set a framework which the national authorities could not overstep when dealing with a case. The same view was expressed in its judgment I. ÚS 239/04 of 26 October 2005. 47. On 15 October 2003 the Constitutional Court delivered a judgment in proceedings III. ÚS 138/03. The case concerned alleged flaws in proceedings on implementation of a consolidation project under Law no. 64/1997. In particular, the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities' decisions a court had breached his rights to judicial protection and to own property. 48. The Constitutional Court granted the complaint considering that the court should have dealt with the merits of the case. It returned the case to the ordinary court for further proceedings. | 1 |
train | 001-92169 | ENG | SRB | CHAMBER | 2,009 | CASE OF FELBAB v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 8 - Right to respect for private and family life;Violation of Article 13+6 - Right to an effective remedy (Article 6 - Right to a fair trial);Violation of Article 13+8 - Right to an effective remedy (Article 8 - Right to respect for private and family life) | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 6. The applicant was born in 1969 and lives in Zrenjanin, Serbia. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 1 August 1992 the applicant married M.F. 9. On 6 February 1993 and 9 September 1994 their children Z.F. and N.F., respectively, were born. 10. In 1998 the applicant and M.F. started having marital problems. 11. On 19 April 1998 M.F. moved out, but the children remained with the applicant. 12. On 31 August 1999 the applicant filed a claim with the Municipal Court in Zrenjanin (“the Municipal Court”), seeking the dissolution of marriage, the custody of the children and a contribution to their maintenance. 13. In January 2000 M.F. spent several days with the children, but failed to return them to the applicant thereafter. 14. On 6 June 2000 the Municipal Court: (i) dissolved the marriage; (ii) granted custody of the children to M.F.; (iii) ordered the applicant to pay monthly child maintenance; and (iv) ruled that the applicant could spend every first and third weekend of each month with the children, as well as seven and fourteen days of their winter and summer holidays, respectively. 15. By 28 September 2000 this judgment had become final. 16. On 9 August 2006 the applicant filed a claim with the Municipal Court, seeking custody of Z.F and N.F. as well as the amendment of the maintenance ordered. 17. On 22 August 2006 M.F. filed a separate claim with the Municipal Court, seeking the amendment of the applicant’s access rights. 18. On 11 September 2006 the Municipal Court joined these proceedings into a single case. 19. On 8 February 2007 the applicant withdrew his claim in respect of N.F. 20. On 12 April 2007 the Municipal Court ruled against the applicant and partly in favour of M.F. In particular, the court ordered that the applicant would be entitled to spend time with Z.F. and N.F. each Sunday between 10 a.m. and 4 p.m., thereby restricting his prior access rights. 21. On an unspecified date thereafter this judgment would appear to have become final. 22. Having apparently been refused access to the children by M.F., on 28 September 2000 the applicant filed an enforcement request with the Municipal Court. 23. On 6 October 2000 the Municipal Court issued an enforcement order, stating, inter alia, that M.F. would be fined 1,500 Serbian dinars should she fail to comply therewith. 24. On 8 November 2000 the applicant informed the Municipal Court that he had been denied all access and requested that the conditional fine now be imposed. 25. On 28 November 2000 the Municipal Court rejected this request as premature, stating that M.F. had received the order in question on 20 November 2000. 26. On 27 March 2001 the Municipal Court confirmed its decision of 28 November 2000. 27. On 25 June 2001 the applicant informed the Municipal Court that his contact with the children was dependent upon the whims of his former wife and noted that the final judgment of 6 June 2000 was being ignored. 28. On 29 June 2001 the Municipal Court decided to impose the said fine and again ordered M.F. to respect the applicant’s access rights. 29. On 22 December 2003 the Social Care Centre based in Zrenjanin (“the Social Care Centre”) informed the court that the applicant had not been in touch with them. They further noted that M.F. had stated that the applicant had not shown any initiative to see the children. Lastly, the Social Care Centre proposed that the enforcement proceedings be terminated. 30. On 21 February 2005 the Municipal Court confirmed its decision of 29 June 2001. 31. On 3 March 2005 the Municipal Court ordered M.F. to pay 6,750 dinars in costs. 32. On 8 May 2008 the Municipal Court scheduled a hearing for 28 May 2008. 33. On 22 May 2008 the Municipal Court cancelled this hearing, terminated the enforcement proceedings and reaffirmed its order of 29 June 2001. As regards the termination, it referred to the judgment rendered in 2007 and relied on the provisions of Article 62 § 1 of the Enforcement Procedure Act (see paragraph 49 below). 34. Having received this decision, the applicant failed to file a formal complaint against it (see paragraph 50 below). 35. On 5 June 2008 M.F. paid the fine first imposed on 6 October 2000. 36. On 20 April 2005 the Municipal Court found the applicant guilty of failing to pay child maintenance between 8 October 2001 and 8 March 2005 and sentenced him to four months in prison, suspended for one year. 37. On 28 September 2007 the Municipal Court revoked the suspended sentence and ordered the applicant to serve the four months in prison. 38. On 7 November 2007 this decision became final and on 4 February 2008 the applicant started serving his sentence. On 23 April 2008, however, the Municipal Court ordered that the applicant be released on parole. 39. On 31 May 2006 the Social Care Centre confirmed that Z.F. had effectively been living with the applicant since 22 April 2006. 40. On 12 October 2006 the said centre observed that: (i) the enforcement proceedings had been ineffective due to the uncooperative attitude of the children, as well as their mother; (ii) the contact between the applicant and the children had been re-established in the summer of 2005; (iii) in late summer of 2005 and April 2006, respectively, Z.F. had fled to the applicant’s home; and (iv) the applicant himself could not be considered to be a positive influence on her. 41. On 22 February 2007 Z.F. again went to stay with the applicant. Ultimately, however, she was returned to her mother by the Social Care Centre. 42. On 6 November 2006 Z.F. stated, inter alia, that she would prefer to live with the applicant. 43. On 21 December 2006 N.F. stated that he wanted to stay with his mother, but was willing to maintain regular contacts with the applicant. 44. It would appear that in December 2007 both Z.F. and N.F. had been staying with the applicant, which is why on 17 December 2007 he had been ordered by the Municipal Court to return them to their mother. 45. In a separate case, on 26 December 2007 the Municipal Court ruled that M.F. was legally entitled to have Z.F. removed from the applicant’s home, where she had stayed temporarily. By 26 December 2007 this judgment became final and Z.F. returned to live with her mother. 46. Following the dissolution of his marriage with M.F., the applicant remarried and fathered another three children. 47. On 22 February 2007 the applicant was diagnosed as suffering from hypertension, hypoglycaemia and spondylosis. 48. On 11 July 2008 the Employment Agency (Nacionalna sluzba za zaposljavanje) confirmed that the applicant had been formally unemployed since 1987, except briefly between 26 October 2001 and 6 March 2002. It would appear, however, that he had worked unofficially during this time and had been an occasional recipient of various social benefits. 49. Article 62 § 1 provides that enforcement proceedings “shall be terminated ex officio if the ... [title being enforced] ... has been ... repealed, reversed, annulled, or otherwise rendered ineffective, or the certification of enforceability has been ... revoked”. 50. Article 49 § 3 provides that the creditor shall have the right to file a complaint against a decision adopted, inter alia, on the basis of Article 62 § 1. 51. Article 209, while placing special emphasis on the best interests of the child, states that there shall be an initial period of three days for voluntary compliance with a child custody and/or access order. Beyond that, however, fines shall be imposed and, ultimately, if necessary, the child shall be taken forcibly, in co-operation with the Social Care Centre. 52. The Enforcement Procedure Act 2004 entered into force in February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304 of this Act, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the Enforcement Procedure Act 2000. | 1 |
train | 001-23239 | ENG | NLD | ADMISSIBILITY | 2,003 | RIEKWEL v. THE NETHERLANDS | 4 | Inadmissible | null | The applicant, Mr Marco Riekwel, is a Netherlands national, who was born in 1967. He is represented before the Court by Mr L.C.M. Jurgens, a lawyer based in Amsterdam who is not licensed to practise but who provides legal assistance and representation in cases where representation by a licensed advocate is not prescribed by law. The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 July 1997, at approximately 2.50 a.m., police officers in Rotterdam stopped a motor car and tested the driver’s breath for alcohol. There being an indication that the driver’s breath might contain more alcohol than was legally permitted, the driver was taken to a police station and subjected to a more precise test. This second test showed that the driver’s breath did in fact contain a higher proportion of alcohol than permitted. The driver of the car gave the applicant’s name. It appears from a police report dated after the event, which the applicant claims is inaccurate, that the driver of the car was found in possession of a driving licence or other identity document in the applicant’s name containing a photographic likeness of the bearer. The driver of the car confessed that he had drunk five glasses of beer. He was sent home with a summons to appear on 25 September 1997 before the single-judge chamber (politierechter) of the Regional Court (arrondissementsrechtbank) of Rotterdam on a drink-driving charge. No one appeared at the hearing on 25 September 1997. The applicant was convicted in absentia of drink-driving and sentenced to pay a fine of 800 Netherlands guilders (NLG). The applicant claims, essentially, that he only became aware of this when he was ordered to pay the fine. He lodged an appeal against his conviction and sentence to the Court of Appeal (gerechtshof) of The Hague. The Court of Appeal decided to consider the drink-driving charge and the charge of driving an uninsured car – of which the applicant had been convicted in separate proceedings – jointly. It held hearings on 24 November 1997, 25 August and 30 November 1998 and 1 March 1999, at which, for various reasons not relevant to the case before the Court, the applicant did not appear. At the hearing on 1 March 1999, the applicant’s counsel, who was present, pleaded on the applicant’s behalf that another person had in fact been arrested on 5 July 1997 and had fraudulently pretended to be the applicant. He invited the police officers who had been called as witnesses to identify the applicant from a series of photographs. The Court of Appeal, however, decided that the applicant’s presence in person was required to establish whether or not he was in fact the person arrested on 5 July 1997. A further hearing was set for 26 April 1999. By letter of 22 April 1999, the applicant informed the Court of Appeal that he did not intend to appear. He stated that he did not trust the police officers to make a correct identification except in a confrontation attended by sufficient safeguards, for example a line-up of himself and other persons of similar appearance. The hearing proceeded on 26 April 1999 in the applicant’s absence. The Court of Appeal gave judgment on 10 May 1999. It declared the applicant’s appeal against the first-instance conviction of drink-driving inadmissible as out of time. Its reasoning included the following: “In the opinion of the Court of Appeal the original summons for the [single-judge chamber of the Regional Court’s] hearing of 25 September 1997 was handed to the suspect in person on 5 July 1997. It follows that the suspect should have appealed within fourteen days of the judgment delivered on 25 September 1997. However, the suspect only appealed on 19 November 1997, so the suspect’s appeal must be declared inadmissible. The Court of Appeal is of the opinion that it was the suspect to whom the original summons was handed. The Court of Appeal considers it relevant in this respect that, as appears from the official report drawn up on 8 November 1997 by Police Sergeant S. ..., the suspect identified himself to the reporting police officers by means of an identity document bearing a photographic likeness resembling the suspect. The Court of Appeal has further found that the [record of] the interrogation of the suspect, to which he was subjected on 5 July 1997, is signed with a signature which in the Court of Appeal’s opinion is sufficiently similar to the one which the suspect has placed on the letter of authority with which he has authorised the lodging of an appeal ... and on the receipt belonging to the official record of the delivery of the notification of the pronouncement of the judgment of the single-judge chamber of the Regional Court ...” The applicant’s counsel, a licensed advocate, lodged an appeal on points of law (cassatie) to the Supreme Court (Hoge Raad) on the applicant’s behalf. Mr Jurgens took over the applicant’s representation from the advocate, it being possible at the time for any person duly authorised in writing to act before the Supreme Court in criminal cases, and gave his own address as the applicant’s elected domicile for correspondence. The Advocate General (advocaat-generaal) to the Supreme court submitted an advisory opinion to the Supreme Court on 8 May 2001. A copy was transmitted to the last known address of the applicant. However, as appears from the public records, the applicant had already moved to another country on 18 December 2000. The Supreme Court gave judgment on 19 June 2001 dismissing the applicant’s appeal. On 28 August 2001 the Registrar of the Criminal Division wrote to Mr Jurgens in the following terms: “In the above case, in which you act as the representative of the suspect pursuant to a specific letter of authority, the Advocate General Jörg submitted an advisory opinion (enclosed) on 8 May 2001. This advisory opinion was sent to the suspect by letter of 9 May 2001, the latter being offered the possibility to respond. This possibility was not made use of. Subsequently, the Supreme Court dismissed the appeal by its judgment of 19 June 2001. You have rightly pointed out to the administrative staff of the Criminal Division that you were not sent a copy of the advisory opinion, as was required by (former) Article 439 § 2 of the Code of Criminal Procedure. This lapse is regretted and I offer you my apologies for it. Now that the Supreme Court has given its irrevocable judgment (onherroepelijk uitspraak heeft gedaan), it would be entirely pointless to give you the opportunity to react at this stage. That will therefore not be done. Unfortunately, there is now nothing more to be done than to acknowledge that a mistake was made towards you which should not have been allowed to occur. ...” | 0 |
train | 001-57835 | ENG | NLD | CHAMBER | 1,993 | CASE OF NORTIER v. THE NETHERLANDS | 2 | No violation of Art. 6 | John Freeland;N. Valticos | 7. The applicant is a Netherlands national born on 13 May 1972. At the time of the events now under examination, he was fifteen years old. 8. On 19 September 1987 the applicant was released from a youth custody centre after serving a custodial sentence for rape. Eleven days later, on 30 September 1987, the applicant was again arrested on suspicion of attempted rape. Following his arrest, he admitted the crime to the police. 9. On 2 October 1987 the applicant was brought before Judge Meulenbroek, juvenile judge (kinderrechter) at the Middelburg Regional Court (arrondissementsrechtbank), who sat in the capacity of investigating judge (rechter-commissaris). The applicant was assisted by his lawyer. The private association which was the applicant’s legal guardian was represented by two social workers. The applicant again confessed. On an application by the Public Prosecutor (officier van justitie), Juvenile Judge Meulenbroek ordered the applicant to be placed in initial detention on remand (bewaring). He also ordered a preliminary investigation (gerechtelijk vooronderzoek) with a view to having a psychiatric report drawn up. Neither the applicant nor his lawyer objected. 10. Again on an application by the Public Prosecutor, Juvenile Judge Meulenbroek, sitting in the capacity of review chamber (raadkamer), made an order for the applicant’s extended detention on remand (gevangenhouding) on 8 October 1987. He prolonged this order twice on the occasion of periodic reviews, on 10 November and 10 December 1987. At no time did either the applicant or his lawyer raise any objection. 11. In the course of the preliminary investigation, the applicant underwent a psychiatric examination. The resultant psychiatric report recommended that, if the charge were to be proven, the applicant should be sent to an institution for psychiatric treatment (inrichting voor buitengewone behandeling), pursuant to Article 77k of the Criminal Code (Wetboek van Strafrecht), but not punished. The defence, fearing that the applicant’s initial confession had been obtained under duress, requested that the two police officers who had taken down his initial statement following his arrest be questioned as witnesses. Juvenile Judge Meulenbroek referred the matter to Judge Witziers, Vice-President of the Middelburg Regional Court and substitute juvenile judge. Judge Witziers questioned the two police officers on 22 and 23 December 1987. The results were such that the defence did not ask for them to be heard again at the trial. The preliminary investigation in the present case consisted only of the questioning of the said witnesses and the above-mentioned psychiatric examination. 12. The applicant received a summons in December 1987 to appear before Juvenile Judge Meulenbroek on 6 January 1988 for trial. 13. By letter of 5 January 1988, the day before the trial was to take place, the applicant’s lawyer challenged Juvenile Judge Meulenbroek on the ground that he was not impartial, since he had taken pre-trial decisions concerning the applicant’s detention on remand. Juvenile Judge Meulenbroek rejected the challenge as ill-founded on 6 January 1988. 14. The applicant appealed against this decision to the Middelburg Regional Court, which rejected the challenge on 22 January 1988. In its decision the Regional Court considered in detail the relevance of the judgment of the European Court in the case of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86). The Regional Court was of the opinion that there was a fundamental difference between the position of a Belgian investigating judge and that of a Netherlands juvenile judge, particularly as far as their independence was concerned. It further held that the De Cubber judgment did not imply that the performance of the functions of investigating judge and trial judge in the same case constituted a breach of Article 6 para. 1 (art. 6-1) under all circumstances. Netherlands juvenile criminal procedure provided for an exception to the rule of general criminal procedure prohibiting the combination in a single person of the functions of investigating judge and trial judge (see paragraph 20 (a) below). As the juvenile judge had rightly emphasised in his decision, the reason for this was to be found in the pre-eminence of the educational aspect of juvenile criminal law and the importance of optimally co-ordinating the various decisions taken with regard to the minor. 15. The applicant was eventually tried on 25 January 1988, by Juvenile Judge Meulenbroek. He was assisted by his lawyer. One of the social workers representing the private association which was the applicant’s legal guardian was also present and allowed to speak. Confirming his earlier statements, the applicant admitted the charge, which was then held to be proven in the light of the evidence. In accordance with the recommendation contained in the psychiatric report (see paragraph 11 above), the applicant was committed to an institution for the psychiatric treatment of juvenile offenders pursuant to Article 77k of the Criminal Code. He was reminded by the juvenile judge of the right to appeal, but the applicant’s lawyer, who alone could decide to do so (see paragraph 22 below), did not file an appeal. In March 1990 Juvenile Judge Meulenbroek carried out the biennial review required by Article 77r of the Criminal Code to determine whether or not it continued to be in the applicant’s interests for him to remain in the institution. Apparently neither the applicant nor his lawyer raised any objection to the prolongation of the measure. The applicant was released unconditionally on 9 August 1991. 16. Since 1901 it has been the rule in the Netherlands not to apply penal law and criminal procedure to juveniles in the same way as to adults. Juvenile penal law and criminal procedure provide for exceptions to the general law: that is, general penal law and criminal procedure apply to the extent that they are not expressly deviated from. Juveniles cannot be prosecuted for acts committed before the age of twelve (Article 77a of the Criminal Code). Juvenile criminal procedure applies if the suspect has not yet reached the age of eighteen when a prosecution against him is commenced (Article 487 of the Code of Criminal Procedure (Wetboek van Strafvordering)). In principle, the same age-limit applies in juvenile penal law (Article 77b of the Criminal Code). However, subject to certain conditions, the Criminal Code makes it possible on the one hand to apply general penal law to a suspect who at the time of the offence was sixteen or seventeen years old (Article 77c, ibid.), and on the other hand to apply juvenile penal law to a suspect who at the time of the offence had reached the age of eighteen but not yet that of twenty-one (Article 77d, ibid.). 17. Juvenile penal law is different from that applying to adults only in that it has its own system of punishments (straffen) and curative or protective measures (maatregelen) designed to meet the specific aims of this branch of criminal law which (in the words of the Explanatory Note to the Act of 9 November 1961 - see paragraph 18 below) "has primarily a pedagogical purpose, the interests of the minor being borne in mind at all times", and which, accordingly, seeks mainly to protect and educate the juvenile concerned. Punishments available under juvenile penal law are placement in a youth custody centre (tuchtschool) for up to six months, juvenile detention (arrest) for up to fourteen days, a fine of up to five hundred guilders and a reprimand (berisping) (Article 77g). The measures include, inter alia, judicial supervision (ondertoezichtstelling) - which is in fact a protective measure under civil law (Articles 1:245 et seq. of the Civil Code (Burgerlijk Wetboek)) - and committal to an institution for the psychiatric treatment of young offenders (Article 77h). The latter is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance (Article 77k). 18. Juvenile criminal procedure also seeks to protect and educate, but here the differences from general criminal procedure are considerable. The underlying principle of juvenile criminal procedure is that it "should be simple and understandable for both the minors concerned and their parents. Formalities which have some purpose for adults but are practically devoid of purpose in relation to minors should be omitted, whereas on the other hand special requirements should ensure proper treatment of juvenile cases". (Quoted from the Explanatory Note to the Act of 9 November 1961, which Act entered into force in 1965, by which juvenile criminal procedure - introduced in 1901 and thoroughly reviewed in 1921 - was modernised) It is by reason of this basic idea and of the need to improve the protection of juveniles by creating links with the protection of juveniles in civil law - in which the juvenile judge is the central actor and is empowered to order various protective measures - that the juvenile judge is the central actor in juvenile criminal procedure also. Several advantages are claimed for this system: (a) it is conducive to the protection of the juvenile if the juvenile judge is consulted beforehand on the subject of the desirability of criminal prosecution, especially if he already knows the minor concerned; this may be the case for example if he has been involved in protective measures under civil law, such as placing the minor under judicial supervision; (b) a relationship of trust may develop between the juvenile judge on the one hand and the minor and his or her parents or guardian on the other owing to the fact that the minor and his or her parents or guardian (who are summoned to appear at the preliminary investigation stage and the trial and have the right to speak) are dealt with by one and the same judge throughout the proceedings, which moreover are held in private and in an informal manner; (c) in those cases in which the juvenile has made an immediate confession - as usually happens when the suspect is a minor - a plan may be developed at an early stage for the future of the juvenile concerned, even during the preliminary investigation; (d) the juvenile judge is the most suitable person for the purpose in view of his expert knowledge and his considerable decision-making powers. The close link between protective measures under civil law and criminal prosecution may be seen in Article 14a of the Code of Criminal Procedure; if there are proceedings relating to the protection of the minor under civil law (such as a request to have him or her placed under judicial supervision or aimed at divesting the parents of their parental rights) running parallel to the criminal prosecution, then under this provision the prosecution may be suspended until a final decision has been taken in those parallel proceedings. 19. The central position of the juvenile judge appears clearly from the fact that the juvenile judge is involved in the decision whether or not to prosecute. According to Article 493 of the Code of Criminal Procedure, if the Public Prosecutor wishes to drop charges against a minor unconditionally, he must first consult the juvenile judge; if he wishes to do so conditionally, he requires the juvenile judge’s consent. If charges are not dropped immediately, the Public Prosecutor must obtain from the child welfare authorities information on the minor’s personality and living conditions; they may then comment on the desirability of prosecution (ibid., Article 495). In order to implement these provisions effectively, it has been the practice for the juvenile judge, the Public Prosecutor and the representative of the child welfare authorities to meet on a regular basis to discuss case files together. This so-called "three-way consultation" (driehoeksoverleg) took place in the absence of the minor or his legal representative or counsel, and without their being informed about it. 20. The juvenile judge is also the central figure in the investigation phase. (a) This is clear in the first place from Article 494 of the Code of Criminal Procedure, which stipulates that the juvenile judge is to act as investigating judge, and from Article 496, which reads: "1. The juvenile judge shall be responsible for the preliminary investigation, unless the case involves one or more suspects who have reached the age of eighteen at the moment the prosecution against them is commenced and the case cannot, in the initial opinion of the Public Prosecutor and the juvenile judge, be divided. 2. In cases where the juvenile judge orders a preliminary investigation, he shall be regarded as investigating judge responsible for the preliminary investigation." This means that the juvenile judge has all the decision- making powers of an investigating judge and that he is in charge of the preliminary investigation. A preliminary investigation may involve such matters as obtaining expert opinions and technical evidence, questioning witnesses, mail and telephone interceptions, searches and visits to the scene of the crime, as well as interrogation of the suspect. According to Article 268 of the Code of Criminal Procedure, a judge who has undertaken any investigation in the case as an investigating judge is debarred from taking part in the trial; however, by virtue of Article 500d, this provision does not apply in juvenile procedure. (b) It is also the juvenile judge who takes all decisions concerning detention on remand. In adult criminal procedure, initial detention on remand (for a maximum of six days, which may be prolonged once for a further six days) is ordered by the investigating judge and extended detention on remand (for a maximum of thirty days, which may be prolonged twice for further periods of thirty days) by the review chamber of the Regional Court. In juvenile criminal procedure, the juvenile judge exercises both these powers; he not only officiates as investigating judge but also, pursuant to Article 488, as review chamber. One consequence of this is that in cases where in adult criminal procedure an appeal against decisions of the investigating judge lies to the review chamber, and to the extent that such appeals are allowed in juvenile procedure, the juvenile judge may be called upon to hear appeals against some of his own decisions. 21. The central position of the juvenile judge further appears from the fact that it is, as a rule, the juvenile judge himself who, sitting as a single judge, conducts the trial and gives judgment (Article 500 para. 1). It is for the juvenile judge to decide whether or not the case is one that should be referred to a chamber consisting of the juvenile judge and two other judges (Article 500 para. 2, in conjunction with Article 500e). The juvenile judge is also involved to a significant degree with the execution of the punishment or measure imposed. For example, a sentence to the punishment of juvenile detention is not executed until the judge who imposed it has been consulted (Article 505) and the punishment of reprimand is administered personally by the judge who imposed it (Article 506). 22. If the juvenile concerned has not yet reached the age of sixteen, then it is his lawyer who enjoys all the procedural rights afforded the suspect by the Code of Criminal Procedure) instead of the juvenile himself (with the exception of the rights which the suspect may avail himself of during the hearing) (Article 504 para. 1). However, the juvenile’s legal guardian (wettelijke vertegenwoordiger) may file a note of protest to the president of the court with jurisdiction as to both facts and law before which the juvenile is being prosecuted or was last prosecuted if he disapproves of the lawyer’s use of these rights or his failure to make use of them (Article 504 para. 2). Pursuant to Article 56 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) an appeal against the judgment of the juvenile judge lies to the Court of Appeal (gerechtshof). Such an appeal involves a complete re-examination of the case by three judges (Article 422 of the Code of Criminal Procedure). 23. For a long time there has been criticism of the system described above. For this reason, a committee for the revision of juvenile criminal law was set up in 1979 and it published a report in 1982. Criticism of the existing system in legal writing increased as a result of this report and of the judgments of the European Court in the cases of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86) and Hauschildt v. Denmark (judgment of 24 May 1989, Series A no. 154). However, opinion is still divided on the question to what extent it is necessary to modify the present system. These factors have resulted in informal changes in the way the system operates (see paragraph 24 below) and a proposal for a change of the law (see paragraph 25 below). In this connection, it is also useful to mention a development in Netherlands case-law (see paragraph 26 below). 24. In the first place, there is now an informal arrangement under which the juvenile judge, when confronted with a suspect who denies charges, entrusts the interrogation of witnesses to another juvenile judge and to that extent does not act as investigating judge. However, even in such cases he continues to take the decisions on detention on remand. Secondly, "three-way consultations" (see paragraph 19 above) have been discontinued at most Regional Courts. 25. A proposal for an amendment of the law was sent to Parliament in 1989; the written procedure has not yet been completed. It essentially follows the suggestions of the committee referred to in paragraph 23 above, the gist of which is to remove from the juvenile judge the functions of investigating judge and review chamber. However, the proposal differs from those suggestions in that the juvenile judge is to retain the power to order initial detention on remand. 26. This last feature corresponds to the case-law of the Supreme Court (Hoge Raad), particularly its judgments of 15 March 1988, NJ (Nederlandse Jurisprudentie) 1988, no. 847 and 13 November 1990, NJ 1991, no. 219. In the first-mentioned judgment the Supreme Court construed Article 268 of the Code of Criminal Procedure (see paragraph 20 above) as meaning that an investigating judge who had not carried out any preliminary investigations but had given the order for initial detention on remand was not debarred from sitting at the trial. This was not held to jeopardise his independence. The judgment of 1990 concerned a juvenile judge who sat at the trial pursuant to Article 500e (see paragraph 21 above) after he had instituted a preliminary investigation in the case as investigating judge. The Supreme Court held that as a result one of the judges taking part in the trial lacked impartiality as required by Article 6 (art. 6) of the Convention. According to the Supreme Court, such would always be the case if "one of those judges [had] previously had dealings in the same case aimed at the collection of evidence, either as an investigating judge in the course of the preliminary investigation or in another way during the investigations preparing the case". 27. As far as the preconditions for initial and extended detention on remand are concerned, juvenile criminal procedure does not differ from adult criminal procedure. They are to be found in Articles 67 and 67a of the Code of Criminal Procedure. Article 67 of the Code of Criminal Procedure enumerates the cases in which detention on remand (voorlopige hechtenis) may be ordered; for present purposes, these may be summarised as those cases in which a person is suspected of a relatively serious crime (paragraphs 1 and 2). In addition, paragraph 3 of Article 67 provides as follows: "The preceding paragraphs of this Article shall only be applied if it appears from certain facts or circumstances that there are serious indications (ernstige bezwaren) against the suspect." In this connection, the Memorandum in Reply (Memorie van Antwoord) accompanying a proposal for amendment of the statutory provisions governing detention on remand states that there are such serious indications when in the opinion of the investigating judge "it is prima facie likely (aannemelijk) that the suspect has committed the offence in relation to which detention on remand is applied for". (see Bijlagen Handelingen Tweede Kamer - Appendices to the Records of the Lower Chamber of Parliament -1972-9994-No. 8, page 10) Article 67a enumerates the reasons for which detention on remand may be ordered. These may be summarised as the serious risk of the suspect’s absconding; the fact that the crime, being of a particularly grave nature, has created considerable social unrest; the serious risk that the suspect will commit more crimes of a grave nature and the need to secure evidence. However, paragraph 3 of Article 67a provides: "An order for detention on remand shall not be made if there exists a distinct possibility that in the event of conviction no unconditional prison sentence or measure involving loss of liberty will be imposed on the suspect, or that implementation of the order will cause [the suspect] to be deprived of his liberty for longer than the duration of the sentence or the measure." | 0 |
train | 001-61166 | ENG | AUT | CHAMBER | 2,003 | CASE OF WIDMANN v. AUSTRIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings | Ireneu Cabral Barreto;Mark Villiger | 9. The applicant is living in Mittersill/Austria, where he is a farmer and owner of the Rossweg alp. According to a regulatory deed (Regulierungsurkunde) of 1868 concerning the alp, the owner of this alp is entitled to obtain timber from the Austrian Federal Forestry Administration to the extent necessary for the maintenance of the alp's cabins. 10. On 30 October 1987 the applicant requested the Office of the Salzburg Regional Government as the agricultural authority of first instance (Landesregierung als Agrarbehörde erster Instanz - “the Agricultural Authority”) to grant him the necessary quantity of timber for the maintenance of existing and the edification of new alpine cabins. 11. On 14 July 1988 the Agricultural Authority held a hearing and on 20 June 1989 a forestry expert delivered his opinion. 12. On 4 September 1989 the Agricultural Authority gave its decision, ordering the Federal Forestry Administration to provide the applicant with a certain quantity of timber within four weeks. 13. On 25 September 1989 the applicant appealed against this decision. 14. On 2 February 1990 the Salzburg Regional Land Reform Board (Landesagrarsenat - “the Regional Board”) dismissed the appeal and ordered the Federal Forestry Administration to provide the applicant with a smaller quantity of timber within four weeks. 15. On 27 June 1990 the applicant filed a complaint against this decision with the Administrative Court (Verwaltungsgerichtshof). 16. On 12 October 1993 the Administrative Court quashed the Regional Board's decision. 17. On 28 January 1994 the Regional Board granted the applicant's appeal of 25 September 1989 and referred the case back to the Agricultural Authority. 18. By a decision of 6 June 1994 the Agricultural Authority opened supplementary proceedings with a view to amending the regulatory deed of 1868 concerning the alp. On 25 August 1994 and 25 January 1995 hearings were held. On 12 December 1994 an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins. 19. On 6 February 1995 the Agricultural Authority issued a decision, by which it amended the regulatory deed of 1868 and determined the provision of timber for the owner of the Rossweg alp. The applicant appealed against this decision, claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins. 20. On 23 June 1995 the Regional Board partly granted the appeal and amended the Agricultural Authority's decision. 21. On 17 November 1995 the Regional Board granted the applicant's request for leave to appeal out of time (Wiedereinsetzung in den vorigen Stand) to the Supreme Land Reform Board (Oberster Agrarsenat - “the Supreme Board”) against the Regional Board's decision. 22. On 6 March 1996 the Supreme Board, after having held a hearing, dismissed the applicant's further appeal. It found that the legal instrument of 1868 only conferred a right to obtain timber for the maintenance of cabins, not a right to a fixed annual quantity of timber. 23. On 30 May 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). 24. On 24 September 1996 the Constitutional Court refused to deal with the complaint for lack of sufficient prospects of success and remitted the case to the Administrative Court. 25. On 11 December 1997 the Administrative Court dismissed the applicant's complaint. It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp's cabins, but not to obtain a fixed annual quantity. The decision was served on the applicant's counsel on 28 January 1998. | 1 |
train | 001-79889 | ENG | AUT | CHAMBER | 2,007 | CASE OF MASLOV v. AUSTRIA | 3 | Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic and Convention proceedings | Christos Rozakis | 6. The applicant was born in 1984 and currently lives in Bulgaria. 7. In November 1990 the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents were lawfully employed and have meanwhile acquired Austrian nationality. The applicant attended school in Austria. 8. In late 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal 1,000 Austrian schillings from the latter’s mother, of having beaten this boy and thereby having bruised him, and of having used a motor vehicle without the owner’s authorisation. 9. On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of some 22 counts of partially completed and partially attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), of extortion (Erpressung), of partially completed and partially attempted assault (Körperverletzung), and of the unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) committed between November 1988 and June 1999. He was sentenced to 18 months’ imprisonment, 13 of which were suspended on probation. Moreover, he was instructed to start drug therapy. 10. On 11 February 2000 the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed between June 1999 and January 2000. The applicant and his accomplices were suspected of having broken into shops or restaurants, where they stole cash and goods. On 11 February 2000 the Vienna Juvenile Court remanded him in custody. 11. On 25 May 2000 the Vienna Juvenile Court convicted the applicant of 18 counts of partially completed and partially attempted aggravated burglary and sentenced him to 15 months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, the number of offences committed as well as the rapid relapse into crime after the last conviction as aggravating circumstances. It also observed that the applicant, though still living with his parents had completely elapsed their educational influence, had repeatedly been absent from home, and had dropped out of school. It also noted that the applicant had failed to comply with the instruction to undergo drug withdrawal treatment. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked. 12. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term until 24 May 2002. He did not benefit from early release. 13. Meanwhile, on 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on Section 36 § 1 of the 1997 Aliens Act (Fremdengesetz 1997), imposed a ten years’ residence prohibition on the applicant. Having regard to the applicant’s convictions, it found that his further stay in Austria was contrary to the public interest. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria. 14. The applicant, assisted by counsel, appealed. He submitted that the residence prohibition violated his rights under Article 8 of the Convention as he was a minor who had come to Austria at the age of six, his entire family lived in Austria and he had no relatives in Bulgaria. He also referred to Section 38 § 1 (4) of the 1997 Aliens Act, pursuant to which a residence prohibition may not be issued against an alien who has been lawfully residing in Austria from an early age. 15. By decision of 19 July 2001 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority’s finding. 16. On 17 August 2001 the applicant filed complaints both with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichthof). He stressed that he had come to Austria at the age of six, had attended school in Austria and was not able to speak Bulgarian. He had no relatives and other social contacts in Bulgaria. Moreover, he drew attention to the fact that he was still a minor. 17. On 18 September 2001 the Administrative Court dismissed the complaint and found that the residence prohibition was justified under Article 8 § 2 of the Convention. It considered that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – Section 38 § 1 (4) only excluded a residence prohibition for aliens who had been legally resident from the age of three at the latest. Considering the gravity and the number of offences committed by the applicant, the fact that the first conviction was rapidly followed by a second one and the severity of the penalties imposed, it found that the residence prohibition did not constitute a disproportionate interference with the applicant’s rights under Article 8, despite his lengthy residence and family ties in Austria. 18. On 25 November 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success. 19. On 18 August 2003 the Vienna Federal Police Authority requested the applicant to leave Austria. 20. On 14 October 2003 the Vienna Federal Police Authority ordered the applicant’s detention with a view to his expulsion. He was arrested on 27 November 2003. 21. On 22 December 2003 the applicant was deported to Sofia. | 1 |
train | 001-85202 | ENG | RUS | CHAMBER | 2,008 | CASE OF LEDOVKIN v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1956 and lives in Pskov. 5. He is a Chernobyl pensioner. 6. On 10 February 2003 the Pskov Town Court of the Pskov Region (“the Town Court”) granted his claim against the Welfare Office and recovered arrears in respect of disability and food allowances in the amount of 22,742.64 Russian roubles (RUB) and in the amount of RUB 1,713 respectively. The Town Court held that as of 1 January 2002 the applicant had been entitled to a certain increase in his disability allowance, and that as of 1 July 2002 he had been entitled to yet another increase in disability and food allowances. The Town Court further held that as of 1 February 2003 the applicant was entitled to a monthly disability allowance in the amount of RUB 4,540.52 and to a monthly food allowance in the amount of RUB 544.80. Furthermore, the Town Court held that in future, the monthly disability and food allowances had to be increased in line with the minimum subsistence amount if its index of growth attained an inflation rate of 6%. The judgment acquired legal force on 21 February 2003. 7. According to the Government, the judgment of 10 February 2003 was enforced in full. The final payment under that judgment was made in November 2006. 8. The applicant submitted that the judgment of 10 February 2003 remained without enforcement in the part concerning the payment of a monthly food allowance. | 1 |
train | 001-66590 | ENG | RUS | ADMISSIBILITY | 2,004 | SITOKHOVA v. RUSSIA | 2 | Inadmissible | Christos Rozakis | The applicant is a Russian national, born in 1934 and living in Vladikavkaz. The respondent Government are represented by Mr. P.A. Laptev, representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1990 the applicant was involved in negotiations to buy part of a house from a third party. In 1998 the applicant brought a court action in connection with a contract which had been prepared during the negotiations. On 13 July 1998 the Vladikavkaz District Court granted her claim. The judgment was not challenged and it acquired legal force on 23 July 1998. On 29 January 1999, pursuant to a “protest” (application for supervisory review) by the President of the Supreme Court of North Ossetia-Alania, the Presidium of the Supreme Court of the Republic of North Ossetia-Alania quashed the judgment and remitted the case to the first instance, indicating that the District Court had failed to observe the necessary procedural formalities. The applicant was present on that occasion. On 15 October 1999 the applicant’s claim was dismissed by the District Court. On 8 February 2000 the Supreme Court of the Republic of North Ossetia-Alania upheld the decision given on 15 October 1999. An application for supervisory review was rejected by the Supreme Court of Russia on 11 April 2000. Code of Civil Procedure as in force at the relevant time Article 319 “Judgments, court rulings and decrees which have entered into force, may be reviewed by way of supervision following a “protest” lodged by the persons listed in Article 320 of the Code”. Article 320 “The persons competent to lodge a protest are: the Prosecutor General - against judgments, orders, and decisions of any court; the chairman of the Supreme Court - against resolutions of the Presidium of the Supreme Court as well as against judgments and orders of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance; Deputies of the General Prosecutor - against judgments, orders, and decisions of any court with the exception of the resolutions of the Presidium of the Supreme Court; Deputies of the President of the Supreme Court - against orders and judgments of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance; the chairman of the Supreme Court of an autonomous republic, area, regional, or city court, court of autonomous region, and court of an autonomous district, the Prosecutor of an autonomous republic, area, region city, autonomous region, and autonomous district - against judgements and orders of district (city) people’s courts and orders of Judicial Colleges on Civil Cases of respectively the Supreme Court of an autonomous republic, area, regional, city court, court of an autonomous region, and court of an autonomous district that reviewed the case according to an appellate procedure”. Article 322 “The persons listed in Article 320 are entitled, subject to certain conditions, to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a “protest” by way of a supervisory review”. Article 323 “Officials who are entitled to lodge “protests” in accordance with the supervisory procedure may suspend execution of the judgments, orders, and decisions concerned until the supervisory review proceedings are completed”. Article 329 § 2 “The court which carries out the supervisory review may annul the judgment in whole or in part and remit the case to the first or appeal instance for fresh consideration”. | 0 |
train | 001-81087 | ENG | UKR | ADMISSIBILITY | 2,007 | ZAYARNYY v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Aleksandr Zayarnyy, is a Ukrainian national who was born in 1939 and lives in the city of Donetsk. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Valeriya Lutkovska and Mr Yuriy Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 February 1998 the applicant instituted proceedings in the Kyivskyi District Court of Donetsk (hereinafter “the Kyivskyi Court”) against his neighbours Mrs B. and Mr D. seeking compensation for pecuniary and non-pecuniary damage. The applicant alleged that his flat had been flooded on a number of occasions due to the defendants’ negligence. On 16 September 1998 the Kyivskyi Court found in part for the applicant. On 26 October 1998 the Donetsk Regional Court (hereinafter “the Regional Court”) quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court On 10 February 1999 the Kyivskyi Court found in part for the applicant. On 29 March 1999 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to take into account the instructions contained in its decision of 26 October 1998. On 12 August 1999 the proceedings were resumed before the Kyivskyi Court. Following the applicants request, the court ordered a forensic technical examination in the case. On 16 November 1999 the hearings were resumed. The applicant lodged an additional claim, which he modified on 15 February and 26 May 2000. On 6 September 2000 the Kyivskyi Court found in part for the applicant. On 9 October 2000 the Regional Court quashed the decision of the first instance court and remitted the case for a fresh consideration. The Regional Court held that the first instance court had failed to determine whether Mr D. had been liable for the damage caused to the applicant’s flat, and to examine the grounds of the applicant’s claim for compensation for non-pecuniary damage. On 2 July 2001 the Kyivskyi Court found in part for the applicant. On 22 November 2001 the Donetsk Regional Court of Appeal upheld the decision of the first instance court. On 15 April 2002 the panel of three judges of the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation finding no appearance of any procedural or substantive omissions in the applicant’s case. | 0 |
train | 001-88623 | ENG | GBR | ADMISSIBILITY | 2,008 | CRAIK v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Robert Craik, is a British national who was born in 1949 and lives in County Durham. 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 25 September 1998. In April 2002, the applicant made a claim for widows’ benefits. On 30 April 2002 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 4 September 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-23578 | ENG | CHE | ADMISSIBILITY | 2,003 | SCHÄLCHLI v. SWITZERLAND | 4 | Inadmissible | null | The applicant, Roger Schälchli, is a Swiss national born in 1927. When filing the application he was detained in Saxerriet prison in Switzerland. He is represented by Mr P. Albrecht, a lawyer practising in Zurich. The facts of the case, as submitted by the parties, may be summarised as follows. As from 1972 onwards, the applicant and his wife ran a children’s home in the Canton of St. Gallen. In 1991 three girls were accepted as boarders, i.e. A, born in 1990, and the two sisters B and C, born in 1990 and 1989, respectively. In May 1994, the three girls left the home and were placed in three different foster families. On 20 July 1994 A’s foster parents, Mr and Mrs E., reported to the police that they suspected the applicant of having sexually abused A while she was in the children’s home. On 29 July 1994 a policewoman questioned Mrs E. and, in her presence, A, whereupon a criminal report was filed against the applicant, accusing him of having committed sexual acts with A from 19911994. On 29 August 1994 A underwent a medical examination. The suspicion then arose that B and C had been sexually abused. On 2 September 1994 a policewoman interviewed B and C. On 5 September 1994 a criminal report was filed accusing the applicant of also having sexually abused B and C from 1991-1994. The report noted that the statements of B and C coincided substantially with those of A. The applicant was remanded in custody on 12 September 1994. Based on the medical examination of the victims on 29 August 1994, the Institute of Forensic Medicine of the Canton of St. Gallen, prepared a report on 12 October 1994. On 24 October 1995, the Psychiatric Service for Juveniles (Kinder- und Jugendpsychiatrischer Dienst) of Eastern Switzerland prepared an expert opinion as to the credibility of the statements made by A, B and C during the various interviews. It concluded that A’s previous statements could be confirmed. The statements of B and C as recorded in the minutes most probably reflected what they themselves had experienced. There was no indication of sexual abuse by any other person, and it appeared most unlikely that the children had made up the events themselves. On 31 January 1996 Mrs H. was appointed by the Guardianship Office (Vormundschaftsbehörde) to supervise the fostership of A. On 31 October, Mrs H questioned A alone. A made various statements, pointing out the areas on her body where the applicant had hurt her, and explaining how this had happened. Mrs H. prepared a report on this conversation. She informed the investigating judge first by telephone, later she was questioned by him on 14 November, whereby she was reminded of her duty to tell the truth. On 29 October 1996 the investigating judge interviewed A in the presence of the foster mother. A’s statements, referring to various sexual acts by the applicant, coincided with those previously made by her. The case was referred to trial on 10 July 1997. On 18 May 1998 the Cantonal Court (Kantonsgericht) of the Canton of St. Gallen convicted the applicant of having committed sexual acts with children and sentenced him to six years’ imprisonment. In its judgment the Court analysed in detail the various statements made by A, B and C during the investigations which had not been called into question by the forensic expert opinion of 12 October 1994. They had been regarded as credible by the Psychiatric Service for Juveniles, and the court considered them to be correct. The court found it established that the applicant had abused the children and did not regard it as necessary to comply with the applicant’s request to hear further witnesses, in particular Mrs E., the foster mother. The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Court of Cassation (Kassationsgericht) of the Canton of St. Gallen. Meanwhile, the applicant ordered the preparation of a private expert opinion. The expert opinion, prepared by a psychiatrist and submitted on 13 July 1998, noted deficiencies in the report of the Psychiatric Service for Juveniles of 24 October 1995. The Court of Cassation dismissed the applicant’s plea of nullity on 17 December 1998. In its judgment it rejected various elements of evidence as being belated, including the applicant’s private expert opinion of 13 July 1998. The applicant filed with the Federal Court (Bundesgericht) a plea of nullity and a public law appeal (staatsrechtliche Beschwerde). In the former he complained of the sentence and in the latter of the unfairness of the proceedings. Both applications were dismissed by the Federal Court on 6 May 1999. The judgments were served on the applicant’s lawyer on 19 May 1999. In its judgment concerning the applicant’s public law appeal, the Federal Court considered the issue of questioning victims in the absence of the accused; the court found that “while this had not been raised, it has however been addressed (nicht gerügt, aber angesprochen)”. In the court’s view, in such a case the accused’s defence rights had to be ensured in other ways. In respect of the applicant’s complaint that the questions had been put in a suggestive manner, the Federal Court noted that this particular matter had been the decisive issue before the lower courts and had received ample consideration. Noting the extensive verbatim minutes, the Federal Court considered that the children had explained themselves in many different ways – verbally and non-verbally. These indications militated against the conclusion that the children had been manipulated or that the questioning had followed any insinuating structure. The Federal Court concluded that the Cantonal Court could on tenable grounds and without arbitrariness conclude that the children’s statements had been credible and correct. | 0 |
train | 001-72893 | ENG | UKR | CHAMBER | 2,006 | CASE OF SUKHOVETSKYY v. UKRAINE | 1 | No violation of P1-3;Not necessary to examine under Art. 14+P1-3 | Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych;Zoryana Bortnovska | 7. The applicant was born in 1939 and lives in the village of Agronomichne, Vinnitsa region. 8. On 30 January 2002 the electoral commission of constituency no. 11 refused to register the applicant as a candidate in the parliamentary elections on account of his failure to pay the electoral deposit, the amount of which was sixty times the tax-free monthly income (1,041 Ukrainian hryvnias (UAH)). On 8 February 2002 the Central Electoral Commission upheld this decision, noting, inter alia, that the applicant had submitted all the relevant documents to the local electoral commission, but had failed to pay the electoral deposit as required by the Parliamentary Elections Act of 18 October 2001. 9. The applicant challenged these decisions before the Supreme Court, stating that he was unable to pay the deposit as his annual income (approximately UAH 960) was less than this sum. 10. By a judgment of 15 February 2002, the Supreme Court dismissed the applicant’s complaint. In particular, the court found that the applicant was free to stand as a candidate for parliamentary elections on condition that he pay the electoral deposit. The court also referred to the Ukrainian Constitutional Court’s decision of 30 January 2002 which stated that the deposit requirement complied with the Constitution. 11. The relevant Articles of the Constitution provide as follows: “...There shall be no privileges or restrictions based on ... political ... and other beliefs ..., [or] property status ...” “... A citizen of Ukraine who has attained the age of 21 on the date of elections has the right to vote and, if that citizen has resided in the territory of Ukraine for the previous five years, may become a member of the national parliament ...” 12. Section 8(1) of the Act as worded at the material time established that a Ukrainian citizen who had reached the age of 21 by the date of the elections, had been resident in Ukraine for the last five years before the elections and was entitled to vote was eligible to stand for election to Parliament. 13. Under section 38(2) of the Act, a Ukrainian citizen who was eligible for election to Parliament could put forward his or her own candidature by lodging an application with the competent district electoral commission. 14. Pursuant to section 43(1) and (2), at the material time a party or block of parties, and independent candidates, were required to pay, respectively, an electoral deposit of 15,000 times and 60 times the tax-free monthly income. The deposits were returned to successful candidates and parties (that is, parties which received at least 4% of the national vote) and money deposited by unsuccessful candidates and parties was forfeited. 15. Section 51 provided for State funding of part of the expenses incurred by registered candidates during an electoral campaign. Candidates had equal access to State funding. 16. According to section 52, the competent district electoral commissions were to print 2,000 copies of electoral posters for each registered candidate, the cost being borne by the State budget. 17. Under section 54, State-run local television and radio broadcasting companies were to provide each registered candidate with ten minutes of free air-time to present their programme to the electors. The cost was borne by the State budget. 18. On 1 October 2005 Parliament amended the Act, replacing the mixed proportional/majority electoral system with party-list proportional representation. 19. Proceedings were initiated before the Constitutional Court following a constitutional petition (конституційне подання) by sixty-three members of parliament, who challenged section 43 of the 2001 Act on the ground that it established a property qualification, which discriminated against less successful citizens and was contrary to Article 24 of the Constitution. The Speaker of Parliament and the President of Ukraine submitted observations on the issue. The Speaker upheld the disputed provision in principle, but expressed his concern as to the actual amount of the required deposit. The President indicated that he had vetoed the original bill during its passage through Parliament on the ground that the proposed amount was excessive. According to the President, once the deposit had been substantially lowered, this measure ceased to violate human rights and freedoms. 20. The Constitutional Court held that the electoral deposit was not a direct or indirect limitation of the right to stand for election, since it did not predetermine the citizen’s right to elect or be elected. The deposit was no more than a precondition for the candidate’s registration by the electoral commission. All candidates had to pay the same amount, irrespective of their financial situation, and thus it could not be considered discriminatory on grounds of property. The electoral deposit was intended both to encourage a responsible attitude towards elections on the part of potential candidates and to prevent an abuse of electoral rights. Moreover, it was aimed at preventing excessive or unreasonable expenditure of the State funds allocated to cover candidates’ costs. 21. The Constitutional Court also indicated that establishment of the actual amount of the deposit fell within the discretionary powers of the political authorities and was thus outside its jurisdiction. 22. The electoral commission of the single-member constituency no. 11 registered twenty candidates for the 2002 parliamentary elections (two subsequently withdrew), twelve of whom were independent candidates, including two professors and a doctor who worked in a public hospital. 23. The electoral laws of at least fourteen member States of the Council of Europe require deposits to be made by candidates for election, although in some this condition applies to electoral lists, not individual candidates. Several democratic States outside Europe have also introduced this requirement (see paragraphs 30-33 below). 24. The sum to be paid is calculated in various ways, for example, by multiplying certain amounts predetermined by law (such as the minimum wage in Armenia, the average wage in Lithuania) or by applying a fixed amount (as in Bulgaria). The actual sum for individual candidates currently varies from EUR 92 (Malta) to EUR 2,600 (Bulgaria). 25. Although registered candidates usually receive various forms of support from public funds (free television air-time, postal services, premises for meetings, etc.), this is not always the case. 26. Deposits are normally refunded if the candidate obtains a certain percentage of the votes cast. Only the laws of Ukraine, Turkey and Lithuania provide that the deposit is forfeited if the candidate does not actually win a seat. 27. In the Redmond case (Redmond v. Minister for the Environment [2001] IEHC 128), the plaintiff argued before the Irish High Court that, since he was unemployed and had virtually no financial resources, he was unable to pay the deposit required for national parliamentary elections and European elections (300 and 1,000 Irish pounds respectively). In his judgment (at paragraph 80), Mr Justice Herbert summarised eight reasons which had been put forward to justify a deposit system or some equivalent filter: “1. Excessively ... large numbers of citizens offering themselves for election to membership of Dáil Eireann would undermine the democratic nature of the State. 2. The presence of a large number of names on a ballot paper would serve to confuse the electorate. 3. Voters would be likely to make a choice before reading a long list of candidates to the end and this would not serve democracy. 4. The more unsuccessful candidates there are in an election the more difficult it is to achieve proportional representation so that a major ... increase in the number of candidates would serve to undermine the proportional representation single transferable vote system of election mandated by Article 16, section 2, subsection (5) of the Constitution. 5. The greater the number of unsuccessful candidates the more difficult it becomes for voters to predict the outcome of the election so that their ability to properly manage their vote is lost or impaired. 6. The counting of votes would take longer as the numbers of candidates increased and with more candidates there was a greater scope for more and longer recounts. 7. With many candidates seeking to persuade the electorate within the maximum period of 30 days allowed by Article 16, section 3, subsection (2) of the Constitution, election campaigns would become disruptive and the electorate could become confused or apathetic. 8. The process of nomination, delivering nominations, and ruling on the validity of nominations would become overwhelmed if large numbers of candidates were to stand for election.” 28. Mr Justice Herbert went on to hold that the deposit system discriminated against persons of reduced means and was thus an attack on their human dignity. Having considered the justifications above, he nevertheless concluded that there was no real evidence that abolishing the deposit system would cause such serious disruption, as those arguments were based on surmise. In conclusion, he ruled that, in the absence of some alternative route to the ballot paper, the deposit system was unjust, unreasonable and arbitrary. 29. The following year, the deposit system was replaced by a nomination and signatures system. 30. In Figueroa v. Canada (Attorney-General), the plaintiff, leader of the Communist Party of Canada, challenged various aspects of Canadian electoral law on the ground that they allegedly discriminated against small, unrepresented parties such as his. 31. In the Ontario Court of Justice, Justice Molloy invalidated the existing deposit rule, according to which the 1,000 Canadian dollars (CAD) required from election candidates was only refunded in full to those who obtained more than 10% of the votes cast. Those who obtained less received only CAD 500 of the original deposit. The judge found this to be in violation of section 3 of the Charter of Rights and Freedoms (active and passive voting rights), and recommended the full reimbursement of the deposit irrespective of the candidate’s score. 32. Before the Ontario Court of Appeal, Justice Doherty did not accept the lower court’s equation of fairness with strict equality of treatment in the matter of electoral law. He held that the essential purpose of section 3 of the Charter was to guarantee the right to effective representation, rather than ensuring absolute parity. Equal treatment was an important consideration, but not the only one. 33. In the third periodic report of Mauritius, the Mauritian delegation stated: “With reference to the recent case in which a political organisation had contested the amount by which electoral deposits had been raised, the Supreme Court had decided that the size of the increase would prevent people from standing for election and was therefore unconstitutional. The Government had originally amended the law to stop people from standing for frivolous reasons and obtaining large amounts of air-time in exchange for a very modest deposit. In the wake of the Supreme Court ruling, electoral deposits had reverted to the previous amount of 250 rupees.” 34. A political debate concerning the electoral deposit is currently under way in the United Kingdom. 35. The deposit was first introduced in 1918 in the Representation of the People Act, and fixed at 150 pounds sterling (GBP). The refund threshold was one-eighth of the votes cast. The Representation of the People Act 1985 reduced the threshold to 5%, but increased the deposit to GBP 500. 36. In 2003 the Electoral Commission, concerned by growing political absenteeism in the United Kingdom, published a report entitled “Voting for change”, in which, inter alia, it advocated the abolition of the deposit system. The Commission considered that this requirement clearly disadvantaged small parties and independent candidates (for example, the Green Party lost all of its deposits in the 1992 and 1997 parliamentary elections). 37. The government did not support this proposal, considering that the elimination of the deposit would allow anyone to stand for election and gain access, for instance, to free leafleting, without any proper safeguards or deterrent. This could lead to a proliferation of candidates causing administrative complexity and frivolous candidatures. Instead it proposed to simplify the system of deposits (keeping the deposit for parliamentary elections at GBP 500) and to reduce the refund threshold to 2% of votes cast. In 2005 a bill to this effect was put before Parliament (SN/SG/3779). 38. The relevant part of the Code of Good Practice in Electoral Matters provides: “Principle I.1.3. Submission of candidatures ... vi. If a deposit is required, it must be refundable should the candidate or party exceed a certain score; the sum and the score requested should not be excessive.” 39. The Venice Commission has offered expert evaluations of the electoral laws of many Council of Europe member States. The issue of electoral deposits was one of the Commission’s concerns when assessing the draft amendments to the Armenian Electoral Code. The draft joint opinion of the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe (the OSCE/ODIHR) stated: “20. The draft amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination and raise the amounts of electoral deposits. This is acceptable in principle. However, the draft (amendments to Articles 71(1), 101(1)(1) and 108(2)), would raise the electoral deposits significantly (in case of presidential elections, from 5,000 to 8,000 [times the minimum salary]; in case of proportional elections, from 2,500 to 4,000 and in case of majority elections from 100 to 150 times the minimum salary). It is recommended that these increased deposit amounts be reconsidered, as it is not apparent that the existing deposit amounts are insufficient to deter frivolous candidates. An unreasonably high electoral deposit also presents a problem under international and European standards. It is an established principle that wrongful discrimination includes discrimination against a person on the basis of social or property status. Thus, the amount of an electoral deposit must be considered carefully to ensure that it does not prevent the candidacy of a serious candidate who happens to be economically disadvantaged.” 40. However, as the Armenian authorities followed the Commission’s recommendations, electoral deposits ceased to be a matter of concern for international experts. The Final Opinion on the Amendments to the Electoral Code of the Republic of Armenia contained the following passage: “17. The amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination. This is acceptable in principle. Contrary to the various previous drafts, the deposits are not raised in the amended Code (Articles 71(1), 101(1)(1) and 108(2)), and remain the same as in previous elections, e.g. in case of presidential elections, at 5,000; in case of proportional elections, at 2,500; and in case of majority elections at 100 times the minimum salary. This corresponds to the previous Venice Commission and OSCE/ODIHR recommendations. Absent evidence of high numbers of potential frivolous candidates, such deposits seem reasonable.” 41. In General Comment no. 25(57), adopted by the United Nations Human Rights Committee under Article 40 § 4 of the International Covenant on Civil and Political Rights, dated 12 July 1996, the Committee referred briefly to the issue of election fees or deposits in the following terms: “16. ... Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory.” 42. In its Concluding Observations on the report of the United States of America, the Committee commented on the broader (but related) issue of the substantial financial investment required of election candidates in the United States: “289. The Committee welcomes the significant efforts made in ensuring to everyone the right to vote but is concerned at the considerable financial costs that adversely affect the right of persons to be candidates at elections.” | 0 |
train | 001-99107 | ENG | POL | ADMISSIBILITY | 2,010 | KALINOWSKI v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Piotr Kalinowski, is a Polish national who was born in 1978 and lives in Chełm. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 April 2001 the applicant was arrested on suspicion of battery. On 12 April 2001 the Chełm District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings. An appeal by the applicant against the detention order, and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful. In his applications and appeals, he invoked his difficult family situation, in particular the fact that he had a very young child to take care of. On 29 June 2001 the prosecution filed a bill of indictment with the Lublin Regional Court (Sąd Okręgowy). The applicant was charged with aggravated battery. During the court proceedings the courts further extended the applicant's detention pending trial on several occasions, namely on 15 May 2002 (to 30 June 2002), on an unspecified subsequent date, 26 March 2003 (to 26 June 2003), 18 June 2003 (to 26 September 2003), 17 September 2003 (to 26 March 2004), 15 March 2004 (to 6 May 2004), 21 April 2004 (to 30 June 2004), 2 June 2004 (to 16 August 2004), 10 August 2004 (to 10 November 2004), 26 October 2004 (to 26 April 2005), on an unspecified subsequent date, 26 July 2005 (to 20 October 2005), on an unspecified subsequent date, 20 June 2006 (to 22 November 2006), on an unspecified subsequent date and 14 March 2007 (to 14 September 2007). The courts repeated the grounds previously given for the applicant's continued detention. They emphasised the likelihood of a severe sentence of imprisonment being imposed on the applicant, the risk that he would obstruct the proceedings and the fact that he was a recidivist offender. On 26 March 2003 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 4 December 2003 the Lublin Court of Appeal (Sąd Apelacyjny) quashed the impugned judgment and remitted the case. On 26 October 2004 the Lublin Regional Court again convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 17 May 2005 the Lublin Court of Appeal quashed the impugned judgment and remitted the case. On 22 December 2005 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 20 June 2006 the Lublin Court of Appeal quashed the impugned judgment and remitted the case. On 14 March 2007 the Lublin Regional Court convicted the applicant and sentenced him to 15 years' imprisonment. The applicant appealed. On 18 October 2007 the Lublin Court of Appeal upheld the impugned judgment. On 28 December 2007 the applicant's legal-aid counsel informed him that she had found no grounds for lodging a cassation appeal. Between 18 July 2001 and 7 January 2003 and between 6 March 2003 and 23 November 2005 the applicant was serving a prison sentence imposed on him in other sets of criminal proceedings. The relevant domestic law and practice concerning the imposition of pretrial detention (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing others “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006). | 0 |
train | 001-70243 | ENG | RUS | CHAMBER | 2,005 | CASE OF BUTSEV v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1951 and lives in the town of Shakhty, the Rostov Region. 5. In 1987 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 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. 6. On an unspecified date the applicant sued a local pension authority (Управление социальной защиты г. Шахты, “the authority”) for allegedly erroneous calculation of his monthly compensation and demanded arrears and damages. 7. By judgment of 21 May 1999 the Shakhy Town Court of the Rostov Region granted the applicant’s claim and ordered the authority to recalculate his monthly compensation for the period between 14 May 1996 and 31 May 1999, to pay the applicant the arrears of RUR 134,442.46 in this respect and monthly compensation of RUR 4,547.75 with further indexation until any subsequent changes of legislation. 8. The judgment of 21 May 1999 was not appealed against by the parties and came into force ten days later, on 31 May 1999. 9. Some time thereafter the authority applied to the Town Court requesting to re-open the applicant’s case by reference to newly discovered evidence, such as his pay statements for twelve months preceding the disabling incident. 10. On 10 July 2000 the Town Court granted the application and re-opened the proceedings. 11. It appears that the defendant authority and the Town Court failed properly to notify the applicant of the re-opening proceedings and the decision of 10 July 2000. 12. The applicant challenged the decision of 10 July 2000 by way of supervisory review by reference to this failure. His appeal also stated that the piece of evidence referred to by the authority could not be considered as newly discovered since it had been fully available to the Town Court during the first instance proceedings. 13. On 9 November 2000 the Rostov Regional Court acting as a supervisory review instance set aside the decision of 10 July 2000. The court upheld the applicant’s arguments in full and by the same decision dismissed the authority’s arguments as unfounded. 14. On 29 January 2001 the writ of execution in respect of the judgment of 21 May 1999 reached the baillifs and on 31 January 2001 they opened the enforcement proceedings in this connection. 15. According to the Government, the authority complied with the judgment by five bank transfers, dated 29 March, 24 April, 30 May, 27 and 28 June 2002 respectively. As of 1 July 2002 the applicant has been in receipt of the monthly compensation of RUR 7,627.49, with no debts outstanding. 16. According to the applicant, to date the judgment of 21 May 1999 has not been enforced in part relating to indexation of his monthly compensation until any subsequent changes in the legislation. | 1 |
train | 001-60750 | ENG | CZE | CHAMBER | 2,002 | CASE OF BĚLEŠ AND OTHERS v. THE CZECH REPUBLIC | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award;Non-pecuniary damage - finding of violation sufficient | Gaukur Jörundsson | 11. On 20 January 1997 eleven members of the Homeopathic Association, including the applicants, brought an action against the Medical Society under section 15 of the Citizens' Associations Act (Law no. 83/1990) and Article 80 (c) of the Code of Civil Procedure. They sought declarations that the amendment of 20 November 1996 to the internal rules and, consequently, the decision to expel their association were nullities (neplatnost) and that the Homeopathic Association remained a member of the Medical Society. They maintained that the Medical Society's decision had damaged the reputation of the Homeopathic Association and had caused patients to become wary of doctors practising homeopathy (a fact which they submitted gave them a relevant interest for the purposes of Article 80 (c) of the Code of Civil Procedure). They said that the decision had been arbitrary, unlawful and subjective, as it had been taken without the benefit of expert professional or scientific advice and was liable to cause unjustified discrimination against certain healing methods. 12. In a judgment of 2 October 1997, Prague 2 Municipal Court (obvodní soud) dismissed the applicants' action without examining the merits, holding: “The Court finds that [the applicants] are not entitled [in their action for a declaration of nullity under Article 80 (c) of the Code of Civil Procedure] ... to an order negating the alleged illegality of the resolution adopted by the organ of the society or any inconsistency with the internal rules [of the Medical Society]. [Section 15(1) of Law no. 83/1990] only gives the court power to review an impugned decision, not to vary or uphold it. The review procedure is now set out in Chapters I and II of Part Five of the Code of Civil Procedure, which defines jurisdiction in administrative appeals on points of law and requires the review [of a decision] within the meaning of section 15 to be interpreted by analogy. Support for that view is also to be found in other provisions of Law no. 83/1990, which confer on the district court certain powers with respect to associations formed under that Act (see sections 11(2) and 13(3), it being understood that section 12(4) refers to the provisions of the Code of Civil Procedure governing the review of decisions by other authorities).” 13. On 19 December 1997 the applicants appealed against that judgment, arguing in particular that section 15 of Law no. 83/1990 did not specify under which provisions of the Code of Civil Procedure they should have brought their action and that, since the Medical Society was not an administrative authority, Part Five of the Code of Civil Procedure, which only applied to the judicial review of decisions of the administrative authorities, could not be applicable in their case. They further submitted that having found that it had no jurisdiction to decide the case on the basis of the pleaded provision, the court should have declined jurisdiction, not dismissed their claim. They were not required by the provisions of the Code of Civil Procedure governing the conditions of form applicable to actions to bring their claims under specific statutory provisions or to specify the procedure the court should follow, as the court was required first and foremost to consider the substance of their claim. 14. In a judgment of 16 April 1998, the Prague City Court (městský soud) upheld the Municipal Court's judgment. It found that the applicants should have brought an action for a review of the impugned resolutions. Had they done so, the Municipal Court would have decided the case in accordance with Article 250j § 1 of the Code of Civil Procedure, either dismissing the action if it considered that the resolutions were lawful or quashing the resolutions on one of the grounds set out in section 15(2), if that was appropriate. The City Court also dismissed an application by the applicants for leave to appeal on points of law (dovolání) against its decision. 15. On 29 January 1998 the applicants lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud). They filed a supplemental pleading on 9 July 1998. They submitted that, by an erroneous construction of section 15 of Law no. 83/1990, the Prague 2 City Court had restricted, and even deprived them of, their right to the protection of the courts, as guaranteed by Article 36 of the Charter on Fundamental Rights and Freedoms (Listina základních práv a svobod). They complained that the City Court had failed to respond to their arguments that Part Five of the Code of Civil Procedure was inapplicable in their case. They further submitted that the impugned decisions of the Medical Society had infringed their right to freedom of choice of their profession for the purposes of Article 26 of the charter and Article 8 of the Convention, to scientific freedom, as guaranteed by Article 25 of the charter, and to freedom of association, as guaranteed by Article 20 of the charter and Article 11 of the Convention. They added that the domestic courts' failure to examine the merits of their action meant that the alleged violations were continuing. 16. On 12 August 1998 the Constitutional Court declared the applicants' appeal inadmissible for failure to exhaust statutory remedies by appealing on points of law. It referred to Article 239 § 2 of the Code of Civil Procedure. 17. Article 10 of the Constitution of the Czech Republic (as worded at the material time) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on the Czech Republic had immediate mandatory effect and prevailed over statute. 18. Article 96 § 1 of the Constitution laid down that all parties to proceedings had equal rights before the courts. 19. Article 36 § 1 of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court, or in specified cases, another authority. 20. Article 38 § 1 of the Charter provides that no one may be denied access to the judge with statutory jurisdiction to hear his or her case. The jurisdiction of the courts and judges shall be determined by statute. 21. Section 15(1) provides that if a member of an association considers that an unappealable decision of an organ of the association is unlawful or contrary to the rules of the association, he or she may, within thirty days after becoming aware thereof, but in any event no later than six months after the decision was taken, seek judicial review of the decision by a district court (okresní soud). 22. Section 15(2) provides that applications for judicial review have no suspensive effect. Nevertheless, the court may stay implementation of the impugned decision if appropriate. 23. Article 5 imposed a duty on the courts to inform the parties of their procedural rights and obligations. 24. Article 42 § 4, which set out the requirements regarding the form of legal actions, laid down, inter alia, that applications had to be dated and had to state the name of the applicants and the case, and the purpose of the application and the court to which it was made. In addition to those general requirements, Article 79 § 1 required the names, occupations and addresses of the parties (and the names and head offices of legal entities) and, if applicable, of their representatives, to be stated in the application, followed by a description of the relevant facts, the evidence relied on by the applicants and the relief sought. 25. Article 43 § 1 empowered the president of the division to invite applicants to correct or supplement an application that did not comply with the formal requirements, or was imprecise or incomprehensible. In such cases, the president was also required to inform the applicants of the procedure to be followed and to grant them time in which to remedy the defects in the application. 26. Under Article 80 (c) of the Code of Civil Procedure, a court hearing a civil action had power to determine whether or not a legal relationship or right existed, provided that an imminent legal interest (naléhavý právní zájem) had been shown. 27. Part Four of the Code of Civil Procedure concerned appeals and applications for judicial review: ordinary appeals, applications for proceedings to be reopened and appeals on points of law. Article 236 § 1 laid down that an appeal on points of law (dovolání) lay solely against immediately enforceable appeal court decisions (rozhodnutí), and then only if the statutory conditions were satisfied. 28. Article 239 § 1 provided that an appeal court that had upheld a decision of the court below must grant leave to appeal on points of law if it considered that its decision gave rise to a question of crucial legal importance justifying such leave (rozhodnutí po právní stránce zásadního významu). It could grant such leave on its own initiative. 29. Article 239 § 2 provided that if an appeal court refused to grant an application for leave to appeal on points of law that had been made by one of the parties before the decision upholding the decision at first instance was adopted, leave to appeal could only be obtained if the Supreme Court itself considered that the appeal court's decision gave rise to a question of crucial legal importance. 30. Part Five of the Code of Civil Procedure concerned jurisdiction in administrative proceedings. Article 244 laid down that, as part of their administrative-law jurisdiction, the courts must, on application or appeal, review the lawfulness of decisions of the administrative authorities. 31. Section 43(1)(e) lays down that, save as otherwise provided in the Act, the judge rapporteur shall dismiss a constitutional appeal without holding a hearing or requiring the parties to attend if, inter alia, it is inadmissible (nepřípustný). 32. Section 72(1) provides that anyone claiming to be a victim of a violation by a “public authority” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of Article 10 of the Constitution shall have standing to bring a constitutional appeal. Under section 72(2), constitutional appeals must be lodged within sixty days after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights. 33. Section 75(1) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies, other than an application to reopen proceedings. Section 75(2)(a) gives the Constitutional Court a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant's own interests and the appeal was lodged within one year after the impugned decision or event. 34. In its decision no. IV ÚS 93/98 of 28 April 1998, the Constitutional Court declared a constitutional appeal inadmissible for failure to exhaust statutory remedies (see section 75(1) of the Constitutional Court Act – Law no. 182/1993) on the ground that an appellant whose case in a constitutional appeal was identical in substance to that he had pleaded in the ordinary courts and had been planning to plead in the Supreme Court was at risk of not satisfying the exhaustion of remedies rule if he failed to exercise his right to lodge an appeal on points of law under Article 239 § 2 of the Code of Civil Procedure. 35. In its decision no. III ÚS 53/98 of 8 September 1998, the Constitutional Court found, inter alia, that, even though the applicants had been refused leave to appeal on points of law by the appeal court, they were still entitled to seek leave under Article 239 § 2 of the Code of Civil Procedure, as they satisfied the necessary conditions. Since they had not made use of that available remedy, their constitutional appeal could not be declared admissible. 36. In its decision no. II ÚS 113/97 of 8 October 1998, the Constitutional Court held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to the Supreme Court under Article 239 § 2 of the Code of Civil Procedure. Unless he does so, he will not have exhausted the statutory remedies provided to protect his rights. 37. In its reasoning in decision no. III ÚS 224/98 of 8 July 1999, the Constitutional Court stated, inter alia, that if a party to the proceedings is refused leave by the appeal court to appeal on points of law, he must apply to the Supreme Court for leave under Article 239 § 2 of the Code of Civil Procedure, otherwise his constitutional appeal will be inadmissible. 38. In its decision no. III ÚS 148/99 of 15 September 1999, the Constitutional Court declared a constitutional appeal inadmissible on the ground that if a party's application to the appeal court for leave to appeal on points of law was dismissed, he would still be regarded as having failed to exhaust statutory remedies unless he applied to the Supreme Court for leave, despite the fact that it was his application to the appeal court that had made the application to the Supreme Court necessary. 39. In its decision no. I ÚS 22/93 of 5 January 1995, the Constitutional Court considered, inter alia, the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time-limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law. The Constitutional Court held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted, he must lodge a constitutional appeal at the same time, in order to ensure that it is brought within the statutory time-limit. 40. In its decision no. I ÚS 213/96 of 26 November 1996, the Constitutional Court said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted, then in order to avoid being out of time with his constitutional appeal, he should lodge his constitutional appeal at the same time, without waiting for the decision on the application for leave, since, if leave was refused, the final decision in his case would be the appeal court decision. 41. Furthermore, applications nos. 73577/01 and 73403/01 (Vodárenská Akciová Společnost, A.S. v. the Czech Republic and Turek v. the Czech Republic, respectively), which have been lodged with the Court and communicated to the respondent Government, show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical. In these cases, the applicants lodged both forms of appeal at the same time, but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies, as appeals to the Supreme Court were still pending. They subsequently lodged fresh appeals with the Constitutional Court, once the Supreme Court had refused them leave to appeal. However, their constitutional appeals were again declared inadmissible, this time on the ground that they were out of time. | 1 |
train | 001-113492 | ENG | ROU | ADMISSIBILITY | 2,012 | CÎRDEI v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Filaret Cîrdei, is a Romanian national who was born in 1931 and lives in Milişăuţi, Romania. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, from the Ministry of Foreign Affairs. 4. On 23 January 1997 C.N. brought proceedings against the applicant seeking to recover his property consisting of 2,600 sq. m of land which the applicant had occupied. 5. By a final judgment of 26 November 2002 the Suceava Court of Appeal allowed C.N.’s action in part and ordered the applicant to vacate 1,300 sq. m of C.N.’s land. 6. On 26 March 2003 a bailiff enforced the judgment of 26 November 2002 and C.N. was given possession of the land. 7. On an unspecified date C.N. brought criminal proceedings against the applicant for contempt of court in relation to the court judgment of 26 November 2002, on the basis of the fact that the applicant continued to plant crops on the 1,300 sq. m of land. 8. By a final judgment of 5 February 2004 the Rădăuţi District Court convicted the applicant of contempt of court and sentenced him to a suspended sentence of six months’ imprisonment. The court again ordered the applicant to vacate the 1,300 sq. m of C.N.’s land. 9. On 7 April 2005 a bailiff enforced the judgment of 5 February 2004 and restored C.N.’s possession of the land. 10. On an unspecified date in 2005 C.N. brought a second set of criminal proceedings against the applicant for contempt of court in relation to the court judgment of 5 February 2004, as the applicant was continuing to plant crops on the 1,300 sq. m of land. 11. By a final judgment of 18 October 2006 the Suceava Court of Appeal convicted the applicant of contempt of court and imposed on him a criminal fine of 1,000 lei (RON) (approximately 284 euros (EUR)). It also cancelled the suspension of the sixmonth prison sentence the applicant had received on 5 February 2004 and ordered the applicant’s imprisonment for six months. Moreover, it awarded C.N. RON 1,284 (approximately EUR 363) in respect of civil damages. As regards the applicant’s claim that he had not been assisted by a lawyer during the criminal investigation and before the firstinstance court, the court held that although the applicant had been informed of his right to legal assistance as provided for by the applicable rules of criminal procedure, he had waived his right to a lawyer, stating that he would employ the services of a lawyer for the trial if he needed to. Moreover, the court held that in a case such as that involving the applicant, the domestic law did not require the mandatory appointment of a lawyer by the court. 12. It does not appear from the evidence in the file that the applicant asked for a courtappointed lawyer, or that he asked to be allowed to retain a lawyer of his own choice, either during the criminal investigation or before the first-instance court. 13. Between 21 February 2005 and 3 October 2006 the applicant was hospitalised in several hospitals, including the Rădăuţi and Suceava County Hospitals, where he was diagnosed and treated for hypertension and serious heartrelated conditions. He was recommended to rest and was prescribed antibiotics, aspirin and anticoagulants. 14. On 19 October 2006 the Rădăuţi District Court ordered the applicant’s detention following the sentence imposed by the Suceava Court of Appeal on 18 October 2006. 15. On 25 October 2006 the applicant was detained and taken to Suceava police station. He was 75 years old at the time. 16. On 2 November 2006 the applicant was transferred to Botoşani Prison. 17. On 3 November 2006 the applicant informed the prison guards that he felt ill, and he was taken to the Botoşani Prison doctor. The said doctor prescribed him some medication, which was brought to his cell every morning and evening. 18. On 10 November 2006 he was transferred back into the custody of the Suceava police because he had been summoned to appear before the domestic courts in respect of criminal proceedings opened against him for destruction of property. Because of his worsening medical condition, he asked to be taken to a doctor, but his request was allegedly refused. On 17 November 2006 he was transferred back to Botoşani Prison, where he was placed in a cell with five other inmates. On an unspecified date one of the detainees started recounting stories of alleged rape incidents that had taken place in the prison, which scared the applicant and caused him to feel unwell. He was taken to the Botoşani Prison doctor and was provided with treatment for his condition. However, his state of health did not improve. 19. On 2 December 2006 the applicant suffered a heart attack and was transferred to the Botoşani County Hospital, allegedly in the back of a car with a plank of wood for a seat. At the hospital he was given an injection and some medication, and was kept under observation for two days. 20. As his medical condition did not improve, the doctor at the Botoşani County Hospital recommended that the applicant be transferred to Bucharest. 21. On 4 December 2006 he was transferred to Bucharest by car, travelling for eleven hours over a distance of 500 km (from 10 a.m. to 9 p.m.). He was taken to the Jilava Prison Hospital, where he was left to wait in the car for half an hour. On the same date he was transferred to the C.C. Iliescu Cardiology Hospital in Bucharest because he could not be treated in Jilava. The applicant further claims that before leaving Jilava he lost consciousness. 22. On 5 December 2006 the applicant’s diagnosis of acute myocardial infarction was confirmed and he underwent heart bypass surgery and was fitted with a pacemaker. 23. On 11 December 2006 the applicant was discharged from the C.C. Iliescu Cardiology Hospital and transferred back to the Jilava Prison Hospital. 24. Following his release from prison on 20 December 2006, the applicant was allegedly taken to hospital several times for urgent medical attention as a result of his slow recovery from the myocardial infarction and the subsequent surgery. He submitted four medical letters issued between February 2007 and 19 May 2008 concerning his medical condition. The letters were issued by the private practices of doctors B.L. and G.I., a cardiologist and a respiratory specialist respectively. The letters confirmed the applicant’s post-surgical diagnosis and prescribed medication. None of the letters contain any information indicating that urgent medical treatment or hospitalisation was required by the applicant. 25. In a letter of 1 April 2009 (received by the Court on 6 April 2009) the applicant informed the Court for the first time that because of a lack of funds, the Jilava Prison Hospital could not provide him with Plavix, a medicine that he needed to take on a daily basis to help with the assimilation of his pacemaker and to prevent future heart attacks. He further stated that he had been asked to buy the drug himself. 26. On 27 October 2006 the applicant was examined in detention by a doctor. According to the entry on his medical chart for that day he was diagnosed with heart problems, inter alia. Moreover, on 3 and 22 November 2006 the applicant was examined by the Botoşani Prison doctor and was prescribed medicines for his condition, including aspirin, antibiotics, simvastatine and anticoagulants. 27. On 10 November 2006 the domestic authorities approved the applicant’s request for a doctor’s visit in order to obtain a prescription for medicines. 28. On 26 November 2006 the applicant underwent a medical examination in the Botoşani County Hospital. The medical note issued on the same date recorded that he had been provided with treatment for his condition and that he had been administered nitroglycerin. He was also recommended to rest. 29. On 4 December 2006 the applicant was discharged from the Botoşani County Hospital. His discharge papers issued on the same day stated that he had been hospitalised for acute myocardial infarction, and recorded that he had been provided with medical treatment for his condition. The discharge papers also stated that the applicant’s condition was stable, and recommended his transfer to the Jilava Prison Hospital because the applicant’s condition required him to be fitted with a pacemaker, a medical procedure that could not be performed in the region. 30. According to the information submitted by the Government, also supported by documents, the applicant was transferred from the Botoşani County Hospital to the Jilava Prison Hospital by ambulance on 4 December 2006. The ambulance left the Botoşani County Hospital at 12.20 p.m. and arrived at the Jilava Prison Hospital at 5.50 p.m. Because the Jilava Prison Hospital lacked the equipment required for the applicant’s treatment, at 7 p.m. on the same day he was transferred to the C.C. Iliescu Cardiology Hospital, where he arrived at 7.30 p.m. For the entire duration of his journey the applicant was accompanied by doctor L.M., a specialist in internal medicine, and by nurse L. He was transported on a stretcher, his condition was monitored and he was provided with oxygen and medication. He remained conscious and his condition was stable. 31. On 11 December 2006 he was transferred to the Jilava Prison Hospital from the C.C. Iliescu Cardiology Hospital in Bucharest for monitoring and treatment. According to his discharge papers from the C.C. Iliescu Cardiology Hospital he had undergone heart surgery and angioplasty with stent placement, and was diagnosed with, inter alia, recent acute coronary syndrome, second- and thirddegree atriumventricular block (type one, reversible), a high risk of severe arterial hypertension, class 3 cardio insufficiency, prostate adenoma, and acute kidney failure. He was recommended to rest and to follow a lowsodium diet. Moreover, he was prescribed several medicines, including one capsule of Plavix per day for nine months, which was available free of charge for patients in his condition. 32. During his hospitalisation in the Jilava Prison Hospital he was provided with the required medical treatment for his condition as prescribed by the C.C. Iliescu Cardiology Hospital, including the medicine Clopidogrel (Plavix), and his condition had improved by the time he was discharged from the Jilava Prison Hospital on 20 December 2006. 33. Lastly, the applicant did not lodge any complaints in respect of the alleged inadequacy of the medical treatment received or of the transport conditions during his detention. 34. On 30 October 2006 the applicant retained the services of a lawyer and authorised him to bring proceedings before the domestic courts seeking his release from his custodial sentence on health grounds. 35. On 1 November 2006 the applicant brought proceedings before the Suceava District Court seeking his release on account of his age and medical condition. 36. On 3 November 2006 the applicant requested the court to bring forward the first hearing of his case scheduled from 6 December 2006, on account of his medical condition. 37. By an interlocutory judgment of 6 November 2006, the Suceava District Court allowed the applicant’s action and scheduled the first hearing of his case for 13 November 2006. 38. On 13 November 2006 the Suceava District Court raised of its own motion an objection in respect of its territorial jurisdiction, and declared the Rădăuţi District Court competent to deal with the applicant’s request for release on health grounds. It held that according to the applicable rules of criminal procedure only the firstinstance court which had sentenced the applicant, or the court having territorial jurisdiction over the place where the applicant was serving his prison sentence, could validly hear his application. And in the applicant’s case that was the Rădăuţi District Court that was competent on both counts. 39. On 7 December 2006 the applicant’s action seeking release on health grounds was lodged before the Rădăuţi District Court. 40. At a hearing on 12 December 2006, the Rădăuţi District Court ordered the Suceava Forensic Institute to produce an expert forensic report that would establish whether the applicant’s medical condition could be treated in a prison hospital. 41. By a final judgment of 19 December 2006, the Rădăuţi District Court allowed the applicant’s action and ordered the discontinuation of the applicant’s sentence pending his recovery. It held that according to the expert forensic report produced by the Suceava Forensic Institute on 13 December 2006, his condition following surgery would require three months’ specialist medical care and a special diet which could not be provided by a prison hospital. 42. On 20 December 2006 the applicant was released from prison. 43. On 1 March 2007, following media coverage, the applicant received a Presidential pardon in respect of the remainder of his prison sentence. 44. The relevant provisions of Law no. 275/2006 on the Serving of Prison Sentences, in force at the time of the events in the instant case, as well as those of the Romanian Code of Criminal Procedure concerning suspension of prison sentences (Articles 453 and 455), are described in Aharon Schwarz v. Romania, no. 28304/02, §§ 66-67, 12 January 2010. | 0 |
train | 001-68711 | ENG | UKR | CHAMBER | 2,005 | CASE OF AFANASYEV v. UKRAINE | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 8. The applicant was born in 1964 and lives in the city of Kharkiv, Ukraine. 9. On 1 March 2000 the applicant was arrested on suspicion of crimes of swindling and taken to the Kyivsky District Police Station (Київський районний відділ міліції міста Харкова). 10. According to the applicant, he was handcuffed in the police station and police officers demanded that he confess. When he refused to do so, he was severely beaten several times. After each beating he was told that if he did not confess he would be subjected to further beatings. During the last beating one of the police officers, G., hit the applicant on the left ear, causing swelling and partial deafness. After the beatings, the police officers warned the applicant to “think it over” during the night, otherwise he would be beaten again the next day. 11. The applicant maintained that he had had many scratches and bruises on his body. On 2 March 2000, when the police officers wanted to transfer him to a temporary detention centre (ізолятор тимчасового утримання), the centre refused to admit him on account of his numerous injuries. 12. On 3 March 2000 the applicant was escorted to hospital where he was examined. 13. The same day the applicant was transferred to a temporary detention centre. 14. On 4 March 2000 the applicant was charged, but released on bail on condition that he did not abscond, by a decision of the Kyivsky District Prosecutor. 15. From 7 March to 5 April 2000 the applicant underwent medical examinations at the forensic medical examination department (відділ судово-медичної експертизи). The forensic expert recorded various injuries to the applicant’s body. The injuries included a damaged left ear, and bruises on the trunk, face, left arm and left leg (qualified as minor injuries by the Government). The expert also indicated the approximate dates on which the applicant had sustained these injuries, some 5 to 7 days before 7 March 2000. Those dates coincided with the applicant’s detention in the Kyivsky District Police Station. 16. On 13 April 2000 the applicant requested the Kharkiv Regional Prosecutor to institute criminal proceedings against the police officers for torture. The request was transferred to the Kyivsky District Prosecutor’s Office for consideration. 17. On 24 April and 18 May 2000, the applicant requested the Kyivsky District Prosecutor’s Office to inform him about the outcome of his complaint. 18. On 24 April 2000, the deputy prosecutor of the Kyiv District of Kharkiv issued a decree refusing to institute criminal proceedings on the ground that there was no evidence that an offence had been committed. In his decree, the deputy prosecutor stated that criminal proceedings had been initiated against the applicant on 10 February 2000. The applicant confessed voluntarily to having committed the crimes of which he was charged when he learned that his accomplices had also confessed. Furthermore, police officers had been questioned about the applicant’s allegations and had refuted the accusations against them. The deputy prosecutor concluded: “(...) despite the fact that the forensic medical expert opinion No. 747/c of 5 April 2000 [established that the applicant suffered] minor bodily injuries giving rise to a short-term disability, no evidence has been obtained that those injuries were inflicted by officers of the Kyivsky District Police Station of Kharkiv. The [applicant’s] arguments set out in his request must be considered to have been invented by him. He was fully aware that the investigation gave rise to sufficient proof that he had committed the crimes of which he was accused. He is now trying to avoid the punishment he deserves”. 19. On 3 June 2000 the applicant appealed against this decision to the Kyivsky District Court and to the City Prosecutor’s Office. (According to the Government, it was on 3 July 2000 that the applicant complained to the Kharkiv Regional Prosecutor’s Office, and then on 14 September 2000 to the court, paragraph 21 below.) 20. On 20 July 2000 the Kharkiv City Prosecutor’s Office informed the applicant that it had rejected his request to quash the decree of 24 April 2000. 21. On 14 September 2000 the applicant lodged a complaint with the Kyivsky District Court of Kharkiv challenging the decree of 24 April 2000. 22. On 19 October 2000 the Kyivsky District Court quashed the decree of 24 April 2000 and ordered that criminal proceedings be opened against the accused police officers under Article 166 § 2 of the Criminal Code (excess of power). The court stated that the prosecutor had failed to investigate the cause of the applicant’s injuries and that the prosecutor’s refusal to institute criminal proceedings against the police officers in question had been unreasonable. 23. The criminal case was sent to the Kyivsky District Prosecutor’s Office. On 10 November 2000 this Office requested the Kharkiv Regional Prosecutor’s Office to lodge a supervisory review appeal with the Presidium of the Kharkiv Regional Court against the Kyivsky District Court’s decision of 19 October 2000. The applicant was informed of this on 26 January 2001. 24. On 25 April 2001 the Kharkiv Regional Prosecutor’s Office rejected the request, finding no grounds for such a review, and returned the case file to the District Prosecutor’s Office. The applicant was informed of this development by letter of 27 April 2001. 25. Criminal proceedings were initiated on 28 April 2001 by the Kyivsky District Prosecutor, but terminated by decree on 3 September 2001 for want of evidence that any crime had been committed. Nevertheless, according to the Government, between May and November 2001 investigators interviewed several witnesses, including the police officers and the applicant’s relatives. 26. Following the applicant’s complaint, on 29 October 2001 the Kharkiv Regional Prosecutor’s Office quashed the decree of the Kyivsky District Prosecutor and sent the case to the Kharkiv City Prosecutor’s Office. The latter in turn transferred the case on 7 November 2001 to the Zhovtnevy District Prosecutor’s Office for a further preliminary investigation. 27. On 13 November 2001 the Zhovtnevy District Prosecutor’s Office began the investigation. 28. In November and December 2001 several other witnesses were questioned and confrontations were organised. 29. On 20 November 2001 a forensic medical examination was ordered within the framework of the investigation. 30. On 4 December 2001 the expert examination concluded that the applicant had suffered bodily harm of medium severity which could have occurred in the circumstances alleged by the applicant. 31. On 12 December 2001 a supplementary forensic examination was ordered as the first was deemed incomplete. 32. According to the Government, on 25 February 2002 the second expert opinion established that the applicant had sustained minor bodily harm prior to his detention in the Kyivsky District Police Station. 33. At the request of the applicant’s lawyer, one of the medical experts was interviewed in the presence of the lawyer on 21 March 2002. The same day the lawyer requested an additional medical examination since, in his view, the second report lacked any scientific basis and was contradicted by the other evidence in the case. Although the prosecutor received the request, the lawyer never had a reply. 34. On 28 March 2002, on conclusion of the additional investigation, the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that there was no evidence that a crime had been committed. (The applicant was informed of this on 16 April 2002.) The prosecutor stated, inter alia, that the police officers who had been questioned had denied the accusations against them and had explained the applicant’s allegations with reference to the criminal proceedings brought against him. The prosecutor further stated that the testimonies of T. and O., confirming the applicant’s allegations, had to be disregarded since they were the applicant’s co-accused. The prosecutor also maintained that the medical examination had concluded that the applicant’s injuries could have been caused before he was detained at the police station. 35. On 16 April and 31 May 2002 the applicant and his lawyer requested the district prosecutor to provide them with the case file. By letter of 10 June 2002, the prosecutor replied that the materials in the case file had been sent to the Regional Prosecutor’s Office for examination. 36. Following the filing of several complaints by the applicant and his lawyer with the District, Regional and General Prosecutor’s Office, the Kharkiv Regional Prosecutor’s Office informed the applicant on 9 October 2002 that the criminal case, in so far as it concerned the alleged excess of power by police officers, had been closed, but that the question of the infliction of minor bodily harm had been remitted for further investigation. 37. That same day, 9 October 2002, the Kharkiv City prosecutor’s Office quashed the decision of 28 March 2002 and remitted the case to the Zhovtnevy District Prosecutor’s Office, which on 23 August 2002 recommenced the investigation. 38. Because of the contradictory findings of the previous forensic medical examinations, an additional examination was entrusted to the Central Office of Forensic Medical Examination in Kyiv. 39. On 2 June 2003 the Zhovtnevy District Prosecutor’s Office received an expert opinion dated 3 February 2003 in which it was stated that the applicant had sustained bodily injury of medium severity that could have been inflicted in the circumstances alleged by the applicant. 40. On 25 June 2003 the Kharkiv Regional Prosecutor’s Office instructed the Zhovtnevy District Prosecutor’s Office to complete the investigation as soon as possible. 41. On 9 July 2003 the Zhovtnevy District Prosecutor’s Office issued a decree terminating the criminal proceedings on the ground that the actions of the law-enforcement officers had not given rise to any criminal offence. It reclassified the criminal offence as the infliction of bodily injury of medium severity by unknown person(s) and remitted the criminal case for investigation to the Kyivsky District Police Department. 42. The applicant appealed against this decree to the Zhovtnevy District Court. 43. On 15 November 2003 the criminal investigation was stayed and it was decided to continue the operative search as the offender had not yet been identified. 44. On 31 December 2003 Zhovtnevy District Court quashed the decree of 9 July 2003 and remitted the case for an additional investigation. The court noted, in particular, that the investigating authorities had failed to take all necessary measures to identify and question independent witnesses, given that the applicant and the law-enforcement officers had made contradictory statements. 45. On 30 March 2004 the Zhovtnevy District Prosecutor’s Office passed a resolution discontinuing the criminal investigation against the police officers indicated by the applicant, and decided that the fact of the infliction of bodily harm of medium severity required further investigation. 46. The investigation is still pending because the offender has not yet been found. 47. The relevant extract of the Constitution of Ukraine provides: Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” 48. Article 4 of the Code provides that the court, prosecutor or investigator shall, within their competencies, institute criminal proceedings in every case where signs of a crime have been discovered, take all necessary measures provided by law to establish the commission of the crime and the identity of the offenders and punish them. 49. Article 22 of the Code prohibits extracting confessions from an accused or any other participant in the proceedings through violence, threats or other illegal means. 50. Article 28 of the Code provides that the person who sustained material damage from the crime shall be entitled to lodge a civil claim against the accused person or persons who bear material liability for the actions of the accused. 51. Article 221 of the Code foresees an obligation of the court to suspend proceedings in the case, if it cannot be examined prior to the decision in another case examined under civil, criminal or administrative proceedings. 52. The relevant extract of the Law provides: Article 2 “The right to compensation for damages in the amount and in accordance with the procedure established by this Law shall arise in the cases of: - acquittal by a court; - termination of a criminal case on grounds of an absence of proof of commission of a crime, absence of corpus delicti, or lack of evidence of the accused’s participation in the commission of the crime; - refusal to initiate criminal proceedings or termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article; - termination of proceedings for an administrative offence.” | 1 |
train | 001-103348 | ENG | TUR | ADMISSIBILITY | 2,011 | AKSOY (1) v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix. All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, various types of disciplinary sanctions were imposed on them. Their appeal requests were rejected respectively by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law No. 4675 on Enforcement Judges, dated 16 May 2001. The details of the applications as well as the complaints raised by the applicants appear in the table below. A description of the relevant domestic law may be found in Gülmez v. Turkey, no. 16330/02, §§ 13-15, 20 May 2008 and Aydemir and others (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and 9509/05, 9 November 2010. | 0 |
train | 001-85409 | ENG | SWE | ADMISSIBILITY | 2,008 | NILSSON v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | The applicant, Mr Sture Nilsson, is a Swedish national who was born in 1946 and lives in Sjulsmark. He was represented before the Court by Mr Jan Södergren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1973 the applicant inherited thirty-three hectares of property from his father, of which twenty-eight hectares had been included in a joint hunting area in 1952. The provisions in force at the relevant time concerning joint hunting areas and joint hunting area associations were replaced in 1980 by a Joint Hunting Areas Act and in 2000 by a Game Conservation Areas Act (Lagen om viltvårdsområden; SFS 2000:592). By the latter Act, a joint hunting area was renamed a game conservation area. The game conservation area to which the applicant’s property belonged comprised 5,567 hectares of land or 6,145 hectares including both land and water areas. Slightly more than a hundred and fifty properties or plots thereof were included in the area; many of them were very small, covering between one and three hectares. The applicant’s property was situated in the north-east corner of the area. The applicant could hunt within the game conservation area, including on his own property, but was obliged to coordinate his hunting with that of the other hunting rights holders. They were all members of the Game Conservation Area Association in Norrfjärden, (Norrfjärdens viltvårds-områdeförening), (henceforth GCAA), and took part in the decisionmaking process. The by-laws passed by the GCAA stated, among other things, that elk-hunting should usually be conducted in the form of so-called “community hunting”. On 15 January 2001 the applicant requested that the GCAA agree to the exclusion of his property from the game conservation area. He wished to have his property registered as a “one calf area” which would allow for the shooting of one elk calf each year. He submitted that being a dairy farmer he had not participated in the hunt for about eight or ten years. Moreover, he found that a hunting party consisting of fifty-five hunters was too big and, referring to his age, fiftyfive at the relevant time, he preferred hunting on a smaller scale. Since the GCAA objected to the request, the matter had to be decided by the County Administrative Board in Norrbotten County (Länsstyrelsen i Norrbottens Län), which by a decision of 9 February 2001 refused the applicant’s request and stated, in so far as relevant: “... By letters received by the County Administrative Board on 29 January and 1 February 2001 respectively, you have requested that part of your property ... be excluded from the game conservation area. In support thereof you have stated that you intend to register a licensed elk-hunting area on the property and hunt individually thereon. This would provide you with more hunting opportunities... Section 33 of the Game Conservation Areas Act is worded as follows: Upon application by the property owner or the [GCAA], the County Administrative Board may grant the exclusion from a game conservation area of: a property which due to a change in use or for other reasons lacks essential importance for the activity of the area; a property, or several properties with the same owner, which can comprise a separate unit for game conservation, if the remaining properties in the [original] game conservation area can continue to constitute a suitable area of this kind. ... [the County Administrative Board observes that] no change in the way the property is used has come to light. Nor can it be considered that the property lacks essential importance for the activity in the area, since together with a number of other properties, it forms the basis of the activity, which is to promote game conservation through coordination of hunting. In addition, the size of the property is not such as to be a reason for it to be considered to lack essential importance for the activity in question. Accordingly, exclusion cannot be granted pursuant to section 33, subsection 1.1 of the Act on Game Conservation Areas. Pursuant to section 33 of the Hunting Act (1987:259) elk may only be hunted after a licence has been issued by the County Administrative Board and within an area that the latter has registered (a licensed area). This does not apply if the hunting only concerns elk calves. The size and general nature of a licensed area must be such that it is suitable for hunting elk. The County Administrative Board may refuse to register an area as licensed ... if it does not allow for the shooting of at least one adult animal per year. The County Administrative Board considers that effective game conservation within the meaning of the Hunting Act cannot be conducted in an area smaller than what has been referred to here and referred to in section 33 of the Hunting Act. Likewise, an area of this kind cannot comprise a separate unit for game conservation pursuant to section 33, subsection 1.2. of the Act on Game Conservation Areas. The notion “game conservation” is defined in section 4 of the Hunting Act: The game must be conserved so as to protect the game species that belong to the game population in the country and naturally occurring bird species that are temporarily in the country; and promote appropriate development of game stocks, taking into account public and private interests. Game conservation includes using special measures to ensure that game receives protection and support and that hunting is adapted to the supply of game. The property owner and the person holding the hunting rights are responsible for making sure that the measures are carried out and that adaptations are followed. Of course, since your property consists of a unit that is larger than 20 hectares, it can be registered as a “one calf area” However, it cannot thereby be considered to comprise a separate unit for game conservation pursuant to the Act on Game Preservation Areas. Accordingly, [your] property] cannot be excluded pursuant to section 33, subsection 1.2. of the Act on Game Preservation Areas. As regards the question whether a decision to refuse [your request] contravenes [the proportionality principle contained in] Chapter 2, section 18 of the Instrument of Government and the European Convention on Human Rights, the County Administrative Board finds that there are strong reasons to support the view that it would be detrimental to effective game conservation, including elk hunting – which must be considered to be an important public interest – if existing game conservation areas were to be divided into smaller sections. ... You have not shown how game conservation could be improved if [your] request to exclude the property was granted. The County Administrative Board considers that even if [your] property is part of the game conservation area, game conservation can be carried out, either together with the other partners and hunters, or separately for the individual property. Thus, there are no limitations on the right of disposition over the property in question. On the contrary, there is an important public interest in retaining the property in question as part of the game conservation area. That will maintain the aim of the property owners in forming the area, namely to allow game conservation to be carried out in an efficient manner. Game conservation — primarily conservation of the elk stock — is only efficient when it can be carried out in a continuous area that is not divided. In respect of large game, hunting is an important part of game conservation. Properly conducted hunting based on biological grounds can regulate the numbers of these stocks, so that the requirements of the Hunting Act regarding preservation and promotion are fulfilled. ...” On an appeal, by a judgment of 27 June 2001 the County Administrative Court (Länsrätten i Norrbottens Län) upheld the County Administrative Board’s decision. Leave to appeal was refused on 12 February 2003 by the Administrative Court of Appeal (Kammarrätten i Sundsvall) and on 16 February 2005 by the Supreme Administrative Court (Regeringsrätten). According to Chapter 2, section 1 of the Instrument of Government (Regeringsformen), which is part of the Swedish Constitution, all citizens are guaranteed, inter alia, freedom of association in their relations with public institutions. This freedom is defined as freedom to associate with others for public or private purposes. Chapter 2, section 2 stipulates that all citizens are protected, in their relations with public institutions, against any coercion, such as to belong to a political association, religious community or other association with opinions of a political, religious, cultural or other such nature. The rights and freedoms referred to in Chapter 2, section 1 may be restricted by law to the extent provided for in Chapter 2, sections 13-46 (Chapter 2, section 12). Restrictions may only be imposed to achieve a purpose which is acceptable in a democratic society. A restriction may never go beyond what is necessary having regard to the purpose which occasioned it, nor may it be carried so far as to constitute a threat to the free formation of opinion as one of the fundaments of democracy. No restriction may be imposed solely on grounds of a political, religious, cultural or other such opinion (ibid.). According to Chapter 2, section 14, freedom of association may be restricted only in respect of organisations whose activities are of a military or quasi-military nature or constitute persecution of a population group of a particular race, colour or ethnic origin. The negative freedom of association provided for in Chapter 2, section 2 may not be restricted. The peaceful enjoyment of possessions is protected in, inter alia, the Instrument of Government. Pursuant to Chapter 2, section 18, the property of every citizen shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to public institutions or to a private subject, or to tolerate restrictions by public institutions on the use of land or buildings, other than where necessary to satisfy pressing public interests. A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed compensation for the loss. Such compensation shall also be guaranteed to a person whose use of land or buildings is restricted by public institutions in such a manner that the ongoing use of land in the affected part of the property is substantially impaired, or the value of that part of the property suffers significant depreciation. Compensation shall be determined according to principles laid down by law (ibid.). Hunting is regulated in, inter alia, the 1987 Hunting Act (Jaktlagen; SFS 1987:259). The right to hunt game is attached to the ownership of real property. Thus, section 10 of the Act expresses the general principle that it is the person who owns a piece of property who has the right to hunt on that property. It is, however, possible to convey and let hunting rights, with the result that the ownership of land and the right to hunt may be vested in different persons (see sections 14-16). The right to hunt may be exercised only to the extent that hunting is acceptable from the point of view of game conservation. Thus, all game is in principle protected and may be hunted only if this is permitted under the Act or under provisions or decisions based on the Act (section 3). Specifically with respect to elk hunting, section 33 of the Act establishes the main rule that, with the exception of the hunting of elk calves, this may take place only if licensed by the relevant County Administrative Board and within an area that has been registered by the Board for this purpose (a socalled “licensed area”). Further, it follows from section 33 that a licensed area shall be of such a size and character that it is suitable for elk-hunting. The County Administrative Board may refuse to register an area as a licensed area if it does not allow for the shooting of at least one adult animal per year. However, even if these conditions are not met, an area may be registered as a licensed area if there are special reasons for this. In addition, an area may be registered as a licensed area allowing for one calf to be shot annually, if the size of the area amounts to at least 20 hectares. The right to hunt is connected with a general obligation to conserve and protect the game within one’s property. Where the right to hunt has been conveyed or let, this obligation lies with the landowner and hunting right holder together. Section 4 of the Act provides, inter alia, that measures shall be taken for the purpose of conserving existing species of wild game and in order to promote appropriate development of game stocks, taking into account both public and private interests. Game conservation includes an obligation to use special measures to ensure that game receives protection and support and to adapt hunting to the supply of game (ibid.). With the purpose of coordinating hunting and facilitating game conservation, Swedish legislation has for a long time provided land owners with the opportunity to join their properties into joint hunting areas by a unanimous or qualified majority decision. The 1938 Act on the Right to Hunt (Lagen om rätt till jakt; SFS 1938:274) contained provisions on joint hunting areas and joint hunting area associations. These provisions were replaced by a new Act which entered into force on 1 January 1981, the Joint Hunting Areas Act 1980 (Lagen om jaktvårdsområden; SFS 1980:894). This Act was in turn replaced by the Game Conservation Areas Act 2000 (Lagen om viltvårdsområden; SFS 2000:592), which entered into force on 1 January 2001. The provisions of the new Act are in many respects the same as, or similar to, the provisions contained in the old Act. A joint hunting area association existing at the time of the entry into force of the new Act shall be regarded as a game conservation area association in accordance with the new Act (see the transitional provisions of the 2000 Act). The 2000 Act provides that two or more properties or parts of properties may be joined into a game conservation area, for the purpose of promoting the conservation of game through coordination of hunting and measures to protect the game (section 1). Where this is done, the property owners concerned shall form a game conservation area association (viltvårdsområdeförening). Those who own land incorporated in such an area are members of the association (section 4). The provisions of the Act are equally applicable to publicly and privately owned land. However, according to section 2 of the Act, a game conservation area may not include certain land owned by the Swedish State where the Sami population has a right to hunt according to the Reindeer Herding Act (Rennäringslagen; SFS 1971:437). Also with respect to other land, public or private, the right of the Sami to hunt enjoys special protection. Thus, section 2 of the Act also provides that the formation of a game conservation area may not entail limitations on the hunting rights of the Sami. The relevant County Administrative Board decides on the establishment of a game conservation area upon application from one or several of the property owners concerned (sections 3 and 9). For such an area to be formed, at least four-fifths of the owners, representing at least four-fifths of the total area, must agree (section 7). Another requirement is that the creation of the area shall promote the preservation of the kind of wild game that the coordination is intended to preserve and protect. Finally, it is required that the area be suitable with regard to its size and geographical position. However, no property can be included in a game conservation area if, due to its size or use, it lacks importance for the activity within the area (section 8). Conversely, land that is capable of being retained as a separate unit for the purpose of game conservation cannot be included in the game conservation area without the owner’s consent (ibid.). As a general rule, the question of whether to form a game conservation area shall be investigated under the guidance of a person appointed by the County Administrative Board (section 11). Taking into account the application documents and other relevant information, the authorised official (förrättningsmannen) shall put forward proposals regarding which properties should be included in the area and which by-laws should apply to the association (section 12). These proposals shall be dealt with at a meeting, to which the property owners shall be summoned, and they shall be given the opportunity to submit their opinions and present their own investigations (sections 13 and 14). Thereafter, the official shall present a written statement expressing his or her opinion as to whether a game conservation area should be formed and, if this is the official’s view, propose which properties should be included in the area and also put forward proposals on by-laws for the association (section 15). The proposals and other relevant documents shall then be accessible to the property owners concerned for one month so that they may examine them and submit any views that they may have. Following the expiry of this period, the official shall provide the County Administrative Board with all the documents and such objections as may have been submitted, so that the Board may determine the matter (ibid.). The game conservation area association shall have a board (section 18). Members of the association are entitled to participate in the decision making by exercising their right to vote at general meetings (sections 19 and 20). The County Administrative Board shall confirm the by-laws of the association with regard to certain aspects (sections 3 and 16). The Board shall also confirm amendments of the by-laws with regard to those aspects (sections 16 and 17). If stipulated in the by-laws and provided it is in conformity with the hunting legislation, the association may decide that elk and certain other game may be hunted within the whole area (“area hunting”; områdesjakt) and only together with other hunting right holders within the area (“community hunting”; gemensambetsjakt), if this is deemed necessary having regard to the conservation of game (section 23). If such a decision is taken, the association may also decide on the details of the hunt, such as the number of animals that may be shot. It may also decide that participation in “area hunting” and “community hunting” shall require a hunting licence (section 25). According to section 26, if stipulated in the by-laws, the association may decide to suspend from “area hunting” and “community hunting”, for a maximum period of one year, a member or hunting right holder who has broken the rules regarding such hunting. The by-laws may contain a requirement that hunting rights may not be conveyed or let without the consent of the association (section 27). The association may decide that fees should be paid for hunting and for game that is shot (section 29). A property owner who for reasons of conscience is opposed to hunting, is entitled, upon request, to have his property exempted from “area hunting” and “community hunting” (section 28). Upon application by the board of the associations concerned, the County Administrative Board may decide to join several game conservation areas together into one area or to divide a game conservation area into several smaller areas (section 31). As regards such changes, the same conditions apply as for the formation of a game conservation area (ibid.). Further, upon application by the board of the association, the County Administrative Board may decide to join a property to the game conservation area, provided the owner of the property agrees to this (section 32). The exclusion of an individual property from a game conservation area is governed by section 33 of the Act, which deals with two types of situations. Thus, the County Administrative Board may decide to exclude a property upon application by the property owner or the association, if, as a result of a change in its use or for other reasons, it has lost its essential importance for the activity within the area (subsection 1, point 1). If the property owner and the association agree on the exclusion, the association may take the decision instead of the County Administrative Board. According to the preparatory work, this provision aims, in particular, at situations in which a fundamental change has occurred in the use of the property, for example if it has begun to be used for recreational or industrial purposes (Government Bill 1999/2000:73, p. 50). Further, upon application by the property owner or the association, the Board may decide to exclude a property from the area, provided the property is capable of forming a separate unit for game conservation and provided the other properties within the area can continue to exist as a suitable area for game conservation (sub-section 1, point 2). The possibility of excluding properties has been expanded in the 2000 Act as compared to the Joint Hunting Areas Act 1980, which it replaced. In the 1980 Act, exclusion was possible in the situations referred to in section 33, sub-section 1, point 1 of the 2000 Act, but not in the situations referred to in section 33, subsection 1, point 2. The County Administrative Board may decide, under certain conditions, that a game conservation area shall cease to exist and that the association shall be dissolved (section 34). A decision by the general meeting of the game conservation area association or by its board may be appealed against by those affected by the decision to the County Administrative Board, provided the decision relates to one of several enumerated issues, such as hunting and game conservation, membership of the association, suspension from “area hunting” and exclusion from the game conservation area in accordance with section 33, sub-section 2 (section 37). A decision by the County Administrative Board may be appealed to the relevant County Administrative Court (section 38). Subject to the grant of leave to appeal, a further appeal lies to the relevant Administrative Court of Appeal and, in the final instance, to the Supreme Administrative Court. Leave to appeal shall be granted if it is of importance for guidance on the application of the law that a superior court considers the appeal or if there are extraordinary reasons to examine the appeal. In addition, an administrative court of appeal shall grant leave to appeal if reason exists to amend the conclusion of the first instance court (sections 34 a and 36 of the Administrative Court Procedure Act; förvaltningsprocesslagen; SFS 1971:291). | 0 |
train | 001-98428 | ENG | MDA | GRANDCHAMBER | 2,010 | CASE OF TĂNASE v. MOLDOVA | 1 | Preliminary objection joined to merits and dismissed (ratione materiae);Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of P1-3 | Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva | 10. The applicant was born in 1971 and lives in Chişinău. He is ethnically Romanian and is a Moldovan politician. 11. The Principality of Moldavia first emerged as an independent State in 1359. Its territory covered the area between the Eastern Carpathian Mountains, the Dniester River and the Black Sea; today, this area encompasses Moldova, part of Romania and part of Ukraine. Its population spoke the same language and was of the same descent as the populations of Wallachia and Transylvania (both part of modern-day Romania). 12. In the fifteenth century, Moldavia accepted the suzerainty of the Ottoman Empire. 13. Following the Russo-Turkish war of 1806 to 1812, the eastern part of the Principality of Moldavia, bounded by the Dniester River on the east and the River Prut on the west, was annexed by the Russian empire. It was renamed Bessarabia. 14. In 1859, the western part of the Principality of Moldavia united with Wallachia and formed a new State. From 1861, the new State was known as Romania. In 1877, Romania gained independence from the Ottoman Empire. 15. In early 1918, Bessarabia declared its independence from Russia and, on 27 March 1918, united with Romania. The population of Bessarabia became Romanian citizens. 16. The Soviet Union did not recognise the unification of Bessarabia and Romania. On 28 June 1940, following the Molotov-Ribbentrop Pact with Nazi Germany, the Soviet Union re-annexed the territory of Bessarabia. 17. Following the conclusion of the Second World War, approximately 70% of the territory of Bessarabia, inhabited by some 80% of its population, became the Moldavian Soviet Socialist Republic (changed to the Soviet Socialist Republic of Moldova in 1990). The remaining territory of Bessarabia became part of the Ukrainian Soviet Socialist Republic. Those residing in Bessarabia lost their Romanian nationality and became Soviet citizens. Romania became a Soviet Union satellite State. 18. Following the collapse of the Soviet Union, in the Declaration of Independence of 27 August 1991, the Parliament of the Republic of Moldova condemned, inter alia, the Russian annexation of the territory from the Principality of Moldavia in 1812 and the Soviet annexation of the territory from Romania in 1940 and proclaimed the independence of the country within the boundaries of the former Moldavian Soviet Socialist Republic. Shortly thereafter, Moldova joined the United Nations and was recognised by the international community. 19. In 1991 the Parliament of the Republic of Moldova adopted a Law on citizenship and proclaimed as its citizens, inter alios, all persons who had lived in the territory of the former Moldavian Soviet Socialist Republic before the Soviet annexation and their descendants. 20. The applicant obtained Moldovan nationality as a descendant of persons living on the territory of the Republic of Moldova before 28 June 1940. 21. Also in 1991, the Romanian Parliament adopted a new Law on citizenship, making it possible for persons who had lost their Romanian nationality before 1989, for reasons not imputable to them, and their descendants to reacquire Romanian nationality. 22. Initially, under Article 18 of the Moldovan Constitution adopted on 29 July 1994, which entered into force on 27 August 1994, nationals of Moldova were not permitted to hold the nationality of any other State other than in exceptional cases. However, the prohibition was ineffective in practice as many Moldovans of Romanian descent used the provisions of Romanian law to reacquire their lost Romanian nationality. At the same time, many Moldovans of other ethnic backgrounds acquired other nationalities such as Russian, Ukrainian, Bulgarian and Turkish. 23. In 2002 the Moldovan constitutional provisions prohibiting multiple nationalities were repealed. 24. On 5 June 2003, following the repeal of the constitutional prohibition on multiple nationalities, the Moldovan Parliament amended the Law on citizenship, repealing the restriction preventing Moldovan nationals from holding other nationalities (see paragraph 74 below). The new provisions provided that the holders of multiple nationalities had equal rights to those holding only Moldovan nationality, without exception (see paragraph 75 below). 25. On an unspecified date the applicant obtained Romanian nationality. His current Romanian passport was issued in December 2005. Subsequently, he made public his holding of Romanian nationality. 26. The total number of Moldovans who have obtained Romanian citizenship since 1991 is unknown as the Romanian government have never made this information public. However, it has been estimated that between 95,000 and 300,000 Moldovans obtained Romanian nationality between 1991 and 2001. On 4 February 2007 the President of Romania stated in an interview that there were some 800,000 Moldovans with pending applications for Romanian nationality and that his government expected the number to reach 1,500,000, of the total of 3,800,000 Moldovan citizens, before the end of 2007. 27. As to the number of Moldovans holding a second nationality other than Romanian, this figure is also unknown. However, it appears to be considerable and it seems that Russian nationality is the second most popular, after Romanian. On 16 September 2008 the Russian Ambassador to Moldova stated in a televised interview that there were approximately 120,000 Moldovans with Russian passports on both banks of the Dniester River (i.e. in the whole of Moldova). 28. The Moldovan Government indicated in their observations before the Chamber that one-third of the population of Transdniestria had dual nationality, while a communist member of parliament (MP), Mr V. Mişin, advanced during Parliament’s debates concerning Law no. 273 (see paragraphs 78-81 below) the number of 500,000 as an approximate total number of Moldovans with dual nationality. 29. During the last decade and prior to the elections of 2009, the Communist Party of Moldova was the dominant political party in the country with the largest representation in Parliament. 30. Besides the Communist Party, there were over twenty-five other political parties in the country with considerably less influence. Their exact number was difficult to ascertain because of constant fluctuation. Because of their weaker position, very few of them managed to clear the 6% electoral threshold required in past legislative elections to enter Parliament. 31. In the 2001 elections the Christian Democratic People’s Party was the only party aside from the Communist Party, from the twenty-seven parties participating in the elections, which succeeded in clearing the electoral threshold alone by obtaining some 8% of the vote. Six other parties merged into an electoral bloc (a common list) and in this way were able to obtain some 13% of the vote. The Communist Party obtained some 50% of the vote and, after the proportional distribution of the wasted votes, obtained 71 of the 101 seats in Parliament. 32. In 2002 the electoral legislation was amended. The 6% electoral threshold for a single party was retained but a new 9% threshold was introduced for electoral blocs composed of two parties, rising to 12% for three or more parties. 33. In the 2005 elections, out of twenty-three participating parties, the Christian Democratic People’s Party was again the only party, besides the Communist Party, which managed to clear the electoral threshold by itself with some 9% of the vote. Three other parties, united into an electoral bloc, obtained some 28% of the vote, while the Communist Party obtained almost 46% of the vote. After the proportional distribution of the wasted votes, the Communist Party obtained 56 of the 101 seats in Parliament. 34. In July 2005, following persistent criticism by international observers and the Council of Europe, Parliament again amended the Electoral Code, setting the electoral threshold for individual parties at 4% and for electoral blocs composed of any number of parties at 8%. The European Commission for Democracy through Law of the Council of Europe (the Venice Commission) and the Organization for Security and Cooperation in Europe (OSCE) praised the lowering of the electoral threshold for individual parties and suggested a similar threshold for electoral blocs, which, in their view, were to be encouraged in order to provide more cooperation and stable government. 35. In the local elections of June 2007, the Communist Party obtained some 40% of the vote in the local legislative bodies. As there is no electoral threshold in local elections, it became an opposition party in the majority of the local councils. The applicant became a member of the Chişinău Municipal Council following these elections. 36. The applicant was subsequently elected Vice-President of the Liberal Democratic Party, an opposition party created in January 2008. 37. On 10 April 2008 the Moldovan Parliament passed a reform consisting of three major amendments to the electoral legislation: an increase of the electoral threshold from 4% back to 6%; a ban on all forms of electoral blocs and coalitions; and a ban on persons with dual or multiple nationality becoming MPs. 38. The amendment banning those with dual or multiple nationalities becoming MPs was introduced by way of Law no. 273 (see paragraphs 78-80 below). This Law was approved in its first reading by Parliament on 11 October 2007. The draft, prepared by the Ministry of Justice, provided that only persons having exclusively Moldovan citizenship were entitled to work in senior positions in the government and in several public services and be candidates in legislative elections (see paragraph 78 below). It contained a specific provision relating to Transdniestria (see paragraphs 80-81 below). 39. In an explanatory note to the draft law, the Deputy Minister of Justice stated: “Having analysed the current situation in the country in the field of citizenship, we observe that the tendency of Moldovans to obtain citizenships of other countries is explained by their desire to obtain privileges consisting of unrestrained travel in the European Union, social privileges, family reunion, employment and studies. At the same time, persons holding other nationalities have political and legal obligations towards those States. This fact could generate a conflict of interest in cases in which there are obligations both towards the Republic of Moldova and towards other States, whose national a particular person is. In view of the above, and with a view to solving the situation created, we consider it reasonable to amend the legislation in force so as to ban holders of multiple nationalities from public functions ... This will not mean, however, that those persons will not be able to work in the Republic of Moldova. They will be able to exercise their professional activities in fields which do not involve the exercise of State authority ...” 40. During the debates in Parliament numerous opposition members requested that the draft law be sent to the Council of Europe for a preliminary expertise. However, the majority voted against this proposal. Instead, the opposition was invited to challenge the new Law before the Constitutional Court of Moldova. No such challenge was made at that time (but see paragraphs 54-58 below). Numerous MPs from the opposition argued that the proposed amendment banning multiple nationals from sitting as MPs was contrary to Article 17 of the European Convention on Nationality (see paragraphs 83-85 below) but the Deputy Minister of Justice expressed a contrary view and argued that, in any event, it was open to Parliament to denounce that Convention if there were any incompatibility. 41. On 7 December 2007 the draft law was approved by Parliament in a final reading (see paragraph 78 below). Following its adoption by Parliament, however, the President refused to promulgate the Law and returned it to Parliament for re-examination. 42. The draft law was accordingly further amended and the list of positions in the government and in the public service closed to holders of multiple nationalities was reduced. The provisions concerning legislative elections were also amended to allow persons with dual or multiple nationality to be candidates in legislative elections; however, they were obliged to inform the Central Electoral Commission about their other nationalities before registering as candidates and to renounce them, or initiate a procedure to renounce them, before the validation of their MP mandates by the Constitutional Court (see paragraph 79 below). 43. On 10 April 2008 the new draft law was again put before Parliament by the Law Commission of Parliament. As noted above, it was adopted on that date. In the light of the amendments made by Law no. 273, an exception was introduced to the provision in the Law on citizenship concerning equality of citizens to allow different treatment where provided for by law (see paragraphs 24 above and 75 below) 44. On 29 April 2008 the President promulgated the Law adopted by Parliament on 10 April 2008. On 13 May 2008 the Law was published in the Official Gazette, thus entering into force. The other two amendments to the electoral legislation (see paragraph 37 above) were also enacted and entered into force in May 2008. 45. On 29 April 2008 the Council of Europe’s European Commission against Racism and Intolerance (ECRI) made public a report adopted on 14 December 2007. In its report, ECRI expressed concern about the amendments concerning dual and multiple nationalities: “16. ECRI notes with interest that section 25 of the Law on citizenship, in full accordance with Article 17 of the European Convention on Nationality, which has been ratified by Moldova, provides that Moldovan citizens who are also citizens of another State and who have their lawful and habitual residence in Moldova enjoy the same rights and duties as other Moldovan citizens. In this respect, ECRI would like to express its concern about a draft law on the modification and completion of certain legislative acts adopted in its first reading by Parliament on 11 October 2007. According to this draft law, only persons having exclusively Moldovan citizenship are entitled to work in senior positions in the government and in several public services. From the information it has received, ECRI understands that if this draft law enters into force as it stands, Moldovan citizens with multiple citizenship would be seriously disadvantaged compared with other Moldovan citizens in access to public functions. It thus appears that, if the law enters into force as such, this could lead to discrimination, i.e. unjustified differential treatment on the grounds of citizenship. ECRI understands that a wide-ranging debate is occurring within Moldova at the time of writing this report as far as this draft law is concerned and that many sources both at the national and international level have stressed the need to revise the text thoroughly before its final adoption in order to ensure its compatibility with national and international standards. ... 18. ECRI strongly recommends that the Moldovan authorities revise the draft law of 11 October 2007 ... in order to ensure that it neither infringes the principle of non-discrimination on the grounds of citizenship nor undermines all benefits of the recent changes made to the Law on citizenship and allowing for multiple citizenship.” 46. In a report dated 14 September 2007, entitled “Honouring of obligations and commitments by Moldova”, the Parliamentary Assembly’s Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (“the Monitoring Committee”) noted the following: “20. The Assembly appreciates the efforts made by the Moldovan authorities in order to assess the degree of implementation of the recommendations made by Council of Europe experts. However, all new draft legislation in areas relating to the commitments to the Council of Europe must be submitted to expertise and discussed with Council of Europe experts prior to adoption.” 47. In its subsequent report of 9 June 2008, entitled “The state of democracy in Europe: the functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure”, the Monitoring Committee stated, inter alia, that: “80. In their 2007 report on the ‘Honouring of obligations and commitments by Moldova’ (Doc. 11374), the co-rapporteurs of the Committee on Moldova welcomed the changes made to the Electoral Code in 2005. In particular, the threshold for party lists was lowered to 4% for lists presented by individual political parties and 8% for coalitions of political parties ... ... 82. The Monitoring Committee was ... alarmed by the recent legislative developments with regard to the Electoral Code. In April 2008, the Moldovan Parliament amended the Electoral Code again to raise the threshold for party lists up to 6%. Moreover, the establishment of ‘electoral blocs’ – joint lists submitted by a coalition of political parties – was prohibited. These measures have raised concern and the Committee decided at short notice to hold an exchange of views with the Moldovan delegation on 15 April [2008]. The electoral legislation should not be changed every two or three years according to political imperatives. It should allow a wide spectrum of political forces to participate in the political process to help build genuinely pluralistic democratic institutions. The co-rapporteurs will closely examine the recent amendments as well as the reasons behind the recent legislative developments during the observation of the preparation of the forthcoming parliamentary election to be held in spring 2009.” 48. Concern was also expressed by the Parliamentary Assembly in its Resolution 1619 (2008) on the state of democracy in Europe, adopted on 25 June 2008: “5.3. ... [T]he Assembly ... regrets the recent decision of the Moldovan Parliament to raise this threshold for party lists to 6%.” 49. In Resolution 1666 (2009) on the functioning of democratic institutions in Moldova, the Parliamentary Assembly expressed its serious concern: “3. The Assembly is seriously concerned about the Moldovan authorities’ partial compliance with its earlier recommendations regarding the improvement of the electoral process and the strengthening of the State’s democratic institutions before the parliamentary elections of 5 April 2009. The amendments introduced to the Electoral Code in April 2008 raised the electoral threshold from 4% to 6%, did not provide for electoral coalitions of political parties and socio-political organisations and introduced a ban on the exercise of elevated public functions by Moldovan citizens holding multiple nationality. The combined effect of these amendments was to restrict the opportunities for a number of political forces to participate effectively in the political process, thus weakening pluralism.” 50. It called on Moldova to do the following: “8.1. resume reform of the electoral legislation, in cooperation with the European Commission for Democracy through Law (Venice Commission), in order to lower the electoral threshold for political parties, thus opening up the political process for more pluralism; ... 8.2. suspend the application of Articles of the Electoral Code prohibiting people who hold multiple citizenship from exercising elevated public functions, while awaiting the judgment of the Grand Chamber of the European Court of Human Rights in the case of Tănase and Chirtoacă v. the Republic of Moldova.” 51. On 23 October 2008 the Venice Commission made public a report adopted on 17 to 18 October 2008 (Opinion no. 484/2008) concerning the amendments to the Electoral Code made in April 2008. The report expressed critical views in respect of all the aspects of the reform. As to the amendments concerning holders of multiple nationalities it stated the following: “30. A new paragraph to Article 13 § 2 denies the right to ‘be elected’ in parliamentary elections to ‘persons who have, beside the Republic of Moldova nationality, another nationality for the position of deputy in the conditions of Article 75’. Article 75 § 3 states that a person may stand as a candidate with multiple citizenship, provided he/she upon election denounces other citizenships than the Moldovan. This must be considered as an incompatibility. 31. Beyond the mere question of the wording, restrictions of citizens’ rights should not be based on multiple citizenship. The Code of Good Practice in Electoral Matters quotes the European Convention on Nationality, ratified by Moldova in November 1999, which unequivocally provides that ‘Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party’. 32. Moreover, this restriction could be a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 3 of [Protocol No. 1] and 14 of the Convention.” 52. On 27 May 2008, at a meeting of the European Union-Moldova Cooperation Council in Brussels, the Slovenian Minister for Foreign Affairs, the then President of the European Union General Affairs and External Relations Council, stated that it was important that Moldova conduct its parliamentary elections in 2009 in line with international standards and expressed concern at the latest amendments to the electoral law, which increased the electoral threshold to 6%. 53. Concerns about the electoral reform were also raised on 9 July 2008 by the President of the Parliamentary Assembly of the Council of Europe in a speech to the Moldovan Parliament: “... I strongly encourage you to obtain the approval by the Venice Commission in respect of the recent amendments to the legislation which will apply in the next elections, namely in what concerns the electoral threshold, the electoral blocs and the dual nationality. These are delicate problems and it is necessary to find the right balance between the preoccupations which guided you to make these amendments and the concern of the international community that these amendments are compatible with the principles of the Council of Europe.” 54. On 9 December 2008, Mr Vlad Filat, President of the Liberal Democratic Party, addressed a complaint to the Constitutional Court alleging that Law no. 273 was unconstitutional. 55. On 26 May 2009 the Constitutional Court delivered a judgment on the constitutionality of Law no. 273. It found the Law to be constitutional and valid in its entirety. It held that the provisions of the Law were clear and unambiguous, that they were accessible in that they were published in the Official Gazette and that they were foreseeable as they enabled, with sufficient precision, Moldovan citizens wishing to stand for Parliament but holding another nationality to adopt appropriate social-minded conduct to ensure that their rights were not curtailed. It emphasised that Law no. 273 did not prevent dual nationals from becoming MPs as it offered them the possibility of complying with the law. It further considered the provisions of the Law to be in conformity with norms of international law, concluding that the various international instruments permitted States to stipulate incompatibilities relating to the holding of multiple nationalities by public officials. 56. The court also found Law no. 273 to be in pursuit of a legitimate aim, namely loyalty to the Moldovan State, in the light of the importance of State sovereignty and the need for a permanent political and legal link between an elector and the State. It considered that for Moldovan citizens holding the nationality of another State, the significance of Moldovan citizenship was substantially diminished as such a person might not be guided only by the constitutional requirements of Moldova and the interests of the Moldovan people but also by the interests of a foreign State. Accordingly, allowing MPs to hold dual nationality was contrary to the constitutional principle of the independence of the mandate of MPs, State sovereignty, national security and the non-disclosure of confidential information. In this regard, the court insisted that ensuring national security and consolidating Moldovan statehood had become an urgent necessity in the light of movements to undermine the Moldovan State. 57. The court also considered the interference to be proportionate since it did not affect the substance of electoral rights but merely made the exercise of the right to be an MP conditional upon holding exclusive Moldovan citizenship. Citizens could choose between holding a job which required single citizenship and retaining their multiple citizenships but working in a different post. 58. As regards the argument that Law no. 273 resulted in unequal treatment of Moldovan citizens, the court considered that the principle of equality should not be confused with the principle of uniformity. Those holding multiple nationalities were not in the same position as those holding single Moldovan nationality and the two cases were therefore not comparable. 59. On 5 April 2009 legislative elections were held. The Communist Party obtained 60 seats in Parliament. The three opposition parties gained 41 seats altogether: the Liberal Democratic Party and the Liberal Party obtained 15 seats each; and the Our Moldova Alliance obtained 11 seats. Of the 101 MPs elected, 21 held more than one nationality or had pending applications for a second nationality and were therefore affected by the provisions of Law no. 273. All 21 MPs were members of opposition parties. 60. In the April elections, the applicant was elected to the Moldovan Parliament. In order to be able to take his seat, he was required to initiate a procedure to renounce his Romanian nationality. He did this by way of a letter addressed to the Romanian embassy in Chişinău announcing that he was forced to initiate the renunciation of his Romanian nationality, but indicating that he reserved his right to withdraw the letter after the judgment of the Grand Chamber in the present case. 61. On 22 April 2009 the Constitutional Court validated the applicant’s mandate, taking into consideration his letter to the Romanian embassy. 62. The Communist Party subsequently sought to elect a president of the Republic. However, on two separate occasions they failed to obtain the 61 Parliamentary votes required for the election of the president. Accordingly, on 15 June 2009, Parliament was dissolved. Fresh parliamentary elections were called for 29 July 2009. 63. Prior to the dissolution of Parliament, it once again amended the electoral legislation, lowering the electoral threshold from 6% to 5% and lowering the mandatory rate of participation from 51% to one-third of registered voters. The opposition expressed concern about the amendments, arguing that they were intended to help the Christian Democratic People’s Party, an ally of the Communist Party in the previous Parliament, clear the electoral threshold and enter Parliament. 64. In the meantime, a prominent figure from the Communist Party and Speaker of the previous Parliament, Mr Marian Lupu, quit the Communist Party and became the leader of a small party, the Democratic Party, which had not cleared the electoral threshold in the April 2009 elections. 65. In the elections of 29 July 2009, five parties cleared the electoral threshold: the Communist Party obtained 48 seats; the Liberal Democratic Party obtained 18 seats; the Liberal Party obtained 15 seats; the Democratic Party obtained 13 seats; and the Our Moldova Alliance obtained 7 seats. The latter four parties formed a coalition called the Alliance for European Integration. The coalition had 53 seats in total and thus a majority in Parliament. 66. The applicant was re-elected. His mandate was subsequently confirmed by the Constitutional Court, upon production of the documents showing that he had initiated a procedure to renounce his Romanian nationality (see paragraph 60 above). 67. The majority elected Mr Mihai Ghimpu as Speaker on 28 August 2009. On 11 September 2009 the President of Moldova, Mr Vladimir Voronin, resigned. Under the Moldovan Constitution, Mr Ghimpu, in his capacity as Speaker, assumed the role of acting President until the election of a president in due course. 68. Since 25 September 2009 Moldova has been governed by the Alliance for European Integration coalition. On that date, Mr Vlad Filat was formally appointed Prime Minister and a number of ministers were also formally appointed. The applicant was appointed Minister of Justice. Under Moldovan law, the applicant will retain his mandate as an MP for six months following his appointment as Minister. 69. On 10 November 2009 Parliament made a first attempt to elect Mr Marian Lupu as President. Mr Lupu was not elected as the required 61 votes in favour were not obtained. The Communist Party refused to participate in the vote. A second attempt to elect a president was made on 7 December 2009. Again, the attempt was unsuccessful as a result of the failure to obtain the 61 votes required. 70. Under the Moldovan Constitution, in the light of the failure of the coalition to elect a president, fresh parliamentary elections will have to be held. 71. Article 4 of the Constitution of the Republic of Moldova reads: “1. Constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties to which the Republic of Moldova is a party. 2. Wherever inconsistencies appear between human rights conventions and treaties signed by the Republic of Moldova and its own national laws, international regulations shall prevail.” 72. Article 8 of the Constitution provides that: “1. The Republic of Moldova is obliged to respect the United Nations Charter and the treaties to which it is a party ...” 73. The relevant provisions of Law no. 595-XIV on international treaties of the Republic of Moldova read: “International treaties shall be complied with in good faith, in accordance with the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as a justification for non-compliance with an international treaty to which it is a party.” “The provisions of the international treaties which, according to their wording, are susceptible to be applicable without there being need for enactment of special legislative acts, shall have an enforceable character and shall be directly applied in the Moldovan law system. For the realisation of other provisions of the treaties, special normative acts shall be adopted.” 74. According to section 24 of the Law on citizenship of the Republic of Moldova (Law no. 1024 of 2 June 2000), as amended on 5 June 2003, multiple nationalities are permitted in Moldova and the acquisition by a Moldovan national of another nationality does not entail loss of the Moldovan nationality. 75. Section 25 provides that Moldovan citizens who reside lawfully and habitually in the territory of Moldova and hold the nationality of another State shall enjoy the same rights and duties as the other citizens of Moldova. Law no. 273 inserted an exception to the principle in section 25 of equal treatment of all citizens “in cases provided for by law”. 76. Section 39 provides for an oath of allegiance to be sworn by those granted citizenship of Moldova through naturalisation or reacquisition of nationality. The oath states: “I (surname, first name), born (time and place of birth), swear to be a faithful citizen of the Republic of Moldova, to respect its Constitution and other laws and not to take any actions that would prejudice the interests and territorial integrity of the State.” 77. On the right to vote and to be elected, the relevant parts of the Constitution provide: “... 3. The right to be elected is guaranteed to Moldovan citizens who enjoy the right to vote, within the conditions of the law.” “1. The citizens of Moldova shall have the right to participate in the administration of public affairs in person or through their representatives. 2. Every citizen shall have access, in accordance with the law, to public functions.” 78. Law no. 273 set out amendments to the electoral legislation. Section 10 of the draft law adopted by Parliament on 7 December 2007 but not promulgated by the President, proposed that the Electoral Code be amended to include the following: “Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have exclusively Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code.” 79. Section 9 of the final version of Law no. 273, which came into force on 13 May 2008, introduces the following provisions into the Electoral Code: “(1) Candidates for the office of MP shall be at least 18 years old on the day of the elections, shall have Moldovan citizenship, shall live in the country and shall fulfil the conditions provided for in the present code. (2) At the moment of registering as a candidate, any person holding the citizenship of another country shall declare that he or she holds another citizenship or that he or she has applied for another citizenship. (3) At the time of validation of the MP mandate, the person indicated in paragraph (2) shall prove with documents that he or she has renounced or initiated the procedure of renunciation of the citizenship of other States or that he or she has withdrawn an application to obtain another citizenship. (4) A failure to declare the fact of holding another citizenship at the moment of registering as a candidate for the office of MP or the fact of obtaining another citizenship during the exercise of an MP mandate, shall be sufficient grounds for the Constitutional Court to annul the MP mandate at the request of the Central Electoral Commission.” 80. The position of Transdniestria is set out in section 21 of the Law: “ ... (3) The incompatibilities provided for in the present Law shall apply to persons living in Transdniestria only in so far as they are stipulated in the legislation concerning the special legal status of Transdniestria.” 81. Limited parliamentary debate took place on this particular provision of the Law. The only relevant extract, from the plenary parliament debates on 7 December 2007, is as follows: “Vladimir Braga, MP: The citizens who are citizens of the Republic of Moldova and live in Transdniestria will continue to have double nationality and then the effectiveness of the Law is marginalised, or, to put it better, we reject the citizens from Transdniestria, who are also citizens of the Republic of Moldova. Vladimir Ţurcan, MP: Not at all. There is one thing which has to be understood: firstly, this Law does not apply to all citizens. Secondly, it refers only to those who have positions in public authorities. Thirdly, we deliberately inserted here a clause in the final and transitional provisions: I draw your attention to the fact that the third paragraph refers to persons who live and work in the respective authorities of the left bank, in Transdniestria, that this Law does not apply in this case to the said persons and that it will only be applied [to them] in so far as this is provided for in the Law concerning the special status of Transdniestria.” 82. According to Article 38 of the Code of Constitutional Jurisdiction of the Republic of Moldova, the Constitutional Court may be seized only by the President of the country, the government, the Minister of Justice, the Supreme Court of Justice, the Economic Court, the Prosecutor General, the MPs, the parliamentary factions and the Ombudsman. 83. The Preamble to the Council of Europe European Convention on Nationality (“the ECN”), which came into force in general and in respect of Moldova on 1 March 2000, explains the purpose of the ECN. The relevant parts of the Preamble provide: “Recognising that, in matters concerning nationality, account should be taken both of the legitimate interests of States and those of individuals; ... Noting the varied approach of States to the question of multiple nationality and recognising that each State is free to decide which consequences it attaches in its internal law to the fact that a national acquires or possesses another nationality; ...” 84. Article 15 of the ECN sets out possible cases of multiple nationality other than those which arise where individuals acquire multiple nationalities automatically at birth or a second nationality automatically upon marriage. It provides as follows: “The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: a. its nationals who acquire or possess the nationality of another State retain its nationality or lose it; b. the acquisition or retention of its nationality is subject to the renunciation or loss of another nationality.” 85. On the rights and duties related to multiple nationality, Article 17 provides: “Nationals of a State Party in possession of another nationality shall have, in the territory of that State Party in which they reside, the same rights and duties as other nationals of that State Party. The provisions of this chapter do not affect: a. the rules of international law concerning diplomatic or consular protection by a State Party in favour of one of its nationals who simultaneously possesses another nationality; b. the application of the rules of private international law of each State Party in cases of multiple nationality.” 86. The Venice Commission has adopted a Code of Good Practice in Electoral Matters. The relevant parts of the explanatory report to this code read as follows: “6b. [U]nder the European Convention on Nationality persons holding dual nationality must have the same electoral rights as other nationals. ... 63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections. 64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation. 65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.” 87. On the basis of the information available to the Court, it would seem that, apart from Moldova, three countries (Azerbaijan, Bulgaria and Lithuania) clearly ban dual nationals from being elected to Parliament. In Azerbaijan and Lithuania, it is in any event prohibited to hold dual nationality; in Bulgaria, holding dual nationality is permitted. The Constitution of a fourth country, Malta, provides that a person shall not be qualified for election to the House of Representatives “if he is a citizen of a country other than Malta having become such a citizen voluntarily or is under a declaration of allegiance to such a country”; it is not entirely clear whether the provision applies to non-nationals or to multiple nationals. In any case, there are no known examples of the provision being enforced and it is not clear whether it was intended that the limitation remain in force after the law was amended to permit dual nationality in Malta in 2000. Romania, which permits dual nationality, lifted its ban on dual nationals becoming MPs in 2003. 88. In Latvia, there is no prohibition on MPs having dual nationality but a person with dual nationality cannot be elected president. It should be noted that dual nationality is prohibited in principle under Latvian law, although it is allowed in certain limited circumstances. Monaco restricts citizens from becoming members of the Conseil National if they hold public or elected office in another State. Portugal prohibits non-resident dual nationals from becoming MPs for the constituency covering the territory of their other nationality. 89. In short, three member States of the Council of Europe – Bulgaria, Malta and Moldova (subject to the ambiguity outlined above) – currently allow dual nationality but prohibit dual nationals from becoming MPs. In addition, Azerbaijan and Lithuania, which prohibit dual nationality, also prohibit dual nationals becoming MPs. Of these four other countries, Azerbaijan and Lithuania have not signed the ECN; Bulgaria has lodged a reservation in respect of Article 17 of the ECN; and Malta has signed, but not ratified, the ECN. 90. Twenty-seven States other than Moldova allow dual nationality. In nineteen member States, dual citizenship is prohibited in principle. Dual nationality is prohibited in Ukraine. 91. Estonia, Latvia and Lithuania prohibit dual nationality. According to the census for the year 2000, there were around 200 dual nationals in Estonia. There are around 700 dual nationals in Lithuania. No figures are available for Latvia. Around a quarter of the population of Estonia and Latvia is ethnically Russian. 92. In the States of the former Yugoslavia, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia” allow dual citizenship, although Croatia and Slovenia seek to exclude it for naturalised citizens. In Bosnia and Herzegovina and Montenegro, dual nationality is permitted only in respect of States with which a bilateral agreement has been concluded. The populations of most of these States are ethnically mixed. Montenegro (43% Montenegrin; 32% Serb; 8% Bosniak; 17% other) and Bosnia and Herzegovina (48% Bosniak; 37.1% Serb; 14.3% Croat; 0.6% other) have the most ethnically mixed populations, followed by “the former Yugoslav Republic of Macedonia” (64.2% Macedonian; 25.2% Albanian; 10.6% other). The numbers of dual nationals in these countries is not known. None of these States prohibit dual nationals from standing for Parliament. 93. In the twenty-seven member States of the European Union, sixteen allow dual nationality, five prohibit it or allow it only in exceptional circumstances (the Czech Republic, Denmark, Greece, Lithuania and Poland) and six (Austria, Estonia, Germany, Latvia, the Netherlands and Spain) allow it in certain circumstances, to varying extents. Two States – Bulgaria and Lithuania – prohibit the election of dual nationals to Parliament. Further limitations exist in three States (Latvia, Malta and Portugal – see paragraphs 87-88 above). | 0 |
train | 001-5416 | ENG | CYP | ADMISSIBILITY | 2,000 | LYSSIOTIS v. CYPRUS | 4 | Inadmissible | Nicolas Bratza | The applicant is a Cypriot national and a pensioner, born in 1923 and living in Larnaca. A. The facts of the case, as submitted by the applicant, may be summarised as follows. On 28 March 1973 the applicant acquired a plot of land measuring 1 and 3/4 acres. On 24 March 1977 the Ministry of Transport decided to expropriate 1 and 1/4 acres (1719 square metres) of the applicant's land in order to construct the Nicosia-Limassol highway (administrative act 234/24.3.77). On 9 January 1981 another 850 square feet (79 square metres) were expropriated (administrative act 10/9.1.91). On 13 August 1983 the Land Registry Office of the Province of Limassol offered the applicant 4,200 Cyprus pounds by way of compensation. The applicant rejected this offer on 24 September 1983. On 10 December 1985 a second offer of 3,880 pounds was made to the applicant, which he rejected as well. On 4 September 1987 the Land Registry referred the case of the applicant, together with other similar cases, to the District Court (Eparhiako Dikastirio) of Limassol (reference No. 29/87). On 20 November 1987 Mr. G.G., a lawyer practising in Cyprus, declared before the District Court that he would be representing the applicant in the proceedings. The applicant signed a power of attorney authorising G.G. to act on his behalf in the specific case. On 17 June 1988 Law 84/88 was enacted providing for the recalculation of compensation awarded in expropriation cases. On 28 September 1988 an offer of 21,240 pounds was made to the applicant, which he accepted on 3 October 1988. The applicant was not, however, paid this sum, as the Republic lodged, on an unspecified date, an appeal with the Supreme Court (Anotato Dikastirio) challenging the applicability of the new law in cases of expropriation pending before the courts. On 29 September 1989 the Supreme Court considered that the provisions of Law 84/88 did not apply in cases of expropriation pending before the courts. Following this decision, the applicant was informed on 18 November 1989 that the offer made to him on 28 September 1988 had no legal basis and was null and void. Consequently, the District Court of Limassol resumed its examination of case No. 29/87. According to the Government, the proceedings before the District Court followed the course which is described below. On 13 November 1990 G.G. was summoned to appear before the District Court of Limassol on behalf of the applicant at a hearing on 21 December 1990. On 21 December 1990 Mr. B. appeared before the District Court on behalf of the applicant, replacing G.G. The District Court decided to adjourn the hearing until 22 February 1991. At the hearing of 22 February 1991 the applicant was represented by Mr. I., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 29 March 1991. On 26 February 1991 G.G. entered a claim on behalf of the applicant. At the hearing of 29 March 1991 the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn until 15 May 1991. At the hearing of 15 May 1991 the applicant was represented by Mr. K., acting on behalf of G.G. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant and certain other persons, until 14 June 1991. At the hearing of 14 June 1991 the applicant was again represented by K., acting on behalf of G.G. The District Court decided to adjourn the case until 27 September 1991. At the hearing of 27 September 1991 the applicant was represented by G.G. The District Court decided to adjourn the case until 20 December 1991. On 20 December 1991 the District Court of Limassol held another hearing at which the applicant was not represented. G.G. was, however, present in his capacity as representative of certain other persons claiming compensation. The District Court decided to adjourn the examination of the case, insofar as it concerned the applicant, until 28 February 1992. At the hearing of 28 February 1992 the applicant was not represented. The District Court heard the case in his absence and decided to award him 8,696 pounds by way of compensation. On 10 August 1992 the Land Registry issued an order for the payment of this sum in favour of the applicant. On 10 November 1993 the applicant lodged an application with the European Commission of Human Rights. He complained of a violation of his rights under Article 1 of Protocol No. 1 in that he had not been paid adequate compensation for the expropriation of his land, and also of a violation of Article 6 § 1 of the Convention since he had not been heard in the determination of his civil rights and obligations. In the proceedings before the Commission, the applicant claimed that he was unaware of these developments. In a letter addressed to the Commission dated 28 July 1994 the applicant claimed that a year after he had received the letter of 18 November 1989 (informing him of the outcome of the proceedings before the Supreme Court and of the resumption of the proceedings before the District Court of Limassol) he went to the Registry of the District Court of Limassol. There he met a former judge, whom he knew by sight and the name of whom he would disclose to the Commission later, showed him the letter of 18 November 1989 and together they appeared before the Registrar who informed them that the case would be decided in Nicosia. The applicant also claimed that a year after he had received the letter of 18 November 1989 he visited the Limassol Court Registrar accompanied by a lawyer, Mr. V., in order to be informed of the date of the determination of lawsuit No. 29/87. The reply he received was that the case was under investigation in Nicosia without explanation by which body. The applicant stated that in November 1991 he assigned his case to a lawyer practising in Nicosia, Mr. E. Two days later E. informed the applicant that he could not represent him in the particular case. Towards the end of 1992 the applicant allegedly received a cheque dated 17 August 1992 for 8,696 pounds, with no covering letter, which he returned to the Limassol Land Registry on 20 January 1993. The applicant stated that in October 1993 he contacted the Attorney General's Office, where he was informed that case No. 29/87 had been heard and that he could no longer appeal against the decision of the Provincial Court. On 17 November 1993 the applicant wrote to the Ministry of Transport and Public Works complaining that he had not been invited to participate in the proceedings before the District Court. By letter of 20 April 1994 the Ministry of Transport gave the applicant a detailed account of the history of the case. In the letter it is mentioned that the applicant was represented before the District Court by a lawyer from Larnaca, Mr. A.G, who has the same surname as G.G. Upon receipt of this letter, the applicant wrote on 4 and 26 May 1994 to A.G. asking him to clarify his role in the proceedings. In his second letter the applicant refers to a telephone conversation during which an employee of A.G. confirmed to the applicant that A.G. did not know anything about the proceedings. On 16 October 1996 the Commission declared the application inadmissible for non exhaustion of domestic remedies. The Commission noted that although the applicant claimed that when he was informed of the court decision fixing the amount of compensation the time-limit for lodging an appeal had expired, he could have asked for an extension and that nothing had been submitted which could lead to the conclusion that such an application would have had no prospects of success. On 29 September 1998 the applicant invited the District Court of Larnaca to grant him an extension of the time-limit to lodge an application under Order 33 Rule 5 of the Civil Procedure Rules in order to have the judgment of 28 February 1992 of the District Court of Limassol set aside. He alleged that he was confused by all the correspondence exchanged with the competent authorities and thought that the proceedings before the District Court of Limassol were adjourned. As a result, he did not consider it appropriate to pursue the proceedings. On 5 April 1999 the District Court of Larnaca dismissed the applicant’s request on the ground that his submissions were unfounded. The District Court noted that on 21 December 1990 a lawyer, Mr B., had appeared before it on behalf of the applicant and that at the hearing of 22 February 1991 the applicant had been represented by Mr I., acting on behalf of G.G. Furthermore, on 26 February 1991 G.G. had entered a claim on behalf of the applicant. However, it transpired from the minutes of the hearing of 27 September 1991 that the applicant had not appeared before the court on that date but was represented by G.G. The minutes did not specify whether this lawyer was from Larnaca or Limassol. The District Court concluded that the applicant had not shown any interest in the course of the proceedings until the District Court of Limassol delivered its judgment on 28 February 1992. Then for three years he remained indifferent and lodged an application with the European Commission. Six years and a half had elapsed between the judgment of 28 February 1992 and the introduction of the application under examination by the District Court. The applicant appealed to the Supreme Court, but the appeal was dismissed on 22 March 2000. It found that the District Court had exercised its unfettered discretion within the limits provided for by law. B. Relevant domestic law and practice Rule 14 of the Compensation Assessment Tribunal Rules of 1956 provides as follows: "If ... any party to a reference does not appear at (the) time and place (appointed for the hearing) the President or the Tribunal may hear and determine the ... reference in his absence and may make such order as to costs as he or it thinks fit." Order 33 Rule 5 of the Civil Procedure Rules, which apply mutatis mutandis by virtue of section 20 of the Compulsory Acquisition of Property Law of 1962, provides as follows: "Any judgment obtained where one party does not appear at the trial may in a proper case be set aside by the Court upon such terms as may seem fit, upon an application made within 15 days after the trial." Order 57 Rule 2 of the Civil Procedure Rules further provides as follows: "A Court ... shall have the power to extend ... the time-limits fixed by these rules, ..., upon such terms (if any) as the justice of the case may require." The courts enjoy unfettered discretion insofar as extensions of time-limits are concerned. This discretion is exercised in the light of the circumstances of each case and in the interests of justice. A case where the advocate has failed to appear at the trial, thus causing injustice to the case of his client, is a typical example of a case where the national court will find that the justice of the case requires an extension of the time-limit for filing an application under Order 33 Rule 5. However, long delays in asking for an extension require satisfactory explanation. | 0 |
train | 001-4718 | ENG | GBR | ADMISSIBILITY | 1,999 | L. v. THE UNITED KINGDOM | 1 | Inadmissible | Nicolas Bratza | The applicant is a British citizen, born in 1970, and resident in Manchester. She is represented before the Court by Messrs. Green & Co., solicitors practising in Manchester. The facts of the case, as they have been submitted by the parties, may be summarised as follows. A. The applicant is the mother of two children, E.L. and C.L., who were born respectively on 1 May 1990 and 11 December 1991. On 16 January 1993, E.L. was admitted in a serious condition to Booth Hall Children's Hospital, Manchester, after she had ingested a quantity of methadone. The child survived. At the time of the incident both the applicant and the children's father were registered heroine addicts. Both had been prescribed methadone as a substitute. The incident was investigated by the police and Manchester City Council, the local authority responsible for the children's welfare. The explanation given by the applicant was that the child had ingested the methadone accidentally. The police were of the view that the applicant had deliberately administered methadone to the child, who was suffering from toothache and who could not be pacified, in order to induce her to sleep, but considered there to be insufficient evidence to prosecute the applicant. Manchester City Council (hereinafter “the Council”) instituted care proceedings under the Children Act 1989 and obtained an emergency protection order in respect of the children from Manchester City Magistrates Court on 22 January 1993. On 29 January 1993, following the transfer of the proceedings to Manchester County Court, the Council obtained an interim care order which was thereafter renewed until the final order was made on 27 July 1994. On 6 May 1993, the applicant through her legal advisers sought the leave of the court under rule 4.23 of the Family Proceedings Rules 1991 for disclosure of the court papers, which included E.L.'s hospital case notes, for the purpose of preparing an expert's report dealing with the consumption of methadone by E.L. The District Judge made an order that: “The parents shall have leave to disclose to a medical expert the Court papers for the purposes of a report regarding the frequency of the consumption of methadone by <E.L.>. The identity of such report is to be disclosed to all parties. The report is to be filed by the 27 May 1993.” The order accorded with the general practice relating to the disclosure of expert evidence then pertaining in the County Court in child care proceedings, which procedure was subsequently endorsed by the Court of Appeal in Oxfordshire County Council v. M ((1994) Fam. 151). The effect of the order was that the report when filed would be available for inspection and copying by any party to the proceedings and the Guardian ad Litem. The applicant, though her legal advisers, commissioned a report from a consultant clinical pathologist, Dr F. He was instructed to advise whether, on the basis of the hospital case notes which had been released by the court, the ingestion of methadone by the child had been an isolated incident, or was one of a number of such incidents. In his report dated 10 August 1993, Dr F. concluded that there was no evidence of habituation to methadone, but went beyond the remit of his instructions to express doubts about the account of the incident which the applicant had given to the police. The report was lodged with the County Court pursuant to the District Judge's order of 6 May 1993. At that stage, notwithstanding that the report was adverse to their client's interests and tended to incriminate her, the applicant's lawyers did not appeal the order or apply to vary its terms. On 27 July 1994, by consent, the court made a residence order in respect of both children to the father with contact to the applicant, and granted supervision orders to the Council. The police, on learning of the existence of the report and that it tended to incriminate the applicant, applied to the County Court for an order that the report be disclosed to them. On 1 July 1994, the matter having been transferred for determination by the High Court, Judge Bracewell made an order authorising disclosure of the report to the police. The applicant appealed against the order on grounds (i) that the report was protected by legal professional privilege; (ii) that its disclosure would infringe her privilege against self-incrimination; and (iii) that the judge had erred in the exercise of her discretion in authorising the disclosure of the report. The applicant's appeal was dismissed by the Court of Appeal on 14 March 1995 who refused the applicant leave to appeal to the House of Lords. Leave was subsequently granted by the House of Lords on 22 May 1995. On 21 March 1996, by a majority of three to two, the House of Lords dismissed the applicant's appeal (see the Relevant Domestic Law and Practice for the reasons for the decision). Following a child protection conference, the children were removed from the Child Protection Register in June 1995, at which time it was reported that they were living happily with their father. The supervision order expired in July 1995 and the Council has had no further involvement. According to the Government, the Crown Prosecution Service, having considered the expert report and further statements obtained by the police, decided not to prosecute the applicant as there was insufficient evidence against her. B. Relevant domestic law and practice The law in relation to legal professional privilege and litigation privilege was analysed in some detail by the House of Lords in giving their judgment in the instant case. In giving the judgment of the majority, Lord Jauncey reasoned, inter alia, as follows: “<Various judgments have> all emphasised the important part which litigation privilege plays in a fair trial under the adversarial system. This raises the question of whether proceedings under <the Children Act 1989> are essentially adversarial in their nature. If they are, litigation privilege must continue to play its normal part. If they are not, different considerations may apply. I agree with the President <of the Family Division> that care proceedings are essentially non adversarial. Having reached that conclusion and also that litigation privilege is essentially a creature of adversarial proceedings it follows that the matter is at large for this House to determine what if any role it has to play in care proceedings. Before <Dr F.> could report it was necessary to obtain the leave of the District Judge under rule 4.23 <of the Family Proceedings Rules 1991> to disclose to him the court papers. His report appears to have been based entirely on the hospital case notes and there is no suggestion that he had any communication with the <applicant>. Accordingly all material to which he had access was material which was already available to the other parties. ... However in these proceedings which are primarily non-adversarial and investigative as opposed to adversarial the notion of a fair trial between opposing parties assumes far less importance. In the latter case the judge must decide the case in favour of one or other party upon such evidence as they choose to adduce however much he might wish for further evidence on any point. In the former case the judge is concerned to make a decision which is in the best interest of the child in question and may make orders which are sought by no party to the proceedings (sections 10(1)(b), 31(5), 34(5) <of the Children Act 1989>). Furthermore the court has wide powers under rule 4.11.(9)(10) <of the Family Proceedings Rules 1991> to require the guardian ad litem to obtain expert reports and other assistance. Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that the care proceedings under Part IV <of the Children Act 1989> are so far removed from the normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child. In reaching this conclusion I attach considerable importance to the following dictum of <the President of the Family Division> in the Oxfordshire case … : ‘If a party, having obtained the leave of the court, were to be able to conceal, or withhold from the court, matters which were of importance and were relevant to the future of the child, there would be a risk that the welfare of the child would not be promoted as the Children Act 1989 requires.’ I would add that if litigation privilege were to apply to Dr F.'s report it could have the effect of subordinating the welfare of the child to the interests of the appellant in preserving its confidentiality. This would appear to frustrate the primary object of the Act. ... The better view is that litigation privilege never arose in the first place rather than that the court has power to override it. It is excluded by necessary implication from the terms and overall purpose of the Act. This does not of course affect privilege arising between solicitor and client. ... Where a court is asked to make an order for disclosure compliance with which is likely to involve the danger of self-incrimination by the defendant an order producing such a result should not be made ... This, however, was not such a case. When the appellant applied for the order of 6 May 1993 the District Judge had no reason to suppose that the report which was sought might incriminate the person who was seeking it. In that situation he cannot be criticised for requiring disclosure of the report to all parties. It was only when the report became available that its possible incriminating effect became known and it was at that stage when the <applicant> was first in a position to advance her claim to privilege by seeking a variation of that part of the order which required the report to be filed. In the event she filed the report without taking any steps to assert a claim of privilege. Thus the <applicant> voluntarily initiated the process, did not appeal the order when it was made and obtempered it without seeking a variation notwithstanding the unfavourable nature of the report had by then become apparent.” In giving the judgment of the minority, Lord Nicholls gave amongst his reasons the following : “... The expression adversarial carries with it a connotation of confrontation and conflict. Ideally, these characteristics have no place in family proceedings. In family proceedings all parties should be working together to assist the court in finding the answer which will best promote the welfare of the child. In practice matters are not so simple. A father who is alleged to have sexually abused his stepdaughter is concerned to protect his own reputation as well as his family life. He can hardly be blamed if he regards the proceedings as no less confrontational and adversarial than any other civil proceedings. This feature throws little light, if any, on the present question. At bottom, the answer to the present question turns on what are the requirements of procedural fairness in the conduct of family proceedings. In this context the contrast between inquisitorial and adversarial needs handling with care, for at least two reasons. First, the contrast suggests that proceedings are either wholly adversarial or wholly inquisitorial. They partake wholly of one character or wholly of the other. This is not always so. Proceedings may possess some adversarial features and some inquisitorial features. Family proceedings are an example. Second, and more importantly, the contrast can all too easily divert attention from the crucial question. Fairness is a universal requirement in the conduct of all forms of proceedings, inquisitorial as much as adversarial, although the requirements of fairness vary widely from one type of proceedings to another. The requirements of fairness depend upon matters such as the nature of proceedings, the subject matter being considered, the rules governing the conduct of the proceedings, the parties involved, the composition of the tribunal, and the consequences of the decision. The distinction between the adversarial and inquisitorial nature of proceedings is no more important than one of these elements, although sometimes a very important element. The crucial question is not whether, and to what extent, the proceedings are inquisitorial rather than adversarial. The question to be addressed is what is required if the proceedings are to be conducted fairly. Family proceedings are court proceedings. The court has to make decisions affecting, often profoundly, the whole future of a child and his or her family. Whenever necessary, the court makes findings of fact. It goes without saying that the parties to such proceedings are entitled to have a fair hearing. Whatever fairness does or does not require in other contexts, in this context a fair hearing includes at least the right to present one's case and to call evidence. Under English law an established ingredient of this right is legal professional privilege. Parties preparing for a court hearing may obtain legal advice in confidence. A party cannot be required to disclose communications between himself and his lawyer, or communications between the lawyer and third parties which come into existence for the purposes of obtaining legal advice in connection with proceedings. A proof of evidence from a witness is not disclosable. Nor is a report obtained from a potential witness of expert opinion. A party may be required to produce a witness statement or expert's report in advance as a pre-condition to the admission of that evidence at the hearing, but he is not required to disclose proofs of witnesses whose evidence he does not intend to adduce at the hearing. The public interest in a party being able to obtain informed legal advice in confidence prevails over the public interest in all relevant material being available to courts when deciding cases. I can see no reason why parties to family proceedings should not be as much entitled to a fair hearing having these features and safeguards as parties to other court proceedings. Indeed, it must be doubtful whether a parent who is denied the opportunity to obtain legal advice in confidence is accorded the fair hearing to which he is entitled under article 6(1), read in conjunction with article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. ...<A>n expert can be compelled to give evidence on an issue in the proceedings, even if he has already made a privileged report to a party who decides to put that report in evidence. I must now address an argument that, this being so, imposing a condition is no more than sound and sensible case management. When the court imposes the condition it is doing no more than achieve, by a convenient and expeditious route, a result the court could in any event achieve: production of the expert's evidence on an issue in the proceedings. If this were the only effect of a disclosure condition, I would agree with the submission. In practice, however, a disclosure condition would be bound to have an inhibiting effect on communications between the solicitor and the expert. An expert's report usually has to be read in conjunction with the letter of instructions. The solicitor would always be looking over his shoulder, conscious he is writing an “open” and not privileged letter. The expert would need to confine himself strictly to the issue on which his advice is compellable, and not range more widely, because his report also would be open and not privileged. These would be significant inroads into the freedom and frankness of confidential communication which the privilege exists to secure. For this reason a disclosure condition goes beyond the convenient ordering of evidence. This mischief is not cured by giving a party leave to return to the court and apply for the disclosure condition to be lifted after the report has been prepared. There could be no certainty that the condition would be lifted. So at the earlier stage, when the report is being obtained, the inhibitions on freedom of communication would still be present. Your Lordships were told <by counsel for the applicant> that the present practice is a cause of considerable anxiety to parents. I would expect this to be so. There are bound to be problems when confidentiality is removed from communications a party needs to make in preparing properly for a hearing. I do not think the present practice can be regarded as satisfactory.” | 0 |
train | 001-108072 | ENG | GBR | GRANDCHAMBER | 2,011 | CASE OF AL-KHAWAJA AND TAHERY v. THE UNITED KINGDOM | 1 | No violation of Art. 6-1+6-3-d;Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award | Alvina Gyulumyan;András Sajó;Christos Rozakis;Corneliu Bîrsan;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Stefan Trechsel;Sverre Erik Jebens | 9. The first applicant was born in 1956 and lives in Brighton. The facts which gave rise to his application are as follows. 10. While working as a consultant physician in the field of rehabilitative medicine, the first applicant was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. The first count in the indictment alleged that he had indecently assaulted a woman called S.T. during a consultation on 3 June 2003. The second count in the indictment alleged that he had indecently assaulted a woman called V.U. also during a consultation, this time on 12 June 2003. 11. For reasons unrelated to the alleged assault, S.T. committed suicide before the trial. However, several months after the alleged assault, she had made a statement to the police. She had also told two friends, B.F. and S.H., that the applicant had indecently assaulted her. 12. On 22 March 2004 a preliminary hearing was held to determine whether S.T.’s statement should be read to the jury. At that hearing, the defence indicated that the defence to each count of the indictment was essentially the same, namely that S.T. and V.U.’s allegations were wholly untrue. The judge at the hearing decided that S.T.’s statement should be read to the jury at trial. He observed that the first applicant was very likely to feel that he had no realistic alternative other than to give evidence in order to defend himself on the second count relating to V.U. Therefore, the reading of S.T.’s statement would not have the effect of making it very difficult for the applicant not to give evidence. The judge also noted that collusion between S.T. and V.U. was not alleged, and so that issue did not need to be investigated by cross-examination of each woman. 13. Having regard to the contents of S.T.’s statement, the judge also observed that it was crucial to the prosecution on count one as there was no other direct evidence of what took place during the consultation on 3 June 2003. He said: “[P]utting it bluntly, no statement, no count one.” He went on to observe that the real issue was whether it was likely to be possible for the first applicant to controvert the statement in a way that achieved fairness to the defendant. The judge found that the first applicant could give evidence as to what had happened during the consultation. It was also the intention of the prosecution to call S.T.’s friends to give evidence as to what she had said to them. There were inconsistencies between their statements and S.T.’s, which provided a route by which S.T.’s statement could be challenged. An expert witness would also be called by the prosecution to give evidence on altered perception during hypnosis and cross-examination of that witness might also serve to undermine S.T.’s credibility. 14. At the trial, once S.T.’s statement had been read, the jury heard evidence from B.F. and S.H., S.T.’s friends. S.T.’s general practitioner also gave evidence as to a letter he had written on S.T.’s behalf to the hospital authorities, which outlined S.T.’s allegations against the first applicant. In respect of the second count, the indecent assault upon V.U., evidence was given by V.U. and by the police officers who had investigated the case. Evidence was then given by two women who alleged that the first applicant had made improper suggestions to them during hypnosis consultations. That evidence was relied on by the prosecution as “similar fact evidence” to support the evidence of S.T. and V.U. As the prosecution had indicated, expert evidence was given as to the effects of hypnosis. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence. The first applicant gave evidence in his own defence. He also called a number of witnesses, who gave evidence as to his good character. 15. In his summing up, the trial judge directed the jury, on two separate occasions, as to how they should regard S.T.’s statement. Firstly, he stated: “It is very important that you [the jury] bear in mind when considering her [S.T.’s] evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence tested in cross-examination [by counsel for Mr Al-Khawaja], who would, undoubtedly, have had a number of questions to put to her.” 16. He later stated: “... bear in mind ... that this evidence was read to you. The allegation is completely denied ... you must take that into account when considering her evidence.” 17. When referring to the evidence of S.T.’s friends, the trial judge reminded the jury that there was an inconsistency between S.T.’s account of the consultation and the account given by S.H. (in her statement S.T. said that the applicant had touched her face and mouth; S.H. gave evidence that it was S.T. herself and not the first applicant who had touched her face and mouth). The trial judge continued: “It is for you to decide the extent to which the evidence of [B.F.] and [S.H.] helps you in deciding whether or not [S.T.] has spoken the truth in her statement. But bear in mind the evidence as to what [S.T.] said to [B.F.] and [S.H.] is not independent evidence as to the truth of her allegations.” 18. The trial judge also instructed the jury that they were entitled to consider the evidence of V.U., and of the other two women who had given evidence as to the improper suggestions made by the first applicant, when deciding whether S.T.’s statement was true. However, the jury firstly had to discount the possibility of collusion between the four women. Secondly, they had to ask themselves whether it was reasonable that four people independently making similar accusations could all either be lying or mistaken or have all suffered similar hallucinations or false memory. If the jury thought that incredible, they could be satisfied that S.T. and V.U. had spoken the truth. The trial judge also directed the jury that the greater the similarity between the allegations, the greater the likelihood that the four women were telling the truth. He added that the jury also had to consider whether the women could have consciously or unconsciously been influenced by hearing of the complaints of the others. 19. In the course of their deliberations, on two occasions the jury asked for clarification of points raised in the statement of S.T. On 30 November 2004, the first applicant was convicted by a unanimous verdict of the jury on both counts of indecent assault. He was sentenced to a fifteen-month custodial sentence on the first count and a twelve-month custodial sentence on the second count, to run consecutively. 20. The first applicant appealed against his conviction to the Court of Appeal. The appeal centred on the pre-trial ruling to admit S.T.’s statement as evidence. It was also submitted that, in his summing up, the trial judge did not give adequate directions to the jury as to the consequential disadvantage of this evidence to the first applicant. 21. The appeal was heard and dismissed on 6 September 2005. In its written judgment handed down on 3 November 2005 the Court of Appeal concluded that the first applicant’s right to a fair trial had not been infringed. With regard to the admission in evidence of the statement of S.T., the court held that it was not necessarily incompatible with Article 6 §§ 1 and 3 (d) of the Convention. Relying on Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996II), the court held that the admissibility of evidence is primarily a matter of domestic law. It then found: “25. The important factors in the present case are the following. The witness, S.T., could not be examined on behalf of the [first applicant] because she had died. She was the only witness whose evidence went directly to the commission of an indecent assault on her by the appellant. If her statement had been excluded, the prosecution would have had to abandon the first count. The [applicant] was able to attack the accuracy of [S.T.’s] statement by exploring the inconsistencies between it and the witnesses, [B.F.] and [S.H.], and through the expert evidence relating to ‘altered perception’ under hypnosis. The relevant sections of the 1988 Act [see paragraph 41 below] contained provisions designed to protect defendants, which were properly considered by the judge, before the statement was admitted in evidence. Lastly, the tribunal of fact, here the jury, could and should take proper account of the difficulties which the admission of a statement might provide for the [applicant], which should be provided by an appropriate direction to the jury. 26. Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick [see paragraph 48 below] we do not consider that the case-law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6 § 3 (d) that a person charged shall be able to [have] the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is ‘whether the proceedings as a whole, including the way the evidence was taken, were fair’ – Doorson, paragraph 19 [see paragraph 58 below]. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph.” 22. Turning to the issue of the trial judge’s summing up, the court stated: “We consider that it would have been better if the judge had stated explicitly that the [first applicant] was potentially disadvantaged by the absence of [S.T.] and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of [S.T.’s] statement being in evidence in her absence, and that this is not a factor which might make the [first applicant’s] trial unfair and in breach of Article 6. We should also say that overall the evidence against the [first applicant] was very strong. We were wholly unpersuaded that the verdicts were unsafe.” 23. The Court of Appeal refused leave to appeal to the House of Lords but certified that a point of law of general public importance was involved in the decision. 24. On 30 November 2005 the first applicant petitioned the House of Lords on the point of law certified by the Court of Appeal. On 7 February 2006 the House of Lords refused the petition. 25. The second applicant was born in 1975. His application arises from his conviction for wounding with intent. The background to that conviction is as follows. 26. On 19 May 2004, S., a member of the Iranian community living in London, was involved in an altercation with some Kurdish men. The second applicant interposed himself between S. and the Kurdish men in order to protect S. In the small hours of the morning of 20 May 2004, S. and the second applicant met again outside an Iranian restaurant in Hammersmith, London. The second applicant asked S to have a word with him and led him into a nearby alleyway. The men began discussing the earlier altercation. Although S. denied throwing the first punch, he conceded while giving evidence at the second applicant’s trial that he had punched the second applicant. In the fight, the second applicant pushed S. back and, at this stage, S. became aware of a burning sensation in his back, which proved to be the result of three stab wounds to his back. S. and the second applicant had been face-to-face and S.’s account was that he neither saw the second applicant stab him, nor was he aware of the second applicant going behind him or reaching round his back, so as to stab him. 27. During the fight other men were present, including the Kurdish men from the earlier altercation. A friend of S., another member of the Iranian community called T., was there, as were two of T.’s friends and the second applicant’s uncle. S could not say which of the men were behind him. 28. S. saw a knife lying on the ground and he realised that he had been stabbed. In his evidence at the second applicant’s trial (see paragraph 32 below), he stated that he went to pick it up but that either the second applicant or T. had picked it up and thrown it towards the restaurant. S. assumed that it had been the second applicant who had stabbed him. According to S., the second applicant immediately denied this. He told S. to sit down beside him and attempted to staunch the blood flow from S.’s wounds until an ambulance arrived; when it did, he accompanied S to the hospital. At the hospital, the second applicant told the police that he had seen two black men stab S. 29. When witnesses were questioned at the scene, no one claimed to have seen the second applicant stab S. Two days later, however, T. made a statement to the police that he had seen the second applicant stab S. In his statement, T. recounted that, when the second applicant and S. had begun fighting in the alleyway, T. had tried to separate them. He then saw the second applicant hold S. by the neck, hold up the knife and stab S. twice in the back. As T. moved towards the second applicant, the second applicant tried to stab T. in the neck. According to T., the second applicant then dropped the knife and shouted “don’t tell the police”. 30. On 3 November 2004 the second applicant was arrested and taken to Hammersmith police station. In interview, he denied stabbing S. and again stated that two black men were responsible. He was charged with wounding with intent and also with attempting to pervert the course of justice for telling the police, at the hospital and at the police station, that he had seen two black men stab S. 31. On 25 April 2005 the second applicant’s trial began at Blackfriars Crown Court. That day, he pleaded guilty in respect of the charge of attempting to pervert the course of justice but maintained his not guilty plea in respect of the charge of wounding with intent. 32. S. gave evidence for the prosecution. He recounted how he and the second applicant had fought in the alleyway. After a minute he realised that he had been injured in the back. He had not seen who stabbed him. The second applicant had made him sit down and had covered the wound. S. had asked the second applicant who had stabbed him and the second applicant had denied that it was him. When cross-examined, S. accepted that he had not seen the second applicant go behind him and that they had been face-to-face. He also testified that he had heard someone shout to him “Tell him it was the blacks”; the voice did not belong to the second applicant. 33. After S had given evidence, the prosecution made an application for leave to read T.’s statement pursuant to section 116(2)(e) and (4) of the Criminal Justice Act 2003 (“the 2003 Act”; see paragraphs 43-45 below). The prosecution argued under the 2003 Act that T. was too fearful to attend trial before the jury and that he should qualify for special measures. The trial judge heard evidence from a police officer conducting the case who testified that the Iranian community was close-knit and that T.’s fear was genuine. T. also gave evidence to the trial judge (but not the jury) from behind a screen. He told the judge that he was in fear for himself and his family because of visits and telephone calls he had received, none of which were said to have been from the second applicant. He did not say who had been responsible for the visits and telephone calls. 34. In ruling that leave should be given for the statement to be read to the jury, the trial judge stated: “I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear; and I base that not only on his oral testimony, but also upon my opportunity while he was in the witness box to observe him. I therefore have to go on to consider the questions posed in [section 116(4) of the 2003 Act]. Subsection 4(a) requires me to look at the statement’s contents. I have done so. It is submitted by the defence that they may be unreliable; there being some inconsistencies with the evidence that was given by [S.]. There will always be cases, whether it be oral evidence or evidence that is read, where there are inconsistencies. It is always for the jury to come to a conclusion, based upon submissions of counsel and the evidence that they have heard, as to whether the evidence is reliable or not. And they will receive from me the appropriate warning when the time comes as to how they should view that statement. It is further submitted that in looking at the statement, it is a statement of great importance; in that it is from a person who purports to witness the incident and consequently goes to the heart of the matter. In my view, it is precisely this type of witness who is likely to be put in fear, and consequently that must have been what Parliament had in mind when it enacted this particular section. I therefore have to look, having looked at the contents of the statement, to any risk its admission or exclusion will result in unfairness to any party to the proceedings. I am satisfied that there would be an unfairness caused by its exclusion; but I am equally satisfied that no unfairness would be caused by its admission. And in doing so, I have taken into account the words of [the 2003 Act]; in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence. Challenge of a statement does not always come from cross-examination. Challenge of a statement can be caused by evidence given in rebuttal; by either the defendant, if he chooses to do so, or by any other bystander – and we know that there were some – who were on the street at that time. Consequently I am satisfied that the defendant’s evidence, if he chooses to give it, would be sufficient to rebut and to challenge the evidence that is contained in that statement. I have further considered other relevant factors, and I have also offered to the witness whilst he was in the witness box behind screens the possibility of him giving evidence with the same special measures in place. He told me his position would not change; that he could not give evidence before a jury, and the reason that he could not was because he was in fear. Having taken all those matters into account in those circumstances, I am satisfied that this is the type of case which Parliament envisaged might require a statement to be read.” 35. T.’s witness statement was then read to the jury. Evidence was also given by the doctor who had treated S. at hospital as to the nature of the wound and by a forensic scientist who had tested the blood found on the second applicant’s clothes and confirmed it matched that of S. (though no firm conclusions could be drawn as to how it had been deposited on the clothes). The record of the second applicant’s interview by the police was also tendered by the prosecution (see paragraph 30 above). 36. The second applicant gave evidence in his defence. He stated that he had been present at the earlier altercation with the Kurdish men. When he and S. later met outside the restaurant, he had taken S. by the hand and suggested that they go and talk, but S. had begun to punch him. He had defended himself by grabbing S. by the collar and pushing him. T. had then tried to intervene and a number of other members of the Iranian community had restrained S. T. had been standing between S. and the second applicant and, at this stage, the second applicant noticed the knife on the ground. He had picked it up and thrown it, not knowing at this point that S. had been stabbed. When S blamed him for the stabbing, the second applicant had told him to sit down and had successfully calmed him down. He placed his hand on the wound on S.’s back. S. then appeared to accept that the second applicant had not stabbed him. The second applicant also gave evidence that he had told the police that two black men were responsible because this was what his uncle had told him to say. Finally, the second applicant gave evidence that, before he had been interviewed by the police, T. had told him that he, T., knew that the second applicant had not stabbed S. 37. The judge, in his summing up, warned the jury about the danger of relying on the evidence of T. He stated: “That evidence, as you know, was read to you under the provisions that allow a witness who is frightened, it is not a question of nerves it is a question of fright, fear, for his statement to be read to you but you must be careful as to how you treat it. It is right, as has been pointed out by the defence, that they were deprived of an opportunity to test that evidence under cross-examination. It is right also that you did not have the advantage of seeing the witness and his demeanour in court. You did not have the opportunity for him to think back and say ‘possibly because of things I saw I put two and two together and made five’, as counsel for the defence invites you to say. In other words, you must always be alert to [the fact] that he could put things that he did see together and come to the wrong conclusion. That is a way of examining the statement. You must ask yourselves ‘can we rely upon this statement? Is it a statement which we find convincing?’ It is only, if you are satisfied so that you are sure, that what is in the statement has accurately depicted what happened that night and what the witness saw, that you could rely upon it. That goes for any witness. It is only if you find that the evidence is compelling and satisfies you, so that you are sure, that you act upon it. So you must always ask yourselves ‘is the statement he made reliable?’ You must bear in mind also, importantly, that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear.” 38. On 29 April 2005 the second applicant was convicted by a majority verdict of wounding with intent to cause grievous bodily harm, for which he was later sentenced to nine years’ imprisonment to be served concurrently with a term of fifteen months’ imprisonment for the charge of attempting to pervert the course of justice to which he had pleaded guilty. 39. The second applicant appealed to the Court of Appeal, arguing that the inability to cross-examine T. infringed his right to a fair trial. The Court of Appeal acknowledged that the Crown accepted that T.’s statement was “both important and probative of a major issue in the case ... had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced”. The court upheld the reasoning of the trial judge, stating that there was available not only cross-examination of other prosecution witnesses but also evidence from the second applicant himself and the potential for evidence from other bystanders in order to prevent unfairness. It was also stated that the trial judge had explicitly warned the jury in detail as to how they should treat this evidence and properly directed them as to how they should consider it in reaching their verdict. Although the second applicant maintained that even a proper direction by the judge could not cure the unfairness, the Court of Appeal held that the jury was informed of all matters necessary to its decision-making process. Leave to appeal on conviction was refused on 24 January 2006. The Court of Appeal did, however, give the second applicant leave to appeal against his sentence and reduced the sentence of nine years’ imprisonment to seven years’ imprisonment. 40. Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony (see paragraph 20 of the judgment of Lord Phillips in R. v. Horncastle and others, summarised at paragraphs 57 to 62 below). As a general rule it is inadmissible in a criminal case unless there is a common-law rule or statutory provision which allows for its admission. The relevant statutory provisions applicable to each applicant are set in the following section. Those statutory provisions are supplemented by three common-law principles. Firstly, there is an additional discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This, in turn, is supplemented by section 78 of the Police and Criminal Evidence Act 1984, which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. Secondly, if hearsay evidence is admitted and the jury have heard it, the trial judge, in his summing up, must direct the jury as to the dangers of relying on hearsay evidence. Thirdly, in a jury trial, the jury must receive the traditional direction as to the burden of proof, namely that they must be satisfied of the defendant’s guilt beyond reasonable doubt. 41. At the time of the first applicant’s trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988 (“the 1988 Act”). Section 23 of the 1988 Act provides for the admission of first-hand documentary hearsay in a criminal trial: “23. ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if— (2) ... (a) ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness; ... 25. (1) If, having regard to all the circumstances— (a) the Crown Court— (i) on a trial on indictment; (ii) on an appeal from a magistrates’ court; or (iii) on the hearing of an application under section 6 of the Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates’ court to Crown Court); or (b) the criminal division of the Court of Appeal; or (c) a magistrates’ court on a trial of an information, is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard— (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. 26. Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared ..., for the purposes— (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard— (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant ...” Schedule 2 to the Act allows for the admission of evidence relating to the credibility and consistency of the maker of the statement, where such evidence would have been admissible had he or she given evidence in person, or where the matter could have been put to him or her in cross-examination. The Schedule also provides that, in estimating the weight, if any, to be attached to such a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. 42. In its report of April 1997, entitled “Evidence in Criminal Proceedings: Hearsay and Related Topics”, the Law Commission recommended a series of reforms to the law of hearsay in England and Wales, including the provisions contained in the 1988 Act. In addition to recommending clarification of the conditions under which a witness statement could be admitted at trial (including the existing grounds of death and fear), the Commission proposed that there should be a limited discretion to admit hearsay evidence that did not fall within any other statutory or common-law exception (recommendation 28). In its earlier consultation paper, published in January 1995, the Commission had reviewed the case-law of this Court on Article 6 § 3 (d) and concluded that there was a risk of a breach of the Convention where a person stood to be convicted on hearsay evidence alone. The Commission considered that this risk was sufficiently serious to warrant requiring the trial court to stop the case where hearsay is the only evidence of an element of the offence (paragraph 9.5 of the consultation paper). After criticisms of this proposal (principally that it was unduly cautious and was beset with practical difficulties), in its 1997 report the Commission decided not to maintain its proposal (see paragraphs 5.33-5.41 of the report). It concluded instead that the adequate protection would be provided by the safeguards it proposed, in particular its recommendation 47, which proposed giving the trial judge the power to stop a case if hearsay evidence was unconvincing (see paragraph 45 below). 43. Part 11, Chapter 2 of the Criminal Justice Act 2003 (“the 2003 Act”) came into force in April 2005. It was intended to reform substantially the law governing the admission of hearsay evidence in criminal proceedings on the basis of the draft bill proposed by the Law Commission. Under section 114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. Although it was not relied upon in the second applicant’s case, one such “gateway” is section 114(1)(d) which allows for the admission of hearsay evidence if the court is satisfied that it is in the interests of justice for it to be admissible. Section 114(2) provides: “In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it.” 44. The “gateway” relied on in the second applicant’s case was section 116, which allows for the admission of statements of absent witnesses. Section 116, where relevant, provides: “(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction; and (c) any of the five conditions mentioned in subsection (2) is satisfied. (2) The conditions are— (a) that the relevant person is dead; (b) that the relevant person is unfit to be a witness because of his bodily or mental condition; (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard— (a) to the statement’s contents; (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence); (c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person; and (d) to any other relevant circumstances. (5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a) by the person in support of whose case it is sought to give the statement in evidence; or (b) by a person acting on his behalf; in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).” 45. By section 121 of the 2003 Act, section 116(2)(e) can only be relied upon in respect of first-hand hearsay; it cannot be relied only to allow the admission of multiple hearsay. In addition, section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example through the admission of evidence of his bad character, including previous convictions, a propensity to be untruthful and so on. It also allows the admission of inconsistent statements that the witness has made. Section 124(2) allows the admission of evidence to challenge the credibility of the absent witness in circumstances where it would not be admissible in respect of a live witness, for example when it relates to a collateral issue in the case. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe. This enacted the Law Commission’s recommendation 47 (see paragraph 42 above). Section 126 preserves both the common-law discretion and the section 78 discretion of the trial judge to exclude hearsay evidence (see paragraph 40 above). It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”. 46. The conditions under which witnesses can give evidence anonymously in criminal proceedings are now regulated by the Coroners and Justice Act 2009 (“the 2009 Act”). Formerly, this was regulated by similar provisions in the Criminal Evidence (Witness Anonymity) Act 2008, which was enacted following the House of Lords’ judgment in R. v. Davis (see paragraphs 49 and 50 below). Under the 2009 Act, witnesses can only give evidence anonymously when, upon the application of either the prosecution or a defendant in the proceedings, the trial judge makes a “witness anonymity order”. Section 87 requires that the trial judge be informed of the identity of the witness. Sections 88(2)-(6) and 89 lay down the conditions for the making of a witness anonymity order. In deciding whether those conditions are met, the court must have regard, inter alia, to whether evidence given by the witness might be the sole or decisive evidence implicating the defendant (section 89(2)(c)). 47. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 48. This Court’s judgment in Lucà v. Italy (no. 33354/96, § 40, ECHR 2001II) was considered by the Court of Appeal in R. v. Sellick and Sellick [2005] EWCA Crim 651, which concerned two defendants who were alleged to have intimidated witnesses. Leave was given by the trial judge to have the witnesses’ statements read to the jury. The defendants appealed on the ground that the admission of the statements breached Article 6 § 1 of the Convention read in conjunction with Article 6 § 3 (d). The Court of Appeal dismissed the appeal. In considering the relevant case-law of this Court, at paragraph 50 of its judgment, it stated that what appeared from that case-law were the following propositions: “(i) The admissibility of evidence is primarily for the national law; (ii) Evidence must normally be produced at a public hearing and as a general rule Article [6 §§ 1 and 3 (d)] require a defendant to be given a proper and adequate opportunity to challenge and question witnesses; (iii) It is not necessarily incompatible with Article [6 §§ 1 and 3 (d)] for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article [6 § 3 (d)] is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair; (iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.” The Court of Appeal then stated: “The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Lucà seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Lucà nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.” 49. In R. v. Davis [2008] UKHL 36, the House of Lords considered an appeal against conviction by a defendant who had been convicted of two counts of murder by shooting. Three witnesses had given evidence at trial identifying the defendant as the gunman. They gave evidence anonymously, testifying behind a screen so that they could be seen by the judge and jury but not the defendant. The House of Lords unanimously allowed the defendant’s appeal. It found that the witnesses’ testimony was inconsistent with the long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence, a principle which originated in ancient Rome (Lord Bingham at paragraph 5). Moreover, this Court had not set its face absolutely against the admission of anonymous evidence in all circumstances. However, it had said that a conviction should not be based solely or to a decisive extent on anonymous statements. In any event, on the facts in Davis’s case, this Court would have found a violation of Article 6: not only was the anonymous witnesses’ evidence the sole or decisive basis on which Davis had been convicted, but effective cross-examination had been hampered. 50. Lord Mance, concurring in judgment, considered the relevant authorities of this Court on Article 6. Having done so, he doubted that there was an absolute requirement that anonymous testimony should not be the sole or decisive evidence against a defendant. Instead, the extent to which such testimony is decisive might be no more than a very important factor to balance in the scales. He also considered that R. v. Sellick and Sellick (among other authorities) served as a caution against treating the Convention, or apparently general statements by this Court, as containing absolutely inflexible rules. 51. The Chamber judgment of 20 January 2009 in the present cases was considered by the Court of Appeal and the Supreme Court of the United Kingdom in R. v. Horncastle and others. The case concerned the appeals of four defendants who had been convicted on the basis of statements of absent victims, which were read at trial under section 116 of the 2003 Act. For two of the defendants, the maker of the statement had died. For another two, the witness was too fearful to attend trial. Their appeals were heard together with that of a fifth defendant, Carter, who had been convicted on the basis of business records, which were introduced at his trial. 52. On 22 May 2009 the Court of Appeal unanimously dismissed the appeals of the first four defendants ([2009] EWCA Crim 964). It accepted that Article 6 § 3 (d) had a content of its own but, given that it did not create any absolute right to have every witness examined, the balance struck by the 2003 Act was legitimate and wholly consistent with the Convention. There could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling. However, having regard to the safeguards contained in the 2003 Act, which were rigorously applied, there would be no violation of Article 6 if a conviction were based solely or to a decisive degree on hearsay evidence. Where the hearsay evidence was demonstrably reliable, or its reliability could properly be tested and assessed, the rights of the defence would be respected, there would be sufficient counterbalancing measures and the trial would be fair. It was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive. This had been considered and rejected by the Law Commission and Parliament when it enacted the 2003 Act. 53. There were also principled and practical difficulties with a sole or decisive rule. Firstly, as a principled difficulty, the test assumed that all hearsay evidence was unreliable in the absence of testing in open court, and secondly, it further assumed that the fact-finder (such as the jury) could not be trusted to assess the weight of the evidence. Neither assumption was justified. For the first, the Court of Appeal gave examples of hearsay evidence that would be reliable such as a victim who, before dying, revealed the name of his or her murderer. For the second, the Court of Appeal found that juries were perfectly able to understand the limitations of written statements and, under section 124 of the 2003 Act, would be provided with material about the maker of the statement (see paragraph 45 above). The mere fact that the evidence was an essential link in the chain of evidence against the accused did not alter that conclusion. For example, forensic evidence might depend on work done by unidentified laboratory assistants (and to that extent was hearsay). However, it was not necessary for every member of the laboratory who had worked with the evidence to be called in order for the strength of the evidence to be tested. 54. The court also found that there were practical difficulties with the sole or decisive rule as a test of admissibility of evidence. It observed: “It is clear from the judgment in Al-Khawaja [v. the United Kingdom] that the [European Court of Human Rights] took the view that the error had lain in admitting the hearsay evidence: see in particular paragraphs 37, 40, 42 and 46. Any test of admissibility must be one which can be applied in advance of the giving of the evidence, let alone of the outcome of the trial. A routine test of admissibility of evidence which can only be applied in retrospect, after the outcome of the trial is known, makes the trial process little more than speculative. Judge, jury, witnesses and parties may find themselves engaged in shadow-boxing without knowing whether the solemn result of the trial will stand to be reversed on the grounds that, as things have turned out, the test of admissibility was not met. Nor can any defendant decide how to conduct his case, and indeed whether or not to plead guilty, if he does not know what evidence can and cannot be relied upon. It will no doubt often be possible to identify in advance a case in which the hearsay evidence in question is the sole evidence against the accused. An obvious case is that of the single eyewitness case, with no suggested support from any other source. But this frequently may not be clear from the outset; there may be other evidence which the prosecution intends to present, but which, on hearing, turns out not to incriminate the accused, or is effectively demolished. Conversely, what appears at the outset to be hearsay evidence standing alone may sometimes come to be supported by other material as the evidence develops. A witness may add something of great significance not previously mentioned, or the significance of something always said may become apparent when apparently unconnected other evidence is given. In any case where there is more than one accused jointly charged, it is common experience that the evidence of one may well shed enormous light upon the guilt or innocence of another. So even the concept of ‘sole’ evidence is an impractical test for admissibility. It is, however, the second limb of the suggested test which is apt to cause the greatest difficulty. No one can know what evidence is decisive until the decisionmaking process is over. On no view can it be possible to rule in advance, at the stage when admissibility is in question, which evidence will be decisive ... The application of the test is made the more difficult yet if the meaning of ‘decisive’ is extended to encompass any evidence of which it can be said that, if it were absent, ‘the prospect of a conviction would have receded and that of an acquittal advanced’ (see paragraph 21 of Al-Khawaja). Indeed, if that is the test of what is decisive, virtually all evidence would qualify; evidence which does not, if accepted by the jury, advance the prospect of conviction will ordinarily be excluded as irrelevant.” The Court of Appeal also observed that the test would also be impossible to apply at a trial of two or more defendants, where one defendant sought to introduce hearsay evidence for his defence. In such a case, the trial judge would be bound to allow the defendant to introduce that evidence even if it might also incriminate one of the other defendants and indeed be decisive evidence against that other defendant. 55. The Court of Appeal also considered that the safeguard in section 125 of the 2003 Act (the power of a trial judge to stop the case if the hearsay evidence is unconvincing; see paragraph 45 above) provided for a “proportionate assessment of the reliability” of hearsay evidence and it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the hearsay evidence were the sole or decisive evidence. Sole or decisive hearsay could be wholly convincing and, equally, evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe. Where there was a legitimate argument that that hearsay was unconvincing and important to the case, the trial judge was required to make up his own mind as to whether a conviction would be safe; this involved assessing the reliability of the hearsay evidence, its place in the evidence as a whole, the issues in the case as they had emerged, Finally, the other safeguards contained in the 2003 Act were rigorously applied and the difficulties faced by defendants when hearsay was admitted were well understood by the courts. The Act did not equate hearsay with first-hand evidence; on the contrary it required cautious handling. 56. The Court of Appeal also gave guidance as to assessing when it would be appropriate to allow hearsay evidence to be introduced because a witness was in fear. There was, in the case-law of this Court, no requirement that the fear had to be attributable to the defendant, and the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed. The Court of Appeal added: “It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a long-standing requirement of the common law and recognised in Article 6 [§ 3 (d)]. It is only to be departed from in the limited circumstances and under the conditions set out in the [2003 Act]. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the [2003 Act] based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all. It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the judge and not for the police. In the case before us of Marquis and Graham [two of the appellants], as we set out at paragraphs 127 and 132, the judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the [2003 Act] requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the judge may have to rule under [section] 125 that a conviction relying upon it would be unsafe.” 57. On 9 December 2009 the United Kingdom Supreme Court unanimously upheld the Court of Appeal’s judgment ([2009] UKSC 14). Lord Phillips, giving the judgment of the Supreme Court, found that, although domestic courts were required by the Human Rights Act 1998 to take account of the Strasbourg jurisprudence in applying principles that were clearly established, on rare occasions, where a court was concerned that the Strasbourg judgment did not sufficiently appreciate or accommodate some aspect of English law, it might decline to follow the judgment. The Chamber judgment was such a case. 58. Lord Phillips considered that a defendant should not be immune from conviction where a witness, who had given critical and apparently reliable evidence in a statement, was unavailable to give evidence at trial through death or some other reason. In analysing the relevant case-law of this Court on Article 6 § 3 (d), Lord Phillips concluded that, although this Court had recognised the need for exceptions to the strict application of Article 6 § 3 (d), the manner in which it approved those exceptions resulted in a jurisprudence which lacked clarity. The sole or decisive rule had been introduced into the Strasbourg case-law in Doorson (cited above) without discussion of the underlying principle or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to continental and common-law jurisdictions. Indeed, the rule seemed to have been created because, in contrast to the common law, continental systems of criminal procedure did not have a comparable body of jurisprudence or rules governing the admissibility of evidence. 59. Lord Phillips, in agreement with the Court of Appeal, found that the rule would create severe practical difficulties if applied to English criminal procedure. Firstly, it was not easy to apply because it was not clear what was meant by “decisive”: under English criminal procedure no evidence could be admitted unless it was potentially probative and, in theory, any item of probative evidence could make the difference between conviction and acquittal. Secondly, it would be hard enough to apply that test at first instance but it would be impossible for national appellate courts or this Court to decide whether a particular statement was the sole or decisive basis for a conviction. In a jury trial, the only way the rule could be applied would be to exclude all hearsay evidence. 60. Lord Phillips also observed: “The sole or decisive test produces a paradox. It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon. There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction. There will, however, be some cases where the evidence in question is demonstrably reliable. The Court of Appeal has given a number of examples. I will just give one, which is a variant of one of theirs. A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard. He then returns to his own country, where he is himself killed in a road accident. The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard. The owner declines to answer questions as to his whereabouts at the time of the accident. It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test.” 61. Lord Phillips instead concluded that the 2003 Act made such a rule unnecessary in English criminal procedure because, if the 2003 Act were observed, there would be no breach of Article 6 § 3 (d) even if a conviction were based solely or to a decisive extent on hearsay evidence. To demonstrate this point, Annex 4 to the judgment analysed a series of cases against other Contracting States where this Court had found a violation of Article 6 § 1 when taken in conjunction with Article 6 § 3 (d). In each case, had the trial taken place in England and Wales, the witness’s testimony would not have been admissible under the 2003 Act either because the witness was anonymous and absent or because the trial court had not made sufficient enquiries to ensure there was good reason for the witness’s absence. Alternatively, had the evidence been admitted, any conviction would have been quashed on appeal. 62. Lord Brown delivered a concurring judgment in which he stated: “These appeals are of the utmost importance. If the Strasbourg case-law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to [Article 6 §§ 1 and 3 (d)] of the Convention, then the whole domestic scheme for ensuring fair trials – the scheme now enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 [see paragraph 46 above] – cannot stand and many guilty defendants will have to go free. It is difficult to suppose that the Strasbourg Court has in fact laid down so absolute a principle as this and, indeed, one exception to it, at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a witness absent as a result of the defendant’s own intimidation. ... Nor can Strasbourg readily be supposed to have intended the sort of practical problems and anomalies identified by the Court of Appeal (paragraphs 61-63 and 6871 [of its judgment]) that must inevitably flow from any absolute principle of the kind here contended for. Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the court be to ensure that it can be fairly adduced and is likely to be reliable. In this connection there can be no harm in using the concept of ‘sole or decisive’ so long as it is used broadly – as it is in the 2008 Act with regard to anonymous witnesses and, indeed, in the control order context where it relates rather to the allegations made against the suspect than the evidence adduced in support. Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application. The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v. the United Kingdom ...” 63. Subject to certain statutory exceptions, in Scots criminal law a person cannot be convicted of a crime or statutory offence on the uncorroborated testimony of one witness, however credible (see Morton v. HM Advocate 1938 JC 52, quoted in Campbell v. HM Advocate 2004 SLT 135). 64. Hearsay is regulated by section 259 of the Criminal Procedure (Scotland) Act 1995, which allows for its admissibility under certain conditions, including when the person who made the statement is dead. Section 259(4) permits evidence to be admitted which is relevant to the credibility of the person as a witness. In N v. HM Advocate 2003 SLT 761 the High Court of Justiciary, sitting as an appeal court, reluctantly reached the conclusion that section 259 deprived the court of the discretion it previously enjoyed at common law to exclude such evidence if it was unreliable. Lord Justice Clerk observed that, notwithstanding section 259, the long-recognised dangers in hearsay evidence remained. He added: “Where a general provision such as [section] 259 applies, there are bound to be cases in the circumstances of which hearsay evidence would be so prejudicial to the fairness of the trial that the only just and proper course would be to exclude it. This, I think, is such a case. I am not impressed by the three safeguards to which the trial judge referred (HM Advocate v. N, at p. 437C–E). The requirement of corroboration is a neutral consideration. It is a safeguard that applies to prosecution evidence in any form. I cannot see what worthwhile safeguard the principle of corroboration provides if the primary evidence sought to be corroborated is per se unfair to the accused. Moreover, the leading of evidence bearing upon the credibility of the maker of the hearsay statement may be at most an exercise in damage limitation where clearly prejudicial evidence has already been led. As for the safeguard of the judge’s directions, I think that there may be cases where the hearsay evidence is so prejudicial that no direction, however strong, could make adequate amends for the unfairness of its having been admitted. ... In English provisions governing the admissibility of a statement made in a document, Parliament has expressly conferred a discretion on the court to exclude such a statement if it is of the opinion that in the interests of justice it ought not to be admitted. One specific consideration to which the court must have regard is the risk that the admission of the evidence will result in unfairness to the accused (Criminal Justice Act 1988, [sections] 25(1), 25(2)(d) and 26(ii); cf. R. v. Gokal). These, in my view, are prudent provisions. If provisions of this kind had been available to the trial judge in this case, they could have enabled him to exclude the hearsay at the outset.” 65. The High Court of Justiciary also considered the compatibility of the introduction of the evidence of an absent witness with Article 6 § 3 (d) in McKenna v. HM Advocate. In that case, a murder trial, the prosecution sought to introduce statements made to the police by a possible co-accused who had since died. In a previous ruling given before trial (2000 SLT 508), the High Court of Justiciary, sitting as an appeal court, had found that it was only in extreme circumstances that an accused could contend in advance of trial that the introduction of the hearsay evidence would be so prejudicial to the prospects of a fair trial that the court could determine the issue in advance. It therefore allowed the trial to proceed. When the statements were introduced at trial and the accused was convicted, he appealed against his conviction. In its judgment dismissing the appeal (2003 SLT 508), the High Court of Justiciary found that, while the statements were important evidence, having regard to the other evidence led at trial (which included admissions by the accused and forensic evidence), it could not be said that the appellant’s conviction was based to a decisive extent on them. The jury had also been adequately and satisfactorily directed as to how to approach the absent witness’s statement. A similar conclusion was reached by the same court in HM Advocate v. M 2003 SLT 1151. 66. The compatibility of the admission of hearsay evidence with Article 6 § 3 (d) was further considered by the High Court of Justiciary in Campbell v. HM Advocate (cited above). The court observed that, in the relevant case-law of this Court, many of the violations of Article 6 § 3 (d) which had been found had arisen in jurisdictions which did not apply the Scots law rule of corroboration: “Most of the situations in which it has been held by the court that there had been a violation of [Article 6 §§ 1 and 3 (d)] could not arise in Scotland. Against the requirement for corroboration of all crucial facts, a conviction could not be based solely on the evidence of a single witness, whether in primary or in secondary form. Violations of the Convention right have been established where the principal witness against the accused has not been made available for questioning or, in circumstances where there have been a number of principal witnesses, where none of them has been made so available. No case was cited to us in which a violation was held to have occurred in circumstances where the accused had had an opportunity to question or have questioned the complainer or other direct or central witness and other supporting evidence was in statement form. ‘To a decisive extent’, as used in the European authorities, appears to be concerned with the significance of the evidence as a matter of weight. It is not concerned with any rule that a conviction cannot be based on a single source of evidence. The fact that the hearsay is required to meet the rule about corroboration does not of itself render that hearsay ‘decisive’ in the European sense. In these circumstances we are not persuaded that in every case in which hearsay evidence is a necessary ingredient of the Crown’s corroborated proof there will be a violation of [Article 6 §§ 1 and 3 (d)]. It will, however, be necessary for the trial judge to address, in the context of the whole evidence in the case, the significance of any hearsay evidence relied on by the Crown and to take appropriate action to ensure that the accused’s entitlement to a fair trial is not violated thereby.” 67. The court added that, in directing a jury, the guidance given by the Lord Justice Clerk in the case of N v. HM Advocate (cited above), should be borne in mind. The High Court allowed the appeal of the first appellant in the case of Campbell (cited above) because of the inadequacy of the trial judge’s direction to the jury. It dismissed the second appellant’s appeal in so far as it related to Article 6 of the Convention, finding that the hearsay evidence was not decisive and that the principal evidence against him came from a witness who had testified in court. 68. Campbell was applied in HM Advocate v. Johnston 2004 SLT 1005 where, in a ruling given during the trial, the Lord Ordinary allowed the admission of a witness statement made to the police by a witness who subsequently died before trial; the statement was admissible, inter alia, because it could not be “decisive”. In Humphrey v. HM Advocate [2008] HCJAC 30, the High Court of Justiciary observed that it had “great difficulty” in understanding the meaning of the word “decisive” in the context of a case based on circumstantial evidence but, in that case, the evidence in the form of a police statement of a witness who had died was not “remotely decisive” and there was sufficient evidence to support the conviction without it. Similar results were reached in Allison v. HM Advocate [2008] HCJAC 63, and Harkins v. HM Advocate [2008] HCJAC 69. 69. In its March 2010 Consultation Paper on Hearsay in Civil and Criminal Cases, the Law Reform Commission of Ireland provisionally recommended that, subject to existing common law and statutory inclusionary exceptions, hearsay should continue to be excluded in criminal proceedings. It also provisionally recommended that there should be no statutory introduction of a residual discretion to include hearsay evidence and that the concepts of reliability and necessity should not form the basis for reform of the hearsay rule because they lacked clarity. 70. The Commission also noted: “Article 38.1 of the Constitution of Ireland protects the right to cross-examination and that the free admissibility of hearsay evidence in criminal proceedings would infringe this constitutionally protected right. There are dangers associated with allowing evidence of unavailable witnesses: it undermines the defendant’s right to a fair trial and creates the potential of miscarriages of justice arising if evidence adduced from the following categories of witnesses is admitted: Where the witness is dead (with the exception of dying declarations); Where a witness because of a bodily or mental infirmity cannot give evidence; Where the witness is outside of the jurisdiction; Where the witness cannot be found.” 71. The Commission declined to recommend that the statutory scheme in England and Wales, and in particular section 114 of the 2003 Act, be adopted in Ireland. It observed: “This model of reform relaxes the rule in such a manner as to potentially render the rule against hearsay redundant. The categories of admissible hearsay under this model are extended significantly and, in light of the constitutional protection afforded to the right to cross-examination, the Commission is of the provisional opinion that to allow in untested evidence from frightened and unavailable witnesses would undermine this right. The Commission notes that it has provisionally recommended that the courts should retain a discretion to develop the hearsay rule if the necessity exists.” The Commission also found that (subject to possible reservations concerning the ultimate outcome in the present cases), the case-law of this Court appeared broadly in line with the approach taken in Irish law. 72. A strict approach to the exclusion of out-of-court statements has always been taken by the Australian courts (see, for example, Bannon v. The Queen (1995) 185 CLR 1). 73. The admission of hearsay in federal criminal proceedings in Australia is now regulated by the Evidence Act 1995. Section 65 of the Act allows the admission of evidence as to previous representations (for example statements) when a witness is not available to give evidence about an “asserted fact”. Such evidence will be admissible, inter alia, when: (i) the representation was made when or shortly after the asserted fact occurred in circumstances that make it unlikely that the representation is a fabrication (section 65(2)(b)); or (ii) when the representation was made in circumstances that make it highly probable that the representation was reliable (section 65(2)(c)). 74. The use of these provisions to admit the statement of a witness who died before trial was considered by the Federal Court of Australia in Williams v. The Queen (2000) 119 A Crim R 490. The court found that,, the statement made to the police was not sufficiently reliable, particularly when the witness had reasons to tell the police what they wanted to hear. Equivalent statutory provisions were considered by the Supreme Court of New South Wales in Harris v. The Queen (2005) 158 A Crim R 454, where the deceased complainant’s statement was found to be sufficiently reliable to be admitted, given that, inter alia, the complainant knew that the police would interview other witnesses in the case. 75. The law of hearsay in Canada has been reformed as a result of three principal decisions of the Supreme Court of Canada, which created a “principled approach” to the admissibility of hearsay evidence. 76. Firstly, in R. v. Khan [1990] 2 SCR 531, the Supreme Court found that the trial judge had erred in refusing to allow the victim, a three-and-a-half-year-old girl who alleged that she had been sexually assaulted, to give unsworn evidence and his refusal to allow the Crown to introduce statements the child had made to her mother fifteen minutes after the assault. If unsworn evidence could not be given there would be a danger that offences against very young children could never be prosecuted. In respect of the statements to the mother, the Supreme Court found that it was appropriate to take a more flexible but “principled” approach to hearsay. Despite the need for caution, hearsay could be admitted where the two general requirements of necessity and reliability were met. In determining admissibility the trial judge was required to have regard to the need to safeguard the interests of the accused. Concerns as to the credibility of the evidence remained to be addressed by submissions as to the weight to be accorded to it and submissions as to the quality of any corroborating evidence. 77. Secondly, in R. v. Smith [1992] 2 SCR 915 the Court approved the “principled approach” taken in Khan and found that two telephone calls made by the deceased to her mother shortly before her death were admissible. However, the mother’s evidence as to the contents of a third telephone call should have not been admitted as the conditions under which that call was made did not provide the “circumstantial guarantee of trustworthiness” which would justify its admission without the possibility of cross-examination. 78. Khan and Smith were followed in R. v. Rockey [1996] 3 SCR 829. The Supreme Court was satisfied that any reasonable trial judge would have found it necessary to admit pre-trial statements made by a child, who was five years old at trial, in which he complained that he had been sexually assaulted. It was observed by McLachlin J (concurring in judgment) that the case against the appellant was strong: the child’s statements were entirely consistent and supported, inter alia, by medical evidence and evidence of behavioural changes in him after the assault and the absence of any plausible explanation of someone other than the appellant perpetrating the assault. 79. The third and most significant development in the Supreme Court’s case-law was its judgment in R. v. Khewalon [2006] 2 SCR 787, which took a stricter approach to reliability. The case concerned a complaint of assault made by an elderly resident at a retirement home against one of the home’s employees. The patient, S., gave the police a videotaped statement; the statement was unsworn. After S.’s statement other residents came forward to give statements that they too had been assaulted by the accused. By the time of trial, all those who had made statements, including S, had either died or were no longer competent to testify. Some of the statements were admitted by the trial judge because of the striking similarity between them. The Court of Appeal for Ontario excluded all the statements and acquitted the accused. The Supreme Court dismissed the Crown’s appeal from that decision and affirmed the acquittal. The Supreme Court clarified its previous case-law on reliability and stated that the reliability requirement would generally be met by showing: (i) that there was no real concern about whether the statement was true or not because of the circumstances in which it came about; or (ii) that no real concern arose because the truth and accuracy of the statement could nonetheless be sufficiently tested by means other than cross-examination. It was for the trial judge to make a preliminary assessment of the “threshold” reliability of the statement and to leave the ultimate determination of its worth to the fact-finder/jury. All relevant factors had to be considered by the trial judge including, in appropriate cases, the presence of supporting or contradictory evidence. Charron J, giving the unanimous judgment of the court, stated (at paragraph 49 of the judgment): “In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect.” 80. The court concluded that S.’s statements were not admissible. It observed that the charges against Khelawon in respect of S. were “entirely based” on the truthfulness of the allegations contained in S.’s statements (paragraph 101 of the judgment). The absence of any opportunity to cross-examine him had a bearing on the question of reliability and there were no adequate substitutes for testing the evidence. The principled exceptions to the hearsay rule did not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more (paragraph 106 of the judgment). Nor could the reliability requirement be met by relying on the inherent trustworthiness of the statement; this was not a case such as Khan where the cogency of the evidence was such that it would be pedantic to insist upon testing by cross-examination. S. was elderly and frail; his mental capacity was at issue and there was medical evidence that his injuries could have arisen from a fall. It was also not clear that he had understood the consequences of his statement for the accused. In the circumstances, S.’s unavailability for cross-examination posed significant limitations on the accused’s ability to test the evidence and, in turn, on the trier of fact’s ability to properly assess its worth. 81. In its report of November 2009, the Law Reform Commission of Hong Kong proposed substantial reforms to the admission of hearsay evidence in criminal proceedings in that jurisdiction. It proposed that the present rule in Hong Kong against the admission of hearsay evidence should be retained but there should be greater scope to admit hearsay evidence in specific circumstances. The Commission rejected the English statutory scheme contained in the 2003 Act, observing that Hong Kong had none of the statutory mechanisms for excluding hearsay which applied in England and Wales, such as section 126(1) of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984 (see paragraphs 40 and 45 above). The Commission also observed that grounds for admitting hearsay under section 116 of the 2003 Act, although offering a fair degree of certainty and consistency in decision-making, had “an over-inclusive effect by allowing in all types of relevant evidence, including unreliable hearsay evidence” (paragraph 8.25 of the report). The Commission instead proposed a model of reform, which was based on the approach taken by the New Zealand Law Commission (see paragraph 82 below) and the Canadian courts since Khelawon. It recommended that hearsay evidence should be admissible, inter alia, if the trial judge was satisfied that it was necessary to admit the hearsay evidence and that it was reliable. Assessment of reliability by a trial judge should include consideration of whether the hearsay evidence was supported by other admissible evidence. The Commission also recommended that, at any stage of criminal proceedings after hearsay evidence had been admitted, the court should have the power to direct the acquittal of the accused if the trial judge considered that it would be unsafe to convict. In reaching that decision, the court should have regard, inter alia, to the importance of such evidence to the case against the accused. The Commission also found that these recommendations meant that its model of reform would comply with the Chamber judgment in the present cases. 82. The New Zealand Law Commission, in its 1999 Report on Evidence, recommended that the admissibility of hearsay should be based on two considerations: reliability and necessity. That recommendation was enacted in the Evidence Act 2006, which came into force in 2007. Section 18(1) of the Act provides: “A hearsay statement is admissible in any proceeding if— (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) either— (i) the maker of the statement is unavailable as a witness; or (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.” 83. “Circumstances” for these purposes are defined in section 16(1) as including: (a) the nature of the statement; (b) the contents of the statement; (c) the circumstances that relate to the making of the statement; (d) any circumstances that relate to the veracity of the person; and (e) any circumstances that relate to the accuracy of the observation of the person. 84. Section 8(1) of the Act provides that evidence must be excluded if its probative value is outweighed by the risk that the evidence will (a) have an unfairly prejudicial effect on the proceeding; or (b) needlessly prolong the proceeding. Section 8(2) provides that in determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the judge must take into account the right of the defendant to offer an effective defence. 85. Although jury trials are no longer used in South Africa, it too has substantially reformed its law of hearsay. Section 3(4) of the Law of Evidence Amendment Act 45 of 1988 defines hearsay as evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving evidence. By section 3(1) such hearsay evidence is not admissible unless (i) it is admitted by consent; (ii) the person upon whose credibility the evidence depends testifies; or (iii) the court is of the opinion that the evidence should be admitted in the interests of justice. Section 3(1)(c) provides that, in forming its opinion, the court must have regard to: (i) the nature of the proceedings; (ii) the nature of the evidence; (iii) the purpose for which the evidence is tendered; (iv) the probative value of the evidence; (v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends; (vi) any prejudice to a party which the admission of such evidence might entail; and (vii) any factor which should in the opinion of the court be taken into account. 86. In State v. Ramavhale [1996] ZASCA 14, the Supreme Court observed that, notwithstanding the wording of section 3(1), there remained an “intuitive reluctance to permit untested evidence to be used against an accused in a criminal case”. It also endorsed previous authority that a court should “hesitate long” in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling reasons for doing so. Despite the reforms enacted by section 3(1), the Supreme Court found that reliability was a factor that should continue to be considered in determining the admissibility of hearsay. Moreover, in that case, in assessing what prejudice would arise to the accused if the hearsay were admitted, the trial judge had erred in relying upon the fact that the accused had other avenues open to him to counter the evidence, one of which was to give evidence himself; the logical conclusion of this approach was that the State, by introducing “flimsy” hearsay could force the accused to testify in a case where the absence of direct evidence was such that he would be entitled not to testify. Compelling reasons for admitting hearsay evidence, even though it was decisive, were found to exist in State v. Ndhlovu and others [2002] ZASCA 70, not least because the guarantees as to the reliability of the evidence were high and the hearsay evidence interlinked powerfully with the other evidence in the case. The concerns expressed in Ramavhale as to admitting or relying on hearsay evidence which played a decisive or even significant part in convicting an accused were reiterated by the Supreme Court in State v. Libazi and others [2010] ZASCA 91, State v. Mpungose and another [2011] ZASCA 60, and State v. Mamushe [2007] ZASCA 58. In the latter, the Supreme Court observed that it stood to reason that a hearsay statement which would only serve to complete a “mosaic pattern” would be more readily admitted than one which was destined to become a vital part of the State’s case. 87. The Sixth Amendment to the Constitution of the United States of America guarantees the accused in all criminal prosecutions the right to be confronted with the witnesses against him (“the confrontation clause”). In Ohio v. Roberts 448 US 56 (1980) the Supreme Court of the United States of America held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. That was overruled in Crawford v. Washington 541 US 36 (2004), where the court ruled that the confrontation clause applied to all evidence which was testimonial in nature and there was no basis in the Sixth Amendment for admitting evidence only on the basis of its reliability. Where testimonial statements were at issue, the only indicium of reliability which was sufficient was the one prescribed by the Constitution: confrontation. Consequently, testimonial evidence was thus inadmissible unless the witness appeared at trial or, if the witness was unavailable, the defendant had a prior opportunity for cross-examination (see also Melendez-Diaz v. Massachusetts 129 SCt 2527 (2009), and Bullcoming v. New Mexico 131 SCt 2705 (2011)). The right to confront witnesses will be forfeited if it can be demonstrated that the defendant has frightened the witness into not testifying (see Davis v. Washington 547 US 813 (2006), and Giles v. California 554 US 353 (2008). | 1 |
train | 001-80382 | ENG | TUR | CHAMBER | 2,007 | CASE OF GÜLŞEN AND OTHERS v. TURKEY | 4 | Violation of P1-1 | Nicolas Bratza | 4. The applicants were born in 1927, 1947, 1952, 1965 and 1950 respectively and live in Kocaeli and Istanbul. 5. In 1996 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel Idare Müdürlüğü) expropriated plots of land belonging to the applicants. A committee of experts assessed the value of the plots and the relevant amount was paid to the applicants. 6. Following the applicants' request for increased compensation, on 9 October and 16 October 1998 the Gebze Civil Court of First Instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court's decision in respect of each of the applicants. 7. On 3 May, 21 June, 22 June, and 25 October 1999 the Court of Cassation upheld the Gebze Civil Court of First Instance's judgments in respect of Aziz Yıldırım, Aykut Kocaman, Kamil Dağlı and Ahmet Güzel, Bedaettin Bahattin Gülşen, Hüsnü Aksoy and Sinan Erbil, respectively. 8. By decisions of 30 June 1999, 1 July 1999, 10 September 1999, 25 October 1999 and 26 October 1999, the Court of Cassation rejected the applicants' requests for the rectification of its decisions. 9. On 23 March 2000, 22 January and 24 January 2001 the Kocaeli Provincial Private Administration paid the amounts due to Kamil Dağlı and Ahmet Güzel, Bedaettin Bahattin Gülşen1, Sinan Erbil, Hüsnü Aksoy, Aykut Kocaman and Aziz Yıldırım respectively. Details are indicated in the table below: 10. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). | 0 |
train | 001-5991 | ENG | GBR | ADMISSIBILITY | 2,001 | TOMLINSON v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in Jamaica in 1956. He is currently serving a life sentence in the United Kingdom. He is represented before the Court by Mr D. Simpson, a solicitor practising in Sheffield, England. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 January 1997 the applicant was tried before a jury at Sheffield Crown Court on a charge of murder. According to the prosecution case, on 17 July 1996 the applicant deliberately mounted a pavement and drove his car at a pedestrian (“M.”), striking him. M. died on 4 August 1996 of his injuries. The applicant maintained that M. had without provocation attacked and beaten him shortly before the incident. A few minutes later, still dazed by the attack, he was driving his car along a street and saw M. throw or appear to throw a brick or similar missile at his vehicle. The applicant was forced to duck down with the result that he lost control of the car. When he regained control of the car he realised that he had hit something and that the car had been damaged. The windscreen and roof pillar (which M. had hit) were badly broken. He did not stop and drove to a garage where he left the car to be repaired. He was planning to collect the car the same day. Instead, as it turned out, it was collected by the police. The applicant later informed his girlfriend that M. had gone to throw a brick at him and that he had ducked, swerved and hit M. He telephoned the police and inquired about M.’s condition and whether he would obtain bail. The prosecution made a formal admission that the day after the incident the applicant’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account. On 18 July 1996 the applicant went to a police station unaccompanied by a solicitor. He was arrested, charged with attempted murder and cautioned. He told the police that M. had beaten him for no reason and had thrown bricks at him. He stated repeatedly that he was sorry for what had happened and inquired about M.’s condition. The prosecution accepted that the applicant made this statement to the police. The applicant did not say however that he had ducked and that the collision had been an accident. Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant. The applicant maintains that during the time he spent in custody at the police station on 18 and 19 July 1996 he wished to answer police questions but accepted the firm advice of his representative to remain silent. Before each interview the applicant was cautioned in the following terms: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” On each occasion the applicant acknowledged that he understood the meaning of the caution. The applicant’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions. The applicant was asked numerous questions about the incident on 17 July 1996 and his involvement, if any, in it. He was asked, inter alia, about the conversation he had earlier in the day with the police officer; his acquaintance with M. and the fight they had had; the evidence of the two eyewitnesses; whether the collision was an accident and the applicant’s earlier explanations to his girlfriend. The applicant refused to comment. On 14 August 1996 the police again interviewed the applicant under caution and in the presence of his solicitor. On this occasion the applicant answered fully the questions put to him. His account of the incident was that he believed M. to be throwing an object at his car, he ducked, lost control of the vehicle and hit M. by accident. The applicant stated that he then panicked and did not stop at the scene. At one point in the first interview the applicant said that he did not know that he had hit M. until told by the police in that very interview. The applicant was also asked why he had swerved towards, rather than away from, a person whom he said was threatening him with a missile. Since M. had died in the meantime the applicant’s charge was changed to one of murder. At the trial two eyewitnesses gave evidence for the prosecution. Both witnesses testified that they saw the applicant’s car hit M. and drive off without hesitating or attempting to stop. One of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road. It drove straight at M. and hit him from behind as he walking along the pavement away from it. The car’s speed was a constant 30-40 miles per hour but it may have speeded up a little before hitting M. Neither witness had seen M. throwing a missile at the car. A pathologist testified that the bruising to the deceased’s calves indicated that he had been struck from behind. He also conceded that bruising was consistent with M. walking or “turning in some way”. In his evidence to the court, the applicant stated that he had not stopped at the scene of the incident because he had been afraid of M. and because he, therefore, panicked. After the collision he went to see his girlfriend and told her that he had “hit” M. after he received a telephone call there saying that M. was in hospital. The applicant strongly disagreed with the pathologist’s evidence. He insisted that M. had been facing the car throwing or appearing to throw a missile. The applicant confirmed the accuracy of the conversation he had with the police officer on 18 July 1996 before the interview. The applicant testified that he had not answered the questions put to him during the police interview on 18 and 19 July 1996 because his solicitor had advised him not to. The applicant waived legal professional privilege and his solicitor gave evidence. The solicitor testified that in private early on 18 July 1996 the applicant had given the same account of an accident as he had given to his girlfriend. The solicitor, however, advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police. After further disclosure, he changed this advice and the applicant answered police questions. The passenger who was in the applicant’s car at the time of the incident testified on the applicant’s behalf, supporting his account. Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant’s silence when interviewed by the police on 18 and 19 July 1996. Counsel for the prosecution indicated that: “A proper inference to draw from his failure to say in the first formal interviews these things, is that this was not an accident at all, and that the idea of saying that it was an accident came to him later, and is designed to mislead you.” In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant’s failure to mention at the police interview on 18 and 19 July 1996 the facts he subsequently relied on in his defence. He stressed however that it was not obliged to hold the applicant’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt. The judge continued: “Now, in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors. For instance, the times of the day when he was being interviewed; his age and his experience of life; his apparent mental capacity; his state of health... You have to bear in mind the legal advice he was given... ... You must, as best you can, judge the condition and capacity of this particular [applicant] on the particular occasion of these first formal interviews, and take into account any evidence that is before you as to his qualities, knowledge and fears, and whatever advice he was receiving at the time.” The judge directed the jury that: “The weight of any adverse inference which you are invited to draw in this case, may well be diminished by the evidence of things said by the [applicant] before the process of interviewing began and before he received his solicitor’s representative’s advice. Such things will be factors for you to consider in deciding what inferences, if any, should be drawn from his failure to mention these particular matters in the first round of formal interviews.” The judge reminded the jury of what the applicant had related to his girlfriend on the day of the incident and the similarity between that account and his subsequent account to the police on 14 August 1996. The jury was advised that this did not necessarily mean that that the account was true. The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial. He explained that this factor undermined the prosecution’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant’s silence during the first round of interviews. The judge also addressed the fact that the applicant remained silent on the advice of his legal representative. He stated: “Now, you are entitled to draw inferences from his refusal to answer questions in the first two interviews, but whether it is right to do so is for you to judge, and you may think ... that since the same account was apparently being given in detail before he was interviewed to [the applicant’s girlfriend] and, it was being suggested ... before interview to [a police officer] and it was then given in detail on 14 August to the police ... you may think ... that the reason why he did not say it to the police on 18 and 19 July was that he was advised not to say anything by the solicitor. If that advice of the solicitor was bad advice ... you do not hold it against this [applicant], and if you have any doubt about this question of whether it is right to hold the matter against the [applicant], then if you have any doubt about it, you resolve any such doubt in his favour rather than against him.” On 3 February 1997 the applicant, by a unanimous verdict, was found guilty of murder. The applicant was sentenced to life imprisonment. On 13 May 1997 the applicant’s application for leave to appeal against his conviction was refused by a Single Judge. The Single Judge stated: “The [trial judge’s] direction cannot be faulted. The fact that you were advised not to say anything by your solicitor (whether that advice was good or bad) is not an automatic reason for forbidding a jury to draw any inference from your silence. It is merely one of the circumstances – a powerful one – for the jury to take into account. In fact when the [trial judge] came to direct the jury he practically told them not to hold your silence against you; and in view of the fact that you had given your account of it being an accident to your solicitor and to [your girlfriend] before being interviewed, it is virtually inconceivable that they did.” The applicant renewed his application for leave to appeal before the Court of Appeal. In the grounds of appeal reference was made, inter alia, to the fact that the judge had erred in allowing the jury to draw inferences from the applicant’s silence at the police interviews on 18 and 19 July 1996. However before the Court of Appeal the applicant’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant’s trial solicitor. Mr Justice Owen in the Court of Appeal observed that the grounds of appeal prepared by the applicant’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal. The applicant’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation. On 28 October 1997, following argument on that ground alone, the Court of Appeal refused the applicant’s application for leave to appeal. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “1. Where in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. 2. Where this subsection applies ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. 3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.” Section 35 (2) and (3) provides: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38 (3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...” Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185). The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that: “If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention. The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.” The dicta of Lord Taylor CJ are as follows: “We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight: 1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” The current specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides: “[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence. The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence]. The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny]. If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so. Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]” In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated: “The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ... Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.” In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised. The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported). In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999: “The Times”, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated: “Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.” The Government submitted in the Condron v. the United Kingdom case (judgment of 2 May 2000, no. 35718/97, to be published in ECHR 2000-V) that the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act. In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial. Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal: “shall allow an appeal against conviction if it thinks that the conviction is unsafe”. | 0 |
train | 001-76718 | ENG | TUR | CHAMBER | 2,006 | CASE OF MEHMET ALİ GÜNDÜZ v. TURKEY | 4 | Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 6. The applicant was born in 1931 and lives in İzmit. 7. On 18 November 1981 the General Directorate of National Water Board (Devlet Su İşleri Genel Müdürlüğü) seized and later expropriated three plots of land belonging to the applicant for the construction of a dam. A committee of experts assessed the value of the plots and the relevant amount was deposited with a bank in the name of the applicant on 23 June 1982. However, the expropriation order and the document containing the information about the compensation were not served on the applicant. 8. On 1 May 1998 the applicant filed an action with the Akyaka Civil Court requesting compensation for seizure without an official expropriation (kamulaştırmasız el koyma). The court established that although the applicant was not notified, a de facto expropriation had taken place. 9. After conducting two on-site visits and taking two separate sets of expert reports into consideration, the court established what the then-current value of land would have been had the expropriation not taken place. On 14 October 1999 it awarded the applicant a corresponding in additional compensation plus interest at the statutory rate running from 1 May 1998, the date of the applicant's filing of that case. As the compensation amount was based on the then-current value of the land, and not on its 1981 value, the court rejected the applicant's request to run the interest from the date of the seizure. 10. On 10 October 2000 the Court of Cassation upheld the judgment. On 8 February 2001 the same court rejected a request for rectification. 11. On 24 October 2001 the due amount was paid to the applicant. 12. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16). | 0 |
train | 001-93107 | ENG | UKR | CHAMBER | 2,009 | CASE OF PILIPEY v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk | 4. The applicant was born in 1946 and lives in the town of Rivne, Ukraine. 5. In March 1976 the Executive Committee of the Rivne Local Council instituted proceedings against the applicant’s father and the applicant’s uncle in the Rivne People’s Court. The Committee sought confiscation of the house owned by them because there had been serious breaches of building regulations. The case was considered on several occasions. On 22 March 1977 the People’s Court ruled that the house should be confiscated. On 28 April 1977 the Rivne Regional Court upheld that judgment. Following that decision the house was confiscated. 6. The applicant’s father died in 1985. In 1990 the Rivne Local Council sold a part of the house (“the disputed property”) to Ms K. 7. On 27 January 1993 the Presidium of the Rivne Regional Court, upon an objection (протест) by its President, quashed the judgment of 22 March 1977 and remitted the case to the same court for fresh consideration. 8. On 12 April 1993 the Rivne Court dismissed a claim lodged by the Executive Committee of the Rivne Local Council. 9. On 24 January 1994 the applicant and Mr P. instituted proceedings against Ms K. and the Executive Committee of Rivne Local Council in the Rivne Court, seeking to have the above-mentioned contract of sale declared null and void and claiming ownership of the disputed property. 10. On 12 April 1994 Mr K., husband of Ms K., lodged a counterclaim, seeking recognition of ownership of the disputed property. 11. On 25 January 1995 Ms S. and Ms Ko. instituted proceedings against Mr and Ms K., claiming ownership of the disputed property. 12. In the period from 26 January 1994 to 3 November 1996 the first-instance court scheduled ten hearings. 13. On 4 November 1996 the court granted a request by the applicant’s lawyer to suspend the proceedings on the ground that the applicant was undergoing treatment. After that date the next hearing was scheduled by the court only for 18 May 1998. 14. On 25 March 1998 Ms. K died. On 18 May 1998 the court decided to suspend the proceedings until Ms K.’s successors joined the proceedings. 15. On 18 March 1999 the court decided to join Mr K. as a defendant in the case. On the same day the court joined the consideration of the above proceedings. 16. Between 19 May 1998 and 22 March 2000 the court scheduled one hearing. 17. Between 23 March 2000 and 15 October 2001 the court scheduled no hearings. 18. On 21 March 2002 the court found against the applicant. In particular, the court found unsubstantiated the applicant’s allegation that he could claim inheritance rights over the disputed property. 19. On 26 June 2002 the Rivne Regional Court of Appeal upheld that judgment. 20. Between 16 October 2001 and 26 June 2002 the first-instance court and the court of appeal scheduled six hearings. Four hearings were adjourned on account of the one of the parties’ failure to appear or at their request. 21. On 22 January 2003 the Supreme Court dismissed an appeal in cassation by the applicant. | 1 |
train | 001-60633 | ENG | FRA | CHAMBER | 2,002 | CASE OF PAPON v. FRANCE | 1 | Violation of Art. 6-1;No violation of P7-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant, who was born in 1910, is currently in custody in the Santé Prison in Paris. 9. From May 1942 to August 1944 the applicant was the secretary-general of the Gironde prefecture under the authority of the prefect, Maurice Sabatier. 10. After the Liberation, according to figures provided by the applicant, more than 30,000 civil servants who had served under the Occupation were punished and several thousand people were executed, both officially and unofficially. 11. In an opinion dated 6 December 1944 the Ministry of the Interior's Committee for the Purge of Collaborators (comité d'épuration) proposed that the applicant should retain his post, taking the view that although he had held office under the Vichy regime, he had shown a favourable attitude towards the Resistance. He was therefore allowed to continue serving as head of the private office of Gaston Cusin, the Bordeaux Commissioner of the Republic. 12. He was appointed to the rank of prefect and posted to Corsica in 1947, then served as Paris Police Commissioner from 1958 to 1966. He was a member of Parliament from 1968 to 1978 and mayor of Saint-Amand-Montrond from 1971 to 1988. He served as chairman of the Finance Committee of the National Assembly from 1972 to 1973 and then as the general rapporteur on the budget until 1978. From 1978 to 1981 he was Minister for the Budget. 13. On 6 May 1981, between the two rounds of the presidential election, the weekly newspaper Le Canard Enchaîné published the first of a series of articles in which the applicant, who was Minister for the Budget at the time, was criticised for his behaviour during the Second World War. 14. The applicant asked the Action Committee of the Resistance to appoint a court of honour to assess his conduct under the German occupation. On 15 December 1981, having examined his immediate hierarchical superior, Maurice Sabatier, who said that he assumed “full responsibility for the anti-Jewish repression for which his prefecture was responsible”, the court of honour delivered a verdict in which it formally acknowledged that the applicant had been a member of the Resistance from January 1943 onwards but concluded “that in the very name of the principles which he believed he was defending, and not having been instructed to remain in his post by a competent authority of the Resistance, he should have resigned from his post as secretary-general of Gironde in July 1942”. 15. On 8 December 1981 a lawyer named Boulanger lodged a criminal complaint against the applicant together with a civil-party application for crimes against humanity, aiding and abetting murder and abuse of official authority in connection with the deportation of eight persons arrested by the French police in Bordeaux and held in Bordeaux and then in Drancy Camp before being deported to Auschwitz and exterminated there. Six other criminal complaints together with civil-party applications relating to seventeen other victims of deportations were lodged in March and April 1982 by another lawyer, Mr Serge Klarsfeld, who is also the chairman of the association “Sons and daughters of France's Jewish deportees”. On 29 July 1982 the Bordeaux public prosecutor's office asked for investigations to be opened in respect of all seven complaints. 16. On 19 January 1983 the applicant was charged with crimes against humanity by the chief investigating judge at the Bordeaux tribunal de grande instance. 17. On 22 February 1984 the investigating judge commissioned an expert historical report from three historians. The report was filed on 11 January 1985. 18. In the meantime, on 23 May 1983, the investigating judge had begun examining witnesses, including Maurice Sabatier, the prefect of Gironde at the material time. However, former Article 681 of the Code of Criminal Procedure [Repealed by the Law of 4 January 1993] provided that where a civil servant or a mayor was likely to be charged with a serious crime (crime) or lesser serious offence (délit) committed in the performance of his duties, the public prosecutor had first to apply to the Criminal Division of the Court of Cassation to designate the court to carry out the investigation. 19. Since, by Article 171 of the Code of Criminal Procedure, failure to comply with that formal requirement rendered proceedings absolutely null and void, the Court of Cassation in a judgment of 11 February 1987 declared all the steps of the prosecution and investigation carried out after 5 January 1983, including the charging of the applicant, null and void as having been taken by a judge without jurisdiction and designated the Indictment Division of the Bordeaux Court of Appeal to proceed with the investigation. 20. In a judgment of 4 August 1987 the Indictment Division ordered the joinder of the seven sets of proceedings instituted as a result of the complaints lodged before 5 January 1983 and ordered that the investigation be continued, appointing a judge of the Indictment Division to conduct it. In judgments of 9 November and 8 December 1987 the Indictment Division noted that three fresh criminal complaints had been lodged by associations together with applications to join the pending proceedings as an intervening civil party and ordered that these be added to the file. A complaint by two civil parties in March 1982 gave rise to another judgment designating the competent court delivered by the Criminal Division of the Court of Cassation on 9 December 1987 and a judgment of 28 June 1988 in which the Indictment Division ordered the joinder of those proceedings and confirmed the appointment of the judge to conduct the investigation. On 2 February 1988 the Indictment Division noted that a new complaint had been lodged on 24 July 1987 together with an application to join the pending proceedings as an intervening civil party and ordered that it be added to the file. 21. In a judgment of 5 January 1988 the Indictment Division dismissed an application by the prosecution for an expert historical report. 22. On 8 July and 20 October 1988 respectively the applicant and Maurice Sabatier were charged with crimes against humanity. Maurice Sabatier died on 19 April 1989 and the Indictment Division accordingly recorded on 6 February 1990 that the proceedings against him had lapsed. 23. In February, June, October and December 1988, more associations intervened in the proceedings by means of criminal complaints lodged together with civil-party applications, which were recorded in judgments of the Indictment Division in February, March, June and November 1988 and January 1989. 24. Another complaint together with a civil-party application was lodged on 18 November 1988 and 3 February 1989 by the association “Sons and daughters of France's Jewish deportees”. It was lodged not only against the applicant and Maurice Sabatier but also against Jean Leguay and René Bousquet, both former senior officials with the rank of prefect under the Vichy regime, and Norbert Techoueyres, who at the material time was the detective superintendent nominated to act on the directions of the public prosecutor. In a judgment of 20 December 1988 the Indictment Division had declared the civil-party application admissible by way of intervention as to the matters of which it had already been properly seised and, as to the remainder, had ordered that the application be forwarded to the Principal Public Prosecutor. 25. Pursuant to Article 681 of the Code of Criminal Procedure, the complaint gave rise to a fresh application to the Criminal Division of the Court of Cassation, which, in a judgment of 26 April 1989, once again designated the Indictment Division of the Bordeaux Court of Appeal to investigate the new facts, but the complaint was subsequently declared inadmissible because a sum to cover costs had not been paid into court within the specified time. 26. Norbert Techoueyres and Jean Leguay died on 4 April 1989 and 3 July 1989 respectively, before being charged, and the proceedings against them accordingly lapsed. 27. The applicant was questioned on four occasions between 31 May and 6 October 1989. On 6 February 1990 the Indictment Division appointed a new judge to continue the investigation. 28. On 16 May 1990 twenty more criminal complaints together with civil-party applications relating to deportations in 1943 and 1944 not covered by the initial complaints were lodged against the applicant by Mr Boulanger on behalf of several individuals. Three of the civil-party applications were declared admissible and added to the file on 3 July 1990. The other seventeen complaints, which related to new accusations against René Bousquet, among other matters, gave rise to seventeen judgments, delivered by the Criminal Division of the Court of Cassation on 19 December 1990, designating the Indictment Division of the Bordeaux Court of Appeal as the investigating authority. After the complaints had been lodged again on 19 June 1991 and exemption from payment into court of a sum to cover costs had been granted, these complaints were joined to the main investigation proceedings by virtue of judgments of the Bordeaux Indictment Division of 14 April 1992. 29. In the meantime, on 12 December 1990 and 21 May 1991, another association had lodged an application to join the pending proceedings as an intervening civil party; that application was declared admissible in a judgment of 20 October 1991. 30. On 19 March 1992 the Principal Public Prosecutor made seventeen applications for a judicial investigation in respect of the applicant and René Bousquet. 31. On 19 April 1992 René Bousquet was charged with crimes against humanity. He was shot dead outside his home on 8 June 1993 and the proceedings against him accordingly lapsed. 32. On 22 June 1992 an additional charge of crimes against humanity was brought against the applicant on account of the facts alleged in the complaints of 16 May 1990. 33. In a judgment of 20 October 1992 the Indictment Division declared admissible a complaint lodged by another association together with an application to join the pending proceedings as an intervening civil party. As some of the other legal persons who had already joined the proceedings had extended their complaints to cover the matters dealt with in the judgments of 14 April 1992, the Indictment Division recorded the filing of three of those complaints in a judgment of 28 June 1993, another in a judgment of 7 June 1994 and two further ones in a judgment of 20 June 1995. 34. Between June 1992 and July 1995 the investigating judge took evidence from the civil parties (in some thirty-three interviews) and the witnesses (in about thirty-six) and made over thirty journeys to archives to seize evidence. 35. On 3 May 1994 the Indictment Division dismissed an application by the prosecution for the removal from the case file of the booklet “Civil Servants under the Occupation” (Fonctionnaire sous l'Occupation), which reproduced in extenso the expert historical report set aside by the Court of Cassation on 11 February 1987 and had been published by the applicant's lawyer, Mr Varaut, with a view to exculpating his client in the eyes of the public. The publication in question had been distributed to members of Parliament in 1987 and produced as evidence during libel proceedings brought by the applicant against the magazine Le Nouvel Observateur. 36. An appeal on points of law was lodged against the Indictment Division's judgment but an application by the prosecution for its appeal on points of law to be declared immediately admissible was dismissed by the President of the Criminal Division of the Court of Cassation on 10 June 1994. 37. On 28 July 1995, at the end of the investigation, the case file was sent to the Principal Public Prosecutor at the Bordeaux Court of Appeal, who filed his final application on 19 December 1995. In that application, which ran to 185 pages, the Principal Public Prosecutor submitted that the applicant had no case to answer in respect of his involvement in the organisation of the transports of September 1942, November and December 1943 and May 1944, that the prosecution of René Bousquet had lapsed, that the remaining charges should be altered to aiding and abetting abduction and false imprisonment and that the applicant should be committed for trial at the Assize Court for the transports of July, August and October 1942 and January 1944. The Principal Public Prosecutor did not charge the crime of aiding and abetting murder. 38. On 1 and 5 March 1996 five more associations applied to have their civil-party applications formally noted; that was done in the judgment of 18 September 1996 committing the applicant for trial. 39. The proceedings in the Indictment Division of the Bordeaux Court of Appeal against the applicant and three other persons on the charge of crimes against humanity following criminal complaints lodged together with civil-party applications by thirty-five individuals and twenty associations ended with a judgment delivered by the Indictment Division on 18 September 1996 in which it committed the applicant for trial at the Assize Court. 40. It appears from that 169-page judgment that between June 1942 and August 1944 1,560 persons of Jewish origin, including a large number of children, were deported in ten trainloads to Auschwitz Camp, where most of them died, either as the result of inhuman treatment or because they were exterminated. Some of the transports were dispatched after mass arrests among the Jewish population. 41. The Indictment Division noted, inter alia, that the unlawful arrests and imprisonment ordered by the German authorities had allegedly been carried out with the active assistance of the applicant, who was at the time the secretary-general of the Gironde prefecture and who, by virtue of the extensive powers delegated to him by the regional prefect, had authority not only over the administrative departments of the prefecture but also over the police and gendarmerie, the Mérignac Camp authorities and the departments set up as a result of the war, such as the Jewish Affairs Department. It further noted that the applicant had allegedly been fully aware of the anti-Jewish policy conducted by the Vichy government and that, as soon as he took office, he had apparently been “convinced that the arrest and imprisonment of Jews and their deportation to the East were leading them inescapably to their deaths ..., even though he might have remained unaware of the ... circumstances ... and the technical methods used ...”. 42. The Indictment Division concluded that the active contribution that the applicant was said to have knowingly made through his personal actions to the commission of criminal acts by units of the SIPO-SD (Sicherheitspolizei-Sicherheitsdienst), an organisation declared criminal by the Nuremberg International Military Tribunal on 1 October 1946, had formed part of a concerted plan carried out on behalf of Nazi Germany, an Axis country pursuing a policy of ideological hegemony. It held that the applicant could not rely on the instructions given on 8 January 1942 by the French authorities in London [Message by Lieutenant Colonel Tissier broadcast by the BBC on 8 January 1942, urging civil servants working in metropolitan France to stay at their posts, to do the work that they were asked to do and to sabotage it only if it was contrary to the interests of the nation and such sabotage could be carried out without risk. It was also recommended that civil servants should act alone and not even confide in their best friends], nor on duress, the requirements of the law, the orders of his hierarchical superiors or the responsibility of his own subordinates to absolve himself of his own responsibility. It also considered that his membership of the Resistance, on which he relied, did not mean that he could not have assisted the acts perpetrated by the Nazis against the Jews. 43. Consequently, the Indictment Division ordered the applicant's indictment for the offences of aiding and abetting unlawful arrest, false imprisonment, murder and attempted murder amounting to crimes against humanity in respect of four police raids and eight transports of deportees, and committed him for trial at the Gironde Assize Court. 44. The applicant appealed on points of law against that judgment. He pleaded in particular that the proceedings had been null and void, complaining that they had been unfair primarily because of their excessive length, the result of which had been that documents that would have been in his favour had disappeared and witnesses for the defence had died. He also challenged the Indictment Division's decision to commit him for trial for aiding and abetting crimes against humanity on the ground that, in his opinion, individual complicity in the case of such a crime, which was mainly attributable to an institution or an organisation, presupposed that the individual concerned subscribed to the hegemonic and racial ideology of the criminal institution. The applicant maintained that he had never belonged to the Nazi organisations condemned by the Nuremberg Tribunal and that the acts of which he stood accused had been committed in the performance of his duties as secretary-general of the Gironde Prefecture, an organ of the Vichy State, which in his view did not have a hegemonic ideology with the goal of racial extermination. He submitted that for the purposes of the Nuremberg law, which formed the basis of his prosecution, the German State and the Nazi organisations should be regarded as separate entities from the Vichy State, to which crimes against humanity could not therefore be attributed retrospectively. Consequently, he considered that neither could such crimes be attributed to persons who had performed purely administrative duties in the departments for which he was responsible. He also maintained that, contrary to what the Indictment Division had asserted, the fact that he had belonged to the Resistance was sufficient to rule out his participation in a concerted plan. 45. On 23 January 1997 the Criminal Division of the Court of Cassation dismissed the appeal on points of law. Noting that it was the first authority before which the complaint that the proceedings had been unfair had been raised, it declared that complaint inadmissible. It further ruled “that the appellant [had] no interest in criticising the reasons given in the judgment for dismissing the complaint of a violation of Article 6 § 1 of the European Convention on Human Rights, seeing that excessive length of criminal proceedings [did] not affect their validity”. The Court of Cassation also considered that there was nothing inadequate or contradictory about the reasons the Indictment Division gave for classifying the offences as aiding and abetting unlawful arrest, false imprisonment and murder or attempted murder, constituting crimes against humanity. It pointed out that indictment divisions had the ultimate authority to assess whether facts amounted to an offence, the role of the Court of Cassation being merely to “verify, supposing the facts to be established, whether their classification [justified] sending the case for trial”. It considered that that had been so in the instant case and that “consequently, the grounds of appeal must be rejected, particularly in so far as they refer[red] to the last paragraph of Article 6 of the Statute of the International Military Tribunal, which [required] neither that a person aiding and abetting crimes against humanity should have subscribed to the policy of ideological hegemony of the principal perpetrators nor that he should have belonged to one of the organisations declared criminal by the Nuremberg Tribunal”. 46. In an application of 25 July 1997 the Principal Public Prosecutor asked for the applicant to be placed under judicial supervision. 47. In a judgment of 7 August 1997 the Indictment Division placed the applicant under judicial supervision, with certain obligations. On 18 November 1997 the Criminal Division of the Court of Cassation recorded that the applicant had withdrawn his appeal on points of law against that judgment. 48. On 7 October 1997 the applicant was taken into custody in Bordeaux Prison, pursuant to the arrest warrant included in the judgment of the Indictment Division committing him for trial. 49. The trial in the Gironde Assize Court opened on 8 October 1997. The applicant's lawyer immediately applied for his client's release, pleading his extreme old age (87 years) and his poor state of health following a triple heart bypass operation in 1996. The Assize Court ordered an expert medical report, which was delivered to it on 9 October 1997 and from which it appeared that the applicant's state permitted imprisonment but only in a specialist cardiology unit. That very evening, the applicant had to be admitted to hospital for the night. 50. In a judgment of 10 October 1997, in the light of the expert report, the Assize Court ordered the applicant's release. That decision triggered protests from the civil parties, some of whom threatened to withdraw from the trial, and their protests were given extensive press coverage. The prosecution appealed on points of law against the judgment ordering the applicant's release. 51. The trial, which was initially expected to last two and a half months, lasted nearly six months (from 8 October 1997 to 2 April 1998). The proceedings were interrupted on a number of occasions, mostly because of the applicant's state of health. During the trial, which had a case file containing over 3,000 folders, 6,300 documents were produced in evidence. There were hearings on 94 days, during which 85 witnesses were heard, 12 hours were given over to the public prosecutor's address, 40 hours to the civil parties' submissions and 20 hours to the defence submissions. The court's deliberations lasted 19 hours. 52. At the hearing on 9 October 1997, that is on the day following the opening of the trial, the applicant's lawyer filed written submissions in which he argued that the trial should be declared not to satisfy the requirements of a fair hearing, particularly as the excessive length of the proceedings had made it impossible to hear certain witnesses; sought to have the proceedings declared null and void; and sought a ruling that the prosecution was barred. When arguing against the application for the proceedings to be declared null and void, the prosecutor referred in particular to the work carried out by the most recent investigating judges, who had made 164 journeys to consult archives, seized and studied 6,354 documents, taken evidence from 95 witnesses and held 85 interviews with civil parties. 53. In an interlocutory judgment of 15 October 1997 the Assize Court dismissed the application for the proceedings against the applicant to be halted, on the following grounds: “While it is true that many of the defence witnesses have now died or are incapable of travelling, it must be recognised that the same applies to the prosecution witnesses and that from this point of view and in general the parties are on an equal footing. The exceptional length of the proceedings which brought Maurice Papon before the Gironde Assize Court is not excessive when it is considered that the complexity of the case, linked for the most part to the long time that has elapsed since the commission of the offences of which the defendant is accused, the number of those offences, the broad time-span over which they were reported, the age of the witnesses and the fact that they were so scattered, required the investigating judges to carry out a very large number of investigations, which they were often forced to conduct themselves because of the very nature of the facts. Added to these problems were others stemming from the widely dispersed documentary sources and the obstacles sometimes encountered in gaining access to them. Contrary to what has been alleged, the trial at the Gironde Assize Court is not that of a State or an administrative authority but that of a man entitled to rely on the presumption of innocence – a principle with constitutional status which cannot be impaired in the judges' minds by the media excesses denounced by the defence – a man accused of having personally committed acts which, in the words of the indictment, constituted the serious crime of 'aiding and abetting crimes against humanity'. Lastly, in reply to the argument put forward by Maurice Papon's defence counsel that the judgment delivered on 23 January 1997 by the Criminal Division of the Court of Cassation was 'in complete contradiction not only with Article 6 of the Nuremberg Statute ... but also with Article 123-1 of the Criminal Code', it should be pointed out that it is not for an assize court to assess whether a decision of the Court of Cassation is in conformity with the applicable rules of law.” 54. From 23 to 31 October 1997 the proceedings were adjourned because the applicant was hospitalised with bronchitis caused by an infection. 55. In another interlocutory judgment (of 3 November 1997, not produced) the Assize Court dismissed the applicant's application for it be formally noted in the record that an American historian, who was an expert on the Vichy regime, had in his witness statement of 31 October expounded political and historical ideas not directly connected with the facts of which the applicant was accused. The applicant considered that there had been a violation of the principle that hearings in the Assize Court must be oral, as the person concerned was not a “witness”, not having witnessed any of the offences of which he stood accused. 56. On 14 November 1997 the applicant's lawyer applied to have the correspondence between the occupying German authorities and the prefecture between 1942 and 1944 admitted in evidence. 57. From 17 November to 4 December 1997 the trial had to be adjourned once again on account of the applicant's poor state of health, which had been confirmed by a medical report. 58. When the proceedings resumed on 5 December 1997 the applicant's lawyer filed written submissions in which he applied for further inquiries into the facts to be made with a view to producing in court the whole of the police intendant's archives held by the Gironde archive office instead of the results of selective seizures which did not make it possible to assess exactly what powers had been exercised by the various actors at the prefecture between 1942 and 1944. In a judgment of 11 December 1997 the Assize Court decided to defer its examination of that application. 59. From 23 December 1997 to 5 January 1998 the trial was adjourned. 60. On 7 January 1998 the President of the Assize Court authorised the projection of two video recordings of evidence given by two witnesses during the trial of Klaus Barbie in Lyons in 1987, that of the writer André Frossard on the conditions of detention in Montluc Prison in Lyons and that of Yves Jouffa, former Chairman of the Ligue des droits de l'Homme (Human Rights League), on the conditions in Drancy Camp, near Paris. 61. At the hearing on 26 January 1998, which focused on the transport of 25 November 1943, the applicant was questioned by the public prosecutor, with the President's authorisation and on the basis of the documents in the file, about events preceding that transport, in particular those connected with the organisation of the transport of 2 February 1943, which was mentioned in the judgment whereby the applicant was committed for trial but not in the indictment. The applicant's lawyer immediately filed written submissions seeking to have a formal note of these matters added to the record. 62. On 28 January 1998 Mr Arno Klarsfeld, one of the civil parties' lawyers, published a press release revealing a distant family tie between the President of the Gironde Assize Court and some of the persons whom the applicant was accused of deporting. He criticised the President for failing to report the fact that the mother and two sisters of his aunt by marriage had been part of the December 1943 transport. 63. No application for the judge to withdraw was filed, however, either by the civil parties or by the defence, because the Code of Criminal Procedure only provides for that possibility if the judge is a blood relative or a relative by marriage of one of the parties up to the degree of second cousin inclusive, which was not so in the instant case. The President of the Assize Court announced that he could not even remember the name of his uncle's wife, and that his uncle had died when he was a child. He did not consider it necessary to withdraw from the proceedings of his own motion. 64. On 2 February 1998 the Assize Court took formal note at the applicant's request that the public prosecutor had questioned him on 26 January 1998, with the authorisation of the President of the Court, about events preceding the transport of 25 November 1943 in respect of which the applicant had been indicted in the Indictment Division's judgment and, in particular, about the organisation of the transport of 2 February 1943, which had not been mentioned in the indictment. 65. In another interlocutory judgment delivered on the same day (not produced), however, it refused to allow an application by some of the civil parties for a formal note to be made in the record that those questions were directly connected with the facts mentioned in the indictment in relation to the applicant's powers. It noted that it was not its task, “if it wished to avoid prejudging the merits of the case and thereby infringing the provisions of Article 316 of the Code of Criminal Procedure, to rule on any direct relationship that might exist between these facts and those referred to in the indictment with regard to Maurice Papon's powers”. 66. In an interlocutory judgment of 5 March 1998 (not produced) the Assize Court dismissed the applicant's application of 5 December 1997 for further inquiries into the facts to be made with a view to producing the whole of the police intendant's archives in court, on the ground that, in view of the evidence taken at the hearing, the requested measure did not appear necessary for establishing the truth. 67. On the same day the applicant's lawyer applied to have added to the file a copy of the criminal complaint that he had just lodged against Mr Serge Klarsfeld, the chairman of one of the civil-party associations, on the basis of Article 434-16 of the Criminal Code, which prohibited publication before a final judicial decision of comments intended to exert pressure with a view to swaying a trial court's decision. He criticised Mr Klarsfeld for the content of a number of interviews he had given concerning the revelation of the family tie between some of the victims and the President of the Assize Court, to whom Mr Klarsfeld had imputed bias in the defendant's favour, and impugned the fact that only disciplinary proceedings had been brought by the public prosecutor's office against Mr Klarsfeld's son, who had made the revelation in January 1998. 68. The proceedings were adjourned from 25 to 30 March 1998, following the death of the applicant's wife. 69. In a further interlocutory judgment (of 1 April 1998, not produced) the Assize Court dismissed an application by the applicant for a question to be put as to whether he knew of a concerted Nazi plan to exterminate the Jews and whether he was prepared to participate in such a plan, on the ground that such a question was included among those intended to establish whether he was guilty of aiding and abetting crimes against humanity. 70. It also refused to allow a subsidiary question to be put as to whether the applicant's resignation, which would have curtailed his Resistance activities, would have changed the system for the extermination of Jews in Bordeaux, on the ground that as it was not possible to assert a legal interest, there was no reason to raise the question of his resignation. 71. On 2 April 1998, in a 123-page judgment delivered after deliberations lasting 19 hours, the Assize Court, replying to 768 questions, found the applicant guilty of aiding and abetting the unlawful arrest and false imprisonment of Jews deported in the transports of July, August, and October 1942 and January 1944, offences that constituted crimes against humanity. He was acquitted of the charges of aiding and abetting murder and attempted murder. 72. The applicant was sentenced to ten years' imprisonment and stripped of his civil, civic and family rights for ten years. In a judgment of 3 April 1998 (not produced) the Assize Court ruled on the civil claims. 73. On 3 April 1998 the applicant appealed on points of law against his conviction and on 14 December 1998 he filed further pleadings containing ten grounds of appeal, six of which referred expressly to Article 6 of the Convention. 74. In a telegram of 8 September 1999 the Principal Public Prosecutor at the Court of Cassation requested that the applicant be notified of his obligation to surrender to custody prior to the hearing in the Court of Cassation scheduled for 21 October 1999. Notice thereof was served on the applicant on 16 September 1999. 75. On 17 September 1999 the applicant lodged with the Indictment Division of the Bordeaux Court of Appeal an application for exemption from the obligation to surrender to custody, which he withdrew on 27 September 1999, making a fresh application to the Assize Court. On 4 October 1999 the Assize Court ruled that it had no jurisdiction to make such an order. The applicant appealed on points of law. On the same day he again applied to the Indictment Division for exemption from the obligation to surrender to custody. He relied on Article 6 of the Convention, his age (89 years) and his state of health. 76. In a judgment of 12 October 1999 the Indictment Division first dealt with an application by the applicant for a declaration that Article 583 of the Code of Criminal Procedure should be deemed null and void by virtue of Article 6 § 1 of the Convention. It said: “Although the provisions of the ... Convention ... have been incorporated into the French legal system in accordance with Article 55 of the Constitution and although the courts have jurisdiction to determine, in an individual case, whether a statutory provision conforms with the requirements of the Convention, it is still necessary for that provision to serve as the basis on which the case is submitted to them. In the instant case Article 583 of the Code of Criminal Procedure gives the Indictment Division jurisdiction only to deal with a specific matter of judicial administration, namely applications for exemption from the obligation to surrender to custody. The task of enforcing the obligation to surrender to custody lies exclusively with the Court of Cassation, as it alone can decide what consequences shall flow from a failure to surrender to custody. It is therefore the Court of Cassation's task to rule on applications for Article 583 not to be applied to cases submitted to it and, where it has allowed such an application, to decide not to declare that the applicant has forfeited his right of appeal.” 77. The Indictment Division went on to dismiss the application for exemption from the obligation to surrender to custody, holding that, in view of the length of the sentence imposed, the security provided by the applicant seemed inadequate; that the medical certificate he had produced did not indicate a significant deterioration in his state of health since the expert opinion of October 1997; and that his state of health did not appear to preclude detention in a hospital unit, the arrangements for which were a matter for the prison authorities. 78. The applicant did not surrender to custody and left France to take refuge in Switzerland. However, the Swiss authorities ordered him to leave Switzerland, on a date not indicated in the case file. 79. In a judgment of 21 October 1999, after a public hearing during which the applicant's lawyers submitted their observations on his grounds of appeal, the Criminal Division of the Court of Cassation held that the applicant had forfeited his right to appeal against the Assize Court's judgment of 2 April 1998, pursuant to Article 583 of the Code of Criminal Procedure, on the ground that “the appellant, who [had been] sentenced to a term of imprisonment of more than one year, [had] not surrendered to custody and [had] not been exempted from that obligation”. 80. In two judgments of 20 December 2000 the Court of Cassation dismissed the appeals lodged by the applicant against the judgments delivered by the Assize Court and the Indictment Division on 4 and 12 October 1999 on his applications to be exempted from the obligation to surrender to custody, on the ground that they were devoid of purpose since in the meantime the applicant had forfeited his right to appeal on points of law against his conviction by the Assize Court. 81. As regards the obligation to surrender to custody before an appeal on points of law is heard, the relevant provision of the Code of Criminal Procedure at the material time reads as follows: “Convicted persons sentenced to a term of imprisonment of more than one year who have not surrendered to custody or have not been exempted, with or without payment of a security, from surrendering to custody by the court that tried them shall forfeit their right of appeal on points of law. The memorandum of their imprisonment or the judgment granting them exemption shall be produced to the Court of Cassation, at the latest when the case is called on. In order for his appeal to be admissible, it shall be sufficient for the appellant to provide evidence that he has given himself up at a prison either in the place where the Court of Cassation sits or in the place where he was convicted; the chief warder of that prison shall receive him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the chief prosecutor at the court of trial.” 82. Article 583 was repealed by the law of 15 June 2000 “to strengthen protection of the presumption of innocence and the rights of victims”. The law also instituted two levels of jurisdiction in serious criminal cases by providing for the possibility of appealing against the judgments of assize courts. 83. The law of 15 June 2000 also inserted into the Code of Criminal Procedure a Part III concerning “review of a criminal decision as a result of a judgment of the European Court of Human Rights”. The new Articles 626-1 and 626-4 provide: “An application may be made for review of a final criminal decision on behalf of any person found guilty of an offence where it has been held in a judgment of the European Court of Human Rights that he was convicted in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols, provided that, in its nature and seriousness, the breach found entails injurious consequences for the convicted person which cannot be remedied by the 'just satisfaction' awarded under Article 41 of the Convention.” “If it considers the application to be justified, the committee shall proceed in accordance with the following provisions: (a) Where a review of the convicted person's appeal on points of law, in a manner consistent with the provisions of the Convention, is apt to remedy the violation found by the European Court of Human Rights, the committee shall remit the case to the Court of Cassation, which shall sit as a full court to hear the case; (b) In other cases, the committee shall remit the case to a court of the same hierarchy and level as the one which gave the impugned decision ...” | 1 |
train | 001-77300 | ENG | CYP | ADMISSIBILITY | 2,006 | PITSILLOS (N° 1) v. CYPRUS | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Modestos Pitsillos, is a Cypriot national who was born in 1920 and lives in Nicosia. He was represented by Mrs E. Vrahimi, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a plot of land (no. 432) in Kato Moni, in the district of Nicosia. The surface area of the plot was approximately 676 square meters. On 12 June 1987 a notice of compulsory acquisition (no. 950) was published in the Official Gazette of the Republic of Cyprus concerning a number of properties including that of the applicant. In total 356 square metres were to be compulsorily acquired from his property. The purpose of the compulsory acquisition was the construction, improvement, alignment and paving of a public road. On 14 August 1987 the order of compulsory acquisition (no. 11312) was published in the Official Gazette. On 11 November 1988 a revocation order was published in respect of 5 square metres. Accordingly, the part of the applicant’s property to be compulsorily acquired was reduced to 351 square metres. As a result of the compulsory acquisition the road was diverted and cut across the applicant’s plot dividing it into approximately two equal parts. Furthermore, during the road’s construction, damage was caused to forty-one almond trees that had been on the part of the property not affected by the compulsory acquisition. The applicant and the acquiring authority did not reach an agreement as regards the compensation to be granted in respect of the compulsory acquisition. The latter considered that the applicant was not entitled to any compensation for the acquisition and the damage caused to the trees but only for expenses in respect of construction works he would have to carry out as a result of the acquisition. On 27 November 1989 the applicant filed an application (no. 41/89) with the District Court of Nicosia under the Compulsory Acquisition of Property Law 1962 (Law 15/1962) requesting an award of just and equitable compensation for the compulsory acquisition of part of his property. The applicant claimed that his property had suffered significant damage because of the compulsory acquisition. His expert assessed this damage at 2,857 Cyprus pounds (CYP). This amount included compensation for the compulsory acquisition (CYP 356), the almond trees (CYP 301) and the construction works that had to be carried out (CYP 2,200). On the other hand, the Government’s expert considered that there had been an increase in the value (betterment) of the remaining part of the property due to the acquisition and consequently, that no compensation should be granted. Furthermore, the Government’s expert considered that the damage to the almond trees could not be taken into account when determining the compensation since the property was located in a residential area and could be used for building purposes. Finally, he assessed the expenses to be incurred by the applicant in carrying out construction works due to the acquisition at CYP 200. The District Court carried out a local inspection of the property in the presence of the parties, their lawyers and the Government’s expert. On 22 July 1994 the District Court delivered its judgment by which it dismissed the applicant’s claim for compensation concerning the compulsory acquisition. In particular, the court considered that the evidence submitted by the Government’s expert was more thorough, accurate and credible. It stated that the applicant’s expert had admitted making mistakes several times and that his evidence had been ambiguous and vague. He had not carried out a valuation of the whole property in order to determine any possible damage or betterment caused by the acquisition. In this connection, the court noted that it was not possible to determine whether there was betterment or injurious affection to the two parts of the property without assessing what the value of the whole property was before it was affected by the acquisition. Furthermore, the applicant’s expert had been unclear about the manner in which he had determined the value of the property per square metre. In addition, although the applicant’s expert assessed the property’s value on the basis that it constituted residential property, he then included the value of the uprooted almond trees in his valuation on the basis that the property was not within a residential area. The value of a plot of land was assessed in monetary terms on the basis of its use and the purpose for which it was suitable. The view of the Government’s expert that residential development was more profitable than agricultural development was reasonable and therefore this test was the starting point for determining the compensation to be awarded. The court noted that the property should be considered as residential property since it was within a residential area. Accordingly, any damage to the trees was included in the valuation which was based on the residential value of the property. On the evidence submitted the court found that there had been an increase in value (betterment) to the remaining part of the property due to the construction of the new road. It held, therefore, that the applicant was not entitled to compensation in respect of the compulsory acquisition or any compensation in respect of injurious affection to the remaining part. However, the court awarded the applicant the sum of 500 Cypriot pounds (CYP) in respect of the construction works. It also awarded interest on this amount from the date of publication of the notice of acquisition at the annual rate of 9 %. Finally, the court awarded the applicant costs and the amount of CYP 80 which was agreed between the parties as fees for the applicant’s expert. On 30 August 1994 the applicant filed an appeal with the Supreme Court. In his appeal the applicant invoked eleven grounds challenging the evidence given by the Government’s expert and the findings of the district court that he was not entitled to any compensation for the compulsory acquisition and damage cause thereby. In the first ground of his appeal the applicant stated, inter alia, that “the court had been mistaken in accepting the perjured testimony of the Government’s expert witness absolving thus the acquiring authority from paying a sum of money as compensation which should have been paid in conformity with the Constitution as just and equitable compensation in cash and promptly...”. In the seventh ground of his appeal he repeated that reasonable compensation should have been granted and in the eleventh ground he argued that his human rights had been violated. On 30 September 1999 the Supreme Court dismissed the appeal. Upon examining the applicant’s arguments the Supreme Court considered that the District Court had given satisfactory reasons in its judgment and had correctly approached the expert evidence submitted. It therefore upheld the District Court’s findings and awarded costs against the applicant. Article 23 of the Cyprus Constitution provides as follows: “(1) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved. (2) No deprivation or restriction or limitation of any such right shall be made except as provided in this Article. (3) Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court. (4) Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a commune for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only (a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; (b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; (c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court.” According to Section 9 of the Compulsory Acquisition of Property Law 1962 (Law 15/1962), as amended by Law N. 25/83, the owner of property which is subject to compulsory acquisition, may apply to the civil courts for determination of the compensation payable, in the event that no agreement is reached with the acquiring authority in this respect. The purpose of this type of proceedings is the determination of such compensation (Lina Neocleous v. The Attorney-General of Cyprus, Supreme Court judgment of 31 May 1992). Section 10 of the same Law sets out the criteria and principles for the purposes of determining fair and equitable compensation for the compulsory acquisition of property. Paragraph (f) of that section provides as follows: “(f) in the case of acquisition of only part of an immovable property, on the basis of the present Law, account shall be taken of any possible increase or reduction accruing by reason of the acquisition in the value of another property owned by the owner together with the part that is compulsorily acquired”. | 0 |
train | 001-103663 | ENG | UKR | CHAMBER | 2,011 | CASE OF ZHUKOVSKIY v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 6-3-d | Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger | 5. The applicant was born in 1979 and serves his sentence. 6. In 1996 the applicant moved from Ukraine to the Sakha Republic in the Russian Federation. 7. On 21 June 1998 a Mr G. was murdered in the city of Yakutsk, Russia. According to the applicant, the murder was committed by Mr Gl. and the applicant only helped to transport and hide the body. 8. On 14 September 1998 the police instituted criminal proceedings into the murder of Mr G. The same day the applicant was arrested and questioned as a suspect. He showed the police the place where the decapitated corpse of Mr G. was hidden. 9. On 10 October 1998 the applicant’s girlfriend Ms R. indicated to the police the place where the head of the murdered Mr G. was hidden. 10. The investigation conducted a number of forensic examinations and questioning, including cross-examination by the applicant of some of the witnesses. 11. On 12 February 1999 the applicant was released under an obligation not to abscond. 12. On 11 March 1999 Mr Gl., who had been on the run, was arrested. The next day the applicant breached his undertaking not to abscond and left for Ukraine. 13. On 19 November 1999 the Supreme Court of the Sakha Republic (the Russian Federation) sentenced Mr Gl. to fifteen years’ imprisonment for the murder of Mr G. This judgment was upheld by the Supreme Court of the Russian Federation and became final on 19 April 2000. 14. On 2 December 1999 the General Prosecutor’s Office of the Russian Federation requested the General Prosecutor’s Office of Ukraine under the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 1993 (“the Minsk Convention”) to prosecute the applicant for the crime committed on the territory of the Russian Federation, given that the applicant, a Ukrainian national, could not be extradited to Russia. 15. On 4 April 2001 the applicant was arrested within another set of criminal proceedings and on 31 July 2001 the Chornobayivsky Local Court sentenced him to six months’ imprisonment for another, unrelated offence. On 25 September 2001 the Cherkassy Regional Court of Appeal (the Cherkassy Court) upheld that judgment. 16. On 4 October 2001, under the request of 2 December 1999, the applicant was charged with murder committed on the territory of the Russian Federation in June 1998. 17. On 18 December 2001 the Cherkassy Court, sitting as a court of first instance, held its first hearing in the criminal case against the applicant. The applicant’s lawyer requested the court to summon and examine the witnesses who had participated in the judicial proceedings on the territory of the Russian Federation, and also Mr Gl. 18. The Cherkassy Court summoned the witnesses to appear before it on 15 January and then on 19 February 2002 19. On 22 February 2002 the Cherkassy Court granted the request of the applicant’s defence counsel to cross-examine the witnesses in the criminal proceedings who lived in the Russian Federation. The court noted that some witnesses had confirmed their statements by cable and stated that they could not travel to Cherkassy for financial reasons. The court ruled that it was necessary to examine the witnesses either in Ukraine or at their place of residence by a local judicial authority with jurisdiction under the Minsk Convention. Taking into account lack of sufficient funds for travel and accommodation for the witnesses from the city of Yakutsk in the city of Cherkassy, the court opted for the international legal assistance mechanism and ordered that the appropriate Russian authorities be requested to conduct a judicial examination of the witnesses in the Russian Federation. The records of that examination would be used by the Cherkassy Court as evidence in the criminal case against the applicant. The court also noted that as an alternative the witnesses could be brought to Cherkassy if the relevant authorities of the Russian Federation could cover their costs. 20. On 6 March 2002 and 19 April 2002, under the procedure envisaged by the European Convention on Mutual Assistance in Criminal Matters, the court lodged with the Ministry of Justice of Ukraine a request for letters rogatory to be sent to the Russian authorities in order to have nine citizens residing in the Russian Federation questioned or to ensure their appearance before the court. 21. The questioning took place in February and March 2003. 22. On 5 May 2003, having received the materials that had been requested by letters rogatory from the Ministry of Justice of the Russian Federation, the Ministry of Justice of Ukraine forwarded them to the court. 23. On 29 July 2003 the Cherkassy Court found the applicant guilty of murder and sentenced him to fourteen years’ imprisonment. The court based its findings on the materials in the criminal case file received from the relevant Russian authorities and the materials obtained during the judicial examination of witnesses by the court in Russia in February and March 2003. The court also made a separate ruling noting the unlawfulness and irregularities of certain periods of the applicant’s detention and lack of cooperation of the Ukrainian authorities responsible for international legal assistance. 24. The applicant appealed in cassation complaining, among other things, that the evidence obtained in the Russian Federation was not admissible, since the applicant and his lawyers had not participated in the questioning. 25. On 18 November 2003 the Supreme Court upheld the decision of the Cherkassy Court. In its decision, it stated that the applicant and his representatives had been aware of the difficulty of obtaining the attendance of witnesses from Russia and had agreed to and supported the proposal to send a request to a Russian court to have the witnesses questioned in that country, but that they had not showed any interest in attending the questioning, which they had had the right to do. In the absence of any actions on the part of the applicant and his lawyer in this matter, the court did not establish any violation of the applicant’s right to defence. 26. Article 9 of the Constitution provides: “International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.” 27. Relevant provisions of the Code provide: “The procedure for communications between the courts, prosecutors, investigators, or inquiry authorities and the respective authorities of foreign States as well as the procedure for execution of mutual letters rogatory shall be established by legislation of Ukraine and international treaties to which Ukraine is a signatory.” “Defence counsel shall use remedies available under this Code and other legislative acts in order to ascertain the circumstances dispelling the suspicion or rebutting the charges, extenuating or excluding criminal liability on the part of the suspect, accused, defendant or convicted person, and shall provide them with the necessary legal assistance. After having been permitted to provide legal representation in the proceedings, defence counsel shall have the right: ... (7) to put questions in court to the defendants, victims, witnesses, and also to the expert, specialist, claimant or respondent, and to participate in the examination of other evidence; (8) to adduce evidence, lodge requests or challenges, express in court his or her opinion on requests made by other participants in the judicial proceedings, appeal against acts or decisions of a person conducting an inquiry, or against those of the investigator, prosecutor, or court; ... (13) to collect information on matters which can be used as evidence in the case; ...” “Criminal evidence is any factual information on the basis of which the inquiry authority, the investigator and the court ascertain whether or not an act which is a danger to society has been committed, establish the guilt of the person who has committed the act, and any other circumstances relevant to the proper determination of the case. Such information shall be established: from statements from witnesses, the victim, a suspect, an accused, and also from expert reports, material evidence, reports on investigative and judicial actions, reports – with relevant materials attached thereto – drawn up by the appropriate authorities on the results of detective and search activities, and other documents.” No evidence shall have a prejudicial effect on the court, prosecutor, investigator, or the person who conducts the inquiry.” “Anyone known to be aware of the circumstances relating to the case may be summoned as a witness. A witness may be questioned about the circumstances to be established in a particular case and, inter alia, about matters relating to the personality of the accused or the suspect and about the witness’s relationships with the accused or the suspect.” 28. Relevant provisions of the Convention provide: “1. In executing letters rogatory for assistance in legal proceedings, the requested authority shall apply legislation of its State. If so requested by the requesting authority, it may also apply procedural rules of the requesting Party... ... 3. If so requested by the requesting authority, the requested authority shall inform in timely manner the requesting authority and interested parties of the time and place of execution of the letters rogatory in order to enable them to be present at the execution of the letters rogatory in accordance with legislation of the requested Party.” “1. The documents made or certified in the territory of one of the Contracting Parties by the authority or duly authorised person within their competence and in due form, sealed with an official stamp, shall be accepted in the territories of the other Contracting Parties without any certification for such purposes. 2. The documents regarded as official in the territory of one of the Contracting Parties shall have evidential force of official documents in the territories of the other Contracting Parties.” “1. Letters rogatory for assistance in criminal proceedings shall be drawn up in accordance with Article 7 of this Convention. 2. The letters rogatory shall also contain: ... в) the list of questions to be clarified at the interrogation; 29. Relevant provisions of the Convention provide: “The Contracting Parties undertake to afford each other, in accordance with the provisions of this Convention, the widest measure of mutual assistance in proceedings in respect of offences the punishment of which, at the time of the request for assistance, falls within the jurisdiction of the judicial authorities of the requesting Party.” “1. The requested Party shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting Party for the purpose of procuring evidence or transmitting articles to be produced in evidence, records or documents. 2. If the requesting Party desires witnesses or experts to give evidence on oath, it shall expressly so request, and the requested Party shall comply with the request if the law of its country does not prohibit it.“ “On the express request of the requesting Party the requested Party shall state the date and place of execution of the letters rogatory. Officials and interested persons may be present if the requested Party consents.“ “1. Requests for mutual assistance shall indicate as follows: a. the authority making the request, b. the object of and the reason for the request, c. where possible, the identity and the nationality of the person concerned, and d. where necessary, the name and address of the person to be served. 2. Letters rogatory referred to in Articles 3, 4 and 5 shall, in addition, state the offence and contain a summary of the facts.” “Evidence or documents transmitted pursuant to this Convention shall not require any form of authentication.“ Any Contracting Party may, when signing this Convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the Convention. (...) | 1 |
train | 001-88016 | ENG | GBR | ADMISSIBILITY | 2,008 | BASNET v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 1. The applicant, Mrs Milan Basnet, is a Nepalese national who was born in 1960 and lives in Middlesex in the United Kingdom. She was represented before the Court by Mr S. Chhokar of Chhokar & Co. Solicitors, a lawyer practising in Southall. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Either on 15 May or 15 October 2000 the applicant arrived in the United Kingdom and claimed asylum shortly thereafter. 4. On 13 December 2000, with a friend’s assistance, the applicant completed a Statement of Evidence form in which she detailed the reasons for her asylum request. She claimed that she had been ill-treated by Nepalese Government forces since her husband was a canvassing secretary and an active member of the Maoist Party of Nepal (“CPN”) since 1996. He had been arrested by the police on several occasions. In April 2000 her husband went missing and her son went missing six weeks later. Neither has been seen since, both presumably have been either arrested or abducted. Since the police were the source of the problem, she could not report these matters. She replied in the negative to a standard question as to whether there were outstanding charges against her or a member of her family. 5. On 13 June 2001 the applicant was interviewed by an immigration officer. As appears from the hand-written record of that interview, the applicant stated that she had claimed asylum on the basis of a fear of persecution by the Nepalese Government because of her husband’s activities with the CPN. She recalled his disappearance seventeen to eighteen months previously, visits and threats by the police who were looking for her husband both at her home and at her son’s school, her ill-treatment on two occasions by plain-clothed men who came to her home looking for her husband and her son’s disappearance, approximately six weeks after that of her husband. 6. By letter dated 15 June 2001 the applicant was notified that the Secretary of State had refused her asylum application under Articles 2, 3, 5 and 14 of the Convention. He considered that the harm the applicant claimed she would suffer on return to Nepal would not constitute “persecution” within the meaning of the UNHCR Handbook. He pointed out that the unidentified plain-clothed persons whom she claimed ill-treated her could not be considered “agents of persecution within the meaning of the Geneva Convention”. Her claims did not demonstrate a “sustained pattern or campaign of persecution” against her which was tolerated by the authorities or in respect of which the authorities were unable or unwilling to protect her. In particular, she could have attempted to seek redress through the proper Nepalese authorities. She had alleged a fear of return to only certain parts of Nepal and could therefore be returned to other parts of Nepal. The Secretary of State also noted significant discrepancies in her evidence relating to whether her husband had been arrested or had “disappeared” and when that had taken place, and concerning her allegations of her own ill-treatment. On the basis of all of the above, there was no “reasonable likelihood of (her) fear being realised”. 7. The Secretary of State did not consider that Articles 2 and 5 (her claim that she would be detained without trial and/or killed on return to Nepal) had extra-territorial effect. Therefore the United Kingdom was not the State responsible for those aspects of her claim. Her evidence disclosed no substantial grounds for believing that there was a real risk of ill-treatment contrary to Article 3 on her return. Her Article 14 claim did not constitute sufficient grounds for asylum. In light of all of the evidence, the Secretary of State concluded that she had not established a well-founded fear of persecution on return to Nepal. 8. On 4 July 2001 the applicant sent a letter of protest, through the Nepalese Embassy in London, to the monarch of Nepal in support of Prince Dipendra who had been accused of killing members of the royal family in June 2001. The applicant accused the monarch’s son (Prince Paras) and a military chief of being involved in these crimes. 9. The applicant then appealed to the Special Adjudicator (“SA”). While the applicant was legally represented before the SA, the only document submitted containing grounds of appeal to the SA appears to have been prepared by her. She made numerous submissions concerning the situation in Nepal and her fear of persecution. She alleged that she had been arrested and tortured in the past and that she had been detained, had escaped from prison and had left Nepal to save her life as soon as her trip to the United Kingdom had been arranged. She claimed that her friends and relatives were being arrested and tortured in Nepal because of her, that she was receiving threatening letters and that she was on the Nepalese security forces’ list of targets. 10. On 2 November 2001 the applicant sent a further letter of protest through the Nepalese Embassy to the monarch of Nepal protesting against the proposed accession of his son to the throne. 11. On 12 December 2001 the SA rejected the applicant’s appeal. He considered that, even allowing for her relative lack of sophistication, language problems and cultural differences, the number and nature of the inconsistencies between her accounts were such that her evidence was unreliable in important respects including in relation to her date of departure from Nepal and the circumstances of her husband’s and son’s disappearances. In this latter respect, he found that it was speculative as to whether they had left home voluntarily or not and he noted that the applicant had accepted that members of the CPN were in hiding. She had also accepted that the police did not threaten her thereafter. The SA did not accept her evidence that she had been assaulted by unknown persons as there were a notable number of inconsistencies about this in her previous evidence. 12. The SA noted the situation between the CPN and the Nepalese authorities but did not consider that there was any evidence that a wife, with no involvement in politics or public affairs, was likely to have her husband’s political opinions imputed to her; nor was there any evidence to suggest that a wife was likely to be targeted, detained, tortured, ill-treated or killed. In the opinion of the SA, there was no reasonable likelihood of the applicant suffering in any of these ways on return to Nepal. Even if she had a subjective fear, it was speculative and not well-founded. Accordingly, there was no reasonable risk of the United Kingdom’s Convention responsibility being engaged by her expulsion. 13. On 27 February 2002 the IAT gave the applicant leave to appeal against the SA’s decision. Her grounds of appeal contested the SA’s conclusions, and reiterated her account of her husband’s and son’s past involvement in the CPN, and of their arrest by the police and gave details of the threats and assaults by the plain-clothed persons who came to her house. The applicant accepted in paragraph two of her grounds of appeal that “it is true that I was not an active political lady but my husband was (a) very active worker of the Maoist party.” In the document the applicant further asserted that inconsistencies were to be explained by language and translation issues and stressed that spouses of activists had been arrested and tortured, giving specific examples. The applicant was not represented before the IAT. Having summarised the SA’s findings, the Tribunal stated: “The grounds restate the applicant’s case at length. Documentary evidence is produced annexed to the grounds none of which appears to have been put in front of the [SA]. In these circumstances on balance I am satisfied that this appeal does not merit further consideration by the [IAT]. The [IAT] will require an explanation for the failure to produce the documentary evidence before the [SA]. Accordingly, leave to appeal is granted.” 14. Her letter dated 11 April 2002 addressed to the IAT indicated that she could not attend the hearing fixed for 19 April 2002 as she was ill. She asked for her case to be decided on the basis of her documents and explained that she had not been able to submit the documents to the SA as she had not yet received them at that stage from Nepal. She enclosed a medical certificate dated 8 April 2002 which indicated that she was unwell and had been started on anti-hypertension medication. She was unable to work for eight weeks and required rest. 15. On 19 April 2002 the IAT heard and rejected her application. The applicant was not present or represented at the hearing. The decision of the IAT was sent to her on 30 April 2002. The IAT held: “Leave was given on the basis of various credibility points made in the grounds of appeal, and of further documentary evidence submitted with them. This evidence has neither been filed in triplicate for the use of the [IAT], as directed, not has any explanation been given, as also directed, for the failure to put it before the [SA]. We have not considered it. The [applicant] and her solicitors were sent notice of hearing on 27 February: [the solicitors] withdrew by letter on 17 April, while she has given no explanation for her failure to appear before us. As required by r. 41.3 of the Procedure Rules, we have gone ahead with the hearing. While the grounds of appeal assert that the [applicant] arrived here on 15 October 2000, the statement attached to the statement of evidence form, apparently forwarded by the [applicant’s] own solicitors, not only says she did so on 15 May [2000], but gives circumstantial details of what is said to have happened then. There has been no explanation ..., either before the [SA] or us, for this serious discrepancy, and he [the SA] must be regarded as justified in the view he took of the [applicant’s] credibility.” 16. The applicant applied to the IAT for leave to appeal to the Court of Appeal and lodged detailed grounds of appeal. As to her non-attendance at the IAT hearing, she repeated that she had been ill with hypertension and had been advised by her doctor to rest. She had not been able to pay her lawyers so they had to withdraw from her case. Accordingly, she had requested the IAT to decide her case on the basis of the documents presented. It was unfair to reject her asylum claim because she had not lodged documents in triplicate: she would have done so had she been told that it was necessary. As for the inconsistencies referred to by the IAT, she referred to her lack of knowledge of the English language, her memory losses due to the traumas she had suffered and differences between the English and Nepalese calendars which made for confusing calculations. Indeed her first interpreter spoke Hindi but was not familiar with the Nepalese calendar: when the applicant indicated that she could not follow, the interpreter reassured her that it did not matter as she would have the chance to change her statement at the Home Office. Nor could she follow the Home Office interpreter, as the latter spoke Newari (another language spoken in Nepal) and not Nepali. She went on to describe again her experiences in Nepal, the current situation there and why she feared persecution. She indicated that her husband and son were being tortured in prison and that three close relatives had been recently killed by the police on the basis of involvement with the CPN. 17. On 12 May 2002 she addressed a further detailed letter of protest to the “Premier of Nepal” through the Nepalese Embassy in London. 18. On 12 July 2002 the IAT refused leave to appeal on the basis that there was no arguable point of law and that her grounds of appeal did not address the reasons for the IAT’s decision. 19. On 20 July 2002 the applicant applied to the Court of Appeal for leave to appeal against the IAT decision. She submitted further detailed grounds of appeal: she explained that she could not afford a lawyer for the IAT proceedings, that she was unwell, that she was suffering from depression and that she had language difficulties and difficulties with legal procedures. She explained that she had been unable to submit certain documentation to the SA as it was impossible to bring the documents with her when she left Nepal and she had to wait until friends could deliver them to her. She again explained why there were inconsistencies in her evidence as to her date of arrival in the United Kingdom. She pointed out that not all of the circumstances of her case had therefore been taken into account and she again described the situation in Nepal, her experiences there and her fears about being returned there. In particular, she claimed that her husband and son had been incarcerated and that she had learnt from friends that they were being “tortured very much” and that all her “fellow comrades” were being arrested, tortured and killed every day by the Nepalese government. She also explained that one of the reasons for any inconsistencies in her account was her fear of the United Kingdom authorities following her bad experiences in Nepal. 20. On 19 November 2002 a single judge of the Court of Appeal heard her application. The applicant was present with an interpreter. The judge rejected her application. The Court considered that her appeal had no prospects of success because: “No error of law was made by the IAT. The [SA] did not believe the applicant’s claim as to her historic persecution, and was not satisfied that there was evidence that she might be at risk if she returned to Nepal. In the circumstances before it, the IAT was within the permissible limits of its practice not to look at the new material. Although, in the unusual circumstances of Ms Basnet’s allegations, the court made enquiries of her former solicitors, any unreasonable failure by them to assist her (which the court does not find demonstrated) cannot be found an error by the IAT. The explanation for not producing the new material before the [SA] is not satisfactory, particularly as some of it (e.g. some of the material about protests in the U.K.) must have been in Ms Basnet’s hands at the time of the hearing. I have also to express some scepticism as to whether someone who signs long letters in good English as “Chair, London Protest Committee” was as incapable of attending to her own defence as Ms Basnet claims to have been. If Ms Basnet can demonstrate by the new material that her situation is markedly different from that which was before the IAT her only course is to approach the [Home Secretary]: although I must not be taken to have formed any view as to whether that course would be justified or successful.” 21. On 5 December 2002 the House of Lords confirmed that no appeal lay to it from a refusal by the Court of Appeal to grant leave to appeal. 22. By notice dated 7 December 2002 the applicant was served with removal directions, the removal being foreseen for 10 December 2002. 23. On 10 December 2002 the applicant lodged an application against the United Kingdom with this Court, submitting a document dated 12 December 2001 in Nepalese and its translation. It is said to be a letter from her lawyer in Nepal to her and the translation reads as follows: “This office has [received] this arrest warrant against [the applicant] on the instruction of the Kathmandu District Police ... dated 16/11/01 on the charge of treason. I am unable to prepare, ... plead and [proceed with] her case because of ... harassment [by] the police, court officers and judges and fear of being arrested ... myself due to her protest letters against the present Royal family, government and army on the direction of [the CPN]. Now her son and husband are in Birgunj and Syanza jails, respectively. Now the Government has declared a state emergency against the [CPN]. All ... human Rights are being suspended and [the] press totally are being censored. It is certain that Mrs Basnet will be arrested, tortured, killed or disappeared at the airport on her arrival to this country. Her protest letters against the royal massacres and against Crown Prince ... have really increased her threat of life.” 24. The document referred to in that letter was also submitted in Nepalese together with its translation. It is described as an arrest warrant issued by the Nepalese Ministry of Home Area Police Office and dated 16 November 2001 and its translation reads as follows: “On the instructions of the Kathmandu District Police Office Hamumandhoka, hereby this office issues an arrest warrant [in] the name of Mrs Milan Basnet - 41 of Ka. Ma. Na. Pa. Ward no. 34 [who is] 5’ 3’’ [in] height [and has] olive complexion, black hair and one broken tooth on the charge of treason. It is ordered to search and arrest and bring her to this office without letting her escape on the way until the withdrawal of this arrest warrant. If she is not arrested in seven days time except[ing] the period of your journey, be active to arrest her after delivering this arrest warrant to her home on the eight day until her arrest.” 25. The applicant also submitted to this Court a medical certificate dated 10 May 2002 which refers to her having undergone treatment for hypertension and cellulitis affecting her legs for which she had been treated in the accident and emergency service of a hospital and a letter dated 18 June 2002 from the CPN in Nepalese and its translation. It congratulated and thanked the applicant for her courage in protesting against the Nepalese Government. 26. On 14 January 2004 the applicant submitted a request to the Home Office for further consideration of her case enclosing a copy of the warrant for her arrest, a copy of the letter from her Nepalese lawyer and a copy of the letter from the CPN dated 18 June 2002. 27. On 10 May 2005 the Home Office decided not to treat her representations as a fresh application. It found, inter alia, that the arrest warrant and the lawyer’s letter had already been fully considered and dismissed by the domestic courts. Following further representations by the applicant, the Home Office conceded that the documents had not in fact been considered by the SA but maintained its refusal to consider the representations as amounting to a fresh application on 8 June 2005, explaining that as no reason had been given as to why the originals had not been submitted to them on this occasion, it was unable to examine the new evidence. It concluded that, having considered the findings of fact made by the SA and the ease with which such documents could be obtained and their timing and content, it was unable to place any reliance on them. 28. The applicant subsequently applied for permission for judicial review. On 21 February 2006, following an oral hearing, the High Court refused her application upon the assurance given by the Secretary of State that the applicant would not be removed by the Home Office if further representations were made to it within 14 days and until a decision was made on those representations. 29. On 7 March 2006 the applicant made further representations to the Home Office. Her arguments centred on the fact that the above mentioned documents (namely the copy of the warrant for her arrest in Nepal, letters from the CPN and a copy of a letter from her lawyer in Nepal) had never been considered. Her representatives asserted that she could not have produced these documents at the time of her first asylum claim as they were not then available to her. It was further contended that the applicant had become a marked person so far as the Government of Nepal was concerned due to her numerous protest letters against the Royal regime during her stay in the United Kingdom which had “doubled her risk to life as compared to her pre-arrival risk as a consequence of imputed political opinion”. It was finally maintained that the Secretary of State had failed to consider the risk the applicant would face in the light of the changed political situation in Nepal. In particular, the Nepalese King’s actions had “plunged the country into a human rights crisis and put any Maoists, even sympathisers, at a real risk of torture, disappearance or being killed.” 30. On 16 October 2006 these representations were accepted as amounting to a fresh claim by the Home Office. 31. On 8 December 2006 a decision was made to refuse to grant the applicant asylum under paragraph 336 of HC 395 (as amended) and on 11 December 2006 a decision was made to refuse her leave to remain in the United Kingdom. 32. On 7 February 2007 the AIT heard the applicant’s appeal, in the applicant’s absence on medical grounds without the latter seeking an adjournment, and the appeal was refused on 23 February 2007. The presiding Immigration Judge did not find the applicant to be credible and noted numerous inconsistencies in her account. In particular, he found that she had vacillated as to the exact date of her arrival in the United Kingdom and she had produced a letter attesting to the fact that she was the Chairperson of a Nepalese protest committee in the United Kingdom, yet, had answered that she was not the Chair but just a member when later questioned on this point. Furthermore, the fact that the applicant had not been cross-examined on the new evidence, thus depriving the Secretary of State of an opportunity to challenge her account, did little to enhance her credibility. It appeared also that the applicant had never taken part in any political activity in Nepal and that there had been no reason for the Nepalese authorities to issue an arrest warrant when she had left the country, let alone eighteen months later as the document she had proffered suggested. Ultimately, the AIT concluded that only in an exceptional case would a risk of persecution or treatment contrary to Article 3 be held to arise by virtue of being, or being perceived, as a Maoist and that the present was not such a case. Even assuming that the applicant’s account was true, country guidance reflected the fact that there was no risk to individuals on the basis of imputed political opinion by way of association with family members and internal relocation to Kathmandu, Nepal’s capital, appeared to be a viable option. 33. On 20 July 2007 the applicant’s application for reconsideration of the AIT’s decision under section 103A of the Nationality, Immigration and Asylum Act 2002 was refused by a Senior Immigration Judge sitting at the AIT on the basis that the grounds on which reconsideration was sought did not disclose any error of law. 34. Section 8 of the Asylum and Immigration Act 2003 (Treatment of Claimants, etc.) stipulates the following: (1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies. (2) This section applies to any behaviour by the claimant that the deciding authority thinks— (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant. (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead— (a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State, (b) the production of a document which is not a valid passport as if it were, (c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport, (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and (e) failure without reasonable explanation to answer a question asked by a deciding authority.” 35. The AIT’s country guidance case entitled KG (review of current situation) Nepal CG [2006] UKAIT 00076, after examining available country information, concluded the following as to the potential risks to Maoists upon return to Nepal: “So far as the issue of risk on return to Maoists from the current government is concerned, we consider that the latest background evidence, which includes reference to the dropping of all terrorism charges against Maoist rebels and to a clear commitment from the interim government to include Maoists both in the interim government (at some stage) and in a new regular government following elections, demonstrates that even active members of the CPN and members of the PLA would not be at risk on return to Nepal. In our view it would only be in the exceptional case that an appellant could show a continuing risk of persecution or serious harm or treatment contrary to Article 3 by virtue of being, or being perceived as, a Maoist.” 36. The United Kingdom Home Office Country of Origin Information Key Documents published on 6 May 2008 (COI Key Documents, 2008) cite at paragraph 2.06 the Foreign & Commonwealth Office’s (FCO) Country Profile on Nepal, which was last updated on 8 June 2007 and which states (at paragraph 4a) the following as regards the current political climate in Nepal: “A peace agreement between the Government of Nepal and the Maoists was signed in Kathmandu on 21 November 2006 thereby ending 11 years of conflict in Nepal. Under the terms of the agreement the Nepali Army and Maoist cadres will be confined to barracks and cantonments. Both sides agreed a permanent ceasefire and an arms management arrangement, which will be monitored by the UN. The agreement also provides for elections to a Constituent Assembly by June 2007 and for the Maoists to become part of the political mainstream as a legitimate political party. Subsequently an arms management agreement was signed on 28 November 2006 between the Maoists and the government under the auspices of the UN.” 37. The COI key documents describe recent events and political developments in Nepal at paragraphs 2.07 and 2.08 as follows: “The FCO Country Profile of Nepal, updated on 8 June 2007, observed that “On 15 January 2007 the House of Representatives was dissolved and the interim parliament was formed, promulgating the interim constitution. On 1 April 2007, the interim government was formed which for the first time includes Maoist ministers...” “The BBC Timeline for Nepal, updated on 2 May 2008, noted that the Constituent Assembly elections due in April 2007 were postponed in May until November that year. In September 2007 Maoists quit the interim government in order to press demands for the monarchy to be scrapped. The Maoist withdrawal from the government forced the postponement of November’s constituent assembly elections. There was also a bomb attack in Kathmandu in September – the first since the end of the Maoist insurgency. In December 2007 Parliament approved the abolition of the monarchy as part of a peace deal with the Maoists, who agreed to re-join the government. In January 2008 the already postponed elections for the constituent assembly were set for 10 April 2008. Following the April polls, the former Maoist rebels won 220 of 601 seats in the constituent assembly, while the Nepali Congress Party and the Communist Party of Nepal won 110 and 103 seats respectively. The Maoists said they wished to include these “two other big parties” in a coalition government. (BBC News, 25 April 2008)...The Maoist leader, Prachanda, also confirmed that the first meeting of the assembly would abolish Nepal’s monarchy.” 38. On 28 May 2008 the Nepalese constituent assembly abolished the monarchy and declared the country a republic, with only four members of the 601 seat assembly opposing the change (see BBC News “Nepal votes to Abolish Monarchy”, article of 28 May 2008). | 0 |
train | 001-86652 | ENG | BIH | ADMISSIBILITY | 2,008 | KALINIC AND BILBIJA v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicants, Mr Dragan Kalinić and Mr Milorad Bilbija, are citizens of Bosnia and Herzegovina. They were represented before the Court by Mr M. Pucar, a lawyer practising in Banja Luka. s, may be summarised as follows. On 29 June 2004 the High Representative removed Mr Kalinić from his positions as Speaker of the Parliament of the Republika Srpska and as president of a political party (Srpska demokratska stranka; “SDS”). Mr Kalinić was also barred, until further notice, from holding any public or political-party positions and from running for election. The decision had immediate effect and did not require any further procedural steps. The main reasons given for the decision are reproduced here: “1. Despite its constitutionally mandated duty to fully co-operate with ICTY [that is, the International Criminal Tribunal for the Former Yugoslavia] – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war without a single war criminal being arrested in the territory of the Republika Srpska by the authorities of the Republika Srpska, is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole. For over a decade and throughout the war, SDS has held the reins of political power in the Republika Srpska. The Entity’s failure to apprehend those indicted individuals in flagrant disregard of Bosnia and Herzegovina’s obligations under international law is, therefore, a damning indictment of SDS’s commitment to proper governance. Given its dubious legacy as the political party founded by and initially presided over by the chief ICTY indictee at large, Radovan Karadžić, it was doubly incumbent upon SDS to effect expiation and rehabilitation by proactively pursuing and bringing to book the erstwhile architects of its odious policies which so disfigured the polity. That it has not done so is a testament, at best, to its negligent abdication of governmental responsibility or, at worst, to its concerted will to obstruct peace implementation by clinging to vestiges (and figures) of its bankrupt past. As the leading member of the SDS occupying the highest position of responsibility within the party and upon solid information and belief, Mr. Kalinić is culpable for the SDS’s failure to purge the political landscape of conditions conducive to the sustenance to individuals indicted under Article 19 [of the Statute of the ICTY], as aforesaid. 2. Persons holding office as President of a political party are placed in a position of trust and confidence not only vis-à-vis the members of that particular party but also vis-à-vis the taxpayers insofar as political parties are funded, inter alia, from the budgets of the various level of Governments in Bosnia and Herzegovina. As such, they are under an obligation to ensure that the financing of the parties is fully transparent and orderly and to take such step as are necessary to ensure that the party observes and adheres to both domestic law and international obligations and that funds from the Party, whether private or public, are neither used for the sustenance of criminals or indicted war criminals or their support structures nor to help those evade capture. The Report of the Special Auditor for the Republika Srpska shows substantial discrepancies between the Financial Report of 19 April 2004 and the financial records of SDS offices across the Republika Srpska. In particular, the Report of the Special Auditor highlights the lack of property lists, poor invoices supporting payments, incomplete payments of required social benefit and employment tax costs for SDS employees, unreported cash income, poorly documented and frequent withdrawals from petty cash, all of which constitute breaches of the Law. More importantly, the Report shows a total failure of the central bodies of the SDS to assume their supervisory duties under the Statute of the Party and to guarantee that the minimum necessary measures are in place for ensuring the effective and proper management and control of the party and its assets. The result of such failures of control amount to a delinquency of duty to ensure that these funds are secure from being used to sustain or assist indicted war criminals, and especially Radovan Karadžić, the founder of the SDS, who, inter alia, has admitted in a letter that he is in contact with and has received assistance from SDS, a fact which is also supported by certain other evidence. For reasons mentioned above, Dragan Kalinić had a special responsibility to sever the links of the party with the past by ensuring that no material assistance could be or was provided to such an individual. The findings of said Report compel the conclusion that, in the absence of control mechanisms, the SDS and its President are not in sufficient control of the funds of the Party to preclude party bodies from providing any assistance or succour to its former President. On these grounds, the peace implementation is undermined as long as Mr Kalinić remains in office. Accordingly, he must be removed from office forthwith.” On 16 December 2004 the High Representative removed Mr Bilbija from his position in the Intelligence and Security Agency of Bosnia and Herzegovina and from all his other public and political-party positions. Mr Bilbija was also barred, until further notice, from holding any such positions and from running for election. The decision had immediate effect and did not require any further procedural steps. The following are the main reasons given for the decision: “Bosnia and Herzegovina has singularly failed to discharge its international obligation to bring closure to arguably the most lamentable chapter of its history. It has failed especially and egregiously in the territory of the Republika Srpska to apprehend and deliver to just prosecution a number of persons indicted under Article 19 of the Statute of the ICTY. Said failure could not have occurred without the active assistance of individuals and entities, or indeed without the general culture of both overt and secret complicity and of silence prevalent in the one Entity of Bosnia and Herzegovina where such individuals are believed to have found sanctuary, that is, [in the] Republika Srpska. Despite its constitutionally mandated duty to fully co-operate with the ICTY – which duty was impressed upon the Republika Srpska further by the Resolutions of the United Nations Security Council referenced above – indicted individuals remain at large within the Republika Srpska and have been and are presently assisted in evading justice by individuals in positions of authority and by institutions of a state and political character. That this state of affairs has continued for nine years following the end of the war is a source of deep and abiding concern not only for the people of Bosnia and Herzegovina but for the international community as a whole. It now falls on the international community to redress this intolerable situation by initiating direct and sweeping action against those public-office holders of the Republika Srpska who obstruct international law in the Entity. By dint of their nefarious conduct or failure to carry out their functional responsibilities while associated in differing capacities with public institutions, these individuals have demonstrated that they are not worthy of entrustment with public responsibility. Based on the foregoing and upon solid information and belief, it is deemed necessary to remove from public office Milorad Bilbija. Milorad Bilbija holds the office of Deputy Head Operative Administration of the Intelligence and Security Agency in Banja Luka. Milorad Biblija is, whether through his actions or his failures to act an integral part of the common scheme within the Republika Srpska to foster a culture of silence and deceit wherein war crime indictees are protected from justice. As a constituent of the current political culture within the Republika Srpska, Milorad Bilbija is derivatively culpable for contributing to the failure to purge from the political landscape of conditions conducive to the provision of material support and sustenance to individuals indicted under Article 19 [of the Statute of the ICTY], as aforesaid. Such failings are inimical to stability and the rule of law. Milorad Bilbija, therefore, obstructs the process of peace implementation and must be removed from public office. The principles of proper governance and transparency, protection of the integrity and reputation of the institutions of Bosnia and Herzegovina, and active support for the rule of law and for the international obligations of Bosnia and Herzegovina – so essential to the peace implementation process – mandate this outcome.” Following appeals of the applicants, on 28 February 2005 and on 18 May 2005 the Court of Bosnia and Herzegovina and the Supreme Court of the Republika Srpska, respectively, decided that they lacked jurisdiction to examine the High Representative’s decisions mentioned above. The applicants then appealed to the Constitutional Court of Bosnia and Herzegovina. On 8 July 2006 the Constitutional Court found that the domestic authorities had failed to secure an effective domestic remedy against the decisions of the High Representative in the applicants’ cases, as required by Article 13 of the European Convention on Human Rights and the equivalent provision of the Constitution of Bosnia and Herzegovina. The domestic authorities were ordered to secure such a remedy. This decision (no. AP 953/05) was published in the Official Gazette of Bosnia and Herzegovina no. 20/07 of 20 March 2007. It led to a vigorous response from the High Representative: on 23 March 2007 he issued a decision removing any practical effect from the Constitutional Court’s decision of 8 July 2006. The relevant part of the High Representative’s decision reads as follows: In order to implement the Decision of the [Constitutional] Court [no. AP 953/05 of 8 July 2006], the Presidency of Bosnia and Herzegovina shall address to the High Representative, as Chair of the Steering Board of the [Peace Implementation Council], all matters raised in said Decision that ought to be considered by the international authorities referenced in the said Decision. Any step taken by any institution or authority in Bosnia and Herzegovina in order to establish any domestic mechanism to review the Decisions of the High Representative issued pursuant to his international mandate shall be considered by the High Representative as an attempt to undermine the implementation of the civilian aspects of the [Peace Agreement] and shall be treated in itself as conduct undermining such implementation. Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent. Any proceeding referred to in Paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay. For the avoidance of any doubt or ambiguity, and taking into account the totality of the matters aforesaid, it is hereby specifically ordered and determined, in the exercise of the said international mandate of the High Representative and pursuant to its interpretation hereinunder and by virtue of the said Annex 10 [to the Peace Agreement], that no liability is capable of being incurred on the part of the Institutions of Bosnia and Herzegovina, and/or any of its subdivisions and/or any other authority in Bosnia and Herzegovina, in respect of any loss or damage allegedly flowing, either directly or indirectly, from such Decision of the High Representative made pursuant to his or her international mandate, or at all. For the avoidance of doubt, it is hereby specifically declared and provided that the provisions of the Order contained herein are, as to each and every one of them, laid down by the High Representative pursuant to his international mandate and are not, therefore, justiciable by the Courts of Bosnia and Herzegovina or its Entities or elsewhere, and no proceedings may be brought in respect of duties in respect thereof before any court whatsoever at any time hereafter. This Order shall enter into force immediately and shall be published without delay...” The relevant law and practice were outlined in Berić and Others v. Bosnia and Herzegovina ((dec.), nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, ECHR 2007...). | 0 |
train | 001-23012 | ENG | GBR | ADMISSIBILITY | 2,003 | AUGUST v. THE UNITED KINGDOM | 2 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Carl Wade August, is a United Kingdom national, who was born in 1976 and lives on the Isle of Wight. He is represented before the Court by Ms Y. Spencer of the Children’s Legal Centre. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1985, the applicant, aged 8, was taken into voluntary care by the local authority. In 1987, he was diagnosed as being a disturbed child and in March 1990 assessed as being in need of psychiatric assessment. In the summer of 1990, while placed at a residential centre, the applicant, aged 13 years, met C., a 53 year-old man, in a public lavatory. Oral sex was performed by both parties and the applicant was paid ten pounds sterling. Over the next four months, the applicant alleged that C. committed further acts of gross indecency and buggery on the applicant. The applicant informed the social services who took no action. He then informed the police. On 9 June 1993, C. was convicted of one count of buggery involving the applicant in which the evidence was that C. was the passive participant and two counts of gross indecency. He was sentenced to seven years’ imprisonment. There was a finding by the judge on sentencing that the applicant did not appear older than his years and that C. posed a serious risk to other children. On appeal, the Court of Appeal reduced C.’s sentence to five years, noting that the judge had been entitled to conclude that C. was likely to commit offences which might cause serious harm in the future but that the sentence was too high in the special circumstances of this case, in particular the part played by the victim “who had gone to the public lavatory for the purpose of seeking out someone to obtain money from them for homosexual activity and who was the active partner in the only act of buggery which took place”. On 3 April 1997, the applicant applied to the Criminal Injuries Compensation Authority (CICA). A report dated 22 December 1997 by a consultant psychiatrist prepared for this purpose indicated that the applicant had shown behavioural signs and indicators that suggested that he had been sexually abused before the age of ten. On 13 June 1997, the CICA rejected the applicant’s application for compensation on the grounds that he was not the victim of violence as required under paragraph 8(a) of the Criminal Injuries Compensation Scheme, that his own conduct had contributed to the incident and that in the circumstances it was not appropriate that he should receive an award and that they had taken into account the applicant’s unlawful conduct pursuant to Article 13(e) of the Scheme (following the offences, the applicant had himself committed three offences against the person, one offence against property, five offences of theft and one of failing to surrender to bail). On 10 November 1997, the CICA upheld its decision on the applicant’s application for review. On 21 January 1998, the applicant appealed against the decision, arguing that inter alia as a child he had been incapable of consenting to the sexual acts in question, and that non-consensual indecent assault and buggery could not be other than a crime of violence. At the hearing before the CIC Appeal Panel, at which C., the applicant and the investigating police officer gave evidence, the applicant’s representative accepted that the applicant had participated “voluntarily” in the acts, in that he was not forced by threats of physical violence but submitted that his consent was vitiated by his age, history in care and earlier history of sexual abuse. By decision of 3 November 1998, amplified by further reasons on 18 January 1999, the Appeal Panel rejected the appeal on the ground that there had not been a crime of violence. The applicant applied for judicial review on 3 February 1999. A further psychiatric report pointed out that the applicant was a damaged and vulnerable child with a serious mental health problem, that predatory paedophiles targeted such boys and that given C.’s age, it could not be regarded that the applicant was able to make an “informed choice” in the matter. On 4 November 1999, the High Court refused the application. Mr Justice Owen held that it did not follow that because there could not be a consent valid in law that there was a crime of violence. It was a matter of fact to be decided by the panel who heard the witnesses and no error of law was disclosed by their decision. On 18 December 2000, the Court of Appeal refused his appeal, agreeing that a sexual offence was not per se a crime of violence and that whether violence was involved depended on the facts of the individual case. Leave to appeal was refused by the House of Lords on 26 March 2002. The Criminal Injuries Compensation Scheme provides for the payment of compensation to persons who have sustained criminal injury. “8. For the purposes of this Scheme, ‘criminal injury’ means one or more personal injuries as described in the following paragraph ... a crime of violence (including arson, fire-raising or an act of poisoning ... 13. A claims officer may withhold or reduce an award where he considers that: ... (d) the conduct of the applicant before, during or after the incident giving rise to the application makes it inappropriate that a full award or any award at all be made; or (e) the applicant’s character as shown by his criminal convictions ... makes it inappropriate that a full award or any award at all be made ...” | 0 |
train | 001-107558 | ENG | DEU | CHAMBER | 2,011 | CASE OF SCHÖNBROD v. GERMANY | 3 | Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicant was born in 1933. He was detained in Aachen Prison until his release on 1 March 2008. 6. The applicant has been convicted twenty-two times since 1949, initially notably for smuggling and thefts. Since 1955 he has spent most of his life in prison. 7. On 23 April 1968 the Cologne Regional Court convicted the applicant on two charges of joint aggravated (armed) robbery of a bank, sentenced him to twelve years’ imprisonment and ordered his preventive detention. 8. On 20 January 1970 the Cologne Regional Court convicted the applicant of aggravated robbery-style theft committed against a money courier. Taking into account the term of imprisonment from the judgment of 23 April 1968, it imposed on the applicant a cumulative sentence of thirteen years’ imprisonment, but quashed the order for preventive detention. The remainder of his prison sentence was suspended on 31 March 1977 and the applicant was released and placed on probation; this suspension was subsequently revoked. 9. On 7 December 1978 the Cologne Regional Court convicted the applicant, in particular, of two counts of joint aggravated (armed) robbery, of aiding and abetting another joint aggravated robbery, of three counts of aggravated theft and one count of attempted aggravated theft. It sentenced him to thirteen years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 45-46 below). 10. The Cologne Regional Court found that the applicant, who had been released from prison on 31 March 1977 and had a job, had committed the said offences between June 1977 and his arrest in November 1977. Together with two accomplices, he had robbed a money courier and a bank, armed. He had further stolen or attempted to steal together with others several cars which had later been used when committing the two robberies and another bank robbery in which the applicant had not otherwise participated. 11. Having consulted an expert, the Cologne Regional Court found that since his youth the applicant had been strongly inclined to commit offences and to make his living thereby, even though he could have worked. Serving long sentences had not prevented him from reoffending and from committing more and more serious offences at ever shorter intervals. Since there were no indications that the applicant would not reoffend, he was dangerous to the public. 12. On 11 April 1980 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the judgment of 7 December 1978, which thereby became final. 13. On 29 April 1983 the Bonn Regional Court reopened the proceedings in respect of one of the applicant’s accomplices, W., who had also been convicted of bank robbery on 7 December 1978, and acquitted him. The third accomplice to the robbery, Schw., had confessed that he had wrongfully incriminated both W. and the applicant in this offence. The applicant’s request for reopening of the proceedings against him was subsequently dismissed. 14. On 2 February 1993 the Bonn Regional Court suspended the order remanding the applicant in preventive detention from 26 April 1993 (when the applicant would have served his full prison sentence), granted probation and ordered the applicant to be placed under supervision of conduct (Führungsaufsicht) for four years. 15. The applicant served the sentence imposed by the judgment of 7 December 1978 in full, as well as the remainder of the sentence imposed by the judgment of 20 January 1970, until 26 April 1993. 16. On 20 May 1996 the Koblenz Regional Court convicted the applicant of aggravated (armed) robbery committed with others, sentenced him to ten years’ imprisonment and ordered his preventive detention. It found that the applicant, armed with a machine gun, had robbed a bank together with an accomplice in June 1995; he had been in custody since then. 17. On 13 November 1996 the Federal Court of Justice quashed the judgment of 20 May 1996 so far as the applicant’s sentence and his preventive detention were concerned and remitted the case to the Regional Court. 18. On 18 June 1997 the Koblenz Regional Court again sentenced the applicant to ten years’ imprisonment. It considered the conditions for his preventive detention under Article 66 of the Criminal Code to have been met. However, for reasons of proportionality, the court did not order the applicant’s preventive detention, which would then have been of indefinite duration. It argued that from 8 June 2005 onwards, the applicant would be placed in preventive detention on the basis of the judgment of 7 December 1978, as the provisional suspension of his preventive detention on 2 February 1993 was likely to be revoked, and that he would be of advanced age afterwards. 19. On 6 July 1998 the Bonn Regional Court, acting as the court dealing with the execution of sentences, revoked the suspension of the applicant’s provisional preventive detention granted on 2 February 1993 pursuant to Article 67g § 1 no. 1 of the Criminal Code (see paragraph 51 below) in view of his renewed conviction for aggravated robbery committed in June 1995. 20. On 1 September 1998 the Cologne Court of Appeal, disagreeing with the General Public Prosecutor’s view, dismissed the applicant’s appeal against the decision of 6 July 1998. The applicant’s objection was of no avail. 21. On 25 February 1999 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (no. 2 BvR 1712/98) against the decision of the Cologne Court of Appeal dated 1 September 1998. It found that the applicant had failed sufficiently to substantiate his complaint, which was therefore inadmissible. It observed, however, that the provisions of the Criminal Code did not permit the revocation of the suspension of the applicant’s provisional preventive detention after the expiry of the four-year period of supervision of his conduct. It was firstly up to the courts dealing with matters relating to the execution of sentences to examine whether the revocation decision could be amended at the applicant’s request or of the court’s own motion. 22. On 13 April 1999 the Cologne Court of Appeal dismissed the applicant’s request, supported by the Public Prosecutor General, for the decisions of the Bonn Regional Court dated 6 July 1998 and of the Cologne Court of Appeal dated 1 September 1998 to be set aside. It found that under Article 68c § 3, second sentence, of the Criminal Code (see paragraph 52 below), the supervision of the applicant’s conduct for four years ordered in 1993 had not ended until now as the applicant had been detained since June 1995 and the time spent in detention did not count towards the period of the supervision of his conduct. Therefore, the provisional suspension of the preventive detention order against him could still be revoked in 1998. 23. On 13 September 2004 the Aachen Regional Court started the proceedings for examination of the need for the applicant’s preventive detention after the end of his prison term by requesting the Public Prosecutor’s Office to send the case file and by ordering the Aachen Prison authorities to make a statement. 24. The director of Aachen Prison thereupon sent a statement dated 30 December 2004, which he supplemented at the court’s request on 25 February 2005. Following two reminders from the Regional Court, the Public Prosecutor’s Office submitted the case file to the court in March 2005. 25. On 30 March 2005 the Regional Court requested a psychiatric expert to give an opinion on whether the applicant was still so dangerous that his preventive detention was necessary. 26. The applicant served his prison sentence in full, up to 7 June 2005. From 8 June 2005 the applicant was in preventive detention ordered in the judgment dated 7 December 1978. 27. Following an inquiry of the Regional Court at the applicant’s request, the latter was examined by the psychiatric expert on 3 August 2005. Following two further requests made by the applicant to make progress in the proceedings, a report drafted by two psychiatric experts was submitted to the court on 16 November 2005. 28. On 30 March 2006 the Aachen Regional Court, having heard the applicant and his counsel on that day and having consulted the director of Aachen Prison and two experts, ordered the execution of the preventive detention order in respect of the applicant made in the Cologne Regional Court judgment of 7 December 1978. 29. The Regional Court considered in detail the previous convictions of the applicant, aged 72, notably his convictions for aggravated robbery and robbery-style theft by judgments dated 23 April 1968, 20 January 1970, 7 December 1978 and 18 June 1997. 30. The Regional Court found that the execution of the preventive detention order against the applicant was still necessary in view of its objective (Article 67c § 1 of the Criminal Code, see paragraph 48 below). In the court’s view, the applicant was likely to commit further serious offences similar to those he had previously committed if released (Article 67d § 2 of the Criminal Code, see paragraph 50 below). 31. In the Regional Court’s view, the applicant had been a persistent offender since his youth, who had reoffended shortly after being released on probation and after serving long prison sentences. He did not have any family ties outside prison and did not have any precise plans as to what he would be doing when released. He was lively for his age. He suffered from orthopaedic health problems, notably injuries to his left knee and his hip, which, as found by the prison doctor, entailed a considerable but not extreme walking disability. His walking ability could have been considerably improved by an artificial hip, but he refused to have the operation while he was in prison. Having consulted the prison doctor, the court took the view that the applicant’s walking disability could not yet be considered so severe as to render him physically unable to commit an offence, notably as his previous offences had not required significant mobility. 32. The Regional Court, having regard to the report dated 16 November 2005 by the two psychiatric experts who had examined the applicant, took the view that the applicant’s personal and social situation remained similar to that which had existed when he was released from prison in 1993 at the age of 59. He had not changed his attitude towards offences and therefore remained dangerous. 33. On 26 June 2006 the Cologne Court of Appeal dismissed the applicant’s appeal against the Aachen Regional Court decision of 30 March 2006. It did not share the view expressed by the Federal Constitutional Court in its decision dated 25 February 1999 that the revocation of the suspension of the applicant’s provisional preventive detention had no longer been possible on 6 July 1998 according to the provisions of the Criminal Code. Pursuant to Article 67g § 5 of the Criminal Code (see paragraph 51 below), preventive detention would cease to apply at the end of the offender’s supervision of conduct if the court had not revoked the suspension of his preventive detention before that date. However, the supervision of the applicant’s conduct for four years ordered in 1993 had not ended, as the applicant had been detained since June 1995 and the time spent in detention did not count towards the duration of the supervision of conduct (Article 68c § 3, second sentence, of the Criminal Code). 34. Moreover, the Court of Appeal found that, contrary to the applicant’s submissions in his appeal, the fact that the Regional Court had failed to reach a decision on the applicant’s preventive detention before the applicant had served his full prison sentence on 7 June 2005 (Article 67c § 2 of the Criminal Code) did not render its decision unlawful. In any event, the mistake had been remedied ex nunc when the decision was taken. 35. According to the Court of Appeal, the applicant needed to be kept in preventive detention in order to protect the public from particularly dangerous offenders. The applicant did not truly question or regret his offences. As found by two experts in an additional report, the applicant’s statements concerning his offences were very similar to those he had made before his previous release from prison, following which he had reoffended. The applicant’s age and the health problems accompanying it did not, at least at the time, warrant a different conclusion as to the danger he presented to the public. The applicant had also already reached retirement age when he had committed his last offence. As found by the prison doctor on 25 February 2005, his knee and hip were damaged. The court found that these illnesses caused pain, but did not entail a walking disability. 36. Remanding the applicant in preventive detention was also not disproportionate, as he was likely to commit serious offences if released. However, in view of his present illnesses and the usual diminution of physical fitness with advancing age the applicant’s preventive detention would probably not last until its termination in 2015, but would be suspended on probation. Therefore, the applicant should be prepared for a life outside prison. 37. On 14 July 2006 the Cologne Court of Appeal dismissed the applicant’s objection against that decision. 38. On 3 August 2006 the applicant lodged a complaint with the Federal Constitutional Court against the decisions of the Aachen Regional Court dated 30 March 2006 and of the Cologne Court of Appeal dated 26 June 2006. He claimed that his right to liberty had been violated. He argued that, as had been expressly found in the decision of the Federal Constitutional Court dated 25 February 1999, the revocation of the suspension of his provisional preventive detention had no longer been possible on 6 July 1998. Moreover, he had been remanded in preventive detention since 8 June 2005 without a legal basis, in particular because the courts had failed to reach a decision on the necessity of that remand in custody within a reasonable time, as required by Article 67c § 1 of the Criminal Code as interpreted in the well-established case-law of the courts of appeal and of the Federal Constitutional Court itself (see paragraph 49 below). Due to his age, 73, and his walking disability, which had already made him physically unable to reoffend, his preventive detention was also disproportionate. 39. On 21 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1614/06). It found that the complaint had no prospects of success. 40. The Federal Constitutional Court considered that, even assuming that the decisions on the necessity to remand the applicant in preventive detention should have been based on paragraph 1 of Article 67c of the Criminal Code, they did not violate the Basic Law. Contrary to the applicant’s view, he had not been detained without legal basis in the period between the end of his prison term and the Regional Court’s decision ordering the execution of the preventive detention order against him. Referring to its decision of 9 March 1976 (file no. 2 BvR 618/75, see paragraph 49 below), it found that the execution of a preventive detention order on the basis of a judgment of the sentencing court ordering it under Article 66 of the Criminal Code was permitted if the Regional Court dealing with the execution of sentences had begun with its examination under Article 67c § 1 of the Criminal Code before the person concerned had fully served his prison sentence, even if it had not yet taken its decision. 41. The Federal Constitutional Court further took the view that the Regional Court, which had started the proceedings concerning suspension of the applicant’s preventive detention some nine months before the end of the applicant’s prison term, had not delayed the proceedings in a manner which would violate his right to liberty. 42. Furthermore, the decision of the courts dealing with the execution of sentences not to suspend the preventive detention order against the applicant and grant probation did not appear arbitrary in view of the applicant’s repeated serious offences and there was no violation of the courts’ duty to investigate the matter. 43. On 20 December 2007 the Aachen Regional Court decided to suspend the preventive detention order made against the applicant in the Cologne Regional Court’s judgment of 7 December 1978 and grant probation as of 1 March 2008; it further ordered supervision of the applicant’s conduct. Having regard to all the , including, in particular, the applicant’s walking disability, the court considered, in accordance with the view taken by the medical expert it had consulted and contrary to the view taken by the director of Aachen Prison and the Cologne Public Prosecutor’s Office, that it was to be expected that the applicant would not commit further serious offences similar to those he had previously been convicted of if released (Article 67d § 2 of the Criminal Code). 44. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant to the present case can be summarised as follows. 45. A sentencing court may, at the time of an offender’s conviction, order his preventive detention, known as a measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code). 46. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is convicted of an intentional offence and sentenced to at least two years’ imprisonment and if the following further conditions are satisfied: firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time). 47. Preventive detention may only be ordered if such a measure is proportionate to the gravity of the offences committed by, or to be expected from, the perpetrator as well as to his dangerousness (Article 62 of the Criminal Code). 48. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b (1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it temporarily suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension. Pursuant to paragraph 2 of that Article, preventive detention may only be executed on the explicit order of the court if its execution has not started three years after the order becomes final, unless paragraph 1 applies. Time spent by the offender in detention by order of a public authority shall not count towards this time-limit. The court shall order the execution of the preventive detention order if the objective of the measure still requires it. 49. As regards the lawfulness of the execution of a preventive detention order in cases in which the person concerned has served his sentence in full, but the courts dealing with the execution of sentences have not yet taken their decision under Article 67c § 1 of the Criminal Code as to whether preventive detention was still necessary in view of its objective, the following principles have been established in the German courts’ case-law. The execution of the preventive detention order made in the judgment of the criminal sentencing court under Article 66 of the Criminal Code is lawful and does not violate the constitutional right to liberty of the person concerned if the courts dealing with the execution of sentences have started examining the need for preventive detention before the person concerned has served his prison sentence in full and have terminated the proceedings without avoidable delays and within a reasonable time (see Federal Constitutional Court, file no. 2 BvR 618/75, decision of 9 March 1976, Collection of the decisions of the Federal Constitutional Court (BVerfGE), vol. 42, pp. 1 ss.; Düsseldorf Court of Appeal, file no. 2 Ws 303/92, decision of 28 July 1992, NJW 1993, pp. 1087 ss.; Berlin Court of Appeal, file no. 5 Ws 731/96, decision of 18 December 1996; and Berlin Court of Appeal, file no. 2 Ws 373-377/07, decision of 15 June 2007). The execution of a preventive detention order was not permitted, in any event, if a convict, owing to avoidable delays, has already been in preventive detention for ten months without a need for preventive detention having been established (see Düsseldorf Court of Appeal, ibid., p. 1087). In such cases, the execution of the preventive detention order had to be interrupted at the detainee’s request under Article 458 §§ 1 and 3, read in conjunction with Article 463 of the Code of Criminal Procedure (see paragraph 53 below), irrespective of the dangerousness of the person concerned (see Düsseldorf Court of Appeal, ibid., p. 1087; and Berlin Court of Appeal, file no. 2 Ws 373-377/07, decision of 15 June 2007). 50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article, in its version in force at the relevant time, provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release. 51. Article 67g concerns the revocation of the suspension on probation of a preventive detention order. Pursuant to paragraph 1 no. 1, the court shall revoke the suspension of a preventive detention order if the convicted person, during the period of supervision of conduct, commits an unlawful act which shows that the objective of the measure necessitates his preventive detention. Paragraph 5 provides that preventive detention shall cease to apply at the end of the offender’s supervision of conduct if the court did not revoke the suspension of his preventive detention before that date. 52. Article 68c of the Criminal Code regulates the duration of the supervision of conduct. Pursuant to paragraph 3, in its version in force between 31 January 1998 and 17 April 2007, supervision of conduct shall begin once the order of that measure has become final (first sentence). The time the convicted person spends in detention by order of a public authority does not count towards the duration of the supervision of conduct (second sentence). Between 1 April 1987 and 30 January 1998 the same provision was made in paragraph 2 of Article 68c of the Criminal Code. 53. Article 458 § 1 of the Code of Criminal Procedure provides that if objections are raised to the admissibility of the execution of a penalty, a court decision shall be obtained. The further execution of the penalty shall not be suspended thereby; the court may, however, order a suspension of execution (Article 458 § 3 of the Code of Criminal Procedure). Pursuant to Article 463 § 1 of the Code of Criminal Procedure, Article 458 of that Code applies, mutatis mutandis, to the execution of measures of correction and prevention. 54. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and about the retrospective order of the complainants’ preventive detention respectively (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). The Federal Constitutional Court held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty. 55. The Federal Constitutional Court further held that all provisions of the Criminal Code on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003. 56. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the most. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively, the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law. If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released. 57. In its judgment, the Federal Constitutional Court stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to an international and European dialogue between the courts, but was, on the contrary, its normative basis in view of the fact that the Constitution was to be interpreted in a manner that was open to public international law (völkerrechtsfreundliche Auslegung). It stressed that, in line with that openness of the Constitution to public international law, it attempted to avoid breaches of the Convention in the interpretation of the Constitution. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above). | 1 |
train | 001-5717 | ENG | SVK | ADMISSIBILITY | 2,001 | KURAKOVA v. SLOVAKIA | 4 | Inadmissible | András Baka | The applicant is a Slovak national, born in 1951 and living in Hurbanovo. She is represented before the Court by Mrs A. Bödök, a lawyer practising in Komárno. The respondent Government are represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 30 December 1992 the applicant claimed before the Komárno Land Office (Pozemkový úrad), pursuant to the Land Ownership Act (see “Relevant domestic law” below), restitution of real property which had been confiscated from a person who had been in the applicant’s care. She submitted further information in support of her claim on 31 August and 13 November 1995. On 18 January 1996 the applicant informed the Land Office that an agreement on the restitution of the property had not been reached. As a result, the Land Office was called upon to decide on the applicant’s claim in accordance with Sectin 9 (4) of the Land Ownership Act. On 20 February 1996 the Komárno Land Office dismissed the claim on the ground that the applicant lacked standing to claim the restitution. The applicant sought a judicial review of this decision. On 31 October 1996 the Bratislava Regional Court (Krajský súd) quashed the Land Office’s decision as being erroneous. On 20 January 1997 the applicant requested the Komárno District Office (Okresný úrad), to which the case had fallen to be examined, to decide on her claim speedily. On 28 January 1997 the Komárno District Office found, with reference to Section 11 (1) of the Land Ownership Act, that the land claimed by the applicant could not be restored as it had been transferred to other individuals. The decision further stated that on 1 October 1996 proceedings had started pursuant to the Plots Ownership Adjustment Act with a view to updating documentation relating to the plots in the area concerned. The District Office concluded that it would be able to decide which plots could be restored to the applicant and for which plots she could receive other property in compensation only after the relevant entries were updated and after the existing property rights in respect of the relevant plots were ascertained. It therefore stayed the proceedings concerning the applicant’s claim pursuant to Sections 29 (1) and 40 of the Administrative Proceedings Act pending the outcome of the administrative proceedings brought on 1 October 1996. On 17 March 1997 the applicant lodged a constitutional complaint in which she challenged the District Office’s decision to stay the proceedings. She argued that there existed no relevant documents showing that the land in question was owned by individuals. The applicant complained that she was discriminated against as other persons’ restitution claims had been granted prior to the entry into force of the Plots Ownership Adjustment Act. She further complained that the persons using the land at issue were in a more favourable position as they could possibly become its owners by prescription pursuant to Section 11 (8) of the Plots Ownership Adjustment Act. On 23 June 1997 the District Office informed the Constitutional Court (Ústavný súd) that in 1954 and in 1957 the land confiscated from the applicant’s relatives had been allocated to other persons. As there existed numerous lacunas in the relevant documents including the entries in the land registry, the District Office considered it appropriate to ascertain the existing rights in respect of the land in question prior to deciding on the applicant’s claim. In her submissions to the Constitutional Court of 19 April 1998 the applicant argued, inter alia, that the decision to stay the proceedings was contrary to Section 11 (8) (b) of the Plots Ownership Adjustment Act. On 24 April 1998 the Constitutional Court found that there had been no violation of the applicant’s constitutional rights. It noted that the decision to stay the proceedings was of a procedural nature and that it did not determine the applicant’s rights under the Land Ownership Act. The Constitutional Court referred to the documents submitted to it by the District Office and held it for established that the land in question had been allocated to other persons who had thereby become its owners. In the Constitutional Court’s view, the District Office’s decision to stay the proceedings brought by the applicant pending the determination of the existing titles in respect of the relevant property was therefore justified. The Constitutional Court considered it irrelevant that in other cases the existing documentation permitted to decide on similar claims without the determination of any preliminary issues. Finally, the Constitutional Court found erroneous the applicant’s view that her claim should have been given priority by virtue of Section 11 (8) (b) of the Plots Ownership Adjustment Act. The proceedings brought under the Plots Ownership Adjustment Act on 1 October 1996 appear to be still pending. Administrative Proceedings Act of 1967 Section 29 (1) in conjunction with Section 40 of the Administrative Proceedings Act of 1967 (Zákon o správnom konaní) provides that an administrative authority shall stay proceedings before it when other proceedings concerning a preliminary issue are pending. Land Ownership Act of 1991 Under Section 11 (1) (a) of the Land Ownership Act of 1991 (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku), land owned or lawfully used by individuals cannot be restored. Section 11 (2) provides that in such cases other land of comparable size and quality owned by the State is to be transferred to the persons entitled to restitution. Plots Ownership Adjustment Act of 1995 The Plots Ownership Adjustment Act of 1995 (Zákon o niektorých opatreniach na usporiadanie vlastníctva k pozemkom) provides for certain measures aiming at, inter alia, updating documentation concerning the size of plots and the relevant legal titles where the data available is incomplete. For this purpose, the competent administrative authorities shall bring proceedings with a view to gathering the existing data and drawing up a new inventory of the plots. After its approval by a special commission such an inventory entitles the persons concerned to have their titles formally entered in the land registry. Section 11 (1) of the Plots Ownership Adjustment Act provides that in the course of the proceedings an administrative authority may issue, at the proposal of a party, a decision confirming that the claimant acquired the ownership of a plot by prescription. Pursuant to paragraph 8 (b) of the same Section, such a claim cannot be granted when the ownership of the plot is claimed by another person in the same proceedings or when it is the subject-matter of different proceedings brought, for example, under the Land Ownership Act. Complaints Act of 1998 The Complaints Act (Zákon o sťažnostiach) was enacted on 14 May 1998 and entered into force on 1 June 1998. It governs registration and examination of complaints lodged by individuals or legal persons alleging, inter alia, that their rights or legally protected interests were violated or jeopardised as a result of an action of a public authority or its failure to act. The explanatory report to the Complaints Act expressly states that its provisions extend to, inter alia, delays in proceedings before public authorities. Pursuant to Section 4 (c), the Complaints Act does not relate to submissions the examination of which is governed by other laws, e.g. complaints about delays in judicial proceedings which fall to be examined pursuant to the State Administration of Justice Act of 1992. Section 11 (1) of the Complaints Act provides, inter alia, that the head of the public authority concerned is responsible for examination of a complaint. When a complaint is directed against the head of a public authority, it falls to be examined by the hierarchically superior authority. Section 13 provides that a complaint is to be examined within 30 days from the date of its receipt. When co-operation of other authorities or persons is required, a complaint should be examined within 60 days. In exceptional circumstances the time-limit for examination of a complaint may be extended by 30 days. Under Section 18 (1) of the Complaints Act, a record has to be drawn of the examination of a complaint. The record shall contain, inter alia, a statement of the relevant facts and also indicate by whom, how and when any shortcomings found have to be remedied. The person concerned is obliged to submit a report on how the conclusions were complied with. Section 19 (1) provides for informing the complainant about the outcome of the examination of his or her complaint. When a complaint was found to be justified, the complainant shall also be informed about any measures taken with a view to remedying the shortcomings found. | 0 |
train | 001-57975 | ENG | CHE | CHAMBER | 1,996 | CASE OF GÜL v. SWITZERLAND | 2 | No violation of Art. 8 | C. Russo;N. Valticos | 6. Mr Gül is a Turkish national, who was born in 1947 and now lives with his wife at Pratteln in the canton of Basle Rural, Switzerland. 7. Until 1983 he lived with his wife and their two sons, Tuncay (born on 12 October 1971) and Ersin (born on 20 January 1983), in the town of Gümüshane in Turkey. On 25 April 1983 he travelled to Switzerland, where he applied for political asylum as a Kurd and former member of the Turkish Social Democratic Party ("the CHP"). He worked in a restaurant there until 1990, when he fell ill. Since then he has been in receipt of a partial-invalidity pension. 8. In 1987 the applicant’s wife, who had remained in Turkey with their two sons, seriously burned herself during a fit brought on by her epilepsy, from which she had suffered since 1982. In December 1987, having found that it was impossible for her to obtain proper treatment in the area where she was then living, she joined her husband in Switzerland, where she was taken into hospital as an emergency case. Two of the fingers of her left hand were amputated. 9. On 19 September 1988 in Switzerland Mrs Gül gave birth to her third child, Nursal, a daughter. As she still suffered from epilepsy, she could not take care of the baby, who was placed in a home in Switzerland, where she has remained ever since. In a written declaration dated 31 March 1989, a Pratteln specialist in internal medicine stated that a return to Turkey would be impossible for Mrs Gül and might even prove fatal to her, given her serious medical condition. 10. On 9 February 1989 the Minister for Refugees rejected Mr Gül’s application for political asylum, on the ground that he had not been able to establish that he personally had been a victim of persecution, as the general situation of the Kurdish population in Turkey was not in itself sufficient to justify granting political asylum. He went on to say that, according to reliable sources, no measures were being taken by the State authorities against former members of the CHP, and ordered the applicant to leave Switzerland by 30 April 1989, failing which he would be deported. On 10 March 1989 the applicant appealed against the above decision to the Federal Justice and Police Department. He asserted that the collective repression of Kurds in Turkey, of which he himself had been a victim, in itself justified granting political asylum. In addition, at the time when he had fled to Switzerland all political parties had been proscribed and their members - especially the members of left-wing parties like the CHP - were being prosecuted. He could not therefore be required to return to Turkey, and this would be in breach of Article 3 (art. 3) of the Convention. 11. In a letter of 26 June 1989, the Basle Rural Cantonal Aliens Police (Fremdenpolizei) informed the applicant’s lawyer that they supported Mr Gül’s request for a residence permit (Aufenthaltsbewilligung) on humanitarian grounds in respect of himself, his wife and his daughter Nursal. In view of the length of time Mr Gül had been living in Switzerland and his wife’s precarious state of health, the police considered that the conditions for the issue of such a permit laid down in Article 13 (f) of the Federal Council’s Order Limiting the Number of Aliens ("the OLNA" - see paragraph 21 below) had been satisfied. The final decision to grant a residence permit was given by the Federal Aliens Office on 15 February 1990. 12. As the Federal Justice and Police Department had informed Mr Gül that his application for political asylum had only very limited prospects of success on appeal, he withdrew it. The authorities took formal note of this on 8 November 1989. 13. On 14 May 1990 Mr Gül asked the Basle Rural Cantonal Aliens Police for permission to bring to Switzerland his two sons, Tuncay and Ersin, who had remained in Turkey. 14. In a decision of 19 September 1990 the Aliens Police rejected Mr Gül’s request, on the ground that the conditions for family reunion had not been satisfied (Article 39 of the OLNA - see paragraph 21 below). Firstly, the Gül family’s flat did not conform to the standards laid down and, secondly, the applicant did not have sufficient means to provide for his family. In any event, Tuncay was already eighteen and was therefore ineligible for a residence permit under the rules governing family reunion. 15. On 1 October 1990 the applicant appealed against this decision to the Basle Rural cantonal government (Regierungsrat). He argued that the residence permit issued to him and his wife under Article 13 (f) of the OLNA should have been extended to include his two sons, as his personal circumstances made it an extremely serious case. Since it was impossible to return to Turkey because of his wife’s precarious state of health and the length of time he had lived abroad, the family could be brought back together only in Switzerland. Both Article 8 (art. 8) of the European Convention on Human Rights, guaranteeing the right to respect for family life, and the United Nations Convention on the Rights of the Child gave the two boys the right to join their parents in Switzerland. If the cantonal government were nevertheless to rely on the provisions of Articles 38 et seq. of the OLNA (see paragraph 21 below) on family reunion, the younger son, Ersin, could and should be permitted to exercise that right. There was enough room for him in the family’s flat and Mr Gül’s financial resources were sufficient to provide for his family. 16. On 30 July 1991 the Basle Rural cantonal government dismissed the applicant’s appeal. It pointed out that under section 4 of the Federal Residence and Settlement of Aliens Act ("the RSAA" - see paragraph 20 below) the question whether to grant a residence permit (Aufenthaltsbewilligung) or settlement permit (Niederlassungsbewilligung) was determined by the competent cantonal authorities with unfettered discretion (nach freiem Ermessen), having regard to the relevant statutory provisions and international agreements. In that connection, the authorities had to take account of the country’s moral and economic interests, and of the degree of immigrant penetration (Überfremdung). The cantonal government then considered whether Mr Gül’s two sons could rely on a right to obtain permission to reside in Switzerland (Anwesenheitsbewilligung) on the basis of the statutory provisions, as the agreement on settlement concluded by Turkey and Switzerland on 13 December 1990 did not confer such a right. Under section 17 (2) of the RSAA (see paragraph 20 below) a minor did not have such a right unless his parent was in possession of a settlement permit. As Mr and Mrs Gül only had a residence permit, they could not rely on that provision in order to assert a right to family reunion. As for the guarantees set forth in Article 8 (art. 8) of the Convention, only Swiss nationals or persons in possession of a settlement permit could rely on these; Mr and Mrs Gül fell into neither of those categories. Articles 38 et seq. of the OLNA (see paragraph 21 below) did not confer a right but merely set out the minimum conditions to be satisfied before family reunion could be authorised. The cantonal authorities had the final say on the matter, and in reaching their decision they had unfettered discretion. It being established that the provisions concerned could only apply, if at all, to the minor son, Ersin, the cantonal government listed the minimum conditions which Article 39 para. 1 of the OLNA (see paragraph 21 below) required to be satisfied by a foreigner living in Switzerland before family reunion could be authorised, namely: (a) his residence and, where relevant, his gainful employment should appear to be sufficiently stable; (b) he should live with his family and occupy accommodation suitable for that purpose; (c) he should have sufficient means to support his family; and (d) firm arrangements should have been made for the care of any children who still needed their parents’ presence. The cantonal government did not determine points (a) and (b), but carefully considered points (c) and (d), on which it gave the following decision: "(c) The calculations made by the Aliens Police and the cantonal government’s legal service, which investigated the case, show that Mr Gül has not satisfied the condition laid down in Article 39 para. 1 (c) of the OLNA. He does not have sufficient means to support his family during their residence in Switzerland. According to the reference calculation, Mr Gül should have a monthly net income of at least 2,710 Swiss francs (CHF) if he is not to fall below the minimum standard of living. That figure is derived from the base rates used by the cantonal social security office for assessing the likelihood of reliance on social security, which are on the whole identical with the base rates adopted by the Swiss Conference on Public Assistance for the calculation of financial support. These base rates are used to establish the monthly living expenses of the foreigner concerned and the members of his family seeking to join him, which have to be covered by his income. This must be sufficient to provide not only the basic necessities of life but also a minimum standard of living. In this way the legitimate interest of the public authorities in preventing the family from becoming a burden on the social security services is also taken into account. Mr Gül’s net monthly income is CHF 2,060, which falls CHF 650 short of the amount required for the minimum standard of living as calculated by the social security services. The cost of keeping the youngest child, Nursal, in a children’s home has not been taken into account, as it is not known who pays for this. The calculation of income is based on pay-slips from 1989, the latest available. On 23 October 1990 the Liestal Cantonal Hospital sent the Basle Rural Aliens Police a medical certificate stating that Mr Gül was 100% unfit for work and would remain so for a period that it was not possible to determine. On enquiry being made, it was confirmed in a medical certificate dated 19 April 1991 that Mr Gül had suffered from 100% incapacity since April 1990 and would remain unfit for work for the foreseeable future. The Pratteln municipal social security services stated in a letter of 11 June 1991 that Mr Gül would have to have several operations and that for the time being he was waiting to be awarded an invalidity pension. For the first three months of this year alone the social security services have paid the Gül family CHF 8,731.75, and the family will remain dependent on social security payments. In June 1991 Mr Gül stated during a personal interview with the subordinate authority (Vorinstanz) that his family was at that time entirely dependent on social security payments. He therefore has no other source of income. At present the social security services are paying the Gül family the amount needed by a three-person family, but no more. The social security services cannot be expected to provide for children arriving from abroad when it is known in advance that they will have to support them. Nor can Mr Gül support his other children from his own resources. For that reason alone the application for family reunion must be refused. (d) Article 39 para. 1 (d) also requires firm arrangements to be made for the care of children. But Mrs Gül, for reasons connected with her illness, is not mentally or physically capable of keeping her daughter Nursal with her and looking after her. That is why Nursal has been brought up in the "Auf Berg" children’s home in Seltisberg, where she is to remain. It follows that if Mr and Mrs Gül’s eight-year-old son Ersin joined the family, it is not at all certain that firm arrangements could be made for his care. He too would presumably have to be brought up in a children’s home, which is not the aim of family reunion. A medical certificate dated 18 April 1991 states that Mrs Gül is suffering from a serious illness which makes it necessary for her to have constant medical supervision and treatment. She might even need to go into hospital again. That prospect makes it impossible to consider that firm arrangements have been made for the child’s care as the Order requires." The cantonal government went on to say that residence permits issued on humanitarian grounds under Article 13 (f) of the OLNA could not in addition confer on the recipients a right to family reunion. In order to ensure equal treatment for all aliens not having the right to reside in Switzerland, such reunion could take place only under Articles 38 et seq. of the OLNA. Lastly, the cantonal government considered the situation of the younger boy from the standpoint of Article 36 of the OLNA (see paragraph 21 below), announcing its decision in the following terms: "Ersin Gül is only eight. It must be determined whether his entry into Switzerland would be in accordance with Article 36 of the OLNA, which requires an `important reason’ that is lacking in this case. There is no special reason for treating Ersin Gül differently from other children wishing to rejoin their families in respect of whom the conditions laid down in Articles 38 et seq. of the OLNA have not been satisfied. Another reason for refusing to admit him to Switzerland is the fact that Ersin and Tuncay Gül would be separated. Ersin has lived with Tuncay since birth. On the other hand, he has been separated from his father and mother for eight years and three and a half years respectively. Having regard to the child’s welfare, which plays an important role in family reunion cases, the question arises, at the very least, whether it is reasonable to separate him from his brother and the environment he is used to in order to bring him to live with his mother, who is seriously ill and unable to keep him with her or look after him, and his father, who went away to Switzerland three month’s after Ersin’s birth, which means that he hardly knows him. In view of all the circumstances, and having regard to the child’s welfare, the cantonal government considers that Ersin Gül should not be authorised to join his parents in Switzerland. In any case, there is no important reason within the meaning of Article 36 of the OLNA which requires him to be admitted to Switzerland." The cantonal government concluded that Mr Gül had not satisfied the conditions laid down for family reunion and that his children could not rely on Article 13 (f) or Article 36 of the OLNA either in order to come to Switzerland to join him. 17. On 2 September 1991 the applicant lodged an administrative-law appeal with the Swiss Federal Court. He repeated his previous arguments (see paragraph 15 above) and added that, because of the "special circumstances", Article 8 (art. 8) of the Convention gave his sons the right to obtain permission to reside in Switzerland. The earlier issue of a residence permit on humanitarian grounds to himself, his wife and his daughter had been based on the finding that a return to Turkey was impossible, as it would put the health of his wife and daughter seriously at risk. Mr Gül argued that the same considerations which had prevailed in the decision to grant that residence permit should prevent any withdrawal thereof, which would be tantamount to subjecting Mrs Gül, whose state of health was still causing concern, to inhuman and degrading treatment contrary to Article 3 (art. 3) of the Convention. The residence permit issued to Mr and Mrs Gül on humanitarian grounds was therefore the equivalent of a settlement permit, and it followed that they had the right to family reunion, which could only take place in Switzerland. 18. In a judgment of 2 July 1993 the Federal Court declared the applicant’s appeal inadmissible. It pointed out that, pursuant to section 100 (b) (3) of the Federal Administration of Justice Act, an administrative-law appeal in an immigration-control case was inadmissible if it concerned the issue or refusal of permits to which federal legislation conferred no entitlement. Like the cantonal government, the Federal Court found that neither section 17 (2) of the RSAA nor Article 8 (art. 8) of the Convention conferred such a right on an alien resident outside Switzerland whose parent living in Switzerland had only a residence permit, as Mr Gül did. In particular, Article 8 (art. 8) of the Convention could be relied on only by a person who had the right of abode in Switzerland either by virtue of his Swiss nationality or by virtue of a settlement permit. The court gave this ruling in the following terms: "Article 8 (art. 8) of the European Convention on Human Rights guarantees the right to respect for family life. In certain circumstances the right to be issued with a residence permit can be deduced from this (see ATF [Judgments of the Swiss Federal Court] 118 Ib 152 at 4, 157 at c; 116 Ib 355 at 1b; 109 Ib 185 at 2), so that Article 8 (art. 8) may be breached where an alien whose family lives in Switzerland is refused leave to enter the country. According to the Federal Court’s established case-law, however, a breach can occur only where the family members living in Switzerland themselves possess a well-established right of abode (Anwesenheitsrecht). For that purpose, it is in principle necessary to have Swiss nationality or possess a settlement permit (see ATF 116 Ib 355 at 1b; 115 Ib 4 at 1d). A mere residence permit is at any rate not sufficient unless it is based on a firmly established right (see ATF 111 Ib 163/4 at 1a), as the Federal Court has held in many unpublished judgments (most recently in the judgment of 6 April 1993 in the case of K., at 1b) ... That is, moreover, consistent with the new provisions on the legal status of aliens having family members in Switzerland (sections 7 and 17 (2) of the RSAA, as amended on 23 March 1990, which came into force on 1 January 1992). Under the Act the right to family reunion presupposes a firmly established right of abode, as pointed out above (at 1b). Given that the legislature’s intention in adopting the amendment in question was precisely to take account of Article 8 (art. 8) of the European Convention on Human Rights (see Bbl [Federal Gazette] 1987 III, pp. 293 et seq., particularly pp. 321 and 322), there is no reason, when that provision (art. 8) of the Convention is invoked with regard to recognition of legal rights in the matter of residence permits, to go beyond what the Act itself expressly provides (see the Federal Court’s unpublished judgment of 6 April 1993 in the case of K., at 1b)." The Federal Court also emphasised the differences between settlement permits and residence permits, stating: "Unlike settlement permits, which are issued for an indefinite period (section 6 (1) of the Federal Residence and Settlement of Aliens Act - hereinafter the RSAA), residence permits are always subject to a time-limit (section 5 (1) of the RSAA). Whatever the reason for granting the first residence permit, an alien must therefore allow for the possibility that his permit will not be renewed. There could be many reasons for this, including, for example, police, economic or demographic considerations. Although the alien’s personal circumstances have to be taken into account in the inquiry into the proportionality of the decision not to renew, that does not mean that the alien is on that account entitled to have his residence permit renewed. The above statement of the law also applies to residence permits issued on humanitarian grounds. The only effect of a finding that a case is an extremely serious one within the meaning of Article 13 (f) of the Federal Council’s Order Limiting the Number of Aliens of 6 October 1986 (hereinafter the OLNA - SR 823.21) is to exclude the alien concerned from the quotas laid down in that Order; it does not imply the existence of a right to a residence permit. The Aliens Police prefer to remain free to decide when such a permit should be issued (see ATF 119 Ib 35 at 1a). In addition, the possibility cannot be ruled out that the particular circumstances which justified the issue of a residence permit on humanitarian grounds will subsequently cease to exist, or lose their significance to such an extent that not only will there no longer be any reason to exclude the person concerned from the quotas, but even renewal of the residence permit will no longer be justified. Moreover, it is apparent from the rule established in Article 12 para. 2 of the OLNA that the conditions required for a finding that the case is an extremely serious one may subsequently cease to exist (see the unpublished judgment of 3 July 1992 in the case of P., at 6). The question whether the case is of this type is therefore entirely separate from the question whether the person concerned has the right to obtain permission to reside in Switzerland by virtue of Article 8 (art. 8) of the European Convention on Human Rights (see ATF 115 Ib 8). Furthermore, in the instant case the possibility cannot be entirely ruled out that in the future the medical or other reasons which led the authorities to grant the residence permit will lose their significance, or that new grounds justifying a refusal to renew the permit will become apparent. The appellant can therefore not deduce from the fact that he is authorised to reside in Switzerland any right to the issue of a residence permit for his sons." The Federal Court went on to say that the question how the OLNA should be applied to the issue of permits was not one it had to examine in connection with the administrative-law appeal, as the cantonal government had already looked into the question whether the Güls’ younger son could be issued with a residence permit under Article 36 of the OLNA. 19. Ersin has lived in Turkey since his birth, at first in Gümüshane until 1993 (with his mother until 1987), and then in Istanbul. According to the Government, he is at present living, as is his grandfather, with the family of his elder brother Tuncay, and has been visited several times by his father. The applicant maintained that Ersin frequently moved from one home to another and spent two or three days staying with various Kurdish families who used to live in the village where he was born, including the family of his elder brother. Owing to his grandfather’s limited financial resources and the distance between the homes of some of these families and the school it was not possible for the boy to attend school on a regular basis. As is evidenced by an article which appeared in the Turkish newspaper Sabah on 25 July 1995, Mr and Mrs Gül visited their son in Turkey in July and August 1995. 20. The Federal Residence and Settlement of Aliens Act provides: "The authority shall have discretion to decide, having regard to the relevant statutory provisions and treaties with foreign States, whether to grant residence or settlement permits." "1. When deciding whether to grant a permit the authorities must take account of the country’s moral and economic interests, and of the degree of immigrant penetration. ..." "1. As a general rule, the authority shall first issue only a residence permit, even if it is foreseen that the alien will establish his permanent residence in Switzerland. In each case the Federal Aliens Office shall fix the date from which permission to settle may be granted. 2. Where that date has already been fixed, or where the alien is in possession of a settlement permit, his spouse shall be entitled to a residence permit for as long as the couple continue to live together. On completion of five years’ uninterrupted lawful residence the spouse shall also become entitled to a settlement permit. Unmarried children under 18 shall have the right to be included in the settlement permit for as long as they continue to live with their parents. These rights shall be extinguished if the beneficiary has engaged in conduct contrary to public policy." Before 1 January 1992 the second paragraph of this section read: "Where that date has already been fixed, or where the alien is in possession of a settlement permit, his wife and his children under 18 shall have the right to be included in the permit if they form part of his household." 21. The relevant provisions of the Order Limiting the Number of Aliens are the following: "The following categories of person shall not be included in the quotas: ... (f) aliens issued with residence permits in extremely serious personal cases or on general policy grounds. ..." Before 18 October 1989 the expression "extremely serious personal cases" read: "cases of extreme adversity". "Residence permits may be issued to other aliens without gainful employment where important reasons so require." "1. The Cantonal Aliens Police may authorise an alien to bring to Switzerland his spouse and his dependent unmarried children under 18. ..." "1. An alien may be authorised to bring his family without being required to complete any qualifying period ... (a) if his residence and, where relevant, his gainful employment appear to be sufficiently stable; (b) if he lives with his family and occupies accommodation suitable for that purpose; (c) if he has sufficient means to support his family; and (d) if firm arrangements have been made for the care of any children who still need their parents’ presence. 2. Accommodation is suitable if it meets the standards applicable to Swiss nationals in the area where the alien wishes to live." Before 20 October 1993 the words "without being required to complete any qualifying period" were not part of the text. 22. According to the established case-law of the Federal Court, a person is entitled under Article 8 (art. 8) of the Convention to join a member of his family in Switzerland if the latter is a Swiss national or is in possession of a settlement permit (Judgments of the Federal Court (ATF) vol. 116, part Ib, p. 355; vol. 115, part Ib, p. 4; vol. 111, part Ib, pp. 163 et seq.). 23. Replying to the question asked at the hearing by one member of the Court, the Government stated that by virtue of the convention on social security concluded by Switzerland and the Republic of Turkey on 1 May 1969, which came into force on 1 January 1972 with effect from 1 January 1969, invalidity insurance benefits payable in either country are also payable in the other. In the instant case, if Mr Gül returned to Turkey, he would receive CHF 915, made up of his ordinary pension (CHF 436) and half of the supplementary pension paid in respect of his wife (CHF 131), his son Ersin (CHF 174) and his daughter Nursal (CHF 174). The applicant asserted that only his invalidity pension, not the social security benefits, could be paid to him in Turkey. Moreover, his invalidity pension was currently under review; if his invalidity were to be assessed as less than 50%, his pension could no longer be transferred to Turkey. | 0 |
train | 001-89533 | ENG | DEU | CHAMBER | 2,008 | CASE OF OMMER v. GERMANY (No. 2) | 3 | Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 5. The applicant was born in 1950 and lives in Bergisch Gladbach, Germany. In the 1970s he participated as a sprinter in the Olympic Games and from 1986 to 1993, he was the president of FC Homburg, a football club playing in the German Football League. 6. From 1982 the applicant was the sole shareholder and sole managing director of the DETAG investment trust corporation which negotiated the sale of apartments to private investors. He later arranged for some of these apartments, which had been returned by the investors, to be taken up into funds managed by the IHV Real Estate Company. 7. The present application concerns criminal investigations instituted against the applicant and others related to the management of the real estate funds of the IHV Company. Additional criminal proceedings were pending against the applicant in connection with his business activities for the DETAG corporation and its arrangements made for the sale of apartments to private investors. On 4 February 2002 the judgment of the Bonn Regional Court acquitting the applicant of charges of fraud in this respect became final. The applicant also lodged an application with the Court related to these proceedings (no. 10597/03). 8. By a letter dated 19 February 1987, which reached the applicant on that day, the Cologne police headquarters summoned the applicant for questioning on charges of fraud in connection with his business activities for the DETAG corporation. Thereby the applicant obtained knowledge of the criminal investigations instituted against him in this respect. The Cologne Public Prosecutor’s Office later joined several sets of proceedings concerning accusations of fraud against the applicant (file no. 110 Js 24/88). 9. On 6 December 1990 the Cologne District Court’s order of 28 October 1990, made in the proceedings no. 110 Js 24/88, to search the applicant’s home and car was executed and a file was seized. The applicant was suspected of having at least instigated a partner of the IHV Real Estate Company to breach her fiduciary duty. The applicant had purportedly abetted that partner in respect of apartments, which had been returned to the DETAG corporation having been bought by private investors at prices far above their market value, into the real estate funds managed by the IHV Company. 10. On 11 and 17 December 1990 and on 11 and 18 April 1991, 23 and 31 October 1991 and 6 November 1991 the Cologne Public Prosecutor’s Office questioned suspects on the charges related to the IHV Company. In December 1991 and January 1992 the Public Prosecutor’s Office evaluated the documents seized in a note for the records. 11. On 10 November 1993 the Cologne Public Prosecutor’s Office instituted further separate proceedings for fraud and breach of fiduciary duty against the applicant and others concerning the management of the funds of the IHV Real Estate Company (file no. 110 Js 748/93). The accused persons in these proceedings were suspected of having committed fraud to the detriment of investors by including unmarketable apartments in the funds set up by the IHV Real Estate Company, thereby reducing the profitability of the funds. Moreover, they were suspected of breach of fiduciary duty by mismanaging the said funds, which operated at a loss. 12. In a file note dated 21 November 1994 the Cologne Public Prosecutor’s Office stated that the suspicion that fraud and breach of fiduciary duty had been committed in connection with the management of funds of the IHV Real Estate Company had already arisen in the proceedings no. 110 Js 24/88. Several searches had been conducted on 6 December 1990 and several persons had already been examined in the course of those proceedings. In so far as the investigation proceedings in file no. 110 Js 24/88 concerned charges of fraud in connection with the funds of the IHV Real Estate Company, they were separated from the said file and joined to the proceedings no. 110 Js 748/93. 13. On 13 December 1994 the Cologne Public Prosecutor’s Office questioned witness G. 14. On 10 January 1995 M., a specialist in economic offences at the Cologne Public Prosecutor’s Office, having examined the case file, concluded that several funds managed by the IHV Company would always operate at a loss and that the investors had been deceived about the value of the funds. 15. On 23 April 1996 the Cologne District Court’s order of 23 October 1995 to search the homes of the applicant and of other co-accused was executed and several documents were seized. 16. In April 1996 W., another specialist in economic offences at the Cologne Public Prosecutor’s Office, as did M., on 6 May 1996, submitted reports concerning the profitability of the funds in question, finding that in respect of several of them a suspicion of fraud prevailed. 17. In a letter to the Cologne Public Prosecutor’s Office dated 7 May 1996 the Federal Supervisory Office for Banking explained the nature of the contracts concluded between the IHV Company and the investors. 18. On 20 May 1996 the Cologne District Court ordered the seizure of further documents. 19. On 8 August 1996 W. submitted another expert report, finding that there was a persistent lack of profitability of the funds managed by the IHV Company. 20. On 18 February 1997 and on 7 November 1997 M. found that the prosecution of part of the offences had become time-barred, but that there still was a suspicion of fraud in respect of several funds managed by the IHV Company. By submissions dated 24 November 1997 and 10 December 1997 the applicant contested these findings. He submitted an expert report drawn up by the ETL auditing company in support of his view. 21. In a note dated 7 April 1998 expert M. contested the findings of the ETL auditing company. 22. On 29 April 1998 and on 8 June 1998 the Public Prosecutor’s Office asked the applicant to submit certain documents, which the latter refused to do in submissions dated 31 July 1998 before re-inspecting the case file. 23. On 15 October 1998 counsel for the applicant proposed that all investigation proceedings pending against the applicant be settled. The prosecution rejected that proposal on 10 November 1998. 24. On 8 October 1999 the Public Prosecutor’s Office again requested the applicant to submit certain documents. In December 1999 the applicant initially agreed to do so before the end of the year 1999, but subsequently failed to submit the documents in question. 25. On 21 December 1999 the Cologne District Court ordered the seizure of the balance sheets of the IHV Company. 26. On 4 July 2000 the Cologne Public Prosecutor’s Office questioned the applicant. 27. On 5 February 2001 K., another specialist in economic offences at the Public Prosecutor’s Office, disagreed with M.’s conclusions and found that part of the IHV Company’s funds actually seemed to be operating profitably. 28. On 11 May 2001 the Cologne District Court ordered another search, which was carried out on 31 October 2001. 29. On 18 December 2002 and on 10 January 2003 expert K., having regard to further balance sheets seized, found that the funds examined had in fact yielded considerable profits. 30. On 29 January 2003 the Cologne Public Prosecutor’s Office discontinued the proceedings against the applicant, partly pursuant to Article 170 § 2 of the Code of Criminal Procedure (see paragraph 36 below), and partly pursuant to Article 153 § 1 of that Code (see paragraph 32 below). It found that the prosecution of a part of the offences of which the applicant was suspected was time-barred. As to the suspicion that the applicant was guilty of a breach of fiduciary duty, the Public Prosecutor’s Office found that mismanagement of the funds concerned had not been proved, as the funds disposed of assets of a considerable value. There prevailed a suspicion of fraud in respect of part of the funds, as apartments had been bought for the funds at prices far above their market value. The proceedings should, however, be discontinued pursuant to Article 153 § 1 of the Code of Criminal Procedure in this respect. The said apartments constituted only a small part of the assets of the fund, so the damage caused had to be considered minor. Moreover, the commission of the offences dated back a long time. 31. By a letter dated 3 February 2003 the Cologne Public Prosecutor’s Office, having obtained the consent of the Cologne District Court to discontinue the proceedings pursuant to Article 153 § 1 of the Code of Criminal Procedure, notified the applicant that the investigation proceedings no. 110 Js 748/93 against him had been discontinued. 32. Article 153 § 1 of the Code of Criminal Procedure governs the discontinuance of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if there was no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence are minor. 33. Pursuant to Article 153a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may discontinue criminal proceedings concerning offences for which the regular minimum penalty is less than one year’s imprisonment at the investigation stage with the defendant’s consent, if the latter complies with certain conditions. These conditions must be suitable to remove the public interest in criminal prosecution and may not be in conflict with the severity of the defendant’s guilt. Such conditions notably entail the payment of a sum of money to a non-profit-making organisation or to the Treasury. The court which has jurisdiction to open the main proceedings must consent under certain circumstances. If the indictment has already been preferred with that court, the latter may discontinue the proceedings under the conditions set out in § 1 with the consent of both the Public Prosecutor’s Office and the defendant (Article 153a § 2). 34. Article 154 § 1 of the Code of Criminal Procedure provides that the Public Prosecutor’s Office may dispense with prosecuting an offence if the penalty in which the prosecution might result is not particularly significant compared to a penalty which has been imposed with binding effect upon the defendant for another offence or which he has to expect for another offence. It may also dispense with prosecuting an offence if a judgment in respect of that offence is not to be expected within a reasonable time and if the penalty which has been imposed on the defendant with binding effect or which he has to expect for another offence appears sufficient to have an influence on the offender and to defend the legal order. Pursuant to Article 154 § 2 of the Code of Criminal Procedure, the court may provisionally discontinue proceedings upon the request of the Public Prosecutor’s Office at any stage if charges have already been preferred. If the proceedings have been discontinued provisionally on account of a penalty which was to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment delivered in respect of the other offence has become final (Article 154 § 4 of the Code of Criminal Procedure). 35. Article 154a § 1 of the Code of Criminal Procedure authorises the Public Prosecutor’s Office to limit prosecution to certain parts of an offence or certain breaches of the law if, in particular, other separable parts of the offence or other breaches of the law committed by the same act are not particularly significant for the penalty to be expected. The court may order such limitation with the consent of the Public Prosecutor’s Office at any stage of the proceedings after the bill of indictment has been filed (Article 154 § 2). The court may reintroduce into the proceedings those parts of the offence or breaches of the law which have not been considered at any stage of the proceedings (Article 154a § 3). 36. Pursuant to Article 170 § 2 of the Code of Criminal Procedure the Public Prosecutor’s Office discontinues the criminal investigation proceedings if investigations show that there are not sufficient reasons to prefer an indictment. It notifies the accused of this if he has been questioned as accused, if an arrest warrant has been issued against him, if he has requested to be notified or if it is obvious that there is a special interest in notification. 37. Compensation for damage caused by wrongful prosecution is covered by the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). 38. Pursuant to section 2 of that Act, a defendant is notably entitled to compensation for damage incurred by certain specified measures of criminal prosecution if he is acquitted, if the proceedings against him are discontinued or if the court refuses to open the main proceedings against him. The measures of criminal prosecution for which compensation may be granted notably comprise pre-trial detention and searches and seizures of property. 39. In cases in which proceedings have been discontinued pursuant to a provision allowing for discontinuance at the discretion of the prosecution or the court, the person concerned may be granted compensation for the measures listed in section 2 if this issection 3 of that Act). Compensation may be refused if the proceedings against the defendant have been discontinued due to an impediment to the proceedings (see section 6 § 1 no. 2 of that Act). 40. Section 7 § 1 of the Act on Compensation for Measures of Criminal Prosecution stipulates that pecuniary damage incurred as a result of the criminal prosecution measure is compensated for, as well as non-pecuniary damage in the event of a deprivation of liberty by a court decision. Once the court’s finding that the Treasury is under a duty to compensate has become final (see section 9 of the said Act), a compensation claim must be submitted within six months to the Public Prosecutor’s Office which was last in charge of the investigations at first instance (section 10 § 1 of the said Act). 41. Pursuant to Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. These provisions are also applicable to a breach of duty in giving judgment on an action if the breach consists of a refusal to discharge a function or a delay in performing it contrary to professional duty. 42. Damages are afforded to the individual concerned in accordance with Articles 249 et seq. of the Civil Code. By Article 253 of the Civil Code, in the version in force until 31 July 2002 and applicable to damage caused up to that date, compensation for non-pecuniary damage can be awarded only if it is provided for by law. In this connection, Article 847 § 1 of the Civil Code, in force until that same day, provided for non-pecuniary compensation only in the event of physical injury, damage caused to someone’s health or deprivation of liberty. According to the established case-law of the Federal Court of Justice, a claim for non-pecuniary damage can, moreover, arise in case of a serious violation of a person’s personality rights (Persönlichkeitsrecht) which cannot be compensated for in another manner (see, inter alia, Federal Court of Justice, no. III ZR 9/03, judgment of 23 October 2003, Neue Juristische Wochenschrift (NJW) 2003, pp. 3693 et seq. with further references). The new Article 253 § 2 of the Civil Code, in force since 1 August 2002, which replaced Article 847 of the Civil Code, has not introduced any amendments relevant to the matters in issue in the instant case. 43. According to the settled case-law of the Federal Constitutional Court, Article 2 § 1 of the Basic Law, read in conjunction with the principle of the rule of law as enshrined in Article 20 § 3 of the Basic Law, guarantees the right to expeditious criminal proceedings (see, inter alia, that court’s judgment of 24 November 1983, no. 2 BvR 121/83, § 3; decision of 19 April 1993, no. 2 BvR 1487/90, § 16; and decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 33). Moreover, penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by Article 2 § 2 of the Basic Law, read in conjunction with the principle of proportionality enshrined in the rule of law (see, inter alia, the Federal Constitutional Court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 58; decision of 25 July 2003, no. 2 BvR 153/03, § 31, and decision of 21 January 2004, no. 2 BvR 1471/03, § 28). 44. As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings, the criminal courts and the prosecution authorities are, as a rule, called upon to draw the necessary conclusions from undue delay in the proceedings. They may discontinue the proceedings pursuant to Articles 153 and 153a of the Code of Criminal Procedure, limit criminal prosecution pursuant to Articles 154 and 154a of the Code of Criminal Procedure, terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved (Verwarnung mit Strafvorbehalt) or take the length of the proceedings into account as a mitigating factor when fixing the penalty (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, §§ 4-5; decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, §§ 35-36; decision of 25 July 2003, no. 2 BvR 153/03, §§ 34-35, and decision of 21 January 2004, no. 2 BvR 1471/03, §§ 31-32). In exceptional cases, in which the delay in the proceedings was particularly serious and had led to a particular burden for the person concerned and in which the said options provided by the criminal law and the law on criminal procedure were insufficient, the proceedings may be discontinued because of a constitutional impediment to the proceedings (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, § 8; decision of 19 April 1993, no. 2 BvR 1487/90, § 18; decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 36, and decision of 21 January 2004, no. 2 BvR 1471/03, § 45). In the latter case, the Federal Constitutional Court may discontinue the proceedings itself (see, inter alia, that court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 61, and decision of 25 July 2003, no. 2 BvR 153/03, § 49). 45. Pursuant to section 90 § 2 of the Federal Constitutional Court Act, complainants must exhaust the remedies available in the domestic courts prior to lodging a constitutional complaint. However, the Federal Constitutional Court may decide on a constitutional complaint lodged before the exhaustion of these remedies if the complaint is of general importance or if the complainant would otherwise suffer a serious and unavoidable disadvantage. | 1 |
train | 001-86010 | ENG | UKR | ADMISSIBILITY | 2,008 | PETROL v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | 1. The applicant company, MPP Petrol (Мале приватне підприємство “Петрол”), was a Ukrainian privately owned enterprise that was registered in Mukacheve. On 8 May 2003 its registration was annulled and it was struck off the State register of enterprises as it had been declared insolvent. It is represented before the Court by Mr Tsytsey and Ms Sokolova, respectively, the applicant company’s former director and sole owner (“the Director”) and the applicant company’s former deputy director (“the Deputy Director”; hereinafter together – “the Directors”). 2. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Zaytsev. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 13 January 1998 the Mukacheve State Tax Inspectorate (the “Inspectorate”) ordered that the applicant company’s accounting records for the period of 1997 be inspected for compliance with tax regulations. As a result of the inspection, held from 13 to 19 January 1998, the Inspectorate issued two decisions: nos. 26-87/2 of 19 January 1998 and 26-87/11 of 12 March 1998. On 26 January 1998 the Inspectorate found violations of the procedure for keeping incoming cash records and ordered the applicant company to pay a fiscal penalty in the amount of 505,060 Ukrainian hryvnyas (UAH). On 21 March 1998 it ordered the applicant company to pay in fiscal penalty of UAH 2,332,850 and UAH 79,150. 5. On 17 March and 27 August 1998 the Regional Tax Administration upheld the decisions taken in the context of the tax inspection. On 22 and 25 May and 28 July 1998 the State Tax Administration of Ukraine rejected similar complaints as unsubstantiated. 6. On 20 March 1998 the Zakarpatsky Regional State Control and Revision Service (Державне Контрольно-Ревізійне Управління; the “Revision Service”) ordered the applicant company to pay UAH 9,596 as a penalty for infringement of financial regulations. 7. On 21 December 1998, 21 December 1999 and 14 April 2000 the Zakarpatsky Regional Court of Arbitration (“the Arbitration Court”) declared null and void, respectively: - the orders of the Inspectorate of 26 January and 21 March 1998 (decision upheld on 18 March 1999 by the President of the Arbitration Court); - the order of the tax authorities for the payment of UAH 79,150; - the order of 20 March 1998 of the Revision Service. 8. On 20 January 1998 the Mukacheve Prosecutor’s Office (“the Prosecutor’s Office”) initiated criminal proceedings against the Directors, suspecting them of being involved in tax evasion. Subsequently, criminal proceedings were initiated on other charges against them - fraud committed by an official of the company, tax evasion, financial fraud, corruption and misappropriation of company property. 9. On 7 October 1998 the Mukacheve City Court remitted the indictment against the Director to the Mukacheve Prosecutor’s Office for additional investigation, having noted that the investigation was incomplete and did not comply with procedural regulations. The remittal was upheld by the Zakarpatsky Regional Court on 11 November 1998. It also partly revised it, in relation to the alleged absence of unlawful intention on the part of the accused to evade tax, and confirmed that the charges had not been duly corroborated. The Directors signed an undertaking not to abscond. 10. From December 1998 to May 2000 the Mukacheve Prosecutor’s Office and the Zakarpatsky Regional Prosecutor’s Office (“Regional Prosecutor’s Office”) reopened and suspended investigations for various procedural reasons. The charges against the Directors were amended on several occasions. 11. On 14 August 2000 the criminal investigation against the Directors in relation to tax evasion episodes was terminated as the fiscal sanctions imposed by the Inspectorate had been declared null and void by the Arbitration Court (see paragraph 7 above). New criminal proceedings were instituted in respect of forgery committed by an official of the company, which were joined to the original proceedings. 12. On 23 September 2000 the prosecutor in charge of the case filed a new bill of indictment against the Deputy Director on charges including abuse of power, forgery committed by an official, tax evasion and embezzlement. On 30 November 2000 the bill of indictment was lodged with the Mukacheve City Court. The Director was indicted for forgery committed by an official, theft and financial fraud. 13. On 18 June 2001 the Mukacheve City Court remitted the case to the Regional Prosecutor’s Office for additional investigation as it held, inter alia, that the investigation had failed to comply with the Code of Criminal Procedure and the court’s resolution of 7 October 1998. On 20 August 2001 the remittal was upheld on appeal. 14. On 24 October and 14 December 2001 the Regional Prosecutor’s Office filed new bills of indictment concerning the Directors and lodged them with the Mukacheve City Court. In particular, the Deputy Director was charged with forgery committed by an official and abuse of power. The Director was charged with forgery committed by an official, abuse of power and financial fraud. 15. On 5 January 2002 the case file, with the indictment against the Deputy Director on charges of financial fraud, abuse of power and forgery committed by an official, and the indictment against the Director on charges of financial fraud, abuse of power and forgery committed by an official, was referred to the Mukacheve City Court for preliminary examination. 16. On 16 July 2004 the Mukacheve City Court, in the presence of the accused, their two representatives and the prosecutor, found the Directors guilty of document forgery and financial fraud. The Court decided not to convict them as the limitation period had expired, acquitted them of the remainder of the charges and ordered “the return of the material evidence as relevant”. No appeal was lodged against this judgment and it became final. 17. On 13 and 22 January 1998 the Inspectorate and Assistant Prosecutor, respectively ordered the seizure of the banking documents, main record book, cash registers, invoices, receipts, agreements and other accounting documents of the applicant company for the period from 1 January 1997 to 1 January 1998 and the accounting records of the applicant company for 1996. These documents were added to the case file. 18. On 14 January 1998 the Inspectorate requested the JSC Zakarpatnaftoprodukt-Mukachevo (“Z.M.”) to store 993,938 kg of diesel bought by the applicant company from a private company, JSC Galychyna-Kyiv (“G.K.”). On 16 January 1998 the Inspectorate informed the applicant company of the transfer of these products to G.K. as they had not been paid for. 19. On 21 January 1998 the Assistant Prosecutor of Mukacheve (the “Assistant Prosecutor”) ordered the attachment of all of the applicant company’s and the Director’s property, in order to secure compensation for damage allegedly caused by their unlawful activities, which amounted to UAH 25,278. On 26 and 27 January 1998 the Inspectorate seized petroleum products belonging to the applicant company from three different locations: - petrol station AZS MPP Petrol, the village of Chmonin; - petrol station no. 2, Mukacheve (AZS MPP Petrol); - petrol store of the MP “Erko” (a private enterprise). 20. On 27 January 1998 the Inspectorate attached diesel, petroleum and motor oil stored with Z.M. (The applicant company alleged that the petrol stations in Chmonin and Mukacheve, where the products were stored, were in a “natural disaster zone” and had been destroyed by natural disaster, as allegedly stated in the notice issued by the Zakarpatsky Regional Chamber of Trade and Commerce of 29 December 1999. The applicant company mentioned that products stored at MP Erko had also disappeared). 21. On 13 February 1998 the Assistant Prosecutor ordered a search of the private joint household of the Directors. The search resulted in the seizure of documents relating to the activities of the applicant company. 22. On 24 February 1998 G.K. and the private company OJSC “APPEK” were declared “civil plaintiffs” in the criminal proceedings. On the same date the Assistant Prosecutor made a report on the transfer of diesel, petroleum and oil to storage by G.K. (G.K. had previously requested the Mukacheve Prosecutor’s Office to declare it a “civil plaintiff” and to order a transfer of petroleum products stored at Z.M.’s premises to it, allegedly for recovery of the applicant company’s debts for petroleum supplied in 1997.) The applicant company and G.K. signed the decisions on transfer of these products to G.K. They were transferred to this company under bills of transfer, with the application of Incoterms provisions traditionally used in commercial activities for contracts on sale of goods (see paragraph 105 below). (Later, on 17 September 1999, at G.K.’s request, the applicant company signed a verification of debt record, which confirmed the applicant company’s debts to G.K. of UAH 560,385.33.) 23. On 14 May and 31 May 1998 the JSC Ukrbudresoursy (a private company) and the Revision Service were also declared civil plaintiffs. 24. On 24 and 25 May 1998 the Assistant Prosecutor allowed the Deputy Director’s requests for access to the accounting documents seized and for an additional forensic economic examination in the case. He also ruled that the documents seized, including accounting documents for 1997, were material evidence and a part of the criminal case file. 25. On a number of occasions throughout the criminal investigation, and in particular from 9 January 1999 to November 2001, the Mukacheve Prosecutor’s Office and the Zakarpatsky Regional Prosecutor’s Office informed the applicant company that: - the documents seized could not be returned as they were part of the case file, but that the Directors were not prohibited from copying them; - the petroleum products seized had been transferred to G.K. for storage; - it was not possible to terminate the criminal proceedings; - it was not possible to lift the attachment on property and documents, including accounting records, and return them, as they were material evidence. 26. On 16 April and 8 December 1999 and 11, 14 and 25 January 2000 the applicant company lodged several complaints with the President’s Administration, the Ministry of Justice, the Prosecutor General’s Office and the Regional Prosecutor’s Office, of unlawful seizure of accountancy documents and requesting their return. In particular, it made unsuccessful requests to: - have the documents returned for completion as some formal information was missing from them, such as signatures, seals and so on; - be recognised as a “civil plaintiff” in the criminal investigation and to have the prosecutor’s office which had seized documents designated a “respondent”. 27. On 17 and 27 January 2000 the Regional Prosecutor’s Office stated that the Directors’ access to the accounting records was not limited as they had been able to familiarise themselves with the case file from 11 to 17 January 2000. 28. On 27 December 2000 and 29 October 2002 the applicant company unsuccessfully requested the Mukacheve City Court to annul the attachment of its property and the Directors’ private property. 29. On 16 July 2004 the Mukacheve City Court ordered the return of material evidence “as relevant” (see paragraph 16 above). 30. On 3 April 2000 the Arbitration Court returned the applicant company’s claim of 29 March 2000, in which it had sought damages and loss of profit from the Inspectorate as “not lodged” because of its failure to pay the court fee (amount claimed UAH 26,618,690.60). It also ruled that the company had failed to pursue a pre-arbitration settlement procedure. 31. On 15 April 2000 the applicant company lodged a request for pre-arbitration settlement with the Inspectorate, demanding damages and compensation for loss of profit in the amount mentioned in paragraph 30 above. On 5 September 2000 the Inspectorate disagreed with the request for settlement, finding it unsubstantiated, both as to form and content. 32. On 8 May 2000 the applicant company lodged its claims with the Arbitration Court again and requested it to declare unlawful the verbatim reports on the seizure of documents and attachment of property by the Inspectorate on 13 and 27 January 1998 (see paragraphs 17 and 20 above). 33. On 15 May 2000 the Arbitration Court refused to examine the applicant company’s claims as it had failed to pay the court fee for bringing the claims and thus had not complied with Article 63 of the Code of Arbitration Procedure (see paragraph 87 below). It also stated, referring to the recommendation of the Presidium of the Higher Arbitration Court of 26 January 2000, that these claims should be resolved in accordance with the Code of Criminal Procedure (see paragraph 99 below). 34. On 22 May 2000 the applicant company complained to the Mukacheve City Court that the tax authorities’ acts were unlawful and requested the court to annul the Inspectorate’s reports of 13 and 27 January 1998 (see paragraphs 17 and 20 above). On 30 May 2000 the court dismissed the applicant company’s complaint without examining it on the merits, finding that it had no jurisdiction to deal with it. The court indicated that complaints concerning criminal proceedings were to be examined by the courts of general jurisdiction, pursuant to Articles 24 and 248-1 of the Code of Criminal Procedure (see paragraph 76 below). 35. The applicant company appealed in cassation to the Zakarpatsky Regional Court. The first-instance court informed the applicant company that a hearing was scheduled on 15 June 2000 and ruled that the presence of its representative was not obligatory. 36. On 27 June 2000 the regional court, with no parties present and in a preliminary hearing, returned the appeal in cassation to the first-instance court without examining it. The court ruled that the Deputy Director had failed to provide a letter of authority and the case file was returned to the first instance court. 37. In August 2000 the applicant company lodged a complaint with the Mukacheve City Court, contending that the appeal in cassation had been properly lodged. In a letter of 11 August 2000 the Acting President of the Mukacheve City Court stated that the letter of authority had been sent to the Regional Court in order to be appended to the case file. He stated that the returned case file had had no letter of authority attached to it and requested a new letter of authority. 38. The parties have provided no information as to the outcome of these proceedings. 39. On 22 August and 11 September 2000 the Arbitration Court refused to examine three claims against G.K. lodged by the applicant company for annulment of the decision on the transfer of petroleum products from it to G.K. as they were beyond the jurisdiction of the arbitration courts (Article 12 of the Code of Arbitration Procedure). In particular, the “transfer decisions” were not “normative acts” within the meaning of this provision (see paragraph 85 below). 40. On 17 November 2000 the Kyiv Court of Arbitration refused to examine three new claims by the applicant company against G.K. by which it sought annulment of the transfer decisions mentioned above as the company had no legal capacity after having been declared insolvent: only the company’s liquidator could act on its behalf. 41. On 19 December 2000 the Kyiv Court of Arbitration, in a different composition, left the applicant company’s claims unexamined as they were unsubstantiated, meaning that the copy of the “transfer decision” did not provide evidence of a legal act, nor could it lead to a finding of the existence of a legal act. 42. On 18 September 2000 the applicant lodged a claim with the Arbitration Court against the Inspectorate seeking damages of UAH 35,095,760 for the Inspectorate’s unlawful actions. 43. On 25 September 2000 the Arbitration Court returned this claim without having examined it, under Article 63 § 3 of the Code of Arbitration Procedure (see paragraph 87 below), as the applicant company had failed to provide corroborating evidence in support of its claims for loss of income and to prove a causal link between the fiscal sanction and the damage alleged. 44. In October 2000 the applicant company lodged its claims again and on 2 October 2000 the Arbitration Court returned this claim for the same reasons as on 25 September 2000 (see paragraph 43 above). 45. On 22 and 29 December 1999 Z.M. informed the applicant company that it had been instructed by G.K. to sell the petroleum products and that the seized petroleum products had been transferred to that company. 46. On 12 May 2000 the applicant instituted proceedings in the Arbitration Court against G.K., seeking the return of the petroleum products or reimbursement of their cost. On 18 May 2000 the Arbitration Court returned these claims as not having been lodged, without having examined them on the merits, as the applicant company had failed to substantiate the sum claimed and had not paid the court fee. 47. On 24 August 2001 the Directors complained to the Mukacheve City Court against the Mukacheve Prosecutor’s Office, seeking a declaration that the actions of the Prosecutors’ Office were unlawful and requesting compensation for pecuniary damage. The outcome of these proceedings, which apparently were not pursued, is unknown. 48. On 10 November 1999 the Inspectorate lodged an application with the Arbitration Court seeking to declare the applicant company insolvent. 49. On 15 November 1999 the Arbitration Court assumed jurisdiction over the case and instituted liquidation proceedings against the company, prohibiting the sale of its assets. 50. On 3 April 2000 the Arbitration Court requested the parties to provide it with additional information on the case and ordered that the applicant company should be managed by an insolvency officer, D.M.A., (арбітражний керуючий) who should analyse the company’s finances, and attach its property and prohibit its sale. The court also prohibited enforcement of any claims of creditors against the company, except those allowed by section 12(4) of the Insolvency Act (salary- and social-related payments). 51. On 7 April 2000 D.M.A. issued an order prohibiting any actions with regard to the company or its assets. 52. On 16 June 2000 the Arbitration Court, in the presence of the Deputy Director, representatives of the applicant company’s creditors and D.M.A., ordered the Inspectorate to publish information on the initiation of the liquidation proceedings. D.M.A. was ordered to draw up a list of creditors. The next hearing was scheduled for 5 September 2000. 53. On 25 September 2000 the Arbitration Court, in the presence of the Deputy Director, approved the list of the company’s creditors, consisting of the Inspectorate, G.K. and the Uzhgorod Branch of Ukrsotsbank. It approved the list of their financial claims and ordered the creditors to meet on 12 October 2000. D.M.A. had to inform the court of the results of the meeting and to provide the court with a final register of creditors’ claims. In particular, the court noted that the claims of G.K. amounted to UAH 450,843.30 and had not been challenged by the Deputy Director in the course of the hearing. 54. On 6 November 2000 the Arbitration Court declared the applicant company insolvent and initiated its liquidation, which had to be completed within twelve months. D.M.A. was appointed as the company’s liquidator and was ordered to publish information about the applicant company’s insolvency, to form a liquidation commission and to finalise the liquidation procedure. The applicant company had to provide the liquidator with all the documents, official seals and other property belonging to it by 17 November 2000. The liquidator had to provide a liquidation balance to the court by 5 November 2000. 55. On 21 November 2000 the Directors unsuccessfully requested the Arbitration Court to review and quash its own ruling of 6 November 2000. 56. On 17 September 2001 the Directors unsuccessfully requested the Regional Prosecutor’s Office to return the accounting records, which from their point of view were necessary for finalising the liquidation, and to lift the attachment of the petroleum products so as to have them included in the register of the liquidated company’s property. (According to the applicant this request remained unanswered.) 57. On 18 September 2001 the Directors instituted proceedings against the liquidator in the Zakarpatsky Regional Commercial Court (formerly the Arbitration Court; hereafter “Commercial Court”) seeking to declare unlawful his failure to include the seized petroleum products in the register. 58. By a ruling of 28 September 2000, which apparently was adopted on 28 September 2001, the Commercial Court approved the liquidation balance and the liquidator’s report. The court ruled that the company should be liquidated, that the relevant State authorities and the company’s management should be informed of the court’s ruling and the termination of the proceedings. 59. On 17 October 2001 the Directors appealed against the ruling of 28 September 2001 to the L’viv Commercial Court of Appeal. They also requested that the ruling of 6 November 2000 be quashed and the time-limit for lodging an appeal be extended, alleging that they had received that ruling late. 60. On 29 October 2001 the L’viv Commercial Court of Appeal, composed of three judges, dismissed the applicant company’s request for the extension of the time-limit as it had been lodged outside the statutory time-limit of three months under Article 91 of the Code of Commercial Procedure. It also returned the appeal of 17 October 2001 to the applicant company, without examining it on the merits. 61. On 24 November 2001 the applicant company appealed in cassation to the Higher Commercial Court, seeking to have declared null and void the rulings of 28 September 2001 and 6 November 2000. In particular, it alleged that the liquidator had failed to include the property seized by the prosecutor’s office in the liquidation report. The company noted a technical mistake in the year of the ruling dated 28 September 2000, which in fact had been adopted on 28 September 2001. It alleged that a request for extension of the time-limit had been lodged with the Higher Commercial Court. 62. On 9 January 2002 the Higher Commercial Court informed the applicant company that the appeal in cassation had been wrongly lodged, as it should have been sent through the first instance commercial court. 63. On 6 March 2002 the Higher Commercial Court refused to examine the applicant company’s appeal in cassation as it had failed to comply with the requirements of Chapter XII of the Code of Commercial Procedure in that the company had failed to pay the court fee for lodging the appeal (see paragraphs 91 – 94 below). 64. On 14 May 2002 the Higher Commercial Court dismissed the applicant company’s appeal in cassation as it had not complied with the one-month time-limit envisaged by Article 110 of the Code of Commercial Procedure (see paragraph 95 below). The Court also informed the applicant company that no request for extension of this time-limit had been lodged. 65. On 20 June 2002 the Supreme Court remitted the applicant company’s appeal, without having examined it, to the Higher Commercial Court and eventually it was sent to the first-instance commercial court. 66. On 9 July 2002 the Higher Commercial Court again dismissed the applicant’s appeal in cassation as having been lodged out of time, finding that no request for extension had been lodged. 67. The applicant company alleged that it had lodged a request for extension of the time-limit, together with its appeal in cassation, with the Higher Commercial Court after the ruling of 9 July 2002. 68. On 27 October 2006 the Directors lodged compensation claims against the prosecution authorities with the Mukacheve City Court. They sought UAH 24,537,664 in pecuniary and non-pecuniary damage caused by the allegedly unlawful actions during the criminal investigation against them. 69. On 6 November 2006 the Mukacheve City Court left the aforementioned claims unexamined and returned them to the Directors, finding that they had not complied with the requirements of Article 119 of the Code of Civil Procedure. The claimants were asked to rectify these shortcomings before 15 November 2006. On 16 November 2006 the court returned these claims unexamined, for failure to comply with the court’s previous ruling. 70. The relevant provisions of the Constitution read as follows: “Everyone shall have a right to compensation ... for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.” By virtue of Article 442 of the Code everyone has the right to compensation for damage caused by unlawful actions by State authorities. 71. Section 2 of the Enterprises Act envisages that private enterprises are commercial companies founded by private persons. The private enterprise has no distinct shareholding and particularised ownership of property, except if specified in the articles of its association, statute or other internal corporate regulations. 72. The private enterprise, in accordance with the Section 4 of the Property Act, is an object of a free exercise of property rights envisaged for any kind of privately owned property. The ownership rights and the rights and legal obligations of a founder of a private enterprise can also be transferred to other private persons on the basis of an agreement (this is confirmed in other normative acts and recommendations, such as the letter no. 4-422-329/7239 of 10 December 2001 of the State Committee on Entrepreneurship; Resolution no. 740 of the Cabinet of Ministers of 25 May 1998). 73. In accordance with Section 7 of the Property Act the owner of a private enterprise was not responsible for its legal obligations (letter no. 2222/1068 of 22 February 2002 of the State Committee on Entrepreneurship). The liability of an owner for debts of a private enterprise could only be established on the basis of its statute or articles of association or specific normative acts. 74. Section 13 of the Enterprises Act provides that the State must guarantee protection of enterprises’ property rights. Seizure of funds and property belonging to enterprises is only allowed in situations provided for by the law. Also, a decision to pay compensation for damage caused to an enterprise by the infringement of its property rights by citizens, legal entities or State bodies must be based on a judgment of a court or court of arbitration. 75. Sections 24 and 31 of the Enterprises Act stated that the private enterprise must, as all other legal entities, comply with the credit agreements and State tax and other payment obligations. A private enterprise that fails to comply with its financial obligations could be declared bankrupt in the course of ordinary insolvency proceedings and could be liquidated, as any other legal entity. 76. The relevant extracts from the Code can be found in Merit v. Ukraine, no. 66561/01, 30 March 2004 (Relevant domestic law and practice). 77. Pursuant to Article 80 of the Code of Criminal Procedure (the conditions for storage of material evidence), material evidence must be stored until the judgment or decision terminating proceedings in the criminal case becomes final. Documents that are material evidence must be stored together with the case file and interested persons or organisations can receive copies of these documents on request. If there is a dispute as to the right of ownership of the material evidence, this evidence must be stored until the final judgment is given in civil proceedings. Material evidence which could be damaged by storage and which cannot be returned to its owner must be transferred to State or “cooperative organisations” to be sold on. These organisations must, if necessary, return property similar to the material evidence sold or pay compensation for it in accordance with prices established by the State as pertaining at the time of return of that evidence. 78. Pursuant to Article 81 of the Code decisions relating to material evidence are to be taken by means of a judgment of the court in the criminal case or a ruling or a resolution of the court, body of inquiry, investigator or prosecutor (concerning termination of the proceedings in the case). Any dispute with regard to the return of material evidence must be decided in civil proceedings. 79. Pursuant to Article 126 of the Code, the seizure (attachment) of property belonging to a suspect or accused is intended to secure a possible civil claim and a ruling as to confiscation of property in the course of criminal proceedings. Attached property must be inventoried and can be transferred for storage to the representatives of enterprises, institutions, organisations or members of the accused’s family or other members. Persons who are responsible for storage of property must be informed about criminal liability for failure to comply with storage obligations which have been undertaken by them. Seizure of property and its transfer for storage are to be carried out on the basis of a substantiated resolution (постанова) that must be signed by the person who inventoried this property, witnesses to the seizure of the property and the person responsible for storage. An inventory must be appended to the resolution. A specialist should be invited to estimate the value of seized property in case such a valuation is required. If there is no further need for seizure of property, the investigator must pass a separate resolution. 80. Under paragraph 3 of the Instruction material evidence denotes objects which have been used to commit a crime or which bear traces linked to criminal activity or were objects of a criminal act; these can include monies and other valuables obtained by unlawful means and all other objects that can assist in investigating a crime and establishing the facts of the case. 81. Under paragraph 43 of the Instruction, attached property can be transferred to an entity which has suffered damage from an alleged criminal act. If necessary property can also be seized. 82. Pursuant to pаrаgraph 49 of the Instruction, material evidence which is part of the criminal case file, after termination of the preliminary investigation and the case file’s transfer to the court or another investigating body, must always be appended to it. 83. Pursuant to paragraph 63 of the Instruction, material evidence owned by enterprises, institutions or organisations must be transferred to their authorised representatives. 84. Pursuant to paragraph 64 of the Instruction, the body of inquiry, preliminary investigation or investigative body must return any confiscated objects before adoption of the final judgment in the case, if it is decided that the return of these objects will not impede the investigation in the case. 85. Under Article 12 of the Code of Arbitration Procedure (the “CAP”) the arbitration courts have jurisdiction over: cases concerning the conclusion, amendment, suspension and execution of agreements; disputes concerning technical standards or prices of products and services and others. The arbitration courts (currently “commercial courts”) also have jurisdiction over insolvency cases. 86. Article 53 provides that arbitration courts may grant extensions or renewals of the time-limits enshrined in the CAP on an application by a party or a public prosecutor or on their own initiative. A ruling shall be given in the event of a refusal to grant an extension of a procedural time-limit which has not been complied with. This ruling may be appealed against. 87. In accordance with Article 63 paragraph 3 of the CAP, the judge must return a claim that was lodged and the documents appended to it, if it does not refer to any circumstances on which the claim was based, has no relevant corroborating evidence or does not include an estimate of the sum claimed. A judge has to issue a ruling on return of a claim within five days of receipt. Return of the claim does not prevent it from being lodged again, in accordance with general procedure, after any shortcomings have been rectified. 88. In accordance with Article 91, Chapter XII of the Code of Arbitration Procedure (“CAP”), a party could request a supervisory review of the lawfulness and reasoning of a judgment, ruling or resolution. Such a review was conducted by the presidents or vice-presidents of the regional arbitration courts and the arbitration courts of the Crimea, Kyiv and Sevastopol and the specialised judicial division for review of the rulings, resolution and judgments of the Higher Arbitration Court. 89. Under Article 92 of the CAP, the first-instance arbitration court could review its judgments, rulings or resolutions on its own initiative. In accordance with Articles 93 and 94 of the CAP the judicial decisions of the regional arbitration courts and the arbitration courts of Kyiv, Sevastopol and the Crimea could be reviewed by the presidents of these courts or their deputies. The parties could request to be present at the review. 90. Under Article 100 of the CAP, the request for review had to be lodged with the first-instance arbitration court together with the proof of payment of State tax for lodging it and documents confirming the dispatch of a copy of a request to another party. Review proceedings did not suspend enforcement of an initial judicial decision; however a separate procedural decision in this case might be taken by a review body. A request for review had to be substantiated and based on law and the relevant facts of the case (Article 101 of the CAP). It had to be lodged within two months of the adoption of a judgment, ruling or resolution (Article 102 of the CAP). A reply to a request for review was dealt with in Article 103 of the CAP and parties should be informed of the date and time of the hearing in the case. 91. Under Article 105 of the CAP the arbitration court had to decide on the admissibility of a request for supervisory review of a judgment, ruling or resolution if the request had not been signed or had been signed without relevant authority, or if a copy of the request had not been sent to another party, the State tax had not been paid or the time-limit for lodging a request for review had expired. 92. In accordance with Article 106 of the CAP, the arbitration court had the power to: uphold the judgment, ruling or resolution, leaving it unchanged; amend the judgment, ruling or resolution; quash the judgment, ruling or resolution and adopt a new one; or quash the previous decisions and refer the case back for a fresh examination. It could also leave claims unexamined and terminate the proceedings in the case. The arbitration court which reviewed the case had all the powers of the first-instance court in examining a commercial dispute on its merits. The finding of the review of the case by the Division on Review of Judgments, Rulings or Resolutions of the Higher Arbitration Court was final, except when one of the parties was outside the territory of Ukraine or a different procedure was envisaged by international treaties. 93 94. The arbitration court, acting in the course of supervisory review proceedings, had to issue a resolution, which had to be substantiated, based on law and include relevant legal reasoning (Article 108 of the CAP). The instructions given in the resolution of the supervisory court were binding in the course of the fresh examination of the case. The resolution of the court could not contain an assessment of evidence or instructions as to how the case should be decided in the future (Article 109 of the CAP). The resolution of the arbitration court had to be sent to the parties within five days (Article 110 of the CAP). 95. The relevant provisions of the amended Code of Commercial Procedure of 5 July 2001 (CCP) read as follows: “1. This law shall become effective from the date of its publication, save for Article 81-1 [of the Code], which shall become effective on 28 June 2002. ... 9. Decisions of the judicial divisions of the Higher Arbitration Court of Ukraine or of the Presidium of the Higher Arbitration Court of Ukraine that were not challenged by way of supervisory review proceedings before this Law entered into force, as well as resolutions of the Plenary Higher Arbitration Court of Ukraine, shall be final but may be appealed against to the Supreme Court of Ukraine on the basis of and pursuant to the procedure prescribed by the Code of Commercial Procedure of Ukraine.” “An appeal in cassation (petition for appeal in cassation) shall be lodged with the Higher Commercial Court through the court of first instance or the commercial court of appeal which gave the contested judgment or resolution. A first-instance or commercial court of appeal which has adopted a contested judgment or resolution shall transfer the appeal in cassation (petition for appeal in cassation) together with the case file to the Higher Commercial Court of Ukraine within five days of its receipt.” “Appeals in cassation (petitions for appeal in cassation) shall be lodged within one month from the date the judgment of the first-instance court or the resolution of the court of appeal becomes effective.” 96. In accordance with Article 111 of the CCP appeals on points of law must be accompanied, inter alia, by proof of payment of the court fee. 97. Under Article 111-3 paragraph 4 of the CCP the courts should return appeals on points of law examining them on the merits if the appellant fails to provide evidence of payment of the court fee. 98. In accordance with Article 111-3 paragraph 5 of the CCP courts and tribunals should return notices of appeal on points of law to the appellant without examining the appeal on the merits if it has been lodged out of time and the appellant has not applied for an extension of time. 99. Under paragraph 6.2 of the Instruction, requests for annulment of investigative measures by courts and prosecution bodies were outside the jurisdiction of the arbitration courts as a different procedure was envisaged for examination of these requests. 100. The relevant provisions of Chapter 40 of the Code provided for appeals in cassation against court judgments and for the lodging of cassation appeals by the prosecutor. 101. In particular, under Article 289 of the Code, parties and others participating in the proceedings had the right to lodge appeals in cassation against the judgments in whole or in part. Appeals in cassation against judgments of the first-instance courts were to be lodged with the Supreme Court of the Autonomous Republic of Crimea, regional, Kyiv and Sevastopol city courts. Appeals in cassation against judgments given by the regional courts and equivalent courts were to be lodged with the Supreme Court. 102. In accordance with Article 311 of the Code the court of cassation was entitled to: uphold the judgment; quash it in full or in part and remit the case to the first-instance court in a different composition for a fresh examination; quash the judgment in full or in part and terminate proceedings in the case, leaving the claims unexamined; or amend the judgment, adopting a new one, without referring the case back for a fresh examination if, inter alia, there had been an error in application of substantive or procedural law. 103. Section 16 of the Act provides that a trustee (insolvency officer) must call a meeting of creditors, to be held within ten days of the institution of liquidation proceedings. At the meeting, each creditor has a vote proportionate to his or her claim. 104. Under section Article 17 of the Act, the Commercial Court may approve the proposal of the meeting of creditors, and order economic rehabilitation proceedings for a period of no more than one year. The court by the same ruling should appoint a licensed trustee (insolvency officer) to manage these rehabilitation proceedings. 105. “Ex works” means that the seller places the goods at the disposal of the buyer at the seller’s premises or another named place not cleared for export and not loaded on any collecting vehicle. The term represents the minimal obligation for the seller, and the buyer has to bear all costs and risks involved in taking the goods from the seller’s premises. However, if the parties wish the seller to be responsible for the loading of the goods on departure and to bear the risks and costs of such loading, this should be made clear by adding explicit wording to this effect in the contract of sale. | 0 |
train | 001-89934 | ENG | MDA | ADMISSIBILITY | 2,008 | HAROVSCHI v. MOLDOVA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Victor Harovschi, is a Moldovan national who was born in 1969 and lives in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked for a non-governmental organisation in 2002 and 2003. In May 2003 he was dismissed from his job because he had failed to perform his duties properly and had not observed work discipline. He was allegedly not paid compensation for his unused annual leave, nor his salary for September 2002. The applicant initiated court proceedings asking for his reinstatement, the issuing of his workbook (carnet de muncă) and payment of his salary for the entire period during which he had not obtained his workbook, a recognition of the fact that his contract with the employer had been concluded for an indefinite period and that his one-year contract had been unlawfully concluded, the payment of his salary for the entire period of his involuntary absence from work and the payment of compensation for unused annual leave. On 30 October 2003 the Râşcani District Court rejected the applicant’s claims, finding that he had been correctly dismissed due to his failure to perform his duties properly, as confirmed by the relevant materials and witness statements. Witnesses testified in court about his use of the internet for personal amusement during working hours and his personal conflicts with the administration as a result of matters such as his improper use of the internet, his manner of dressing and his attitude towards colleagues. His dismissal was moreover based expressly on a provision in his contract to that effect. The court also found it established that the applicant had not submitted his workbook to the employer when he started work and therefore could not request it back upon his dismissal. Finally, the court found that the entire sum due to him on dismissal had been paid. The applicant appealed. He argued, inter alia, that the lower court had violated procedural rules when it refused to request documents which were in the possession of the other party, the relevance of which he had explained in his request. In addition, his contract should have been considered as concluded for an indefinite time. The court also refused to award him his salary for September 2002 even though he had not received it. His claim for compensation for unused annual leave had also been unlawfully rejected. He challenged both the power of the executive director of his employer to dismiss him and the basis for his dismissal, as the legal requirement to give at least two disciplinary warnings before dismissal had not been complied with and his conduct could not have contravened internal regulations since there were none. He finally contested the finding of the court regarding his failure to submit his workbook to the employer, relying on the fact that one of his former colleagues testified in court that she had not been asked to submit a workbook either and, accordingly, had not submitted one, and that employers were obliged by law to keep workbooks for staff. He again asked the court to request a list of documents from his former employer and explained what matters could be proved by examining those documents. On 24 December 2003 the Chişinău Court of Appeal rejected his appeal. The court found that the applicant had been lawfully dismissed since he had systematically failed to perform his duties. In addition, his contract had expired on 1 November 2003. In his appeal in cassation the applicant essentially repeated the arguments he had made on appeal, annexing a letter from the Labour Inspection which had found, on 19 December 2003, that his former employer had failed to observe labour laws by not keeping workbooks for all its employees, including that of the applicant, by failing to adopt orders for hiring personnel or to adopt internal rules of conduct and a plan for annual leave. The Labour Inspection found that the applicant had not been paid compensation for unused annual leave, in the amount of 930.88 Moldovan lei (MDL). He also relied on previous judgments of the Supreme Court of Justice in which, in his opinion, the court had decided in favour of persons in similar situations. On 12 May 2004 the Supreme Court of Justice rejected his appeal in cassation, finding that he had been dismissed in accordance with the law and as a result of his systematic failure to observe the work regulations, having been sanctioned on three separate occasions before his dismissal. The applicant did not provide evidence of the alleged unlawfulness of those sanctions. Moreover, it was clear from the case file that he had been paid in full and that he had not submitted his workbook to the employer. On 6 October 2006 the present application was communicated to the respondent Government. On 1 November 2006 the applicant lodged with the Supreme Court of Justice a request for the re-opening of the proceedings. On 5 January 2007 the Supreme Court of Justice accepted that request and ordered a full re-hearing of the case. On 28 February 2008 the Chişinău Court of Appeal quashed the first-instance court judgment of 30 October 2003 and adopted a new one, rejecting the applicant’s claims after having found that he had started working for his employer on 1 October 2002, when he concluded a contract for one year, and that he had been dismissed for repeatedly violating work discipline and bringing the work of the entire office to a standstill for a day due to his abusive use of the internet. However, the court partly accepted his claim for compensation for unused leave and awarded him MDL 752.22 in this connection. The court also ordered the employer to issue the applicant with a new-type workbook. It rejected the applicant’s claim for payment of his salary for the period during which the employer had not issued him the workbook, finding that no evidence had been submitted of his inability to find other employment in the absence of the new-type workbook, given in particular that he was still in the possession of his old workbook, which could be used in seeking new employment. On 6 June 2008 a panel of the Supreme Court of Justice found the appeal in cassation lodged by the parties inadmissible. The parties were not summoned to the hearing. Article 440 of the Code of Civil Procedure reads as follows: “Article 440. Procedure for examining the admissibility of an appeal in cassation ... (2) Admissibility of an appeal in cassation shall be decided without summoning the parties” | 0 |
train | 001-118335 | ENG | GBR | CHAMBER | 2,013 | CASE OF ABDI v. THE UNITED KINGDOM | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant was born in 1975 and is currently detained in HMP Brixton. 7. The applicant arrived in the United Kingdom on 7 May 1995 and claimed asylum. The asylum claim was refused but he was granted exceptional leave to remain until February 2000. 8. On 23 July 1998 the applicant was convicted of offences of rape and indecency with a child and sentenced to eight years’ imprisonment. 9. On 20 May 2002 the Secretary of State for the Home Department issued the applicant with a decision to make a deportation order and on 27 May 2002 he issued an authority for detention until the making of a deportation order. 10. On 2 July 2002 the applicant appealed against the decision to make a deportation order and made a fresh claim for asylum. The appeal was unsuccessful and his appeal rights were exhausted on 4 December 2003. 11. In early 2003 the applicant was interviewed by probation officers who found that he was not suitable for parole. During his time in prison he had received fourteen charges relating to offences against prison discipline. Six of these offences involved fighting. Moreover, he was assessed as presenting a high risk of sexual offending and a medium risk of general offending on release. 12. On 3 September 2003 the applicant’s release became automatic. However, he remained in detention pursuant to the authority issued on 27 May 2002. 13. On 5 April 2004 the Secretary of State for the Home Department issued a deportation order which included a paragraph authorising the applicant’s detention until his deportation. The order was served on the applicant on 19 April 2004. 14. The applicant had claimed to be a member of the Isaaq tribe, which comes from Somaliland, an autonomous region in north-west Somalia. He further claimed that his parents were born in Hargeisa, the capital of Somaliland, although it was accepted that he was born in Mogadishu, in south-central Somalia. Consequently, the authorities initially sought to return the applicant to Somaliland. However, in order to secure the agreement of the Somaliland authorities to the return of a Somalilander to their territory, detailed information about clan-history was required. This was normally done through the provision of bio-data, but this was often difficult to obtain as it required the co-operation of the Somalilander. Consequently, few Somalilanders were returned to Somaliland at this time. As the applicant did not co-operate with the provision of bio-data, the Government decided that it would be preferable to remove him to Somalia. 15. In August 2004 the last carrier willing to take “enforced returns” to Somalia withdrew, with the consequence that it was no longer possible for the Government to remove people without their consent. The carriers were, however, willing to carry those who had signed a disclaimer confirming that they were returning voluntarily. In November 2004 the applicant refused a formal request to sign such a disclaimer. 16. On 20 December 2004 an application for bail was refused by the Chief Immigration Officer. 17. In March 2005 the applicant made further representations for asylum. In September 2005 the Secretary of State for the Home Department refused to treat those representations as a fresh claim. 18. On 11 October 2005 the applicant was again refused bail. In the course of the hearing, however, the immigration judge was wrongly informed that enforced removals to Somalia would be possible in the foreseeable future. 19. In July 2006 the Government concluded an agreement with African Express Airlines which made enforced removals to Somalia possible. The first enforced removal to Somalia took place on 30 November 2006. 20. On 25 September 2006 the applicant was granted permission to apply for judicial review of the decision to detain him but an application for interim relief in the form of an order that he be released from detention was refused. 21. The applicant was issued with removal directions set for 29 November 2006. He sought leave to apply for judicial review of the removal directions and the directions were cancelled pending a decision on that application. 22. The application for judicial review of the decision to detain the applicant was considered by Mr Justice Calvert-Smith in a judgment handed down on 7 December 2006. The judge reiterated the principles established by domestic case-law, most notably in the case of R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704: first, that the Secretary of State for the Home Department could only detain a person that he intended to deport for what amounted to a reasonable period in all the circumstances; and secondly, that if, before the expiry of a reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention. 23. The judge first considered the lawfulness of the applicant’s detention up until August 2004. He was satisfied that from 3 September 2003 to August 2004 the Secretary of State had exercised comparative diligence to overcome the obstacles and remove the applicant. In particular, he noted that the applicant could not have been removed between September 2003 and December 2003 because his asylum and deportation appeals were still pending, and between December 2003 and April 2004 he could not be removed because no deportation order had been served. When considered alongside the objections to bail (the risk of re-offending and the risk of absconding), he held that on balance the continued detention of the applicant up to August 2004 was lawful. 24. The period of detention from 3 December 2004, which was the date of the applicant’s first review following his refusal to return voluntarily, to 30 June 2006 was found to be unlawful because of its length, the impossibility during that period of achieving removal, and the misleading statements which had misled decision-makers both inside and outside the Home Department. 25. The judge held that the applicant’s detention after 30 June 2006 was lawful as once again there was a prospect of immediate removal. 26. Both the applicant and the Secretary of State were granted leave to appeal to the Court of Appeal. The Secretary of State contended that the application for judicial review ought to have been dismissed, while the applicant submitted that his continued detention after 30 June 2006 should have been held to be unlawful. 27. In a judgment handed down on 30 July 2007, the Court of Appeal allowed the appeal by the Secretary of State and dismissed the applicant’s appeal. The court held that the period of detention between 3 December 2004 and 30 June 2006 was lawful because the applicant could have returned to Somalia voluntarily. Moreover, the risk of the applicant reoffending was high, which was a worrying prospect in view of the nature of his previous offence. The court held that it was wrong in principle to offset those factors against the applicant’s concerns about returning to Somalia as his removal had already been held not to be in breach of the Refugee Convention or Article 3 of the European Convention on Human Rights. 28. On 13 December 2007 the applicant was refused permission to appeal to the House of Lords. 29. On 1 February 2007 the Secretary of State issued a decision refusing to revoke the deportation order. An Immigration Judge allowed the applicant’s appeal. On 10 May 2007 the Asylum and Immigration Tribunal ordered reconsideration of the Immigration Judge’s decision. The reconsideration hearing took place on 26 February 2008. The Tribunal held that the Immigration Judge had materially erred in law and ordered that the case be reheard. The rehearing took place on 18 December 2008 and, in a determination promulgated on 1 July 2009, the Tribunal dismissed the appeal. The applicant was granted permission to appeal to the Court of Appeal on 18 December 2009. In a judgment dated 23 April 2010 the Court of Appeal allowed the appeal, finding that the applicant would be at risk of ill-treatment which reached the threshold required by Article 3 of the Convention if he were to be removed to Mogadishu. However, on 24 November 2010 the Supreme Court allowed the appeal by the Secretary of State for the Home Department. 30. On 6 December 2010 the applicant was issued with removal directions to Somalia. The removal was to take place on 8 December 2010. On 7 December 2010 the Court granted the applicant interim measures under Rule 39 of the Rules of Court to prevent his removal. 31. The applicant remains in immigration detention pending removal. On 13 April 2007 the Asylum and Immigration Tribunal had ordered that he be released from detention on bail. He was released early the following week but was re-detained on 3 April 2008 after breaching his bail conditions. 32. The present application is only concerned with the first period of detention, which ended shortly after 13 April 2007. 33. During the applicant’s detention from 3 September 2003 to 13 April 2007, reviews were carried out in November 2003, March 2004, June 2004, September 2004, October 2004, November 2004, January 2005, March 2005, May 2005, July 2005, September 2005, October 2005, December 2005, January 2006, February 2006, June 2006, September 2006, October 2006, December 2006, January 2007, February 2007 and March 2007. 34. In April 2006 the Home Office introduced a “secret” policy creating a presumption in favour of the detention of Foreign National Prisoners pending their deportation. The policy, which was not disclosed until mid-2008 and was not formally published until September 2008, constituted a “near blanket ban” on release. During this period, the Secretary of State’s published policy on the detention of Foreign National Prisoners stated that there was a presumption in favour of release. The lawfulness of this policy was considered by the Supreme Court in the cases of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12 (see paragraph 37, below). 35. The power to detain a person against whom a decision has been taken to make a deportation order is contained in Paragraph 2 (2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), which provides: “Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.” 36. The power to detain an individual in respect of whom a deportation order is in force is contained in Paragraph 2 (3) of Schedule 3 to the 1971 Act. It provides: “Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).” 37. There are, however, limitations on the power to detain. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704: “i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii. The deportee may only be detained for a period that is reasonable in all the circumstances; iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.” 38. In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12, the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the Foreign National Prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact-sensitive. In this regard, he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one. 39. Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. Where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long. 40. In the same case of Lumba and Mighty the Supreme Court was called upon to consider the lawfulness of detention which was effected pursuant to the unpublished policy which was inconsistent with the Secretary of State’s published policy (see paragraph 34 above). The applicants in that case were Foreign National Prisoners detained pursuant to the “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the published policy indicated that there was a presumption in favour of release. The question of whether the applicants were lawfully detained divided the court, which concluded, by a narrow margin, that the unpublished policy applied to the applicants was unlawful. As a consequence, they were unlawfully detained and their civil claims in false imprisonment had to succeed. However, as the court found that the power to detain would have been exercised even if the lawful, published policy had been applied, it concluded – once again by a narrow majority – that the applicants should receive only nominal damages. 41. Lord Phillips, Lord Brown and Lord Roger dissented, preferring to find that the applicants’ detention was not unlawful because they would have been detained even if the published policy had been applied. 42. Chapter 38 of the document formerly referred to as the Home Office Operations Enforcement Manual provided that detention had to be reviewed each month and written reasons for maintaining detention had to be provided each month. In the case of Shepherd Masimba Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23, the applicant had been detained pending the making of a deportation order for twenty-seven months. There was no question of a breach of the Hardial Singh principles (see paragraph 37 above) but nevertheless the applicant alleged that his detention had been unlawful as it had not been subject to regular reviews as required by the Secretary of State’s published policy. The Supreme Court concluded by a majority that it was the Secretary of State’s duty to give effect to his published policy if that policy was sufficiently closely related to the authority to detain. In the present case, the court found that this test was met and that the applicant’s detention was unlawful. However, in view of the fact that the applicant would have remained in detention even if the reviews had taken place, the court considered it likely that he would only be entitled to nominal damages. | 1 |
train | 001-98968 | ENG | ROU | CHAMBER | 2,010 | CASE OF BULFINSKY v. ROMANIA | 3 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 4. The applicant was born in 1979 and lives in Bucharest. 5. At the beginning of April 2002 the police division responsible for fighting organised crime and drug trafficking (“the police”) received information that the applicant and his friends P.T. and D.C. were trafficking in drugs. The three friends were ecstasy users. At the time of the events, the applicant and D.C. were students. 6. On 18 April 2002 the police sought authorisation from the prosecutor's office to use undercover agents and a collaborator to follow the lead regarding the suspects' alleged criminal activities. On the same day the organised crime and drug-trafficking section of the prosecutor's office at the Supreme Court of Justice (“the prosecutor's office”) authorised two agents, referred to in the proceedings as “Toni” and “Sven” (the latter being introduced to the applicant and his friends as “Alex”), and a collaborator, “Gotti”, to participate in the operation. 7. On 29 April 2002 Sven met the applicant, D.C. and P.T. in a restaurant (“restaurant E”) and agreed to meet with them again later the same day. 8. At 9.15 p.m. the applicant and P.T. were sitting with Alex on the terrace of restaurant M and D.C. was sitting at the adjacent table with some friends, when plain clothes police officers rose from the neighbouring tables and arrested the three suspects. A yellow plastic bag was taken from under the applicant's table and its contents checked; the police noted that it contained bread, under which were several packets fastened with brown tape which together contained 2,016 white tablets which later proved to be ecstasy. 9. The three suspects were arrested on suspicion of drug trafficking. The police took photographs and videotaped the events. Images from the operation were shown on the evening news. 10. On her arrest D.C. confessed to the prosecutor that she and P.T. had taken part in drug trafficking. However, she withdrew her confessions before the firstinstance court, claiming that she had been coerced into making them by the police with the promise that if she wrote down what she was told to write, she would be released after ten minutes. 11. The applicant and his friends claimed that they had been contacted by Gotti, whose real name was Bogdan, and who was a friend of D.C. They gave the authorities his full name and address for further investigation. Gotti had told them that Alex had various objects (clothes and watches) for sale at reasonable prices. They finally agreed to meet Alex and at 4.30 p.m. on 29 April they, together with Bogdan, went to restaurant E. They sat down with Alex, who did not have the merchandise with him. Later that day the three friends were at bar N. when Bogdan told them that Alex was at restaurant M and could meet them again. The applicant and Bogdan left in Bogdan's car. After a while, they called D.C. and P.T., who had stayed behind, and told them that Bogdan had forgotten a yellow plastic bag under their table at the bar and asked them if they could bring it to restaurant M as it contained food for Bogdan's wife, who was ill. 12. At 9.15 p.m. the applicant and Bogdan arrived at restaurant M and sat at Alex's table. Ten minutes later P.T., who was carrying Bogdan's plastic bag, and D.C., joined them. P.T. sat at Alex's table while D.C. sat at the next table with some acquaintances. 13. When Alex went to the toilet, plainclothes police officers intervened, expecting to find exactly 2,000 tablets of ecstasy in the bag under the table. 14. In their statements, the applicant and his friends insisted that the drugs had in fact been given to the undercover agents by the police for the purpose of the covert operation. In support of their statements they pointed out that despite their constant surveillance over the previous few days the police could not explain where the friends had obtained the drugs. 15. The applicant and his friends were arrested and taken into custody on the evening of 29 April 2002, on suspicion of trafficking in drugs. Their detention was maintained by the courts throughout the proceedings. 16. The prosecutor's office heard evidence from the applicant, D.C. and P.T., and from two eyewitnesses who had been present on the terrace at restaurant M, and examined the written records of statements by Toni and Sven. At the prosecutor's request, both the applicant's and D.C.'s flats were searched by the police. No drugs or other illegal substances were found. The prosecutor concluded that on 29 April 2002 Gotti had informed Toni that the three persons were preparing a transaction involving MDMA tablets (methylenedioxymethamphetamine). Toni had then contacted Sven, who had met with the suspects to secure the transaction. According to Sven's statements, the suspects had offered to sell him 4,000 tablets of MDMA for 4 US dollars each. 17. On 21 June 2002 the prosecutor's office committed the applicant, P.T. and D.C. for trial on charges of drug-trafficking, in violation of Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143”). 18. It also decided to sever the criminal investigations from those concerning another participant in the trafficking, Bogdan, who had not yet been identified by the police. On 13 February 2003, the prosecutor's office at the Supreme Court of Justice identified Bogdan as being the same person as Gotti and closed the investigation against him. 19. Several hearings were held before the Bucharest County Court. 20. The three accused denied their involvement in drug trafficking and claimed that they had been entrapped by the police. They repeatedly stated that Bogdan had also been present at restaurant M. 21. The defence lawyers insisted on the importance for the court of hearing evidence from Bogdan in the presence of the defendants. They also requested the police to produce the bag and the packets in which the tablets had been found and to collect fingerprints from them. They considered that the court should see the video tapes of the events. Lastly, they asked for a confrontation between the applicants, which would allow them to prove that the police had put pressure on them and made them promises in order to obtain the initial declarations. The court did not hear that evidence. 22. The County Court gave judgment on 15 April 2003. It found the three accused guilty of drug trafficking and sentenced them each to four years' imprisonment. It deducted from the sentence the time spent in pretrial detention. The court also confiscated the 1,965 tablets of MDMA that were left after laboratory tests had been carried out. 23. The County Court dismissed the defence arguments on the ground that under Law no. 143 statements made by undercover agents and their collaborators can constitute evidence. The court was satisfied that those statements had not been obtained illegally and considered that the defence argument to the contrary could not taint the evidence. It also considered that the intention of the accused to sell drugs was evidenced by their entering into negotiations with Toni and Gotti, which in turn led to their authorising Sven to make the transaction with the defendants and obtain the drugs from them. In reaching its conclusion, the County Court relied on the statements made by the suspects and the undercover agents Toni and Sven to the police, as well as the declarations made by the applicant before the court. It gave precedence to the statement given by D.C. during the investigations as it considered that her withdrawal of her initial statement to the police was unjustified, as she had not proved that she had been coerced into making it. 24. All the parties appealed against the judgment of 15 April 2003. The defence counsel reiterated that the evidence gathered against the defendants was illegal, that the drugs had belonged to the police and that Bogdan should be heard by the court. 25. In a decision of 29 October 2003 the Bucharest Court of Appeal upheld the County Court's findings on the facts of the case and its examination of the participants' guilt. It considered, however, that the County Court had erred in determining the sentence, in that it had not taken into account the seriousness of the crimes committed and the fact that, as students, the participants had a higher level of education which should have allowed them to comprehend the gravity of their deeds. It therefore increased the sentence to twelve years' imprisonment for each defendant. 26. In a final decision of 20 April 2004 the High Court of Cassation and Justice dismissed the defendants' appeals in cassation and upheld the Court of Appeal's decision. 27. The relevant provisions of the Code of Criminal Procedure and of Law no. 143 are set out in Constantin and Stoian v. Romania, nos. 23782/06 and 46629/06, §§ 33-34, 29 September 2009. 28. The Council of Europe's texts on the use of special investigative techniques are detailed in Ramanauskas v. Lithuania [GC], no. 74420/01, §§ 35-37, ECHR 2008.... | 1 |
train | 001-98833 | ENG | ALB | CHAMBER | 2,010 | CASE OF BERHANI v. ALBANIA | 3 | Remainder inadmissible;Violation of Art. 6-1;No-violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1972 and is serving a prison sentence in Tirana Prison in Albania. 7. On the early morning of 5 July 1996 a murder took place in a bar in Kuçovë, committed by two persons wearing motorcycle helmets (kokore). 8. In the evening of the same day, the applicant was arrested on suspicion of premeditated murder while walking on a secondary road. The applicant fitted the description given to the police, namely that one of the perpetrators had long hair. The applicant was placed in pre-trial detention. The other perpetrator of the murder remained unidentified and could not be traced. Witnesses J., K. and L. made statements to the investigation team on that day in the absence of the applicant's counsel. Whereas the content of such statements was not submitted by the parties, it would appear that they implicated the applicant in the commission of the murder. 9. The police searched the route the applicant had travelled and they found a red motorcycle with a flat front tyre a few kilometres away. 10. On 6 July 1996 the prosecutor requested the validation of the applicant's arrest. On 7 July 1996 the Kuçovë District Court ordered the applicant's release for lack of reasonable suspicion and evidence. The applicant was represented by his lawyer A. 11. On 9 July 1996 the prosecutor appealed. 12. On 19 July 1996 the Tirana Court of Appeal quashed the Kuçovë District Court's decision and remanded the applicant in custody. The applicant could not be arrested as he had fled the country after his release on 17 July 1996, fearing a vendetta by the victim's relatives. It would appear that a few years prior to the murder, the victim had murdered the applicant's brother. 13. A report on the examination and collection of material evidence of 5 July 1996 (proces-verbal për kqyrjen dhe sekuestrimin e provave materiale) contained information about the finding of seven bullet cartridges at the crime scene which were taken for ballistics examination. It was reported that the perpetrators had been on a red motorcycle and one of them had long hair. 14. A body search report (process-verbal i kontrollit personal) of the applicant, at the time of the arrest, stated that he was found to have “...one belt with a metal stud (me një tokëz metalike).” No other items were recorded in the body search report. 15. Another report on the examination and collection of material evidence contained information about a red Suzuki motorcycle found on the side of the road between Kuçovë and Fier. 16. There is no documented information regarding any developments from 19 July 1996 to 6 January 1997. It appears that on an unspecified date the proceedings were transferred to the Berat District Court (“the District Court”). 17. On 6 January 1997 the applicant was declared a fugitive, following unsuccessful efforts by the police to find him. The court assigned lawyer B. to represent him. 18. All hearings scheduled between 11 January 1997 and 28 October 1998 were adjourned. Two hearings scheduled between 15 February and 2 March 1999 were also adjourned owing to the absence of the prosecutor. No witnesses, including police officers, even though they had been summoned by the court, appeared. No other procedural measures were taken. 19. On 18 March 1999 the District Court decided to continue the proceedings in absentia. It was decided that B. would continue to defend the applicant. On the same day B. requested the court to declare the detention report (proces-verbal i kapjes në flagrancë), the personal search report (proces-verbal i kontrollit personal) and the reports on the examination and collection of material evidence null and void. He maintained that the detention report was forged, had been signed at a later stage by police officers and did not bear the signature of the applicant. Moreover, he suggested that the personal search report and the reports on the examination and collection of material evidence had not been prepared by judicial police officers in accordance with the Code of Criminal Procedure. No witnesses appeared on that day and no other evidence was considered by the court. 20. At the hearing of 26 April 1999, witness E., a police officer, testified. He stated that the applicant had been arrested at random together with a number of other young people as one of the suspects. While the other youngsters had been released on the strength of recognition assurances provided by the nearby villagers, the applicant had been taken to the police station as no one could vouch for his identity. E. stated that the applicant was carrying a shopping bag. The applicant was not searched by the police at the time of his arrest. He was not aware of any motorcycle such as had been entered into the record in which his name and signature appeared. The applicant's lawyer questioned the witness. 21. At the hearing of 23 June 1999 three witnesses appeared before the court. Witness G. testified that he was working at a petrol station when two people he did not know, who were on a motorcycle and wearing helmets, had enquired from a distance about petrol. He stated that he did not remember the colour of the motorcycle or the helmets. Nor had he noticed any particular details about the persons. He could not observe from a distance whether or not the front tyre of the motorcycle was flat. Witness H. testified that he was three hundred metres away from the crime scene when he saw two people with helmets, one of whom had committed the murder of 5 July 1996. There is no mention that he indicated the applicant as one of the perpetrators. Witness I. testified that while she had been having her morning coffee on the terrace of the café-bar where the crime occurred, she had heard the waitress scream and had run away. She had neither seen anyone behaving conspicuously nor heard the roar of a motorcycle. 22. At the hearing of 30 September 1999 witness F. gave his testimony. As a police officer, he testified that the applicant had been selected at random, following information the police had received on the radio. It was confirmed, on the basis of a statement by the head of a nearby village, that the applicant had been riding a red motorcycle. The red motorcycle was found six or seven kilometres from the place where the applicant had been arrested. The witness testified that he had not participated personally in the search for the applicant. 23. Between 15 October and 14 December six hearings were adjourned. None of the witnesses, including former police officers, appeared, while the applicant's representative was absent from three of them. 24. At the hearing of 23 December, noting the repeated absence of lawyer B., the court assigned lawyer C. to the applicant. The prosecutor stated that the identity of the head of the village, as mentioned in the testimony of witness F. on 30 September, had been discovered, but he was abroad and could not give his testimony before the court. 25. At the hearing of 12 January 2000 the court rejected the applicant's lawyer's request of 18 March 1999, which referred to the invalidity of several reports. It allowed the prosecutor to proceed with the reading out of the statements of J., K. and L., who had never been questioned by the applicant or his representative as regards their statement. The prosecutor and the applicant's representative made their final submissions. 26. On 12 January 2000 the Berat District Court found the applicant guilty of premeditated murder, acting in collusion with others and illegal possession of firearms. The judgment, which was given in absentia, relied on the above reports and testimonies of witnesses E., F., G., H., I. and statements of J., K. and L. The court sentenced the applicant to eighteen years' imprisonment. 27. On an unspecified date the applicant's father was informed of the Berat District Court's judgment. On 25 September 2000 he appointed a lawyer to lodge an appeal against that judgment. On an unspecified date the lawyer lodged an appeal with the Vlora Court of Appeal. According to the Code of Criminal Procedure, the time-limit for lodging an appeal against a district court's decision is ten days. 28. On 24 November 2000 the Vlora Court of Appeal dismissed the appeal, finding that it did not comply with the prescribed time-limits. It also noted that the date of notification of the Berat District Court's judgment to the applicant's father could not be determined. 29. Meanwhile, on 29 November 2001 the applicant was extradited from Italy, where he had been arrested on the strength of an extradition order from the Albanian authorities. 30. On 30 November 2001, after being granted leave to appeal out of time, the applicant lodged an appeal against the Berat District Court's judgment. He was represented by D., a lawyer of his own choosing. The applicant complained that the District Court's judgment was not adequately reasoned. He pointed out that none of the witnesses had accused him of having committed the crime of 5 July 1996. He questioned how he could have been identified if he had been wearing a motorcycle helmet. He also objected to the reading out of the statements of witnesses J., K. and L. who had never been questioned or examined before the District Court. 31. On 19 March 2002 the Vlorë Court of Appeal (“the Court of Appeal”) upheld the Berat District Court's judgment. It dismissed the applicant's request by relying on the witnesses' testimonies and the reading out of statements, which it found to be valid. Of the three judges who decided the case, two (Gj.G. and A.M.) had been members of the panel which had dismissed the applicant's appeal on 24 November 2000. 32. On 16 April 2002 the applicant lodged an appeal with the Supreme Court. He complained that the personal search report, the reports on the examination and collection of material evidence taken at the investigation stage, and the reading out of statements of witnesses who had not been questioned during the criminal investigation, were invalid. He also argued that it was impossible for the witnesses to have identified him as the perpetrator of the crime, since the offender had allegedly been wearing a helmet. As regards the charge of the illegal possession of firearms, he claimed that there was no evidence to prove that he had used any weapons. 33. On 25 October 2002 the Supreme Court declared his appeal inadmissible, using standard wording (“the grounds of the appeal fall outside the scope of Article 472 of the Code of Criminal Procedure”). 34. On 8 May 2004 the applicant lodged a constitutional complaint. In addition to complaining of the unfairness of trial and appeal proceedings, he also complained that the Court of Appeal's bench of 19 March 2002 was not impartial. 35. On 21 June 2004 the Constitutional Court, sitting as a bench of three judges, declared the applicant's complaints inadmissible. It held that the applicant's complaints did not raise any fair trial issues, but mainly concerned the assessment of evidence, which was the function of the lower courts. Article 42 § 2 “In the protection of his or her constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 131 “The Constitutional Court shall decide: ... (f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 142 § 1 “Judicial decisions must be reasoned.” 37. On 21 July 2009 the Constitutional Court examined an appellant's constitutional appeal for breach of his right to a fair hearing within a reasonable time as a result of the delayed enforcement of a final ruling in his favour. In a reasoned decision, the Constitutional Court, sitting as a full bench, dismissed the appellant's constitutional appeal finding that there had been no breach of the right in question. 38. There is no reported case-law in which the Constitutional Court has examined the length of criminal proceedings. Article 171: Identification of persons “1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must conduct the identification to describe the person (to be identified), relating all the features he or she remembers and that person is asked whether he/she has been previously summoned to do the identification and about other circumstances, which may contribute to the accuracy of the identification. 2. Actions provided for by paragraph 1 and statements made by the person who does the identification are entered in the records. 3. Non-compliance with the provisions of paragraphs 1 and 2 is a cause for the invalidity of the identification.” Article 172: Performing identification 1. The proceeding authority, after taking away the person who will do the identification, ensures the presence of at least two persons, looking as alike as possible, to the person to be identified. It invites the latter to choose his or her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he or she would have been seen by the person called to do the identification. After the person who will do the identification has appeared, the court asks the latter whether he or she knows any of those presented for identification, and if yes, to point out the person he or she knows and to specify whether he or she is sure. 2. When there are reasons to believe that the person called to do the identification may be afraid or influenced by the presence of the person to be identified, the proceeding authority orders the act to be performed without the latter seeing the former. 3. The records must describe how the identification was performed, failure to do so invalidates the identification. The proceeding authority may order, for records purposes, the performance of the identification to be photographed or filmed. Article 173: Identification of items 1. When the identification of material evidence or other items relevant to the criminal offence must be performed, the proceeding authority acts in compliance with the rules for identification of persons to the extent that they are applicable. 2. After finding, when possible, at least two similar items to the one to be identified, the proceeding authority asks the person called to identify whether he/she recognises any of them and, if the answer is yes, invites him/her to state which of them he/she recognised and to specify whether he/she is sure. 3. The records must describe how the identification was performed, failure to do so invalidates the identification. Article 175: Identification of or by several persons 1. When several persons are called to do the identification of the same person or item, the proceeding authority performs it one by one separately, prohibiting any communication between the one who has done the identification and those who will do it subsequently. 2. When a person must identify several persons or items, the proceeding authority orders the person or item to be identified to be placed among different persons or items. 3. The provisions of Articles 171, 172 and 173 of the CCP are applicable. 39. Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal, but extends to the whole case. 40. Under Article 427, at the party's request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary. 41. Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial. 42. The Court of Appeal's judgments may be appealed to the Supreme Court under Article 432 in the event that: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which result in the court's judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment. 43. Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein. | 1 |
train | 001-89309 | ENG | GBR | CHAMBER | 2,008 | CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Art. 14+P1-1 | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Simon Brown | 7. Ms Carson was born in 1931. She spent most of her working life in the United Kingdom, paying National Insurance Contributions in full, before emigrating to South Africa in 1989, where she has been resident since 1990. From 1989 to 1999 she paid further National Insurance Contributions on a voluntary basis to maintain her entitlement to a full State retirement pension. 8. In 2000 she became eligible for a State pension and an additional pension under the State Earnings Related Pension Scheme (“SERPS”). She receives a total of GBP 103.62 per week, comprising GBP 67.50 basic State pension, GBP 32.17 SERPS and GBP 3.95 graduated pension. Her pension has remained fixed at this rate since 2000. Had her basic pension benefited from up-rating in line with inflation, it would now be worth GBP 82.05 per week. 9. There is no State social security system in South Africa. Ms Carson therefore contends that she is dependent on her British pension to support her in retirement, having no other resources other than some earnings as a writer. 10. Ms Carson brought domestic proceedings challenging the refusal to up-rate her pension: see paragraphs 24-36 below. 11. Mr Jackson was born in 1922. He spent 50 years working in the United Kingdom, paying National Insurance Contributions in full. He emigrated to Canada on his retirement in 1986 and became eligible for a State pension in 1987. His basic State pension was then GBP 39.50 a week, and it has remained fixed at that level since 1987. Had his State pension benefited from up-rating since 1987 it would now be worth GBP 82.05 a week. 12. Mrs Stewart was born in 1931. She spent 15 years working in the United Kingdom, paying National Insurance Contributions in full, before emigrating to Canada in 1964. She became eligible for a State pension in 1991. Her basic State pension was then GBP 15.48 per week, and it has remained fixed at that level since 1991. Had her State pension benefited from up-rating, it would now be worth approximately GBP 22.50 per week. 13. Mrs Kendall was born in 1913. She spent 45 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1976. She became eligible for a State pension in 1973, and emigrated to Canada in 1986, at which point her State pension had increased to GBP 38.70 per week. It has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 a week. 14. Mr Dean was born in 1923. He spent 51 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1991. He became eligible for a State pension in 1988, and emigrated to Canada in 1994, when his weekly State pension was GBP 57.60. It has remained fixed at that level since 1994. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 15. Mr Buchanan was born in 1924. He spent 47 years working in the United Kingdom, paying all applicable National Insurance Contributions in full, before emigrating to Canada in 1985. He became eligible for a State pension in 1989. His basic State pension was then GBP 41.15 per week, and it has remained fixed at that level since 1989. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 16. Mr Doyle was born in 1937. He spent 42 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a State pension in 2002. His basic State pension was then GBP 75.50 per week, and it has remained fixed at that level since then. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 17. Mr Gould was born in 1933. He spent 44 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring and emigrating to Canada in 1994. He became eligible for a State pension in 1998. His basic State pension was then GBP 64.70 per week, and it has remained fixed at that level since then. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 18. Mr Dancer was born in 1921. He spent 44 years working in the United Kingdom, paying National Insurance Contributions in full, before emigrating to Canada in 1981. He became eligible for a State pension in 1986. His basic State pension was then GBP 38.30 per week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 19. Mrs Hill was born in Australia in 1940; it appears that she remains an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying National Insurance Contributions in full, before returning to Australia in 1982. She made further National Insurance Contributions for the tax years 1992-1999, and became eligible for a British State pension in 2000. Her basic State pension was then GBP 38.05 per week. 20. Between August 2002 and December 2004 she spent over half her time in London. During this period, her pension was increased to GBP 58.78, which included an up-rating of the basic State pension. When she returned to Australia, her pension returned to the previous level, including a basic State pension of GBP 38.05. Her pension has remained at this level subsequently. Had her State pension benefited from up-rating, it would now be worth approximately GBP 43.08 per week. 21. Mr Shrubshole was born in 1933. His contributions record in the United Kingdom qualified him for a full basic State pension in 1998. He emigrated to Australia in 2000, at which point his State pension had increased to GBP 67.40. Save for a period of seven weeks when he returned to the United Kingdom (during which time his pension was increased to take into account annual up-ratings), his State pension has remained fixed at that level since 2000. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 22. Mr Markiewicz was born in 1924. He spent 51 years working in the United Kingdom, paying National Insurance Contributions in full, and became eligible for a State pension in 1989. In 1993 he emigrated to Australia. His basic State pension was then worth GBP 56.10 a week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week. 23. Mrs Godfrey was born in 1934. She spent 10 years working in the United Kingdom between 1954 and 1965, paying National Insurance Contributions in full, before emigrating to Australia in 1965. She became eligible for a State pension in 1994. Her basic State pension was then GBP 14.40 per week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 20.51 per week. Mrs Godfrey contends that she is ineligible for any old age security benefits from the Australian Government, and is thus dependent on her British State pension as a source of income. 24. In 2002, Ms Carson brought proceedings by way of judicial review to challenge the failure to index-link her pension. At first instance she was supported by the Australian Government as an intervening party, but the Australian Government withdrew from the proceedings before the Court of Appeal and House of Lords. 25. Before the High Court, Ms Carson based her argument on Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. Stanley Burnton J, in a judgment handed down on 22 May 2002 (R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin)), dismissed her application for judicial review. 26. Applying the principles he drew from the case-law of the Court, the judge found that the pecuniary right that fell to be protected by Article 1 of Protocol No. 1 had to be defined by the domestic legislation that created it. He found that, by the operation of the domestic legislation, Ms Carson had never been entitled to an up-rated pension, so that there could be no breach of Article 1 of Protocol No. 1 taken in isolation. 27. The matter nonetheless fell within the ambit of Article 1 of Protocol No. 1, such that the judge had to consider whether Ms Carson had suffered discrimination contrary to the provisions of Article 14. He held that residence, applied as a criterion for the differential treatment of citizens, was a ground within the scope of Article 14; like domicile and nationality, it was an aspect of personal status. This was not contested by the Secretary of State. Stanley Burnton J went on, however, to dismiss the claim following the reasoning of the European Commission of Human Rights in JW and EW v United Kingdom (no. 9776/82, decision of 3 October 1983, Decisions and Reports (DR) 34, p. 153) and Corner v United Kingdom (no. 11271/84, decision of 17 May 1985, unpublished), holding that the applicant was not in a comparable position to pensioners in countries attracting up-rating. The differing economic conditions in each country, including local social security provision and taxation, made it impossible simply to compare the amount in sterling received by pensioners. 28. Stanley Burnton J found that, in the alternative, even if the applicant could claim to be in an analogous position to a pensioner in the United Kingdom or a country where up-rating was paid subject to a bi-lateral agreement, the difference in treatment could be justified. He considered that the Government had a considerable margin of appreciation, that there was a lack of consistency in State practice, and that the limitation had been publicised for some time. He declined to accept that the payment of an up-rated pension in one country (or several) meant that there was an obligation under Article 14 to pay up-rated pensions to all pensioners living abroad. He found that the illogicality in the scope of bilateral agreements reflected their political nature, the relative complexity of the issue, and historical factors. He therefore concluded that the “remedy of the expatriate United Kingdom pensioners who do not receive up-rated pensions is political, not judicial. The decision to pay them up-rated pensions must be made by Parliament.” 29. Ms Carson appealed to the Court of Appeal, which dismissed her appeal on 17 June 2003 (R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] EWCA Civ 797). For similar reasons to the High Court, the Court of Appeal (Lords Justice Simon Brown, Laws and Rix) found that, since Article 1 of Protocol No. 1 conferred no right to acquire property, the failure to up-rate Ms Carson's pension gave rise to no violation of that provision. 30. As to the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, the Court of Appeal noted that the Secretary of State accepted that place of residence constituted a “status” for the purposes of the Article. However, it found that the applicant was in a materially different position to those she contended were her comparators. In this connection it was significant that the legislative scheme was entirely geared toward the impact of price inflation in the United Kingdom, such that it would be “inescapable that [an annual up-rate] being awarded across the board to all ... pensioners [in Ms Carson's position] would have random effects.” 31. The Court of Appeal also considered, in the alternative, the question of justification and found that the “true” justification of the refusal to pay the up-rate was that Ms Carson and those in her position “had chosen to live in societies, more pointedly economies, outside the United Kingdom where the specific rationale for the uplift may by no means necessarily apply.” The Court of Appeal thus considered the decision to be objectively justified without reference to what they accepted would be the “daunting cost” of extending the up-rate to those in Ms Carson's position. Moreover, the cost implications were “in the context of this case a legitimate factor going in justification for the Secretary of State's position,” because to accept Ms Carson's arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by the Human Rights Act 1998, the jurisprudence of this Court or by a “legal imperative” which was sufficiently pressing to justify confining and circumscribing the elected Government's macro-economic policies. 32. Ms Carson appealed to the House of Lords, relying on Article 1 of Protocol No. 1 read together with Article 14. Her appeal was dismissed on 26 May 2005 by a majority of four to one (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2005] UKHL 37). 33. The majority (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry and Walker of Gestinghope) accepted that a retirement pension fell within the scope of Article 1 of Protocol No. 1 and that Article 14 was thus applicable. They further assumed that a place of residence was a personal characteristic and amounted to “any other status” within the meaning of Article 14, and was thus a prohibited ground of discrimination. However, because a person could choose where to live, less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic, such as race or sex. 34. The majority observed that in certain cases it was artificial to treat separately the questions, first, whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and, secondly, whether the difference in treatment was reasonably and objectively justified. In the present case, the applicant was not in an analogous, or comparable position, to a pensioner resident in the United Kingdom or resident in a country with a bilateral agreement with the United Kingdom. The State pension was one element in an interconnected system of taxation and social security benefits, designed to provide a basic standard of living for the inhabitants of the United Kingdom. It was funded partly from the National Insurance Contributions of those currently in employment and their employers, and partly out of general taxation. The pension was not means tested, but pensioners with a high income from other sources paid some of it back to the State in income tax. Those with low incomes might receive other benefits, such as income support. The provision for index-linking was intended to preserve the value of the pension in the light of economic conditions, such as the cost of living and the rate of inflation, within the United Kingdom. Quite different economic conditions applied in other countries: for example, in South Africa, where Ms Carson lived, although there was virtually no social security, the cost of living was much lower, and the value of the rand had dropped in recent years compared to sterling. 35. Lord Hoffmann, who gave one of the majority opinions, put the arguments as follows: “18. The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put herself outside the primary scope and purpose of the UK social security system. Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country. They are an expression of what has been called social solidarity or fraternité; the duty of any community to help those of its members who are in need. But that duty is generally recognised to be national in character. It does not extend to the inhabitants of foreign countries. That is recognised in treaties such as the ILO Social Security (Minimum Standards) Convention 1952 (article 69) and the European Code of Social Security 1961. 19. Mr Blake QC, who appeared for Ms Carson, accepted the force of this argument. He agreed in reply that she could have no complaint if the United Kingdom had rigorously applied the principle that UK social security is for UK residents and paid no pensions whatever to people who had gone to live abroad. And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker's allowance and income support. But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to the National Insurance Fund and then not to pay her the same pension as UK residents who had made the same contributions. 20. The one feature upon which Ms Carson seizes as the basis of her claim to equal treatment (but only in respect of a pension) is that she has paid the same national insurance contributions. That is really the long and the short of her case. In my opinion, however, concentration on this single feature is an over-simplification of the comparison. The situation of the beneficiaries of UK social security is, to quote the European Court in Van der Mussele v Belgium (1983) 6 EHRR 163, 180, para. 46, 'characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect'. 21. In effect Ms Carson's argument is that because contributions are a necessary condition for the retirement pension paid to UK residents, they ought to be a sufficient condition. No other matters, like whether one lives in the United Kingdom and participates in the rest of its arrangements for taxation and social security, ought to be taken into account. But that in my opinion is an obvious fallacy. National insurance contributions have no exclusive link to retirement pensions, comparable with contributions to a private pension scheme. In fact the link is a rather tenuous one. National insurance contributions form a source of part of the revenue which pays for all social security benefits and the National Health Service (the rest comes from ordinary taxation). If payment of contributions is a sufficient condition for being entitled to a contributory benefit, Ms Carson should be entitled to all contributory benefits, like maternity benefit and job-seekers allowance. But she does not suggest that she is. 22. The interlocking nature of the system makes it impossible to extract one element for special treatment. The main reason for the provision of state pensions is the recognition that the majority of people of pensionable age will need the money. They are not means-tested, but that is only because means-testing is expensive and discourages take-up of the benefit even by people who need it. So state pensions are paid to everyone whether they have adequate income from other sources or not. On the other hand, they are subject to tax. So the state will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension. On the other hand, those people who are entirely destitute would be entitled to income support, a non-contributory benefit. So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support. 23. None of these interlocking features can be applied to a non-resident such as Ms Carson. She pays no United Kingdom income tax, so the state would not be able to recover anything even if she had substantial additional income. (Of course I do not suggest that this is the case; I have no idea what other income she has, but there will be expatriate pensioners who do have other income). Likewise, if she were destitute, there would be no saving in income support. On the contrary, the pension would go to reduce the social security benefits (if any) to which she is entitled in her new country. State and private pensions 24. It is, I suppose, the words 'insurance' and 'contributions' which suggest an analogy with a private pension scheme. But, from the point of view of the citizens who contribute, national insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund. The difference is only a matter of public accounting. And although retirement pensions are presently linked to contributions, there is no particular reason why they should be. In fact (mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary) there are proposals for change. Contributory pensions may be replaced with a non-contributory 'citizen's pension' payable to all inhabitants of this country of pensionable age. But there is no reason why this should mean any change in the collection of national insurance contributions to fund the citizen's pension like all the other non-contributory benefits. On Ms Carson's argument, however, a change to a non-contributory pension would make all the difference. Once the retirement pension was non-contributory, the foundation of her argument that she had 'earned' the right to equal treatment would disappear. But she would have paid exactly the same national insurance contributions while she was working here and her contributions would have had as much (or as little) causal relationship to her pension entitlement as they have today. 25. For these reasons it seems to me that the position of a non-resident is materially and relevantly different from that of a UK resident. I do not think, with all respect to my noble and learned friend, Lord Carswell, that the reasons are subtle and arcane. They are practical and fair. Furthermore, I think that this is very much a case in which Parliament is entitled to decide whether the differences justify a difference in treatment. It cannot be the law that the United Kingdom is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home. Once it is accepted that the position of Ms Carson is relevantly different from that of a UK resident and that she therefore cannot claim equality of treatment, the amount (if any) which she receives must be a matter for Parliament. It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she cannot claim to be treated equally. And in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else. 26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources. 27. The comparison with residents in treaty countries seems to me to fail for similar reasons. Mr Blake was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries. They represented whatever the UK had from time to time been able to negotiate without placing itself at an undue economic disadvantage. But that seems to me an entirely rational basis for differences in treatment. The situation of a UK expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not. The treaty enables the government to improve the social security benefits of UK nationals in the foreign country on terms which it considers to be favourable, or at least not unduly burdensome. It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country (for example, as it has with the EEA countries) unless it paid the same benefits to all expatriates in every part of the world.” 36. Lord Carswell, dissenting, found that Ms Carson could properly be compared to other contributing pensioners living in the United Kingdom or other countries where their pensions were up-rated. He continued: “How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favourable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...” Lord Carswell therefore considered that the appeal turned on the question of justification. He accepted that the courts should be slow to intervene in questions of macro-economic policy. He further accepted that, had the Government put forward sufficient reasons of economic or State policy to justify the difference in treatment, he should have been properly ready to yield to its decision-making power in those fields. However, in the present case the difference in treatment was not justified: as the Department of Social Security itself accepted, the reason all pensions were not up-rated was simply to save money, and it was not fair to target the applicant and others in her position. 37. In the United Kingdom, the State pension is a contributory benefit payable from pensionable age to an individual who, for a requisite number of years during his or her “working life”, has paid or been credited with contributions to the National Insurance Fund (see the Social Security Contributions and Benefits Act 1992: “the 1992 Act”). National Insurance Contributions, payable by earners, employers and others under the 1992 Act, together with taxation, provide funds for the payment of a number of benefits, including the state retirement pension, job-seekers' allowance, incapacity benefit, maternity allowance and survivors' benefits. Contributions also part-fund the National Health Service. 38. Section 44(4) of the 1992 Act set the weekly rate of the basic pension at GBP 54.15. In each tax year the Secretary of State is obliged by virtue of section 150 of the Social Security Administration Act 1992 to review the sum specified in section 44(4) of the 1992 Act in order to determine whether it has retained its value “in relation to the general level of prices obtaining in Great Britain” and to lay an up-rating order before Parliament where it appears to him that the general level of prices has risen. The draft order must increase the sum specified in section 44(4) by a percentage which is no less than the increase in general inflation. Provided that Parliament approves the draft order, then by virtue of section 150(9) of the 1992 Act, the basic State pension is up-rated annually in line with United Kingdom inflation. 39. Section 113(1) of the 1992 Act creates a general rule withholding benefits, including pensions, from all expatriates: “Except where regulations otherwise provide, a person shall be disqualified for receiving [benefits including the State pension] for any period during which the person – is absent from Great Britain; ...” 40. However, section 113(3) of the 1992 Act provides that the Secretary of State may adopt secondary legislation allowing for a person resident overseas to receive any benefit to which he or she would be entitled if living in the United Kingdom. Regulation 4(1) of the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975 No. 563: “the 1975 Regulations”), made under a similar provision in earlier legislation, provides, so far as material: “Subject to the provisions of this regulation and of regulation 5 below, a person shall not be disqualified for receiving ... a retirement pension of any category ... by reason of being absent from Great Britain.” 41. Regulation 5 of the 1975 Regulations, however, provides that a person not ordinarily resident in Great Britain shall, unless or until he or she becomes resident there again, be disqualified from receiving up-rated benefits. 42. The Regulations applicable at the time that Ms Carson started her claim before the United Kingdom courts were the Social Security Benefits Up-rating Regulations 2001, SI 2001/910 (“the 2001 Regulations”). Regulation 3 of the 2001 Regulations provided for the application of the disqualification to the additional benefit payable by virtue of the Social Security Benefits Up-rating (No 2) Order 2000, SI 2001 No. 207 including the up-rating of the retirement pension introduced by article 4 of the 2001 order with effect from 9 April 2001: “Regulation 5 of the Social Security Benefit (Persons Abroad) Regulations 1975 (application of disqualification in respect of up-rating of benefit) shall apply to any additional benefit payable by virtue of the Up-rating Order.” The Regulations were publicised in a series of leaflets produced by the Department of Social Security and routinely sent to United Kingdom residents and former residents who, for example, applied to pay voluntary National Insurance Contributions from abroad. 43. By section 179(1) of the Social Security Administration Act 1992, the Queen is empowered by Order in Council to make provision for modifying or adapting the relevant legislation in its application to cases affected by an agreement with a country outside the United Kingdom which provides for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of the 1992 Act. The purpose of a reciprocal agreement is to provide a reciprocal basis for wider social security cover to workers and their families moving between States Party than is available under national legislation alone. Reciprocal agreements are not entered into solely to allow for payment of annual up-rating increases to recipients of United Kingdom pensions resident abroad. Cover under reciprocal agreements varies. Each results from negotiations between the United Kingdom and the partner State, taking into account the scope for reciprocity between the two social security schemes. 44. Between 1948 and 1992 the United Kingdom entered into bilateral agreements, or reciprocal social security agreements, with a number of foreign States, principally the United States of America, Japan, Mauritius, Turkey, Bermuda, Jamaica and Israel. With one minor exception, the agreements entered into force after 1979 fulfilled earlier commitments given by the United Kingdom Government. Agreements with Australia, New Zealand and Canada, where the majority of British expatriate pensioners live, came into force in 1953, 1956 and 1959 respectively; however they did not require payment of up-rated pensions. The agreement with Australia was terminated by Australia with effect from 1 March 2001, because of the refusal of the United Kingdom Government to pay up-rated pensions to its pensioners living in Australia. Up-rating has never been applied to those living in South Africa, Australia, Canada and New Zealand. 45. The EC Regulations on social security for migrant workers (Regulation (EEC) No 1408/71, as updated) require up-rating of benefits throughout the European Union. 46. The existence of a bilateral agreement is not necessary for the uprate to be paid, as the question is regulated purely by domestic legislation. However, it is the case that up-rating is not applied for nonresident pensioners save where a bilateral agreement is in place. 47. In the Third Report (January 1997) of the House of Commons Social Security Committee (Up-rating of State Retirement Pensions Payable to People Resident Abroad; HC Paper 143), the Committee reported that: “It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for up-rating.” On 13 November 2000 the Minister of State (Mr Jeff Rooker) in a statement in the House of Commons (356 HC Official Report (6th Series) col 628) concluded as follows: “I have already said I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether a country is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others. Indeed, there are differences among Caribbean countries. This is an historical issue and the situation has existed for years. It would cost some £300 million to change the policy for all concerned.” 48. The International Labour Organisation's Social Security (Minimum Standards) Convention, 1952, provides in Article 69: Article 69 “A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Convention may be suspended to such extent as may be prescribed – (a) as long as the person concerned is absent from the territory of the Member; ...” 49. The above provision is echoed in Article 68 of the European Code of Social Security, 1964, which is one of the basic standard-setting instruments of the Council of Europe in the field of social security: “A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Code may be suspended to such extent as may be prescribed: as long as the person concerned is absent from the territory of the Contracting Party concerned; ...” 50. Many States impose some restriction on payment of benefits outside their territory. It appears, however, that the United Kingdom is unique in continuing to pay a pension to expatriates while restricting the extent to which expatriates living in certain countries can benefit from index-linking. 51. The applicants have also annexed to their application witness statements from civil servants working for the Australian and Canadian Governments. The former was produced in the context of the domestic proceedings brought by Ms Carson; the latter has been produced in the context of the current application to this Court. The Australian statement is to the effect that: (1) the approach of the United Kingdom Government has a detrimental effect on most of the 220,000 United Kingdom pensioners resident in Australia; (2) the formal view of the Australian Government is that the approach of the United Kingdom does amount to unlawful discrimination; (3) in 2001 Australia terminated its Social Security Agreement with the United Kingdom because of the United Kingdom Government's refusal to provide up-rating of pensions to its nationals residing in Australia; and (4) Australian pensioners resident in the United Kingdom enjoy the same annual indexation of their pensions as those resident in Australia. 52. The Canadian statement is to the effect that: (1) the United Kingdom Government's approach directly affects virtually all the approximately 151,000 British pensioners resident in Canada; (2) indexation is a universal feature of social security systems and the United Kingdom's policy of arbitrarily restricting its application in respect of certain individuals is clearly discriminatory and contrary to acceptable international practice in the realm of public pensions; and (3) the United Kingdom's failure to index pensions into Canada is the reason why no arrangements on benefits or removal of barriers of exportability are contained in the Canada/United Kingdom Social Security Convention. | 0 |
train | 001-81789 | ENG | TUR | CHAMBER | 2,007 | CASE OF MESUT YURTSEVER v. TURKEY | 4 | Violation of Art. 6-1 | David Thór Björgvinsson | 4. The applicant was born in 1974 and lives in Istanbul. 5. On 6 April 1999 the applicant was arrested and taken into custody by police officers from the anti-terrorism branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers' Party of Kurdistan). 6. On 13 April 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and two others, accusing them, inter alia, of membership of an illegal armed organisation and of participating in separatist activities. The public prosecutor sought the death penalty for the applicant pursuant to Article 125 of the Criminal Code. 7. On 25 September 2001 the Istanbul State Security Court convicted the applicant of as charged and sentenced him to death, which sentence was later commuted to life imprisonment. The judgment was ex officio subject to appeal. 8. On 17 January 2002 the Principal Public Prosecutor submitted his written opinion to the 9th Division of the Court of Cassation, in which he had argued that the Court of Cassation should quash the applicant's conviction on account of the severity of the sentence imposed on the applicant. He opined that the applicant should have been sentenced pursuant to Article 168 § 2 of the Criminal Code, which punishes membership of an illegal organisation, instead of Article 125. 9. On 20 April 2002 the Court of Cassation held a hearing, differed with the opinion of the Principal Public Prosecutor, and upheld the judgment of the Istanbul State Security Court. The applicant's representative did not attend this hearing. The decision was pronounced in the absence of the applicant and his representative on 1 May 2002. 10. The relevant domestic law and practice in force at the material time are outlined in the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002V). 11. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties. | 1 |
train | 001-112586 | ENG | TUR | CHAMBER | 2,012 | CASE OF ER AND OTHERS v. TURKEY | 2 | Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 5. The applicants were born in 1980, 1974, 1978, 1984, 1989, 1990, 1994, 1954 and 1953 respectively and live in Hakkari. The first seven applicants are the children of Mr Ahmet Er, who disappeared in July 1995, and the remaining two applicants are his siblings. At the time of his disappearance Ahmet Er was 44 years old. 6. The facts of the case are disputed by the parties. The facts as presented by the applicants are set out in Section B below. The Government’s submissions concerning the facts are summarised in Section C below. The documentary evidence submitted by the applicants and the Government is summarised in Section D. 7. On 14 July 1995 an armed clash took place between members of the PKK and members of the security forces in Kurudere village, which comes within the administrative jurisdiction of the town of Çukurca in south-east Turkey. After the operation the soldiers took the applicants’ relative Ahmet Er and an elderly relative by the name of Hacı Mehrap Er from Kurudere to the nearby Işıklı gendarmerie station. 8. The same day the applicants informed the public prosecutor in Çukurca of the incident. 9. Hacı Mehrap Er was released on 15 July 1995 but nothing further was heard from Ahmet Er. 10. The Government submitted that Ahmet Er had not been taken into custody. He had assisted soldiers in searching for landmines planted in the area by terrorists and had been released following the soldiers’ return to their barracks. 11. An effective investigation carried out by the judicial authorities had shown that following his release Ahmet Er had joined the terrorists in northern Iraq. 12. The following information emerges from the documents submitted by the parties. 13. On 14 July 1995 Mr Ali Er, who is the brother of Ahmet Er and one of the applicants, informed the public prosecutor in Çukurca in writing about the disappearance of his brother. He also stated that the family feared for Ahmet Er’s life, and asked for the public prosecutor’s help. 14. On 16 July 1995 the Çukurca public prosecutor recorded in a report that he had had a telephone conversation with Major C.Y. of the Çukurca commando headquarters. Major C.Y. was also the commanding officer in charge of the soldiers who had carried out the operation on 14 July. The major told the public prosecutor that Ahmet Er had been taken from the village by his soldiers on 14 July to help them with their operations. However, he had been released on 16 July 1995 in an area near Narlı village. 15. On 18 July 1995 Ali Er made submissions to the offices of the governor and the public prosecutor in Çukurca. He stated in his submissions that his brother Ahmet Er had not been released, contrary to the information given to him by the Çukurca public prosecutor on 16 July. He added that he had tried unsuccessfully to find his brother in the surrounding villages and towns. 16. On the same day the Çukurca public prosecutor initiated an investigation into Ahmet Er’s disappearance and issued writs to the Çukurca gendarmerie headquarters and Çukurca commando headquarters requesting information about Ahmet Er’s whereabouts. The public prosecutor reminded the military authorities that if Ahmet Er was in their custody they needed to obtain official permission from the public prosecutor’s office in order to keep him in detention. 17. On 1 August 1995 the commander of the Çukurca gendarmerie headquarters, Captain S.A.U., replied to the Çukurca public prosecutor’s letter and informed him that Ahmet Er had not been detained at his headquarters. The village of Kurudere had been evacuated for security reasons and it was therefore impossible to trace Ahmet Er. 18. Following the failure of the Çukurca commando headquarters to respond to his request for information, the Çukurca public prosecutor repeated his request in a letter of 25 August 1995. The public prosecutor also referred to his telephone conversation with Major C.Y. (see paragraph 14 above), and asked the commando headquarters to inform him exactly where Ahmet Er had been released and whether there had been any eyewitnesses to the release. 19. In a letter of 22 September 1995 a military officer from the Çukurca commando headquarters informed the public prosecutor that Ahmet Er and “his elderly relative” had been taken from their village by soldiers on 14 July 1995 to act as guides to the area. The two men had helped the soldiers to locate a number of landmines in the area and had then “left the soldiers at 3 p.m.” the same day. No documents had been drawn up concerning the two men as they had not been arrested or detained. 20. On 16 October 1995 a public prosecutor questioned the applicant Ali Er, who repeated that his brother Ahmet had been taken away from their village by soldiers on 14 July 1995. The gendarmerie first lieutenant who was with the soldiers had even slapped his brother in front of the villagers before taking him away. Following this incident the villagers had left the village the same day, but the applicant’s elderly uncle, Hacı Mehrap Er, had stayed behind to wait for Ahmet. The latter had returned to the village with the soldiers the same evening, very distraught. The soldiers had then taken both Ahmet and Hacı Mehrap Er to Işıklı gendarmerie station, where they had tied them to a pole and left them until the following morning. The two men had also been beaten up. The following morning Hacı Mehrap Er and two other villagers who had also been taken away by the soldiers had been released. According to his uncle, Ahmet had been unconscious when he left him. Furthermore, Fettah Arslan, a fellow villager, had seen the applicant’s brother being taken from Işıklı gendarmerie station to the commando unit in a military vehicle. 21. The public prosecutor summoned Hacı Mehrap Er and Fettah Arslan to his office. On 23 October 1995 Fettah Arslan told the public prosecutor that he had seen Ahmet Er in a military vehicle, wearing handcuffs. 22. On 25 October 1995 Hacı Mehrap Er told the public prosecutor that on the day of the incident the villagers had been preparing to leave their village as ordered by the military. However, some PKK members had heard about the evacuation and the presence of the soldiers in the village and had attacked the soldiers. During the armed clash that had ensued, Ahmet Er had attempted to leave the village in order to find his son, who was out in the fields. However, the soldiers had misinterpreted Ahmet Er’s intentions and had taken him to Işıklı gendarmerie station. Subsequently, Hacı Mehrap Er had also been taken to the same gendarmerie station, where he and Ahmet had been tied to a pole and beaten up. The soldiers had also doused them with hot water. The bones in Ahmet’s feet had been broken with a stone. When Hacı Mehrap Er was released the following morning, Ahmet was being dragged along the ground by ten or eleven soldiers. When he returned to the village, the soldiers had already burned it down. 23. After making two unsuccessful attempts to summon him to his office, the public prosecutor finally questioned Major C.Y. of Çukurca commando headquarters on 14 December 1995. The major confirmed that he had heard that Ahmet Er had been taken from the village by his soldiers on 14 July 1995 to act as a guide to the area. After his telephone conversation with the public prosecutor he had ordered Ahmet Er’s release. However, he had later found out that the person released on his orders was not Ahmet Er. Major C.Y. added that he did not know whether Ahmet Er had been taken away by his soldiers. 24. First Lieutenant H.Ö., who was in charge of one of the three units of soldiers which had taken part in the operation on 14 July 1995, was questioned by the public prosecutor on 1 February 1996. The first lieutenant confirmed that he and his soldiers had gone to Kurudere village on the day of the incident. Following an armed clash with members of the PKK, during which an officer had been killed and two soldiers injured, they had seen Ahmet Er running away from the village. A number of soldiers had then been sent to catch him. The soldiers had caught him and “might have slapped him a few times” because they believed that Ahmet Er had been helping the PKK. Ahmet Er had then helped the soldiers to find a number of landmines. On their way they had seen Hacı Mehrap Er, who had asked permission to go with the soldiers. They had then taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station. The first lieutenant had telephoned his superior officers at the battalion’s headquarters and told them about the two men. His superior officers had told them that it was not necessary to take the men to headquarters as there was no evidence against them. Ahmet and Hacı Mehrap had spent the night with the soldiers at Işıklı gendarmerie station. It was possible that the soldiers “might have got angry with the two men and slapped them” but they had not tortured them or broken the bones in Ahmet’s feet as alleged. The following day the “old man” had been released outside the station and Ahmet Er had been released some 200 metres away from the station. 25. First Lieutenant Ş.Ö. had been in charge of another unit on the day of the incident. He gave a similar statement to the public prosecutor. 26. On 2 February 1996 the public prosecutor questioned four other gendarmerie officers who had taken part in the operation on 14 July 1995. The officers confirmed that they had taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station but denied that they had ill-treated them. They maintained that the two men had been released the following day and added that Ahmet Er had even waved to them when he was being released. The officers also told the public prosecutor that it was possible that Ahmet Er had subsequently joined the PKK. 27. On 16 February 1996 the Çukurca public prosecutor issued an instruction to find Ahmet Er and asked to be given a progress report every three months. In his instruction the prosecutor stated that Ahmet Er had not been arrested by the soldiers but had been taken by them to act as a guide to the area. He also stated that, since two of Ahmet Er’s sons had joined the PKK, it was possible that Ahmet Er himself might also have joined. 28. It appears from the documents that the police and soldiers searched unsuccessfully for Ahmet Er and informed the public prosecutor at regular intervals until 2 October 2000. On 1 February 2001 the Çukurca public prosecutor requested the police to continue their search. After the prosecutor’s letter the police continued to inform the prosecutor at twomonthly intervals about the unsuccessful search for Ahmet Er. 29. On 3 May 2002 the first applicant, Mehmet Er, applied to the Hakkari Civil Court of First Instance, alleging that his father had disappeared in life-threatening circumstances on 14 July 1995 and that nothing had been heard from him since that date. He asked the court to issue a decree stating that his father was to be presumed dead. This request was accepted on 29 May 2003. On 24 February 2004 custody of Ahmet Er’s three youngest children – the applicants Mr Hızır Er, Ms Hatice Er and Ms Belkısa Er – was awarded to their elder brother İslam Er, who is also one of the applicants. 30. On 10 December 2003 the Çukurca public prosecutor issued a decision stating that, according to the allegations made and the information given to him by eyewitnesses, Ahmet Er had last been seen in a military area, where he had been “tortured by soldiers”. Hence, the military were responsible for the incidents in question and the military prosecutor in the city of Van had jurisdiction to continue the investigation. 31. The military prosecutor in Van began his investigation on 14 January 2004 by requesting information from local military units about whether or not anything had been heard from Ahmet Er and whether he had sons who were PKK members. He also asked for regular updates every three months. 32. On 10 February 2004 the military units informed the military prosecutor that, according to information obtained from intelligence officers, Ahmet Er had been taken from his village by soldiers. Following his release on 16 July 1995, Ahmet Er had gone to northern Iraq to join the PKK. Nothing had been heard from him since that date. 33. On 17 February 2004 the military prosecutor questioned the applicant Ali Er, and Hacı Mehrap Er. Both men reiterated the information they had already provided to the Çukurca public prosecutor. 34. On 3 March 2004 the applicants’ legal representative requested information from the Çukurca public prosecutor about the investigation. He was informed of the transfer of the investigation to the military prosecutor’s office in Van. 35. At regular intervals between 7 April 2004 and 23 November 2005 eight identical copies of a document stating that Ahmet Er had joined the PKK were signed by various military officers and sent to the Van military prosecutor in connection with his request of 14 January 2004 (see paragraph 31 above). 36. On 28 July 2005 the military prosecutor decided that he also lacked jurisdiction to investigate the disappearance. In his decision the prosecutor summarised the steps taken in the investigation and stated that on 14 July 1995 Ahmet Er had been acting suspiciously and had been taken away by soldiers. He had then been taken to various places where he had shown the soldiers explosives planted by members of the PKK. The soldiers had then taken him to the barracks. The military prosecutor concluded that, in taking Ahmet Er to their barracks in order to question him, the soldiers had been carrying out judicial rather than military functions. Military prosecutors could only investigate offences committed by members of the armed forces in the performance of their military duties. Hence, the civilian prosecutors had jurisdiction to continue the investigation. The file was therefore sent back to the Çukurca public prosecutor’s office. 37. The Çukurca public prosecutor continued his investigation by instructing the gendarmes to continue to search for Ahmet Er. 38. On 15 December 2005 the Çukurca public prosecutor summarised his investigation in a report. According to the report, on 14 July 1995 Ahmet Er had been acting suspiciously and had therefore been taken away by soldiers. He had then assisted the soldiers in locating two landmines. He had stayed at the Işıklı gendarmerie station and had been “released” on 16 July 1995. According to “secret investigations” conducted by the gendarmes, Ahmet Er had joined the PKK following his release. The Çukurca public prosecutor concluded that the Van public prosecutor’s office had jurisdiction to continue the investigation, and sent the investigation file there. 39. On 5 January 2006 a public prosecutor in the city of Van issued a search and arrest warrant for Ahmet Er for the offence of membership of an illegal organisation, namely the PKK. 40. In response to an apparent query from the Çukurca gendarmerie, the Van public prosecutor noted in a letter of 29 March 2006 that the fact that Ahmet Er’s family had obtained a decree from a civil court presuming him to be dead did not mean that Ahmet Er had indeed died. He decided that the search for Ahmet Er should continue with a view to arresting him under the warrant of 5 January 2006. 41. On subsequent dates the Çukurca gendarmerie informed the Van public prosecutor that their efforts to find and arrest Ahmet Er had been unsuccessful. | 1 |
train | 001-86572 | ENG | SWE | ADMISSIBILITY | 2,008 | LADBROKES WORLDWIDE BETTING v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Päivi Hirvelä | The applicant, Ladbrokes Worldwide Betting, is a betting and gaming company based in Harrow, United Kingdom. It is represented before the Court by Mr S. Widmark and Ms T. Cabander, lawyers practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 December 2003 the applicant applied to the Government, under section 45 of the Lotteries Act (Lotterilagen, 1994:1000), for a permit to provide betting and gaming services in Sweden. By a decision of 18 March 2004, the Government rejected the application. The decision, prepared by the Ministry of Finance in consultation with the Prime Minister’s Office (Statsrådsberedningen) and several other ministries, was signed by Mr Bosse Ringholm, the Minister for Finance, on behalf of the Government. The Government noted that betting and gaming in Sweden was essentially reserved for the State, certain non-profit making organisations (folkrörelserna) and the equestrian sports, and that the profits should be to the benefit of the public or for public utility purposes. They did not find that there were reasons to deviate from those principles and grant a permit to the applicant by way of an exception under section 45. On 16 June 2004 the applicant applied to the Supreme Administrative Court (Regeringsrätten) for a judicial review of the Government’s decision under the Act on Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205). The applicant claimed that the impugned decision should be quashed as it was contrary to Articles 43 and 49 of the EC Treaty, the latter guaranteeing the free movement of services. It also requested the court to hold an oral hearing. On 8 December 2004 the Supreme Administrative Court, sitting with five judges, decided not to hold a hearing in the case. Stating that three of the judges had previously, at the Ministry of Finance and the Court of Justice of the European Communities, dealt with the question whether the Lotteries Act was in conformity with Community law, the applicant, on 19 January 2005, challenged their impartiality and moved for their disqualification from the case. One of the challenged judges was later replaced and, before the Court in the instant proceedings, the applicant stated that it had been clarified that there were no grounds to question the impartiality of another judge. Of relevance to the present case is thus only the alleged partiality of one of the judges, Mr Nils Dexe. The applicant stated in its plea for disqualification that he had been Director-General for Administrative and Legal Affairs (expeditions- och rättschef) in the Ministry of Finance between 1992 and 2001, when he had allegedly been responsible for the preparation and enactment of the Lotteries Act as well as a new rule which criminalised violations of that Act’s prohibition on the promotion of foreign lotteries. Within the scope of that work, the question whether Swedish lottery legislation was contrary to EU law had been investigated, leading to the Ministry taking the view that it was not. It is true that Mr Dexe held the above-mentioned position in the Ministry of Finance between 1992 and 2001. However, responsibility for the Lotteries Act was transferred to that ministry only on 1 July 1996, about three years after it had been prepared. The new rule on criminalisation was, however, elaborated and introduced during Mr Dexe’s period of service within the Ministry of Finance. In its proposal for introducing, inter alia, this rule, the Government investigated its conformity with EU law. The decision to propose the amendment was taken by 14 ministers of the Government, none of whom was Mr Ringholm, at a Government meeting held on 29 October 1998. Mr Ringholm was Minister for Finance between 1999 and 2004. Previously, he had not been a member of the Government or employed in the Government offices. On 4 February 2005 the Supreme Administrative Court, sitting without the challenged judges, rejected the applicant’s plea for disqualification. It stated the following: “Decisions concerning Government bills are political decisions. Being a civil servant and not a political appointee, the Director-General for Legal Affairs at a Government Ministry has no decisive influence on the contents of the proposals that the Government presents. Consequently, the contents of a Government bill do not reflect the personal opinion of the Director-General for Legal Affairs on a legal issue; indeed, his opinion may differ from that of the Government. Accordingly, the duty of the Director-General for Legal Affairs to see to the drafting of legislative proposals, on the basis of positions taken by politicians, cannot be held to mean that he has thereby concerned himself with the matter in a manner that could provide grounds for disqualification when dealing with cases relating to the application of the legislation. In light of these considerations, the Supreme Administrative Court finds that Nils Dexe’s previous employment as Director-General for Administrative and Legal Affairs at the Ministry of Finance does not constitute a circumstance that entails disqualification in the case. Nor has any other circumstance come to light that disqualifies Nils Dexe. The objection that he is disqualified must therefore be dismissed.” On 15 February 2005 the Supreme Administrative Court altered its decision of 8 December 2004 and granted the applicant’s renewed request for an oral hearing. The hearing was held on 2 June 2005. By a judgment of 20 June 2005, the Supreme Administrative Court, sitting with five judges, including Mr Dexe, upheld the Government’s decision. The court stated that, in a judgment of 26 October 2004 (RÅ 2004 ref. 95), it had already examined the conformity of the Swedish lottery legislation with EU law, as interpreted by the jurisprudence of the European Court of Justice, and considered that there were no reasons to come to a different conclusion in the applicant’s case. The court had noted in the earlier case that, as regards betting, the Court of Justice had accepted extensive restrictions on the freedom to provide services on the territory of other EU member states. The court had found therefore that the Swedish lottery legislation, which required a permit for essentially all forms of betting and gaming, and its main objectives, namely the protection of the individual and the public, and the principle that profits should benefit the public or be for public utility purposes, were acceptable to the Court of Justice. The court had further considered that the implementation of the lottery legislation met the requirements laid down by the Court of Justice for restrictions on the freedoms enshrined in the EC Treaty. Thus, while the court considered that the Government’s reasoning in the decision of 18 March 2004 could be seen as misleading and incomplete in light of the object and purpose of the Lotteries Act and the examination made by the court in the above-mentioned judgment, the challenged decision was contrary neither to the Lotteries Act nor to EC law as it had been developed thus far through the jurisprudence of the Court of Justice. The Lotteries Act is applicable to lotteries, including betting, which are arranged for the general public. Section 9 of the Act provides that, save for some exceptions not relevant to the present case, the organisation of betting and gaming requires a permit. Under section 15, a permit to arrange betting and gaming of the type provided by the applicant may be given to a Swedish non-profit making association which fulfils certain requirements, inter alia that it conducts activities whose main objective is to support public utility purposes within the country. If there are special reasons, a permit may be granted also to a legal person which is not a non-profit making association or to a legal person whose main objective is to support public utility purposes outside the country. Further conditions are laid down in section 16. According to sections 39-41, applications for a permit to organise betting and gaming are determined by a municipal committee and, in some cases, the country administrative board and the National Gaming Board (Lotteriinspektionen). The Government may grant a permit by virtue of section 45: “The Government may grant a special permit to arrange a lottery in other cases and according to other procedures than as provided in this Act. ...” The Government is thus authorised to grant a permit in situations where the requirements of section 15 are not fulfilled. The preparatory works mention the need to issue permits in specific situations. As examples of permits issued under section 45, reference is made to lotteries arranged by the savings banks in order to encourage savings and to the two companies wholly or partially controlled by the Swedish State, AB Svenska Spel and AB Trav och Galopp, which have obtained permits to arrange certain games, including sports and horse betting. The preparatory works do not provide any other directives on how to apply this provision (Government Bill 1993/94:182, pp. 79-80). The Swedish lottery legislation’s compliance with EC law, notably Article 49 of the EC Treaty, is under investigation by the European Commission. On 27 June 2007 the Commission issued a reasoned opinion, the second step of the procedure laid down in Article 226 of the Treaty. | 0 |
train | 001-103613 | ENG | MKD | COMMITTEE | 2,011 | CASE OF CAMINSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Art. 6-1 | Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva | 5. The applicant was born in 1956 and lives in Slovenj Gradec, Slovenia. 6. In June 1992 criminal charges were brought against five people (“the defendants”) on suspicion of having caused grievous bodily harm to the applicant. On 16 September 1992 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against the defendants. According to statements taken on 25 September 1992 as part of the pre-trial proceedings, the applicant sought damages for loss of income and injuries sustained. He stated that he would subsequently specify his claim. 7. During the proceedings, the trial court fixed about forty hearings. Most of them were postponed because it could not secure the attendance of the defendants, their representative or witnesses. No adjournment of any of the hearings was ordered on the applicant’s request. The trial court also obtained several expert opinions during the proceedings. 8. On 4 July 2003 the trial court found three of the defendants guilty of grievous bodily harm and sentenced them to a suspended prison term. It further advised the applicant to pursue a compensation claim by means of a separate civil action. In this connection it observed that the applicant had hitherto sought compensation only for non-pecuniary damage. 9. On 11 December 2003 the public prosecutor appealed against the above-mentioned decision. At a public hearing held on 27 January 2005, the Skopje Court of Appeal overturned the decision in respect of the sentence and confirmed the remainder. The three defendants were sentenced to six months’ imprisonment. According to the Government, on 10 November 2005 the Supreme Court confirmed this decision by dismissing the defendants’ appeal on points of law (барање за вонредно преиспитување на правосилна пресуда). 10. On 6 December 2005 the applicant brought a civil action against the defendants and their employer, claiming compensation for the pecuniary and non-pecuniary loss he had sustained as a result of his injuries. 11. On 26 June 2008 the trial court ruled partly in favour of the applicant and ordered the defendants and their employer jointly to pay him 1,200,000 Macedonian denars (equivalent to 19,500 euros) in respect of non-pecuniary damage. On 4 September 2008 the defendants appealed. The case is pending before the Skopje Court of Appeal. 12. The statutory provisions relevant for the present case were described in the Boris Stojanovski case (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia, no. 41196/06, §§ 16-31, 6 May 2010). | 1 |
train | 001-88175 | ENG | MDA;RUS | ADMISSIBILITY | 2,008 | KIREEV v. MOLDOVA AND RUSSIA | 4 | Inadmissible | Anatoly Kovler;David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi | The applicant, Mr Ilja Kireev, is a Russian national who was born in Konskoe and lives in Tighina/Bender (a town on the territory of Moldova, but which, since 1991, is under the control of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”, see more details in Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-31 and 87-91, ECHR 2004VII)). The facts of the case, as submitted by the applicant, may be summarised as follows. Starting from 1962 the applicant deposited 16,582 Soviet roubles in the Savings Bank situated in Tighina/Bender. He claimed that the value of his personal savings, which he had deposited with the Savings Bank, had dropped significantly following economic reforms, and that the State had not properly discharged its obligation to revalue the deposits in the Savings Bank in order to offset the effects of inflation. The applicant lodged an action with the “MRT Supreme Court” asking for compensation for the loss of value of his deposits. On 26 October 2004 the court informed him that it was not competent to deal with such actions and that he should address the regular “MRT courts”. The applicant lodged an action with “Bender county court” (which is part of the “MRT court system”; there exists another Tighina/Bender county court under Moldovan jurisdiction and located in Varniţa village). On 21 December 2004 the court left the action unexamined, finding that it was incomplete since he had failed to fully identify the respondents and to provide evidence in support of his action, and omitted other necessary information. Following the applicant’s failure to submit the missing documents, on 17 January 2005 his action was returned to him unexamined. The applicant complained to the Supreme Court of Justice of the Republic of Moldova, which on 6 July 2004 informed him of his right to lodge an action with the Tighina/Bender county court located in Varniţa village. On an unknown date the applicant lodged an action with that court. On 6 January 2005 the court informed him that his action was incomplete, in particular lacking the necessary documentary evidence and proof of payment of court fees. It appears that the applicant submitted no further documents to the Tighina/Bender District Court. The applicant also complained to the Prosecutor General’s Office of the Republic of Moldova about the loss of value of his deposits. His complaint was forwarded to the Tighina/Bender prosecutor’s office. On 29 March 2004 the Tighina/Bender prosecutor’s office informed the applicant that Moldova and the unrecognised “MRT” had separate budgetary systems and that he should address any claim for compensation to the “MRT authorities” under applicable local legislation. The applicant states that in 2005 he attempted to obtain compensation for the loss of value of his deposits from a Russian bank in Kirov. This was refused since the law did not allow the payment of compensation to persons who had deposited money in the Savings Bank outside Russia. As concerns Moldovan legislation regarding compensation for losses caused by inflation, on 12 December 2002 Parliament adopted the Act “Concerning the indexing of citizens’ savings in the Savings Bank of Moldova” (Legea nr.1530-XV din 12 decembrie 2002 privind indexarea depunerilor băneşti ale cetăţenilor în Banca de Economii) (hereinafter “the Moldovan Savings Act 2002”). Article 1 of that law reads as follows: “Article 1. Object of the law. The present law establishes the State’s obligations in respect of citizens of the Republic of Moldova who had savings in the Savings Bank of Moldova as of 2 January 1992, and establishes the basic principles regarding the indexation, quantum and manner of payment of indexed amounts.” As concerns Russian legislation concerning compensation for losses caused by inflation, the Law on Revaluation and Protection of the Savings of Citizens of the Russian Federation was enacted on 10 May 1995 (Федеральный закон «О восстановлении и защите сбережений граждан Российской Федерации») (hereinafter “the Russian Savings Act 1995”). Article 1 of that law reads as follows: “Article 1. The State guarantees the restoration and preservation of the value of financial assets created by citizens of the Russian Federation by depositing monies with the Savings Bank of the Russian Federation (before that the State savings banks of USSR which worked on the territory of the Russian Soviet Socialist Federal Republic) before 20 June 1991; ...” According to a letter from the Russian Ministry of Finance “Concerning the Transfer of Deposits from Countries of the Commonwealth of Independent States to the Russian Federation”, dated 20 April 1998 (no. 22-03-03): “... Restoration shall apply to deposits, which by [20 June 1991] were kept in the Russian Savings Bank. However, the above-mentioned law [Russian Savings Act 1995] does not apply to deposits made with the savings banks of other States, which earlier were part of the former USSR.” | 0 |
train | 001-57710 | ENG | AUT | CHAMBER | 1,991 | CASE OF TOTH v. AUSTRIA | 2 | Violation of Art. 5-3;Preliminary objection rejected (six month period);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings | N. Valticos;R. Pekkanen | 8. Mr Stefan Toth, an Austrian national residing in Graz, works washing dishes in a restaurant. 9. On 1 June 1984 the Salzburg Regional Court (Landesgericht) issued a warrant for his arrest (Haftbefehl). He was suspected of aggravated fraud (schwerer Betrug), aided and abetted by a certain J. M.; he had in particular made out a number of bad cheques drawn on bank accounts opened by J. M., then cashed in different banks. The warrant stated that there was a risk of his absconding (Fluchtgefahr), because his address was unknown, and of repetition of the offences (Wiederholungsgefahr), as Mr Toth had several previous convictions. 10. On 24 August 1984 the same court issued an international arrest warrant (Steckbrief) concerning the applicant. It referred to eleven cases of attempted fraud or aggravated fraud involving more than one million Austrian schillings and affecting financial establishments of various towns in the Federal Republic of Germany and Austria. It mentioned a certain B. as the third co-accused. 11. On 11 January 1985 at 11 p.m. the police arrested Mr Toth at the airport of Graz, the town where he was living, although not duly registered there as a resident; he had been waiting for a friend. He was then taken to Feldkirchen. 12. An investigating judge of the Graz Regional Court interviewed the applicant the following day at 10.40 a.m. According to the document entitled "Examination of the accused" (Vernehmung des Beschuldigten), the judge informed him that the arrest warrants were based on suspicion of several offences of aggravated fraud and that the police custody (Verwahrungshaft) was intended to guard against the risk of his absconding and the risk of collusion (Verabredungsgefahr). On 17 January 1985 Mr Toth was transferred to Vienna and then on 22 January to Salzburg. 13. On 23 January 1985 he was examined by an investigating judge of the Salzburg Regional Court. He signed the document "Examination of the accused", which indicated that a preliminary investigation (vorläufige Untersuchung) had been opened and that he had been placed in detention on remand because of the risk of his absconding and that of repetition of the offences (Article 180 paras. 1 and 2 of the Code of Criminal Procedure). 14. The same day the Regional Court ordered his detention pending trial, for the reasons invoked by the investigating judge. Previously Mr Toth had tried to evade prosecution by changing his place of residence so that if released he was liable to evade trial or to go into hiding to forestall his future conviction. In addition, he was not socially integrated and was unemployed, which gave grounds for fearing new offences, likely to have serious consequences, of the type of those which had already brought him two convictions. 15. The investigating judge questioned Mr Toth on 25, 28, 29, 30 and 31 January and on 1 February. 16. On 7 February the Swiss authorities indicated by telex message that they were contemplating asking Austria to prosecute the applicant for offences committed in Switzerland. 17. On 15 February 1985 Mr Toth applied for his release. He maintained that he could provide proof both of a permanent place of residence at his sister’s home and of prospects of employment. 18. The same day the investigating judge took cognisance of a further complaint. On 19 February he ordered the police to make inquiries in connection with the offences that the applicant had allegedly committed in Switzerland and asked the Vienna Regional Criminal Court to send him a file. The Government did not provide any details on these various points. 19. On 27 February the Ratskammer (Review Chamber) of the Regional Court of Salzburg dismissed his application for release, following a hearing at which the applicant appeared with his lawyer. It reiterated the grounds given in the decision of 23 January and added that other measures less stringent than detention would not be sufficient to attain the aims pursued thereby. 20. On 1 March 1985 the file was again returned to the investigating judge. Between 6 and 19 March it was handed over to the Salzburg public prosecutor’s office and to the Linz Court of Appeal in connection with the extension of the detention on remand of the co-accused J. M., before being sent back to the Salzburg court. The investigating judge, who was away on leave from 20 March to 15 April, questioned Mr Toth on 30 April about J. M. On 15 May he requested documents from two Munich banks. 21. From 26 April to 1 May the applicant served a prison sentence, imposed by the Salzburg District Court for a customs offence. 22. On an application by the investigating judge, made on 7 June 1985, the Linz Court of Appeal (Oberlandesgericht) decided on 19 June 1985, in private session, to extend the maximum duration of the detention on remand to eight months from 23 January 1985. The aggravated fraud of which the accused was strongly suspected had resulted in a loss of more than 2,000,000 Austrian schillings. The file had become exceptionally voluminous on account of the large number of facts and of the contradictions in Mr Toth’s statements and those of his co-accused. The most recent findings of the investigation, and the scope and complexity of the case, made it necessary to leave the prosecuting authorities sufficient time to prepare the indictment and, if necessary, the subsequent proceedings in the assize court. There were grounds for fearing that the accused would evade the trial and commit new offences. Finally, less stringent measures than detention were held to be inadequate. 23. On 24 June the investigating judge wrote again to one of the two Munich banks. 24. On 9 July 1985 Mr Toth challenged the decision of the Court of Appeal in the Supreme Court (Oberster Gerichtshof), arguing that he had a permanent place of residence in Austria, prospects of employment and that he was greatly attached to his girlfriend. On 16 July he insisted that his file be forwarded, although the judge had pointed out to him the futility of this step. On 22 August 1985 the Supreme Court found the appeal inadmissible. The file was returned to the investigating judge on 11 September 1985. 25. On 12 September 1985 Mr Toth asked the Salzburg Regional Court to order his release as the period of eight months set by the Linz Court of Appeal had expired. The European Court is not aware of how this application was dealt with. 26. On 18 September 1985 the Linz Court of Appeal, sitting in private session, extended the maximum duration of the detention on remand to eleven months, as it had been requested to do by the investigating judge on 9 September. On the matter of the danger of the applicant’s absconding and of repetition of the offences, it found that the circumstances had remained unchanged and therefore referred to the grounds of the decisions of 27 February and 19 June 1985. It also considered that the reasons given ruled out other measures less stringent than detention. 27. On 24 September the Salzburg Regional Court extended the investigation to cover a charge of arson in Switzerland. Mr Toth filed an appeal (Beschwerde) against this decision, which was dismissed by the Ratskammer on 2 October 1985, inter alia, because no supporting grounds were submitted. 28. When the investigating judge considered that the preliminary investigation was terminated, he sent the file on 2 October 1985 to the Salzburg public prosecutor’s office (Staatsanwaltschaft). On 31 October that office requested further investigative measures, which were ordered on 7, 15 and 19 November. On 3 December the file was forwarded to the Linz Court of Appeal for its decision on Mr Toth’s detention. 29. On 26 September 1985 Mr Toth submitted an application for release to the Constitutional Court (Verfassungsgerichtshof), which declared it inadmissible on 28 February 1986. 30. On 11 December 1985 at the request of the investigating judge and the public prosecutor’s office, the Linz Court of Appeal, sitting in private session, extended the maximum duration of the detention to fifteen months. In addition to the reasons given in the previous decisions, it noted that the accused was also suspected of having incited another person to burn down a restaurant in Switzerland, causing damage of 300,000 Swiss francs. It noted further that the investigation was not yet completed because of the amount of the evidence. 31. On 13 December 1985 the applicant again applied for his release. On 20 December the file was transmitted to the Ratskammer of the Salzburg Regional Court, which dismissed the application on 2 January 1986 at the end of a hearing attended by Mr Toth and his lawyer. The investigation, at the stage which it had reached, gave credence to the allegations of fraud and of issuing bad cheques for 2,000,000 Austrian schillings levelled at Mr Toth. As to the risks of his absconding and of repetition of the offences, the position had not changed since the decision of 11 December 1985. 32. The same day the investigating judge questioned the applicant in connection with the statements of S. R., another co-accused who had implicated him, and organised a confrontation between them. 33. On 16 January 1986 Mr Toth challenged the decision of 2 January in the Linz Court of Appeal. That court dismissed the appeal on 22 January in private session, "after hearing the submissions of the principal public prosecutor’s office" ("nach Anhörung der Oberstaatsanwaltschaft"), but without having summoned or heard the accused and his lawyer. It feared that the applicant would abscond and cross the frontier clandestinely; it was immaterial whether it was true, as the applicant claimed, that he did not have identity papers allowing him to go to Germany, that he was banned from entering that country and that he faced prosecution in Switzerland. There was also a risk of repetition of the offences as the applicant had five previous convictions, including a sentence to twenty months’ imprisonment, imposed by the Stuttgart Regional Court, for fraud and forgery. The Court of Appeal did not consider that the duration of the detention was excessive at that stage, having regard to the likely sentence in the event of conviction, and deemed the grounds for the detention sufficiently well-founded to rule out other less stringent measures. 34. The investigating judge questioned the applicant for the last time on 22 January 1986. He then went on leave from 1 to 14 February. On 19 February he wrote to an Austrian bank asking for various documents. 35. By decision of 26 February 1986, the investigating judge concluded the preliminary investigation. 36. On 12 March 1986 the Salzburg public prosecutor’s office indicted Mr Toth for various instances of attempted aggravated fraud and of aggravated fraud, as well as forgery of a "specially protected document" (besonders geschützte Urkunde). According to the indictment, which was seventeen pages long, the applicant had drawn cheques on various banks in Germany, Austria and Switzerland and had instructed B. and J. M. to cash them in other banks in these countries; the resulting loss amounted to 950,000 Austrian schillings for the offences of aggravated fraud, and to 1,250,000 schillings for those of attempted fraud; the accused already had two convictions for fraud and receiving stolen goods and he was facing prosecution in Germany for nineteen offences of cheque fraud. The prosecuting authorities stated that further investigations were envisaged because the applicant was suspected of arson as well as other instances of aggravated fraud. 37. On 19 March 1986 the indictment was communicated to Mr Toth, who challenged it on 4 April, but to no avail. On 11 April the Linz Court of Appeal took the view that the conclusions of the investigation were sufficient to support the charges pending against him; it therefore committed him for trial. 38. The same day, but by a separate decision, the Court of Appeal ruled in private session on a request from the investigating judge of 4 April; it extended to seventeen months the maximum duration of the detention on remand, having regard to the scope and the complexity of the investigation. In its view, no new evidence in Mr Toth’s favour had come to light since 22 January 1986. 39. On 30 April the file was transmitted to the trial court, the Salzburg Regional Court, which, on 23 May, set down the trial for 11 June 1986. 40. On 5 June the applicant’s lawyer indicated that he no longer wished to represent Mr Toth. However, he was urged not to withdraw before 11 June. 41. Mr Toth’s trial opened on the appointed day, but the court adjourned it sine die at the end of the first hearing, for further inquiries to be undertaken, and appointed a lawyer to act for him. The transcript of the hearing ran to 116 pages. 42. On 16 June 1986 the applicant again applied for his release, claiming that he had a permanent place of residence in Austria and confirmation of steady employment. 43. His application was dismissed on 25 June by the Ratskammer of the Salzburg Regional Court, then on 9 July by the Linz Court of Appeal where the file had been sent on 3 July. The two courts gave the same reasons as previously. The second gave its decision in private session, "after hearing the submissions of the principal public prosecutor’s office". 44. On 24 July, ten days after the return of the file, the Salzburg Regional Court sought information from the Vienna Regional Court on the matter of the proposed date for B.’s release. On 29 July it requested a German court to communicate to it a decision, which was received on 18 August. 45. Claiming that he was financially and socially integrated and that he lacked the necessary funds to flee, Mr Toth filed a further application for release on 25 July 1986. The Ratskammer of the Salzburg Regional Court dismissed it on 30 July and the Linz Court of Appeal on 20 August, the latter "after hearing the submissions of the principal public prosecutor’s office". The two courts reiterated the grounds given in their previous decisions. 46. On 22 September the Regional Court contacted the Hirtenberg detention centre for information concerning the date of B.’s probable release and his address thereafter. On the same day it sent letters rogatory to the Swiss Federal Police Department and to the District Court of Aschaffenburg (Germany) for information in respect of the witness D. On 15 October the Aschaffenburg District Court replied that it did not know D.’s address. On 20 October the Salzburg Regional Court obtained the address by telephoning Frankfurt prison and requested the District Court of that town to question D. On 25 September the file had been communicated to a court expert, who had lodged his report on J. M. on 8 October. 47. Ruling in private session on 12 November 1986 and giving the same reasons as in its previous decisions, the Ratskammer of the Salzburg Regional Court refused to allow Mr Toth’s application for release of 28 October. 48. On 17 November Mr Toth filed an appeal which was dismissed by the Linz Court of Appeal on 26 November, "after hearing the submissions of the principal public prosecutor’s office". It noted that J. M. had implicated the applicant, who had not succeeded in allaying the suspicions concerning him. For the rest, it reiterated in substance the reasons given in its previous decisions. The file was returned to the Salzburg Regional Court on 1 December. 49. In the meantime, on 12 November, Mr Toth had stated that he wished to dispense with the services of the lawyer appointed to act for him. On 16 December the Bar declared that it saw no reason to appoint another defence lawyer. 50. On 17 November the applicant complained that no date had been set down for the trial hearing. He was informed that the court was waiting for the examination of D. which was to take place on 27 November in the Frankfurt District Court. On 3 December the latter court communicated to the Austrian authorities the transcript of the examination of D. 51. On 12 and 16 December 1986, the trial court requested the police of Dornbirn and Bregenz to provide it with the addresses of B. and S. R.; on 22 January 1987 it sought information on the former from the headquarters of the Salzburg federal police. 52. On 31 December 1986 Mr Toth once again sought his release. The Ratskammer of the Salzburg Regional Court rejected his application on 21 January 1987. 53. A further application for release was submitted to the Ratskammer of the Salzburg Regional Court on 21 January 1987; it was dismissed on 28 January. On 18 February the Linz Court of Appeal allowed the appeal which Mr Toth had filed on 3 February. It took the view that nearly twenty-five months’ detention had significantly reduced the risk of the applicant’s absconding and of repetition of the offences and made it possible to impose more lenient measures. It attached several conditions to the release: an undertaking not to evade the trial and not to go into hiding before the conclusion of the trial or to impede the investigation; it imposed an obligation to choose a permanent place of residence in Austria and to communicate it to the court and to report every two days to the police; his identity papers were provisionally confiscated. The applicant was released on the same day. 54. On 9 July 1987 the Salzburg prosecuting authorities drew up an additional indictment, nine pages long. In it Mr Toth was charged with having, being aided and abetted by S. R., committed other offences of fraud by seeking to cash fraudulently in Germany, Austria and Switzerland bad cheques, which had allegedly caused a loss of approximately 800,000 Austrian schillings. These offences were therefore offences punishable by a term of imprisonment of from one to ten years (Article 147 para. 3 of the Criminal Code). The applicant appealed against this new indictment, but his appeal was dismissed by the Linz Court of Appeal on 30 September. 55. The same day an application by Mr Toth to the Salzburg Regional Court concerning the conditions imposed on him was allowed, but only in part. He was authorised to report to the police only once a week. The applicant appealed to the Linz Court of Appeal, but his appeal was dismissed on 4 November 1987. 56. On 22 February 1988 the Regional Court set down the trial for 25 and 26 May. On that last date, it found the accused guilty of aggravated fraud and sentenced him to four and a half years’ imprisonment, the pre-trial detention being automatically deducted from the sentence. The text of the judgment comprised sixty-nine pages. By a judgment of 23 February 1989 the Linz Court of Appeal reduced the sentence to four years. On 6 May 1990 the Salzburg Regional Court stayed enforcement of that sentence. 57. Under Article 180 paras. 1 and 2 of the Code of Criminal Procedure, as amended on 2 March 1983, a person may be held in detention on remand - where there are serious grounds for suspecting him of having committed a criminal offence - if there is a risk of his absconding, of collusion or of repetition of the offences. 58. A risk of absconding may not be presumed if the sentence for which the accused is liable does not exceed five years’ imprisonment, if he leads a normal life and if he has a permanent residence in Austria, unless he has already attempted to evade trial (para. 3). 59. According to Article 193, detention may not last more than two months if it is based only on the danger of collusion, or more than six months if it is based on the other reasons. The second-instance court may however, if the investigating judge or the prosecuting authorities so request and if the complexity or scope of the investigation makes it necessary, extend the detention up to a maximum of three months in the case of suspected collusion, and one year where the other grounds are relied on, or even two if the sentence risked exceeds five years (paras. 3 and 4). In exercising this power the appellate court sits in private session in the absence of the detainee and his lawyer; it gives the principal public prosecutor’s office the opportunity to make submissions (para. 2). Detention founded on a reason other than the risk of collusion alone is subject to no time-limit as soon as the trial has begun (para. 5). 60. The accused may lodge an application for release at any time (Article 194 para. 2). Under Articles 194 and 195, such an application is to be examined by the Ratskammer of the Regional Court in a private hearing, in the presence of the accused and his lawyer; in the appeal court - whether on appeal by the detainee or the prosecuting authorities - the oral proceedings are also conducted in private, in the presence of an official from the principal public prosecutor’s office, but without the accused and his lawyer. Where no such application is lodged, the Ratskammer automatically reviews the detention when it has lasted two months or when three months have elapsed since the last hearing and the accused does not have a lawyer (Article 194 para. 3). The fact that an indictment has become final or that the date for the opening of the trial has been fixed means that no further review hearings are conducted. Decisions concerning the continuation of the accused’s detention are thereafter taken by the Ratskammer in private session (Article 194 para. 4). 61. Detention on remand comes to an end, at the latest, when the accused begins to serve his sentence, from which the time spent on remand is automatically deducted (Article 38 of the Criminal Code). 62. Article 180 para. 4 of the Code of Criminal Procedure requires that detention on remand be not extended where its aims may be attained by one or more more lenient measures. The main measures envisaged in this respect are the following (Article 180 para. 5): undertaking not to abscond, to hide or to leave the place of residence without the authorisation of the investigating judge; promise not to impede the inquiry; obligation to reside in a specific place or to refrain from frequenting a given locality or from consuming alcoholic beverages; duty to inform the police of changes of address; temporary withdrawal of passport or driving licence; lodging of security; provisional appointment of a probation officer. Article 190 makes provision for the possibility of release on bail when the offence in question is punishable by a term of imprisonment of not more than ten years and where detention on remand has been ordered to counter the danger of the accused’s absconding. | 1 |
train | 001-23977 | ENG | NLD | ADMISSIBILITY | 2,004 | VAN DER GRAAF v. the NETHERLANDS | 2 | Inadmissible | null | The applicant, Mr Volkert van der Graaf, is a Netherlands national, who was born in 1969 and is currently serving a prison sentence in the Netherlands. He is represented before the Court by Mr A.A. Franken, a lawyer practising in Amsterdam. The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 May 2002, the applicant was arrested and taken into custody on suspicion of having shot and killed earlier that day Mr Pim Fortuyn, a well-known Netherlands politician and the first candidate on the list of the LPF party for the imminent parliamentary elections on 15 May 2002. The killing of Mr Fortuyn and the applicant's arrest attracted massive national and international publicity and, in the evening of 6 May 2002, riots broke out in The Hague. Many perceived his killing as a direct attack on democracy. On 8 May 2002, the applicant – who refused to give any statement – was transferred to the Forensic Observation and Guidance Unit (Forensische Observatie en Begeleidingsafdeling – “FOBA”), a specialised unit, housed in the remand centre (huis van bewaring) Het Veer, for detainees suffering from mental problems. The applicant was placed in solitary confinement in the FOBA, entailing his segregation from other detainees, no contacts with the outside world, with the exception of his lawyers, and no access to newspapers or other media. In addition, the Governor in charge of the remand centre, on 8 May 2002, ordered that, as from 8 May 2002 at 4 p.m. until 15 May 2002 at 4 p.m., the applicant was to be placed under permanent camera surveillance (permanent cameratoezicht), i.e. 24 hours a day, 7 days a week. The reasons given by the Governor for his decision were as follows: “The offence of which you are suspected has, more than other offences, caused a shock to society. I therefore consider it of great social importance to ensure that you can spend your pre-trial detention in safety. For this, camera surveillance offers the best guarantees. Moreover, we do not know you and consider it necessary to observe you well, before we can assess to what extent you present a suicide danger.” Although the applicant could have filed an appeal against this decision with the Complaints Commission (beklagcommissie) of the FOBA's Supervisory Board (Commissie van Toezicht), he did not avail himself of this possibility. On 16 May 2002, the Governor prolonged the decision to place the applicant under permanent camera surveillance until 29 May 2002 at 4 p.m. The reasons stated were as follows: “The offence of which you are suspected has, more than other offences, caused a shock to society. I therefore consider it of great social importance to ensure that you can spend your pre-trial detention in safety. For this, camera surveillance offers the best guarantees.” On 24 May 2002, the applicant filed an appeal against the decision of 16 May 2002 with the Complaints Commission of the FOBA's Supervisory Board. In addition, the applicant requested the President of the Appeals Board of the Central Council for the Application of Criminal Law and Juvenile Protection (Beroepscommissie van de Centrale Raad voor Strafrechtstoepassing en Jeugdbescherming – “the Appeals Board”) to suspend the decision of 16 May 2002. On 28 May 2002, the President of the Appeals Board accepted the applicant's request and suspended the impugned decision as from 29 May 2002 at 8 a.m. The President held that the Governor's decision was based on a ground that, although in itself understandable, was not contained in Article 33 of Regulation no. 762711/98/DJI, issued by the Minister of Justice on 15 June 1999, on the determination of the rules for stay in and equipment of disciplinary and segregation cells (Regeling houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel – “the June 1999 Regulation”) and, therefore, was in breach of a legal provision. The President further considered: “It can be deduced [from the Governor's submissions] that neither the Governor nor the staff have any concrete indications, on the basis of the applicant's conduct, of the existence of an alarming mental situation. Neither [does the Governor mention] a possible suicide danger [posed by the applicant]. A consultation by [the applicant] with a doctor has not been presented to the President. The President notes that neither the Governor nor the staff is so medically trained that they must be considered capable of forming a sufficient image of [the applicant's] mental condition, also in the light of the nature and seriousness of the suspicion against [the applicant]. It cannot be excluded that a medical examination would throw light on [the applicant's] mental condition, necessitating measures on the part of the institution. As regards the execution of the suspension the following applies: It is in itself habitual to suspend a decision by the Governor with immediate effect. This does not appear to be justified in the present case. In order to enable the institution to adjust the measures currently in force, the decision of the Governor will be suspended as from tomorrow, Wednesday 29 May 2002 at 8.00 a.m.” On 29 May 2002, after having obtained the advice of a psychiatrist, the Governor ordered that the applicant be placed under permanent camera surveillance as from 29 May 2002 at 4 p.m. until 5 June 2002 at 4 p.m. The Governor considered that the seriousness of the offence of which the applicant was suspected, and the reaction in society to this offence, justified the prevention of any risk of suicide or other harm to the applicant's physical and mental condition, that it had not been established that such risks did not exist and that camera surveillance, as a preventive measure, was necessary and formed the most adequate tool. On 31 May 2002, the applicant appealed against this decision to the Complaints Commission of the Supervisory Board, requesting it to examine his appeal together with that brought on 24 May 2002 against the decision of 16 May 2002. On the same day, the applicant requested the President of the Appeals Board to suspend the decision of 29 May 2002. Also on 31 May 2002, the Governor informed the Appeals Board that the applicant had been transferred to another remand centre that same day and that, therefore, suspension of his decision would no longer serve any purpose. On 3 June 2002, the President of the Appeals Board rejected the applicant's request of 31 May 2002 because, as a consequence of the applicant's transfer to another remand centre, the validity of the impugned decision had ended on that day. The President considered that, in these circumstances, the applicant no longer had any interest in a positive decision on his request. In its decision of 10 June 2002, after a hearing held on 3 June 2002, the Complaints Commission declared inadmissible for having been lodged out of time the applicant's complaint against the decision of 16 May 2002, but accepted as well-founded the applicant's appeal against the decision of 29 May 2002. It noted that, according to the psychiatrist's advice to the Governor, the applicant did not present any signs of a mental disorder but that a “balance suicide”, not based on an illness but on a conscious, calculated and personal choice, could not be excluded. It further noted that the Governor had based the impugned decision on this succinct advice without any additional examination having taken place from which it could appear that the risk of a “balance suicide” was actually present. It lastly noted that, in his decision, the Governor had not given any additional reasons demonstrating that, in the applicant's case, there was an increased suicide risk rendering camera surveillance necessary. It held that the reasons stated by the Governor for his decision of 29 May 2002, even if these were understandable, given the reactions in society to the offence at issue, were insufficient for complying with the criterion under Article 33 of the 1999 Regulation that the physical or mental condition of the detainee must render permanent camera surveillance necessary. On 14 June 2002, the Governor filed an appeal against the decision of 10 June 2002 with the Appeals Board. On 30 July 2002, after a hearing held on 16 July 2002, the Appeals Board rejected the Governor's appeal and upheld the decision of 10 June 2002. It considered that: “The second paragraph of Article 33 [of the June 1999 Regulation] provides that an advice of the penitentiary medical officer must be obtained before the Governor decides on camera surveillance. The explanation to this Article states, on this point, that this must take place as only the medical officer is deemed capable of assessing whether visual control is necessary in the interest of the detainee. Where the Governor wishes to place a detainee under permanent camera surveillance, it must be established that camera surveillance is necessary because of the physical or mental condition of the detainee. The circumstance adduced in the reasoning given by the Governor, that it has not been established that a suicide risk did not exist, is insufficient for assuming that necessity. The circumstance, mentioned in the advice drawn up by the psychiatrist for the purpose of the impugned decision, that “balance suicide” cannot be excluded, is general in nature since it does not refer to the specificities of the [applicant's] physical and mental condition. The foregoing is in itself insufficient for concluding a necessity for camera surveillance. This is not altered by taking into account the seriousness and particularities of the offence of which [the applicant] is suspected. The Appeals Board declares the appeal unfounded.” No further appeal lay against this decision. By decision of 31 May 2002, the Governor of the remand centre to where the applicant had been transferred, and where he was no longer held in solitary confinement but under an individual detention regime, ordered that the applicant be placed under permanent camera surveillance from 31 May 2002 at 5.30 p.m. until 7 June 2002 at 5.30 p.m. The reasons stated for this decision were identical to those given for the decision of 29 May 2002. On 5 June 2002, the applicant filed an appeal against the decision of 31 May 2002 with the Complaints Commission of the Supervisory Board. On the same day, he requested the President of the Appeals Board to suspend the decision of 31 May 2002. Also on 7 June 2002, after having heard the applicant and on the basis of the psychiatrist's report, the Governor decided to prolong the order to place the applicant under permanent camera surveillance until 14 June 2002 at 5.30 p.m. The reasons for this decision were stated in the following terms: “I have noted that you, during the conversation on 6 June 2002 when discussing the topics of prospects for the future and perception of the period until trial, you showed emotion and got watery eyes. In the conversation with me you stated “that it is maybe also the best for you.” The explanation you gave for making this statement was that you did not refer to yourself but gave it as an example that persons in a particular situation can think that suicide is the best. I have received a letter from your lawyer in which he expresses concern about your physical and mental well-being. In this respect, he further asks for consideration of the contents of your daytime programme as you have no contact with co-detainees. The seriousness of the offence of which you are suspected and the reaction in society which this offence has caused, justifies that the realisation of any risk of suicide or other harm to your physical and mental condition must be prevented. It has not been established that, in your case and noting the emotion shown and statement made by you, as well as the contents of your lawyer's letter, these risks are not at all present. Camera surveillance for prevention of the realisation of the above-cited risks is necessary and is also the most adequate tool.” On 12 June 2002, the applicant filed an appeal against this decision with the Complaints Commission of the Supervisory Board and requested it to examine this appeal together with his appeal of 5 June 2002 against the decision of 31 May 2002. In its decision of 19 June 2002, after a hearing held on 14 June 2002, the Complaints Commission rejected the applicant's appeals of 5 and 12 June 2002, holding: “Pursuant to Article 5 § 3 of the Prisons Act 1999 (Penitentiare Beginselenwet), taken together with Article 23 of [this] Act, the Governor has the power to order measures (ordemaatregelen), provided these are necessary in the interests of the order or security in the institution or the undisturbed execution of the deprivation of liberty. Amongst such measures must also be understood that of camera surveillance. Camera surveillance is a very drastic measure, that seriously restricts the freedom of movement of the detainee within the institution and at no moment allows him the possibility of “being on his own”. This measure is thus only to be applied as an ultimate means of guarding a detainee. The Complaints Commission must now determine whether the decision of the Governor, in balancing all relevant interests and circumstances, must be considered as unreasonable or unfair. The Complaints Commission puts first the seriousness of the fact of which [the applicant] is suspected and the reaction that fact has caused in society, which lead to the conclusion that a suicide [of the applicant] will (also) affect order and security in the penitentiary institution. This element justifies measures to prevent [the applicant's] suicide. The Board further takes into account that suicide is difficult to predict. As to the question how far such measures may go, it is true that the applicant has not shown signs indicating a mental disorder [usually] ... associated with an increased suicide risk, but [the applicant's] detention regime has changed on 31 May 2002 in that he can take notice via the media, for the first time since his arrest, of the reactions in society to the act of which he is suspected and he may receive visits. As it cannot be excluded that the applicant, following this change ... is exposed to great pressure, the possibility of a 'balance-suicide' must be taken into account and the Governor's decision to apply permanent camera surveillance, in balancing all the interests and circumstances involved, cannot be regarded as unreasonable or unfair. The appeal will therefore be declared unfounded in both cases. The above does not signify that, in unchanged circumstances, camera surveillance will automatically remain justified. When the new situation in which [the applicant] finds himself is stabilised, the conclusion must be that, in unchanged circumstances, camera surveillance is no longer called for, and thus must be considered as unreasonable. ” On 21 June 2002, the applicant filed an appeal against this decision with the Appeals Board. In its decision of 30 July 2002, following a hearing held on 16 July 2002, the Appeals Board accepted the applicant's appeal, quashed the decision of 19 June 2002 and declared well-founded the applicant's appeals of 5 and 12 June 2002. It held as follows: “[The applicant] is detained ... under an individual detention regime. According to the explanatory notice to Article 11 of the Regulation, on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, no. 5042803/00/DJI, the individual detention regime is to be considered as a form of detention which lies between segregation and restricted community. As [the applicant] is detained under an individual detention regime, the [June 1999 Regulation] does not apply. In the absence of a specific statutory basis, the question arises whether the general rules governing measures, and in particular Article 5 § 3 of the Prisons Act 1999 in conjunction with Articles 23 and 24 of the Prisons Act 1999, offer a sufficient statutory basis for camera surveillance against the wishes of the detainee. Article 5 § 3 of the Prisons Act 1999 provides as follows: “The Governor is, in so far as this is necessary in the interests of maintaining order or security in the institution or the undisturbed execution of the deprivation of liberty, competent to give orders to detainees. The detainees are obliged to comply with these orders.” In Part 12 of the Explanatory Memorandum to the Prisons Act 1999 ... in part b) on ordering measures, the following is stated: “The package of measures at the disposal of the Governor is greater. In the interests of order it can indeed be necessary to give indications to detainees that are less far-reaching in nature than those cited above and therefore do not have to be equipped with extra legal guarantees. The above-cited Article 5 § 3 offers a sufficient basis for taking such measures.” The general rules governing the ordering of measures offer an insufficient basis for applying camera surveillance. In this context, it is important to note that camera surveillance is a very far-reaching measure of which it cannot be said that this follows more or less from the (nature of the) deprivation of liberty. In this light it is understandable that, to the extent that camera surveillance in a cell is allowed, an explicit legal basis is foreseen [in the June 1999 Regulation]. It goes too far to extend the cases in which camera surveillance is allowed beyond that explicit legal basis. In view of the above, the Appeals Board is of the opinion that, when the Governor took the impugned decisions, the legal basis for imposing and prolonging camera surveillance was lacking. It will therefore declare the appeal founded. It will in a separate decision, after having heard the Governor, determine whether the applicant should be awarded any compensation.” No further appeal lay against this decision. By decision of 14 June 2002, the Governor prolonged the camera surveillance order until 28 June 2002 at 5.30 p.m., stating that the considerations and the situation that were decisive for the decision taken on 7 June 2002 had remained unchanged without any prospects of change in the near future. On 17 June 2002 the applicant filed an appeal with the Complaints Commission of the Supervisory Board against the decision of 14 June 2002 and, on the same day, requested the President of the Appeals Board to suspend the decision of 14 June 2002. On 20 June 2002 the President of the Appeals Board rejected the applicant's request to suspend the decision of 14 June 2002, considering that the applicant's situation had not materially changed since 7 June 2002. In a subsequent decision taken on 28 June 2002, the Governor prolonged the camera surveillance order until 12 July 2002 at 5.30 p.m., stating that the considerations and the situation that were decisive in the decision taken on 14 June 2002 had remained unchanged. The Governor further stated that he had received information from the Detainee Intelligence Information Service (Gedetineerde Recherche Informatiepunt – “GRIP”) from which it could be concluded that the applicant might undertake a suicide or escape attempt. On 1 July 2002 the applicant filed an appeal with the Complaints Commission of the Supervisory Board against the decision of 28 June 2002 and, on the same day, requested the President of the Appeals Board to suspend the decision of 28 June 2002. On 4 July 2002 the President of the Appeals Board accepted the applicant's request and ordered that the decision of 28 June 2002 be suspended as from 5 July 2002 at 2 p.m. The President held that the Governor's decision did not comply with the legal rules, as the requirement of a regular assessment of the necessity of camera surveillance by a psychologist of the penitentiary institution had not been respected. No such assessment appeared to have been made since 7 June 2002. In the absence of such an assessment, the President considered that he could no longer assume that the applicant's situation had not materially changed. In order to allow the Governor to consider further measures, the President decided that the suspension of the decision of 28 June 2002 was only to take effect on 5 July 2002. In its decision of 11 July 2002, following a hearing held on 5 July 2002, the Complaints Commission rejected the applicant's appeal against the decision of 14 June 2002, and accepted his appeal against the decision of 28 June 2002, holding as follows: “At the time of the decision of 14 June 2002 to prolong camera surveillance, the [applicant] has been detained for two weeks under the new [detention] regime. This period is too short to already speak about a stabilised situation, referred to in the decision of 19 June 2002 and, on the same grounds as [that] decision, the appeal [against the decision on 14 June 2002] is declared unfounded. On 28 June 2002, at the time of the second impugned decision, [the applicant] had extensively taken notice of the reactions in society to the deed of which he is suspected, and had received several visits of his family, whom he perceives as a support for him. Since no further facts or circumstances have appeared indicating the contrary, it must be assumed that his situation on 28 June 2002 had stabilised, within the meaning of the decision of 19 June 2002. To this extent and unlike what is stated in the Governor's decision of 28 June 2002, the situation has changed since 14 June 2002. The other circumstances on 28 June 2002 have, in the opinion of the Complaints Commission, remained the same in comparison with those at the time of the decision of 19 June 2002. There was no other psychiatric report available than that which had already been taken into account in the decision of 19 June 2002. As to the GRIP information, the Complaints Commission ... is of the opinion that this information is too general and vague to enable the conclusion that the [applicant's] physical or mental condition is such that it renders camera surveillance necessary. The information is also not of such a nature that it is possible to speak about changed circumstances as is meant in the decision of 19 June 2002. Therefore it must now be concluded, on the one hand, that the new situation has ... stabilised and that, on the other, the other circumstances have remained the same. Taking account of all pertinent interests and circumstances, as indicated in the decision of 19 June 2002, the conclusion must therefore be that camera surveillance is no longer necessary, and must be considered unreasonable. The appeal [against the decision of 28 June 2002] will therefore be declared wellfounded.” Both the applicant and the Governor filed an appeal against this decision with the Appeals Board: the applicant against the rejection of his appeal relating to the decision of 14 June 2002, and the Governor against the decision to accept the applicant's appeal relating to his decision of 28 June 2002. The Governor withdrew his appeal on an unspecified date. On 12 September 2002, after a hearing held on 20 August 2002, the Appeals Board accepted the applicant's appeal against the decision of 14 June 2002 on the same grounds as set out in its decision of 30 July 2002. No further appeal lay against this decision. On 5 July 2002, the Governor ordered that the applicant be placed under permanent camera surveillance from 5 July 2002 at 2 p.m. until 19 July 2002 at 2 p.m. The reasons stated for this decision were as follows: “On 5 July 2002 an amendment has been introduced in the Regulation on requirements for accommodation in penitentiary institutions (Regeling eisen verblijfsruimte penitentiaire inrichtingen – “the January 1999 Regulation”) in relation to camera observation. You are suspected of an offence that has caused great social unrest. Social unrest will arise again should you escape or if your health would be harmed. Although I realise that camera observation is a drastic measure, I do wish to avoid every risk of causing social unrest and for this reason do not give you the benefit of the doubt.” On 8 July 2002, the applicant filed an appeal against this decision with the Complaints Commission of the Supervisory Board. On the same day, he requested the President of the Appeals Board to suspend the decision of 5 July 2002. On 10 July 2002 the President of the Appeals Board rejected the applicant's request. Having noted the amended provisions of the January 1999 Regulation, the President considered that the decision was not in violation of any legal rule applicable to the remand centre, and it could not be regarded as so unreasonable or unfair that it gave rise to an urgent interest to suspend its further execution. On 11 July 2002 the applicant started a hunger strike in protest against being placed under permanent camera surveillance. In its decision of 25 July 2002, following a hearing held on 22 July 2002, the Complaints Commission rejected the applicant's appeal of 8 July 2002. Its decision, in so far as relevant, reads as follows: “The Complaints Commission does not consider the [January 1999 Regulation as amended on 5 July 2002] to be in violation of Article 3 of the [Convention]. Contrary to the argument raised by [the applicant], observation by means of a camera does not fall under this Article since, according to the prevailing view, such observation may be called for under [certain] circumstances. Also contrary to [the applicant's] argument ..., there is no breach of Article 8 of the [Convention]. It concerns here a measure prescribed by law that, inter alia, has been prompted to prevent great social unrest. Such an aim can be regarded as necessary in a democratic society. On the above grounds, there is no breach of a rule that applies in the institution. Balancing of interests It must first be said that the balancing of interests on the basis of the [January 1999 Regulation as amended on 5 July 2002] is different to ... that carried out in the previous decisions of this Complaints Commission concerning the present subject matter. In the decision of 5 July 2002, the [Governor] has struck a balance between, on the one hand, the fact that camera surveillance interferes with the private sphere of [the applicant] and, on the other, the social unrest that can arise if [the applicant] would escape or his health harmed. On the basis of this balance, he decided to apply camera surveillance. Account is taken of the fact that [the applicant] is suspected of a very serious fact, which has caused serious social unrest, which unrest still continues. Given, furthermore, that every development concerning [the applicant] attracts new social attention, whereas, on the other hand, (an attempt to commit) suicide by [the applicant] cannot be wholly excluded, it cannot be said that this decision is unreasonable or unfair. In this, it must also be taken into account that, at present, an infrared camera has been installed in [the applicant's] cell, so that [the applicant] is not disturbed during the night more seriously than is usual for detainees in respect of whom it is expected that a long prison sentence will be demanded. The appeal will therefore be declared unfounded.” On 30 July 2002, invoking inter alia Articles 3 and 8 of the Convention, the applicant filed an appeal against this decision with the Appeals Board. On 12 September 2002, following a hearing held on 20 August 2002, the Appeals Board rejected the applicant's appeal and upheld the decision taken by the Complaints Commission. The Appeals Board's decision, in so far as relevant, reads as follows: “Applying camera surveillance means a considerable interference with the privacy of [the applicant]. For such an interference ... in the light of Article 8 of the Convention, a legal basis is required. ... The manner in which the possibility for the interference with privacy, by means of permanent camera observation, has been given legal shape, is not in breach of any legal rule, including Article 8. Contrary to what has been argued by the applicant, it is not required that a regulation on camera observation must be set out in a formal Act [of Parliament]. The fifth paragraph of Article 16 of [the Prisons Act 1999] offers a sufficient basis for camera observation, as set out in the [amended January 1999] Regulation. ... The lawfulness of the concrete application of the [amended January 1999] Regulation has been challenged on various grounds. In the first place, the requirements of prior consultation and accompaniment during the camera observation have allegedly not been complied with. Contrary to what has been argued [by the applicant], Article 10b § 1 (d) of the [amended January 1999] Regulation does not require the prior opinion of a behavioural expert or the institution's medical officer, and it also does not require that a behavioural expert or doctor informs himself once a week of the detainee's condition. This does not affect the desirability of medical supervision. It has further been argued that camera observation has been ordered without having balanced the interests and, in addition, that there is no necessity to apply camera observation as it is ineffective. It has been sufficiently established that, in the application of the measure, a balancing of interests has taken place. This is expressed in the reasoning of the decision. Also when taking into account that camera observation signifies a considerable interference with [the applicant's] privacy, decisive importance could be given in the present case to very great social unrest that would entail an escape or harm to health. In reasonableness it cannot be said that such an observation is ineffective, even when taking into account that camera observation cannot prevent the unavoidable. Camera observation is in so far in any event effective and thereby also necessary in that it shapes the obligation of the penitentiary authorities to strive for the prevention of great social unrest on account of escape or harm to [the applicant's] health. It has further been argued that the application of camera surveillance would be in violation of Article 3 [of the Convention]. In this connection [the applicant] has argued that it constitutes inhuman and/or degrading treatment as the situation in which he finds himself entails 'mental suffering'. [The applicant] has relied in particular on a letter by [his private] general practitioner S. of 18 August 2002 in which [the applicant's] physical and mental health state is discussed. It is true that the application of camera observations does signify a considerable interference with [the applicant's] privacy but, in the opinion of the Appeals Board, it does not give rise to inhuman or degrading treatment in the sense of Article 3 [of the Convention]. In this it must be taken into account that, although it is true that [he] is being permanently observed, the applicant is fully provided, within the limits of detention, with the other regular facilities, including for instance the possibility to receive visits. No further appeal lay against this decision. On 19 September 2002, after mediation by the President of the Supervisory Board of the remand centre, the applicant ended his hunger strike and, shortly afterwards and in accordance with agreements made, the applicant's surveillance by camera was reduced to the evening and night time. On 19 November 2002, after having availed himself of his right to remain silent since his arrest on 6 May 2002, the applicant gave a first statement to the investigating judge (rechter-commissaris) in respect of the facts of which he was suspected. He gave further statements to the investigating judge on 20 and 22 November 2002. On 27 March 2003 the applicant was ordered to appear before the Amsterdam Regional Court (arrondissementsrechtbank) in order to stand trial on charges of, inter alia, murder. The first hearing before the Amsterdam Regional Court was held on 9 August 2002. In its judgment of 15 April 2003, the Amsterdam Regional Court convicted the applicant of, inter alia, murder and sentenced him to eighteen years' imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal (gerechtshof). By judgment of 18 July 2003, the Amsterdam Court of Appeal quashed the judgment of 15 April 2003, convicted the applicant of, inter alia, murder and sentenced him to eighteen years' imprisonment. In the determination of its sentence, the Court of Appeal considered that the circumstances of the applicant's detention, in particular his having been subjected to camera surveillance for several months and the modalities of his individual detention regime, were to be regarded as extremely burdensome – although these measures were necessary and justified – and were to be taken into account as a mitigating factor in the determination of sentence. It noted certain mitigating factors: the applicant had no criminal record; his conditions of detention were extremely burdensome and certain aspects of the publicity which the applicant and his trial had attracted were unacceptable and had harmed the applicant. However, these factors weighed little against the seriousness of his conviction for having murdered a politician shortly before parliamentary elections and without him having shown insight into the reprehensible nature of this offence. The applicant did not avail himself of the possibility to file an appeal in cassation against this decision with the Supreme Court (Hoge Raad). Article 15 § 4 of the Constitution (Grondwet) provides as follows: “A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty.” According to Article 16 § 5 of the Prisons Act 1999 (Penitentiare Beginselenwet), the Minister of Justice is to determine the rules on the provision of accommodation for detainees. On this basis, the Minister of Justice issued the Regulation on the requirements for accommodation in penitentiary institutions (Regeling eisen verblijfsruimte penitentiaire inrichtingen – “the January 1999 Regulation”) which entered into force on 1 January 1999. Pursuant to Article 24 § 7 of the Prisons Act 1999, the Minister of Justice must also determine further rules on the stay in and equipment of disciplinary and segregation cells, which rules must deal in particular with the rights of detainees during their stay in a segregation cell. On this basis, the Minister of Justice issued the relevant rules on 15 June 1999 (Regulation no. 762711/98/DJI - Regeling houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel – “the June 1999 Regulation”). Article 33 of the June 1999 Regulation, in so far as relevant, reads as follows: “1. The Governor can, if the physical or mental condition of the detainee renders this necessary, order that the detainee will be observed day and night by means of a camera. 2. Before taking a decision to this effect, the Governor will seek the advice of the penitentiary medical officer, unless this advice cannot be awaited. In that case, the Governor will obtain that advice as soon as possible after his decision. ...” On 5 July 2002 the Minister of Justice issued an amendment, with immediate effect, to the January 1999 Regulation, introducing the possibility to place detainees, who are not being held under a disciplinary or segregation regime but under an individual detention regime, under permanent camera surveillance. The new provisions, in so far as relevant, read as follows: “Article 10a 1. Accommodation may be equipped with an observation camera. 2. The camera will be fitted in such a manner that observation of the entire room is possible. Article 10b 1. The Governor can decide that the detainee, who is being held under an individual detention regime within the meaning of Article 22 of the [1999 Prisons] Act or who is being held in an extra security institution within the meaning of Article 13 § 1 (e) of the [1999 Prisons] Act, will be observed day and night by means of a camera: a. where this is necessary in the interests of maintaining order or security in the institution; b. where this is necessary for the undisturbed execution of deprivation of liberty; c. where this is necessary in connection with the mental or physical condition of the detainee; d. if escape or harm to the detainee's health could give rise to great social unrest, or where this could cause serious damage to the relations between the Netherlands and other States or with international organisations. 2. Before deciding to apply camera observation under the first paragraph (c), advice on this matter must be obtained from a behavioural expert or the institution's medical officer, unless this advice cannot be awaited. In that situation the Governor shall obtain the advice as soon as possible after his decision. 3. The camera observation, referred to in the first paragraph, shall last for two weeks at most. The Governor may prolong camera observation by periods of two weeks each time, if he has concluded that the necessity thereof continues to exist. 4. Articles 57 [obligation to hear the detainee] and 58 [decision must be in writing and contain reasons] of the [1999 Prisons] Act apply by analogy. The institution's Supervisory Board and the institution's medical officer will be informed without delay of a decision to apply camera observation or a prolongation thereof. Article 10c The institution's medical officer or the behavioural expert attached to the institution shall inform himself, at least once a week, of the condition of the detainee who is being observed day and night by means of a camera.” The explanatory notice to the new Article 10a, b and c states as follows: “The general part of the explanatory notice to the original Regulation states that, for the detainee, the cell is the place where during his detention his private life takes place and where he should thus be provided with a minimum of comfort and, in so far as possible within the context of detention, guarantees for his privacy. The placement of an observation camera, rendering possible observation of the entire cell for 24 hours a day, forms a serious interference with the privacy of the detainee. Nevertheless, situations may be envisaged in which such interference is justified. In the [June 1999 Regulation], camera observation during a stay in a disciplinary or segregation cell is rendered possible if the physical or mental condition of the detainee renders this necessary. The necessity in view of the physical or mental condition of the detainee then applies as an extra requirement, in addition to the grounds that can justify a stay in the disciplinary or segregation cell. These grounds are set out in Article 24 § 1 taken together with Article 23 § 1 of the [1999 Prisons] Act. It has appeared in practice that camera observation may also be necessary when the detainee does not stay in a disciplinary or segregation cell. The [present] Regulation limits those situations to those in which the detainee is being held under an individual detention regime or in an extra security institution. In these cases camera observation may be applied where this is necessary in the interests of maintaining order and security in the institution or the undisturbed execution of the deprivation of liberty. Furthermore, the physical or mental condition of the detainee may give cause for observing him by means of a camera. Moreover, circumstances that do no directly flow from the detainee or his behaviour or physical condition may give cause for camera observation, in particular situations in which the offence of which the detainee is suspected or has been convicted has caused great public unrest, or has caused a stir in the relations of the Netherlands with other States and with international organisations. To be envisaged are serious violent or sexual crimes, as well as offences against the security of the State, royal dignity, heads of friendly States and other internationally protected persons, offences concerning the exercise of State obligations and powers, and terrorist offences. Political crimes may be concerned, but the crimes do not necessarily have to have been committed with a political aim. The decisive element is that the social unrest or stir in the relations of the Netherlands with other States and with international organisations caused [by the offence] transposes the maintenance of public order or the security in the institutions and the undisturbed execution of the deprivation of liberty to [another level]. Something happening to the detainee during detention, or his escape, could have unforeseen and serious consequences for public order, the democratic legal order or for relations with other States or international organisations. The legal position of a detainee, in particular his right to privacy already subjected to restrictions by the detention, should in this light be balanced against the interests of preventing escape or possible harm to his health in whatever form. This balancing of interests should be set off against the knowledge that research has shown that there are different circumstances open to objectification that can be considered as risk moments for suicide. For example, apart from segregation, the first period of detention is indicated as a risk moment, as well as not being allowed to have contacts with codetainees on grounds of restrictions imposed by the investigating judge. It is also of importance that by far not all cases show prior signals that a detainee wants to commit suicide. Literature indicates that suspects or persons convicted of violent and sexual crimes are overrepresented in the suicide statistics, as well as persons having been found guilty or who are suspected of murder or manslaughter and who are facing life imprisonment. The social unrest or stir in the relations of the Netherlands with other States and international organisations caused [by the offence] can entail a certain pressure on the detainee that can and may play a role in balancing the interests involved. The threat of possible harm [to the detainee] may also come from outside. Then information from the Detainee Intelligence Information Service can play an important role in the considerations for camera observation. The decision [to place a detainee under camera observation] is valid for a period of two weeks, but can be prolonged by the Governor for periods of the same duration each time. It is conceivable that the camera observation will place a great psychological pressure on the detainee. For this reason, the institution's medical officer or behavioural expert must see the detainee at least once a week.” | 0 |
train | 001-60913 | ENG | ITA | CHAMBER | 2,003 | CASE OF CORDOVA v. ITALY (No. 1) | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Not necessary to examine Art. 14;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Christos Rozakis | 9. The applicant was born in 1936 and lives in Naples. 10. In 1993 he worked as a prosecutor at the Palmi public prosecutor's office. In the exercise of his functions, he had investigated a certain Mr C. The latter had had dealings with Mr Francesco Cossiga, a former Italian President, who at the end of his term of office had become a senator for life in accordance with Article 59 § 1 of the Constitution. 11. In August 1993 Mr Cossiga sent the applicant a fax and two letters. He said he was making him a gift of the copyright in his written, telephone and oral communications with Mr C., “including for the purposes of their stage and film exploitation” (“anche ai fini di eventuale sfruttamento teatrale e cinematografico”), “by way of a very modest contribution towards the costs which [he would] be incurring for [his] transfer from Palmi to Naples” (“come modestissimo contributo alle spese che Ella dovrà affrontare per il suo trasferimento da Palmi a Napoli”). Mr Cossiga also told the applicant that he was going to send him a small wooden horse and a tricycle “for the leisure pursuits which [he] believe[d] [he was] entitled to enjoy” (“per quegli svaghi que credo abbia diritto a concedersi”). Mr Cossiga then actually sent the little wooden horse and the tricycle to the applicant together with a detective game called “Super Cluedo”. With the parcel came the following message: “Have fun, dear Prosecutor! Best wishes, F. Cossiga” (“Si prenda un po' di svago, gentile Procuratore! Cordialmente F. Cossiga”). 12. The applicant filed a complaint against Mr Cossiga, alleging that the communications and gifts described above had damaged his honour and reputation. Proceedings were then brought against Mr Cossiga for having insulted a public official. 13. On 12 July 1996 Mr Cossiga was committed for trial before the Messina District Court. On 23 June 1997 the applicant joined the proceedings as a civil party. 14. In the meantime, the President of the Senate had informed the District Court that the Parliamentary Immunities Commission (Giunta ... delle immunità parlamentari) proposed that the Senate should declare that the acts of which Mr Cossiga was accused were covered by the immunity provided for in Article 68 § 1 of the Constitution. 15. By a resolution of 2 July 1997 a majority in the Senate approved the Parliamentary Immunities Commission's proposal. 16. On 23 September 1997 the applicant submitted a statement to the Messina public prosecutor and District Court in which he attacked the Senate's resolution, observing that there was no discernible link between the acts of which Mr Cossiga was accused (which he submitted ought to be construed as a personal quarrel with a prosecutor) and the exercise of parliamentary functions. On that basis, the applicant alleged that the Senate, in applying Article 68 to circumstances not provided for in the Constitution, had encroached on the powers of the judiciary, and requested that the matter be referred to the Constitutional Court to resolve the conflict of State powers. 17. By a judgment on 27 September 1997, the text of which was lodged with the registry on 10 October 1997, the Messina District Court ruled that Mr Cossiga had no case to answer “pursuant to Article 68 § 1 of the Constitution”. 18. The District Court observed that it was for the Senate, whose resolutions were not subject to review by the courts, to determine whether the conditions listed in Article 68 were met. Moreover, it saw no need to raise a conflict of powers, given that the Senate's decision was neither procedurally flawed nor manifestly unreasonable. 19. On 4 December 1997 the applicant requested the Messina public prosecutor to appeal against the judgment of 27 September 1997. This was intended to pave the way for a conflict of State powers to be raised subsequently before the Constitutional Court. 20. By a decision of 13 December 1997, the prosecutor rejected the applicant's request. He observed that the Constitutional Court did not have jurisdiction to quash the Senate's resolution, but only to assess whether the Senate had exercised its power in an arbitrary fashion by improperly encroaching on the powers of the courts. However, the parliamentary papers revealed that the impugned resolution was based on the following reasons: (i) Mr Cossiga had earlier criticised the investigations conducted by the applicant in a parliamentary question; (ii) the acts of which Mr Cossiga was accused should be construed as polite and ironic criticism of that investigation; (iii) according to the case-law of the legislative chambers, the immunity provided for in Article 68 of the Constitution applied to any political opinion expressed by a member of Parliament which could be regarded as an outward projection of parliamentary activity in its strict sense . 21. According to the Messina public prosecutor, those reasons were neither unreasonable nor manifestly arbitrary. 22. Article 68 § 1 of the Constitution, as amended by Constitutional Law no. 3 of 1993, which abolished the need to obtain the consent of Parliament in order to take proceedings against one of its members, reads as follows: “Members of Parliament shall not be required to account for the opinions they express or the votes they cast in the exercise of their functions.” 23. The Constitutional Court has held that a resolution of a legislative chamber stating that the behaviour of one of its members comes within the scope of the above provision prevents any criminal or civil proceedings being brought or continued with the aim of determining the liability of the parliamentarian in question or securing reparation for the damage suffered. 24. If (usually at the request of the parliamentarian concerned) such a resolution is adopted, it may not be quashed by the courts. However, if it considers that the resolution represents an unlawful exercise of the legislative chambers' discretion, a court may raise a conflict of State powers before the Constitutional Court (see the 1988 Constitutional Court judgment no. 1150). The parties to the trial have no such right. 25. The legislative chambers have adopted a broad interpretation of Article 68 § 1, holding it to apply to opinions expressed outside Parliament, even where they are divorced from parliamentary activity as such. This broad interpretation stems from the notion that political opinions expressed outside Parliament represent an outward projection of parliamentary activity and come within the mandate given by the voters to their elected representatives. 26. When it considered the issue of conflicts of State powers raised by the courts, the Constitutional Court first confined its scrutiny to the procedural lawfulness of parliamentary resolutions. It then progressively narrowed the scope of parliamentary immunity, thereby broadening the extent of its scrutiny over the compatibility of parliamentary resolutions with Article 68 of the Constitution. In its judgment no. 289 of 18 July 1998, it ruled that the expression “parliamentary function” (funzione parlamentare) could not be held to cover all the political activities of a member of the Chamber of Deputies or the Senate, because “such an interpretation ... would risk converting an immunity into a personal privilege”. It added that “it would not be right to establish any connection between a number of statements made during meetings, press conferences, television programmes ... and a parliamentary question subsequently addressed to the Minister of Justice ... To hold otherwise [would amount to acknowledging] that no parliamentarian may be held accountable for his or her statements, even if they are grossly defamatory and ... entirely divorced from parliamentary functions or activities”. 27. In its later case-law, which can now be considered well-established, the Constitutional Court held that in the case of opinions expressed outside Parliament, it had to verify whether there was any connection with parliamentary activities. In particular, there must be a substantial connection between the opinions in question and a prior parliamentary activity (see judgments nos. 10, 11, 56, 58, and 82 of 2000, nos. 137 and 289 of 2001, and nos. 50, 51, 52, 79 and 207 of 2002). 28. Article 576 of the Code of Criminal Procedure provides: “The civil party may challenge, via the prosecution's right of appeal, ... the acquittal judgment ... exclusively for the purpose of determining [the accused's] civil liability ...” | 1 |
train | 001-89390 | ENG | BGR | CHAMBER | 2,008 | CASE OF GULUB ATANASOV v. BULGARIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Remainder inadmissible;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. Prior to the events at issue, in the 1980s, the applicant was convicted of theft and served a prison term. Several other sets of criminal proceedings were opened against him, some of which were terminated on the basis that the applicant, who suffered from schizophrenia, was found to be of unsound mind and therefore not criminally liable. 6. After 1990 the applicant spent several years in Germany until his expulsion on an unspecified date. 7. On 27 June 1999 two persons were robbed and murdered in their home in Plovdiv. 8. On 2 July 1999 the applicant was arrested, remanded in custody and charged with two counts of murder. The charges were later amended to robbery aggravated by murder. 9. In the course of the investigation approximately twenty witnesses were examined, some of them repeatedly. The investigator ordered numerous expert reports, including autopsies, analyses of blood stains and tissue, ballistic reports and reports by psychiatrists on the applicant's mental health. Several witness confrontations and identity parades were organised and other evidence was collected. 10. For several months in 2000 the case was dealt with by prosecution authorities at a number of levels in relation to the applicant's request for a third psychiatric examination (see paragraphs 29-31 below) and, additionally, on account of divergent views expressed by the investigator and prosecutors as regards the precise legal characterisation of the charges. On 27 December 2000 the Plovdiv Regional Prosecutor's Office submitted to the Regional Court an indictment against the applicant. 11. The trial started in January 2001. During the period when the applicant was deprived of his liberty three hearings were held. The hearing held on 19 February 2001 was adjourned as some of the psychiatric experts who had examined the applicant were absent. The next hearing took place on 8 and 9 May 2001, when the court examined twelve witnesses and twenty experts. Another hearing was held on 3 July 2001. 12. In a judgment of 4 June 2003 the Plovdiv Regional Court acquitted the applicant, holding that the charges against him had not been proven. 13. This judgment was quashed on 29 December 2003 by the Plovdiv Appeals Court, acting on an appeal by the prosecutor, on the basis that, inter alia, the lower court had failed to examine all relevant facts. The case was remitted to the Plovdiv Regional Court for a fresh examination. 14. The proceedings were terminated on an unspecified date following the applicant's death on 31 January 2006. 15. Following the applicant's arrest on 2 July 1999, he was remanded in custody by decision of an investigator and a prosecutor who found on the basis of witness testimony and other evidence that there was a reasonable suspicion as to the applicant's having been involved in the murders committed on 27 June 1999. 16. The applicant spent an unspecified period in the detention facility of the Plovdiv Investigative Service. Between 17 August and 28 September 1999 he was at the Psychiatric Department of Sofia Medical University for a psychiatric examination (see paragraphs 27 and 28 below). 17. On an unspecified date prior to March 2000 he was transferred to Plovdiv prison. 18. On an unspecified date in March 2000, while detained in Plovdiv prison, the applicant underwent a medical examination which detected the presence of a lump in his salivary gland. On 22 June 2000 he was transferred to Sofia and admitted to the Sofia prison hospital for the purpose of surgically removing the lump and analysing it with a view to establishing whether it was cancerous or benign. The applicant refused to undergo surgery and on 24 June 2000 was transferred back to Plovdiv prison. 19. On an unspecified date in June 2000 the applicant appealed against his detention, arguing that he had been unlawfully detained, that he was ill and needed immediate surgery and that there was no longer any risk of his absconding, re-offending or hindering the investigation. 20. On 30 June 2000 the Plovdiv Regional Court examined the applicant and his lawyer in person and dismissed the appeal on the basis that as the applicant had had a previous conviction for a serious wilful offence (theft) and had been charged with murder, there was a risk of his absconding or re-offending. As regards the applicant's health condition, the court noted the medical experts' opinion that the applicant could undergo surgery and receive adequate treatment in the Sofia prison hospital. 21. The applicant appealed stating, among other things, that he did not want to undergo surgery in the Sofia prison hospital because it did not offer appropriate conditions. 22. On 6 July 2000 the Plovdiv Appeals Court decided to release the applicant from custody and place him under house arrest. It held that there was sufficient evidence supporting a reasonable suspicion that the applicant had committed an offence and considered that, as correctly assessed by the Regional Court, there was a real risk of his absconding or re-offending. However, the court took into account the applicant's health. It noted the medical experts' opinion that the applicant might have developed a tumour of the salivary gland and decided that he would have greater freedom to choose the medical treatment he wished to have if placed under house arrest. 23. Following his release from custody the applicant sought and obtained, on 13 July 2000, permission to undergo surgery in a Plovdiv hospital. That was performed on an unspecified date before 26 July 2000, when he was discharged from hospital. 24. In July 2001 the applicant sought his release from house arrest. That was granted by a decision of 23 July 2001 of the Plovdiv Appeals Court on the basis that the proceedings against him risked exceeding a reasonable time. The applicant was released on bail on an unspecified date. 25. In the course of the criminal proceedings it was established that the applicant had been suffering from paranoid schizophrenia since 1984 and had been treated in psychiatric hospitals in 1985, 1986, 1988 and 1989. 26. The investigator in charge of the case ordered an expert report on the applicant's mental health. He was examined on 22 July 1999. The experts, relying mainly on the history of his illness, concluded that the applicant was of unsound mind. 27. The investigator ordered a second, more detailed examination by a larger group of experts, and, for that purpose, the applicant's placement at the Psychiatric Department of Sofia Medical University. 28. The applicant stayed at the psychiatric hospital between 17 August and 28 September 1999, when he was remanded in custody. In their ensuing report submitted on 19 October 1999 the medical experts considered that the applicant suffered from a form of schizophrenia but was not of unsound mind within the meaning of the Penal Code. The report mentioned that the applicant's stay in hospital had been effected “under the conditions of pre-trial detention”. 29. In January 2000, and again at a later date, the applicant and his lawyer insisted on a third detailed psychiatric examination in view of the divergent conclusions of the first two examinations. The investigator initially refused and the applicant appealed. By decisions of 15 and 20 March 2000 of the prosecuting authorities, the applicant's request was granted. 30. On 13 July 2000 the prosecutor in charge of the case wrote to the investigator stating that he did not object to a third examination and that the applicant could be placed in a psychiatric hospital for a period of up to thirty days. 31. On 3 August 2000 the investigator in charge of the case ordered a third psychiatric report to be prepared by a commission of eleven experts and, accordingly, the applicant's placement at the Psychiatric Department of Sofia Medical University. The investigator considered that the length of the applicant's stay was to be decided by the experts. The order referred to Article 117 of the Code of Criminal Procedure, which concerned the commissioning of expert reports. No reference was made to Article 155 of that Code (see paragraphs 34-37 below). 32. The applicant, who was under house arrest at that time, spent twenty-six days (from 8 August to 4 September 2000) at the Psychiatric Department of Sofia Medical University. In their ensuing report, eight of the experts came to the conclusion that despite his mental illness the applicant had been of sound mind at all relevant times and the remaining three experts considered that he was of unsound mind within the meaning of the Penal Code. 33. The experts also stated that the applicant had been placed at the Psychiatric Department “under conditions of house arrest” and had complied “relatively strictly” with the ensuing restrictions. They stated that towards the end of his stay in the hospital he had occasionally been tense and had made statements that he had been “fed up” and would commit suicide or “blow up the hospital”. 34. The relevant legislation at the time of the events in the present case was the Code of Criminal Procedure (“CCP”) of 1974 (abrogated with effect from April 2006). 35. Until 1 January 2000, Article 155 of the CCP provided that confinement in a psychiatric institution for the purpose of effecting a psychiatric examination of a person charged in criminal proceedings could be ordered by a prosecutor or a court. In practice, such measures were ordered by prosecutors where the case was pending at the investigation stage and by judges where the case was pending before a court. 36. This provision was amended with effect from 1 January 2000. The amended text required a judicial decision in all cases and also introduced a thirty-day maximum period of confinement (subject to not more than one extension) and other procedural guarantees. 37. Article 155 was in a chapter of the CCP entitled “Measures of procedural compulsion”. This chapter contained separate provisions for various such measures – pre-trial detention, house arrest, bail, undertaking not to leave the place of residence, suspension from office, confinement to a psychiatric hospital and several others. The provisions concerning each measure were phrased and structured as separate rules governing separate measures. The same structure was reproduced in the new CCP in force since April 2006. 38. At all relevant times, paragraph 6 of Article 155 provided that the period spent in psychiatric hospital for examination should count as a period of pre-trial detention. The effect of this provision was that persons sentenced to imprisonment could deduct from their prison term the time spent in a psychiatric hospital. 39. The Ministry of Health has issued an instruction for the guidance of health care personnel dealing with persons confined to psychiatric institutions (Инструкция No. 1 за дейността на здравните органи при настаняване на лица в психиатрични стационари по принудителен ред, ДВ бр.бр. 58/1981, 44/1991 и 48/2004). It clarifies, in its sections 4 and 5, that persons in pre-trial detention or serving a prison term are to be placed in facilities for detained persons and held under conditions of detention. The instruction does not mention persons under house arrest. 40. Under Article 181 of the CCP of 1974, decisions of an investigator could be appealed against to a prosecutor and prosecutors' decisions to a higher prosecutor. 41. Under section 2(4) of the Act, the State is liable for damage caused by forced medical treatment ordered by a court if its decision has been set aside for lack of lawful grounds. Under section 2(1) of the Act compensation is available for pre-trial detention set aside for lack of lawful grounds (construed in judicial practice as compensation in cases of acquittal or discontinuation of criminal proceedings). Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). | 1 |
train | 001-101579 | ENG | TUR | GRANDCHAMBER | 2,010 | CASE OF ŞERİFE YİĞİT v. TURKEY | 2 | Preliminary objection dismissed (exhaustion of domestic remedies);No violation of Art. 14+P1-1;No violation of Art. 8 | András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky | 9. The applicant was born in 1954 and lives in İslahiye. 10. She was the partner of Ömer Koç (Ö.K.), a farmer whom she married in a religious ceremony in 1976 and with whom she had six children. Ö.K. died on 10 September 2002. The applicant stated that on that date, while she and her partner had been making preparations for an official marriage ceremony, Ö.K. had died following an illness. 11. On 11 September 2003 the applicant brought proceedings before the İslahiye District Court on her own behalf and on behalf of her daughter Emine seeking rectification of the entry concerning her in the civil status register. She requested that her religious marriage to Ö.K. be recognised and that her daughter be entered in the register as the deceased's daughter. 12. In a judgment of 26 September 2003 the District Court refused the applicant's request concerning her religious marriage but granted the request for Emine to be entered in the register as Ö.K.'s daughter. As no appeal was lodged, the judgment became final. 13. On an unspecified date the applicant requested the Hatay retirement pension fund (“BağKur”) to award her and her daughter Emine a survivor's pension and health insurance cover on the basis of her late partner's entitlement. The fund refused the request. 14. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside. On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court. 15. In a judgment of 21 January 2004 the Hatay Labour Court, in a ruling based on the judgment of the İslahiye District Court, found that the applicant's marriage to Ö.K. had not been validated. Accordingly, since the marriage was not legally recognised, the applicant could not be subrogated to the deceased's rights. However, the court set aside the retirement fund's decision in so far as it related to Emine and granted her the right to claim a pension and health insurance cover on the basis of her deceased father's entitlement. 16. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She argued that the extract from the civil status register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. She explained that in 1976 she had married Ö.K. in accordance with custom and practice. The couple had had six children. The first five children had been entered in the civil status register in 1985 under their father's name, while the last child, Emine, born in 1990, had been entered under her mother's name in 2002. The applicant asserted that, unlike her six children, she had been unable to claim a pension or health insurance cover based on her deceased partner's entitlement. 17. In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment. 18. Article 134 of the Civil Code provides: “A man and a woman who wish to contract a marriage must apply together to the civil status registrar in the place of residence of either one of them. The civil status registrar [who is to perform the ceremony] shall be the mayor in the case of a municipality, or the official whom he or she has designated for the purpose, or the muhtar in the case of a village.” 19. Articles 135 to 144 of the Civil Code lay down the substantive and formal conditions governing the solemnisation of marriage between men and women. 20. Article 143 of the Code reads as follows: “At the close of the [civil] marriage ceremony the official shall issue the couple with a family record book. No religious ceremony may be performed without the family record book being produced. The validity of the [civil] marriage is not linked to the performance of a religious ceremony.” 21. Article 176 § 3 of the Civil Code concerning maintenance payments provides that maintenance in the form of an allowance or periodic payments ceases to be due when the recipient remarries or one of the two parties dies, or if the recipient is living in a de facto marital relationship outside marriage, is no longer in financial need or has an immoral lifestyle. 22. The sixth paragraph of Article 230 of the Criminal Code reads as follows: “Any person who solemnises a religious marriage without having seen the document certifying that a marriage ceremony was performed in accordance with the law shall be liable to a term of imprisonment of between two and six months.” 23. Article 43 of the Code of Obligations concerns the determination of compensation awards depending on the circumstances and the seriousness of the fault. Article 44 of the Code deals with reductions in compensation awards. Article 45 concerns awards for damages following a death: persons deprived of financial support as the result of a death must receive compensation for loss of income. 24. Section 23(b) and (c) of the Social Security Act (Law no. 506) lists the persons eligible for a survivor's pension on the death of a spouse (where a civil marriage has taken place). 25. Sections 32 to 34 of the General Health and Social Security Act (Law no. 5510) set out the circumstances in which the persons entitled under the deceased (where there was a civil marriage) may claim a survivor's pension, and the method used to calculate the amount. 26. The aim of this Law is to safeguard women's social, economic, cultural and political rights and to combat all forms of discrimination against women and improve their level of educational attainment. 27. As its title indicates, this Law (repealed on 16 May 1996) dealt with the recording in the civil status register under the father or mother's name of children born within or outside civil marriage and with the regularisation of the situation of children whose parents had not contracted a civil marriage. The new Civil Code, which entered into force on 8 December 2001, no longer distinguishes between children born within and outside marriage. 28. In a judgment of 28 May 2007 (E. 2007/289, K. 2007/8718), the Twenty-First Division of the Court of Cassation quashed a first-instance judgment on the ground that a woman married in accordance with religious rites should be paid compensation under Articles 43 and 44 of the Code of Obligations following the death of her partner in a work-related accident. 29. In a judgment of 11 September 1990 (E. 1990/4010, K. 1990/6972), the Tenth Division of the Court of Cassation set aside a first-instance judgment awarding compensation to a woman living in a religious marriage following the death of her partner in a work-related accident. After reiterating that marriage was a legal institution, that a religious union between two persons of opposite sex could not be recognised as a marriage and that section 23(c) and (b) of the Social Security Act (Law no. 506) guaranteed compensation only to the children born of a marriage or a union other than marriage, the Court of Cassation ruled that the children were entitled to social security cover following the death of their father, but that the father's partner was not. The court held that in the absence of legislation on the subject, the social security agency could require the woman in question to repay the sums wrongly paid to her after her partner's death. 30. By a judgment of 11 December 2003 (E. 2003/14484, K. 2003/14212), on the basis of Article 176 § 3 of the Civil Code, the Third Division of the Court of Cassation set aside a judgment of the lower court on the ground that a former husband was no longer required to pay maintenance to his ex-wife since the latter was living in a de facto marital relationship with another man, albeit without a marriage certificate, and the couple had a child together. 31. In a judgment of 6 June 2000 (E. 2000/3127, K. 2000/4891) the Fourth Division of the Court of Cassation overturned a criminal court ruling acquitting an imam who had performed a religious marriage ceremony without first checking the document proving that a civil marriage had taken place in accordance with the law. 32. In a judgment of 17 October 1997 (E. 1995/79, K. 1997/479) the General Assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) upheld a first-instance judgment, thereby overturning the judgment of the Tenth Division of the Supreme Administrative Court, on the ground that the children and surviving partner from a religious marriage should be awarded compensation after their father and partner was accidentally killed (by police bullets fired on the fringes of a demonstration). The General Assembly observed that the action had been brought by the surviving partner on her own behalf and that of her children, that four children had been born of the relationship, resulting from a religious marriage, and that following the man's death, the children and their mother had been deprived of his financial support (destekten yoksun kalma tazminatı). It pointed out that, while domestic law did not afford protection to or validate such a union, the couple had had children together whose births had been recorded under the parents' names in the civil status register and the deceased had supported the family financially. Accordingly, it awarded compensation to the children and their mother on account of the man's death. 33. As cohabitation on the basis of religious marriage is a social reality, the courts apply two principles of civil liability in awarding compensation to women whose partner in a religious marriage has died: (a) compensation for pecuniary and non-pecuniary damage (maddi ve manevi tazminat) on the basis of Articles 43 and 44 of the Code of Obligations; (b) compensation for loss of financial support (destekten yoksun kalma tazminatı) following a death, on the basis of Article 45 of the Code of Obligations. 34. In the specific context of Article 176 § 3 of the Civil Code, the legislation refers to couples living together as de facto man and wife without having contracted a civil marriage. In practice, this means religious marriage, and there is no requirement to continue paying maintenance to the other party in the situations contemplated (see paragraph 21 above). However, the Court of Cassation does not award the two types of compensation referred to in the previous paragraph in the case of same-sex or adulterous relationships, which are deemed to run counter to morals (see, for example, the judgment of the Twenty-First Division of the Court of Cassation of 11 October 2001 (E. 2001/6819, K. 2001/6640)). 35. The legislature does not recognise any form of opposite-sex or samesex cohabitation or union other than civil marriage. The domestic courts interpret the law very strictly. The fact that the general principles articulated in the Civil Code and the Code of Obligations are applied cannot be viewed as tacit or de facto recognition of religious marriage. Although the domestic courts award surviving partners compensation on the basis of general principles of civil liability – which cannot be equated with the principles governing social security or civil marriage – they never grant them survivor's pensions or social security benefits based on the deceased partner's entitlement. 36. Under Islamic law, a religious marriage requires the presence of two male witnesses (or one man and two women). The marriage is solemnised simply by the couple exchanging vows in the presence of the witnesses, without the need for a cleric (imam or equivalent) to be present or for an official document to be drawn up. Under the Ottoman empire, following a decision taken by the supreme Sunni religious authority, the Sheikh-ul-Islam, the presence of an imam or a kadı (judge) became compulsory for all marriage ceremonies, on pain of penalties. This practice became widely established, and nowadays the presence of an imam is required. Muslim marriages also include a pecuniary element in the form of a dowry (mahr). 37. Islamic law, save in some specific circumstances (for instance, the death of the husband), recognises repudiation (talâk) as the sole means of dissolving a marriage. This is a unilateral act on the part of the husband, who dismisses his wife and thereby severs the marital bond. It entails the husband explicitly repudiating his wife by saying the required form of words three times to her (for example: “I repudiate you” or “You are repudiated”). 38. The Turkish Republic was founded on a secular basis. Before and after the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937, an amendment to the Constitution according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution and Article 2 of the Constitutions of 1961 and 1982). The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 30-32, ECHR 2005XI). 39. One of the major achievements of the Civil Code was the institution of compulsory monogamous civil marriage between men and women, requiring religious marriages to be preceded by a civil ceremony. The new Civil Code, which entered into force on 8 December 2001, does not cover any forms of cohabitation other than marriage. The national parliament chose not to enact legislation in this sphere. 40. According to the Religious Affairs Directorate (Diyanet İşleri Başkanlığı), imams, who are appointed by the Directorate, are expressly required to verify that the future husband and wife have been married by a civil status registrar. The “religious” ceremony before an imam appointed by the Directorate is a mere formality which entails little solemnity. The civil marriage takes precedence over the religious marriage. 41. Of the thirty-six countries surveyed in a comparative-law study, fourteen (Cyprus, the Czech Republic, Denmark, Finland, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Spain and the United Kingdom) recognise varying forms of religious marriage. Exclusively religious marriages are not recognised and are treated on the same footing as cohabitation in the following countries: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, France, Georgia, Germany, Hungary, Luxembourg, Moldova, Monaco, the Netherlands, Romania, Serbia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine. 42. Of the thirty-six countries surveyed, four (France, Greece, Portugal and Serbia) expressly recognise cohabitation. In other countries, although such arrangements are not expressly recognised, they produce legal effects to one degree or another. This is the case in Austria, Belgium, the Czech Republic, Denmark, Hungary, Italy, the Netherlands, Slovenia and Switzerland. However, the majority of States do not recognise cohabitation at all (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Finland, Georgia, Germany, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Poland, Romania, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom). 43. In twenty-four countries (Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Ireland, Luxembourg, Moldova, Monaco, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine), the national legislation allows the surviving spouse, subject to certain conditions, to claim benefits based on the deceased's social security entitlements. Of these countries, only six (Austria, Belgium, France, Hungary, the Netherlands and Spain) extend this right to cohabitants. In most of the member States of the Council of Europe, only married couples who have contracted a civil marriage qualify for health insurance cover on the death of one of the partners; hence, cohabitants are not eligible. 44. In Denmark, Hungary, the Netherlands, Portugal, Slovenia and Spain a survivor's pension may be awarded to a surviving cohabitant in certain circumstances. In the vast majority of countries which have a survivor's pension, cohabitants are not eligible to receive it. | 0 |
train | 001-99532 | ENG | NLD | ADMISSIBILITY | 2,010 | BOUSANA v. THE NETHERLANDS | 4 | Inadmissible | Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | The applicant, Mr Rachid Bousana, who has both Dutch and Moroccan nationality, was born in 1978 and lives in Amsterdam. He was represented before the Court by Mr P. Plasman, a lawyer practising in Amsterdam. On 2 November 2004 the applicant was placed in pre-trial detention on charges of participating in a criminal organisation with intent to commit acts of terrorism (lidmaatschap van een criminele organisatie met terroristisch oogmerk), namely the so-called “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located). During a hearing held on 22 December 2005 the pre-trial detention was lifted, the Rotterdam Regional Court (rechtbank) considering there were no grounds for it to be continued. On 25 January 2006 the public prosecution service (Openbaar Ministerie) demanded a sentence of 21 months' imprisonment based on the charges as described above with deduction of the time spent in pre-trial detention. On 10 March 2006 the Rotterdam Regional Court acquitted the applicant of all charges brought against him, finding that he could not be considered an active participant in the Hofstad group. In a number of cases of the applicant's co-defendants similar acquittals were pronounced. The public prosecution service did not appeal against that judgment and on 24 March 2006 the Regional Court's judgment became final. Claiming that he had incurred damage as a consequence of the 414 days he had spent in pre-trial detention, the applicant filed a request for compensation on 20 June 2006 pursuant to the provisions of article 89 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering – “CCP”) which provides for the possibility of such compensation. Article 90 CCP provides, in the relevant part and as regards the compensation described in article 89 CCP, that “compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity (gronden van billijkheid) to do so.” The applicant claimed 209,665.45 euros (EUR) in damages to cover both pecuniary and non-pecuniary damage. By decision of 7 November 2006 the Rotterdam Regional Court granted the applicant's claim in part, to the amount of EUR 64,312.50. On 20 November 2006 the public prosecution service appealed against that decision, arguing that there were no grounds in equity to award any damages. In the alternative, the public prosecution service asserted that the applicant should be awarded less. On 8 November 2007 the Court of Appeal (gerechtshof) of The Hague quashed the Regional Court's decision. The Court of Appeal noted that the applicant was one of the acquitted suspects in the criminal case against members of the Hofstad group, and that the members of this group were known to frequent circles close to Mohamed B., the murderer of film director Theo van Gogh: the members of the Hofstad group and Mohamed B. would gather in what has come to be called the “living-room meetings” (huiskamerbijeenkomsten). As regards those meetings, it had been established that they had taken place in a group setting and that all suspects could be counted as members of that group. Paraphrasing the Regional Court's acquittal of 10 March 2006 referred to above, the Court of Appeal observed that the Regional Court had found that all persons suspected of membership of the Hofstad group had in fact belonged to a structured and durable joint co-operation which had had the intent to commit crimes, to incite (violence) and to threaten (with the commission of acts of terrorism) and had established that the group's individual members generally could not have been unaware that the objectives of the group to which they belonged was to commit crimes of this nature. It then went on to consider that the reason for the applicant's acquittal of criminal participation in the group's activities, despite the above-mentioned finding of fact by the Regional Court, was to be found in the circumstance that the Regional Court had not considered the applicant to have been an “active” participant in the organisation. In this connection, the Court of Appeal quoted parts of the Regional Court's judgment of 10 March 2006: “Although all suspects are to be deemed members of the [Hofstad] group, not all of them behaved in such a manner that the group in fact benefited from their membership. Some of them merely tagged along. Those members did, for instance, attend meetings where hatred was incited and which were of an incendiary nature, but they did not contribute to any of that themselves. They also received texts and files of a threatening nature, but did not put them to any use. By behaving in such a manner, these members neither directly nor indirectly aided the realisation of the group's criminal intent. It follows that activities such as attending aforementioned meetings and receiving aforesaid texts cannot be deemed as [criminal] acts of participation [in the Hofstad group's activities] (deelnemingshandelingen). The Court of Appeal went on to hold that this admitted of no other conclusion than that the applicant had taken part in the organisation in the above-mentioned passive manner, in full knowledge of the group's aims, not merely on an incidental basis but moreover without distancing himself from those aims.” Having taken these circumstances into consideration, the Court of Appeal found that there were no reasons in equity to award the applicant the damages he sought. No further appeal lay against this decision. | 0 |
train | 001-5789 | ENG | GRC | ADMISSIBILITY | 2,001 | IERONYMAKIS AND OTHERS AND PLEVRAKI v. GREECE | 4 | Inadmissible | András Baka | The applicants are 104 Greek nationals whose names are held in the Court’s case-file. They are represented before the Court by Mr A. Bafakis, a lawyer practising in Heraklion (Crete). The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were hired by the Greek Air Forces and were put at the disposal of the American forces in Greece, in accordance with an agreement concluded between Greece and the United States. In 1989 the Administrative Arbitration Court of Appeal (Δευτεροβάθμιο Διοικητικό Διαιτητικό Δικαστήριο) of Athens considered that the members of the Association of the Employees of the American Forces (Σύλλογος Εργαζομένων δια τας Δυνάμεις ΗΠΑ) were entitled to a pay rise (decision no. 39/1989). On 9 October 1989 the Minister of Labour vested this decision with executory force (ministerial decision no. 17836/89). However, the applicants were never given the pay rise in question. Between September 1993 and June 1994 the applicants were dismissed from their posts because the American base where they used to work closed down. On 13 June 1997 the Legal Council of State considered, by majority, that the Greek Air Force was under no obligation to employ those dismissed from the American base. However, on 5 November 1997 the Deputy Minister of National Defence refused to accept the opinion of the Legal Council of State. On the contrary, he accepted the opinion of the minority to the effect that the persons concerned remained employees of the Greek Air Force. The applicants remain unemployed. Under the Greek legal system, the failure to conclude a collective labour agreement (συλλογική σύμβαση εργασίας) gives rise to the intervention of the Administrative Arbitration Courts. The final decisions of these courts are regulatory administrative acts (κανονιστικές διοικητικές πράξεις) which, following their approval by the Minister of Labour, have the effect of collective labour agreements. Their non-enforcement gives the interested employees an actionable claim against the State. Several former employees of the American forces (about 150 out of 320) have brought civil actions before the ordinary courts seeking the readjustment of their salaries on the basis of decision no. 39/1989. The courts found in their favour (see, for example, decision no. 201/1989 of the First Instance Civil Court of Heraklion, upheld by decision no. 72/1993 of the Crete Court of Appeal). The State, which had originally appealed in cassation, withdrew its appeals and has already complied with the courts’ judgments. | 0 |
train | 001-4926 | ENG | ITA | ADMISSIBILITY | 1,999 | IMMOBILIARE LIBECCIO | 4 | Inadmissible | Christos Rozakis | The applicant is a company based in Milan. It is represented before the Court by Vito De Honestis, a lawyer practising in Milan. A. The applicant is the owner of an apartment in Milan, which it had let to a company, M.D. Ltd. In a writ served on the tenant on 12 November 1994, the applicant company summoned the tenant to appear before the Milan Magistrate with a view to recovering possession of its apartment on the ground of rent arrears. At the hearing of 28 November 1994, Ms. J.B. appeared before the Magistrate and declared that she was the user of the apartment and the de facto tenant. She thus opposed the termination of the contract and requested a delay in order to pay up the arrears. The Magistrate granted her a delay of 90 days. Ms. J.B. having failed to fulfil this obligation, by a decision of 31 March 1995, which was made enforceable on the same day, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 30 June 1995. On 14 June 1995 the applicant company served notice on the tenant requiring her to vacate the premises. On 11 July 1995 the applicant company served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 28 July 1995. Police assistance was granted twice, and twice revoked on the grounds of the tenant's low income and her committal to find alternative premises, and this despite the complaints which the applicant company addressed to the competent committee of tenants and landlords set up by Law no. 899, on 24 November 1995 and 19 January 1996. The bailiff's attempts to recover possession, on 27 July 1995, 23 October 1995 and 19 January 1996 were unsuccessful. The eviction was enforced by the bailiff on 18 April 1996 with the assistance of the police. B. Relevant domestic law The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court's official reports, §§ 18-35. | 0 |
train | 001-79568 | ENG | AUT | CHAMBER | 2,007 | CASE OF STANDARD VERLAGSGESELLSCHAFT MBH (No.2) v. AUSTRIA | 3 | No violation of Art. 10 | Christos Rozakis | 6. The applicant company is the owner of the daily newspaper “Der Standard”. 7. The Region of Carinthia (Land Kärnten) is the majority shareholder of the Carinthian Electricity Corporation (Kärntner Elektrizitäts-Aktiengesellschaft - “the KELAG”). 8. On 16 June 1999 the KELAG invited all shareholders to the general meeting on 9 July 1999. One item on the agenda was the dismissal and re-election of the corporation's supervisory board (Aufsichtsrat). 9. For the meeting of the Carinthian Regional Government (Landesregierung) of 6 July 1999, Mr Pfeifenberger, the official dealing with financial matters at the material time, prepared a motion inviting the Regional Government to nominate specific persons to the corporation's supervisory board. 10. He retracted this motion before the meeting as, at the request of Mr Haider, Regional Governor (Landeshauptmann) of Carinthia, he had received a legal expert opinion issued by the expert Mr Q. According to this opinion, the Region of Carinthia had no right to nominate the members of the KELAG supervisory board as the members had to be elected. The representative of the Region of Carinthia could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by the Regional Government. 11. Mr Haider had further informed Mr Pfeifenberger that the Legal Department dealing with constitutional matters at the Carinthian Regional Government Office had approved this way of proceeding. Mr Haider further commissioned an expert opinion by the Legal Department. This opinion, issued on 2 August 1999, stated that an interpretation of the relevant provisions did not lead to an unequivocal result. 12. In the meantime, Mr Pfeifenberger – despite the protest of the socialist members of the Regional Government – gave authority to Mr Haider to represent the Region of Carinthia in the general meeting of the KELAG. Mr Haider subsequently represented the Region of Carinthia at the said general meeting on 9 July 1999 and exercised the voting right without having previously obtained a decision by the Regional Government. 13. On 14 July 1999, at the request of the Austrian Social Democratic Party (“the SPÖ”) Mr S, a professor of law of the Graz University, issued a further expert opinion of some seven pages concerning the question of “nomination of members to the KELAG's supervisory board by the Regional Governor of Carinthia”. 14. This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by the Regional Government was not in accordance with federal constitutional law, regional constitutional law and the Regional Government's Rules of Procedure. The opinion finally mentioned the possibility of impeachment of members of the Regional Government before the Constitutional Court by majority vote of the Regional Parliament (Landtag) under Article 142 of the Federal Constitution (Bundes-Verfassungsgesetz) for having culpably breached the law. The Constitutional Court's decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office. The possibility for the Constitutional Court to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under Article 142 § 2 lit d which did not provide for this alternative. 15. On 16 July 1999 the applicant company published an article on its front page of “Der Standard” which read as follows: “Haider has breached the Constitution According to an expert opinion commissioned by the SPÖ at the Graz University, the Regional Governor Jörg Haider has committed a 'breach of law' when appointing the supervisory board of the KELAG. His handling of the Regional Government's Rules of Procedure would be 'illicit, illegal and unconstitutional'. The ÖVP [Austrian People's Party] nevertheless does not want to support an impeachment. It invites Haider to correct the KELAG decisions concerning the personnel, which the FPÖ [Austrian Freedom Party] categorical refuses: 'We refuse to be blackmailed'.” 16. The article continued on page 8 under the same heading with the subtitle: “Expert opinion of professor in Graz accuses the Regional Governor of deliberate misguidance”. It stated as follows: “The Carinthian Regional Governor, Jörg Haider, by acting on his own when appointing the members of the KELAG supervisory board, has clearly committed a 'breach of the laws and the Constitution'. This is the conclusion reached by A.S [name in full], professor at the Graz University, in his expert opinion on constitutional matters which had been commissioned by the Carinthian SPÖ. Haider, by acting on his own authority, has violated the Carinthian Government's Rules of Procedure and has, thus, breached the law and the Constitution. The expert opinion mentions as an aggravating factor that Haider has 'deliberately mislead the Regional Government and ignored the Regional Constitution and the Regional Government's Rules of Procedure'. According to the expert opinion it is therefore possible to institute impeachment proceedings against Haider. If the Constitutional Court convicted Haider, he would be threatened with dismissal from office. The SPÖ leader Helmut Manzenreiter has now given Mr Haider an ultimatum: either the supervisory board should be appointed afresh by the Regional Government as a whole or there should be a tripartite agreement on transforming Kelag into a holding company. Otherwise, the SPÖ would institute impeachment proceedings against Mr Haider before the elections to the National Assembly. Mr Manzenreiter also called on the ÖVP not to 'cover up' Mr Haider's breach of the law. In the Regional Parliament the FPÖ reacted vehemently to the report. The leader of the FPÖ's parliamentary group, Martin Strutz, announced that a second opinion would be commissioned. Mr Haider himself could not hide his anxiety. He leaned back in a relaxed fashion only when the leader of the ÖVP's parliamentary group, Klaus Wutte, made clear that the ÖVP would not support his impeachment. Although the ÖVP intends to await the findings of an 'independent' expert opinion, Mr Wutte nonetheless hinted at the party's strategy: 'Not punishment but rectification of Haider's breach of the law.' In so doing, he both foiled his colleague Georg Wurmitzer and confirmed the viewpoint that there is a 'tacit coalition' between the ÖVP and the FPÖ.' 17. The article was followed by a further text in a small box headed “[The] Constitution stands above stock corporation law” (Verfassung steht über Aktienrecht). This text explained that Mr Pfeifenberger had prepared an act of Government (Regierungsakt) which Mr Haider had, however, retracted as being an “error”. The expert opinion had found that this conduct amounted to deliberate misguidance of the Regional Government. The article further stated that the expert A.S. did not accept Mr Haider's reference to stock corporation law. 18. On 29 July 1999 Mr Haider instituted proceedings for forfeiture (Einziehung) of the article and publication of the judgment under Section 33 of the Media Act (Mediengesetz) with the St. Pölten Regional Court (Landesgericht). 19. On 12 December 2000 the Regional Court found that the article at issue, by stating that Mr Haider had deliberately mislead the Regional Government and had acted in breach of the Carinthian Government's Rule of Procedure and the Regional Constitution, fulfilled the elements of the offence of defamation (üble Nachrede) under Article 111 of the Criminal Code (Strafgesetzbuch). It, therefore, ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections 33 and 34 of the Media Act. It further ordered the applicant company to pay the costs of Mr Haider's counsel. 20. At the trial the court heard the counsel of the applicant company, Mr Haider and Mr Pfeifenberger. It dismissed the applicant company's request to hear all other members of the Regional Government as being irrelevant for the proceedings at issue. 21. The court considered the statements that Mr Haider had breached the Constitution, had deliberately mislead the Regional Government and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof. The court noted that there was, in particular, nothing to indicate that Mr Haider had deliberately misled the Regional Government which, in itself, was a sufficient reason for the ordered forfeiture. The fact whether or not Mr Haider had acted in breach of the Constitution was a matter which had to be decided by the Constitutional Court. 22. The applicant company appealed against this judgment. It submitted inter alia that the statements at issue were value judgments, based on the facts established by the expert opinion of the professor of the Graz University, and contributed to the discussion of a question of public interest. 23. On 3 December 2001 the Vienna Court of Appeal (Oberlandesgericht), having the expert opinion of Mr S. before it as evidence, dismissed the applicant's appeal. It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts. The article at issue had, however, not simply reproduced the opinion given by the expert but had used it for an independent attack on Mr Haider's reputation. The court noted in this regard that the article had not placed the expert opinion in its context, namely that of a legal dispute, but had presented it as an irrevocable verdict on Mr Haider. The court referred in particular to the wording of the article's headings. It further noted that the article had not published any comment of Mr Haider and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore, the article contained statements which were not supported by the expert opinion, namely that Mr Haider had deliberately misled the Regional Government and the reference to the possible impeachment of Mr Haider. The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of the Regional Government who, in the opinion of the majority of the members of the Regional Parliament, had culpably breached the law. The court finally noted that the Regional Court's order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues. This judgment was served on the applicant company's counsel on 21 January 2002. 24. On 4 December 2001 Mr Haider brought injunction proceedings under Article 1330 of the Civil Code (Bürgerliches Gesetzbuch) against the applicant company. 25. On 19 June 2002 the Vienna Commercial Court (Handelsgericht), referring to the judgments of the courts in the proceedings under the Media Act, granted the injunction and ordered the applicant to revoke the statements that Mr Haider, by appointing the members of the KELAG supervisory board, had deliberately misled the Regional Government and had acted in breach of the Regional Government's rules of procedure and the Regional Constitution. It further ordered the applicant company to pay the costs of Mr Haider's counsel. 26. The court dismissed the applicant company's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law. The journalist had relied on press releases prepared by the Socialist Party which summarised the expert opinion incorrectly. The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion. 27. On 20 November 2002 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant company's appeal. This decision was served on the applicant company's counsel on 4 December 2002. 28. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows: “1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... 3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 29. Section 33 § 2 of the Media Act reads as follows: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn. If no punishment can be imposed in case of the offender having proved the truth, the defence of truth shall also be available to the owner (publisher) of the media product in question being the interested party ...”. 30. Section 34 of the Media Act deals with the publication of a judgment (Urteilsveröffentlichung). It states inter alia that a criminal judgment concerning a media offence has, at the request of the prosecution, to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction. At the request of the prosecution, the publication of a judgment has to be ordered in separate proceedings, if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible. 31. Section 1330 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows: “1. Anybody who, due to defamation, suffered a damage or loss of profit, may claim compensation. 2. The same applies if anyone is disseminating facts, which jeopardize another person's reputation, gain or livelihood, the untruth of which was known or must have been known to him. In this case there is also a right to claim a revocation and the publication thereof...” | 0 |
train | 001-110812 | ENG | BGR | CHAMBER | 2,012 | CASE OF MADAH AND OTHERS v. BULGARIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The first, second and third applicants were born in 1965, 1973 and 2006 respectively. 6. In the period between 1990 and 2001 the first applicant visited Bulgaria on a number of occasions. It appears that in 1992 he obtained a temporary residence permit on the strength of his business activity. In 2001 he was granted a permanent residence permit. 7. In 2004 he met the second applicant and from the beginning of 2005 they lived together. Following a complicated pregnancy, on 10 April 2006 their son, the third applicant, was born. The child’s health has been fragile ever since, with frequent episodes of pulmonary disease. 8. On 27 December 2005 the head of the National Security Service at the Ministry of Internal Affairs made an order for the first applicant’s expulsion on the ground that he presented a threat to national security. He also deprived the applicant of the right to reside in Bulgaria and excluded him from entering Bulgarian territory for a period of ten years. No factual grounds were given. The order relied on a classified internal document of 15 December 2005, which was not served on the applicant. It appears that the applicant was able to consult it during the ensuing court proceedings (see paragraphs 12-16 below). 9. The internal document stated that the first applicant was involved in drug trafficking for the purposes of financing the militant Kurdish separatist group Kongra-Gel (the former PKK). The order stated that the first applicant should be detained pending expulsion and that it was subject to appeal to the Minister of Internal Affairs, but not to judicial review, and that it was immediately enforceable. 10. The first applicant was served with the order on 21 February 2006. On the same day the head of another government agency, the Migration Directorate of the national police, made another order for the first applicant’s detention pending expulsion. The applicant was arrested and placed in a detention facility in Sofia. Pursuant to an order of 18 July 2006 he was transferred to another special detention facility outside the city. 11. The first applicant was released on 28 October 2006. It appears from his submissions that on an unspecified date after his release he was interviewed at the Iranian embassy about his alleged connections with a Kurdish separatist organisation. 12. On 9 March 2006 the first applicant sought judicial review of the expulsion order by the Sofia City Court, claiming that the order was unlawful and referring to his difficult family situation due to the complicated pregnancy of his partner, the second applicant. 13. On 13 March 2006 the first applicant also appealed against the order for his expulsion to the Minister of Internal Affairs. On 30 March 2006 the appeal was returned to the applicant on the ground that it had been submitted out of time and that judicial proceedings for the order’s review were pending. 14. In the course of the court proceedings the first applicant provided the court with a document, issued by the National Investigation Service, certifying that at that time no criminal proceedings were pending against him. He also submitted written observations in which he claimed that he had never been involved in the activities mentioned in the classified internal document. He also referred to his family situation, the Convention and the case of Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002). 15. The defendant, the National Security Service, submitted a copy of the internal document of 15 December 2005 which had served as the basis for the expulsion. Despite the first applicant’s request to this effect, the court did not order the head of the National Security Service to produce further information or evidence regarding the reasons for the applicant’s expulsion. 16. By a judgment of 26 July 2007 the Sofia City Court dismissed the appeal. The court found, inter alia, that the document of 15 December 2005 had to be regarded as an official certification that the first applicant was a threat to national security and that as such it was binding on the court. 17. Upon the first applicant’s appeal, by a final judgment of 28 May 2008 the Supreme Administrative Court upheld the lower court’s judgment, fully endorsing its conclusions and not engaging in examination of the evidence allegedly supporting the view of the authorities that the first applicant posed a threat to the national security. The court held that the deportation order was lawful and fully justified by the attached internal document and did not run counter to the Convention because the applicant had been able to challenge it before a court. The court further stated that the first applicant’s rights had been restricted in accordance with the law and for the protection of the public interest. It also noted that given the existence of information about the first applicant’s involvement in drug trafficking for the purpose of financing a terrorist organisation, the executive authority had rightly decided that the applicant constituted a threat to national security. 18. On an unspecified date in 2006 the first applicant challenged the order of 21 February 2006 for his placement in a special detention facility before the Sofia City Court. On 23 June 2006 he requested suspension of the execution of the detention order. 19. In a decision of 16 October 2006 the court granted the request and suspended the effect of the detention order for the course of the proceedings. The court stated, in particular, that the authorities had failed to provide evidence for the necessity of such a measure. It pointed to the duration of the detention (at that time eight months) and to the family situation of the first applicant. The decision became final on an unspecified date as the parties had not lodged an appeal and the applicant was released on 28 October 2006. 20. In a final judgment of 23 February 2009 the Supreme Administrative Court discontinued the proceedings without examining the appeal on the merits. It held that the order for the applicant’s placement in a detention facility was subordinate to the order for his expulsion and issued within the course of expulsion proceedings. It was not therefore subject to judicial review by itself. 21. The relevant domestic law and practice has been summarized in the Court’s recent judgments in the cases of Raza v. Bulgaria (no. 31465/08, §§ 30-42, 11 February 2010) and M. and Others v. Bulgaria (no. 41416/08, §§ 45-53, 26 July 2011). | 1 |
train | 001-103260 | ENG | UKR | CHAMBER | 2,011 | CASE OF KHARCHENKO v. UKRAINE | 2 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen | 4. The applicant was born in 1958 and lives in Kyiv. 5. On 21 April 2000 the Prosecutor of the Vatutinsky District of Kyiv (“the Vatutinsky District Prosecutor”) instituted proceedings with regard to embezzlement of funds of the company R. The applicant was originally a witness in the case. 6. On 4 April 2001 the Vatutinsky District Prosecutor instituted criminal proceedings against the applicant on suspicion of his involvement in the embezzlement. 7. On 7 April 2001 the Vatutinsky District Prosecutor decided that the applicant should be detained, as he was suspected of a crime punishable by imprisonment. 8. On 17 May 2001 the investigator instituted another criminal case against the applicant on suspicion of his involvement in embezzlement and joined it to the first criminal case against the applicant. 9. On 3 June 2001 the same prosecutor decided that the applicant's detention should be extended to 4 July 2001. 10. Between 27 June and 6 September 2001 and on 14 September 2001 the applicant and his lawyer studied the criminal case file. 11. On 14 September 2001 the applicant was indicted for theft. 12. On 28 September 2001 the indictment was approved by the Vatutinsky District Prosecutor. The case was transferred for examination on its merits to the Vatutinsky District Court of Kyiv (“the Vatutinsky Court”). 13. On 26 September 2001 the applicant's advocate lodged a request with the Vatutinsky Court seeking the applicant's immediate release. 14. On 5 October 2001 the Vatutinsky Court received the case file and on 12 October 2001 Judge K. of the Vatutinsky Court held a preparatory hearing in the case. 15. On 15 October 2001 Judge K. decided that the criminal case against the applicant should be remitted for additional investigation. He also rejected the applicant's request for release of 26 September 2001, finding no grounds for changing the preventive measure applied by the prosecutor. In particular, the court stated that the applicant had been detained on the basis of the prosecutor's decision since 7 April 2001 in order to prevent him from avoiding investigation and appearance in court, obstructing the establishment of the truth in the criminal case and continuing with criminal activity, and in order to ensure compliance with procedural decisions in cases where the law provides for deprivation of liberty for more than three years. No time-limit for detention was fixed. 16. On 29 January 2002 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the resolution of 15 October 2001 and remitted the case for examination on the merits to the Desnyansky District Court, Kyiv (formerly Vatutinsky District, but after changes to the judicial districts in Kyiv “the Desnyansky Court”). 17. On 4 March 2002 the Desnyansky Court held a preparatory hearing in the case. It examined the applicant's request to be released on bail and found no reasons for allowing it. It also noted that the applicant had been detained lawfully, given that criminal proceedings against him were pending. 18. On 11 March 2002 the applicant's lawyer requested the Desnyansky Court to order the applicant's release. This request was refused the same day. The court considered that the applicant might evade and obstruct justice and, given his age, state of health, family status and economic status there were no grounds for replacing the detention with another preventive measure. On 14 March 2002 the court rejected a similar request by the applicant on the same grounds, adding that the seriousness of the charges had also been taken into account. Two more similar requests by the applicant were rejected by the court on 4 and 19 April 2002 on the same grounds. 19. On 29 April 2002 the Desnyansky Court ordered that the case be again remitted for additional investigation. The court also upheld the applicant's detention, noting without further elaboration that there were no grounds for changing the preventive measure. No time-limit for detention was fixed. 20. On 23 July 2002 the Court of Appeal quashed the resolution and remitted the case for re-examination on the merits. The court also noted that it had no legal basis for deciding on the applicant's request for release and considered that the conclusions of the first-instance court on the matter were lawful, reasoned and corresponded to the case file materials. Therefore, it left the preventive measure unchanged. 21. In August 2002 the Court of Appeal ordered the transfer of the criminal case from the Desnyansky Court to the Golosiyevsky District Court of Kyiv (“the Golosiyevsky Court”). 22. On 28 August 2002 the Golosiyevsky Court ordered a hearing on the merits on 13 September 2002. 23. On 14 October 2002 Judge C. resumed examination of the case on the merits and informed the applicant's lawyer that she had decided not to remit the case for additional investigation. The court also rejected the applicant's request for release, on the ground that he might avoid and obstruct justice. 24. On 17 October 2002 the defence challenged Judge C. 25. On 24 December 2002 Judge C. of the Golosiyevsky Court decided to remit the case for additional investigation. It also decided that there were no grounds for changing the preventive measure in respect of the applicant. 26. On 13 March 2003 the Court of Appeal quashed the decision of 24 December 2002 and returned the case to the Golosiyevsky Court for examination on the merits. It also decided again that the applicant should remain in custody, as he had been charged with serious offences which would warrant deprivation of liberty after conviction. 27. On 13 May 2003 the Golosiyevsky Court decided that the case should be remitted for additional investigation to the Vatutinsky District Prosecutor. It also ordered the applicant's continued detention, without giving any particular reasons for it. The court also rejected the applicant's request for termination of the proceedings in the case. 28. On 28 July 2003 the Supreme Court rejected the applicant's request for leave to appeal on points of law lodged against the decision not to terminate the proceedings, as the applicant had failed to comply with procedural formalities. 29. On 4 August 2003 the Desnyansky District Prosecutor released the applicant from detention. The applicant signed an undertaking not to abscond. 30. On 30 August 2003 the applicant's advocate unsuccessfully requested the prosecution to amnesty the applicant, in view of the nature of the charges brought against him and his poor state of health. 31. On 24 October 2003 the criminal investigation was adjourned because one of the suspects was being searched for. 32. On 30 December 2003 the investigator of the Desnyanskiy Distirct Prosecutor's Office terminated the criminal proceedings against the applicant on all but two of the charges, for lack of evidence of his involvement in the crime. The criminal case concerning the remaining charges was transferred to the Desnyanskiy District Police Department. 33. On 18 September 2004 the investigator of the Desnyanskiy District Police Department terminated the criminal proceedings against the applicant concerning the remaining charges for lack of evidence of crime and initiated criminal proceedings in respect of crimes committed by an unknown person. This decision appears to have been mistakenly dated 18 September 2003 instead of 18 September 2004. Next day the criminal proceedings were suspended for failure to establish the identity of the suspected offender. 34. Between 20 April 2001 and 4 August 2003 the applicant was held in the Kyiv SIZO no. 13, a detention facility with, according to the applicant, poor prison conditions and insufficient medical treatment. 35. According to the Government, in that facility the applicant was held in the following cells: - cell No. 30, measuring nine square metres and designed for three inmates; - cell No. 64, measuring 52.36 sq. m and designed for twenty inmates; - cell No. 66, measuring 53.07 sq. m and designed for twenty-one inmates; - cell No. 68, measuring 61.19 sq. m and designed for twenty-four inmates; - cell No. 72, measuring 10.21 sq. m and designed for four inmates; - cell No. 76, measuring 9.92 sq. m and designed for three inmates; - cell No. 116, measuring 10 sq. m and designed for four inmates; - cell No. 117, measuring 9.96 sq. m and designed for three inmates; - cell No. 128, measuring 15.95 sq. m and designed for six inmates; - cell No. 195, measuring 22.44 sq. m and designed for eight inmates; - cell No. 258, measuring 23.38 sq. m and designed for five inmates; - cell No. 263, measuring 24.9 sq. m and designed for six inmates; - cell No. 326, measuring 12.9 sq. m and designed for five inmates; - cell No. 328, measuring 12.9 sq. m and designed for five inmates; - cell No. 333, measuring 12.9 sq. m and designed for eight inmates; - cell No. 336, measuring 12.9 sq. m and designed for five inmates. All the cells had a constant supply of cold water, natural and artificial light, a separated toilet and ventilation. The number of detainees did not exceed the number of places in each cell. 36. According to the applicant, he was not held in cells 333 and 336. Cells 64, 66 and 68 had 40 bunks each. Cell 72, measuring 9 sq. m, was damp and very cold in winter. In this latter cell he spent in total about 18 months. In cell no. 195, which had very poor ventilation, he spent about six months in total. 37. According to the Government, the applicant had a full medical examination on arrival at the SIZO on 20 April 2001. He did not make any complaints about his health and was registered for follow-up (диспансерний облік) in respect of his chronic illnesses. 38. On 16 November 2001, 24 April 2002 and 15 April 2003 the applicant had regular medical check-ups and was X-rayed. The examination revealed no lung problems. 39. According to a medical certificate issued on 6 December 2001, the applicant had a mild form of diabetes and required a special diet but not medical treatment. 40. According to a medical certificate issued on 10 July 2002 the applicant had been diagnosed with ischaemic heart disease, stenocardia and diabetes. 41. On 15 January 2003 the applicant was examined by a cardiologist, who found him to be suffering from ischaemic heart disease and stenocardia. 42. On 27 January 2003 the applicant asked for medical assistance, complaining of chest pain and dizziness. Following a medical examination it was decided to place the applicant in the medical wing of the SIZO. From 28 January 2003 the applicant was treated in the medical wing of the SIZO, with a diagnosis of neurocirculatory dystonia and cervical osteochondrosis. The applicant was prescribed several different types of medication. Every third day he was examined by a general doctor. On 29 January 2003 he was examined by the cardiologist who found that the applicant had no heart problems. On 30 January 2003 the applicant was examined by a neuropathologist. On 11 March 2003 the applicant left the medical wing of the SIZO in a satisfactory state of health. Following this treatment, and until his release from detention, the applicant did not consult doctors with any health-related complaints. 43. Following his release, the applicant underwent medical treatment in Kyiv Hospital no. 15 for arrhythmogenic cardiomyopathy and ciliary arrhythmia from 7 to 27 August 2003. 44. Article 253 of the Code of Criminal Procedure provides that having decided to commit an accused for trial, the judge should resolve, among other things the issue concerning the change, discontinuation or application of a preventive measure. Other relevant domestic law is summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, §§ 53-61, ECHR 2005II (extracts)), and Shalimov v. Ukraine (no. 20808/02, §§ 3942, 4 March 2010). | 1 |
train | 001-100801 | ENG | DEU | ADMISSIBILITY | 2,010 | STEINDEL v. GERMANY | 3 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Andreas Steindel, is a German national who was born in 1967 and lives in Achersleben. He was represented before the Court by Mr G. Jurczyk, a lawyer practising in Magdeburg. The applicant practices as an ophthalmologist. From January 2001 to 31 December 2004 he held a license as a statutory health insurance physician (Zulassung zur vertragsärztlichen Versorgung). Having renounced his licence, he exclusively treats patients in private practice. On 28 December 2004 the Association of Medical Practitioners (Ärztekammer Sachsen-Anhalt) ordered the applicant to participate in the medical emergency services organised by the Association of Statutory Health Insurance Physicians (Kassenärztliche Vereinigung Sachsen-Anhalt, KVSA). His duty was suspended until determination of the modalities of his remuneration. On 15 March 2005 the KVSA informed the applicant about the modalities of his remuneration during emergency services. He was further informed that, notwithstanding the fact that he was not a member of the KVSA, his services and remunerations within the framework of the emergency services were subject to the KVSA's supervision. On 17 March 2003 the applicant informed the KVSA that he refused to serve in the emergency service and would only be willing to serve in an emergency service which was organised by the Association of Medical Practitioners. On 21 March 2005 the Association of Medical Practitioners informed the applicant that he was statutorily obliged to participate in the emergency service. They pointed out that the emergency service was a common project by the KVSA and the Association of Medical Practitioners and that all pertinent decisions were taken jointly by both associations. On 22 July 2005 the applicant lodged a motion against the Association of Medical Practitioners. He argued that he was not obliged to participate in the emergency service organised by the KVSA, because he did not practice as a statutory health insurance physician. He further alleged that the order lacked a sufficient legal basis. On 21 March 2006 the Magdeburg Administrative Court (Verwaltungsgericht) dismissed the applicant's motion as being unfounded. According to that court, the impugned order was compatible with the pertinent law. The emergency service was set up jointly by the Association of Medical Practitioners and by the KVSA in order to avoid overlapping emergency services. The pertinent provisions did not violate the applicant's rights under the Basic Law. The infringement on the applicant's right to freedom of profession was neither disproportionate nor excessive. Furthermore, there was no violation of the right to equal treatment, as all medical practitioners were equally obliged to provide emergency services to their patients outside consultation hours. This duty constituted an intrinsic part of a medical practitioner's occupation. The organisation of emergency services released the medical practitioner from the obligation to be available for his patients “around the clock”, at nights and during the weekends. Having regard to the fact that all medical practitioners – and not only those who held a license as statutory health insurance physicians – profited from this service, it was justified to order all practitioners to participate in the emergency service. The fact that the emergency service was organised by the KVSA did not turn the applicant into a member of that organisation; he merely profited from its organisational structures. On 6 September 2006 the Saxony-Anhalt Administrative Court of Appeal (Oberverwaltungsgericht) refused to allow the applicant leave to appeal. Further to the administrative court's considerations, the Court of Appeal found that the duties imposed on the applicant were not excessive, as it was merely envisaged to oblige the applicant to serve on six days during a three-months-interval. The Court of Appeal further considered that it was justified to oblige all medical practitioners, irrespective of the fact if they were willing to assure “around the clock” availability to their own patients. The system could only function if, as a matter of principle, all physicians concerned took part in it. On 11 January 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint as there was no indication of a violation of the applicant's basic rights (application no. 1 BvR 2572/06). According to section 20 § 2 of the Law on the Associations of Medical Practitioners for Saxony-Anhalt (Gesetz über die Kammern für Heilberufe) the Medical Association is entitled to issue regulations on medical emergency service. Section 26 of the Medical Association's professional Code of Conduct (Berufsordnung der Ärztekammer Sachsen-Anhalt) provides that every resident medical practitioner is obliged to participate in emergency service. Regulations on the organisation of the emergency service have been jointly issued by the Medical Association, representing all medical practitioners, and by the KVSA, representing only those physicians practicing under the public health insurance scheme. Non-compliance with the obligations under the Medical Association's professional Code of Conduct can lead to disciplinary proceedings. The disciplinary court has the capacity to issue formal reprimands, impose fines and to advice the authorities to revoke a physician's license (sections 46 and 48 of the Law on the Associations of Medical Practitioners). | 0 |
train | 001-61961 | ENG | IRL | CHAMBER | 2,004 | CASE OF McMULLEN v. IRELAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 9. The applicant was born in 1942 and lives in Dublin. 10. In 1982 he issued nuisance proceedings against his landlord. Those proceedings were settled in July 1985. Subsequently, and as a result of alleged further nuisance problems and new evidence, he unsuccessfully attempted to re-enter the nuisance proceedings in 1987. 11. On 29 June 1988 he issued negligence proceedings in the High Court against the firm of solicitors (“KC”) who had acted for him in the above-described nuisance action. He took issue with the advice given to him by KC during the settlement and, in particular, in relation to the possibility of re-entering his nuisance action. KC filed an appearance dated 26 October 1988. The applicant’s statement of claim was filed on 21 December 1988 and on 9 March 1989 he filed an application seeking judgment in default of defence which he obtained from the High Court on 10 April 1989. However, KC filed its defence on 18 April 1989 and sought an order to set aside the default judgment. On 1 May 1989 the default judgment was set aside. Further particulars of the applicant’s claim were requested by KC on 10 May 1989 and the applicant responded on 30 June 1989. On 15 May 1989 KC applied for discovery and on 2 June 1989 the High Court refused that application. 12. On 18 July 1989 the applicant applied for discovery by KC. On 5 October 1989 the High Court ordered discovery to be made by KC within six weeks. On 28 November 1989 he applied to strike out the defence of KC as they had not made discovery as ordered. That application was adjourned on 11 December 1989 and on 15 January 1990 his strike out application was refused. On 22 February 1990 he applied for further discovery from KC and on 5 March 1990 the High Court ordered KC to make further discovery within four weeks. KC filed affidavits of discovery on 26 February and 23 April 1990. On 21 November 1990 the applicant applied for further discovery to be made by KC. The hearing of this application was adjourned on 4 and 10 December 1990 and was considered on 14 January 1991. While the specific directions of the High Court after that hearing are not known, costs were awarded against KC. 13. On 28 June 1991 a notice of trial was filed by the applicant. On 21 August 1991 KC filed a motion for discovery by the applicant. On 24 October 1991 the High Court struck out this motion and costs were awarded against KC. The applicant then lodged a notice to amend his statement of claim on 5 May 1992. The action was put in a list to fix a hearing date three times (between July and December 1991). On the latter occasion the hearing date was fixed for 20 February 1992. However, on that date the High Court was informed of settlement negotiations and in March or April 1992 the case was accorded a further hearing date in May 1992. The High Court heard the case on 5-7 May 1992, legal submissions were heard on 23 June 1992 and the court reserved its judgment. Judgment was delivered on 13 July 1993 dismissing the applicant’s case. The High Court judge found the evidence of a senior counsel (who had acted for the applicant in the nuisance proceedings – “SC”) more convincing than that of the applicant and found that KC had simply relied on the SC’s advice during the nuisance proceedings. Accordingly, it was found that no negligence could be attributed to KC. Costs were awarded to KC “when taxed and ascertained”. 14. On 30 August 1993 the applicant lodged his appeal to the Supreme Court: he argued that the High Court should not have relied on evidence of SC which was given in breach of SC’s privilege of confidentiality to the applicant. 15. SC was the subject of a complaint by the applicant to the Barristers Professional Conduct Tribunal of the Bar Council of Ireland. On 24 April 1995 the tribunal found that SC had been in breach of the Code of Conduct and by decision of 24 June 1995 he was formally admonished by the tribunal for dealing directly with the applicant and for giving evidence in court as to the advice he had given to the applicant without any protest as to confidentiality or privilege. On 21 November 1995 the Barristers’ Professional Conduct Appeals Board rejected an appeal and upheld the tribunal’s decisions. 16. On 12 July 1995 his representatives confirmed that all documents for the appeal had been filed. A letter of 20 November 1996 confirmed to the applicant that his appeal had been listed for hearing on 3 March 1997. 17. However, it was then listed for mention on 21 March 1997 when the applicant’s solicitors applied and were allowed to come off record. On that date the appeal hearing was adjourned (to 11 June 1997) and final submissions were ordered to be lodged by 14 May 1997. The applicant was not represented for the remainder of the proceedings. On 10 April 1997 the applicant applied for leave to amend his appeal and on 18 April 1997 the Supreme Court granted him leave. 18. The appeal came on for hearing on 11 June 1997. Since one of the judges had previously participated in a High Court action brought by the applicant, the applicant was given the opportunity of having the appeal heard by a differently constituted Supreme Court, the applicant accepted and the hearing was adjourned for mention on 20 June 1997. On that latter date, the appeal was listed for hearing on 17 October 1997. 19. On 18 July 1997 the Supreme Court adjourned the applicant’s request for leave to introduce fresh evidence until the date fixed for the hearing of the action. Due to the illness of one of the Supreme Court judges, that hearing date was vacated. A further hearing date was set for 16 December 1997. The hearing took place on 16 December 1997 and judgment was reserved. Judgment was delivered on 27 January 1998 rejecting the applicant’s appeal. The Court found that the applicant had impliedly waived his privilege by instituting the proceedings. The court noted that, even if the alleged negligence had been established, it was questionable whether he had suffered loss as the original nuisance action on which KC had advised him was more likely to fail than to succeed. The costs of the appeal were also awarded to KC “when taxed and ascertained”. 20. On 20 December 1998 KC filed a note of their High and Supreme Court costs. In the absence of the applicant’s agreement on the level of the costs, on 12 January 1999 KC issued a summons to taxation, returnable for 11 February 1999. On 29 January 1999 the parties consented to the matter being adjourned until 9 March 1999. On 24 February 1999 the applicant issued a motion for an order staying the taxation of costs. On 5 March 1999 the Supreme Court dismissed his application for a stay. On 9 March 1999 the taxation matter was adjourned on a consent basis until 28 April 1999. On that date taxation of the High Court costs commenced and concluded with a stay agreed on the issuance of the taxation certificate for fourteen days on the applicant’s request. On that date also (28 April 1999) the taxation of the Supreme Court costs also commenced, but was not finalised as some information was outstanding. On 14 May 1999 the taxation of the Supreme Court costs was concluded and, on the applicant’s request, a stay was put on the issuance of the relevant certificate until 21 June 1999. 21. On 21 June 1999 the applicant requested and obtained a further stay until 6 July 1999. On that date leave was granted by the taxing master to KC to take up both certificates of taxation. On 30 September 1999 those certificates were taken up by KC and were served on the applicant with a demand for payment by 4 October 1999. The costs payable by the applicant amounted to almost 70,000.00 pounds sterling inclusive of value added taxation. Further demands were sent to the applicant on 15 October and 1 November 1999 indicating that KC would apply for his bankruptcy should he not discharge the sums due. 22. On 28 January 2000 KC issued and served a “notice of the particulars of demand and requiring payment prior to the issue of a bankruptcy summons”, a notice which was updated with the interest accrued and served on the applicant on 12 September 2000. KC then filed affidavits dated 16 October and 3 November 2000 and on 20 October 2000 the High Court issued a bankruptcy summons on the application of KC. 23. The applicant applied on 6 December 2000 to dismiss the summons. KC filed an affidavit in response on 27 February 2001 to which the applicant replied by affidavits filed on 13 March and 10 December 2001. KC therefore filed an affidavit in response on 21 December 2001. On 22 January 2002 the High Court gave the applicant time to submit a further replying affidavit. The applicant submitted this affidavit on 4 February 2002. The matter was heard by the High Court on 19 and 20 March 2002 (by a judge different from the judge sitting 22 January 2002). The detailed judgment delivered on the latter date acceded to the request for the applicant’s bankruptcy and refused his application to dismiss the summons. Noting that KC had undertaken not to take steps to enforce the bankruptcy summons for six weeks, the High Court put no stay on its order. 24. On 29 April 2002 the applicant appealed, requesting the Supreme Court to dismiss and stay indefinitely the bankruptcy summons. On 8 May 2002 he also issued a notice of motion before the Supreme Court requesting a stay on the order of the High Court of 20 March 2002 pending the finalisation of his appeal. On 7 June 2002 the Supreme Court rejected that motion, finding that it was not possible to stay a summons and that an injunction restraining KC from taking any action on foot of the bankruptcy summons would not be justified. In any event, it was extremely unlikely that KC could take any further action based on the existing bankruptcy summons since there was a three-month time-limit from the date of issue of the summons, within which KC should have applied for adjudication against the applicant. On 30 June 2003 KC issued and served a further “notice of the particulars of demand and requiring payment” of the costs award plus relevant interest, amounting to the sum of 104,185.48 euros (EUR). | 1 |
train | 001-68364 | ENG | POL | CHAMBER | 2,005 | CASE OF HUTTEN-CZAPSKA v. POLAND | 2 | Violation of P1-1;Just satisfaction reserved;Costs and expenses partial award | Nicolas Bratza | 16. The applicant, who is a French national of Polish origin, was born in 1931 and lives in Andresy, France. She owns a house and a plot of land in Gdynia, Poland. The property previously belonged to her parents. 17. Polish legislation on rent control has been the result of many historical and recent circumstances. Legislative schemes restricting rights of landlords and regulating increases in rent were already in operation before the Second World War. The description below of the general situation was based on the findings of the Polish Constitutional Court (Trybunał Konstytucyjny), which, on 12 January 2000, in one of its judgments concerning the constitutionality of certain aspects of the legislation on rent control gave thorough consideration to the historical background of such legislation and the factors contributing to the preservation of restrictions dating back to an early stage of the communist regime in Poland. 18. The rent control scheme was the consequence of the introduction of the so-called “State management of housing matters” (publiczna gospodarka lokalami) by the former communist authorities (see paragraphs 71-74 below). It was accompanied by provisions drastically restricting the amount of rent chargeable. The applicable provisions originated in the exceptionally rigid distribution of housing resources which characterised the first 30 years of the communist regime in Poland. 19. The circumstances did not change significantly after the end of the communist rule in 1989; indeed, at the beginning of the 1990s the situation of housing in Poland was particularly difficult, as was demonstrated, on the one hand, by a shortage of dwellings and, on the other hand, by the high cost of acquiring a flat. The State-controlled rent, which also applied to privately owned buildings, covered merely 30% of the actual cost of maintenance of buildings. In 1994 those social and economic factors prompted the legislature not only to maintain elements of the so-called “special lease scheme” (szczególny tryb najmu) (see also paragraph 73 below) in respect of State-owned dwellings but also to continue to apply that scheme – temporarily, for a period of 10 years expiring on 31 December 2004 – to privately owned buildings and dwellings. In short, the system was a combination of restrictions on the amount of rent chargeable and of limitations on the termination of leases, even in respect of tenants who did not comply with the terms of the contract. 20. The material collected by the Constitutional Court in 2000 included a report prepared by the Office for Housing and Town Development (Urząd Mieszkalnictwa i Rozwoju Miast). According to that report, in 1998, after 4 years of the operation of the 1994 rent control scheme, the average rent as fixed under that scheme covered only 60% of the costs of maintenance of residential buildings. The shortfall was to be covered by landlords. The scale of the problem was considered to have been very large since at that time 2,960,000 dwellings (25.5% of the country’s entire housing resources) were let under the rent-control scheme; that number comprised some 600,000 flats in buildings owned by private individuals. The total number of flats in Poland was estimated at about 11,600,000. Flats in privately owned buildings subject to the rent-control scheme constituted 5.2% of the country’s housing resources. The report stated, among other things: “Before ... [1994], statutory rent determined by the Cabinet covered about 30% of running maintenance costs. At present, after four years of the operation of the [1994] rent control scheme, municipalities set levels of rent covering on average 60% of maintenance costs. ... In respect of buildings owned by municipalities, the shortfall is covered by municipalities, which frequently use for that purpose surplus received by means of letting commercial premises. As regards privately owned buildings, where tenants pay controlled rent, the shortfall is covered by owners of buildings.” 21. In 2003-2004 the Government, in the course of the preparation of their bill amending the legislation on rent control (see paragraphs 118 et seq. below) collected considerable material describing the present general situation of housing in Poland. The situation is characterised by a serious shortage of residential dwellings. According to the 2002 National Population and Housing Census, the relevant deficit, defined as the difference between the number of households and the number of flats, amounts to 1,500,000 flats. There is a particularly acute shortage of flats for lease. 22. In the light of data collected by the Central Statistical Office (Główny Urząd Statystyczny) on the overall financial situation of households, in the years 1998-2003 household expenses such as rent and electricity bills amounted to 14.5%-15.4% of total expenses (18.6%-19.0% in pensioners’ households). At the same time between 7% and 10% of Polish households were in rent arrears (1998: 7.5%; 1999: 7%; 2000: 7%; 2002: 10%; 2003: 9%). In 2000 about 54% of the population lived below the poverty line, of which 8% were below the abject poverty line. In 2002 some 58% of the population lived below the poverty line, of which 11% were below the abject poverty line. 23. Various reports received by the Office for Housing and Town Development confirmed that the provisions relating to the protection of tenants as applicable until 31 December 2004 (see also paragraphs 89-93 below) limited the supply of flats available for lease. In the authorities’ view, the introduction of the so-called “commercial lease” (najem komercyjny) – in other words a market-related lease – by removing restrictions on the increase of rent for privately owned buildings and freeing private landlords from their obligation to provide indigent tenants with an alternative accommodation upon the termination of their lease, should encourage private investors to build tenement houses designated solely to be let. 24. The Government gave various figures to indicate the number of persons potentially affected by the operation of the rent-control scheme. They stated that according to information supplied by the Office for Housing and Town Development, the operation of the relevant legislation affected about 100,000 landlords and 600,000 tenants. Other sources cited by the Government stated that the total number of persons concerned was about 100,000 landlords and 900,000 tenants. 25. The applicant’s house was built in 1936 as a one-family house. It originally consisted of a duplex apartment, basement and attic. 26. During the Second World War, officers of the German Army lived in the house. In May 1945 the Red Army took it over and placed its officers there for some time. 27. On 19 May 1945 the Head of the Housing Department of the Gdynia City Council (Kierownik Wydzialu Mieszkaniowego Magistratu Miasta Gdynia) issued a decision assigning the first-floor part of the duplex apartment to a certain A.Z. 28. In June 1945 the Gdynia City Court (Sąd Grodzki) ordered the return of the house to the applicant’s parents. They began renovation of the house but, shortly afterwards, were ordered to leave their property. In October 1945 A.Z. moved into the house. 29. On 13 February 1946 the Decree of 21 December 1945 on the State Management of Housing and Lease Control (Dekret o publicznej gospodarce lokalami i kontroli najmu) entered into force. Under its provisions, the house became subject to the so-called “State management of housing matters” (see also paragraph 18 above). 30. In 1948, at a public auction, the authorities unsuccessfully tried to sell the house to A.Z., who was at that time employed by the Gdynia City Council, an authority responsible for the State management of housing matters at the material time. At about the same time, the applicant’s parents, likewise unsuccessfully, tried to recover their property. 31. On 1 August 1974 the Housing Act (Prawo lokalowe) (“the 1974 Housing Act”) entered into force. It replaced the State management of housing matters with the so-called “special lease scheme” (see also paragraphs 19 above and 73 below). 32. On an unknown date in 1975 a certain W.P., who was at that time the Head of the Housing Department of the Gdynia City Council (Kierownik Wydziału Spraw Lokalowych Urzędu Miejskiego), tried to buy the house from the applicant’s brother. 33. On 8 July 1975 the Mayor of Gdynia issued a decision allowing W.P. to exchange the flat he was leasing in another building under the special lease scheme for the ground-floor flat in the applicant’s house. That decision was signed on behalf of the Mayor of Gdynia by a civil servant who was subordinate to W.P. On 28 January 1976 the Gdynia City Council issued a decision confirming that under the provisions governing the special lease scheme the flat had been let to W.P. for an indefinite time. Later, in the 1990s, the applicant tried to have that decision declared null and void but succeeded only in obtaining a decision declaring that it had been issued contrary to the law (see also paragraphs 49-54 below). 34. On 24 October 1975 the Head of the Local Management and Environment Office of the Gdynia City Council (Kierownik Wydziału Gospodarki Terenowej i Ochrony Środowiska Urzędu Miejskiego w Gdyni) ordered that the house became subject to State management (przejęcie w zarząd państwowy). That decision took effect on 2 January 1976. 35. On 3 August 1988 the Gdynia District Court (Sąd Rejonowy), ruling on an application by A.Z.’s relatives, gave judgment, declaring that, after the A.Z.’s death, her daughter (J.P.) and son-in-law (M.P.) had inherited the right to lease the first-floor flat in the applicant’s house. 36. On 18 September 1990 the Gdynia District Court gave a decision declaring that the applicant had inherited her parents’ property. On 25 October 1990 the Gdynia District Court entered her title in the relevant land register. 37. On 26 October 1990 the Mayor of Gdynia issued a decision restoring the management of the house to the applicant. On 31 July 1991, acting through her representative, she took over the management of the house from the Gdynia City Council. Shortly afterwards, she began to refurbish the house. 38. On an unknown date in the 1990s the applicant set up a private foundation called the Amber Trail Foundation (Fundacja Bursztynowego Szlaku). Since 1991 then, she has been making unsuccessful efforts to locate the seat of the Foundation in her house. 39. After taking over the management of the house, the applicant initiated several sets of proceedings – civil and administrative – in order to annul the previous administrative decisions and regain possession of the flats in her house. 40. On 16 June 1992 the applicant asked the Gdynia District Court to order the eviction of her tenants. In April 1993, on an application by the defendants, those proceedings were stayed. On 26 April 1996 her claim was dismissed. 41. In April 1995 the applicant asked the Gdańsk Regional Court (Sąd Wojewódzki) to order the Gdynia City Council to relocate the tenants living in her house to dwellings owned by the municipality. She also asked the court to award her compensation, inter alia, for the fact that the authorities had deprived her parents and herself of any possibility of living in their own house, for damage to the property and arbitrary alteration of its use, and for mental suffering. On 5 July 1996 the Regional Court ruled that, under the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), (“the 1994 Act”) the defendant authority had no obligation to relocate the tenants to accommodation owned by the municipality. It dismissed the remainder of the claims. The applicant appealed. 42. On 17 January 1997 the Gdańsk Court of Appeal (Sąd Apelacyjny) heard, and dismissed, her appeal. It observed that no provision of the 1994 Act obliged the municipal authorities to relocate the applicant’s tenants or, at her request, to provide them with alternative accommodation (lokal zastępczy). The relevant provisions of the 1994 Act, namely section 56(4) and (7) (see also paragraph 81 below), stipulated that a tenant had to vacate a dwelling only if the owner had offered him another flat owned by him or the municipality had agreed to provide the tenant with an alternative accommodation owned or administered by it. As regards the applicant’s claim for damages for financial loss sustained as a result of the administrative decisions, the Court of Appeal observed that such claims could be determined by the courts of law only if a claimant had first applied for compensation to the administrative authorities and the outcome of the relevant administrative proceedings had been unfavourable. It referred the applicant to the Code of Administrative Procedure (Kodeks postępowania administracyjnego), which set out the rules governing the liability of public authorities for issuing wrongful decisions. In so far as the applicant sought compensation for damage to the house and for the alteration of its use, the Court of Appeal considered that the defendant authority could not be held liable for the consequences of the laws which had previously been in force. In particular, it was not liable for the enactment of the post-war legislation which had introduced restrictive rules concerning the lease of dwellings in privately owned houses and the State management of housing matters. Nor was it liable for the implementation of the special lease scheme introduced by the 1974 Housing Act and the operation of the 1994 Act, which incorporated certain similar rules for the protection of tenants whose right to lease flats in privately owned houses had been conferred on them by administrative decisions (see also paragraphs 75-76 below). Lastly, the court noted that the defendant could not be liable for any damage caused by the applicant’s tenants. 43. Subsequently, the applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy). On 13 November 1997 the Supreme Court rejected that appeal on procedural grounds. The court held that the applicant had not complied with the relevant formal requirements; in particular, she had not specified the errors of substantive civil law allegedly committed by the lower courts. 44. In October 1995 the applicant asked the Gdańsk Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) to declare null and void the decision of the Head of the Housing Department of the Gdynia City Council of 19 May 1945. By virtue of that decision, the first-floor flat in the house had been assigned to A.Z. It had also formed a basis for granting the right to lease that flat in the applicant’s house to A.Z.’s successors (see also paragraph 27 above). 45. On 26 June 1997 the Board rejected her application. It noted that the impugned decision had been taken pursuant to the provisions of the Decree on Housing Commissions issued by the Polish Committee of National Liberation on 7 September 1944 (Dekret Polskiego Komitetu Wyzwolenia Narodowego o komisjach mieszkaniowych), a law which had at the relevant time governed all housing matters. It found that the decision had not been issued by the competent public authority and, in consequence, had not been lawful. Yet the Board could not declare the decision null and void (stwierdzić nieważność decyzji) because, pursuant to Article 156 § 2 of the Code of Administrative Procedure, if more than 10 years had elapsed from the date on which the unlawful decision had been made, the Board could only declare that the decision “had been issued contrary to the law” (została wydana z naruszeniem prawa). 46. The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny). On 15 January 1998 the court dismissed her appeal because she had not exhausted an obligatory legal remedy in that she had not made an application to the Board for the matter to be reconsidered (wniosek o ponowne rozpatrzenie sprawy). 47. The applicant subsequently made such an application. On 23 June 1998 the Board upheld its decision of 26 June 1997. The applicant appealed to the Supreme Administrative Court. The Gdańsk Regional Prosecutor (Prokurator Wojewódzki) joined the proceedings and lodged an appeal on the applicant’s behalf. 48. On 8 June 1999 the Supreme Administrative Court rejected both appeals. It confirmed that the impugned decision had been unlawful. It added that there had been several procedural shortcomings (for instance, the applicant’s parents had not been notified of the proceedings and had never had any opportunity to challenge the decision; in addition, no legal basis had been given for it); however, in accordance with Article 156 § 2 of the Code of Administrative Procedure, the court could not annul the decision but could only declare that it had been issued contrary to the law. In passing, the court observed that the above-mentioned procedural shortcomings could be rectified by means of reopening the proceedings. 49. In 1992 the applicant asked the Gdańsk Self-Government Board of Appeal to declare null and void the decision of the Mayor of Gdynia of 8 July 1975. By virtue of that decision, W.P. had been granted the right to lease the ground-floor flat in the applicant’s house (see also paragraph 33 above) 50. On 27 January 1994 the Board rejected her application. The applicant appealed to the Supreme Administrative Court. 51. On 14 June 1995 the court dismissed her appeal. It found that the flats in the applicant’s house had been let under the special lease scheme introduced by the 1974 Housing Law and that, accordingly, the mayor had been competent to issue the decision in question. It further observed that, despite some procedural errors committed by the Mayor of Gdynia (which could be rectified by means of reopening the proceedings), the decision had had a legal basis and could not, therefore, be declared null and void. 52. On 17 September 1994 the applicant asked the Mayor of Gdynia to reopen the relevant proceedings and to declare the impugned decision null and void. The mayor rejected her application as being lodged out of time. 53. On 29 December 1995 the Gdańsk Self-Government Board of Appeal, of its own motion, reopened the proceedings. It found that the contested decision had been made on behalf of the Mayor of Gdynia by a civil servant who had been W.P.’s subordinate and that that fact had in itself constituted a sufficient ground for reopening the proceedings, pursuant to Article 145 § 1 (3) of the Code of Administrative Procedure. That fact had also rendered the decision unlawful. However, since more than 5 years had elapsed from the date on which the decision had been given, the Board could not annul it. It could merely declare that it had been issued contrary to the law, as laid down in Article 146 § 1 of the Code of Administrative Procedure. 54. The applicant appealed to the Supreme Administrative Court, alleging that the decision had never been served on the owners of the house and that it should have been declared null and void. On 28 November 1996 her appeal was dismissed. 55. On 4 October 1994 the applicant asked the Gdynia City Council to reopen the administrative proceedings that had been terminated on 24 October 1975 by the decision of the Head of the Local Management and Environment Department of the Gdynia Municipality. By virtue of that decision, the applicant’s house had become subject to the State management (see also paragraph 34 above). She further asked to have the decision declared null and void, submitting that it had lacked any legal basis. In particular, the house had incorrectly been classified as a “tenement house” (dom wielorodzinny), whereas in reality it was, and always had been, a one-family house and, as such, should not have become subject to the State management. The decision, the applicant added, had been made solely for the personal benefit and gain of W.P., who had at that time been the Head of the Housing Department of the Gdynia City Council. In her view, it had been made to sanction the prior – and likewise unlawful – decision of 8 July 1975 whereby W.P. had acquired the right to lease the flat in her house. 56. On 7 December 1994 the Mayor of Gdynia rejected her application, finding that she had lodged it outside the prescribed time-limit. On 12 June 1995 the Gdańsk Self-Government Board of Appeal upheld the mayor’s decision. Subsequently, the applicant appealed to the Supreme Administrative Court. On 14 November 1996 the court quashed both decisions because the Mayor of Gdynia had not been competent to rule on the application. 57. On 27 February 1997 the Gdańsk Self-Government Board of Appeal reopened the proceedings terminated by the decision of 24 October 1975. On 28 April 1997 the Board declared that that decision had been issued contrary to the law because the owners of the house had not been notified of the proceedings. It found that the Gdynia City Council had not acted with due diligence. In particular, it had made no efforts to establish who had been the rightful successors to the owners of the house. Indeed, at the material time the applicant and her brother had - on a regular basis - paid the relevant taxes on the property to the City Council. Relying on Article 146 § 1 of the Code of Administrative Procedure, the Board refused to annul the decision because more than 5 years had elapsed from the date on which it had been given. 58. On an unspecified date in 2002 the applicant asked the Governor of Pomerania (Wojewoda Pomorski) to declare the decision of 24 October 1997 null and void. The application was referred to the Gdańsk Self-Government Board of Appeal, a body competent to deal with the matter. The Board refused the application on 13 May 2002. It held that the matter was res judicata. 59. The parties gave differing information on what was the actual usable surface area of the flats in the applicant’s house, a factor relevant for the determination of the chargeable rent. 60. The Government submitted that the usable surface area of the applicant’s house was 196 square metres. They produced an inventory made on 1 August 1991 in connection with the transfer of management of the house from the Gdynia City Council to the applicant (see also paragraph 37 above). The usable surface area of the house was estimated at 196 square metres; no net living area was indicated. There were four flats and no commercial premises. The number of habitable rooms in the flats was 12. The surface area of those flats was estimated at 148 square metres. The total surface area of the house was indicated as 255 square metres. 61. The applicant stated that the total surface area of the house occupied by the tenants and for which they paid rent was about 250 square metres. In that connection, she supplied a declaration of 28 May 2001, issued by the Gdynia Association of Landlords and Managing Agents (Zrzeszenie Właścicieli i Zarządców Domów), an agency that apparently administered her property. According to the declaration, since at least the 1950s the applicant’s house had been divided into three flats leased by means of the agreements originating in the administrative decisions described above. 62. The usable surface areas of those flats for the purposes of fixing rent were as follows: flat no. 1 = 127.38 sq. m; flat no. 3 = 67.90 sq. m; and flat no. 4 = 54.25 sq. m. Accordingly, the total usable surface area occupied by the tenants was 249.53 sq. m. 63. On an unspecified date in 1995 W.P. asked the Gdynia District Court for a judgment determining the amount of the rent to be paid by him. On 20 March 1996 the District Court gave judgment and determined the amount of rent at 33.66 Polish zlotys (PLN) per month. It ordered the applicant to pay costs in the amount of PLN 528.90. 64. According to the Gdynia Association of Landlords and Managing Agents’ declaration of 28 May 2001 (see paragraph 61 above), the amounts of rent to be paid by the applicant’s tenants were as follows: for flat no. 1 (usable surface area of 127.38 sq. m), occupied by J.P. and M.P., PLN 500.60; for flat no. 3 (usable surface area of 67.90 sq. m.), occupied by W.P., PLN 322.65; for flat no. 4 (former attic; usable surface area 54.25 sq. m.), occupied by J.W., PLN 188.25. Dwelling no. 2 (apparently originally the bedroom of the applicant’s parents, which was later used as a drying room), which had previously been used by W.P. without any legal title or authorisation and for the use of which he had paid no fee, was at that time locked and sealed by the managing agent. W.P. was served with a notice ordering him to pay PLN 2,982.46 for the unauthorised use of the flat on pain of being evicted. At the oral hearing the Government informed the Court that the rent paid by J.P. and M.P. on that date (27 January 2004) was PLN 531.63. 65. At the Court’s request to produce evidence demonstrating the situation of the applicant’s tenants, the Government supplied a certificate issued by the Gdynia District Centre for Social Services (Dzielnicowy Ośrodek Pomocy Społecznej) on 19 February 1993. The certificate stated that W.P. had received assistance from the centre as from January 1993. He was to obtain a periodical social welfare benefit for March and May 1993. In 1992 he had received assistance for housing purposes. The certificate further stated that W.P. had earlier been assessed as having the “second degree of disability”, the disability and its degree being subject to a medical verification in May 1993. 66. On 12 February 2004, in reply to an enquiry by the Polish Government in connection with the present case, the Gdynia City Centre for Social Services (Miejski Ośrodek Pomocy Społecznej) stated that the applicant’s tenants, W.P., J.P, M.P. and J.W., were not receiving any assistance from the Centre and they had not received any assistance from social services for the past few years, i.e. from 1995. 67. In reply to the Court’s question as to the amount of controlled rent received by the applicant from 10 October 1994 to date, the Government stated that they had no details of the rent received by the applicant at the relevant time. However, they supplied indicators relevant for the fixing of a controlled rent, as determined by the Gdynia City Council for similar houses. 68. According to this information, in December 1994 the rent per square metre was 9,817 old Polish zlotys (PLZ); from January to November 1995 PLN 1.04; from December 1995 to October 1996 PLN 2.11; from November 1996 to December 1997 PLN 2.63; from January 1998 to January 1999 PLN 3.37; from February 1999 to January 2000 PLN 4.01; from February 2000 to February 2001 PLN 4.37, and from April 2002 to October 2002 PLN 4.61. 69. On 10 October 2002, following the entry into force of the Constitutional Court’s judgment of 2 October 2002, it became possible for landlords to increase the rent up to 3% of the reconstruction value of the dwelling (see also paragraphs 90, 106-108 and 117 below). From December 2002 to 30 June 2003 the relevant conversion index of the reconstruction value of the dwelling (see also paragraphs 79 and 89 below) was PLN 2,525.30. From 1 July to 31 December 2003 it amounted to PLN 2,471.86. In 2004, the conversion index was fixed at PLN 2,061.21. The Government submitted that the reconstruction value of the dwellings in the applicant’s house was calculated on the basis of the following 3 elements: 3% as above, the usable surface area of the flats and the relevant conversion index (PLN 2,061.21). The monthly rent per square metre in the applicant’s house corresponded to 3% of the conversion index of the reconstruction value of square metre divided by 12 months (3% x PLN 2,061.21 = PLN 61.83/12). It accordingly amounted to approximately PLN 5.15 per square metre. Having regard to the usable surface of the house as indicated by the Government, the maximum monthly chargeable rent was PLN 1,009.40 (PLN 5.15 x 196 square metres). Taking into account the surface as indicated by the applicant, the relevant amount was PLN 1,285.08 (PLN 5.15 x 249.53 square metres). 70. According to the applicant, in the years 1994-1999 the free-market rent for the 3 flats in her house would have amounted to 1,700 United States dollars (USD) per month (USD 800 + USD 500 + USD 400 respectively, depending on the size of the flat). In the years 2000-2002 the rent would have decreased to USD 1,250 per month (USD 600 + USD 350 + USD 300). In 2003 it would have further been reduced to USD 900 per month (USD 450 + USD 250+ USD 200). She stated that her prognosis as to the decrease in rent was based on such factors as the devaluation of the house due to its age and the decreasing demand and increasing supply of flats available for rent on the market. 71. The Cabinet Decree of 21 December 1945 on the State Management of Housing and Lease Control (Dekret z 21 grudnia 1945 r. o publicznej gospodarce lokalami i kontroli najmu), which came into force on 13 February 1946, introduced “State management of housing matters”, which also applied to dwellings or commercial premises in privately owned buildings (see also paragraph 18 above). 72. Later, on 1 September 1948, the Decree of 28 July 1948 on the Lease of Dwellings (Dekret o najmie lokali) entered into force. Under its provisions, the State authorities administered all housing matters in the State and private sector alike. The public authorities were given power to issue a decision assigning to a tenant a particular flat in a privately owned building. Those provisions also laid down rules concerning rent control. 73. The 1974 Housing Act introduced the “special lease scheme”, which replaced “State management of housing matters”, although it did not significantly change the principles on which the right to lease was based. For instance, the right to lease a flat in a building subject to “State management” did not originate in a civil contract but was conferred on a tenant by an administrative decision. The owner of such a building had no say as to who could live in his or her house and for how long. The special lease scheme applied to residential and commercial premises. 74. Decisions on “allocation to a dwelling” (przydział lokalu) were, for all practical purposes, tantamount to “granting” a right to lease a dwelling (or commercial premises) under the special lease scheme. They were issued by the relevant departments of the local council (depending on which of the many reforms of the system of public administration was being carried out, those departments were called variously “housing departments”, “departments of local management and environment”, “dwelling departments”, etc.). 75. This Act entered into force on 12 November 1994. It was intended to bring about a reform of the law governing the relationship between landlords and tenants. Although it abolished the “special lease scheme” and relaxed the control of rent by, for instance, allowing rents of commercial premises to be market-related and determined freely, as well as allowing rents for residential dwellings to be fixed freely in civil contracts between landlords and tenants, it maintained the control of rent of residential dwellings in which the right to lease a flat had earlier been conferred on a tenant by an administrative decision. 76. The 1994 Act introduced the system of “controlled rent” (czynsz regulowany) and set out detailed regulations on the calculation of rent for residential dwellings which had so far been subject to the “special lease scheme”. The provisions concerning controlled rent, the ratio legis of which was to protect tenants in a difficult financial situation during the transition from a State-controlled to a free-market housing system, were to remain in force until 31 December 2004. The 1994 Act maintained, albeit with slightly modified wording, the rules concerning the protection of tenants against the termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease. 77. Section 8(1) of the Act read: “1. In the event of a tenant’s death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant’s household until his or her death, succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling. 2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.” 78. Section 20 set out the following: “1. Under the lease agreement the tenant is obliged to pay the rent. 2. In the cases provided for by the present statute, the rent shall be determined in a manner specified in this Act (controlled rent). In other cases the rent shall be determined freely. 3. The rent shall be determined with reference to the physical state of the building in question, its surface area and the condition of the flat and other factors which increase or reduce the flat’s value. 4. The parties shall specify the rent in their agreement.” 79. Section 25, which, pursuant to section 56(2) (see paragraph 81 below), also applied to privately owned flats subject to the previous special lease scheme, provided: “1. Subject to the reservation set forth in section 66, controlled rent shall be paid by tenants of dwellings belonging to municipalities, the State Treasury, State legal entities or legal entities administering dwellings for non-profit-making purposes, except for housing cooperatives. 2. The maximum controlled rent must not exceed 3% of the reconstruction value of the dwelling (wartość odtworzeniowa lokalu) per annum. 3. The reconstruction value of the flat shall be the product of its usable area and the conversion index of 1 square metre of the usable area of the building. 4. The [relevant] Governor shall, by means of an ordinance issued quarterly, determine the conversion index of 1 square metre of the usable surface area of the residential building.” 80. Under the transitional provisions of the Act the right to lease a flat conferred on a tenant by an administrative decision was to be treated as a lease originating in a lease agreement, concluded under the relevant provisions of the Civil Code. Tenants of such flats were to pay controlled rent until 31 December 2004. Under section 55 of the Act the lease of a flat on the basis of an administrative decision issued under the 1974 Housing Act was to remain in force. 81. Section 56 laid down further regulations in respect of such “administrative leases”. It provided, in so far as relevant: “1. Under this law, a lease which originated in an administrative decision on the allocation of a flat, or had another legal basis [that existed] before State management of housing or special lease scheme was introduced in a given locality, shall be treated as a contractual lease signed for an indeterminate time under the provisions of this law. 2. Until 31 December 2004 inclusive, the rent for flats let in the manner specified in paragraph 1 in dwellings owned by natural persons shall be determined in accordance with the provisions concerning controlled rent. ... 4. If an owner referred to in paragraph 2 intends to dwell in his flat and with that intention has vacated the flat which he has hitherto let ... from the municipality, the tenant shall be obliged to vacate the owner’s flat and to move into the flat [offered to him], provided that the [condition of] the flat in question complies with the requirements laid down by this law in respect of alternative accommodation. If such is the case, the owner may terminate the lease under section 32(2). ... 6. If the owner’s adult child or parents are to dwell in his flat, subsection 4 ... shall apply by analogy. 7. If the landlord has offered the tenant alternative accommodation which he or she owns himself or if, at the owner’s request, such alternative accommodation has been provided by the municipality, subsection 4 shall apply by analogy.” 82. Section 9 of the Act set out a detailed list of landlords’ duties under a tenancy. It applied both to landlords letting flats for a freely determined, market-related rent and to landlords receiving controlled rent. It also listed the types of maintenance work to be carried out by landlords under lease agreements. That section provided, in so far as relevant: “1. The landlord shall ensure that the existing technical facilities in the building are in working order; shall enable the tenant to use lighting and heating in the dwelling; shall ensure that the dwelling is supplied with cold and hot water and shall ensure the use of lifts, collective aerial, and other facilities in the building; ... 3. The landlord shall, in particular: (1) maintain in working order and keep clean any shared premises and facilities in the building; the same should apply to the vicinity of the building; (2) carry out repairs in the building and its dwellings and facilities, and restore any building which has been damaged, regardless of the cause of such damage; however, the tenant shall bear the costs of restoring damage for which he is liable; (3) carry out repairs in the dwellings, repair or replace installations and technical facilities and, especially, carry out such repairs for which the tenant is not responsible; in particular, he shall: a) repair and replace the water supply installation in the building and the gas and hot water supply installations, and repair and replace the sewage, central-heating (together with radiators), electricity, telephone and collective aerial installations – the latter, however, without fittings; (b) replace or repair furnaces, window and door woodwork, floors, floor linings and plasterwork. ...” 83. In practice, if such a tenant had not fallen into more than 2 months’ arrears of controlled rent, the lease could not be terminated unless he or she had used the flat “in a manner inconsistent with its function”, damaged the flat or the building, repeatedly and flagrantly disturbed the peace and upset order or had sublet the flat without obtaining the prior consent of the landlord (sections 31 and 32 of the 1994 Act). However, even if a tenant had fallen into rent arrears exceeding 2 months, a landlord was obliged to notify him in writing of his intention to terminate the lease agreement and to allow him a one month time-limit to pay off both the arrears and the current month’s rent. 84. On 12 January 2000 the Constitutional Court, ruling on a legal question referred to it by the Supreme Court, declared unconstitutional section 56(2) read in conjunction with, inter alia, section 25 of the 1994 Act (see paragraphs 79 and 81 above). It found that those provisions were in breach of Article 64 § 3 of the Constitution (protection of property rights) read in conjunction with Article 2 (rule of law and social justice) and Article 31 § 3 (principle of proportionality) of the Constitution (see also paragraphs 111 and 113-114 below) and Article 1 of Protocol No. 1 to the Convention because they had placed a disproportionately heavy and, from the point of view of the permitted restrictions on the right of property, unnecessary financial burden on the exercise of property rights by landlords owning flats subject to rent control. The court ruled that the unconstitutional provisions should be repealed on 11 July 2001. That in practice meant that by that date Parliament had to enact new, constitutional legislation dealing with the matter. 85. Before giving its judgment, the Constitutional Court asked the President of the Office for Housing and Town Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) for information concerning the implementation of the 1994 Act and, more particularly, the manner of determining the “conversion index of 1 square metre of the usable surface area of the residential building” as referred to in section 25 of the Act. According to the information received, levels of controlled rent had never reached the statutory 3% of the reconstruction value referred to in section 25(2) but were determined by the municipalities at 1.3% of that figure. As a result, the levels of controlled rent covered merely 60% of the maintenance costs of residential dwellings. The rest had to be covered by landlords from their own resources. That did not allow them to put aside any sums for repairs. 86. In the judgment the Constitutional Court attached much importance to the fact that the relevant regulations concerning controlled rent had brought about a situation whereby the expenses incurred by owners of dwellings were much higher than the rent paid by tenants and that the former “had no influence on how the rates of controlled rent were determined”. In its view, that shortfall of the rent actually received had resulted in the progressive reduction of the value of tenement houses and this, with the passage of time, entailed consequences similar to expropriation. The judgment contains extensive reasoning, the gist of which can be summarised as follows. “One of the essential elements of the right of property is the possibility of deriving profit from the object of ownership, which is of particular importance in a market economy. The legislature may regulate and limit this right in view of, among other things, the social context of enjoyment of property and duties towards the community that are inherent in ownership. In exceptional cases, ... it is even [acceptable] to exclude temporarily the possibility of ... deriving an income from goods that are the subject of ownership. However, if the limitations on a property right go even further and the legislature places an owner in a situation in which his property necessarily inflicts losses on him, while, at the same time imposing on him a duty to maintain property in a specific condition, it can be said that there is a limitation which impairs the very essence of that right. ... The Constitutional Court observes that the applicable provisions very seriously limit the possibility for a landlord to use and dispose of his dwellings, as referred to in section 56(1) of the 1994 Act. In particular, under this section all earlier tenancy relationships, in so far as they originated in administrative decisions on the allocation of a dwelling ... were transformed into contractual leases for an indefinite period. ... The Constitutional Court will not assess the compatibility of those regulations with the Constitution, as this is not the object of its ruling. It merely observes that, against that background, the owner of a building is practically deprived of any influence on the choice of tenants in his building and on whether the lease relationships with those persons should continue. ... Thus, the possibility [for a landlord] to enjoy and dispose of property is very considerably limited. While it is not totally extinguished, as he may still sell his building (dwelling) or take out a mortgage on it and there are no restrictions on succession rights, the exclusion of the owner’s right to dispose of dwellings subject to the provisions of the 1994 Act results in the depreciation of the market value of the building. By the same token, other attributes which have so far not been taken away from the owner, such as the possibility of enjoying and disposing [of his property], are substantially reduced and his property right becomes illusory. At the same time, the legal provisions impose on the owner of the building a number of onerous duties... Not only do most of the applicable laws impose specific duties on the owner but they also provide for specific penalties for failure to comply with those duties or to discharge them properly. ... The Constitutional Court considers that the 1994 Act and, especially, its practical application have not secured a sufficient mechanism for balancing the costs of maintaining a building, its equipment and surroundings and the income from controlled rent. ... The Constitutional Court considers it necessary to draw attention to two further points which are relevant for the situation of the landlord. First, the inadequacy of controlled rent vis à vis real expenses for maintenance of a building does not allow ... [landlords] to put aside savings for repairs and for keeping the building in a good condition. As a result, the tenement houses are gradually losing value. In terms of property rights, this should be perceived as a process of gradual deprivation of this right, leading, with the passage of time, to results similar to expropriation. Also, it has a general impact on the community because many tenement houses are approaching the time of their ‘technical death’ and, in consequence, not only will the owner lose his property but tenants will also lose the possibility of housing, which will hardly be compatible with Article 75 § 1 of the Constitution. Secondly, the inadequacy of controlled rent vis à vis real expenses for maintenance of a building has not been duly recognised by the tax laws... [Under those laws], landlords are treated in the same way as businessmen or a person letting dwellings for a profit and must bear the financial consequences of all losses caused by the lease of their dwellings. ... [As regards the principle of proportionality laid down in Article 31 § 3 of the Constitution] ... it may be justified to fix rent in such a way that it will not be disproportionate to the financial standing of tenants, so that it will be possible for them to maintain a decent standard of living (or at least a minimum standard) after paying the rent. Thus, it is in conformity with the contemporary perception of a “social state” to demand some sacrifice from all members of society for the benefit of those who cannot provide subsistence for themselves and their families. By the nature of things, the extent of that sacrifice depends on the level of income and imposes a heavier burden on those who are better off. By the nature of things, the owners of property may be required to make sacrifices, according to the general principle that ‘ownership entails obligations’. However, the distribution of burdens among specific members of society cannot be arbitrary and must maintain rational proportions. In the circumstances obtaining in Poland, pursuant to Article 31 § 3, it may be justified to maintain the provisions limiting landlords’ property rights and, more particularly, excluding unrestricted freedom in fixing rates of rent and other charges collected from tenants. ... It may still – in any event in the transitional period – be justified to impose further-reaching restrictions on property rights, precluding the freedom to derive profit by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building. However, an assessment of the 1994 Act leads to the conclusion that the applicable restrictions do not stop there. The present regulations deliberately set the levels of controlled rents below the costs and expenses actually incurred by owners. That, in itself, would not necessarily have had to be considered unconstitutional had there been any parallel legal mechanism compensating for incurred losses. No such mechanisms have been set up. In consequence, the applicable provisions are based on the premise that property must – until the end of 2004 – entail losses for the owner and that, at the same time, the owner has a duty to incur expenses to maintain his property in a particular condition. That means that the 1994 Act placed the main burden of the sacrifices that society had to make for tenants, or at least for tenants in a difficult financial position, on the owners of property. Besides, other remedies – such as, for instance, subsidising from the public funds the costs of maintaining and repairing buildings referred to in section 56(1), ensuring full recognition in the tax regulations for losses and expenses incurred by landlords and making the level of rent dependent on the tenant’s income – have not been employed. Instead, the simplest means (being apparently the cheapest in social terms) have been applied, namely setting a low maximum level of rent and allowing the municipalities to make exceptions to that level. Consequently, it has been assumed that owners will cover the remaining costs of maintaining their property out of their own pockets. No proportionality whatsoever has been maintained in respect of the distribution of burdens (sacrifices) among the owners and the other members of society. The Constitutional Court would stress once again that in the present context there is a constitutionally acknowledged necessity to protect the rights of tenants ... and this may be reflected in, among other things, provisions fixing a maximum level of rent. However, there is no constitutional necessity to afford them such protection mostly at the expense of private individuals – the owners of dwellings – because the duty to help the underprivileged and [the duties inherent in] social solidarity are incumbent not only upon those persons. It is possible to adopt other legal solutions so as to secure at the same time the necessary protection to tenants and the minimum financial means needed to cover the requisite costs to the landlords. ... It is not for the Constitutional Court to indicate concrete solutions and to determine the ratio of costs to be incurred by tenants, landlords and the community as a whole. However, this court considers that there are no constitutional considerations to justify imposing the greater part of those costs on the landlords. ... Consequently, section 56(2) is incompatible with the Constitution. A limitation on the right of property ... which is not ‘necessary’ does not satisfy the constitutional requirements of proportionality. [Other considerations] The finding that section 56(2) infringes the principle of proportionality makes it unnecessary for the Constitutional Court to determine whether that provision also infringes the very essence of the right of property since [a further finding to that effect] will not affect the merits of the ruling. It should merely be noted in passing that the question whether the “essence” of the right of property has been preserved must also be assessed ... against the background of the combination of existing limitations on this right. ... The manner in which [rent control] has been effected by section 56(2), taken together with other provisions regarding privately owned buildings has [resulted] in the owners being deprived even of the slightest substance of their property rights. It is the Constitutional Court’s opinion that, in consequence, the right to derive profit from property, which is an important element of the right of property, has been destroyed and, at the same time, the second element, the right to dispose of one’s property, has been stripped of its substance. In consequence, the right of property has become illusory and unable to fulfil its purpose in the legal order based on the principles listed in Article 20 of the Constitution [principles of social market economy, economic activity, private ownership, solidarity, dialogue and cooperation]. [As regards the constitutional aspects of the situation of tenants] A kind of obligation has been placed on the legislature to ensure that up to 31 December 2004 tenancy relationships concerning municipal dwellings and [privately owned] dwellings should retain their present form, including the level of rent [3% of the reconstruction value of the dwelling] ... The Constitutional Court considers that, having regard to the principle of maintaining citizens’ confidence in the State and the law made by it and the principle of legal security, which ensue from the rule of law laid down in Article 2 of the Constitution and are binding on the legislature, renouncing that obligation will be admissible only in case of exceptional public necessity. At present, there is no such necessity ... It should be noted in passing that setting a time-limit for the operation of the rent-control scheme in buildings owned by natural persons also places an obligation on the legislature – for the benefit of landlords – to repeal the scheme in its present form by the end of 2004. This obligation should also be seen from the perspective of the principle of maintaining citizens’ confidence in the State. [Final considerations] The constitutional inadmissibility of setting the income received by landlords below a certain minimum does not automatically mean that the rent chargeable to tenants has to be increased, because that problem can be resolved by allocating public financial resources.” 87. In its judgment of 10 October 2000 the Constitutional Court held that section 9 of the 1994 Act (see paragraph 82 above), laying down landlords’ obligations, was incompatible with the constitutional principles of the protection of property rights and social justice because, in particular, it placed a heavy financial burden on them, a burden which was in no way proportionate to the income from controlled rent. The Constitutional Court ruled that that provision should be repealed by 11 July 2001. 88. Following the Constitutional Court’s rulings of 12 January and 10 October 2000, Parliament adopted a new law governing housing matters and relations between landlords and tenants. The relevant statute – that is to say, the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”) entered into force on 10 July 2001. It repealed the 1994 Act and replaced the previous scheme of controlled rent with another statutory rent-control mechanism that restricted the possibility for landlords to increase levels of rent. The 2001 Act was then successively amended. The most important amendments, adopted by Parliament on 17 and 22 December 2004, entered into force on 1 January 2005 (see paragraphs 128-136 below). 89. Section 9 of the 2001 Act listed situations where a landlord could increase rent. That provision, in the version applicable until 10 October 2002 (see paragraph 106 below), read, in so far as relevant: “1. Increases in rent or other charges for the use of a dwelling, apart from charges that do not depend on the landlord [e.g. those for electricity, water, central heating, etc.] may not be made more often than once every six months; 2. If a landlord increases other charges that do not depend on him, he shall be obliged to provide the tenant with a table of charges and the reasons for the increase; 3. In a given year the increase in rent or other charges, except for charges that do not depend on a landlord, shall not exceed the average general yearly increase in prices for consumer goods and services in the previous year in relation to the year preceding that year by: (1) 50% - if the annual rent does not exceed 1% of the reconstruction value of the dwelling; (2) 25% - if the annual rent is higher than 1% but not more than 2% of the reconstruction value of the dwelling; (3) 15% - if the annual rent is higher than 2% of the reconstruction value of the dwelling. Information on the increase in prices referred to in the first sentence [of this paragraph] shall be communicated in official bulletins of the President of the Central Statistical Office; ... 8. The reconstruction value of a dwelling shall be the product of its usable area and the conversion index of the reconstruction cost of 1 square metre of the usable area of the residential building. ...” 90. A further restriction on rent increases by landlords followed from section 28(2) of the 2001 Act, which provided that controlled rent could not exceed 3% of the reconstruction value of the flat. That provision was in force until 31 December 2004, the deadline that had already been set under the 1994 Act (see also paragraph 81 above). Section 28(2) read: “Until 31 December 2004 in all tenancy relations subsisting before the date of entry into force of this law, the level of rent in respect of dwellings that were subject to the controlled rent scheme on the date of the entry into force of this law, may not exceed 3% of the reconstruction value of the dwelling per year.” 91. Section 11 of the 2001 Act listed situations in which a landlord could terminate a lease agreement that originated in an administrative decision. Section 11(1)-(2) read, in so far as relevant: “1. If a tenant is entitled to use a dwelling for rent, the landlord may give notice only for reasons listed in this provision ... Notice should, on pain of being null and void, be given in writing. 2. The landlord may give one month’s notice effective at the end of a calendar month, if: (1) the tenant, despite a reminder in writing, still uses the dwelling in a manner contrary to the terms of the agreement or in a manner inconsistent with its function, thus causing damage; or if he or she has damaged equipment designed for common use of residents; or if he or she he has flagrantly or repeatedly disturbed order, thus severely upsetting (czyniąc uciążliwym) the use of other dwellings; or (2) the tenant has fallen into more than three months’ arrears of rent or other charges for the use of the dwelling and, despite being informed in writing of the landlord’s intention to terminate the agreement and given one month to pay off both the arrears and the current month’s rent, has not paid those amounts, or (3) the tenant has sublet the flat or part of it, or allowed it , or part of it, to be used fee of charge by another without the landlord’s authorisation; or (4) the tenant uses the flat which has to be vacated in view of the impending demolition or substantial renovation of the building... 92. Pursuant to section 11(3), a landlord who received rent which was lower than 3% of the reconstruction value of the dwelling could terminate the agreement if a tenant had not lived in the flat for more than 12 months or if he had title to another flat situated in the same town. Section 11(4) provided that a landlord could terminate the agreement with 6 months’ notice if he intended to dwell in his own flat and had provided the tenant with “substitute accommodation” (lokal zastępczy) or the tenant was entitled to a dwelling which met conditions for “substitute accommodation”. Under section 11(5), a landlord could terminate the agreement upon 3 years notice if he intended to dwell in his flat but had not provided the tenant with any “substitute accommodation”. 93. However, section 12(1) further limited the possibility of terminating leases. It stated that if a landlord intended to terminate a lease on the grounds mentioned in section 11(2)(2) (rent arrears unpaid despite the fact that a warning notice had been served and an extra time-limit had been set for payment) and if the tenant’s income would entitle him to obtain a lease on “social accommodation” (lokal socjalny) belonging to the municipality, no notice could be given unless the landlord had proposed a settlement to the tenant concerning the arrears and running charges. 94. The 2001 Act, in the version applicable up to 1 January 2005, did not contain any specific provisions setting out the duties of landlords and tenants with regard to maintenance and repairs of dwellings and residential buildings. Those issues were governed partly by the relevant provisions of the Civil Code (which applied in so far as a given matter had not been addressed by the 2001 Act) and partly by the Construction Act of 7 July 1994 on (Prawo budowlane) (“the Construction Act”), which lays down the general duties of owners of buildings. 95. Article 662 of the Civil Code, which lays down a general rule, reads, in so far as relevant: “1. The landlord should give the object [of a lease] to the tenant in a usable state and should keep it in such a state for the duration of the lease. 2. Minor repairs related to the normal use of the object [of the lease] are incumbent on the tenant.” 96. Article 675 of the Civil Code reads, in so far as relevant; “1. After the termination of a lease, the tenant shall be obliged to return the object [of the lease] in a condition not worse [than when he took possession of it]; however, he or she shall not be responsible for any deterioration of the object caused by reasonable wear and tear.” 97. Article 681 lists minor repairs for which a tenant is responsible. It reads as follows: “Minor repairs for which the tenant is responsible are, in particular: minor repairs of floors, doors and windows, painting of walls and floors and the inner side of the flat’s entrance door, as well as minor repairs of installations and technical equipment that enable the use of lighting, heating, the water supply and the sewage system.” 98. Section 61 of the Construction Act provides: “The owner or manager of a building shall be obliged to maintain and use the building in accordance with the rules set out in section 5(2).” Section 5(2) states: “The conditions for use of a building shall be secured in accordance with its purpose, in particular in respect of: (a) the water and electricity supply and, if need be, the supply of heating and fuel, regard being had to their effective use; (b) sewage, waste disposal and rainwater drainage.” 99. Article 691 of the Civil Code provides, in so far as relevant: “In the event of a tenant’s death, the following persons shall succeed to the tenancy agreement: his or her spouse if the latter has not been a party to that agreement, his or her children, his or her spouse’s children, any other persons to whom he was obliged to pay maintenance, and a person living with the tenant in de facto marital cohabitation. 2. The persons referred to in paragraph 1 shall succeed to the tenancy agreement if they lived in the tenant’s household until his or her death. 3. If there are no persons in the categories referred to in paragraph 1, the lease agreement shall expire.” 100. On 11 December 2001 the Ombudsman (Rzecznik Praw Obywatelskich) made an application to the Constitutional Court and asked, inter alia, that section 9(3) of the 2001 Act (see paragraph 89 above) be declared incompatible with the constitutional principle of the protection of property rights. The Ombudsman referred to numerous complaints that he had received from landlords, who claimed that levels of rent as determined under that section did not cover the basic maintenance costs of residential buildings. He also submitted that the recent rules for the determination of rent put landlords at a bigger disadvantage than the rules which had been laid down in the 1994 Act and which had already been repealed as being unconstitutional. He criticised the legislation on the ground that it was exceptionally inconsistent. He referred, in particular, to the – in his view erroneous – statutory correlation between rent increases and the increase of prices for consumer goods and services, which were not related in reality to the costs of maintaining a building. He added that there were still no provisions to allow the landlords to recover losses incurred in connection with expenses for maintenance of property. 101. The representatives of Parliament and Prosecutor General (Prokurator Generalny) asked the Constitutional Court to reject the application. 102. The court invited organisations of landlords and tenants to take part in the proceedings and submit their observations in writing. The Polish Association of Tenants, the Polish Union of Property Owners (Polska Unia Właścicieli Nieruchomości) and the All-Polish Association of Property Owners (Ogólnopolskie Stowarzyszenie Właścicieli Nieruchomości) filed their pleadings on 16, 17 and 18 September 2002 respectively. 103. The Polish Union of Property Owners supplied considerable statistical material, showing that the level of controlled rent represented on average around 1.5% of the reconstruction value of the building, which in turn amounted to some 40% of the costs of maintenance of residential buildings. They presented a sample calculation of monthly rent based on the average reconstruction value, the average size of a flat and the average gross income. Assuming that the average reconstruction value was PLN 2,200, that 1.5% of that value was the average maximum reached by controlled rent and that the average flat had a surface area of 40 square metres, the average monthly rent amounted to PLN 110. That amount, they stressed, represented 5% of the average gross income, whereas, according to them, in the European Union countries rent accounted for 25-30% of the average gross income. 104. The All-Polish Association of Property Owners submitted, among other things, that the impugned legislation was in breach of the constitutional principle of proportionality because a group of some 100,000 landlords had to bear the main burden of social protection afforded by the Polish State to about 900,000 tenants, without any financial support from some 15,000,000 Polish taxpayers. 105. The Polish Association of Tenants considered that the contested provisions were compatible with the Constitution. It drew attention to the fact that a large group of tenants, especially those who had been granted the right to a lease by means of administrative decisions, were in a poor financial position. It stressed that during the period of State management of housing matters those tenants had made investments and had thereby contributed to the maintenance costs of buildings, even though they had not been legally obliged to do so. At the hearing, in reply to the questions from the judges, the President of the Association admitted that tenants paying controlled rent also included well-off persons, in respect of whom an increase in rent would be justified. 106. On 2 October 2002 the Constitutional Court, sitting as a full court, declared section 9(3) of the 2001 Act unconstitutional as being incompatible with Article 64 §§ 1 and 2 and Article 31 § 3 of the Constitution (see also paragraphs 113 and 114 below). The provision was, accordingly, repealed. The repeal took effect on 10 October 2002, the date of the publication of the judgment in the Journal of Laws (Dziennik Ustaw). 107. In the reasoning for its judgment, the Constitutional Court extensively cited its judgment of 12 January 2000 (see paragraphs 84-86 above). In conclusion, it held that the fact that the 2001 Act had abolished the scheme of rent control had not improved the situation of landlords because, instead, it had introduced a defective mechanism for controlling increases in rent. In its opinion, section 9(3) had not only “frozen” the disadvantageous position of landlords, a situation which had already been found to be incompatible with the Constitution, but had also, owing to the changing economic circumstances, significantly reduced any possibility of increasing rent to cover expenses incurred by them in connection with the maintenance of property. The court repeated what it had already stated in its judgment of 12 January 2000, namely that the relevant provisions placed the main burden of the sacrifices that society had to make for the benefit of tenants in a difficult financial position on the owners of property. It went on to find that section 9(3) perpetuated the state of a violation of property rights that had subsisted under the 1994 Act, especially as landlords had not been relieved of any of their previous duties in respect of maintenance of property. 108. The main thrust of the Constitutional Court’s reasoning was as follows: “During the transition from controlled rent to contractual rent it is necessary to control the increase in rent. ... In most European countries legislative bodies exercise control over rent increases. The introduction of such a mechanism into Polish law seems to be particularly justified and the need for it follows quite evidently from the shortage of flats and the absence of a lease market which would influence rates of rent. This very low supply of flats for rent has caused a situation in which tenants are exposed to undue demands from landlords. Hence there is a need to regulate rent increases. While recognising this necessity, the Constitutional Court is convinced that the mechanism introduced by the impugned provision is defective and is objectively inappropriate for accomplishing the aims pursued by the legislature. ... To begin with, the Constitutional Court will examine the impact of the operation of section 9(3) of the 2001 Act on landlords who were subject to controlled rent under the 1994 Act. In this court’s view, the contested provision has not only “frozen” the disadvantageous position of landlords subsisting under the 1994 Act, a situation which was already found to have been incompatible with the Constitution, but has also actually aggravated that situation on account of changing economic circumstances. ... At the time when the present legislation entered into force, tenants paid rent determined by the municipalities. [The rent paid], according to the information supplied by the Office for Housing and Town Development, covered merely 60% of the costs of maintenance of residential buildings. The 2001 Act did not increase rent to the level that could have been established according to the principles set out by the Constitutional Court in [the judgment of 12 January 2000]. Nor did the legislature give landlords an opportunity to increase rent to a level ensuring recovery of their expenses. The 2001 Act has frozen rates of rent and fixed them as a reference level for the calculation of future increases. ... In the Constitutional Court’s opinion, in order to arrive at reasonable level of rent it is necessary to take one of the following two measures: either a one-off increase in deflated rates of controlled rent, accompanied by a restrictive protection of tenants against further increases or, while freezing the applicable rates, permitting considerable increases in relatively rapid succession until an acceptable level has been reached. However, the legislature fixed an unreasonably low basic rent and allowed only strictly regulated increases, correlated with the inflation rate. The legislature did not take into account the fact that the rate of inflation was constantly declining, which means that permissible increases have been insignificant, amounting merely to a few percentage points of the basic rent and giving no opportunity, for purely mathematical reasons, to reach levels that would ensure profitability, or at least recovery of maintenance costs. The decrease in the inflation rate, although a generally positive sign of economic stability, has resulted in the stagnation of rent at low levels. The deterioration of the situation of the landlords receiving controlled rent is also shown by a comparison of rent increases under the 1994 Act with increases permissible under the 2001 Act. As transpires from information supplied by the Office for Housing and Town Development [in respect of the operation of the 1994 Act], at the relevant time municipalities raised controlled rent annually to a significant extent: in 1996, when the inflation rate was about 20%, by 30% on average, but in 1997, when the inflation rate was 13%, by 31%. The pace of transition to a reasonable level of rent was faster than at present, if only because municipalities, themselves owning residential buildings, had a strong interest in securing genuine increases in rent. Finally, the previous regulations gave landlords the hope of relaxing rent policy. Irrespective of the rates of controlled rent imposed on them by municipalities, they knew that from 2005 they would be able to negotiate rent freely. However, that encouraging prospect was wiped out by section 9(3) of the 2001 Act. Even though the ceiling of 3% will no longer apply after [31 December] 2004, given the provision of section 9(3), this ceiling will not be reached in reality. In the Constitutional Court’s view, the above circumstances give sufficient grounds to find that the situation of landlords who formerly received controlled rent is now unquestionably less favourable than it used to be under the 1994 Act. ... [O]n the contrary, section 9(3) has perpetuated the violation of the right of property. At this point, it is necessary to determine how the landlords’ situation looks in other respects, apart from the restrictions on rent increases. If, following the ... judgment of 12 January 2000, the legislature had significantly changed any aspect of the legal position of landlords, thereby compensating for losses resulting from reduced rent, the evaluation of levels of rent in the present case would have had to be based on other criteria than those referred to by this court in 2000. Since 12 January 2000 there have been no changes to legislation, apart from the enactment of the 2001 Act, which seriously aggravated the situation of landlords. They still bear the burden of obligations imposed by the Construction Act, whose non-fulfilment, as stressed by the Ombudsman, is subject to penalties. There have been no changes to regulations on income tax, at least in respect of deductions from tax (or from taxable income) of amounts spent on maintenance of buildings in which flats are let to tenants. Nor has the legislature introduced preferential loans for repairs. ... The Constitutional Court also points out that the 2001 Act has not materially improved the situation of landlords in respect of termination of leases. ... Accordingly, it is fully justified to rely on this court’s findings in respect of section 56(2) of the 1994 Act. Even though the provisions under consideration have changed, and the Court is now considering completely different legal instruments (control of rent increase as opposed to the scheme of rent control under the 1994 Act), the core of the dispute and the issues under consideration remain essentially the same, namely the situation of landlords on whom the legislature has imposed reduced levels of rent. In addition, section 9(3) leads to a difference in the treatment of landlords, depending on whether they are parties to lease relationships formerly governed by the rent control scheme, or to lease contracts based on freely determined rent. As shown above, in practice the rent increase mechanism adversely affects the first group of landlords and, and the same time, unjustifiably and at the tenant’s expense, favours the second group. In view of the foregoing, the Constitutional Court finds that the [operation of] the contested provision is tantamount to the continued violation of the right of property vested in a specific group of landlords, namely those who entered into a lease relationship by virtue of administrative decisions on the allocation to a dwelling, or on another basis, prior to the introduction of State management of housing matters in a given municipality. Not only did the legislature fail to adjust rates of controlled rent, despite their having been found to be unconstitutional, but in fact, through the introduction of restrictive provisions on rent increases, practically froze such rents at levels that cannot be regarded as consistent with constitutional guarantees of the right of property. ... It is worth reiterating, having regard to the [judgment of 12 January 2000], that the restrictions in question are undoubtedly guided by the need to protect public order and the rights of other persons, namely tenants. However, according to the Constitutional Court’s case-law, Article 31 § 3 of the Constitution implies that restrictions on the rights guaranteed therein are necessary. In respect of the rent [control scheme], the Constitutional Court qualified as “necessary” – at least during the transitional period – the restriction on the right of property “precluding the freedom to derive profit, by fixing levels of rent in such a way as to cover only the costs of maintenance and upkeep of the building”. A reduction below that minimum was seen by this court as unconstitutional. Placing the financial burden of subsidising rent on a single social group, namely landlords, was also considered to have been unconstitutional since “the duty to help the underprivileged and [the duties inherent in] social solidarity are incumbent not only upon those persons”. The Constitutional Court envisaged and still envisages the possibility of applying other legal solutions ... which would result in a more uniform social distribution of the burden linked to the necessity to satisfy housing needs. It is therefore unnecessary to place the entire burden on the single group of landlords. Consequently, the Constitutional Court considers that the restriction resulting from section 9(3) ... does not meet the criteria established by the principle of proportionality and goes beyond the tolerable extent of limitations on the right of property set out in Article 31 § 3 of the Constitution. The Constitutional Court is not competent to fix minimum levels of rent... [However,] from the point of view of the protection of landlords’ rights, [it] stresses again the crucial importance of the correct determination of the costs of maintenance and upkeep of residential buildings. This constitutes the absolute minimum rate. ... As regards the implementation of the constitutional rights of tenants, the Constitutional Court stresses that, although in the present judgment section 9(3) of the 2001 Act has been found unconstitutional, the Act still imposes significant restrictions on the freedom to increase rent. The most important of them is definitely section 28(2), which remains in force and which provides that ... up to 31 December 2004 inclusive the annual rent may not exceed 3% of the reconstruction value of the dwelling.” 109. On 12 May 2004 the Constitutional Court heard a constitutional complaint lodged by a certain J.-M. O, challenging the constitutionality of section 9(3) and section 28(3) of the 2001 Act (see paragraphs 89 and 90 above). He submitted that those provisions were incompatible with Article 64 § 1 (protection of property rights) of the Constitution read in conjunction with Article 31 § 3 (principle of proportionality). In their written pleadings, the Prosecutor General and representatives of Parliament asked the court to discontinue the proceedings in so far as they concerned the constitutionality of section 9(3) since it had already been repealed by the judgment of 2 October 2002, and to hold that section 28(3) was compatible with the Constitution. At the oral hearing, J.-M.O. stated that he intended to pursue his complaint only in so far as section 28(3) was concerned. 110. The Constitutional Court held that section 28(3) was compatible with the Constitution and found: “As emerges from [the Constitutional Court’s judgments of 12 January 2000 and 2 October 2002], the question of maintaining the maximum ceiling on rent has already been examined by this court and the measure was considered to have been necessary from the point of view of public order – at least in the transitional period. The need to protect tenants against unduly high rent is justified by the situation of housing in Poland, which is the consequence of State management of housing and has resulted in a commonly experienced shortage of flats. A limitation on levels of rent – such as the one introduced by the contested provision – does not impair the essence of the right of property because it does not deprive owners of essential elements of that right. It has to be stressed that the right to a lease is one of the pecuniary rights protected by Article 64 §§ 1 and 2 of the Constitution and that restrictions on the right of property is inherent in many pecuniary rights, including the right to a lease. The contested section has set a maximum ceiling on rent with a clear time-frame – up to the end of 2004 – and this also may have an impact on whether a temporary restriction on the right of property may be regarded as not impairing its essence. It also has to be stressed that the setting of a clear time-frame in section 28(3) implies an obligation of the legislature towards landlords, which must be assessed from the point of view of the principle of citizens’ confidence in the State and the law made by it.” 111. Article 2 of the Constitution states: “The Republic of Poland shall be a democratic State ruled by law and implementing the principles of social justice.” 112. Article 20 lays down the basic principles on which Poland’s economic system is founded. It reads: “A social market economy, based on freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.” 113. Article 31 § 3 reads: “Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute, and only when it is necessary in a democratic State for the protection of its security or public order, or for the protection of the natural environment, health or public morals, or the freedoms or rights of other persons. Such limitations shall not impair the essence of freedoms and rights.” 114. Article 64 protects the right of property in the following terms: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may be limited only by means of a statute and only to the extent that this does not impair the substance of such right.” 115. Article 75 refers to the protection of tenants. It reads as follows: “1. The public authorities shall pursue policies conducive to satisfying the housing needs of citizens, in particular combating homelessness, promoting the development of low-income housing and supporting activities aimed at acquisition of a home by each citizen. 2. Protection of the rights of tenants shall be established by statute.” 116. Article 76 provides: “The public authorities shall protect consumers, customers, hirers or lessees against activities threatening their health, privacy and safety, as well as against dishonest market practices. The scope of such protection shall be specified by statute.” 117. After 10 October 2002, as a result of the Constitutional Court’s judgment, it became possible for landlords to increase rent to up to 3% of the reconstruction value of the dwelling. At the end of 2002 levels of rent generally increased. According to the Government, in the Warsaw District, where the previous rate was PLN 2.17 per square metre, the rent quadrupled, reaching around PLN 10.00 per 1 square metre in 2004. According to reports published in the Polish press, in most other towns 3% of the reconstruction value of the dwelling corresponded to PLN 5.00-6.00 for 1 square metre. Levels of freely determined contractual rent are still higher; sometimes and, especially, in large towns, the difference may reach even 200-300%. 118. At the beginning of 2003 the Government started to prepare a bill amending the 2001 Act. The Government Bill was submitted to Parliament on 30 December 2003. 119. The explanatory memorandum on the bill stated that the aims of the proposed amendments were, among other things, “to specify rights and obligations of a landlord and tenant in order to strengthen the protection of the weaker party”; “to introduce new rules for the protection of tenants against the excessive increase in rent and other charges for the use of dwellings”; and “ to reduce the disproportion between the constitutionally guaranteed protection of tenants and the constitutional rights of landlords”. 120. The Government proposed a number of changes to the existing provisions. The most important and controversial provision was the proposed section 28, pursuant to which (subsection 2) the scheme of rent control, despite the fact that the deadline for its operation had been set by the legislature for 31 December 2004, was to be maintained until the end of 2008 in respect of all lease agreements in force before 10 July 2001 under which the tenants paid controlled rent. That in practice meant all leases originating in administrative decisions regarding privately owned buildings. The provision was to be applied mostly to all individual landlords, its operation in relation to public housing entities and housing cooperatives being of a minimal effect. The explanatory memorandum stated that the repeal of the rent-control scheme in its entirety “could cause a dramatic increase in rent” after the end of 2004 and that the limitation “would allow a smooth transition from the levels of rent at the end of 2004 to levels fixed in accordance with general principles”. The Government therefore proposed that controlled rent be frozen at the maximum level of 3% of the reconstruction value of the dwelling up to 31 December 2004; 3.25% up to the end of 2005; 3.5% up to the end of 2006; 3.75% up to the end of 2007 and 4% up to the end of 2008. 121. The effects of the proposed rent freeze on the property rights of individual landlords have received considerable media attention and have given rise to heated public debate. The proposal was severely criticised by all organisations of landlords. 122. Eventually, on 5 October 2004, the Government submitted to Parliament an amendment to their bill. They withdrew their original proposal to freeze levels of rent after 31 December 2004. They still maintained the proposal to limit the increase in rent for leases originating in previous administrative decisions. 123. On 22 June 2004 a group of deputies from the “Law and Justice (“Prawo i Sprawiedliwość”) party submitted a bill proposing amendments to the 2001 Act. 124. The general thrust of the proposed changes, as set out in the relevant explanatory memorandum, was: “to secure the effective protection of the rights of tenants, as guaranteed by Articles 75 § 1 and 76 of the Constitution, by: (a) preventing the overuse by landlords of the right to terminate a lease agreement under section 11(5) of the 2001 Act; b) preventing the dysfunction resulting from non-fulfilment by landlords of the duties incumbent on them in leasing dwellings (even in cases where the landlords are unknown and the municipality does not manage the property).” 125. Parliament decided to work on both bills simultaneously. The first reading took place on 6 October 2004. The second reading, following the report of the Parliamentary Committee on Infrastructure, the Committee for Family and Social Policy and the Committee on Self-Government and Regional Policy and the adoption of amendments, was on 17 November 2004. After the third reading, which took place on 19 November 2004, the bills were adopted by the Sejm and transmitted to the Senate and the President of Poland on the same day. On 6 December 2004 the Senate proposed several amendments, the most significant being the amendment to section 9 of the 2001 Act, restricting the maximum increase in rent to a level of 10% per year in situations where the rent paid exceeded 3% of the reconstruction value of the dwelling. 126. On 17 December 2004 the Sejm accepted some of the Senate’s amendments, most notably the amendment to section 9. On the same day the Act of Parliament was transmitted for signature by the President of Poland. The President signed it on 23 December 2004. 127. On 22 December 2004, following, among other things, press reports stating that the new provision of section 9 of the 2001 Act did not exclude the possibility of a one-off increase in rent even where the rent was equal to, or less than, 3% of the reconstruction value of the dwelling, Parliament passed, in an accelerated procedure, another bill amending the 2001 Act. The bill was tabled by a group of deputies and contained only one proposal, namely to add another subsection to section 9 of the 2001 Act (see paragraph 136 below). On the same day the bill was transmitted to, and accepted by, the Senate. The President of Poland signed the Act of Parliament on 23 December 2004. 128. The 17 December 2004 Amendment entered into force on 1 January 2005. 129. New section 8a was drafted with a view to implementing both the Constitutional Court’s ruling of 2 October 2002 and the constitutional principle of the protection of tenants’ rights. It subjects the increase in rent to various restrictions. It reads, in so far as relevant: “1. The landlord may increase rent or other charges for the use of the dwelling, giving [the tenant] notice of the rent increase, not later than by the end of a calendar month [and] in compliance with the terms for giving notice. 2. The term for giving notice of an increase in rent or in other charges for the use of the dwelling shall be 3 months, unless the parties have stipulated a longer term in their contract; ... 4. An increase in rent exceeding 3% of the reconstruction value of the dwelling within 1 year, may take place only in justified cases. At the tenant’s written request, the landlord shall, within 7 days, give reasons for the increase and its calculation in writing. 5. The tenant may, within 2 months following the notice of the increase, challenge the increase referred to in subsection 4 by bringing a court action to have the increase declared unjustified or justified but in a different amount [; he or she may also] refuse to accept the increase, with the effect of the contract being terminated by the end of the term of notice. The burden of proof in respect of the justification of the increase shall rest with the landlord. ... 7. Provisions of subsections 1-6 shall not apply to increases: (1) not exceeding 10% of the current rent or current charges for the use of the dwelling within a year; ... (3) concerning charges that do not depend on the landlord.” 130. In section 9 of the 2001 Act subsections 1 and 2 were reworded as follows: “1. Increases in rent or other charges for the use of the dwelling, apart from charges that do not depend on the landlord [e.g. those for electricity, water, central heating, etc.] may not be made more often than every 6 months but, if the level of the annual rent or other charges for the use of the dwelling, apart from charges that do not depend on the landlord, exceeds 3% of the reconstruction value of the dwelling, a yearly increase cannot be higher than 10% of the current rent or current charges for the use of the dwelling [; such an increase] shall be calculated without charges that do not depend on the landlord. 2. If charges that do not depend on the landlord have been increased, he or she shall give a tenant a written statement listing charges and reasons for their increase. The tenant shall be obliged to pay the increased charges only up to such a level that is necessary for the landlord to cover costs of supply of utilities referred to in section 2(8) [e.g. electricity, water, heating].” 131. As regards the termination of leases by individual landlords, the new section 11 differs only slightly from the previous provision on termination of leases (see paragraph 91 above). Section 11(1) now reads, in so far as relevant, as follows: “If a tenant is entitled to use a dwelling for rent, the landlord may give notice only for reasons listed in subsections 2-5 .... Notice should, on pain of being null and void, be given in writing. Subsections (2), (4) and (5) of section 11 remain unchanged. Subsection (3) now reads: “ The landlord of a dwelling for the lease of which the rent is lower than 3% of the reconstruction value of the dwelling in a given year may terminate the lease: (1) with six months’ notice if the tenant has not lived in the flat for more than 12 months; 2) with one month’s notice, expiring at the end of a calendar month, in respect of a person who has been entitled to another dwelling in the same or nearby locality and provided that dwelling meets the requirements for substitute accommodation.” 132. As regards cases where the landlord, his adult descendants or a person in respect of whom he is obliged to pay maintenance intend to dwell in the landlord’s flat (see also paragraph 93 above), the provision of the present section 11(7) is that the notice to quit given to the tenant should, on pain of being invalid, indicate the person who is to dwell in the flat. The terms for giving notice (6 months and 3 years respectively) remain unchanged). 133. Under section 11(12) the termination of a lease in respect of a tenant who on the date of giving notice is more than 75 years old and who, after the expiry of the applicable 3 years’ notice will have no title to another dwelling and will have no persons obliged to maintain him or her will take effect upon his or her death. 134. Section 6a sets out a list of the landlord’s duties under the tenancy. In essence, it repeats the provision of section 9 of the 1994 Act (see paragraph 82 above). 135. Section 6b lays down the tenant’s duties. It reads, in so far as relevant: “1. The tenant shall be obliged to keep the dwelling in a proper technical, sanitary and hygienic state as prescribed by other separate provisions and to comply with the rules of good conduct in the building. He or she shall also be obliged to take care, and ensure protection against damage or devastation, of parts of the building designed for common use, such as lifts, staircases, corridors, chutes, other [similar] premises and the surroundings of the building. Subsection (2) sets out a detailed list of repairs and works involved in upkeep of a flat. 136. The 22 December 2004 Amendment entered into force on 1 January 2005. It reads, in so far as relevant: “In section 9(1) [of the 2001 Act] the following subsection 1(a) shall be included: ‘The provisions of subsection 1 shall also apply in the event of an increase in rent or other charges for the use of a dwelling, except for charges that do not depend on the landlord if, after the increase, the level of the annual rent or other charges for the use of the dwelling, except for the charges that do not depend on the landlord, is to exceed 3% of the reconstruction value of the dwelling.’ ” 137. On 4 January 2005 the Polish Union of Property Owners made an application to the Constitutional Court, challenging the constitutionality of the 17 December and 22 December 2004 Amendments (“the December 2004 Amendments”). The Union alleged, in particular, that the provisions extending State control over increases in rent for dwellings owned by private individuals were incompatible with the constitutional principles of protection of lawfully acquired rights and citizens’ confidence in the State and the law made by it. In that context, they stressed that the Polish authorities, in breach of their obligation to terminate the operation of the rent-control scheme by 31 December 2004 that they had taken upon themselves by virtue of two successive laws, namely the 1994 Act and the 2001 Act, had failed to abolish the impugned scheme and had simply replaced it by further restrictions on increases in rent. 138. On 6 January 2005 the Polish Government informed the Court that the Prime Minister of Poland intended to make an application to the Constitutional Court in order to contest the constitutionality of certain provisions of the December 2004 Amendments. On 19 January 2005 the Prosecutor General made an application to the Constitutional Court, challenging the constitutionality of the December 2004 Amendments. In particular, he contested the provisions restricting increases in rent to 10% and submitted, inter alia, that those restrictions constituted an unjustified interference with landlords’ property rights. He further alleged that Parliament was in breach of its duty to “legislate decently” (zasada “przyzwoitej legislacji”), especially the duty to formulate legal provisions in a correct and coherent manner. | 0 |
train | 001-94446 | ENG | POL | CHAMBER | 2,009 | CASE OF KORCZ v. POLAND | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1937 and lives in Poznań. 5. By an administrative decision of 29 June 1978 of the Head of the Dominowo District (Naczelnik Gminy) the real estate owned by the applicant’s husband was transferred to his son – S.K. Neither the applicant’s husband nor the applicant was informed by the authorities about this decision. 6. In 1990 the applicant’s husband died in a car accident. 7. On 11 February 1999 the applicant filed a request with the Commune Office (Urząd Gminy) for retrospective leave to appeal against the decision of 29 June 1978. 8. On 23 February and 17 March 1999 the applicant was informed by the Mayor of the Dominowo Commune (Wójt Gminy) that her request had been left without consideration. 9. On 22 March 1999 she complained to the Head of the Commune Council (Przewodniczący Rady Gminy) about the fact that her case had been left without consideration and that no decision had been taken on it. She did not receive any answer. 10. On 14 January 2001 the applicant repeated her request for retrospective leave to appeal against the decision of 29 June 1978. 11. On 6 December 2000 the Commune Office (Urząd Gminy) informed the applicant that her request could not be dealt with since the case file had been sent to the Supreme Administrative Court (Naczelny Sąd Admnistracyjny). 12. On 3 March 2005 the applicant complained to the Commune Office about the delay. She asked for the proceedings to be accelerated. 13. On 5 April 2005 she lodged a complaint about the inactivity of the Mayor of the Commune with the Regional Administrative Court (Wojewódzki Sąd Administracyjny). 14. On 9 June 2005 the Regional Administrative Court rejected the applicant’s complaint, since the applicant had failed to lodge it in accordance with the formal requirements set out in Polish law, namely she had failed to lodge a complaint with the administrative authority under Article 37 of the Code of Administrative Procedure. 15. On 3 February 2006 the applicant lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with the SelfGovernment Board of Appeal (Samorządowe Kolegium Odwoławcze). The complaint was referred to the Dominowo Commune Council, being the competent administrative authority. 16. By a resolution of 30 August 2006 her complaint was dismissed as ill-founded. 17. On 4 January 2007 she lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with the Regional Administrative Court. She submitted that she had lodged numerous complaints with different administrative authorities, her case had been pending for 8 years and no decision had been given on it. 18. On 5 December 2007 the Regional Administrative Court found the complaint well-founded. It held that the proceedings in the applicant’s case had exceeded a reasonable time and ordered the Mayor of the Dominowo Commune to proceed speedily with the case. 19. On 8 April 2008 the Self-Government Board of Appeal decided to grant the applicant retrospective leave to appeal against the decision of 29 June 1978. 20. The relevant domestic law and practice concerning the remedies for the inactivity of the administrative authorities at the material time are set out in the Court’s judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006. | 1 |
train | 001-57580 | ENG | SWE | CHAMBER | 1,982 | CASE OF SPORRONG AND LÖNNROTH v. SWEDEN | 2 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Fair hearing;Public hearing);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | C. Russo | 9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners. 10. The Sporrong Estate, which has legal personality, is composed of Mrs. M. Sporrong, Mr. C.-O. Sporrong and Mrs. B. Atmer, the joint heirs of the late Mr. E. Sporrong; they reside in or near Stockholm. They own a property, situated in the Lower Norrmalm district in central Stockholm and known as "Riddaren No. 8", on which stands a building dating from the 1860’s. In the 1975 tax year the rateable value of the property was 600,000 Swedish crowns. 11. On 31 July 1956, acting pursuant to Article 44 of the Building Act 1947 (byggnadslagen - "the 1947 Act"), the Government granted the Stockholm City Council a zonal expropriation permit (expropriationstillstånd) covering 164 properties, including that owned by the Sporrong Estate. The City intended to build, over one of the main shopping streets in the centre of the capital, a viaduct leading to a major relief road. One of the viaduct’s supports was to stand on the "Riddaren" site, the remainder of which was to be turned into a car park. Under the Expropriation Act 1917 (expropriationslagen - "the 1917 Act"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse. 12. In July 1961, at the request of the City, the Government extended this time-limit to 31 July 1964. Their decision affected 138 properties, including "Riddaren No. 8". At that time, the properties in question were not the subject of any city plan (stadsplan). 13. On 2 April 1964, the Government granted the City Council a further extension of the expropriation permit; this extension was applicable to 120 of the 164 properties originally concerned, including "Riddaren No. 8", and was valid until 31 July 1969. The City had prepared for Lower Norrmalm a general development plan, known as "City 62", which gave priority to street-widening for the benefit of private traffic and pedestrians. Subsequently, "City 67", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as "City 62", should be implemented before 1985. 14. In July 1969, the City Council requested a third extension of the expropriation permit as regards certain properties, including "Riddaren No. 8", pointing out that the reasons for expropriation given in the "City 62" and "City 67" plans were still valid. On 14 May 1971, the Government set 31 July 1979, that is to say ten years from the date of the request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. In May 1975, the City Council put forward revised plans according to which the use of "Riddaren No. 8" was not to be modified and the existing building was not to be altered. On 3 May 1979, the Government cancelled the expropriation permit at the Council’s request (see paragraph 29 below). 15. The Sporrong Estate has never attempted to sell its property. 16. On 11 June 1954, the Stockholm County Administrative Board (länsstyrelsen) had imposed a prohibition on construction (byggnadsförbud) on "Riddaren No. 8", on the ground that the proposed viaduct and relief road would affect the use of the property. The prohibition was subsequently extended by the Board to 1 July 1979. 17. In 1970, the Sporrong Estate obtained an exemption from the prohibition in order to widen the front door of the building. It never applied for any other exemptions. 18. The expropriation permit and the prohibition on construction affecting; "Riddaren No. 8" were in force for total periods of twenty-three and twenty-five years respectively. 19. Mrs. I. M. Lönnroth lives in Stockholm, where she owns three-quarters of a property situated at "Barnhuset No. 6", in the Lower Norrmalm district; it is occupied by the two buildings erected in 1887-1888, one of which faces the street and the other the rear. In the 1975 tax year the rateable value of the applicant’s share of the property was 862,500 Swedish crowns. 20. On 24 September 1971, the Government authorised the Stockholm City Council to expropriate 115 properties, including "Barnhuset No. 6", and set 31 December 1979, that is to say ten years from the date of the Council request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. They justified their decision by reference to the "City 67" plan which envisaged that a multi-storey car park would be erected on the site of the applicant’s property. 21. However, work in this district was postponed and new plans were prepared for consideration. Believing her property to be in urgent need of repair, Mrs. Lönnroth requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not allow any derogation to be made, and on 20 February 1975 the Government refused the request on the ground that the permit could not be revoked without the express consent of the City Council. On 3 May 1979, the Government cancelled the permit at the Council’s request (see paragraph 29 below). 22. Mrs. Lönnroth’s financial situation obliged her to try to sell her property. She made seven attempts to do so between 1970 and 1975, but the prospective buyers withdrew after they had consulted the city authorities. In addition, she sometimes had difficulty in finding tenants. 23. On 29 February 1968, the Stockholm County Administrative Board decided to impose a prohibition on construction on "Barnhuset No. 6", on the ground that the site was to be turned into a car park. The prohibition was subsequently extended by the Board to 1 July 1980. 24. In 1970, Mrs. Lönnroth was granted an exemption in order to make alterations to the third floor of her premises; she never sought any other exemptions. She failed to obtain a loan when, in the early 1970’s, one of the property’s major mortgagees demanded that the façade be renovated. 25. To sum up, Mrs. Lönnroth’s property was subject to an expropriation permit and a prohibition on construction for eight and twelve years respectively. 26. For several decades, spectacular changes have been taking place in the centre of Stockholm, comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war. 27. Lower Norrmalm is a district where most of the capital’s important administrative and commercial activities used to be concentrated. Around 1945, the view was taken that the district should be restructured so that those activities could be carried on satisfactorily. For instance, a proper network of roads was needed. Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council’s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes. 28. During the 1970’s, town-planning policy in Stockholm evolved considerably. Far from being in favour of opening access roads to the centre, the city authorities were now trying to reduce the number of cars in the capital. This new policy was reflected in the "City 77" plan, which was adopted on 19 June 1978. It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings. 29. On 3 May 1979, the Government, granting a request submitted by the City Council in October 1978, cancelled, as regards about seventy properties including those of the applicants, the expropriation permits issued in 1956 and 1971. This was because it was by then considered unlikely that the City would need to acquire these properties in order to implement its new town-planning scheme. 30. Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits, it has proved possible to sell sixty-six properties in Stockholm affected by such permits. 31. The 1947 Act is the main legal instrument of town-planning policy in Sweden. For this purpose, it provides for the drawing up of master plans and city plans. 32. A master plan (generalplan) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans. Its adoption is a matter for the municipal council (kommunfullmäktige), which may refer the plan to the County Administrative Board - before 1 January 1973, to the Government - for approval (Article 10). 33. City plans are prepared for those urban areas in which this is deemed necessary (Article 24). A city plan is more detailed than a master plan: it will indicate the purposes for which the various areas may be utilised - housing, roads, squares, parks, etc. - and may also include more specific provisions on their use (Article 25). After adoption by the municipal council, it must be approved by the County Administrative Board. In the course of this procedure, property owners have various opportunities to submit their views to several agencies and they may, in the last resort, challenge the decision adopting the plan. 34. In some cases master plans and city plans will be submitted to the Government for a decision. 35. In conjunction with - or independently of - these plans, the Swedish authorities may resort to expropriations and to prohibitions on construction, measures between which there is not necessarily any legal connection. 36. As regards expropriation, the law applicable in the present case was mainly that contained in the 1917 Act, which was replaced with effect from 1 January 1973 by the Expropriation Act 1972 ("the 1972 Act"). Some additional matters were dealt with in the 1947 Act. 37. It is for the Government to decide whether expropriation should be authorised. Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the Act. Issue of the permit does not automatically lead to an expropriation; it simply entitles a given public authority (or, in exceptional cases, a private individual or a company) to effect the expropriation if necessary. It leaves intact the owner’s right to sell, let or mortgage his property, and is subject to a time-limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation, failing which the permit will lapse. The 1917 Act was silent as to the length of this time-limit and as to the extension of the validity of permits. The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time. For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish): "Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit." The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court. 38. Before 1 July 1953, expropriation related only to individual properties; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned. The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish): "If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ..." Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1). Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out. 39. Under Article 11 of the transitional provisions of the 1972 Act, requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act. 40. Like the 1917 Act, the 1972 Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter, 5, Article 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings for the fixing of compensation. 41. The 1947 Act prohibits any new construction that is not in conformity with the city plan (Article 34). It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Article 35 combined with Articles 14 and 15 of the 1947 Act). Article 15 of the Act provides as follows (translation from the Swedish): "If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time. Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd)." The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend "to such alterations to existing premises as may be classified as new construction under rules laid down by the Government". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish): "The expression ‘new construction’ shall mean: (a) the erection of entirely new premises; (b) the horizontal or vertical extension of existing premises; (c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding; (d) the complete or partial conversion of premises for a use substantially different from their previous one; (e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and (f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises. However, for the purposes of the present Article, the expression "new construction" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time." 42. In his report of 1967, the Parliamentary Ombudsman (Justitieombudsmannen) referred to the consequences of long-term prohibitions on construction and envisaged certain solutions (translation from the Swedish): "As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law. What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period. There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme. In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction." (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479). 43. At the time when the applicants referred the matter to the Commission, the Municipal Act 1953 and, in the case of the capital, the City of Stockholm Act 1957 provided for and regulated a right of appeal (kommunalbesvär) against decisions by municipalities. These Acts enabled any local resident - with certain exceptions - to challenge a municipal council’s decisions before the County Administrative Board. Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant’s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board. Unless otherwise provided, the County Administrative Board’s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten). Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board. 44. The above-mentioned rules apply to a municipal council’s decision to request the Government to issue or extend an expropriation permit. On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court. 45. In Sweden, administrative functions devolve largely on administrative authorities whose decision-making machinery is independent of the Government: such authorities do not come under any Ministry, and neither the Government nor the various Ministries may give them orders or instructions on how they should apply the law in this or that case. 46. It is often possible, however, to appeal to the Government against administrative authorities’ decisions. Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act). 47. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts hear appeals against the State only in contractual matters, on questions of extra contractual liability and, under some statutes, in respect of administrative decisions. 48. Judicial review of the administration’s acts is, therefore, primarily a matter for administrative courts. These courts, which had their origin within the administration itself, comprise three levels: the County Administrative Court (länsrätterna); the Administrative Courts of Appeal; and the Supreme Administrative Court, which was set up in 1909 on the pattern of certain foreign institutions, such as the French Conseil d’État, but differs therefrom in certain fundamental respects. These courts are composed of independent judges appointed for life and, as a rule, they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them. In practice, it is very common for the lawfulness of such acts to be challenged. There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government. 49. Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance. Expropriation permits fall within this category (see paragraph 37 above). Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes. Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision. 50. Cases examined by the Government give rise to decisions which, as a rule, are not open to appeal. However, in special cases it is possible to lodge an extraordinary appeal, of limited scope, known as an application for re-opening of the proceedings (resningsansökan). Prior to 1 January 1975 such applications - which may also relate to a decision taken by the Government in an appellate capacity - were made to the Supreme Court. Since that date they are made to the Supreme Administrative Court (Chapter 11, Article 11, of the Constitution). The grounds for re-opening proceedings are to be found - although the provision is not formally binding on the Supreme Administrative Court - in Chapter 58, Article 1, of the Code of Judicial Procedure (rättegångsbalken), which reads (translation from the Swedish): "Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered: 1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case; 2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case; 3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or 4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself. Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so." If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government. The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings. 51. In the past, State and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority, and no compensation could therefore be awarded for damage resulting from such decisions, although there were some doubts about the scope of this immunity. Swedish law on this subject was derived from case-law, specific statutes and unwritten principles. 52. The same law still applies on many points, but on 1 July 1972 the Civil Liability Act (skadeståndslagen) entered into force. This Act consolidates and develops a branch of the law governing compensation for damage in extra-contractual matters. It provides that the State and the municipalities are not civilly liable for damage caused by their acts. It does, however, make one radical change: the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence (Chapter 3, Article 2). However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages "may not lie" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case. | 1 |
train | 001-57941 | ENG | FIN | CHAMBER | 1,995 | CASE OF KEROJÄRVI v. FINLAND | 3 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | John Freeland;Paul Mahoney;R. Pekkanen | 6. Mr Erkki Kerojärvi, a Finnish citizen born in 1924, is retired and lives in Helsinki. 7. On 5 September 1985 the State Office for Accident Compensation (tapaturmavirasto, olycksfallsverket - "the Compensation Office") gave its decision on a request by the applicant for compensation under the 1948 Military Injuries Act (sotilasvammalaki, lag om skada, ådragen i militärtjänst, 28.5.1948/404 - "the 1948 Act") from the Finnish State in respect of certain conditions which he claimed resulted from his service in the wars between 1939 and 1945 between Finland and the Soviet Union. The Compensation Office accepted that a shrapnel wound to the applicant’s back was a military injury but rejected his claims in respect of inguinal hernia, chronic prostatitis, acute tonsillitis and a number of other conditions. Considering that the degree of his disability was less than ten per cent, the minimum required to qualify for a life annuity (elinkorko, livränta) under section 8 of the 1948 Act (see paragraph 19 below), the Compensation Office refused to grant him such a benefit. On appeal, the Insurance Court (vakuutusoikeus, försäkringsdomstolen) recognised that the applicant in addition suffered from tonsillitis entitling him in principle to compensation but found that the degree of his disability nevertheless remained less than ten per cent. On 4 September 1986 it therefore dismissed the applicant’s request for compensation. This decision was upheld by the Supreme Court on 15 December 1987. 8. In January 1988 the applicant asked the Compensation Office to adjust the degree of his disability. He cited a medical report of 3 June 1987 to establish that he suffered from the above-mentioned conditions. In May 1988 he submitted a further report. The Compensation Office rejected the request on 23 August 1988 on the ground that the applicant had failed to show a fundamental change in the circumstances on the basis of which his disability had initially been assessed. 9. The applicant appealed from that decision to the Insurance Court. He adduced additional evidence, including the results of an X-ray examination and laboratory tests of 17 April 1989, and renewed his previous request for compensation in so far as it had been refused in the proceedings referred to in paragraph 7 above. 10. In the course of the proceedings the Insurance Court obtained an opinion from the Compensation Office, dated 24 October 1988, which, without giving reasons, recommended the rejection of the appeal. It also received copies of a master file concerning the applicant, and a medical file containing a record of his war-time medical examinations, from the Headquarters of the Military District of Western Uusimaa (Länsi-Uudenmaan sotilaspiirin esikunta, staben för Västra Nylands militärdistrikt). These documents showed, inter alia, that in 1940 the applicant had been treated in a military hospital for inguinal hernia and that in 1943 he had undergone an operation for this condition. The Insurance Court did not communicate copies of the opinion or files to the applicant. They were, however, included in the Insurance Court’s case file, which was available to the applicant throughout the proceedings in that court (section 19 of the 1951 Act on the Access to Public Documents - laki yleisten asiakirjain julkisuudesta, lagen om allmänna handlingars offentlighet, 9.2.1951/83). 11. In a decision of 19 October 1989 the Insurance Court rejected the applicant’s appeal on the assessment of the degree of his disability, finding that his shrapnel injuries and acute tonsillitis still represented a disability of less than ten per cent. It also rejected his claim for compensation on the ground that it had been decided with legal force (see paragraph 21 below) by the Supreme Court’s judgment of 15 December 1987 (see paragraph 7 above). The decision stated that the Insurance Court had obtained the above-mentioned opinion from the Compensation Office and files from the Headquarters of the Military District. It further indicated that the Insurance Court would return the master file and the file pertaining to the applicant’s war-time medical examinations to the Headquarters and that an appeal could be lodged with the Supreme Court "if the matter [concerned] entitlement to compensation". 12. On 31 December 1989 the applicant appealed to the Supreme Court, challenging the Insurance Court’s ruling that a final decision on his compensation claim had been given by the Supreme Court on 15 December 1987. He requested rehabilitation treatment on an annual basis and the reimbursement of certain subsistence expenses. He claimed that his war injuries were permanent. His appeal did not mention that the documents obtained by the Insurance Court had not been communicated to him. 13. The Insurance Court transmitted the case file to the Supreme Court; it included the Compensation Office’s opinion but not the master and medical files, which had been returned to the Headquarters of the Military District (see paragraph 11 above). According to the Government, copies of the master file had been included in the case file relating to the first set of proceedings in the Supreme Court. The Government further stated that, in the second set of proceedings, the Insurance Court and the Supreme Court had based their decisions at least in part on the master and medical files. 14. The Agent of the Government stated at the public hearing on 22 February 1995 that at the material time it was consistent practice of the Insurance Court and the Supreme Court not to communicate documents of the kind in question even if they had been obtained at the court’s own request and irrespective of whether the issue at stake was one of admissibility or merits. 15. On 7 June 1990 the Supreme Court upheld the Insurance Court’s decision of 19 October 1989. The Supreme Court’s decision stated: "The appeal to the Supreme Court Kerojärvi has requested compensation for [certain alleged illnesses]. The finding of the Supreme Court The decision of the Insurance Court is not varied. ..." 16. The applicant was not legally represented either in the Insurance Court or in the Supreme Court. At no stage of the proceedings did he consult the case file. 17. A compensation scheme, entirely funded by the Finnish State, for injury and illness suffered as a result of military service was set up under the 1948 Act. Pursuant to section 1 of the 1956 Act on Extended Application of the Military Injuries Act (laki sotilasvammalain soveltamisalan laajentamisesta, lag angående utvidgad tillämpning av lagen om skada, ådragen i militärtjänst, 15.6.1956/390) the 1948 Act applies to, among others, Finnish soldiers wounded in the wars between Finland and the Soviet Union from 1939 to 1945. 18. The general rule in section 1 (1) of the 1948 Act provides that compensation under the Act "shall be granted" to persons for injury or illness suffered by them as a result of service, inter alia, as conscripts. Detailed rules on the kind of injury and illness which may be regarded as caused by military service for the purpose of compensation under the Act are contained in sections 2 and 3. 19. Section 8 (1) in "Chapter 2. On Compensation" (Korvaukset, Ersättingar) reads: "A wounded or ill person whose degree of disability is at least ten per cent shall be entitled to a life annuity. The figure representing the degree of disability corresponds to the extent to which the injury or illness suffered reduces the ability of the person concerned to support himself or herself." 20. Section 29 (2), as applicable at the material time, provided that an appeal against a decision by the Insurance Court on entitlement to compensation under the 1948 Act lay to the Supreme Court. A decision by the Insurance Court was however to be final in certain matters. The Supreme Court has interpreted the above provision to mean that the person concerned can appeal on entitlement to compensation but not on the degree of disability, so that an appeal on the latter is inadmissible. 21. According to a general principle of law in Finland, a decision by the Supreme Court rejecting, in full or in part, a claim by an individual to be granted a benefit from a public authority has legal force (lainvoima, laga kraft), in the sense that it may not be the subject of a further appeal. However, it is not res judicata (oikeusvoima, rättskraft). The claimant may at any time, by means of a fresh application, request the competent authority to reconsider the claim (see, inter alia, Jaakko Uotila, Seppo Laakso, Teuvo Pohjolainen, Jarmo Vuorinen, pp. 186-89 in Yleishallinto-oikeus pääpiirteittäin, Tampere 1989). This principle also applies to a request for compensation under the 1948 Act. 22. Pursuant to the new version of section 29 (2), as amended with effect from 1 January 1994 (by Act no. 1225/93), decisions taken by the Insurance Court under the Act are final. However, subject to certain strict conditions, section 25 (also amended) provides for reopening of proceedings in the Compensation Office or in the Insurance Court. 23. Where appropriate, the provisions governing the proceedings in the ordinary courts may be applied to those in the Insurance Court (section 9 (4) of the 1958 Insurance Court Act - laki vakuutusoikeudesta, lag om försäkringsdomstolen, 17.1.1958/14). Under Article 6 of chapter 26 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), if the Court of Appeal (hovioikeus, hovrätten) has obtained of its own motion an opinion or other written statement which may have an impact on its determination of the case, the Court of Appeal must, unless it is clearly unnecessary, request the parties concerned to comment thereon in writing. | 1 |
train | 001-118393 | ENG | UKR | CHAMBER | 2,013 | CASE OF VYERENTSOV v. UKRAINE | 2 | Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Nullum crimen sine lege);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time) (Article 6-3-b - Adequate facilities;Adequate time;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses) (Article 6-3-d - Examination of witnesses;Article 6 - Right to a fair trial);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Non-pecuniary damage - award | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens | 5. The applicant was born in 1973 and lives in Lviv. 6. On 17 August 2010 the applicant notified the Lviv City Mayor on behalf of a local human-rights NGO, “Vartovi zakonu”, of its intention to hold a demonstration every Tuesday from 10.30 a.m. to 1 p.m. near the building of the Lviv Regional Prosecutor’s Office during the period between 17 August 2010 and 1 January 2011. The aim of the demonstration was to draw attention to the issue of corruption in the prosecution service. The number of possible participants was declared as up to fifty persons. There is no information as to whether any such demonstration was held prior to 12 October 2010 (see below). 7. On 5 October 2010 the Executive Committee of the Lviv City Council lodged a claim with the Lviv Administrative Court seeking to restrict the demonstration announced by the applicant. On 6 October 2010 the court left the above claim without consideration as being submitted too late. The Executive Committee resubmitted its claim on 11 October with a request for renewal of the time-limit for lodging the claim. The same day the court allowed the request and accepted the claim for examination. 8. On Tuesday 12 October 2010, further to his previous announcement of 17 August 2010, the applicant informed the City Council about the demonstration to be held on that particular day. He thus organised a peaceful demonstration near the Lviv Regional Prosecutor’s Office later that day between 11.30 a.m. and 12.40 a.m. About twenty-five persons took part. They were standing on the pavement in front of the building of the Prosecutor’s Office when the police told them that they should remain at a distance of five metres from the building. That would have forced the demonstrators to stand in the road and obstruct the traffic. After some discussion with the police, they crossed the road and stood on a lawn on the opposite side. The police, however, told the demonstrators that they could not stand on the lawn and should move away, which meant standing in the road again and obstructing the traffic, causing temporary traffic-jams. 9. Immediately afterwards, the applicant was called aside by two police officers. They grabbed his arms and took him in the direction of the nearby police station. Some of the demonstrators requested the officers to show them their identification and started filming the incident; the officers then let the applicant go. 10. On 13 October 2010 the Lviv Regional Administrative Court granted a request by the Executive Committee of the Lviv City Council to prohibit the holding of the pre-announced demonstrations by the applicant’s NGO as from 19 October 2010. The decision was appealed against. 11. According to the applicant, on the same day he was invited to the police station on the pretext that he had failed to appear at a court hearing to which he had been summoned. Upon his arrival at the Galytskyy District Police Station at about 5 p.m., the police accused the applicant of having committed the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration on 12 October. Between 10 p.m. and 11 p.m. the police drew up reports on those administrative offences. The applicant telephoned his lawyer, but the latter was not allowed onto the premises of the police station. At 11 p.m. the applicant was placed in a cell, where he remained without food until 3 p.m. on the next day, 14 October 2010. 12. On 14 October 2010, before taking him to the court, the police drew up anew the reports on the administrative offences of malicious disobedience to a lawful order by the police and of breaching the procedure for organising and holding a demonstration. In their reports they referred to provisions of the Code on Administrative Offences and to the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Lviv (see paragraphs 21 and 28 to 30 below). The reports were signed by the applicant. 13. At 3 p.m. the applicant was taken to the Galytskyy District Court. He had no opportunity to study the case-file materials before the court hearing. During the hearing, the court rejected the applicant’s request to be represented by the lawyer of his choosing on the ground that the applicant was a human-rights defender and could defend himself. The applicant’s request to summon and question witnesses and examine a video made during the events of 12 October 2010 was also rejected by the court. 14. By a decision of the same day, the court found the applicant guilty of committing the administrative offences of malicious disobedience to a lawful order by the police, and of breaching the procedure for organising and holding a demonstration. The court noted that the applicant had held a street march without the permission of the Lviv City Council and had ignored the lawful demands of the police to stop breaching the peace. He also refused to follow the police to their station but instead called the participants in the demonstration, who shouted and threatened the officers. The applicant denied all accusations. Having heard the applicant and examined the case-file materials, the court concluded that the applicant’s testimony was refuted by the written reports of the police officers and the traffic police officers. The court noted that the said reports had been drawn up correctly and therefore had to be taken into account. It sentenced the applicant to three days of administrative detention starting from 6 p.m. on 14 October 2010 with reference to the relevant provisions of the Code on Administrative Offences. 15. At around 6 p.m. on 17 October 2010 the applicant was released. 16. On 18 October 2010 the applicant appealed against the court’s decision of 14 October 2010. In his appeal, he complained that he had been found guilty even though he had not committed the alleged offences. He noted that under Article 39 of the Constitution a demonstration could be held subject to notifying the authorities and any restrictions on holding one could be imposed only by a court; no permission had therefore been required. He also noted that he had notified the City Council twice about the gathering in question and at the time it was held there had been no court decision prohibiting it. Therefore, he considered that he had organised the gathering of 12 October 2010 lawfully and the conclusions of the first-instance court that he had “held a meeting without permission of the City Council” had not been based on law as no such permission was required by domestic law. He further challenged the conclusion of the police that he had notified the authorities about the event only a few hours in advance, claiming that he had already done so on 17 August 2010. Furthermore, in his opinion, even the requirement of notification two days in advance, which had been established by the procedure for organising and holding meetings, rallies, street marches and demonstrations in the city of Lviv and to which the police referred in their reports on administrative offences, was not based on law, as the Constitutional Court in its decision of 19 April 2001 had decided that the procedure for such notification had to be a matter for legislative regulation. 17. The applicant further maintained in his appeal that, in the absence of any lawful restrictions on holding a demonstration, demands by the police to stop such an event could not be considered lawful and the law did not provide for liability for disobeying unlawful demands of police officers. He finally complained that the first-instance court had violated his right to defend himself as it had refused to allow his lawyer to appear in the case on the ground that the applicant was a human-rights defender and therefore able to defend his rights himself. 18. In a supplement to his appeal of 27 October 2010, the applicant complained that his punishment violated Article 11 of the Convention. Referring to provisions of Article 6 §§ 1 and 3 (b-d) of the Convention, he further complained that his right to defend himself had been violated, and that the first-instance court had refused to question the witnesses and to examine a video record of the peaceful demonstration. 19. On 27 October 2010 the Lviv Regional Court of Appeal examined the applicant’s appeal in the presence of the applicant and his lawyer and rejected it. It summarised the findings of the first-instance court and the arguments of the applicant’s appeal. The court noted that the findings of the first-instance court as to the applicant’’s opinion, were confirmed by the police reports and other explanations and evidence. In reply to the applicant’s arguments to the effect that there had been no corpus delicti in his actions, the Court of Appeal noted that they should be disregarded, because they were refuted by the body of evidence in the case, without elaborating further on that point. The court referred in its decision to the relevant provisions of the Code on Administrative Offences. 20. The relevant provisions of the Constitution read, in so far as relevant, as follows: “Human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished by the enactment of new laws or the amendment of laws that are in force.” “Citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches and demonstrations, after notifying the executive authorities and bodies of local self-government beforehand. Restrictions on the exercise of this right may be established by a court in accordance with the law − in the interests of national security and public order only − for the purpose of preventing disturbances or crimes, protecting the health of the population, or protecting the rights and freedoms of other persons. “The following are determined exclusively by the laws of Ukraine: (1) human and citizens’ rights and freedoms; the guarantees of these rights and freedoms; the main duties of the citizen ...” “1. Laws and other normative acts enacted prior to the entry into force of this Constitution shall apply in so far as they do not conflict with the Constitution of Ukraine...” 21. The relevant provisions of the Code read, in so far as relevant, as follows: “Malicious disobedience to a lawful order or demand by a police officer who is carrying out his official duties ... shall be punishable by a fine of between eight and fifteen times the minimum monthly wage, or by correctional labour of between one and ’s character these measures are found to be insufficient, by administrative detention of up to fifteen days.” “A breach of the procedure for organising and holding meetings, rallies, street marches and demonstrations shall be punishable by a reprimand or by a fine of between ten and twenty-five times the minimum monthly wage. The same actions committed within a year of the application of administrative penalties or by the organiser of the meeting, rally, street procession or demonstration shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage, or by correctional labour of one to two months, with a deduction of 20% of earnings; or by administrative detention of up to fifteen days.” “The provision by officials of premises, transport, or technical means, or the creating of other conditions for the organisation and holding of meetings, rallies, street marches and demonstrations, in violation of the established procedure, shall be punishable by a fine of between twenty and one hundred times the minimum monthly wage.” 22. Paragraph 1 of Article 268 of the Code provides, inter alia, for the following rights in respect of a person whose administrative liability is engaged: “A person whose administrative liability is engaged shall be entitled to study the case materials, to give explanations, to present evidence, to make requests, and to have the assistance of a lawyer ... during the examination of the case ...” 23. The right to a lawyer in administrative offence proceedings is further guaranteed by Article 271 of the Code. 24. According to Article 294 of the Code, a court resolution concerning an administrative offence could be appealed against. The relevant part of the Article provides as to the appellate court’s competence as follows: “A court of appeal shall review the case within the scope of the appeal. The court of appeal is not limited to arguments of the appeal if incorrect application of substantive law or violation of procedural norms has been established during the hearing. The court of appeal can examine new pieces of evidence which have not been examined before, if it finds that the failure to present them to the local court was justified or that the local court rejected them without good reason.” 25. The Decree lays down the procedure for seeking and granting permission to organise and hold meetings, rallies, street marches and demonstrations. The Decree provides inter alia as follows: “The Constitution of the USSR, according to the interests of the people and for the strengthening and development of the socialist system, guarantees to the citizens of the USSR the freedom to hold meetings, rallies, street marches and demonstrations. Exercise of these political freedoms shall be ensured to the working people and their organisations by providing them with public buildings, streets, squares and other places ... 1. An application to hold a meeting, rally, street procession or demonstration shall be submitted to the executive committee of the appropriate local Soviet of people’s deputies... 2. An application to hold a meeting, rally, street procession or demonstration shall be submitted in writing no later than ten days before the planned date of the event in question... 3. The executive committee of the Soviet of people’s deputies shall examine the application and notify the representatives (organisers) of its decision no later than five days prior to the date of the event mentioned in the application... ... 6. The executive committee of the Soviet of people’s deputies shall ban a meeting, rally, street procession or demonstration if the goal of the event in question is contrary to the Constitution of the USSR, the Constitutions of the Republics of the Union or of the autonomous republics or poses a threat to the public order and safety of citizens.” 26. By enacting this Law, the Supreme Soviet of the USSR approved a number of Decrees of the Presidium, including the above-mentioned Decree of 28 July 1988. 27. The Resolution provides in particular: “ ... before the relevant legislation of Ukraine is enacted, the legislation of the USSR shall be applicable within the territory of the republic in respect of issues that have not been regulated by the legislation of Ukraine and in so far as they do not contravene the Constitution and legislation of Ukraine.” 28. This decision introduced the procedure for organising peaceful gatherings in the city of Lviv. According to that decision, the freedom of assembly was guaranteed, but could be restricted by a court for considerations of public health, prevention of crime and disorder and protection of the rights of others. To restrict such a gathering, the Executive Council could apply to a court. Item 7 of the procedure provided that notification about a planned gathering had to be given at least two working days prior to the date on which it was to be held. 29. Item 14 of the procedure specified that gatherings could not be held in the road (except street marches and demonstrations), on lawns and flower beds, or in front of the central entrance (not closer than seven metres) and other entrances of administrative buildings. Nor could they be held in case of non-compliance with sanitary norms. Item 16 of the procedure specified that holding a gathering in breach of any of the restrictions imposed by item 14 should be considered a breach of the peace and should engage liability under the law. Item 15 further provided that the organisers should be responsible for ensuring public order during a gathering. Item 20 further provided that the authorities could apply to a court for the purpose of establishing the liability of persons responsible for breaching the procedure. 30. On 1 June 2011 the Lviv City Council annulled the decision of 16 April 2004 of its Executive Committee and ordered a new procedure on the holding of such gatherings to be drawn up. 31. In its decision the Constitutional Court held inter alia: “1. ... the Ministry of the Interior of Ukraine applied to the Constitutional Court of Ukraine for an official interpretation of the provisions of Article 39 of the Constitution of Ukraine regarding timely notification to executive authorities or bodies of local self-government of planned meetings, rallies, marches or demonstrations. In this constitutional application it is noted that, under Article 39 of the Constitution of Ukraine, citizens have the right to assemble peacefully without arms and to hold meetings, rallies, marches or demonstrations following prior notification to the executive authorities or bodies of local self-government. However, it is stressed that the current legislation of Ukraine does not provide for a specific time-limit within which the executive authorities or bodies of local self-government are to be notified about such actions... ... the Constitutional Court holds as follows: 1. The provisions of the first part of Article 39 of the Constitution of Ukraine on the timely notification to the executive authorities or bodies of local self-government about planned meetings, rallies, marches or demonstrations relevant to this constitutional application shall be understood to mean that where the organisers of such peaceful gatherings are planning to hold such an event they must inform the above-mentioned authorities in advance, that is, within a reasonable time prior to the date of the planned event. These time-limits should not restrict the right of citizens under Article 39 of the Constitution of Ukraine, but should serve as a guarantee of this right and at the same time should provide the relevant executive authorities or bodies of local self-government with an opportunity to take measures to ensure that citizens may freely hold meetings, rallies, marches and demonstrations and to protect public order and the rights and freedoms of others. Specifying the exact deadlines for timely notification with regard to the particularities of [different] forms of peaceful assembly, the number of participants, the venue, at what time the event is to be held, and so on, is a matter for legislative regulation ...” 32. In its review the Supreme Court noted inter alia as follows: “... No legislation has been enacted in Ukraine establishing a mechanism for fulfilling the right to freedom of peaceful assembly. According to the Resolution of the Verkhovna Rada of Ukraine of 12 September 1991 no. 1545-XII on temporary application of certain legislative acts of the Soviet Union, the normative acts of the USSR remain in force, applying in order of legal rank, for example, the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 on the procedure for organising and holding meetings, rallies, street marches and demonstrations in the USSR ...” 33. The note mentioned, inter alia, as follows: “...The legislation of Ukraine does not currently have a special law regulating public relations in the sphere of peaceful assembly. One of the urgent problems to be settled by such a law is the time-limits for notifying the authorities of a planned peaceful gathering in order to ensure that it is held in safe conditions. Article 39 of the Constitution of Ukraine, while providing that the executive authorities or bodies of local self-government must be notified in a timely manner that a peaceful gathering is to be held, does not establish specific deadlines for such notification. The uncertainty of this matter results in the relevant constitutional norm being applied inconsistently and thus requires legal regulation ... ... The judicial practice contains instances of cases restricting the right to peaceful assembly being decided on the basis of the procedure for organising and holding meetings, rallies, street marches and demonstrations laid down by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 No. 9306-XI on the procedure for organisation and holding of meetings, rallies, street marches and demonstrations in the USSR. This approach is incorrect. Since the norms of this Decree establish the procedure for authorising (registering) peaceful assembly and empower the authorities and bodies of local self-governments to ban such events, whereas the norms of the Constitution of Ukraine provide for a procedure whereby the authorities are notified that a gathering is to be held and provides that only the courts have power to ban a peaceful gathering, the above-mentioned legal act should not be applied by courts when deciding such cases ...” 34. In the judgment of the Babushkinsky District Court of Dnipropetrovsk of 30 March 2007 in the case of S. v. the Executive Committee of the Dnipropetrovsk City Council concerning the adoption of regulations on holding mass events in the city of Dnipropetrovsk, the court held, inter alia, that the procedures for exercising the right to freedom of assembly and the procedures and grounds for restricting the right were not regulated by Ukrainian legislation and therefore the Council had no grounds for adopting the impugned regulation, which would interfere with the rights of citizens. 35. In another case the Kyiv Administrative Court, in a judgment of 29 November 2011, restricted the right of several NGOs and private persons to hold a demonstration on account, in particular, of their failure to notify the Kyiv City State Administration of their intention ten days in advance. The court referred to the 1988 Decree. The participants appealed against that judgment. On 16 May 2012 the Kyiv Administrative Court of Appeal quashed the judgment of the first-instance court. In its decision the Court of Appeal noted that the 1988 Decree conflicted with the Constitution as it required the organisers to seek permission to hold a demonstration and authorised the executive authorities to ban such an event, whereas Article 39 of the Constitution provided that the authorities should be notified that a demonstration was being planned, and empowered only the judicial authorities to place restrictions on the organisation thereof. It also noted that in its decision of 19 April 2001 (see paragraph 31 above) the Constitutional Court had not referred to the 1988 Decree as a normative act which should apply in Ukraine to the legal relations under consideration. The court also noted that the file contained no documents proving that notification about the demonstration less than 10 days in advance had not allowed the police to ensure public order during the demonstration and that the holding of such an event could create a real risk of riots or crimes or endanger the health of the population and imperil the rights and freedoms of others. It concluded that the judgment of the first-instance court was incompatible with Article 39 of the Constitution and Article 11 of the Convention. 36. In another case the Kyiv Administrative Court of Appeal, in a decision of 11 October 2012, quashed the judgment of the Kyiv Administrative Court, which had restricted the freedom of peaceful assembly in respect of a number of political and non-governmental organisations upon an application by the Kyiv City State Administration. In its decision the Administrative Court of Appeal noted that, in deciding the case, the first-instance court had had regard to the provisions of the 1988 Decree, whereas since 1996 the question of holding peaceful gatherings had been regulated by the Constitution. The court further stated that the 1988 Decree conflicted with the Constitution as it provided for a procedure for seeking permission to hold a demonstration and that the Decree concerned the holding of such events in a non-existent country (“the USSR”), regulated relations between the citizens of the USSR and the executive committees of the Soviets of People’s Deputies, and considered demonstrations on the basis of their compatibility with the Constitution of the USSR, the constitutions of the union and the autonomous republics, that is, non-existent constitutions of non-existent subjects. The court also noted that under the Ukrainian Constitution human rights and freedoms, and the relevant safeguards, could be defined only by the laws of Ukraine. 37. According to the Ukrainian Helsinki Human Rights Union in 2012 the Ukrainian authorities sought to restrict peaceful gatherings in 358 cases and in 90% of the cases they succeeded. 38. At the request of a Ukrainian MP, the Ministry of Justice sent an information letter to an NGO in Kyiv. The text of this letter can be found on the official website of the Ukrainian Parliament. 39. The relevant parts of the letter read as follows: “... It should be noted that the current legislation on the organisation and holding of peaceful demonstrations is not perfect. For example, today the organisation and conduct of peaceful demonstrations is regulated by the Decree of the Presidium of the Supreme Soviet of the USSR of 28 July 1988 N 9306 on the organisation and holding of meetings, rallies, street marches and demonstrations in the USSR (hereinafter – “the Decree”) which, in accordance with paragraph 1 of Chapter XV - Transitional Provisions of the Constitution of Ukraine − is effective in so far as it does not contradict the Constitution of Ukraine. The above Decree defined, in particular, which persons were authorised to contact the executive bodies of village, settlement and town councils to notify them of proposed peaceful demonstrations; requirements for the content of such notifications; requirements for the executive bodies of village, settlement and town councils in ensuring conditions for the holding of a peaceful demonstration; etc. Thus, the requirements as to the organisation and holding of peaceful demonstrations, the time-limit for notification to be given to executive or local government bodies, the documents to be attached to the application for holding the event, etc. are currently not regulated by law ... ... Given the inadequacy of the current state of the legal regulation of the procedure for the organisation and conduct of peaceful demonstrations, which results in problems in the application of law, since the legal norms are not formulated with sufficient clarity and are subject to ambiguous interpretation by those wishing to have recourse to them (including bodies of local government), only legislative regulation of the procedure for organising and holding such demonstrations will eliminate the negative practices that have arisen. Because of the need for legislative support for the practical application of the aforesaid right defined by Article 39 of the Constitution of Ukraine - to assemble peacefully without arms and to hold meetings, rallies, demonstrations, pickets and marches - the Ministry of Justice has drafted the Law of Ukraine on the organisation and conduct of peaceful demonstrations, which was submitted by the Government of Ukraine to the Verkhovna Rada of Ukraine (registration N 2450 from 6 May 2008) and was approved by the Parliament on its first reading on 3 June 2009 ...” 40. The draft law mentioned in the letter is currently awaiting its second reading in Parliament. 41. The Guidelines provide in so far as relevant as follows: “1. Advance notice. The legal provisions concerning advance notice should require a notice of intent rather than a request for permission. The notification process should not be onerous or bureaucratic. The period of notice should not be unnecessarily lengthy, but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event, and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged. If the authorities do not promptly present any objections to a notification, the organizers of a public assembly should be able to proceed with the planned activity in accordance with the terms notified and without restriction.” “ ... The legal framework 7. Regulating freedom of assembly in domestic law. Freedom of peaceful assembly should be accorded constitutional protection that ought to contain, at a minimum, a positive statement of both the right and the obligation to safeguard it. There should also be a constitutional provision that guarantees fair procedures in the determination of the rights contained therein. Constitutional provisions, however, cannot provide for specific details or procedures. As such, general constitutional provisions can be abused and, of themselves, afford unduly wide discretion to the authorities. ... 9. Domestic laws regulating freedom of assembly must be consistent with the international instruments ratified by that state, and the legitimacy of domestic laws will be judged accordingly. Domestic laws must also be interpreted and implemented in conformity with the relevant international and regional jurisprudence. “ ... Legality 30. Any restrictions imposed must have a formal basis in primary law. The law itself must be sufficiently precise to enable an individual to assess whether or not his or her conduct would be in breach of the law, and to foresee what the consequences of such breaches would likely be. The incorporation of clear definitions in domestic legislation is vital to ensuring that the law remains easy to understand and to apply, and that regulation does not encroach upon activities that ought not to be regulated. Definitions should therefore be neither too elaborate nor too broad.” “ ... Advance notification 91. It is common for the regulatory authority to require advance written notice of public assemblies. Such a requirement is justified by the state’s positive duty to put in place any necessary arrangements to facilitate freedom of assembly and protect public order, public safety, and the rights and freedom of others. The UN Human Rights Committee has held that a requirement to give notice, while a de facto restriction on freedom of assembly, is compatible with the permitted limitations laid down in Article 21 of the ICCPR. Similarly, the European Commission on Human Rights, in Rassemblement Jurassien (1979), stated that: “Such a procedure is in keeping with the requirements of Article 11(1), if only in order that the authorities may be in a position to ensure the peaceful nature of the meeting, and accordingly does not as such constitute interference with the exercise of the right.” 92. The notification process should not be onerous or bureaucratic, as this would undermine the freedom of assembly by discouraging those who might wish to hold an assembly. Furthermore, individual demonstrators should not be required to provide advance notification to the authorities of their intention to demonstrate. Where a lone demonstrator is joined by another or others, then the event should be treated as a spontaneous assembly... 93. The period of notice should not be unnecessarily lengthy (normally no more than a few days), but should still allow adequate time prior to the notified date of the assembly for the relevant state authorities to plan and prepare for the event (deploy police officers, equipment, etc.), for the regulatory body to give a prompt official response to the initial notification, and for the completion of an expeditious appeal to a tribunal or court should the legality of any restrictions imposed be challenged. 94. The official receiving the notice should issue a receipt explicitly confirming that the organizers of the assembly are in compliance with the applicable notice requirements. The notice should also be communicated immediately to all state organs involved in the regulatory process, including the relevant police authorities. Notification, not authorization 95. Legal provisions concerning advance notice should require a notice of intent rather than a request for permission. Although lawful in several jurisdictions, a permit requirement accords insufficient value to both the fundamental freedom to assemble and to the corresponding principle that everything not regulated by law should be presumed to be lawful. Those countries where a permit is required are encouraged to amend domestic legislation so as to require notification only. It is significant that, in a number of jurisdictions, permit procedures have been declared unconstitutional. Any permit system must clearly prescribe in law the criteria for issuance of a permit. In addition, the criteria should be confined to considerations of time, place, and manner, and should not provide a basis for content-based regulation. 96. If the authorities do not respond promptly to a notification, the organizers of a public assembly may proceed with the activities according to the terms notified without restriction. Even in countries where authorization rather than notification is still required, authorization should be presumed granted if a response is not given within a reasonable time.” 42. At its 64th plenary session (21-22 October 2005) the European Commission for Democracy through Law (the Venice Commission) adopted an opinion interpreting the OSCE/ODIHR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings, including the requirement of advance notice of demonstrations in public places: “29. Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right. In fact, in several European countries such regimes do exist. The need for advance notice generally arises in respect of certain meetings or assemblies – for instance, when a procession is planned to take place on the highway, or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have (for instance, of regulating traffic) to obstruct the event.” 43. The Venice Commission also emphasised that the regime of prior notification must not be such as to frustrate the intention of the organisers to hold a peaceful demonstration, and thus indirectly restrict their rights. | 1 |
train | 001-92400 | ENG | RUS | CHAMBER | 2,009 | CASE OF GUBKIN v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 13;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1975 and is currently serving a sentence of imprisonment. 6. On 10 June 1998 the applicant was arrested on suspicion of drug trafficking. 7. On 11 June 1998 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 0.26 grams of opium. On the same day the Prosecutor of the Voroshilovskiy District of Rostov-on-Don remanded the applicant in custody. The Prosecutor referred to the applicant’s criminal record and the risk of his committing other crimes. 8. On 6 August 1998 the applicant was also charged under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code with kidnapping, unlawful entry into a home and extortion. The case was joined to the case concerning drug trafficking. 9. On 10 August, 9 September and 5 November 1998 the applicant’s detention was extended until 10 September, 10 November and 10 December 1998 respectively, in accordance with Article 97 of the RSFSR Code of Criminal Procedure. Consideration had been given to the gravity of the charges against the applicant and information about his personality, including his criminal record. 10. On 1 December 1998 the prosecution dropped the charges of kidnapping, unlawful entry into a home and extortion for lack of proof. 11. On 10 December 1998 the supervising prosecutor approved the bill of indictment and the case against the applicant was sent to the Voroshilovskiy District Court of Rostov-on-Don for trial. 12. On 10 January 1999 the Voroshilovskiy District Court of Rostov-on-Don convicted the applicant under Article 228 § 1 of the Criminal Code and sentenced him to one year’s imprisonment. On an unspecified date the conviction became final. The case file contains no further information as to when the applicant completed his sentence. 13. On 22 March 1999 the Prosecutor of the Rostov Region quashed the decision of 1 December 1998, and on 24 March 1999 the charges under Articles 126 § 2, 139 § 1, and 163 § 3 of the Criminal Code were again brought against the applicant. The prosecutor, having considered the applicant’s criminal record and the gravity of the charges, decided that he should be detained pending trial. 14. On 12 April, 18 June, 21 September and 3 December 1999 the applicant’s detention was extended until 18 June, 24 September and 18 December 1999 and 24 March 2000 respectively. Each time, consideration was given to the applicant’s criminal record, the gravity of the charges against him and his active role in a gang. 15. On 20 March 2000 the case against the applicant was sent to the Rostov Regional Court for trial. 16. On 29 March 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged” in accordance with Articles 222, 223 and 230 of the RSFSR Code of Criminal Procedure. 17. On 13 June 2000 the Rostov Regional Court convicted the applicant and sentenced him to ten years six months’ imprisonment taking into account that he had not fully served a sentence handed down by the judgment of 10 January 1999. On 2 November 2000, however, the Supreme Court of Russia quashed the judgment on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 18. On 1 December 2000 the Rostov Regional Court scheduled the opening date of the trial and ordered that the preventive measure “should remain unchanged”. 19. On 14 May 2001 the Rostov Regional Court convicted the applicant and sentenced him to thirteen years’ imprisonment, but on 16 January 2002 the Supreme Court of Russia quashed the conviction on appeal and remitted the case for a retrial. The Supreme Court held that the preventive measure applied to the applicant “should remain unchanged”. 20. On 12 February 2002 the Rostov Regional Court listed the new trial hearing for 27 February 2002 and ordered that the preventive measure applied to the applicant “should remain unchanged”. 21. On 1 July 2002 the Rostov Regional Court extended the applicant’s detention until 1 October 2002. It found as follows: “The defendants [the applicant and four other persons] are charged with kidnapping, illegal deprivation of liberty, burglary and other crimes. They have been in custody: ..., [the applicant] – since 10 June 1998, ... The Prosecutor requested that the defendants’ detention be extended by 3 months. Having examined the Prosecutor’s request, having heard the parties to the proceedings, the court considers it necessary to extend the defendants’ detention by 3 months, that is, until 1 October 2002 inclusive, because they are charged with serious and particularly serious criminal offences. Under Articles 255, 256 of the Russian Code of Criminal Procedure, the defendants’ detention on remand is extended by 3 (three) months, that is, from 1 July 2002 to 1 October 2002.” 22. On 6 November 2002 the Supreme Court of Russia upheld the extension order, finding that it was sufficiently justified. 23. On 1 October and 31 December 2002 and 31 March, 26 June, 25 September and 15 December 2003 the Rostov Regional Court extended the applicant’s detention until 1 January, 31 March, 30 June, 26 September, 25 December 2003 and 15 March 2004 respectively. The wording of the above decisions was identical to that applied in the decision of 1 July 2002. 24. The applicant appealed against each of the above extension orders to the Supreme Court arguing that the extension orders were not sufficiently reasoned and that the court had not taken into consideration his individual situation. On 12 February, 14 May, 16 July, 16 October and 24 December 2003 and 31 March 2004 respectively, the Supreme Court of Russia upheld the above decisions on appeal. 25. In the meantime, on 19 February 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., extended the applicant’s detention until 19 May 2004. The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant. The applicant again appealed against the extension to the Supreme Court. 26. On 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia discontinued the examination of the applicant’s appeal because he had been convicted in the meantime by the Regional Court. 27. In addition to appealing against the detention extension orders the applicant on a number of occasions in 2003-2004 applied to have the preventive measure changed to a written undertaking not to leave the town. Among his arguments were the rather extended period of time he had spent in detention, his family ties (two minor children and a disabled mother) and his poor health. 28. On 17 February, 21 June, 25 December 2003 and 2 February and 5 February 2004 the Rostov Regional Court dismissed the applicant’s requests. The court’s reasoning was the gravity of the charges against him. The applicant appealed against all of these decisions to the Supreme Court. 29. In one decision of 10 March 2005, that is after the applicant’s conviction by the Regional Court (see paragraph 31 below), the Supreme Court of Russia rejected all the appeals as follows: “The defendants [the applicant and four other persons] are charged with various crimes, including particularly serious crimes. In the course of the proceedings the court dismissed the above requests. In their appeals the defendants and lawyers ask for the above decisions to be quashed. Having examined the material and the arguments put forward in the appeals, the court finds that the appeal proceedings are to be discontinued, since at the present time the examination of the case has been completed by the pronouncement of the sentence ...” 30. As regards the trial proceedings in the period from 27 February 2002 to 25 February 2004, the case was adjourned on forty-two occasions. In particular, five hearings were adjourned at the request of the applicant and his co-defendants, who wished to study the case file or the records of the hearings; fourteen hearings were adjourned due to requests by the applicant and his co-defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file; fifteen hearings were adjourned due to the illness of the representatives and their failure to appear before the court, and eight hearings were adjourned due to the illness of the co-defendants or following their complaints concerning their health. 31. On 17 May 2004 the Rostov Regional Court, composed of presiding judge Mr Zh. and lay judges Ms S. and Ms M., convicted the applicant of fraud, kidnapping, extortion, robbery, deprivation of liberty, unlawful entry into a home and stealing official documents, and sentenced him to eleven years and six months’ imprisonment. 32. On 10 March 2005 the Supreme Court of Russia comprising three judges upheld the judgment on appeal, but reduced the applicant’s sentence to eleven years’ imprisonment. One of the judges of the Supreme Court had previously examined the applicant’s case on appeal on 2 November 2000 (see paragraph 17 above) and had also examined, on 16 October 2003, the appeal against the decision of 26 June 2003 to extend the applicant’s detention until 26 September 2003 (see paragraphs 23-24 above). One other judge had previously examined the applicant’s case on appeal on 16 January 2002 (see paragraph 19 above). 33. As indicated above the applicant was arrested on 10 June 1998. From 15 June 1998 to 25 April 2005 the applicant was held in detention facility IZ-61/1 of Rostov-on-Don (Учреждение ИЗ-61/1 г. Ростова-на-Дону УИН МЮ РФ). Throughout this period the applicant was held in twenty-three different cells. 34. According to the Government’s observations of 12 December 2007, the cells where the applicant was held measured from 6.6 square metres (the punishment cell) to 61.2 square metres, and provided an average space of between three and four square metres per person. The design capacity of the cells was not exceeded. 35. Windows in the cells, measuring 1-1.2 by 1.1-1.3 m., were covered with white-painted metal screens, which were removed in December 2002. The cells were illuminated with 60-75 watt filament lamps. 36. All cells were ventilated by a system of exhaust ventilation. In the summertime the window panes were removed in order to provide better access to fresh air. The cells were equipped with a heating system providing an adequate temperature in line with sanitary norms. The average temperature during the summer was maintained at 22 degrees Celsius, and during winter at 18 degrees Celsius. 37. The cells were equipped with wash basins, hot and cold water taps and lavatory pans elevated 35 cm above the floor and separated from the main area by a two-metre-high brick partition. The arrangement of lavatory pans assured the detainees privacy when using them. 38. The cells were equipped with potable water tanks. The quality of the drinking water was regularly checked by the facility’s medical staff. Besides, the detainees were allowed to use electric kettles. 39. In each cell the applicant had an individual bed and was provided with bedding (a mattress, a blanket, a pillow, two bed sheets and a pillow slip). 40. The cells were also equipped with cupboards for food storage, tables and benches. 41. The applicant could take a fifteen-minute shower once a week. After each shower, he received fresh bedding. He was given food three times a day in accordance with the established legal norms. The quality of the food was monitored on a regular basis by the medical staff of the detention facility. On the days when the applicant was taken to court, hot food was delivered to the courthouse. 42. The applicant was allowed a daily one-hour outside walk. The exercise yards were equipped with benches and shelters. 43. The authorities ensured that regular and additional one-off disinfections and disinfestations were carried out in the detention facility. 44. Upon admission to the detention facility the applicant was examined by a general practitioner, psychiatrist and surgeon, who found his health to be satisfactory. During the detention period the applicant made requests for medical assistance on several occasions, complaining of headaches and general weakness. Following the medical check-ups he always received appropriate treatment. In January 2001 the applicant complained of an earache and was diagnosed with left-side exudative pleurisy. From 23 January to 22 February 2001 he received treatment in the prison hospital. 45. In support of their observations the Government provided several certificates issued by the director of IZ-61/1 on 22 October and 26 October 2007, 26 May and 27 May 2008, an uncertified and undated table on the number of persons detained in different cells at the same time as the applicant in March 2002–April 2005, the results of a laboratory examination of the microclimate of the cells (illumination, temperature, relative air humidity and air circulation), the results of bacteriological tests following water and sanitary inspections of the detention facility conducted in 20012005, statements by wardens (although not dated) and persons currently detained in IZ-61/1, a copy of the applicant’s prison card stating that he had been provided with bed sheets, cutlery and clothes, as well as a number of certificates concerning the food ration during the relevant period. 46. The applicant did not dispute the size of the cells as submitted by the Government. He claimed, however, that the number of detainees considerably exceeded the design capacity of the cells and that the detainees had to sleep in shifts. 47. The windows in the cells were either heavily barred (cells nos. 44, 48, 43, 42, 50, 76 and 52), or covered with metal screens (cells nos. 39 and 124), or entirely absent (cells nos. 8, 76 and 74). The metal screens were still in place in 2003. 48. The arrangement of the bunks in two or three tiers left the detainees very limited space and access to daylight. The artificial light in the cells was on around the clock, and disturbed the applicant’s sleep. 49. The lavatory in the corner of the cell, which had no flush system, was elevated above the floor and separated by a 1.1-metre partition from the wash basin, but not from the living area. The latter two standards had been set by the “Directives on Planning and Constructing Pre-Trial Detention Facilities of the USSR Ministry of the Interior”, approved on 25 January 1971. 50. The applicant was never provided with any toiletries. 51. On the days when the applicant was taken to the courthouse he received no food, since he was taken from his cell before breakfast and brought back after dinner. No food (hot meal or dry ration) was served to the applicant in the courthouse. On such days the applicant was also deprived of outside walks and showers. 52. The exercise yard was very small and unequipped for physical exercise. The walls of the yard were covered with “shuba”, a sort of abrasive concrete lining designed to prevent detainees from leaning against them. 53. The cells swarmed with cockroaches and bedbugs. Occasionally the detainees were taken to the “blind” cell no. 106 (with no windows, lavatory or water taps) except for two or three of them who stayed behind and treated the cell against bedbugs using a heating lamp or a torch made of newspapers, and against cockroaches using cockroach poison sent to the detainees by their relatives. 54. In support of his statements the applicant produced written depositions by three former cellmates, Mr A.R., Mr Y.T. and Mr Y.R. They stated, in particular, that in 2001-2004 cell no. 41, measuring approximately 30 square meters, had housed 45 to 50 inmates at any one time (Mr A.R.’s deposition), and that in 2002-2004 cell no. 46, measuring approximately 40 square meters, had housed over 30 inmates (Mr Y.T.’s deposition) or as many as 85 (Mr Y.R.’s deposition). They also testified that they and the other detainees had slept in shifts. 55. The Government did not contest that the applicant’s former cellmates were held in the same detention facility as the applicant. 56. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”). 57. “Preventive measures” (меры пресечения) include an undertaking not to leave a town or region, personal security, bail and detention (Article 89 of the old CCrP, Article 98 of the new CCrP). 58. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). The new CCrP requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6). 59. When deciding whether to remand an accused in custody, the competent authority is required to consider whether there are “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP, Article 99 of the new CCrP). 60. Before 14 March 2001, detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the old CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years’ imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available. 61. The Codes distinguished between two types of detention: the first being “pending the investigation”, that is while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the trial”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 62. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but can be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels (under the old CCrP) but must now be authorised by judicial decisions taken by courts of ascending levels (under the new CCrP). No extension of detention “pending the investigation” beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 63. The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 97 of the old CCrP, Article 109 § 9 of the new CCrP). 64. Access to the case file materials is to be granted no later than one month before the expiry of the authorised detention period (Article 97 of the old CCrP, Article 109 § 5 of the new CCrP). If the defendant needs more time to study the case file, a judge, on a request by a prosecutor, may grant an extension of detention until such time as the file has been read in full and the case sent for trial (Article 97 of the old CCrP, Article 109 § 8 (1) of the new CCrP). Under the old CCrP, such an extension could not be granted for longer than six months. 65. Under the old CCrP, the trial court had the right to remit the case for an “additional investigation” if it established that procedural defects existed that could not be remedied at the trial. In such cases the defendant’s detention was again classified as “pending the investigation” and the relevant time-limit continued to apply. If, however, the case was remitted for an additional investigation, but the investigators had already used up all the time authorised for detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the date he received the case. Subsequent extensions could only be granted if the detention “pending the investigation” had not exceeded eighteen months (Article 97). 66. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). 67. Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the trial” could not generally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant’s release might impede a thorough, complete and objective examination of the case, a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence. 68. The new CCrP establishes that the term of detention “during the trial” is calculated from the date the court received the file and to the date the judgment is given. The period of detention “during the trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 69. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (see paragraph 76 below) (Article 331 in fine). 70. Under the new CCrP, an appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10). 71. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP). 72. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP). 73. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP – see paragraph 76 below). 74. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required either: (1) to fix the trial date; (2) to return the case for an additional investigation; (3) to stay or discontinue the proceedings; or (4) to refer the case to a court with jurisdiction to hear it (Article 221). The new CCrP empowers the judge, within the same time-limit, (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). The trial must begin no later than fourteen days after the judge has fixed the trial date (Article 239 of the old CCrP, Article 233 § 1 of the new CCrP). There are no restrictions on fixing the date of a preliminary hearing. 75. The duration of the trial is not limited. 76. Under the old CCrP, the appeal court was required to examine an appeal against the first-instance judgment within ten days of its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court this time-limit could be extended by up to two months (Article 333). No further extensions were possible. The new CCrP establishes that the appeal court must start the examination of the appeal no later than one month after its receipt (Article 374). 77. The old CCrP provided that hearings in first-instance courts dealing with criminal cases were, subject to certain exceptions, to be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as the professional judge (Article 15). 78. The new CCrP does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1). 79. The Federal Law enacting the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows: Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction is ineffective as of 1 January 2004. Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, is effective as of 1 January 2004. Before that date serious crimes were to be dealt with by a single professional judge or by one professional and two lay judges if an accused filed such a request prior to the scheduling of a trial hearing. 80. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 81. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘because they know that all complaints usually pass through the colony’s administration’. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” | 1 |
train | 001-98138 | ENG | UKR | CHAMBER | 2,010 | CASE OF KOSTYCHEV v. UKRAINE | 4 | Violation of Art. 6-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger | 4. The applicant was born in 1940 and lives in the city of Kharkiv. 5. On 2 October 2000 the applicant instituted proceedings in the Kyivsky District Court of Kharkiv (“the District Court”) against his former employer seeking various payments owed to him upon his retirement, including compensation for belated salary payments. 6. On 10 October 2000 the case was transferred to another court for consideration but on 14 August 2001 it was sent back to the District Court. 7. On 16 October 2002 the District Court found in part for the applicant. Both parties appealed against that judgment. 8. In the period from February 2003 to March 2004 the Kharkiv Regional Court of Appeal, having taken over the case, remitted it back to the District Court on several occasions in view of the procedural flaws. 9. On 30 March 2004, the Kharkiv Regional Court of Appeal amended the judgment of 16 October 2002, increasing the amount awarded to the applicant. On the same date the court adopted a separate ruling, drawing the attention of the President of the District Court to the numerous shortcomings in the way the judge of the first instance court had examined the case. According to the Court of Appeal, these shortcomings had caused delays in the proceedings. 10. In April 2004 the applicant and the defendant lodged their cassation appeals before the Supreme Court. On 24 May 2006 it upheld the decisions taken by the lower courts. | 1 |
train | 001-91701 | ENG | TUR | ADMISSIBILITY | 2,009 | YERLIKAYA v. TURKEY | 4 | Inadmissible | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 1. The applicant, Mr Cengiz Yerlikaya, is a Turkish national who was born in 1971 and lives in Istanbul. He was represented before the Court by Mrs F. Karakaş Doğan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 26 April 2003 the applicant was arrested, together with four other persons, by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Workers’ Party of Kurdistan), an illegal organisation, and was taken into custody. 4. On the same day, the applicant underwent medical examination at the Istanbul Forensic Institute. He told the doctor that he had not been subjected to any form of ill-treatment. Having examined the applicant, the doctor stated the following: “On the bottom external part of the right gluteus (buttock) there is an ecchymosis of 6x6 cm. The person stated that this ecchymosis had occurred when he had fallen down some fifteen to twenty days ago. There is also an old incision scar on the right inguinal area. The person stated that he had undergone an appendix operation ten months ago. There is hernia in the operated area.” 5. On 28 April 2003, upon the request of the anti-terrorist police, the Public Prosecutor at the Istanbul State Security Court extended the custody period for two more days. 6. The applicant was allegedly beaten and kicked by police officers during that custody. Cold and dirty water was poured on him several times. He was insulted and sworn at and made to stand up for three days without sleep. The officers allegedly stamped on his scar from a previous operation which left him in great pain. They also allegedly gave the applicant a medication which made him more exhausted. 7. On 30 April 2003 the applicant was taken to the Forensic Medicine Institute, where he was examined by a doctor. The applicant told the doctor that he had been beaten by the police. However, the medical report drafted on that occasion indicated that there were no signs of physical violence on the applicant’s body. 8. Later that day, the applicant was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. Before both he denied the statement he had made to the police. He further alleged that he had been ill-treated and had signed the statement under pressure without reading it. The investigating judge remanded him in custody the same day. He was put in Sağmalcılar Prison. 9. On 1 May 2003, he was examined by a doctor at the Sağmalcılar Prison. The applicant’s medical report of that day noted a bruise of 5x10 cm on his right buttock and an old scar from an appendix operation. 10. On an unspecified date, the Fatih public prosecutor launched an investigation into the applicant’s allegation of ill-treatment. In due course, on 5 June 2003 he took a statement from the applicant, in which the latter repeated the above-mentioned account of the facts with regard to the alleged illtreatment. 11. On various dates between July and October 2003, the prosecutor took statements from the police officers who had allegedly participated in the questioning of the applicant. Two police officers stated that they had been present when a statement was taken from the applicant. However, they claimed that they had not treated him badly. They also submitted that the applicant had been medically examined upon arrest and before being taken into their custody. They maintained that the medical report prepared on that day showed that the injuries found on his body were between fifteen and twenty days old and had occurred because of a fall. They further stated that the report of 30 April 2003 given by the Forensic Medicine Institute after the end of the police custody noted no signs of ill-treatment. 12. On 13 October 2003 the Fatih Public Prosecutor decided not to prosecute the police officers in question, for a lack of sufficient evidence. In his decision, the public prosecutor relied on the accused police officers’ statements and the medical report dated 30 April 2003 indicating the absence of any sign of ill-treatment on the applicant’s body. 13. On 17 October 2003 the applicant’s lawyer challenged this decision before the Beyoğlu Assize Court. Referring to the applicant’s medical report dated 1 May 2003, she maintained that there was sufficient evidence for prosecution of the police officers. 14. On 5 April 2004, having regard to reasons given by the Public Prosecutor’s office and the content of the investigation file, the Beyoğlu Assize Court dismissed the applicant’s objection and upheld the decision. 15. A full description of the domestic law and practice at the relevant time may be found in Batı and Others v. Turkey (nos. 33097/06 and 57834/00, §§ 95-99, ECHR 2004-IV). | 0 |
train | 001-97468 | ENG | ROU | ADMISSIBILITY | 2,010 | BARTOS v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Adrian Ioan Bartoş, is a Romanian national who was born in 1950 and lives in Sibiu. He was represented before the Court by Mr Ionel Olteanu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1997 the Public Health Agency of Sibiu County (“the agency”), further to a competitive examination, appointed the applicant in the post of economic deputy director in the Sibiu County Hospital (“the hospital”), a public institution. The hospital was in charge with the enforcement of that decision. 4. In April 2001 the agency found management deficiencies by the applicant. Therefore on 9 May 2001 the agency decided to dismiss him from his position as deputy director. That decision was to be enforced by the hospital and provided for a thirty-day time-limit to be challenged before the courts. 5. Consequently, on 11 May 2001 the hospital offered the applicant two alternative posts, either as economist or as consultant in the accounting department, informing him that in case of refusal it would terminate his employment contract in accordance with Article 130 § 1 (e) of the Labour Code for professional incompatibility. The applicant declined the two offers. 6. On 14 May 2001 the hospital charged the applicant with pecuniary damage caused to the institution, on the basis of the above-mentioned findings. However, on 1 October 2001 the Sibiu jurisdictional branch of the Court of Accounts annulled that decision, considering that the pecuniary damage had not been caused by the applicant and therefore he was not liable under the Labour Code. That judgment became final. On 7 December 2001 the public prosecutor also found no grounds which would justify initiating a criminal action against the applicant. 7. On 16 May 2001, having regard to the decision of 9 May 2001 and to the fact that the applicant had refused the two alternative posts, the hospital dismissed him from his job. 8. On 28 May 2001 the applicant challenged the decision of 16 May 2001 before the courts, seeking reinstatement in his previous job and payment of salary arrears. In his subsequent submissions, he also challenged the decision of 9 May 2001. 9. On 1 March 2002, the post of economic director was discontinued in line with new legal provisions. 10. On 13 June 2002 the Sibiu County Court allowed that action in part and annulled the decision of 16 May 2001, considering that his dismissal under Article 130 § 1 (e) of the Labour Code for management deficiencies had been groundless. It held that the legal grounds for terminating his employment contract should be reconsidered in a fair manner, by taking into account the applicant's preference for ceasing or continuing in another post. However, the court dismissed his complaint against the decision of 9 May 2001 as being out of time. Consequently, even if it found that the grounds for his dismissal were unfounded, it dismissed his other claims, considering that it could not order reinstatement in his previous job and payment of salary since that decision taken by the agency to dismiss him from his post had not been examined on the merits and had not been annulled. The court concluded that the hospital was not at fault for the termination of his employment contract because the applicant had previously been dismissed from his job by the hierarchically superior body and had not opted for another position. Therefore, in spite of upholding the annulment of his dismissal, the court considered that the provisions of Article 136 of the Labour Code were not applicable in the case. That Article provided that in case of annulment of a dismissal decision, the institution had an obligation to reinstate that person in his previous job and to pay him damages. 11. The applicant appealed, considering his reinstatement as the legal consequence of annulling the decision by which he had been dismissed. He also submitted that he had working relations with the hospital and that the decision taken by the agency was not relevant in his case. The hospital argued that the decision to dismiss the applicant had been taken by the hierarchically superior body, which had also employed him, and that the hospital had only enforced that decision in the absence of a positive answer by the applicant to its two alternative job proposals. The hospital also submitted that the two contested decisions did not have the same purpose because the decision taken by the agency aimed only at dismissing the applicant from his post, thus giving the possibility to continue working relations in another post, according to his qualifications. 12. On 7 October 2002 the Alba Iulia Court of Appeal upheld that judgment by a final decision. It considered that the annulment of the decision of 16 May 2001 had no influence over the previous decision of 9 May 2001, which had not been challenged in due time. Therefore, since the latter decision had not been annulled, it was not possible to order the applicant's reinstatement in his previous job or payment of salary. The court also considered to be irrelevant the fact that the applicant had working relations with the hospital, since the Regulations for the organisation and functioning of the public health agencies had provided that those agencies were entitled to revoke directors' appointments in subordinate institutions (see “Relevant domestic law” below). 13. On 28 October 2002 the applicant requested the hospital to reinstate him in accordance with the judgments of 13 June and 7 October 2002, considering that his employment contract was still in effect. He also submitted that he had the qualifications required for the post of accounting director or director in charge with reform. On 30 October 2002, during a meeting with the hospital's management, the applicant was informed about the unavailability of any post of economist within the hospital. He was also informed that the post of accounting director was not vacant and that the appointment in the post of director in charge with reform was to be made by the Ministry of Health, and not by the hospital. 14. Therefore, on 29 October 2002 the hospital requested the Sibiu County Employment Agency (the “AJOFM”) to find a corresponding job for the applicant and also informed the applicant about this action. On 21 November 2002 the AJOFM informed the hospital of the existence of two available posts of economist in a certain company. 15. On 25 November 2002 the hospital invited again the applicant to its headquarters. The applicant went on 28 November 2002, but refused to read the information sent by the AJOFM, requesting to have it submitted to him by post. Eventually, the applicant refused those offers. 16. Therefore, on 17 January 2003 the hospital terminated his employment contract under Article 130 § 1 (a) of the Labour Code, which provided for dismissal of an employee by the institution when the post occupied by the former had been discontinued following reorganisation. In accordance with the judgments of 13 June and 7 October 2002 it annulled the mention in his employment record which provided that he had been dismissed because of management deficiencies. The decision further stated that the period between 15 May 2001 and 17 January 2003 was not considered as length of service. 17. The applicant challenged that decision, seeking its annulment, his reinstatement in an equivalent post and payment of salary starting with 7 October 2002, the date on which the judgment of 13 June 2002 became final (see paragraph 12 above). He submitted that the annulment of the decision of 16 May 2001 had restored the status quo ante and therefore his employment contract was still valid. The hospital submitted that the post occupied by the applicant had been discontinued in accordance with new legal provisions, that it had no vacancy suited to the applicant's qualifications and that it had requested assistance from the AJOFM. Since the applicant had declined those offers, the hospital reconsidered the grounds for his dismissal, as stated in the judgment of 13 June 2002. 18. On 16 June 2003 the Sibiu County Court dismissed his action. It considered his dismissal as the only alternative, taking into account that his post had been discontinued, that the hospital had offered him another post corresponding to his qualifications and also the fact that the applicant had claimed only a post of accounting director or director in charge with reform, which could only be filled by competitive examination. The court further noted that the judgment of 13 June 2002 had only annulled the decision of 16 May 2001 by which the applicant had been dismissed from his job, but not the decision taken by the agency on 9 May 2001 with a view to dismiss him from his post. As a result his employment contract continued to be in effect, but his reinstatement in his previous job was no longer possible. The court also held that the period between 15 May 2001 and 17 January 2003 had legally been considered as not amounting to length of service, since neither the applicant nor the employer had paid social security during that period, as provided for by the legal provisions. Finally, the court dismissed as groundless his claim for overdue salary starting with 7 October 2002 for the reason that he had not worked. That judgment became final. 19. The order no. 1562/1993 of the Ministry of Health on the organisation and functioning of the public health agencies provided that the hierarchically superior body was in charge with appointing or revoking the appointments of the directors from the subordinate institutions. Those attributes were preserved by the order no. 120/2001 of the Ministry of Health on the approval of the Regulations for the organisation and functioning of the public health agencies. | 0 |
train | 001-69480 | ENG | GBR | ADMISSIBILITY | 2,005 | LATIMER v. THE UNITED KINGDOM | 3 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant, Neil Fraser Latimer, is a British national who was born in 1962 and lives in Armagh. He is represented before the Court by Mr John J. Rice, a solicitor practising in Belfast. On 1 July 1986, the applicant, a former member of the Ulster Defence Regiment (UDR) was convicted, along with three others, of the murder of Adrian Carroll who was killed on 8 November 1983. The applicant had been arrested on 29 November 1983 and detained in Castlereagh Holding Centre for seven days. He made admissions on 29 November 1983 but retracted them on 30 November 1983. He made further admissions on 2 December 1983. At the conclusion of the seven day period, he obtained access to his solicitor for the first time. He retracted his confession again. At his trial, the Crown case comprised his confession evidence, the evidence of Mrs Dunne and the evidence of Mrs A. Mrs Dunne gave evidence that she had seen the gunman and described him inter alia as wearing a tartan cap and gold rim glasses, with a light moustache. She said that it was not the applicant, whom she knew as a neighbour. Mrs A. stated that she had seen the applicant, unusually wearing a tartan cap and gold rim glasses, getting into a UDR Land Rover with two soldiers shortly before the time of the shooting. The applicant challenged the admissibility of his confession evidence. The trial judge found that the confession statements were made freely and voluntarily and that the content came from himself. On 4 May 1988, the Court of Appeal in Northern Ireland rejected the appeals of the applicant and his co-defendants, agreeing that the confessions had been properly admitted and were reliable accounts of their complicity. On 25 July 1991, the Secretary of State referred the case back to the Court of Appeal, in particular in view of the availability of ESDA (electrostatic detection apparatus) readings which showed that the police notes of interviews had been rewritten in 18 places and accordingly were not contemporaneous as claimed at trial On 29 July 1992, the Court of Appeal allowed the appeal of the applicant's co-defendants but dismissed his appeal. It was satisfied from evidence other than that of the officers that the applicant had not made admissions because of threats, promises or improper pressure. It considered in detail the course of the interviews and the evidence of Mrs A. and Mrs Dunne and concluded that it remained satisfied beyond reasonable doubt that Mrs A.'s evidence was true, that Mrs Dunne was wrong in her assertion that the gunman whom she saw was not the applicant, that his initial detailed and elaborate account of the shooting had been clearly designed to protect the other members of the UDR patrol and that his second written confession on the night of 2-3 December 1983 was a "truthful confession made by a man who realised the game was up" when confronted with confirmation of witness evidence that he had been seen getting into a landrover in civilian clothes. In 1998, the applicant was released from custody. On 9 May 2001, the Criminal Cases Review Commission referred the applicant's case back to the Court of Appeal, on the basis of their concerns about a report that the applicant had unusual personality characteristics making him psychologically vulnerable during detention and interrogation; and fresh evidence that witness A. had a psychiatric history. On 9 February 2004, after hearing various expert witnesses on the applicant's personality and Mrs A.'s psychological make-up, the Court of Appeal rejected the applicant's appeal. It reviewed the evidence about Mrs A.'s psychological make-up by three consultants based on their examination of her medical records (she had died two years previously) and noted that she had been admitted to hospital twice in 1964-1965 for periods of several weeks against a background, inter alia, of depression and feelings of persecution. It considered that the judge, if faced by the conflicting opinions as to the relevance of this evidence on her reliability as a witness, would have recognised the need for more caution in accepting her evidence as reliable than in the case of most witnesses. However, in light of the circumstances before and at trial, it still did not find her evidence was the product of a desire to seek attention or that she had invented the whole incident in which she recognised the applicant, a person she had known quite well as they had worked together in a factory for a year. As concerned the psychological evidence concerning the applicant, it reviewed the evidence of Dr Gudjonsson for the applicant and Dr Heap for the DPP. It concluded that the assessment by Dr Gudjonsson concerning his suggestibility and vulnerability was not supported by the applicant's conduct during the interviews and trial, in particular the course of the interviews, his acceptance at the trial of the confessions and other statements which the police said he made to them and his alleged reasons and explanations for making them. Finally, concerning a submission that there had been a violation of Article 6 §§ 1 and 3(c) as regarded denial of access to a solicitor during his interrogation period, the Court of Appeal observed that the Human Rights Act 1998 did not apply retrospectively to convictions before it came into force. While Dr Gudjonsson's report set out the applicant's claims that he had asked repeatedly to see a solicitor but that this was refused until he left Castlereagh for prison, the Court of Appeal noted that there was no mention of any requests in the custody records and he had not given evidence at trial that he had requested to see a solicitor. | 0 |
train | 001-81325 | ENG | RUS | CHAMBER | 2,007 | CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA | 4 | Violation of Art. 6-1 | Peer Lorenzen | 3. The applicants, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich, are Russian nationals, who were born in 1953 and 1971 respectively and live in Moscow. 4. On 14 May 1993 the Ministry of Finance of Russia issued “Series III” domestic hard currency bonds (облигации внутреннего государственного валютного займа III серии). On 15 January 1999 the first applicant acquired bonds of a total nominal value 200,000 United States dollars (USD) and the second applicant acquired bonds of a total nominal value USD 2,010,000. 5. On 14 May 1999 the bonds matured and the applicants presented them for redemption. 6. On 11 June 1999 the applicants were informed that Vnesheconombank acting as the Government's agent refused to redeem the bonds, referring to a letter of the Ministry of Finance of 14 May 1999 No. 11-02-09 advising the holders of Series III bonds to refrain from presenting the bonds for redemption for a period of six months in the light of the unfavourable economic situation in the country. In the same letter the Ministry undertook to negotiate restructuring of the debt during this period. 7. On 29 November 1999 the Government of Russia issued Order No. 1306 which provided for the existing Series III bonds to be converted into new bonds of two types with four and eight year maturity periods. 8. On an unspecified date the applicants brought civil proceedings against the Government, the Ministry of Finance and Vnesheconombank seeking recovery of the nominal value of the bonds and damages. They also asked the court to defer the payment of the court fees. 9. On 22 March 2000 the Presnenskiy District Court of Moscow awarded the applicants the nominal value of the bonds and dismissed the claim for damages. The first applicant was awarded USD 200,000 and the second applicant was awarded USD 2,010,000. 10. On 6 June 2000 the Moscow City Court dismissed the appeal lodged by the Ministry of Finance and upheld the judgment. 11. On 17 July 2000 the applicants submitted writs of execution to Vneshtorgbank. 12. On 20 July 2000 Vneshtorgbank refused to comply with the writs of execution, referring to an application for supervisory review of the judgments which was to be lodged by the Prosecutor of Moscow. The applicants' request to see the application was refused. 13. On 10 August 2000 the Prosecutor of Moscow lodged an application for supervisory review of the judgments. 14. On 28 September 2000 the Presidium of the Moscow City Court granted the application. The Presidium quashed the judgment of 22 March 2000 and the appeal decision of 6 June 2000 on the grounds that the courts had erred in interpretation of the law and failed to rule on the issue of payment of court fees, and remitted the case for a fresh examination. 15. On 6 April 2001 the Presnenskiy District Court examined and dismissed the applicants' claim in full. 16. On 22 May 2001 the Presnenskiy District Court delivered an additional judgment ordering the applicants to pay court fees. 17. On an unspecified date the applicants' appeal against the judgment was dismissed. 18. On 21 November 2002, following a request by the applicants, the Prosecutor of Moscow lodged an application for supervisory review of the judgments. 19. On 24 December 2002 the Presidium of the Moscow City Court examined the application and upheld the judgment of 6 April 2001. In the same proceedings it quashed the judgment of 22 May 2001 concerning the payment of court fees and remitted it for a fresh examination. 20. On 11 August 2003 the Presnenskiy District Court discontinued the proceedings concerning the court fees. 21. On 6 June 2005 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review of the judgment in the applicants' case. 22. On 8 August 2005 the Presidium of the Supreme Court decided to adjourn its examination of the case, apparently pending a ruling from the Constitutional Court on the matter. 23. In July 2006 the parties informed the Court that the examination of the case by the Presidium of the Supreme Court was adjourned in connection with a case pending before the Constitutional Court of the Russian Federation which concerned a similar issue. Since then the parties provided no information to the Court about the development of the case. 24. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts. 25. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure. | 1 |
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