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train | 001-93147 | ENG | BGR | ADMISSIBILITY | 2,009 | TOSHEVA v. BULGARIA | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mrs Lilyana Veselinova Tosheva, is a Bulgarian national who was born in 1943 and lives in Lesidren. She is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) are represented by their Agents, Mrs M. Dimova and Mrs N. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 August 1990 Mrs R.A. brought an action against the applicant and her husband seeking a declaration that a contract whereby they had acquired the title of an apartment was null and void. On 23 December 1991 the Sofia District Court rescinded the contract. In a judgment of 3 January 1994 the Sofia City Court quashed the lower court’s judgment and remitted the case for fresh examination. Between May 1994 and April 2000 the Sofia District Court held at least twenty-one hearings, eight of which were adjourned because the applicant and her husband had not been duly summoned. On 14 April 2000 the domestic court rescinded the impugned contract. The applicant and her husband appealed. In a judgment of 12 November 2001 the Sofia City Court quashed the lower court’s judgment in respect of half of the real estate and upheld it in respect of the other half. The applicant’s husband lodged a cassation appeal. The applicant did not file such an appeal and did not participate in the cassation proceedings. In a judgment of 10 March 2003 the Supreme Court of Cassation annulled the lower court’s judgment and terminated the proceedings, holding that the plaintiff had had no standing to bring the action. | 0 |
train | 001-98349 | ENG | ALB | CHAMBER | 2,010 | CASE OF LASKA AND LIKA v. ALBANIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicants were both born in 1980 and are currently serving prison sentences in Burrel Prison, Albania. 7. On 31 March 2001, at dawn, three persons wearing blue and white balaclavas robbed a minibus on the line between Tirana and Kukës. The aggressors were armed with two Kalashnikovs and a knife. Having taken the passengers' money and jewellery, they left the scene without causing casualties. 8. Some hours after the event, the police searched houses near the scene of the crime, including that of Mr Lika (“the second applicant”), where he was having lunch with his father, his brother, B.L., and his friend, Mr Laska (“the first applicant”). 9. The police officers conducted the said search in the absence of the applicants' lawyer. 10. According to the police report of the search, the police found in the pocket of the first applicant's jacket two white T-shirts and a blue cloth, made into balaclavas. Moreover, near the house they found some grenades, but failed to find the stolen goods or the weapons that had been in the possession of the aggressors. 11. The applicants, B.L, and the father were escorted to the police station for questioning. The first applicant requested, but was refused, the presence of his lawyer (H.B). He disputed having had in his possession a balaclava or other form of mask and accused the police of manipulating the evidence. 12. On the same day, the police officers in charge of the investigation proceeded to the identification of persons and items by the victims of the robbery, pursuant to Articles 171 and 172 of the Code of Criminal Procedure (“CCP”). The applicants' lawyer was not present. 13. As to the identification of persons, the applicants and B.L., wearing blue and white home-made balaclavas, and two other persons, wearing black balaclavas, were put in a row in the same room in order to be identified. Notwithstanding the fact that the police changed the position of the persons in the room, the victims consistently identified the persons wearing blue and white balaclavas as the aggressors, that is to say the applicants and B.L.. 14. As to the identification of objects, the victims were asked to identify the balaclavas used by the aggressors, choosing among two black balaclavas, two white balaclavas and a blue one. The victims identified the white and blue balaclavas as those worn by the aggressors. 15. At 9.30 p.m. on the same day the applicants and B.L. were arrested on suspicion of armed robbery. They were questioned by the police in the absence of a lawyer, notwithstanding the fact that B.L. was a minor at the time and that the applicants had explicitly requested a lawyer to be present. The first applicant accepted that he had in his possession a white T-shirt, transformed by F.N, a police officer in charge of the investigations, into a home-made balaclava. The second applicant stated that the white T-shirt which had been found in the possession of the first applicant was not his. 16. On 2 April 2001 the applicants and B.L. were charged with one count of armed robbery and one count of illegal possession of arms. On the same day they were questioned by the prosecutor. The first applicant asked to be represented by H.B. The second applicant sought to be defended by counsel. 17. On 29 June 2001 the General Prosecutor's Office (GPO) requested to inspect the criminal investigation file in respect of the second applicant. On 10 September 2001 the GPO consented to the case being committed to trial. 18. On 11 September 2001, the prosecutor committed the applicants and B.L. to trial on charges of armed robbery and illegal possession of weapons. 19. During the hearing of 26 November 2001 before the Puke District Court, (“the District Court”), the applicants contested the charges against them and requested the domestic court to declare null and void the identification carried out by the police of persons and objects, as it had been in breach of the relevant provisions of the CCP. Moreover, they accused the police officers in charge of the investigation of manipulating the evidence against them: the applicants therefore requested the court to summon the police officers as witnesses and to produce at the trial the items considered by the police to be balaclavas, but which were, in their view, simple T-shirts. The applicants requested the domestic court to exclude the illegal evidence against them. As to the charge of illegal possession of arms, the applicants maintained that the investigation had failed to find the weapons used by the offenders during the robbery and it had not been proved that the grenades found had been in their possession. Both applicants were represented by the same counsel, P.Gj. 20. On 24 May 2002 the District Court dismissed the applicants' request to summon the police officers as witnesses, without giving reasons. Notwithstanding the fact that the court noticed certain irregularities during the investigation stage (such as the absence of a lawyer during the applicants' questioning and during the identification of persons and objects), the court found the applicants guilty of armed robbery on the basis of the eyewitnesses' identification of the applicants as the offenders. Moreover, the court found the applicants guilty of illegal possession of two Kalashnikovs and B.L guilty of possession of a knife. No weapons having been found, the applicants' conviction was based on eyewitness statements. The court sentenced the applicants to thirteen years' imprisonment and B.L. to five years' imprisonment. The applicants were ordered to serve their sentences in a high-security prison. 21. On 29 May 2002 the applicants appealed to the Shkoder Court of Appeal, (“the Court of Appeal”), on the grounds that the District Court's judgment was the result of unfair proceedings. They argued that the identification had been conducted in flagrant breach of Articles 171-175 of the CCP as they had worn the same balaclavas during the identification parade. Their lawyers' request about the nullity of the acts concerning identification had been rejected by the trial court. They also stated that none of the material evidence (balaclavas), as requested by themselves, had been produced at the trial proceedings. Moreover, the authorities had failed to find the money and the weapons that had been used in the robbery. 22. On 9 September 2002, the Court of Appeal upheld the District Court's judgment. 23. On 7 October 2002 the applicants appealed to the Supreme Court. They relied on the same grounds of appeal as before the Court of Appeal. They also alleged that both of them had been represented by the same counsel before the lower courts, at a time when there were inconsistencies in their testimonies given during the criminal investigation. 24. On 26 December 2002 the Supreme Court declared the appeal inadmissible as its grounds fell outside the scope of Article 432 of the CCP. 25. On an unspecified date the first applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He relied on the same grounds as raised before the Court of Appeal and the Supreme Court. 26. On 17 September 2004 the Constitutional Court, sitting as a bench of three judges, declared the complaint 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. 27. The applicants alleged that they had been ill-treated by F.N. and other police officers during police questioning. They alleged that they had been tied up with ropes, beaten and hosed with cold water during the interrogations. 28. At the hearings of 26 November 2001 before the District Court, the applicants alleged that they had been ill-treated by the police officers in charge of the investigation, in that the latter had attempted to force them to confess to the robbery and to reveal the location of the stolen goods and the arms used. B.L and the applicants gave the same description of the alleged ill-treatment. 29. On 24 May 2002 the District Court rejected the applicants' requests on the ground that they had been submitted outside the six-month time-limit. No legal basis was mentioned in the judgment. 30. The Albanian Code of Criminal Procedure (“CCP”) in its relevant parts reads as follows: 1. When the need arises to conduct the identification of a person, the proceeding authority invites the person who must do the identification to describe the person (to be identified), relating all the signs he/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. 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/her place in relation to others, taking care to be portrayed, as much as possible, in the same circumstances under which he/she would have been seen by the person called to do the identification. After the person who will do the identification appears, the court asks the latter whether he/she knows anyone among those presented for identification, and if yes, to point out the person he/she knows and to specify whether he/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, that the performance of the identification be photographed or filmed. 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. 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. 1. The defendant, when present, and the person in possession of the premises subject to the search, is handed a copy of the search order, informing them of the right to request the presence of a person they rely on. 2. When the persons stipulated in paragraph 1 are absent, a copy of the order is handed over to a relative, neighbour or to a colleague. 3. The proceeding authority may search the persons present when it judges that they may conceal material evidence or items relating to the criminal offence. It may order that the persons present may not leave prior to the conclusion of the search and may use force to retain those who leave. The prosecutor questions the arrested or the detained person in the presence of the chosen or appointed lawyer. He shall notify the arrested or the detained person of the facts for which he is being prosecuted and of the reasons for the interrogation, making known the information available about the charge and, when the investigation would not be impaired, even the sources. In taking a decision the court shall not make use of evidence other than that obtained or confirmed during the trial. 31. Articles 449–461 of the CCP govern the application for review of a final judgment. According to Article 451, the accused or the prosecutor may file a request for review in accordance with the limited grounds of review found in Article 450. The request is submitted to the Supreme Court which may decide to reject or accept it (Article 453). 32. In an effort to harmonise the legal practice, the Supreme Court Joint Benches examined the institution of judicial review in its judgment no. 6 of 11 October 2002. The relevant parts of the judgment read: “(...) It is acknowledged that the review of final judgments is an extraordinary remedy, the only one, that has been envisaged by the lawmaker in the CCP in order to put right any judicial mistakes (in respect of final court judgments). The trial that occurs, as a result of the review [proceedings], is not limited to a mere review (in the strictest sense of the word) of the previous trial. In its conclusion, the court, having examined the facts, circumstances and evidence submitted by the parties, taken together and in concert with the evidence, circumstances and facts administered and examined during the previous trial, can reach a different outcome, going as far as delivering a judgment in total contradiction to the previous one. (...) This is the reason why the lawmaker allowed for a review in strictly defined instances, which have been explicitly laid down in a special provision of the CCP, notably in Article 450 (...). According to this provision, the review can be sought by the parties only if there exists one of the requirements explicitly provided therein.” 33. On 19 January 2000, at the 694th meeting of the Ministers' Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Considering that the aim of the Council of Europe is to bring about a closer union between its members; Having regard to the Convention for the protection of Human Rights and Fundamental Freedoms (hereinafter "the Convention"); Noting that under Article 46 of the Convention on Human Rights and Fundamental Freedoms ("the Convention") the Contracting Parties have accepted the obligation to abide by the final judgment of the European Court of Human Rights ("the Court") in any case to which they are parties and that the Committee of Ministers shall supervise its execution; Bearing in mind that in certain circumstances the above-mentioned obligation may entail the adoption of measures, other than just satisfaction awarded by the Court in accordance with Article 41 of the Convention and/or general measures, which ensure that the injured party is put, as far as possible, in the same situation as he or she enjoyed prior to the violation of the Convention (restitutio in integrum); Noting that it is for the competent authorities of the respondent State to decide what measures are most appropriate to achieve restitutio in integrum, taking into account the means available under the national legal system; Bearing in mind, however, that the practice of the Committee of Ministers in supervising the execution of the Court's judgments shows that in exceptional circumstances the re-examination of a case or a reopening of proceedings has proved the most efficient, if not the only, means of achieving restitutio in integrum; I. Invites, in the light of these considerations the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum; II. Encourages the Contracting Parties, in particular, to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.” 34. The explanatory memorandum on Recommendation R (2000) 2 provides, in so far as relevant, that: “... Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist. ...” 35. Article 35 of the Draft Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts (adopted by the General Assembly at its 53rd session (2001), and reproduced in Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10)) is worded as follows: “A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.” | 1 |
train | 001-58230 | ENG | TUR | CHAMBER | 1,998 | CASE OF DEMİR AND OTHERS v. TURKEY | 3 | Preliminary objection rejected (non-exhaustion);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed;Violation of Art. 5-3 | null | 7. The first applicant, Mr Demir, is a businessman who was born in 1950. The second applicant, Mr Süsin, a councillor for the Yenimahalle ward of İdil District Council, was born in 1958. They were respectively the chairman and former secretary of the İdil branch of the People’s Social Democratic Party (SHP). Mr Kaplan, who was born in 1973, was a correspondent of the daily newspaper Hürriyet and a member of the executive committee of the İdil branch of the People’s Republican Party (CHP). At the material time the applicants all lived and worked in İdil, a district in the province of Şırnak, which is one of those that since 1987 has been subject to the state of emergency regime proclaimed in south-eastern Anatolia. 8. In January and February 1993 about thirty people, including the applicants, were arrested in İdil on the orders of the public prosecutor attached to the Diyarbakır National Security Court (“the public prosecutor”, “the National Security Court”). 9. The facts concerning the applicants’ detention are disputed. Mr Demir asserted that he had been arrested by the anti-terrorist branch of the İdil security police (“the security police”) and then placed in police custody on 22 January 1993; Mr Kaplan and Mr Süsin maintained that they had suffered the same fate, but on 28 January. According to the Government, Mr Demir and Mr Süsin were placed in police custody on 26 January 1993 and Mr Kaplan on 30 January. 10. On 27 January 1993 the security police sent Mr Demir and Mr Süsin to the İdil forensic medicine centre to be examined in order to ascertain whether their bodies showed the marks of blows or violence. The medical reports drawn up on the same day concluded that there were no such marks. On 30 January Mr Kaplan in turn was examined by doctors of the forensic medicine centre, who drew up a report in which they reached the same conclusion. 11. On 12 February 1993 the applicants’ lawyer lodged a complaint with the İdil prosecuting authorities against Mr N. Yılmaz, the head of the security police. Relying on Article 5 § 3 of the Convention and the Court’s relevant case-law, he complained of the length of time his clients had spent in police custody and asked for charges to be brought against those responsible. 12. Mr Kaplan, on 15 February 1993, and Mr Demir and Mr Süsin on 18 February were brought before the single judge of the İdil Criminal Court, who ordered them to be placed in pre-trial detention. Before appearing in court, the applicants were re-examined by the forensic medicine centre at the request of the security police. The medical reports drawn up as a result did not mention any marks on their bodies which might have been caused by an assault. 13. The applicants’ lawyer was subsequently sent a copy of a decision of 2 April 1993 in which the Criminal Cases Department of the Ministry of Justice informed him that his complaint of 12 February had been dismissed. 14. On 11 June 1993 the public prosecutor filed submissions with the National Security Court against thirty-five defendants, including the applicants, whom he accused of being active members of an illegal organisation, the PKK (Workers’ Party of Kurdistan), seeking application of Article 168 § 2 of the Criminal Code (see paragraph 19 below) and section 5 of the Prevention of Terrorism Act (Law no. 3713) (see paragraph 20 below). As set out by the public prosecutor, the offences of which the applicants were accused may be summarised as follows. After joining the PKK in 1988 Mr Demir had maintained regular contacts and planned a number of operations with the PKK militant in charge of the İdil sector; in early 1990 he had been appointed head of the PKK’s Yenimahalle committee at a secret meeting held at his home; following the killing of a Mr Z. in the Midyat district he had invited several people to gather for the funeral, at which he had shouted slogans and urged the other mourners to do the same; he had also shouted separatist slogans at an illegal demonstration that had taken place after the death of a Mr A., a PKK militant; on 21 March 1992 he had incited the people to rebel; a few months later he had called on shopkeepers to close their shops in protest against the Turkish army; lastly, he had on numerous occasions harboured people who wished to join the PKK. Mr Süsin had attended a number of illegal meetings and demonstrations; at the end of the meeting held at the home of Mr Demir he had been made a member of the above-mentioned PKK committee; in 1991 he had harboured six people at his home and installed seven more in neighbouring houses while they were waiting to join the PKK; in addition, he had collected money to finance that organisation’s activities. Mr Kaplan had taken part – about a year before his arrest – in an unauthorised shop-closing demonstration; six months earlier he had made photocopies of two PKK leaflets; in addition, he had shouted separatist slogans at two illegal demonstrations that had been held in İdil on 4 and 19 March 1992. 15. On 7 July 1993 the applicants appeared before the National Security Court. Mr Demir and Mr Süsin retracted the confessions they had made at the security police offices, asserting that these had been extracted from them by duress. Mr Kaplan maintained that he had acted under the fear of reprisals by the PKK. Mr Kaplan was granted conditional release on the same day and the other two applicants after the hearing on 3 February 1994. 16. The National Security Court gave judgment on 14 November 1996. Applying Article 168 § 2 of the Criminal Code, it sentenced Mr Demir and Mr Süsin to twelve years and six months’ imprisonment for membership of an armed gang; it sentenced Mr Kaplan, pursuant to Article 169 of the same Code (see paragraph 19 below), to three years and nine months’ imprisonment for lending assistance to an armed gang and harbouring known criminals. 17. The applicants appealed to the Court of Cassation, which, in a judgment of 2 March 1998, upheld the impugned judgment. 18. Article 19 of the Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: … The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days… These time-limits may be extended during a state of emergency… … A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions.” 19. The relevant provisions of the Criminal Code read as follows: Article 168 “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership … or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.” Article 169 “Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment…” 20. Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”. Pursuant to section 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half. 21. Under section 9 (a) of Law no. 2845 on procedure in the National Security Courts, only these courts can try cases involving the offences defined in Articles 168 and 169 of the Criminal Code. 22. At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the National Security Courts – including those mentioned in paragraph 20 above – any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively. 23. Section 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial …, or are acquitted or discharged after standing trial; or (7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only…” 24. On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation: “1. The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Article 15 of the Convention. During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. 2. The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces. 3. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. 4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [nos.] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...” The descriptive summary of the content of Legislative Decrees nos. 424 and 425, annexed to this notice, reads as follows: “A. By virtue of the decrees having force of law [nos.] 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers. 1. The Ministry of Interior, upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication (regardless of the location of the printing press), which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities. This also includes, if necessary, the power to order the closure of the printing press concerned. 2. The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Ministry of Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency. At their request, the persons concerned may receive financial aid from the Development and Support Fund. The particulars for this assistance shall be determined by the Ministry of Interior. 3. The Governor of the state of emergency region (or the delegated provincial Governor) can suspend (up to 3 months) or require prior permission for certain labour disputes related activities like strike and lock-out. 4. The Governor can also ban, or take preventive measures against certain activities like destruction, looting, boycotting, slowing down of work, restricting the freedom of work and closing down of business. 5. The Governor of the state of emergency region can order the temporary or permanent evacuation, change of place, regrouping of villages, grazing fields and residential areas for reasons of public security. 6. The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order, the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him. B. No legal claims of criminal, pecuniary or legal nature can be brought against, nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of Interior, the Governor of the emergency region and other governors, when exercising the power under the decree no. 424 having force of law. C. No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s) performed when exercising the power given by the law of emergency no. 2935 to the Minister of Interior, the Governor of the state of emergency region and the provincial governors. D. The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law no. 285.” According to a note in the notice of derogation, “the threat to national security [was] predominantly occurring” in the provinces of Elazığ, Bingöl, Tunceli, Van, Diyarbakır, Mardin, Siirt, Hakkâri, Batman and Şırnak. 25. In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree no. 424 had been replaced by Legislative Decree no. 430, promulgated on 16 December 1990. An appendix to the above letter, containing a descriptive summary of the decree, reads as follows: “1. The powers of the Governor of the state of emergency under Decree with Force of Law no. 425 have been limited to the region where a state of emergency is in force. Thus, the adjacent provinces have been excluded from the competence of the Governor. 2. The special powers given to the Governor of the state of emergency by virtue of Decree with Force of Law no. 425 have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms. 3. The powers of the Minister of Interior [to] ban any publication or order the closure of the printing press (regardless of the location) is restricted. According to the new provision, the Minister of Interior has at first to issue a warning to the owner or the publisher of the publication. If the owner or the publisher continues to print or distribute the controversial issue, then the Minister concerned may temporarily or permanently ban the publication and, if necessary, may also order the closure of the printing press for a maximum period of 10 days, which may, however, be extended to one month in case of repetition. No maximum period for closure of the printing press has been stipulated by the (abrogated) Decree no. 424 (Compare § A (1) of the Descriptive Summary attached to the Notice of Derogation of August 6, 1990). 4. The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree. The persons who are expelled from the state of emergency region are not obliged to settle in a specified place. Hence, they will be free to choose their residence out of the region except when they request financial aid. In this case they have to settle at a specified place (See § A (2) of previous Descriptive Summary). 5. Referring to the paragraphs A (3, 4, 5 and 6) of the Descriptive Summary of August 6, 1990 (which are related to strikes, lock-out and some other activities of labour unions, evacuation and regrouping of villages, transfer of public officials to other posts or positions), it should be noted that the adjacent provinces have been excluded by virtue of the new decree. 6. As to paragraph 8 of the previous Descriptive Summary, a new clause has been included in the new Decree safeguarding the right to file an action against the administration (State) for loss or damages arising out of the performance of the acts taken under the emergency measures.” 26. On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms: “As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only. The derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation.” | 1 |
train | 001-95001 | ENG | UKR | ADMISSIBILITY | 2,009 | LOBACH v. UKRAINE | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | The applicant, Ms Klavdiya Mykolayivna Lobach, is a Ukrainian national who was born in 1934 and lives in the village of Vodoslavka, Kherson region, Ukraine. She was represented before the Court by Ms N. Petrova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At around 4 p.m. on 30 December 2000 the applicant’s husband was found dead in his home. The same day the Novotroitskiy District Prosecutor’s Office (“the DPO”) instituted proceedings into the murder and ordered a forensic medical examination. On 30 and 31 December 2000 thirteen neighbours, relatives and friends of the deceased were questioned. On 31 December 2000 the forensic examination concluded that the applicant’s husband had received multiple bodily injuries and had been strangled. His death had occurred during the night of 29 to 30 December 2000. On 2 January 2001 the DPO questioned a further witness and issued a search warrant in respect of Mr S. and Mr D. On 4 January 2001 Mr D. was interrogated. On 5 January 2001 five more witnesses were questioned. On 8 January 2001 the DPO ordered the forensic examination of footprints and fingerprints that had been found at the scene of the crime. The examination reports were completed on 10 January (for the footprints) and 31 January 2001 (for the fingerprints). On 9 January 2001 two more witnesses were questioned. On 10 January 2001 Mr D. was interrogated and a reconstruction was held. On 15 January 2001 the investigator granted the applicant aggrieved party status. The applicant was questioned as the aggrieved party. On 16 January 2001 Mr D was identified by two witnesses as a person who had asked about the deceased’s place of residence on the eve of the crime – 28 December 2000. On 17 January 2001 the investigator decided not to prosecute Mr D. for murder and robbery as he had an alibi for the time of murder. However, the investigator nevertheless considered that Mr D., who had arrived at the village with a certain Mr R. and Mr K. on 28 December 2000 and had enquired about the deceased’s place of residence, had to have been aware that this information was wanted by Mr R. and Mr K. for an illegal purpose, such as burglary. Mr D. was therefore charged with complicity in burglary. On 18 January 2001 Mr D. was questioned as an accused. On 20 January 2001 the investigator arranged for the formal identification of a pair of running shoes by two witnesses, who testified that they belonged to Mr K. On 25 January 2001 another footprint examination was ordered. It was completed on 12 February 2001 and established that one of the footprints at the scene of the crime had been left by a sports shoe belonging to Mr K. On 12 February 2001 the investigator issued resolutions to bring charges against Mr K. and Mr R. of murder for financial gain. The prosecutor issued an arrest warrant with respect to Mr K. and Mr R. and placed them on a wanted list. On 27 February 2001 the investigation was suspended since the whereabouts of the suspects were unknown. On 22 March 2001 the investigator ordered a search of Mr K.’s home. The search was carried out the same day. On 12 June 2001 the investigator issued a warrant to monitor the telegraphic and postal correspondence of Mr K.’s relatives. On 14 June 2001 the warrant was sent to the Head of the Genichesk Post Office. On 3 August 2001 five more witnesses were questioned. On 19 August 2001 Mr R. surrendered voluntarily to the prosecutor and was interrogated. At the same day the investigator decided to discontinue the criminal proceedings against Mr R for burglary and murder for lack of evidence. However, on 4 December 2001 that decision was quashed. According to the applicant, on the advice of the investigator, she paid 500 United States dollars to a lawyer G. to represent her in the proceedings but never signed a formal agreement with the lawyer. On 16 October 2001 the Novotroitsky District Court of Kherson examined the case against Mr D. and remitted it for additional investigation; it instructed the investigator to arrange a confrontation between Mr K. and Mr R. Mr D. was released on condition that he did not abscond. The applicant was not present at the hearing but the lawyer G. acted on her behalf, allegedly without her authorisation. On 19 October 2001 the Novotroitsky District Prosecutor’s Office appealed against the decision of 16 October 2001. They maintained, in particular, that it was not possible to arrange for a confrontation between Mr D. and Mr K. since Mr K. had absconded. On 11 December 2001 the Kherson Regional Court upheld the decision of the Novotroitsky District Court. On 30 December 2001 an additional medical forensic examination was ordered. The report was completed by 23 January 2002. On 11 January 2002 Mr R. was interrogated again. On the same day the investigator decided not to initiate criminal proceedings against Mr R. for destruction or damage of property with intent. On 16 January 2002 Mr D. was interrogated further and a confrontation was staged between him and Mr R. On 23 February 2002 the investigator decided not to pursue the prosecution of Mr R. on the ground that he had an alibi for the murder that was supported by five witnesses. According to Mr R. on the eve of the murder Mr D. had asked him to take Mr K. and Mr D. to the village where the applicant’s husband lived. He had done so. He had waited for them for fifteen minutes and then taken them back to the town of Genichensk. Mr R. denied, and there was no evidence to the contrary, that he had been aware of the true intentions of Mr D. and Mr K. with respect to the applicant’s husband. On 30 April 2002, owing to changes in the procedural legislation that required any arrest order to be approved by the court, the investigator submitted a request to the Novotroitskyy District Court for a warrant for Mr K’s arrest. On 3 May 2002 the court ordered Mr K. to be taken into custody as a preventive measure. On 16 June 2002 the proceedings were suspended since the accused’s whereabouts were unknown. Thereafter the investigation was suspended and resumed several times. By a letter of 6 June 2003 the applicant was informed that Mr D. had absconded and that the criminal proceedings against him were suspended. Owing to changes in the legislation on criminal procedure, on 17 December 2003 the investigator requested authorisation from the Kherson Regional Court of Appeal to survey the telegraphic and postal correspondence of Mr K.’s relatives and friends. On 18 December 2003 the court issued the authorisation. On 22 June 2004 the investigator issued a resolution for Mr K’s property to be seized. The investigator reported, however, that Mr K. had no property. By a letter of 31 August 2005 the Kherson Regional Prosecutor’s Office informed the applicant that they were still looking for Mr K., who had been identified as a suspect. The investigators also checked the possible involvement of Mr R. and Mr D. in the murder of the applicant’s husband, but as their was no proof of their guilt, the Novotroitsky Prosecutor’s Office declined to prosecute them and the Kherson Regional Prosecutor’s Office upheld its decisions. By a letter of 19 October 2005 the Kherson Regional Prosecutor’s Office informed the applicant that the law-enforcement authorities were still looking for Mr K. and that the decisions to close the criminal proceedings against Mr R. and Mr D. were well-founded The investigator systematically issued orders to establish Mr K.’s whereabouts on 4 April 2002, 15 June 2002, 19 September 2003, 28 April 2004, 1 September 2004, 9 September 2004, 1 March 2005, 15 April 2005, 27 April 2005, 17 September 2005, 14 October 2005, and 15 November 2005. | 0 |
train | 001-57709 | ENG | CHE | CHAMBER | 1,991 | CASE OF S. v. SWITZERLAND | 2 | Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 8. S. is a mason and lives in Zürich. 9. In autumn 1980 a protest movement broke out in the town of Winterthur (Canton of Zürich) directed against the sale of nuclear power stations to a Latin American country then under a military regime. It continued in 1981 in the form of demonstrations against the holding of an international arms fair, and writing graffiti and occupying buildings as a protest against the housing shortage. In 1983 and 1984 there was a series of cases of arson and attacks using explosives, causing damage to several public and private buildings including the house of Mr Friedrich, who was then a Cabinet Minister (Bundesrat) and head of the Department of Justice and Police. On 20 July 1984 the Winterthur police set up a special unit with the task of co-ordinating the hunt for those responsible for these crimes. It shadowed the members, tapped the telephones and regularly emptied the dustbins of a commune which was thought to be sheltering the criminals. On 20 November, the police arrested twenty-seven persons and seized numerous documents at the same time. Ten of these persons were released again on the same day. The others were detained in solitary confinement, without being able to correspond freely with their lawyers, and each was the subject of a separate procedure. 10. S. was suspected of being involved in the above-mentioned crimes. He was arrested at his home in Geneva on 21 November 1984 but succeeded in escaping. He was arrested again on 30 March 1985 and charged with the use of explosives in connection with the attack on Mr Friedrich’s house. 11. On 2 and 4 April 1985 the Federal Public Prosecutor (Bundesanwalt) sent the Geneva authorities various documents implicating the applicant. On 10 April he was questioned by members of the Federal Public Prosecutor’s Office on the accusations against him, but exercised his right to silence. 12. The investigation became the responsibility of the Winterthur District Attorney’s Office (Bezirksanwaltschaft) on 22 May 1985, and S. was taken to Winterthur prison. After questioning him on 28 May 1985 the District Attorney (Bezirksanwalt) accused him of having caused an explosion at Mr Friedrich’s house and started a fire at a civil defence centre. He again remanded him in custody on the grounds of the risk of flight and of collusion with his co-accused. On 7 June 1985 he further accused him of arson at two rifle ranges, flooding business premises and criminal damage to property by means of graffiti. According to S.’s lawyer all these charges were based on graphological reports which had been drawn up on the basis of documents seized by the police on 20 November 1984 (see paragraph 9 above). 13. On 19 July 1985 the Geneva authorities sent the Winterthur District Attorney’s Office the results of their investigations. 14. In April 1985 the applicant had asked his mother to ask Mr Rambert, the lawyer representing one of the other accused, W., to take on his defence too. Mr Rambert declined to do this and on 1 May 1985 S. instructed Mr Garbade. On 10 June the President of the Indictments Division (Anklagekammer) of the Zürich Court of Appeal (Obergericht) designated him as court-appointed defence counsel with retrospective effect from 4 May. 15. On 8 May 1985, while still in custody in Bern, the applicant had been able to confer freely with Mr Garbade for about half an hour. From 15 May, on the other hand, visits took place under the supervision of a police official. Three of the applicant’s letters to his lawyer, dated 4, 6 and 21 May, were intercepted and were later used for the purpose of graphological reports. After being transferred to Winterthur prison S. continued to be subject to surveillance of his correspondence and his lawyer’s visits. He was, however, able on 29 May to have a meeting with no witness present with Mr H., a lawyer who had been approached by his mother to undertake his defence. 16. On 31 May 1985 the applicant spoke with Mr Garbade in the presence of a policeman who took notes and stopped the interview after an hour, on the grounds that they were no longer speaking about the case and he had other business to see to. 17. In a letter of 12 June 1985 the Winterthur District Attorney informed the Zürich Principal Public Prosecutor (Staatsanwalt) that he considered these measures necessary in view of the risk that the applicant’s lawyer might collude with other lawyers or other co-accused. He relied on the second paragraph of Article 18 of the Zürich Criminal Procedure Code (Strafprozessordnung), according to which: "An accused who is held in custody shall be permitted written and oral contact with defence counsel, in so far as the purpose of the investigation is not jeopardised. Once his detention has exceeded fourteen days, an accused must not be refused permission to consult defence counsel freely and without supervision, unless there are special reasons, in particular a danger of collusion. After the close of the investigation, an accused shall have this right without restriction. (...)." 18. The Indictments Division of the Zürich Court of Appeal gave S.’s lawyer permission on 27 June 1985 to examine three police reports and several transcripts of statements by the co-accused at the registry of the Court, but not to take copies of them. From that date until January 1986 (see paragraph 33 below) Mr Garbade did not have access to any other documents in the case-file. 19. There were numerous disputes between the lawyer and those carrying out the surveillance, notably on 23 August 1985 when the lawyer wanted to give his client several decisions and letters from the District Attorney and a copy of the memorial for the public-law appeal of 19 August 1985 (see paragraph 27 below). The latter document was seized by the officer and sent to the District Attorney. 20. On application by the Winterthur District Attorney’s Office the President of the Indictments Division of the Zürich Court of Appeal extended the applicant’s detention on remand until 12 September 1986, in order to prevent him colluding with his co-accused, who had meanwhile been released, and tampering with evidence. 21. In October 1985 Mr Garbade saw some extracts from the final police report of 8 August 1985, but he did not have access to the case-file until January 1986. 22. On 3 June 1985 the applicant appealed to the Indictments Division of the Zürich Court of Appeal, complaining of the surveillance of the interview of 31 May (see paragraph 16 above), and supplemented the appeal on 14 June following other visits on 7 and 14 June. 23. The Indictments Division dismissed S.’s appeal on 27 June. It pointed out that he was suspected of having committed the crimes in question and said that in view of the complexity and extent of the authorities’ investigation there was a serious risk of collusion; because the accused had refused to make a statement, it would have been easy for him to tamper with the evidence, as his co-accused had been released, apart from W. He had also kept in close contact with them, and was accused of serious offences which had constituted attacks on public and social order. There was also a risk of unintentional collusion on the part of Mr Garbade in view of his contacts with the lawyers representing the other accused, especially counsel for W. As for the conduct of the policeman responsible for surveillance of the interview of 31 May 1985 (see paragraph 16 above), this could be justified. 24. The applicant appealed against this decision to the Civil Division of the Zürich Court of Appeal; on 26 July 1985 that court upheld the decision. The court found that a danger that the applicant would collude with his co-accused followed from his refusal to make a statement, and it could be supposed that he would use every effort to make their respective statements agree with each other (abstimmen). Mr H. had indeed been able to confer freely with him, but the Civil Division did not find credible Mr Garbade’s assertions that his contacts with the lawyers representing the other accused were no closer than Mr H.’s; further, counsel for W. had advised the District Attorney’s Office that the lawyers had all agreed to co-ordinate their strategy. The court added: "Acting in such a way is not inadmissible, but it must, however, be compatible with the duty to ascertain the material truth (Gebot der materiellen Wahrheitsfindung). As the accused represented by Mr Garbade and Mr Rambert are exercising their right to refuse to make any statements, one cannot ignore the risk that defence counsel will not only co-ordinate their tactical and legal way of proceeding but may also, intentionally or not, adversely affect the ascertainment of the material truth. In these circumstances, precisely in the case of offences of this type which must be regarded as attacks on public and social order, there are sufficient indications pointing to a danger of collusion in the person of defence counsel." 25. On 10 June 1985 the applicant had also challenged a decision by the President of the Indictments Division extending his detention on remand. He complained that he had not been able to examine all the documents in the case-file, and that the proceedings had been entirely written. On 18 July 1985 the Indictments Division dismissed the appeal and confirmed the further remand until 12 September 1985, on the grounds that there was still a danger of collusion and flight. 26. S. then brought two public-law appeals before the Federal Court on 19 and 27 August. 27. In the first appeal, which was directed against the decision of 18 July 1985 (see paragraph 25 above), he relied on Article 6 para. 3 (b) in conjunction with Article 5 para. 4 (art. 6-3-b, art. 5-4) of the Convention. He alleged that the surveillance of the interviews made his right to take proceedings within the meaning of Article 5 para. 4 (art. 5-4) illusory, and that his right to a fair hearing was deprived of substance as regards the review of the lawfulness of his detention on remand; in particular, the aforesaid surveillance prevented any confidential conversation with his lawyer aimed at refuting the evidence collected during the investigation. Further, he did not have access to the case-file and his lawyer was unable to take a copy of it. The second appeal challenged the decisions of 27 June and 26 July 1985 (see paragraphs 23 and 24 above) and put forward essentially the same complaints. 28. On 15 October 1985 the Federal Court dismissed the appeal of 19 August (see paragraph 27 above). It found inter alia that Mr Garbade, whose task it was to draw up the application for release from detention, had had access to the case file, so that the applicant’s rights in the proceedings on the extention of his pre-trial detention had not been infringed. The court added that counsel would, at the preparation for trial at the latest, have the right to a copy of the case-file for his client if he asked for this. 29. The appeal of 27 August 1985 (see paragraph 27 above) suffered the same fate on 4 December. The Federal Court held that only Article 4 of the Federal Constitution and Article 6 para. 3 (c) (art. 6-3-c) of the Convention (as interpreted by the European Commission of Human Rights) were relevant, and not Article 6 para. 3 (b) (art. 6-3-b), as the surveillance had not prejudiced preparation for the trial. The authorities had not been arbitrary in describing the offences in question as systematic attacks on public and social order. The accused appeared to be extremely dangerous and it was reasonable to suppose that they would have resorted to illegal methods even during the judicial proceedings. Consequently, regardless of Mr Garbade’s personal qualities, surveillance of his contacts with his client was in accordance with the Constitution and the European Convention. In the event of irregular actions on the part of a lawyer, it was in the first place up to the disciplinary authorities to impose penalties on him. A lawyer could intentionally or unintentionally become the accomplice of an accused. This was the case in particular with Mr Garbade, who was in close contact with Mr Rambert, whose client W. had been allowed to communicate freely with him. However, the applicant could not claim to be the victim of discrimination, as W. had been in custody for much longer and was accused of additional offences. 30. The surveillance had not been relaxed in the meantime. The police officer in charge of it had drawn up reports on 23 August, 11 October, 21 October and 18 December; these were subsequently added to the case-file. It was apparent from the first report that Mr Garbade had had to show him the documents he was studying with his client. 31. In a letter of 15 October 1985 the Winterthur District Attorney’s Office had informed the Principal Public Prosecutor that the surveillance was aimed at eliminating all risk of collusion; he considered, however, that it was unlikely that a conversation listened to could be used in evidence against S. in any way. 32. On 21 October 1985 the Winterthur District Attorney notified Mr Garbade that he would end the surveillance as soon as he had heard the applicant’s statement on the accusations brought against him. Mr Garbade replied that S. would refuse to make any statement as long as the surveillance continued. 33. The surveillance of visits and correspondence was ended on 10 January 1986 following an interrogation lasting a day and a half. On that occasion the District Attorney asked the applicant to make a statement, but he exercised his right to silence. After this he was able to confer with his counsel in the prison library with no glass screen or any other restriction. 34. On 20 December 1985 the applicant had brought an appeal inter alia against the surveillance of visits and the fact that he was not allowed to consult the case-file. On 8 January 1986 the Indictments Division of the Zürich Court of Appeal had adjourned a decision on the first point, on the grounds that the District Attorney’s Office was about to discontinue the surveillance. On the second point the court had found that S. was still suspected of the offences in question and the length of the investigation was caused by his insistence on remaining silent. On 10 July 1986 the court found that the complaint on which it had adjourned a decision on 8 January was no longer a live issue now that the surveillance measures had ended (see paragraph 33 above). In order to decide whether the applicant was liable for costs or was entitled to damages, it assessed what chances of success the appeal would have had if the surveillance had continued. It noted that the circumstances referred to in the Federal Court’s decision of 4 December 1985 (see paragraph 29 above) had not changed by 20 December, the date of the appeal, and the restrictions on free communication between the applicant and his lawyer thus remained justified; it therefore did not award him any pecuniary compensation. 35. S. appealed against this decision to the Civil Division of the Zürich Court of Appeal, which upheld the decision on 19 January 1987, again on the grounds that the appeal of 20 December 1985 would probably have failed. 36. S. finally brought a public-law appeal on 27 February 1987. The Federal Court dismissed it on 30 November 1987. Restricting itself to examining whether the refusal to award compensation was tainted by arbitrariness, it found that there had been a danger of collusion and in essence approved the findings of the Indictments Division (see paragraph 34 above). 37. In a report drawn up for the Winterthur District Attorney’s Office on 26 March 1986, the Zürich police had expressed the opinion that some of the anonymous letters which had been sent shortly after the offences in question undoubtedly came from the applicant. 38. The final interrogation took place on 28 July 1986. According to the record, S. refused to answer the accusations brought against him, and his lawyer attributed those accusations to the fact that his client was thought to have anarchist opinions. 39. The Winterthur District Attorney’s Office’s final report (Schlussbericht) of 21 August 1986, comprising 235 pages, accused the applicant of nineteen offences and attempted offences of arson, participation in three attacks with explosives, various thefts and offences of criminal damage, including damage to a railway line; the damage amounted to approximately 7,670,000 Swiss francs. The report was forwarded to the Zürich Public Prosecutor’s Office. 40. On 12 September, 6 October and 22 December 1986 the applicant made unsuccessful requests to the Public Prosecutor’s Office to reopen the investigation. He applied again on 1 April 1987. 41. In accordance with paragraph 3 (c) of Article 198 a of the Zürich Criminal Procedure Code he left it to the Indictments Division to decide which court would try him. The Division decided to commit him for trial by the Court of Appeal rather than the Court of Assizes (Geschworenengericht), as it considered that his interests would be better protected in that way, especially with regard to his youth. 42. The trial was due to start on 14 January 1988 but the applicant did not appear. The Court of Appeal therefore adjourned the hearing. A fresh hearing took place on 11 December 1989, in the absence, for which no reason had been given, of S. who had been provisionally released on 15 September 1988. The Court of Appeal found him guilty inter alia of manufacturing explosives, arson, theft and criminal damage and sentenced him to seven years’ imprisonment - the 1,291 days spent in custody on remand being deducted - and to payment of costs and expenses. The applicant appealed. A new trial took place on 8 February 1990, again in his absence. After hearing his counsel and the representative of the Zürich Principal Public Prosecutor, the Court of Appeal upheld its judgment of 11 December 1989. He appealed to the Court of Cassation of the Canton of Zürich, and enforcement of the judgment was suspended by the appeal. | 1 |
train | 001-83850 | ENG | RUS | CHAMBER | 2,007 | CASE OF KRIVONOS v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 4. The applicant was born in 1937 and lives in Novovoronezh in the Voronezh Region. 5. In 2003 and 2004 the applicant sued the local Social Security Committee for unpaid allowances and commodity benefits. 6. By judgment of 1 July 2003, the Novovoronezh Town Court of the Voronezh Region awarded her 19,315.50 Russian roubles (RUB) for the period from 1 July 2002 to 30 June 2003. On 2 September 2003 the judgment became final. The applicant received the monies on 8 June 2005. 7. By judgment of 27 February 2004, the Town Court awarded the applicant RUB 16,765.50 for the period between 1 July and 31 December 2003. On 9 March 2004 the judgment entered into force. The applicant received the monies on 3 August 2005. 8. On 15 March 2004 the Town Court awarded the applicant RUB 4,973.57. It appears that the judgment was not enforced. 9. On 7 May 2004 the Town Court awarded the applicant RUB 9,494.54 for the period from 1 January to 31 March 2004 and increased her monthly allowance to RUB 5,664.85 from 1 April 2004 with subsequent indexation. On 17 May 2004 the judgment entered into force. The applicant received the lump sum on 11 November 2005. 10. On 4 June 2004 the Town Court awarded the applicant RUB 1,772.30 in arrears, increased her monthly commodity benefits to RUB 679.78 from 1 April 2004 and ordered the Social Security Committee to adjust the applicant's annual disability allowance starting from 2005 in line with inflation. It appears that the judgment was not enforced. 11. On 6 October 2004 the Town Court awarded the applicant RUB 12,659.40 for the period from 1 April to 31 July 2004. On 18 October 2004 the judgment entered into force. The applicant received the monies on 11 November 2005. | 1 |
train | 001-59365 | ENG | GBR | CHAMBER | 2,001 | CASE OF KEENAN v. THE UNITED KINGDOM | 1 | No violation of Art. 2;Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza;Simon Brown | 8. The applicant is the mother of Mark Keenan who, on 15 May 1993, at the age of 28, died from asphyxia caused by self-suspension whilst serving a sentence of four months’ imprisonment at HM Prison Exeter. 9. The immediate circumstances surrounding Mark Keenan’s death are inevitably obscure, since he took his life while alone. For the rest, the parties have in the main accepted the facts as established by the Commission and these are reproduced below in Section A. The medical reports concerning Mark Keenan’s state of health prior to his death are summarised in Section B. 10. From the age of 21, Mark Keenan received intermittent treatment in the form of anti-psychotic medication for a condition which it appears was first diagnosed whilst he was serving a four-year prison sentence for assault. It appears to have been reported by Mark Keenan that he was diagnosed as suffering from paranoid schizophrenia. Following his release from prison in 1988, Mark Keenan’s general practitioner continued the prescription of anti-psychotic medication. 11. His medical history included symptoms of paranoia, aggression, violence and deliberate self-harm, and his behaviour was sometimes unpredictable. In November/December 1992, shortly before he was admitted to prison, he had received treatment at North Devon District Hospital following two incidents in which he had injected himself with overdoses of insulin. Following the first incident, on 9 November 1992, it was noted that he was complaining of paranoia. Diagnoses of borderline personality disorder and paranoid schizophrenia were made and it was noted that he had a history of frequent episodes of deliberate self-harm. He was discharged after ten days on a prescription of anti-psychotic medication. The second incident, on 16 December 1992, was associated with the breakdown in his relationship with his girlfriend. The admission notes recorded as diagnoses “Personality disorder. Paranoid psychosis. Suicide threats”. He discharged himself on 18 December 1992. 12. On the same day he was admitted to HM Prison Exeter, having been remanded in custody following an assault on his girlfriend. On admission, he was received by the prison’s health care centre for observation and assessment, having mentioned a history of suffering from paranoid schizophrenia. 13. On 21 December 1992, when the medical notes recorded that there had been no evidence of schizophrenia that day, an attempt was made to transfer him from the health care centre to ordinary location. Later the same day he was re-admitted to the health care centre because he had been kicking at his cell door and appeared paranoid to prison staff. The explanation provided by Mark Keenan was that he had taken some cannabis which had “tripped him out” and made him paranoid, shaky and tense. Subsequently, on 23 December, he was discharged to ordinary location having been assessed as fine, with no psychiatric symptoms, cheerful and coping. By the evening, he was complaining that he was “cracking up”. He was advised to “calm down and think positively about going to court tomorrow”. In the event, on 24 December 1992, he was released on bail. 14. Mark Keenan was re-admitted to HM Prison Exeter on 1 April 1993, having been convicted of the assault on his girlfriend and sentenced to four months’ imprisonment. He was again received by the prison’s health care centre for observation and assessment. On 5 April 1993 Dr Keith, the prison’s senior medical officer, consulted Dr Roberts, the consultant psychiatrist who had been treating Mark Keenan before his admission to prison. Dr Roberts advised that Mark Keenan had a personality disorder with anti-social traits and that under stress he disclosed some fleeting paranoid symptoms. Dr Roberts concurred with the medication which Dr Keith had prescribed (thioridazine) and suggested a clopixol injection with chlorpromazine. He also advised that Mark Keenan should be treated symptomatically. 15. On 14 April 1993 Mark Keenan barricaded himself inside the ward room of the health care centre in protest against his proposed transfer to ordinary location. On 15 April 1993, following an adjudication concerning the incident, the governor imposed a suspended punishment of fourteen days’ extra imprisonment. On 16 April 1993 he was discharged to ordinary location but re-admitted to the health care centre the following evening after his cell-mate reported that he was uptight and had fashioned a noose from a bed sheet which he was keeping under his bed. On his return to the health care centre, he was placed in an unfurnished cell and put on a fifteen-minute watch. The entry in his medical notes for 17 April 1993 records: “Brought to Health Care Unit at 21.30 hours ... states he will hang himself. A noose has been made out of strips of sheets. In conversation with Keenan, [says] he is under pressure from kitchen workers who have stated they will contaminate his food etc. The look of relief on his face was great when I told him he will have to stay here.” 16. A subsequent entry, on 18 April 1993, records “owes on wing hence can’t cope [with ordinary location]”. 17. On 23 April 1993 it was decided that Mark Keenan should be assessed by the prison’s visiting psychiatrist, Dr Rowe. On 26 April 1993, before he had been assessed, a further attempt was made to transfer him to ordinary location. He was re-admitted to the health care centre the following day. The entry in his medical notes for 27 April 1993 records: “Brought to treatment room shaking and hyperventilating. Declined any further medication. Unable to cope. Admitted to health care centre for observation and assessment. Seen at 17.45 hours. He says he felt panicky and paranoid in main prison. He felt he was going to be attacked. He felt he might have to defend himself. Located in single cell on lower landing.” 18. On 29 April 1993 Mark Keenan was assessed by Dr Rowe, who did not consider that it was currently necessary to transfer him to a hospital for psychiatric treatment, but prescribed a change in his medication, and recorded in his medical notes: “He is an old patient of mine who suffers from a mild, chronic psychosis. He is not usually violent, although he is easily stressed and then can be unpredictable.” He also recommended that Mark Keenan should have no association until the panic/paranoia subsided. 19. On 30 April 1993 the question of moving Mark Keenan to ordinary location was again raised with him. The entry in his medical notes for 30 April 1993 records: “He does not feel fit for [ordinary location] as he is afraid he might be injured, further mention of paranoia by him. To remain in a single cell.” 20. In the course of the day his mental state was noted to deteriorate, with evidence of aggression and paranoia. Dr Seale, who had no psychiatric training, considered that the change in medication might be responsible and therefore prescribed a return to his previous medication. At 6 p.m. Mark Keenan assaulted two hospital officers, one seriously. Following the assault, he was placed in an unfurnished cell within the health care centre and put on a fifteen-minute watch. It is not known how long the watch was kept in place. 21. On 1 May 1993 Dr Bickerton, who had six months’ training in psychiatry as a senior house officer, certified Mark Keenan fit for adjudication in respect of the assault and fit for placement in the segregation unit within the prison’s punishment block. He recorded in Mark Keenan’s medical notes for 1 May 1993: “Calm and rational. No sign of mental illness. Slept well, feels relaxed. Claims he was frustrated yesterday and this is why he attacked the officer. Fit for normal cellular confinement in punishment block.” 22. The same day, Mr McCombe, the prison’s deputy governor, ordered Mark Keenan to be placed in segregation in the punishment block under Prison Rule 43. Mr McCombe considered segregation appropriate, as Mark Keenan’s behaviour was unpredictable and he posed a threat to staff. No date appears to have been given for his release from segregation. 23. Whilst in segregation, Mark Keenan would have been locked up about twenty-three hours each day. Although the segregation unit was visited each day by a doctor, the prison chaplain and the prison governor, Mark Keenan would, in contrast to location within the health care centre or the main prison, have had minimal contact with staff, and none with fellow prisoners. 24. On 1 May 1993, following his transfer to the segregation unit, Mark Keenan requested a “listener” (a prisoner trained by the Samaritans in the counselling of inmates who may be suicidal). At 6.05 p.m. Mr Gill, one of the prison’s hospital officers, was contacted after Mark Keenan had indicated to prison officers on the segregation unit that he was feeling suicidal. The medical notes record: “Went to see [Keenan]. 1997 raised [(a form completed for the referral of an inmate, perceived to be a suicide risk, to the medical officer)]. Listener in cell with inmate. Reassurances given that he is not suicidal but tense, agitated [and] needs to talk it over. Will get [medical officer] to see when he attends later.” 25. At 6.45 p.m., however, Mark Keenan was threatening to harm himself and was therefore transferred to an unfurnished cell in the hospital wing and put on a fifteen-minute watch. It remains unclear how long this watch was maintained. 26. At 7.45 p.m. Dr Bickerton attempted to speak to Mark Keenan through his cell door. Whilst noting that he appeared very agitated and distressed, and claimed to be hearing voices and thinking he was Jesus Christ, Dr Bickerton doubted that he was suffering from any psychotic illness. Mark Keenan’s medical notes record that he spent the greater part of the night banging on and kicking his cell door, shouting obscenities and making threats to prison staff. On 2 May 1993 Dr Simkins recorded in Mark Keenan’s medical notes: “This morning denying he is suicidal. Verbally abusive to staff. Some bruises from hitting door. This man is a considerable hazard to staff and has become obnoxious to other hospital inmates due to his behaviour. He is unpredictable and has made threats to his life. He has been placed on Rule 43. I have explained to him that his remaining in the [unfurnished] cell is in order to assess his attitude in the next 24 hours. I will increase chlorpromazine to 400mg qds and resume Kemadrin and chloral nocte. He says he will not take medication.” 27. The medical notes for 3 May 1993 record: “a.m. – very much better in attitude. Slept well. Requests to return to [the segregation unit in the punishment] block. Agreed.” 28. Mark Keenan was duly returned to the segregation unit. A note in the segregation unit’s occurrence book for 3 May 1993 records: “Keenan [was] brought in from the hospital. Seems slightly more lucid than before, however still needs watching. At tea time Keenan asked to [talk to a listener] as he stated he felt he was ‘going into one’, which I took to mean kicking off ... staff beware.” 29. The medical notes record at 9 p.m.: “Troublesome in block. Given extra chlorpromazine. Seemed to calm down after a chat. If he is talking suicidally overnight then unfurnish his block cell and review ‘mane’ [query, in the morning].” 30. Save for a short note on 4 May 1993 that at “11.00 hours clopixol 500 mg given”, no further entry was made in Mark Keenan’s medical notes from the 3 May 1993 until his suicide on 15 May 1993. Dr Bradley, who had no psychiatric training, saw Mark Keenan in the course of routine morning visits to the segregation unit on 4 to 7 and 10 to 14 May 1993. She recalled: “ ... We had the cell door open on the majority of occasions. I recall there may have been one time when I spoke through his glass window ... but that was because they were short of staff. He had the opportunity to talk to me. We discussed his medication. He never mentioned any feelings of depression to me or not coping. On the whole Keenan appeared calm and with it with me. He appeared clear and not disturbed. I also checked with the staff as to his behaviour through the day, and they replied that there was nothing that concerned them.” 31. The occurrence book of the segregation unit records, however, on 4 May 1993: “Keenan abusive, aggressive and offering violence to staff. Relocated to [cell] A14 for a quietening down period. Keenan phone call to solicitor at 10.00 hours re assault on H/O Dent. On return [from phone call] to A1 [landing] states he will behave himself. Relocated to [cell] A1-5.” 32. The entry for 6 May 1993 records: “Keenan refused cup of tea. Said there was something out in it. When told that there was nothing out in it he decided to drink it. He is starting to act very strange. Staff to be aware.” 33. The entry for 7 May 1993 records: “Keenan seen by doctor. Refused medication. Staff to still offer medication. To be logged if taken or refused.” 34. Following the entry on 7 May 1993 there is reference to the fact that on 8, 9 and 10 May 1993 he accepted his medication. Thereafter there is no reference to Mark Keenan in the occurrence book until his suicide on 15 May 1993. 35. In a letter to his mother, dated 13 May 1993, he complained that his state of mind was not very good. 36. On 14 May 1993 Dr Bradley assessed Mark Keenan to be fit for adjudication in respect of his assault on the two prison officers on 30 April 1993. The record of the adjudication contains the certification by the doctor that he was fit for adjudication and for cellular confinement. The doctor added the following observations: “At the time of the alleged offence Mr Keenan was receiving medication for a chronic psychiatric problem and he had had a recent change in medication.” 37. The adjudication took place on 14 May 1993, some two weeks after the events concerned. Mark Keenan was found guilty of assault. In mitigation, he told the deputy governor, Mr McCombe: “I suffer from a split personality disorder. I have been in and out of institutions all my life. I now have a chance to make good. My mum has booked a holiday in Cornwall. I have behaved myself.” The deputy governor said that he noted what the applicant said but that he was facing extremely serious charges. He awarded twenty-eight additional days in prison together with seven days’ loss of association and exclusion from work in segregation in the punishment block. At that point, Mark Keenan had only nine days to go before his expected release. The sentence had the effect of delaying his release from 23 May until 20 June 1993 – pursuant to the applicable provisions, he had been entitled to release after half of his four-month sentence, with account also being taken of time spent in detention on remand. 38. Shortly after the adjudication, Mark Keenan was seen by the chaplain, who recalled in his evidence at the inquest that Mark Keenan had been unhappy about the decision and had said: “I was thinking of kicking off, but I don’t think I will.” The chaplain stated that at no stage did Mark Keenan indicate that he might take his own life. 39. At 9.45 the following morning, on 15 May 1993, Mark Keenan was seen by Dr Bickerton who recalled that he seemed calm, polite and relaxed. He was then seen by the deputy governor, Mr McCombe, who later described him as having been in a highly agitated state, but relaxing when he was informed that his right to buy tobacco had not been suspended. 40. In the afternoon Mark Keenan was visited by a friend, M.T., whom he had known for about five years. M.T., who saw Mark Keenan for some twenty minutes, found him to be disappointed that he had an additional twenty-eight days to serve in prison, but otherwise in good spirits and, when M.T. left, as looking forward to his next visit the following Saturday. Prison officer Haley, who returned Mark Keenan to his cell following the visit, recalled that Mark Keenan was very talkative and appeared to be in high spirits. 41. Prison officer Milne, who saw Mark Keenan at or about 5.15 p.m., recalled that he seemed all right and asked if he could use the telephone at 6 p.m. Mr Milne agreed, but in the event it does not appear that Mark Keenan was allowed out of his cell to make the call. According to the evidence given later at the inquest, Mr Milne, who was on duty on landing A1 – the segregation block –, was absent in the toilet for ten minutes from about 6.25-6.30 p.m. On his way from the toilet to assist on landing A3, he noticed that the cell call indicator for landing A1 was depressed. The call buttons in each cell lit up indicators on each landing to ensure that if an officer was not present on one landing, the light could be seen by officers on other landings. There was no noise issuing from the indicator as it seemed that someone, a prisoner or prison officer, had de-activated the buzzer, access being possible to the system from each landing. Mr Milne called to another officer to accompany him and immediately went to Mark Keenan’s cell and proceeded to open it. He estimated that a minute went by between seeing that the light was on and opening the cell door. 42. At 6.35 p.m. on 15 May 1993, Mark Keenan was discovered by the two prison officers hanging from the bars of his cell by a ligature fashioned out of a bed sheet. At 7.05 p.m. he was pronounced dead. 43. At some point before he committed suicide, Mark Keenan had depressed the call button in his cell. It would not have been possible for him to depress the call button whilst suspended. It was Mr Milne’s evidence at the inquest that Mark Keenan must have depressed the call button during the ten minutes when he was using the staff toilets since the light on the landing, which would have indicated that the call button had been depressed, was not on when he left. 44. In an undated letter, received by Dr Roberts after 15 May 1993, Mark Keenan wrote: “As you will well know I am in prison for assault on [G.S.], which I received 4 months. I cannot take much more. I have seen Dr Rowe in here he wrote me up for some new tablets fenzodine white tablets like white smarties. I just went mad on them, and ended up on assault on two staff. I am asking you if you can give me treatment when I get out and get me better. I was using drugs in Bmth as well, I feel very unstable but the doctor will not help me at all. I need help please could you send the Governor a report on me, I can’t take much more.” 45. On 25 August 1993, at the inquest before a coroner, the jury recorded a verdict of death by misadventure and that the cause of death was asphyxiation by hanging. Evidence was submitted in public proceedings by fourteen witnesses, six of whom gave oral testimony. The witnesses included the applicant, the prison officers on duty who had discovered Mark Keenan’s body, the police inspector who had investigated the death, the deputy governor of the prison, a number of prison hospital officers and the senior prison doctor, the prison chaplain and M.T., who had visited Mark Keenan on the day he died. Statements were submitted by these persons, as well as by Dr Bickerton and Dr Bradley. 46. On 17 November 1993 the applicant was granted legal aid limited to obtaining further evidence and counsel’s opinion on the merits and quantum of damages in a potential action against the Home Office in respect of the treatment of her son and the conditions of his detention. 47. In a report dated 17 August 1994, Dr Maden, the consultant forensic psychiatrist instructed by the applicant’s solicitors, expressed his opinion that Mark Keenan, as a prisoner suffering from paranoid schizophrenia, was unfit to be placed in segregation in the punishment block and that the failure of the prison authorities to accommodate him in the hospital wing was an important contributory factor to his death (see paragraph 50 below). 48. In an opinion dated 14 October 1994, counsel advised in the light of the psychiatrist’s report that, notwithstanding the grave breach of duty by the Prison Service in keeping Mark Keenan, a mentally ill prisoner, in a punishment cell without any proper medical monitoring, an action in negligence under the Law Reform (Miscellaneous Provisions) Act 1934 would not succeed since there was no evidence that Mark Keenan had suffered any injury of a kind in respect of which a cause of action could be maintained. He was already mentally ill and there was no indication that he suffered any worsening in his condition, or developed any new condition as a result of his confinement. Mere distress was insufficient, and the fact of his death was not such as to constitute in English law an injury in respect of which a cause of action lay. In respect of proceedings under the Fatal Accidents Act 1976, counsel advised that, since Mark Keenan was over 18 when he died, the applicant did not qualify for bereavement damages and there were no dependants who might be able to pursue a claim. To the extent that the applicant might have incurred any funeral expenses, these were not sufficient to justify the support of legal aid. The effect of this advice was to prevent the applicant from pursuing any contemplated litigation since, in the light of the advice, legal aid would be withdrawn. 49. By a letter of 12 December 1994, the applicant was informed by the Legal Aid Board that they were considering whether to discharge her legal aid certificate given counsel’s opinion that she had no reasonable prospect of success. By a decision of 8 March 1995, the Legal Aid Board discharged her legal aid certificate since it was unreasonable in the circumstances that she continue to receive assistance. 50. Dr Maden, MD, MRCPsych, a consultant forensic psychiatrist at the Bethlem Royal Hospital, prepared a report at the request of the applicant’s solicitors, on the basis of materials from the inquest, Mark Keenan’s prison medical record, his medical notes from North Devon District Hospital and his general practice medical record. He had had no contact with Mark Keenan before his death. His report included the following: “Family and personal history There is a family history of psychiatric disorder, in that his maternal grandmother is said to have died in a mental hospital, his mother suffered a severe depressive illness after the cot death of Mark’s younger brother and his father is described as an alcoholic who was occasionally violent. Mark Keenan[‘s] childhood was disturbed and unhappy. His parents separated when he was about a year old. His mother suffered from severe, intermittent depression throughout his childhood. His behaviour at school was disruptive, including fighting and truancy. He is said to have been in care at various times from the age of 12 years, and spent time in foster homes, detention centres and approved schools. His work record was poor, consisting of occasional short-term manual work. A report by Dr Adam (dated 23.3.93) states that he tended to stop jobs because of paranoid thoughts. His disturbed behaviour continued after leaving school. He is said to have spent times in London at the age of 15 years as a rent boy and convictions included breach of the peace (age 15 y.), car theft and breaking into a jewellers (age 16 y.), convictions relating to fighting at the ages of 17 and 20 years and a conviction for G.B.H. at the age of 21 years after stabbing his sister’s boyfriend. Psychiatric history He is said to have been diagnosed as suffering from paranoid schizophrenia when he was aged 21 years (in 1985), whilst he was serving a prison sentence for the offence of G.B.H. He had paranoid thoughts and was started on treatment with cloxipol (anti-psychotic medication). Whilst serving his prison sentence, he is said to have spent a brief spell in Grendon Underwood prison, where he was told that his paranoid schizophrenia was too severe for him to get involved in group therapy. In 1988, he was discharged from prison and continued clopixol until it was changed to depixol (a similar, injectable, anti-psychotic medicine) by his G.P. ... His first admission to a psychiatric hospital was to St Annes, Poole, ... in December 1988. From 9.11.92 until 19.11.92, he was admitted to North Devon District Hospital. He had taken an overdose, injecting himself with insulin. He was also complaining of ‘paranoia’. The admission summary lists the diagnoses as ‘borderline personality disorder’ and ‘paranoid schizophrenia’. It also notes his history of ‘frequent episodes of DSB (deliberate self-harm)’. The discharge summary also noted that he was ‘unable to cope living on his own’... and that he was disruptive on the ward ... It was noted that ‘there did not seem to be too much evidence for his paranoia’, but he was discharged on three different types of anti-psychotic medication (including a fortnightly injection) and an anti-depressant. ... From 16.12.92 until 18.12.92, he was admitted to North Devon District Hospital, after taking an overdose following the breakdown of his relationship with his girlfriend. The summary of this admission lists the diagnoses as ‘Personality disorder. Paranoid psychosis. Suicidal threats.’ Shortly after taking his own discharge, he was arrested for the assault on his former girlfriend which led to his prison sentence. ... Opinion 1. Mark Keenan suffered from paranoid schizophrenia. He appears to have developed this illness in 1985 ... After his discharge from prison in 1988, he maintained fairly regular contact with psychiatric services and his G.P. and for most of this time, was being given an injectable anti-psychotic medication. Among the psychiatrists who saw him, there appears to be general agreement about the diagnosis of schizophrenia. 2. I note that he was also given diagnoses of personality disorder and substance abuse at various times. There is evidence to support the diagnosis of personality disorder. However, none of the psychiatrists who saw him appear to have doubted the additional diagnosis of schizophrenia and all continued his treatment with anti-psychotic medication. The significance of the diagnosis of personality disorder is that he would have been a more difficult patient to look after, than the average patient with schizophrenia. 3. Schizophrenia is a serious and long lasting mental illness that may be controlled to a greater or lesser extent by medication but is not cured by that medication. Self-harm, suicide and violence are recognised complications of schizophrenia. Many of the symptoms which Mr Keenan showed in the time leading up to his death are recognised symptoms of schizophrenia, including paranoia, hearing voices, disturbed sleep, aggression, ambivalence and thoughts of self-harm. These symptoms can have other causes but, in the case of a patient known to suffer from schizophrenia, it would be usual to assume that the symptoms were due to the schizophrenic illness. It is impossible to make any reliable distinction between symptoms which are due to schizophrenia and those which are due to an individual’s personality. 4. The diagnosis of schizophrenia has important implications. The management of the condition is primarily the responsibility of doctors, as the normal prison rules cannot be expected to cope with persons whose mental state is grossly abnormal, without guidance from doctors. The following comments are therefore made with reference to what would constitute an acceptable standard of care for a person with schizophrenia. 5. From the evidence I have seen, the standard of medical record keeping was inadequate on at least two occasions. Between 19.4.93 and 26.4.93, the management plans changed from continuous observation in the prison Health Care Centre, and a decision to seek the opinion of a visiting psychiatrist (Dr Rowe), to a decision to transfer Mr Keenan to ordinary location. There is no information in the medical notes to explain this decision. On 17.4.93, Mr Keenan was stating to staff that he intended to hang himself and a noose had been found in his cell. Given this evidence of serious suicidal intent, it would be good practice to record in the medical notes the reason for discontinuing the higher level of observation and returning to normal location. There is no entry in the medical notes for the eleven days leading up to Mr Keenan’s death. Given that the entries up to this point record disturbed and unpredictable behaviour and threats to his life and threats of violence to others, there were good reasons for monitoring his mental state regularly and there is no record to show that this was done. 6. Following the visit and assessment by Dr Rowe on 29.4.93 the evidence I have seen suggests that the standard of care received by Mr Keenan fell below that which he was entitled to expect. Dr Rowe confirmed that Mr Keenan suffered from ‘mild chronic psychosis’ and recommended adding a new form of anti-psychotic medication to his existing regime of anti-psychotic medication. A recommendation was also made on the same day that Mr Keenan not be allowed association until his panic/paranoia had subsided. Dr Rowe (who had previous knowledge of the patient) also noted that the patient was not usually violent. On the next day (30.4.93), his mental state was noted to deteriorate with evidence of paranoia and aggression. The change in medication recommended by Dr Rowe was then reversed. On 1.5.93, Dr Bickerton concluded that there was no sign of mental illness and pronounced Mr Keenan fit for normal cell location in the punishment block. With the benefit of hindsight, it is apparent that Mr Keenan was not fit to be located in the punishment block. Two things run throughout his medical notes. One is his fear of being located anywhere other than the hospital, the second is his tendency towards suicidal behaviour. I believe that the failure to accommodate him in the hospital wing was an important contributory factor to his death. In my opinion, it is not possible to justify the reversal of the change in medication recommended by Dr Rowe, without further reference to Dr Rowe (or another psychiatrist). Dr Rowe’s clear opinion was that the patient was suffering from a psychosis and that the correct treatment was a change in anti-psychotic medication. Dr Rowe’s advice was not followed consistently. For example, Dr Bickerton concluded on 1.5.93 that there was no sign of mental illness, despite Dr Rowe’s opinion of 29.4.93 and the evidence in the medical notes of paranoia and aggression on 30.4.93. It is most unlikely that the type of mental illness documented by Dr Rowe (described as chronic) would have disappeared completely within two days. On the evidence I have seen, I believe that Dr Bickerton was incorrect in his judgment (that there was no mental illness present on 1.5.93) and that, as a doctor without psychiatric qualification, he should not have taken a different course of action from that recommended by the psychiatrist.” 51. Dr Reveley, a second consultant psychiatrist instructed by the applicant’s solicitors, expressed her opinion on the basis of the inquest proceedings and medical records, including the notes from prison and the North Devon District Hospital. She had never met or treated Mark Keenan. Her report included the following: “Opinion 37. I am of the view that Mark Keenan suffered from paranoid schizophrenia, paranoid type as defined by the ICD-10 classification of Mental and Behavioural Disorders 1992. One of the essential features of this disorder is presence of delusions in the context of a relative preservation of cognitive functioning and affect. The individual suffering from this disorder is therefore generally able to describe the typical examples of hallucinations. Examples of the most common paranoid symptoms included delusions of persecution, grandiose delusions, hallucinatory voices that threaten the patient, hallucinations of taste and smell. There is ample evidence that Mark Keenan suffered from such symptoms during his final prison sentence. Violence and self-harm are often associated with this condition, as indeed they were in the case of Mark Keenan. The Diagnostic and Statistical Manual of Mental Disorders, 4th edition 1994 draws attention to this finding: ‘The persecutory themes may predispose the individual to suicidal behaviour, and the combination of persecutory and grandiose delusions with anger may predispose the individual to violence.’ 38. Mark Keenan was also variously diagnosed as suffering from substance abuse and personality disorder. Neither of these diagnoses is inconsistent with paranoid schizophrenia and they often coexist with that condition. It is also clear Mark Keenan was consistently treated with anti-psychotic medication, and that the prison medical staff impliedly accepted a diagnosis of psychosis by continuing to treat with anti-psychotic medication. Indeed he specifically received a diagnosis of ‘mild chronic psychosis’ while in prison. Any diagnosis of psychosis is always of the utmost significance. There are three main psychiatric conditions that lead to psychosis: schizophrenia, manic depressive disorder and substance abuse (e.g. ecstasy, LSD, amphetamines, alcohol, and sometimes cannabis). It may be impossible to distinguish between the individual psychotic disorders when someone is first seen by a psychiatrist, and uncertainty about a patient’s diagnosis may remain for years. But having said this, there is almost never any disagreement among psychiatrists about whether a patient is psychotic. Indeed psychotic symptoms can be successfully treated with anti-psychotic drugs even where there is some diagnostic confusion about the classification of the psychotic state. The evidence is that the prison medical staff while accepting that there was no formal diagnosis of his mental disorder, continued to treat his psychotic symptoms with anti-psychotic medication. ... 41. Mark Keenan was treated with anti-psychotic medication while in prison. On account of the medication his condition is, apparently, maintained by this medication with the exception of the isolated flare-ups. These isolated incidents are regarded by the prison doctors as discrete episodes of bad behaviour. When there is no observable episode, Mark Keenan appears to have been regarded as mentally well, or at least sufficiently well to be punished by segregation. This is in my view to adopt a dangerously over-simplified view of mental disorder. The analogy would be with someone with a fever who is given fever reducing drugs, and thereafter put outside on a cold winter’s day on the principle that he is showing no signs of a temperature. In such circumstance no-one would be surprised if there were a recrudescence of the fever. In Mark Keenan’s case there was a failure by the prison authorities to recognise a fundamental psychiatric truth when they found him fit for the punishment block. They were assessing the mental state of a heavily medicated individual whose underlying problems were being maintained and masked by that medication. (Despite the finding that he was sufficiently normal for the punishment block I note that there was no indication in the notes that his medication should be discontinued). 42. Because Mark is adjudged to be well, he received no nursing care on the punishment block. Nursing care is not just about the administering of medication. It is vital to the successful management of mental illness, not least because the nurse is a trained observer and can react quickly and effectively where there are indications that an individual’s mental state is a cause for concern. Nursing is primarily the process of looking after physical or emotional needs of patients with the aim or restoring, improving, maintaining, or promoting well-being. The notion of punishment is incompatible with the goals of nursing – and indeed with all medical care. 43. An acceptable level of care in the management of Mark Keenan’s condition during this period would have included a close monitoring of the medication as regards dose and side effects; a close monitoring of his mental state as regards symptomatology, and as regards any increased risk of self-harm or suicide. There is no evidence that adequate monitoring of this type was performed during the last thirteen days of his life. 44. This is particularly surprising in the context of his earlier problems which included self-harm and violent outbursts and given that there had been a number of changes in the medication prescribed during the time he spent in Exeter Prison. 45. The nature of schizophrenia is such that there are remissions or periods of less florid symptomatology where the positive symptoms, i.e. those associated with a distortion of normal functioning, are not exhibited. During such periods the so-called negative symptoms may continue to be in evidence. Negative symptoms are symptoms that reflect a diminution or loss of normal functioning. They include affective flattening (immobility of feature, unresponsiveness, poor eye contact and reduced body language), alogia (poverty of speech which is often manifested by brief, laconic, empty replies, often accompanied by a diminution in the number of thoughts which is reflected in decreased fluency and productivity of speech), avolition (an inability to initiate and persist in goal-directed activities) and anhedonia (loss of interest and loss of pleasure in life). These negative symptoms account for a substantial degree of morbidity associated with the disorder. They are particularly common in the prodromal (before episode) and residual (after episode) phases of the disorder, and can often be very severe in their own right. ... 47. It is my view that Mark Keenan was recognisably at a very high risk of deliberate self-harm or suicide. This risk would have been evident even if he had not been placed on the punishment block during the last days of his life. It has been shown that, compared with the general population, people who deliberately harm themselves experience four times as many stressful life problems in the six months before the act. The events are various but a recent quarrel with a spouse, girlfriend, or boyfriend is particularly common and other events include separation from or rejection by a sexual partner, and a Court appearance. About a third to a half of all people who harm themselves are suffering from a Personality disorder. Several studies agree that there are a number of factors that seem to distinguish patients who go on to repeat deliberate self-harm. These include previous psychosis, personality disorder of the anti-social type, criminal record, alcohol or drug abuse, lower social class, and a history of unemployment. It is also significant that among patients who have been involved in an earlier episode of deliberate self-harm, the suicide rate in the subsequent 12 months is about 100 times greater than in the general population. 48. As regards the risk of completed suicide, studies show that prisoners have a higher suicide risk than the general population, and that one in ten of all those suffering from schizophrenia end their own lives, and that four fifths of all those who take their own lives are being treated with psychotropic drugs. (The above statistics are taken from the Oxford Textbook of Psychiatry, OUP, 1983, and are widely accepted.) 49. It is not possible to quantify precisely what the degree of risk as regards self-harm or suicide was for Mark Keenan, It is my opinion that he was recognisably in one of the very highest risk groups and that following his removal to the punishment block it was more likely than not that there would be some episode of self-harm during the period of his seclusion. This being the case, I am of the view that the failure to recognise this risk meant that his treatment during the last eleven days of his life fell substantially below acceptable standards of care. ... 51. Individuals with paranoid delusions can often be helped by psychological support, encouragement and assurance. During treatment best results are achieved if doctor/nurse maintains a good relationship with the individual, and is dependable and avoids letting the patient down. He should show compassionate interest in the individual’s delusions, but without colluding in them, or condemning them, and most importantly without ignoring them. The treatment Mark Keenan received in the punishment block fell far short of this model. 52. In my view the way in which Mark Keenan, an individual suffering from paranoid schizophrenia, was treated, was likely to arouse in him feelings of hopelessness, fear, anguish, and inferiority. The circumstances of his imprisonment on the punishment block were humiliating, debasing and degrading, and had the effect of undermining his will to cope with, and battle against, his psychotic illness. His will to resist the illness was cumulatively undermined and resulted in the taking of his own life. The prison regime to which he was subjected disregarded his basic right as an ill person to be medically treated and properly cared for and thereby broke his will to endure imprisonment. The International Code of Medical Ethics declares that ‘Any act or advice which could weaken physical or mental resistance of a human being may be used only in his interest’. The acts performed and the advice given by medical staff in respect of Mark Keenan’s treatment were manifestly not in his interest. What he suffered during the last days of his life was likely to have been terrifying, and I use that word advisedly, in its original sense of instilling terror. I have treated many paranoid schizophrenics and I have never doubted their capacity to believe absolutely in the apparent threats created by their delusions. A punishment that requires a psychotic individual to face those threats alone and without proper medical support is wholly unacceptable, and in my view constitutes an inhuman and degrading punishment.” 52. In a report dated 2 August 1996, Dr Keith, the prison’s senior medical officer, in response to the psychiatric reports obtained on behalf of the applicant, stated as follows: “These reports were compiled upon the documentary evidence available to the doctors and to my knowledge neither of them had the opportunity to see or examine Mr Keenan. The medical weight of their reports must therefore be significantly diminished. These reports were prepared over a year (Dr Maden) and nearly two years (Dr Reveley) after the death of Mr Keenan. The historical data given in both reports was compiled from other documents and originally probably would have come from Mr Keenan himself or his mother – the basis of most medical histories comes directly from the patient without ascertaining their veracity. On reception Mr Keenan gave a history of schizophrenia – no specific symptoms of schizophrenia were observed from his reception onwards during his time in custody on remand or when convicted. From comments by Drs Maden and Reveley upon entries in the Inmate Medical Record (IMR) – I prescribed Clopixol because Mr Keenan was so adamant that he wanted it and was helped by it, and because Dr Roberts had suggested it be tried, ‘if he doesn’t do so well’. It was prescribed not as an anti-psychotic but as a tranquilliser on the basis of the above. My conversation with Dr Roberts and my prescribing Clopixol are in fact separate entries in the IMR and it is important to refer to the original IMR entries rather than my witness statement. I recall I was reluctant to prescribe Clopixol because of the paucity of symptoms and signs of psychosis. As far as I can recall, Keenan gave no reason why he did not want to continue his Thioridazine except that he received no benefit from it and he was adamant that he felt better on Clopixol and Chlorpromazine. It is important to note that I do not recall that he had experienced any side effects due to Thioridazine which might have limited my prescribing Chlorpromazine. Both Drs Maden and Reveley put great weight upon his medication indicating a diagnosis – this was not the case. The dosage of Clopixol commented upon in Dr Reveley’s report was indicated to me by Dr Roberts. The symptoms noted on 3.4.93 were quite reasonably thought possibly to be due to the change in medication and Dr. Simkins indicated that he return to his previous medication. Dr Rowe attended the prison for two half-day sessions weekly at that time and was our only visiting psychiatric resource. Dr Reveley implied that because Mr Keenan was unwilling to go to the main prison on 14.4.93 he should have been kept in the hospital. Were unwillingness to leave an indication of continuing location in the hospital we would have a totally static population. In the IMR for 17.4.93 the entry was made by a Hospital Officer not a Doctor. The Hospital Officer, SEN Gill, has no formal psychiatric training. We did not have, at that time, any psychiatrically qualified nurses. Please see my entry for 18.4.93, ‘owes on the wing hence can’t cope’. The reports do not refer to this. If he owed on the wing it is highly likely that he would be threatened with food contamination, this would represent reality rather than paranoia, and there is always the possibility that the noose was made so that he could return to the sanctuary of the hospital. A prepared noose is enough indication in itself for hospitalisation and 15 minute watch irrespective of mental state rather than implying a disturbed mental state in itself as described by Dr Reveley. The entry for 23.4.93 in the IMR, “to assess next week”, was cancelled by my hand probably fairly soon after it was written (most likely on 26.4.93 – same pen). The interpretation of this was that there was no indication that he needed to see Dr Rowe and that he was well and symptom-free. He was noted fit for work and gym. No contemporaneous record was made because there was nothing of import to note. It is appropriate here to observe that while there is an agreed paucity of notes at some (and only some) stages of the IMR ... nil entries may be taken as indication that no abnormality or overt disorder was present. On the segregation wing all prisoners are medically screened before adjudication and the range of punishments known to the doctor. The duty doctor does the round in the segregation unit before the Governor attends there so that any new inmates located there can be medically checked prior to the Governor’s adjudications. All inmates in the segregation unit are seen every day by the duty doctor. If an inmate in the segregation unit becomes ill so that hospital care is indicated he is promptly transferred to the hospital. A diagnosis of a mild chronic psychosis is not a contra-indication per se for transferring to the segregation unit – indeed the daily visits by the Governor, Doctor and Chaplain provide a greater degree of observation and care than possible on the main wings. I do not think that Mr Keenan would have been continuously an in-patient in a psychiatric hospital were he in the community. I must agree that the segregation unit generally is not conducive to mental well-being but all prison medical staff are trained in and are highly aware of the effects of imprisonment and segregation and review each inmate on the segregation unit each day with this in mind. The duty doctor’s daily visits to the segregation unit to assess Mr Keenan’s medical state included judging whether his medication level was appropriate and whether he was a suicidal risk. Dr Reverley’s implication that medical staff connive with the ‘authorities’ to punish is totally untrue. We provide medical care and our ethical stance is concerned with this and this alone. We hold doctors’ meetings regularly at which our ethical stance is clearly outlined. This is something I know we all care about passionately and is the cornerstone of the medicine all of us practise here. I am not of the opinion that Mark Keenan suffered from paranoid schizophrenia. This is based on my own observations and Dr Roberts’ doubt about his diagnosis (and he was the Psychiatrist who had observed him as an in-patient the most recently prior to his reception). We did not have a patient, ‘known to suffer from schizophrenia’, (Dr Maden). He was known to us via Dr Roberts’ information as a patient suffering from, ‘personality disorder, anti-social, under stress, some fleeting paranoid symptoms’. Keenan appeared quite normal most of the time during his periods of custody and observation. Self-harm, suicide and violence are recognised complications of personality disorder. Only the self reported paranoia and hearing voices are symptoms of schizophrenia. There is ample evidence that Keenan’s episodes of paranoia were intermittent and transitory. (Dr Roberts described, ‘episodic paranoia’, and Dr Reverley, ‘isolated flare-ups’), linked to the taking of illicit substances. From the IMR, “says he has had cannabis which tripped him out and made him paranoid’. ... Mr Keenan was afraid of being on ordinary location but not of being in the segregation unit. This supports a theory that he had real and not imaginary fears for his safety on the wing, especially in the light of him telling me ‘he owed’. Nevertheless Mr Keenan was always admitted to the hospital when he had a ‘flare-up’. Dr Reverley’s analogy of mental illness and a fever is neither appropriate nor convincing. There is no clear description of delusions, in fact their description is vague except, ‘thinking he is Jesus’. I did not find any continuity of a strongly held delusional system. It is clear from the IMR that Mr Keenan had long periods when he did not display any symptoms or signs of mental illness and he was therefore at these times mentally well. Being well there were no contra-indications to being located in the main prison or segregation unit. It was notable that Mr Keenan did not display the signs that Dr Reveley describes for us, i.e. immobility of features, unresponsiveness, poor eye contact, reduced body language, alogia. This was further evidence to us that he did not suffer from a florid psychosis. Overall, from the two reports prepared, I find the evidence for a florid psychosis to be slim. Dr Reveley is not a forensic psychiatrist and appears unfamiliar with prison medical care. Her comments are emotive rather than objective. Mark Keenan was known to us as an impulsive, self-harming and aggressive man who periodically had episodes when he described paranoid feelings and vague delusional symptoms. There is no evidence to support the diagnosis of schizophrenia with which he strongly self-labelled himself. His disturbed episodes and death may well have been the sequel to drug taking in the main wing, consequent upon which were threats of reprisal.” 53. Dr Faulk, instructed on behalf of the Government, stated, inter alia, as follows: “Opinion 36. It has been asserted that by the complainant and the 2 psychiatrists (Drs Maden and Reveley) that have reviewed the case that Keenan was wrongly diagnosed, his symptoms overlooked and that he was placed in situations which would inflame his condition. Both doctors concluded that Keenan suffered from schizophrenia and that much of his behaviour could be explained by this. Having made this diagnosis they say his fears and anxieties must have been due to an underlying delusional state. This is an assumption based on the belief that Keenan was schizophrenic. On the basis of their assumption that Keenan was seriously mentally ill it is also asserted that the prison should have anticipated his suicidal tendencies and taken better precautions and not subjected him to the privation of the punishment block. 37. The prison was not staffed by consultant psychiatrists. The doctors there would very properly rely on the opinion of the NHS specialists who had been caring for their inmates before imprisonment. The diagnosis given to them by Keenan’s latest psychiatric specialist (Dr Roberts) was of ‘personality disorder, antisocial in type’, and that Keenan was liable to ‘fleeting paranoid symptoms’ when under stress. 38. It is true that Dr Rowe had also treated Keenan in the past and had described him as suffering from ‘a mild chronic psychosis’. This is not a specific diagnosis but a general description. In any case Dr Rowe did not consider Keenan so ill as to require treatment in psychiatric hospital. He indicated, like Dr Roberts, that Keenan would have short lived periods of psychosis (and panics) at which time he would need special care and treatment. He recommended that Keenan not be given association until recovered from his ‘panic and paranoia’. This recommendation seems to have been met. 39. The staff in Exeter proceeded along the lines outlined by Dr Roberts giving the medication he recommended in the hope of reducing Keenan’s symptoms e.g. his volatility, his poor response to stress and his tendency to transient psychotic periods. They also admitted Keenan to the HCC when his condition appeared to deteriorate. 40. Much of Keenan’s behaviour can be understood as manipulative to escape the pressures of the ordinary wings into the relative peace of the HCC. There is no evidence that the fears he expressed about being attacked on the wings were not understandable or even reasonable ones. There is no reason, given Dr Roberts’ diagnosis, not to accept Keenan’s account at face value. Where there were episodes which might have been psychotic ones (e.g. when he claimed to be Jesus and hearing voices) he was taken into the HCC and appeared to recover quickly as Dr Roberts indicated he would. 41. In the end Keenan seemed to accept the regime of the punishment wing and settle down. The observations we have all support that this was so. Keenan obviously was initially angered by the punishment given out on 14.5.93 though he seemed to have overcome his anger. There was no evidence that he had become psychotic. His worries (15.5.93) about his access to the shop being stopped by the governor were perfectly understandable. It is not necessary to postulate mental illness to explain them. I conclude that the medical management of Keenan during his stay in Exeter prison was perfectly reasonable particularly given the opinion of Dr Roberts. We do not know what Keenan intended on the night of 15.5.93. The pattern was very similar to previous life threatening attempts with a warning to others so he might be saved. Perhaps he had decided that he could not or would not face a further period on the punishment block and that he would demonstrate this by the attempt during which he would be saved and returned to the HCC. I do not think anyone could have anticipated what he did or when he did it. My only criticism would be that at the very end scissors to cut the ligature were not available on the punishment wing.” 54. Section 7 of the Prison Act 1952 required each prison to have a medical officer who, according to Rule 17 of the Prison Rules 1964 promulgated by the Secretary of State, was responsible for “the care of the health, mental and physical, of the prisoners in that prison”. 55. Rule 18 provided: “(1) The medical officer shall report to the governor on the case of any prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment. ... (2) The medical officer shall pay special attention to any prisoner whose mental condition appears to require it, and make any special arrangements which appear necessary for his supervision and care. (3) The medical officer shall inform the governor if he suspects any prisoner of having suicidal intentions, and the prisoner shall be placed under special observation.” 56. Health care within prisons was also governed by Standing Order 13, which defined the responsibilities and duties of the members of a prison health care team. Paragraph 31 provided: “The initial medical assessment of all prisoners to the health care centre on or shortly after reception into prison, or as a result of concern about their mental state, should include consideration of special arrangements needed for their supervision to prevent attempts to harm themselves or commit suicide. Where it is considered that special supervision is medically indicated the medical officer will order supervision in one of the following forms: (a) continuous supervision, in which the prisoner is observed by a designated officer who remains constantly in his or her presence; or (b) intermittent supervision in which the prisoner is observed by a designated officer at intervals of not more than 15 minutes.” 57. The Prison Service also issued its own guidelines. At the relevant time, these were in the form of Circular Instruction 20/89 providing guidance, inter alia, relating to staff responsibilities, action on reception, referral and assessment during custody and preventative measures in respect of prison suicides. Circular Instruction 20/89 defined the task of the Prison Service as being “to take all reasonable steps to identify prisoners who are developing suicidal feelings; to treat and manage them in ways that are humane and most likely to prevent suicide; and to promote recovery from suicidal crisis”. The central element of this system was the suicide referral form (F1997). Wing managers (senior prison officers) transmitted referrals to the prison medical officer who decided whether any suicide prevention measures should be taken. Following criticism by the Chief Inspector of Prisons in his report “Suicide and Self-Harm in Prison Service Establishments in England and Wales”, new guidelines were issued in 1994 – Instruction to Governors 1/1994. This required, inter alia, a specific Self-Harm/At Risk form (F2052SH) to be used where a prisoner was identified by any member of staff as needing special care due to the risk of suicide or self-harm. This enabled the observations of all personnel in contact with the prisoner to be recorded and was intended to provide a comprehensive and ongoing record of the prisoner’s state of mind. A case review by the key personnel involved in the prisoner’s care (for example, the senior medical officer, a governor grade and the senior wing officer) was to take place before the prisoner was taken off the Self-Harm/At Risk form. 58. Under sections 47 and 48 of the Mental Health Act 1983, any prisoner suffering from a serious mental illness might be transferred to a hospital for detention and treatment. 59. Rule 43 of the Prison Rules 1964, pursuant to which Mark Keenan was placed in segregation, required the prison governor to remove a prisoner from segregation in the event that a medical officer so advised on medical grounds. Rule 53(2) provided that no punishment in cellular confinement was to be imposed unless a medical officer had certified that the prisoner was in a sufficiently fit state of health. 60. There was no requirement under statute or the Rules for a prison to be staffed by a medical officer with psychiatric qualifications. The medical officer did have discretion to request a psychiatric opinion when considered appropriate (Rule 17). 61. In an article published in the British Medical Journal (April 2000, vol. 320, “Inpatient care of mentally ill people in prison: results of a year’s programme of semistructured inspections”), the medical and nursing inspectors of Her Majesty’s Inspectorate of Prisons stated, inter alia: “The quality of services for mentally ill prisoners [fall] far below the standards in the National Health Service. Patients’ lives [are] unacceptably restricted and therapy limited. The present policy dividing inpatient care of mentally disordered persons between the prison service and the NHS needs reconsideration.” 62. Under the Prison Rules 1964, a prisoner could be confined in a prison’s segregation unit or punishment block under two provisions. 63. Under Rule 43, a governor had the power to segregate a prisoner where this appeared desirable for the maintenance of good order or discipline or in his own interests. This was limited to three days, after which any extension had to be authorised by a member of the Board of Visitors or the Secretary of State. 64. Under Rule 50(1)e, the governor had the power to punish a prisoner convicted of a disciplinary offence by ordering up to fourteen days’ cellular confinement in the punishment block. 65. The conditions of prisoners segregated in a prison’s punishment block have been considered by the Chief Inspector of Prisons and Lord Justice Woolf, who carried out an inquiry into the prison system. In his 1985 report “A Review of the Segregation of Prisoners under Rule 43”, the Chief Inspector of Prisons commented: “ ’Good order’ inmates were held in very restricted conditions ... They were usually located in the area of the prison called the segregation unit or punishment block, alongside inmates who were there under punishment ...They were generally subjected to much the same sort of regime as the prisoners under punishment, except that they were allowed a few extra privileges. They were locked up on their own in a cell for nearly the whole day; only coming out to have an hour’s exercise walking round a yard, to collect their meals, to empty their chamber pots and to have an occasional shower. These excursions perhaps helped to break the monotony but usually did not provide them with much social contact. Opportunities to talk with fellow inmates were very limited and their relationships with staff were often antagonistic or distant ... [paragraph 2.29] ... removal from association can involve the loss of various opportunities and advantages in addition to the obvious deprivation of human contact. The decision to segregate should therefore always be taken with care but especially so when the inmate concerned has not directly requested segregation. Accordingly, decisions to impose segregation on unwilling prisoners should be subject to particularly strong and effective safeguards.” (paragraph 3.4) He added that segregation “can entail living under an impoverished and monotonous regime which may even be psychologically harmful”. 66. Lord Woolf, in his report “Prison Disturbances”, April 1990, Cm 1456, stated: “While segregation under Rule 43 is not intended to be a punishment, the use of the Rule will almost invariably adversely affect the inmate who is made subject to it. In most establishments anyone segregated under Rule 43 will be subjected to regime restrictions very similar to those undergoing punishment.” (paragraph 12.267) 67. Although there is no obligation on the governor or Board of Visitors to consult a doctor before initiating segregation, the governor is obliged to discontinue it if so advised by a medical officer on medical grounds (Rules 17 and 18 of the 1964 Rules). 68. If a prisoner has a complaint in relation to the conditions of his imprisonment or an adjudication, he may use the “remedies and complaints” system. 69. If the complaint relates to conditions of detention and cannot be resolved informally, the prisoner may make a formal application which will be recorded and a senior member of staff will discuss the matter with the prisoner usually within two days. If the prisoner remains dissatisfied, he then completes a request/complaint form to be considered by the governor, who usually replies within seven days. The prisoner may then appeal to the Area Manager of the Prison Service. 70. A complaint about an adjudication is submitted immediately to the Area Manager. 71. In either case, if the prisoner is dissatisfied with the decision of the Area Manager he may make an application for judicial review or make a complaint to the Prison Ombudsman. 72. Since 1994, prisoners who have exhausted the internal complaints system appeal to the Prison Ombudsman, who may make recommendations to the Prison Service if he upholds a complaint. He cannot quash or overrule a Prison Service decision. In his annual report for 1996, the Prison Ombudsman stated, in respect of the complaints system: “3.6. ... the Ombudsman’s service – and indeed the Prison Service’s internal requests/complaints system – is working well with regard to complaints about relatively formal and non-urgent topics. Prisoners generally know the well-established procedures for dealing with grievances about disciplinary adjudications and property loss and are willing to wait while the somewhat lengthy complaint processes are worked through. 3.7. The situation is very different for most other categories of complaint. Assaults, refusal of temporary release, the imposition of closed visits ... all these are matters which prisoners want resolved immediately. They are also issues for which the request/complaints procedures may superficially appear to be inappropriate or issues which prisoners are afraid to raise with staff within the prison. Certainly, the relatively lengthy and formalised process of complaint to the governor (taking a week plus), an appeal to Headquarters (taking at least six months) and an Ombudsman’s investigation (taking up to three months and sometimes more) will not commend itself to a disaffected prisoner wanting immediate redress.” 73. Case-law establishes that the High Court enjoys jurisdiction to grant judicial review of a decision either to segregate a prisoner pursuant to Rule 43 of the Prison Rules 1964 or to punish him pursuant to Rule 50 (R. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58). The court would review the matter in accordance with the well-established principles of administrative law, namely, whether the decision was perverse or irrational, whether the decision was made by reference to irrelevant factors or without regard to relevant factors, or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. 74. A prisoner able to prove that his conditions of confinement have caused him injury, physical or psychiatric, resulting from the negligence of the prison authorities may claim an award of damages. If a prisoner is assaulted, he may maintain an action for assault, even in the absence of proof of physical injury. Damages may be awarded for any indignity or humiliation suffered, while exemplary damages may be awarded where the court concludes that there has been “oppressive, arbitrary or unconstitutional action by the servants of the government” (Rookes v. Barnard [1964] Appeal Cases 1226). 75. An action for the tort of misfeasance in public office may also be maintained if there has been a deliberate or dishonest abuse by a public officer through the purported exercise of a power otherwise than in an honest attempt to perform the relevant function. It includes performance of an act which the official has no power to perform with the object of injuring the claimant or where he knew he had no authority to perform it and actually foresaw that it could cause harm to the claimant or an identifiable class to whom the claimant belonged. “Harm” is not limited to physical or psychiatric damage. 76. Following the death of a prisoner and regardless of the cause, an inquest must be held pursuant to section 8(1)c of the Coroners Act 1988. Such inquests must be held with a jury (section 8(3)a). The coroner is the independent judicial officer charged with inquiring into deaths of various categories. His duties have been judicially defined: “It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity.” (R. v. North Humberside Coroner, ex parte Jamieson [1995] Queen’s Bench 1 (Court of Appeal) 26C) 77. Rule 20 of the Coroner’s Rules allows the parent of a deceased person to examine witnesses at an inquest either in person or through counsel or a solicitor. There is, however, no legal aid for representation at inquests. Nor at the time of the inquest in this case was there any right to disclosure of documents. 78. Under section 11(5)b of the Coroner’s Act 1988 and Rule 36 of the Coroner’s Rules, proceedings and evidence at an inquest must be directed solely to ascertaining – who the deceased was; – where the deceased came by his death; – when the deceased came by his death; – how the deceased came by his death. No verdict may, however, be framed in such a way as to appear to determine any question of the criminal liability of a named person or civil liability. 79. The scope of an inquest has been described judicially as follows: “... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death. ... I further consider that [previous judgments] make it clear that when the Broderick Committee stated that one of the purposes of an inquest is ‘to allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v. the Coroner for North Humberside and Scunthorpe, ex parte Roy Jamieson, April 1994, unreported) “The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and Others (1994) 158 Justice of the Peace 357) “... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial ... It is well recognised that a purpose of an inquest is that rumour may be allayed; But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner, ex parte Thompson (1982) 126 Solicitors’ Journal 625) 80. A person who suffers injury, physical or psychiatric, in consequence of the negligence of another may bring an action for damages for that injury. An exacerbation of an existing condition constitutes such injury. Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation do not entitle a plaintiff to damages. Any personal-injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death. 81. Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former enables those who were financially dependent on the deceased to recover damages for the loss of support; the scheme is compensatory and, save for the sum of 7,500 pounds sterling for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses. 82. According to the case-law, the common law imposes a duty of care on prison authorities in respect of those in their custody. The prison authorities have a duty to exercise reasonable care in the prevention of injury and harm and a duty to provide medical care. This duty extends to the protection of a mentally ill prisoner against committing suicide. In Kirkham v. the Chief Constable of Greater Manchester [1989] 3 All England Law Reports 882, the custodial authority was held liable for failing to prevent a suicide. In Commissioner for the Police for the Metropolis v. Reeves [1999] 3 Weekly Law Reports 283, concerning the claims of the deceased’s spouse under the Fatal Accidents Act, the House of Lords confirmed that even in the case of a prisoner of apparently sound mind the authorities remain liable for a negligent failure to prevent his suicide, although in such a case the liability is shared with the deceased because of his voluntary act. Respect for personal autonomy did not preclude that steps be taken to “control a prisoner’s environment in non-invasive ways calculated to make suicide more difficult” (p. 369A-B). As regards the standard of care, in Knight v. Home Office [1990] 3 All England Law Reports 243, which concerned, inter alia, whether a continuous as opposed to a fifteen-minute watch should have been in place on a mentally ill prisoner at the relevant time, Pill J held that the duty to take reasonable care of such a prisoner “should not and does not expect the same standard across the entire spectrum of situations, including the possibility of suicide, as it would in a psychiatric hospital outside prison. The duty is tailored to the act and functions performed.” However, more recently, in Brooks v. Home Office (The Times, 18 February 1999), the High Court held in relation to the provision of ante-natal care to a pregnant woman: “We are concerned with a remand prisoner, a high risk pregnancy. I cannot regard Knight as authority for the proposition that the plaintiff should not, while detained in Holloway, be entitled to expect the same level of ante-natal care, both for herself and her unborn infants, as if she was at liberty, subject of course to the constraints of having to be escorted and, to some extent, movement being retarded by those requirements.” | 1 |
train | 001-88427 | ENG | GBR | ADMISSIBILITY | 2,008 | LAWRENCE v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Bonitto Lawrence, is a British national who was born in 1937 and lives in London. He was represented before the Court by Ms R. White, a welfare rights worker 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 7 March 2001. In June 2001, the applicant made a claim for widows’ benefits, namely Widow’s Pension. On 5 September 2001 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security 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 | 001-110916 | ENG | ESP | CHAMBER | 2,012 | CASE OF FERNÁNDEZ MARTÍNEZ v. SPAIN | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Alejandro Saiz Arnaiz;Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 8. The applicant was born in 1937 and lives in Cieza. He is married and has five children. 9. He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year he was married in a civil ceremony. With his wife, to whom he is still married, he has five children. 10. From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of Murcia under a renewable one-year contract. In accordance with the provisions of an Agreement of 1979 between Spain and the Holy See, it was the responsibility of the Bishop of the diocese to confirm, every year, the renewal of the applicant’s employment, and the Ministry of Education was bound by the Bishop’s decision. 11. In November 1996 the Murcian newspaper La Verdad contained an article about the “Movement for Optional Celibacy” for priests. It reported that the applicant had previously been rector of a seminary and included a photograph showing him, together with his wife and their five children, attending a gathering of the movement, of which he was a member. The article quoted the comments of a number of participants, naming four of them including the applicant. The members in question were urging the ecclesiastical authorities to introduce optional celibacy and calling for the Church to be democratic rather than theocratic, with the possibility for the laity to elect priests and bishops. They further indicated their disagreement with the Church’s position on abortion, divorce, sexuality and contraception. The article explained that the publicity given to the event in the press had dissuaded a significant number of the Movement’s members from attending the gathering. Others had approached the agreed venue but, on seeing the media present, had simply waved to their colleagues without getting out of their cars and had driven away immediately. Only about ten secularised priests, including the applicant, had remained with their families. 12. On 15 September 1997 the Vatican authorities granted the applicant’s request for dispensation from celibacy. The document stipulated that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise “according to his own criteria and provided that there [was] no scandal”. 13. On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to approve the renewal of the applicant’s contract for the 1997/98 school year. The Ministry notified the applicant of the decision, which was effective from 29 September 1997. 14. In an official memorandum of 11 November 1997 the Diocese reiterated that, in accordance with the applicable provisions, the applicant was required to give his lessons “without any risk of scandal”. The Diocese explained in that connection that the publicity given by the applicant to his personal situation had entailed a breach of that duty, thus preventing the church authorities from proposing him again for the following school year, in order to protect the sensitivity of the parents of children who attended the centre where the applicant was teaching. 15. Having been unsuccessful in his administrative complaint against that decision, the applicant appealed to the Murcia Employment Tribunal no. 3, which gave its judgment on 28 September 2000. The judge began by referring to the arguments used by the Diocese to justify the non-renewal of the applicant’s contract, namely the fact that he had made public his situation as “married priest” (he had not received dispensation from the Vatican until 1997) and father, together with the need to avoid scandals and to protect the sensitivity of the parents of the school’s pupils, as they might be offended if the applicant continued to teach Catholic religion and ethics. In this connection the judge took the following view: “ ... in the light of the facts thus presented, Mr Fernández Martínez was discriminated against because of his marital status and his membership of the Movement for Optional Celibacy, his appearance in the press having been the ground that led to his dismissal.” 16. The judge further pointed out that: “The principle of non-discrimination at work encompasse[d] the prohibition of discrimination on account of belonging to a trade union, as [was] the case for membership of any other association.” 17. Lastly, the judge noted that the applicant’s situation as “married priest” and “father” had been known to the pupils and to their parents and to the directors of the school centres where he had worked. Consequently, the judge upheld the applicant’s appeal, declared his dismissal null and void and ordered his reinstatement in his former post. 18. The Ministry of Education, the Education Authority for the Region of Murcia and the Diocese of Cartagena lodged an appeal (suplicación). In a judgment of 26 February 2001, the Murcia High Court of Justice upheld the appeal, finding as follows: “... The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion ... Accordingly, the bond created [between the teacher and the Bishop] is based on trust. [As a result,] it is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It can be placed on the borderline between the pure ecclesiastical dimension and a skeleton employment relationship.” 19. Moreover, the court referred to the Bishop’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles 14 (prohibition of discrimination), 18 (right to respect for private life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop having extended his employment from year to year even though his personal situation had been identical. The court concluded that, when the applicant had decided to reveal that situation publicly, the Bishop had merely used his prerogative in accordance with the Code of Canon Law, that is to say, ensuring that the applicant, like any other person in that situation, carried out his duties with discretion and without his personal circumstances causing any scandal. In the court’s view, if such a situation became public knowledge, it was the Bishop’s duty to stop proposing the person concerned for a post of that nature, in accordance with the requirements of the official document granting dispensation from celibacy. 20. In addition, as regards Article 20 of the Constitution in particular, the court noted that for the purposes of Article 10 § 2 of the European Convention on Human Rights, the restrictions imposed on the applicant’s rights had to be considered legitimate and proportionate to the aim pursued, namely the avoidance of scandal. 21. Furthermore, the court analysed the question of the bond of trust and concluded as follows: “... Where such a bond of trust is broken (and in the present case there are circumstances that reasonably allow such a conclusion to be reached), the Bishop is no longer obliged to propose [the applicant] for the post of teacher of Catholic religion.” 22. Lastly, as to the nature of the contract, the court took the view that, since its renewal was subject to annual approval by the Bishop for the following school year, it was a temporary contract, which in the present case had simply expired. It was thus not possible to consider that the applicant had been dismissed. 23. Relying on Articles 14 (prohibition of discrimination), 18 (right to respect for private and family life) and 20 (freedom of expression) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 30 January 2003, the Chamber to which the case had been allocated declared the appeal admissible and, in accordance with sections 50 to 52 of the Institutional Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below. 24. In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the appeal. 25. In its decision, the Constitutional Court took the view that the arguments raised in fact fell within the scope of Articles 16 (freedom of thought and religion) and 20 of the Constitution. In this connection it began by noting that the applicant’s situation as “married priest” had been known to the Diocese, which had discontinued its renewal of the contract only when the article was published in the press, a fact for which the applicant himself had been responsible. The court further highlighted the special status of teachers of religious education in Spain, being different from that of other teachers and justifying the fact that teachers of religion were selected purely on the basis of religious criteria rather than the ordinary criteria provided for in domestic law. 26. The Constitutional Court further took the view that the main question in the amparo appeal was whether the facts at issue could be justified by the religious freedom of the Catholic Church, in relation to the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), or whether, by contrast, they constituted a breach of the applicant’s right to freedom of thought and religion in relation to his right to freedom of expression (Article 20 § 1 (a) of the Constitution). In answering this question the court began by noting that the reason for the non-renewal had been the article in a regional newspaper, regarded as causing a scandal according to the arguments of the Diocese of Cartagena in its official memorandum of 11 November 1997. On this point, the court took the view that the duty of neutrality precluded it from ruling on the notion of “scandal” invoked by the Diocese or on the merits of the “optional celibacy of priests” advocated by the applicant. It further observed that the judgment of the High Court of Justice provided for judicial review of the Bishop’s decision, in particular concerning his inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to ensure respect for fundamental rights and civil liberties. 27. Noting that the Bishop’s decision did not fall completely outside the supervision of the domestic courts, the Constitutional Court found as follows: “... the interferences with the applicant’s rights are neither disproportionate nor unconstitutional ... They are justified by respect for the lawful exercise of the Catholic church’s fundamental right to religious freedom in its collective or community dimension (Article 16 § 1 of the Constitution), in relation to the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). [Indeed], the reasons for the non-renewal of the applicant’s contract ... are of an exclusively religious nature, related to the rules of the faith to which the applicant freely adheres and whose beliefs he sought to teach in a public education centre.” 28. Moreover, the court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows: “... it would be quite simply unreasonable, as regards the teaching of religion in secondary education centres, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its collective and community dimension.” 29. Two judges appended a dissenting opinion to the majority judgment. 30. The applicant subsequently requested that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges in the Chamber which had given the judgment were known for their affinities with the Catholic Church, one of them being a member of the International Secretariat of Catholic Lawyers. 31. In a decision of 23 July 2007 the Constitutional Court dismissed the applicant’s request on the ground that, under section 93(1) of the Institutional Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification. 32. The relevant provisions of the Spanish Constitution read as follows: “Spaniards are equal before the law; they may not be discriminated against in any way on grounds of birth, race, sex, religion, opinions or any other condition or personal or social circumstance.” “(1) Freedom of thought, religion and worship shall be guaranteed to individuals and communities, without any restrictions on its expression other than those necessary to maintain public order as protected by law. (2) No one may be compelled to make statements regarding his or her ideas, religion or beliefs. (3) No religion shall have the nature of State religion. The public authorities shall take account of all religious beliefs within Spanish society and consequently maintain appropriate relations of cooperation with the Catholic Church and other faiths.” “(1) The right to respect for honour, for private and family life and for one’s image shall be guaranteed. ...” “(1) The following rights shall be recognised and protected: (a) the right to free expression and dissemination of thoughts, ideas and opinions through words, in writing or by any other means of reproduction; ... (2) The exercise of such rights may not be restricted by any form of prior censorship. ... (4) The said freedoms shall be limited by respect for the rights recognised in the present Title, by the laws implementing the same, and in particular by the right to respect for honour, private life and one’s image and to the protection of youth and childhood. ...” 33. The relevant provisions of this law at the time of the admissibility of the applicant’s amparo appeal read as follows: “A decision shall be given on the admission of an amparo appeal. The section shall decide unanimously, by an order without reasoning (providencia), to admit the appeal in whole or in part ...” “Once the amparo appeal has been admitted, the chamber shall submit an urgent request to the body or authority from which the decision, act or fact emanated, or to the judge or court which previously heard the case, to transmit to it, within a maximum period of ten days, the judicial case-files or documentary evidence relating to the case.” “1. After receiving the judicial case-files and on the expiry of the summons period, the chamber shall transmit the files to the person who submitted the amparo appeal, the parties who appeared in the proceedings, the Government advocate in cases involving public authorities, and the public prosecutor’s office. The hearing shall take place within a period applicable to all parties of not more than twenty days during which observations may be submitted. 2. The chamber may, of its own motion or at the request of the parties, decide to hold a hearing instead of waiting for the deadline for the submission of arguments. 3. After the submission of arguments or the expiry of the period allowed for that purpose, the chamber, or if appropriate the section, shall give the requisite judgment within ten days.” “The provisions of the Institutional Law on the Judiciary shall be applied, supplementing the present Law, in matters of ... requests for [the] withdrawal and abstention [of judges].” 34. The applicable provisions of this Law in the present case are the following: “1. Requests for withdrawal shall be submitted by a party as soon as it becomes aware of the ground for such withdrawal. If the party was aware of that ground before the litigation, the request must be made at the start of the proceedings, failing which it will be declared inadmissible. In particular, a request for withdrawal shall be declared inadmissible in the following cases: (1) where it is not submitted within a period of ten days from the service of the first decision identifying the judge ...; (2) where it is submitted while the proceedings are pending, if the ground for withdrawal was already known beforehand. ...”. 35. The relevant provisions of this Agreement read as follows: “... Religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the Diocese. The latter shall notify sufficiently in advance the names of persons who are considered competent ...”. 36. Section 6(1) of this Law reads as follows: “Registered churches, faiths and religious communities shall be fully autonomous and may establish their own principles of organisation, internal rules and staff regulations. In such principles ..., they may include clauses for the purpose of safeguarding their religious identity ... and ensuring respect for their beliefs, without prejudice to respect for the rights and freedoms enshrined in the Constitution, and in particular [rights to] freedom, equality and non-discrimination”. 37. In its second additional provision, this Law provided as follows: “The teaching of religion shall be adapted in line with the provisions of the Agreement on education and cultural affairs between the Holy See and the State of Spain ... Religious education shall be proposed systematically by [education] centres and shall be voluntary in nature for the pupils.” 38. The third additional provision of this Law reads as follows: “... 2. Teachers who, without having the status of public servant, give religious education classes in public education institutions, shall perform their duties in a contractual framework, in accordance with the Labour Code. ... They shall receive the same level of remuneration as temporary teaching staff. 3. It shall be incumbent in all cases on the religious entities to propose a candidate for the said teaching of religious education; such proposal shall be renewed automatically from year to year ...” 39. At the time of the events in the present case, the teaching of Catholic religion in public education centres was organised in accordance with Institutional Law no. 1/1990 of 3 October 1990 on the general organisation of the education system, which, in its second additional provision, referred to the Agreement of 3 January 1979 on education and cultural affairs between the Holy See and Spain. 40. The Catholic religion in Spain has the same status as the other faiths which have also entered into cooperation agreements with the State, namely the Evangelical, Jewish and Muslim communities. 41. Parents have the right to ensure that their children receive religious education at school and if appropriate to choose the faith that they are taught. In all cases the State covers the cost of such education, as provided for in the relevant agreements, which also stipulate that teachers are appointed after a declaration of suitability has been issued by the competent church authority. That principle was developed in the Constitutional Court’s judgment no. 38/2007 of 15 February 2007 (see paragraph 44 below). 42. The relevant canons of the Code of Canon Law provide as follows: “The Ordinary [of the diocese] is to be careful that those who are appointed as teachers of religion in schools, even in non-catholic ones, are outstanding in true doctrine, in the witness of their Christian life, and in their teaching ability.” “The Ordinary [of the diocese] has the right to appoint or approve teachers of religion and, if religious or moral considerations so require, the right to remove them or to demand that they be removed.” 43. In this judgment the Supreme Court set out the following points: “... The present case displays the characteristics provided for in Article 1 § 1 of the Labour Code, capable of classifying the legal relationship between the parties as “contractual” in nature: [an activity] carried on voluntarily for another, being remunerated and under a form of management. No rule grants such teachers [of religious education] the status of public servant. [In addition], the relationship is not administrative in nature, this being an imperative condition [for classification as a public servant].” 44. The relevant passages of this judgment read as follows: “... The fact that teachers of religious education must be appointed from among persons previously proposed by the Bishop and that this proposal requires a prior declaration of suitability based on moral and religious considerations, does not mean that the lawfulness of such appointments cannot be reviewed by the national courts, with a view to determining whether they are in accordance with the law, as is the case with all discretional acts of authorities when they have effects vis-à-vis third parties ... Firstly, the courts must review whether the administrative decision [of appointment] has been adopted in accordance with the applicable legal provisions, that is, whether the appointment was made from among persons proposed by the Bishop to provide religious instruction ... in conditions of equality and with respect for the principles of merit and capacity. Or ... the reasons for not appointing a given person must be considered [by the courts] and, specifically, whether it is a result of the person not being included among those nominated by the ecclesiastical authority, or of other grounds that may likewise be subject to review. ... The competent courts must also determine whether the person’s not being included among those proposed by the Bishop of the diocese is the result of applying criteria of a religious or moral nature to determine the person’s suitability to provide religious instruction, criteria that the religious authorities are empowered to define by virtue of the right to freedom of religion and the principle of the religious neutrality of the State. [It is also for the courts] to examine whether the non-inclusion is based on grounds that do not stem from the fundamental right of religious freedom and are not protected thereby. Lastly, once the strictly ‘religious’ grounds for the decision have been determined, the court will have to weigh up any competing fundamental rights in order to determine to what extent the right to freedom of religion, exercised through the teaching of religion in schools, may affect the employees’ fundamental rights in their employment relationships. ... The authority granted to the ecclesiastical authorities in determining the persons qualified to teach their religious creed constitutes a guarantee of the freedom of churches to organise the teaching of their doctrines without interference from the public authorities. ... The cooperation [required by the Constitution] in that regard is fulfilled in the appointment of the teachers, for which the public authority is responsible (Article 16.3 of the Constitution). In conclusion, the declaration of suitability is one of the requisites necessary for appointment. This requirement is in conformity with the right to equal treatment and the principle of non-discrimination (Article 14 of the Constitution).” 45. In this judgment the Constitutional Court set out the following findings: “... The [applicant’s] complaints must be examined in the light of the principles established in judgment no. 38/2007 of 15 February 2007. ... Contrary to the arguments of the courts below, the Bishop’s decision [to propose one candidate or the other] does not fall entirely outside the review of the courts. Thus, ... once the strictly religious grounds for the non-renewal decision have been determined, ... it is incumbent on the [Constitutional] Court to verify whether the courts have appropriately balanced the fundamental rights in issue and to reconcile the requirements of religious freedom (both individual and collective) and the principle of the State’s religious neutrality with the judicial protection of fundamental rights and of the teachers’ employment relationships. ... In the present case, it does not appear that in exercising her duties as teacher of Catholic religion and ethics the applicant called into question the doctrine of the Catholic Church concerning marriage or defended civil marriage, such that her personal situation was completely separated from her professional activity. [After balancing the fundamental rights in issue], it is noteworthy that the religious grounds put forward by the Bishop are at odds with the applicant’s rights not to suffer discrimination, with her freedom of thought concerning the right to marry and with her personal and family privacy.” Recital 24 “The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.” Article 4 Occupational requirements “1. ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ... Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.” | 0 |
train | 001-57900 | ENG | NLD | CHAMBER | 1,994 | CASE OF LALA v. THE NETHERLANDS | 3 | Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient | R. Pekkanen | 8. Mr Radjinderpersad Roy Lala is a Netherlands national born in 1961 and resident in The Hague. It appears that in proceedings predating, and unrelated to, the events complained of he was sentenced to pay a fine, failing which he was liable to a term of detention (hechtenis). 9. On 19 November 1986, after a trial in absentia, the Hague Regional Court (arrondissementsrechtbank) convicted Mr Lala of the indictable offence (misdrijf) of forgery (valsheid in geschrifte) in that he had concealed an income from work while enjoying social- security benefits. It sentenced him to four weeks’ imprisonment (gevangenisstraf), two weeks of which were suspended for a probationary period of three years on condition, inter alia, that he co-operated in repaying the excess. 10. Mr Lala filed an appeal to the Hague Court of Appeal (gerechtshof). Summoned to the hearing of that court on 7 September 1987, he failed to appear. The official record of the hearing states that Mr Lala was declared to be in default and contains the following passage: "Mr A. G., lawyer in The Hague, is present as counsel of the accused and states that his client will not appear at the hearing because he is still liable to pay a fine, which he is unable to do, and he therefore runs the risk of being arrested immediately to serve the term of detention to which he is liable in the event of failure to pay." 11. In its default judgment of 21 September 1987, the Court of Appeal overturned the judgment of the Regional Court on technical grounds; it again convicted Mr Lala but reduced the sentence to two weeks’ imprisonment. 12. Through his lawyer, the applicant filed an appeal on points of law to the Supreme Court (Hoge Raad). Those of his complaints which are of relevance here may be summarised as follows: firstly, the Court of Appeal had not allowed the applicant’s counsel to speak last, as required by law; and secondly, not only had the Court of Appeal not allowed the applicant’s counsel to conduct the defence, although the latter had signalled the wish to do so by his presence, but the Court of Appeal had also failed to determine whether Mr Lala had had a compelling and legitimate reason not to appear, in which case his counsel should have been entitled to conduct the defence in his client’s absence. 13. In its judgment of 27 September 1988, the Supreme Court dealt with the applicant’s second complaint first in the following terms: "In cases where the accused has not appeared but his counsel is present at the beginning of the court hearing, the court may proceed on the assumption that if counsel for the accused wishes to act as such despite the absence of his client, he will make this known to the court. As the record of the hearing of the Court of Appeal contains nothing from which it might be deduced that counsel made it known to the Court of Appeal that he wished to act in that capacity - neither his own presence nor his explanation of his client’s absence will serve this purpose - it must be assumed that he has failed to do so. Under these circumstances the Court of Appeal was not obliged to allow counsel to act as such in the course of the hearing of the criminal case against his client." As to the first complaint, the Supreme Court held that it appeared from the official record of the hearing that the lawyer had stated the reasons for his client’s absence, but not that he had acted as counsel during his client’s trial. Consequently, that it had to be assumed that he had not so acted. Accordingly, the Court of Appeal had been under no obligation to allow the lawyer to speak last. 14. In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP)) - is not under an obligation to appear at the hearing. The court must examine of its own motion the validity of the summons (geldigheid der dagvaarding - section 348 CCP). If, in spite of having been properly summoned, the accused does not appear at the hearing, the court will declare him to be in default (verstek verlenen) and proceed with the case in his absence. This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be adjourned (see, inter alia, the judgment of the Supreme Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1985, 567) or submits his defence in writing (see the judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even if the accused cannot be blamed for his absence (see, inter alia, the judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and 10 October 1989, NJ 1990, 293). The court has the power to order the accused to appear or to be produced before them by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile. 15. An accused who has been convicted in his absence by the first-instance court may file an objection (verzet - section 399 (1) CCP); this is an ordinary legal remedy in Netherlands law. Such an objection entitles the accused to a full retrial by the same court (section 403 CCP). An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (hoger beroep - section 399 (2) CCP). This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal, i.e. where the sentence is nothing more serious than a small fine or where a regulatory offence (overtreding) has been dealt with in first instance by the Regional Court. It follows from section 339 (1) CCP that no objection may be filed against a default judgment given on appeal. 16. In certain cases the accused may be represented in his absence. In cases which are dealt with at first instance by the Regional Court, this possibility exists if the criminal offence with which the accused is charged does not carry a prison sentence. However, the representative must be a lawyer who must state that he has been specifically empowered to act as such (bepaaldelijk daartoe gevolmachtigd - section 270 CCP). At the hearing the procedural position of the representative is that of the accused himself, i.e. - even if the representative is a lawyer - not that of counsel (see, inter alia, the judgment of the Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the accused, he may be cross-examined by the court and the prosecution and his statements may be used as evidence (see the judgment of the Supreme Court of 13 February 1951, NJ 1951, 476); he may also be assisted by a lawyer - or another lawyer - as counsel. If representation is allowed at first instance before the Regional Court, it is also allowed on appeal before the Court of Appeal (section 415 CCP). 17. The question - which was in dispute among learned writers - whether the defendant, having been declared in default, is entitled to have his defence conducted for him by counsel was decided by the Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293). Although the Procurator General (procureur-generaal) had suggested an answer in the affirmative, the Supreme Court came to the opposite conclusion. It reasoned that, were such an entitlement to be recognised, trial in absentia would take on an adversarial character incompatible with the basic idea of the Code of Criminal Procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence. The Supreme Court went on to hold that it was true that since the introduction of the Code of Criminal Procedure the right to file an objection had been considerably curtailed, but pointed out that in so doing the legislature had not changed the character of trial in absentia. In conclusion, no section of the Code of Criminal Procedure nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel. 18. The Supreme Court has accepted, however, that a trial court may, at its discretion, allow counsel to speak in defence of an accused who has been declared in default. This discretion is quite frequently made use of. The Supreme Court strictly maintains the rule that if in such cases a trial court allows counsel to speak at all, it must allow him all rights available to the defence. It may not impose any limitations as to what subjects he may address (judgment of 19 May 1987, NJ 1988, 217); it may not deny him the right to speak last (judgment of 22 March 1988, NJ 1989, 13); if there are witnesses, counsel must be permitted to cross-examine them (judgment of 28 May 1991, NJ 1991, 729). 19. In principle the Supreme Court has held to its rule (see paragraph 17 above) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel, but since its judgment of 26 February 1980 (NJ 1980, 246) it is its established case-law that there is one exception: in that judgment, it ruled, on the basis of, inter alia, Article 6 (art. 6) of the Convention, that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that "compelling reasons" (klemmende redenen) prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case. The Supreme Court has accepted the corollary that counsel should in any case, if he so requests, be allowed the opportunity to argue that such reasons exist (judgments of 10 October 1989, NJ 1990, 293, and 19 December 1989, NJ 1990, 407). 20. The Supreme Court, in its judgment of 16 February 1988 (NJ 1988, 794), has held that a "compelling reason" exists not only if it is impossible for the accused to appear, but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he cannot reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until some later time when he will be able to attend or that his counsel will be allowed to conduct the defence. The Supreme Court has consistently refused to accept the possibility of the accused being arrested as a "compelling reason" for his absence (see, inter alia, its judgments of 24 November 1988, NJ 1988, 638, of 9 February 1992, DD (Delikt en Delinkwent, Offence and Offender) 93.292, and 4 May 1993, DD 93.396, in addition to its judgment in the instant case). 21. If counsel wishes to act for the defence in the absence of his client, he should expressly ask permission to do so. His presence alone is not sufficient (see, inter alia, the judgments of the Supreme Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987, 686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145; 14 December 1993, DD 94.166). Nor does a request made by counsel for the hearing to be deferred suffice, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993 (DD 94.176). | 1 |
train | 001-4756 | ENG | LTU | ADMISSIBILITY | 1,999 | JODKO v. LITHUANIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a Lithuanian national of Polish origin, born in 1961. At present he is detained in the Rasų prison in Vilnius. The facts of the case, as submitted by the parties, may be summarised as follows. A. On 13 March 1996 the Vilnius Regional Court convicted the applicant of murder. He was sentenced to 11 years’ imprisonment. On 27 March 1996 the applicant was served with a written copy of the first instance judgment. The applicant appealed. On 15 May 1996 the Court of Appeal held a hearing at which the applicant’s counsel was present. The court dismissed the appeal, finding that the first instance court had properly decided the case. In early 1997, the applicant approached the prison administration, asking why he had received no written version of the appellate decision of 15 May 1996. The Ministry of Justice informed him that on 22 May 1996 the Court of Appeal had in fact sent a written version of the appellate decision to a special hospital of the Ministry of Interior where, at the time, the applicant had been detained. The applicant applied to the Ombudsman, who confirmed that the hospital had received the decision on 23 May 1996. The Ombudsman advised the applicant to ask the hospital management about the alleged disappearance of the written decision. The applicant appears not to have approached the hospital management subsequently. Following the applicant’s demand, on 13 March 1997 the Court of Appeal sent him a written version of the decision of 15 May 1996. On 11 April 1997 he was furnished with another copy of the decision. The applicant expressed his intention to file a cassation appeal in the case but was informed by the Supreme Court that he had not complied with the three months’ time-limit to file a cassation appeal under Article 419 of the Code of Criminal Procedure. On 17 February 1999 the applicant applied to the Ministry of Justice, complaining that he had been denied access to the Supreme Court. The Ministry of Justice advised the applicant to apply to the Supreme Court for leave to file a cassation appeal out of time pursuant to Article 120 of the Code of Criminal Procedure. There is no indication that the applicant subsequently requested that leave. B. Relevant domestic law Pursuant to Article 379 § 4 of the Code of Criminal Procedure, a decision of the appellate court dismissing an appeal is pronounced in open court. Reasons must be given. In its final form a written version of the decision must be prepared within 3 days after its pronouncement. Pursuant to Article 386 § 1 of the Code, within 7 days following its adoption the appellate decision must be transmitted, for execution, to the court which gave the first instance judgment. Under Article 401 § 1 of the Code the first instance court is then required to furnish a copy of the first instance judgment to the prison administration (no time-limits are set by domestic criminal procedure in this respect). Article 401 § 1 also provides that, where the first instance judgment is amended or quashed, a written version of the appellate decision must also be sent to the prison for the defendant’s information. Under Article 419 of the Code of Criminal Procedure, a cassation appeal can be filed within three months after the first instance judgment becomes effective. Pursuant to Article 398 § 2 of the Code, if the appeal against the first instance judgment is dismissed at appellate instance, the first instance judgment becomes effective on the date when the appellate decision was taken. Article 418 § 2 of the Code lays down the requirements for a cassation appeal. Pursuant to the above provision, a cassation appeal should include references to the name of a cassation court, the case and decision at issue, the substance of the decision and the reasons for appealing against it, and the appeal claims. Article 421 § 2 of the Code of Criminal Procedure stipulates that, provided that a cassation appeal complies with the above requirements, a senior judge of an appellate court or cassation court should order the transmission of the case-file from the lower court. Within seven days following receipt of the case-file, a senior cassation court judge must issue an order accepting the appeal for consideration. Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court upon the request of the person concerned. | 0 |
train | 001-70765 | ENG | DEU | CHAMBER | 2,005 | CASE OF NIEDZWIECKI v. GERMANY | 3 | Violation of Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Josep Casadevall | 8. The applicant was born in 1961. At the time the application was lodged he lived in Erlenbach in Germany. He currently resides in Swidnica in Poland. 9. The applicant immigrated to Germany in February 1987. His request for asylum was rejected. His expulsion was, however, suspended under the agreement of the Home Secretaries of the Länder not to expel Polish nationals (“Ostblockbeschlüsse” der Innenminister der Länder). In November 1989 the applicant obtained a provisional residence permit (Aufenthaltserlaubnis). In January 1991, following an amendment of the Aliens Act, he was issued with a limited residence title for exceptional purposes (Aufenthaltsbefugnis). This residence title was renewed every two years, the last time in January 1995 until January 1997. In April 1997 the applicant obtained an unlimited residence permit (Aufenthaltsberechtigung). 10. In July 1995 the applicant’s daughter was born. 11. On 28 July 1995 the applicant applied to the Aschaffenburg Labour Office (Arbeitsamt) for child benefits according to Section 1 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below). 12. On 18 August 1995 the Labour Office dismissed the applicant’s request under Section 1 § 3 of the Child Benefits Act. It noted that the applicant only had a limited residence title for exceptional purposes, and no unlimited residence permit or provisional residence permit, as required under Section 1 § 3. 13. On 12 October 1995 the Federal Labour Office (Bundesanstalt für Arbeit) rejected his objection. 14. The applicant lodged an action with the Würzburg Social Court (Sozialgericht), claiming that he had been residing in Germany since 1987 and that he should, therefore, have the right to child benefits. 15. On 21 April 1997 the Social Court dismissed the applicant’s action regarding child benefits between July 1995 and April 1997. It confirmed that only aliens with an unlimited residence permit or with a provisional residence permit were entitled to the payment of child benefits under Section 1 § 3 of the Child Benefits Act, as in force until 31 December 1995. According to the Social Court, the legislature had only intended to grant child benefits to aliens who were likely to stay in Germany on a permanent basis. Aliens with only a limited residence title for exceptional purposes were, however, not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law. In the present case, the legislature had remained within its wide margin of appreciation in social law matters. 16. On 23 April 1998 the Bavarian Social Court of Appeal (Landessozialgericht) dismissed the applicant’s appeal to the extent that his claims under the Child Benefits Act until 31 December 1995 were concerned. The Court of Appeal confirmed the lower court’s reasoning, noting that the applicant did not have a stable residence permit in 1995, as his limited residence title for exceptional purposes had had to be renewed every two years. Likewise, referring to the wide margin of appreciation of the legislature, it took the view that Section 1 § 3 of the Federal Child Benefits Act was compatible with the Basic Law. In this respect, it considered that until December 1995 families had benefited from child benefits and tax deductions (Kinderfreibetrag) as a system of compensation (dualer Familienlastenausgleich). The applicant and his wife had paid taxes in 1995 but had not obtained child benefits. In the court’s view, this taxation, not the refusal of child benefits, might have violated the Basic Law; however, it was not for the social courts to decide on that matter. 17. On 18 March 1999 the Federal Social Court (Bundessozialgericht) dismissed the applicant’s appeal on points of law. 18. The applicant lodged a constitutional complaint combined with a request for an interim measure. He claimed that the relevant provision of the Federal Child Benefits Act was discriminatory and racist, and violated his right to respect for his family life. In addition, he alleged that the refusal of his request for child benefits infringed the principle of social justice (Sozialstaatsprinzip) laid down in Article 20 § 4 of the Basic Law. 19. On 21 October 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain his complaint and rejected his request for an interim measure. 20. On 3 July 2001 the Würzburg Social Court decided that it was not competent to deal with the applicant’s claims regarding child benefits for the period after 1 January 1996 and transferred the proceedings to the Nuremberg Tax Court (Finanzgericht). The proceedings before the Tax Court are still pending. 21. Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force until 31 December 1995, provided for the payment of child benefits which are financed by the Federation. Section 1, as far as relevant, provided as follows: “(1) Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ..., 1. who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act, ... (3) An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...” 22. Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz). 23. By decision of 6 July 2004 (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/07), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act in the above cited version was incompatible with the right to equal treatment under Article 3 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006. 24. The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment. | 1 |
train | 001-93600 | ENG | RUS | CHAMBER | 2,009 | CASE OF TSARKOV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1973 and is serving a prison sentence in Tomsk. 7. The applicant was suspected of involvement in a criminal gang. On 1 September 2000 the Prosecutor’s Office of the Republic of Tatarstan (the “Prosecutor’s Office”) opened a criminal investigation into the gang’s activities. On 20 September 2001 the applicant was arrested on suspicion of two counts of murder and placed in custody. 8. On 21 September 2001 the prosecutor authorised the applicant’s detention pending investigation, referring to the gravity of the charges and the risk of his absconding and obstructing justice. No time-limit for detention was fixed. 9. The applicant appealed. He claimed that the prosecutor’s decision of 21 September 2001 lacked justification. He also applied for release, arguing that he had no intention of absconding, had family commitments and a permanent place of residence and a job. 10. On 6 June 2002 the Vakhitovskiy District Court of Kazan rejected the applicant’s appeal and his application for release and upheld the prosecutor’s decision of 21 September 2001. In particular, the court stated the following: “When deciding to detain [the applicant], [the prosecutor] took into account the gravity of the charges and the fact that [the applicant] might abscond and interfere with the establishment of the truth... The arguments furnished by [the applicant and his counsel] are not sufficient to refute [the prosecutor’s] finding that [the applicant] might abscond and interfere with establishment of the truth.” 11. On 5 July 2002 the Supreme Court of the Republic of Tatarstan upheld the decision of 6 June 2002. 12. In the meantime, on 28 September 2001 the Prosecutor’s Office indicted the applicant for murder and involvement in a criminal gang. On an unspecified date the applicant was also charged with fraud, extortion and kidnapping. 13. On 19 November 2001 the Prosecutor’s Office extended the applicant’s detention until 20 March 2002. The detention order was issued in respect of seven defendants, including the applicant. Referring to the gravity of the charges, the prosecutor in charge of the investigation alleged that the defendants might abscond or interfere with the investigation. The detention order further indicated that several witnesses, including two of the defendants, had identified the applicant as one of the perpetrators of the crimes under investigation. The applicant did not appeal. 14. On 21 March and 14 June 2002 the Deputy Prosecutor of the Russian Federation extended the applicant’s detention until 4 July and 4 October 2002 respectively. The orders were issued in respect of nine and then twelve defendants, including the applicant, and reiterated verbatim the reasoning previously used to justify keeping the accused in custody. As to the evidence collected in the course of the investigation, the prosecutor referred to numerous witnesses who had testified against the applicant. The applicant did not appeal. 15. On 30 April 2002 the defendants and their lawyers started studying the case file which comprised seventy-two volumes. 16. On 29 August 2002 the Supreme Court of the Republic of Tatarstan further extended the applicant’s detention until 4 January 2003. The court reasoned as follows: “[The applicant] should remain in custody since he is charged with grave offences and might abscond and threaten the witnesses and other parties involved in the proceedings. Besides, [the applicant] is to study a considerable volume of the case-file materials. In view of the above, the court grants the investigator’s request to extend [the applicant’s] detention.” 17. The applicant appealed, arguing that the investigator had not furnished any evidence to substantiate his allegations that the applicant might abscond or interfere with the administration of justice. He further asked the appeal court to release him and apply any other alternative measure prescribed by law to ensure his presence in court or anticipate his custodial sentence, if any. On 6 November 2002 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the decision of 29 August 2002. 18. On 20 November 2002 the Supreme Court of the Republic of Tatarstan further extended the applicant’s detention pending his study of the case file. No time-limit for the detention period was indicated. The court provided the following justification for its decision: “[The applicant] should remain in custody since he is charged with grave offences and might abscond or interfere with the administration of justice.” 19. The applicant appealed. Alleging numerous violations of the applicable rules of criminal procedure in the course of his arrest and detention, he asked the appeal court to release him. 20. On 5 February 2003 the Supreme Court of Russia upheld the detention order of 20 November 2002 on appeal. In particular, it noted as follows: “As [the lower court] indicated, [the applicant] may abscond or interfere with administration of justice and has been charged with grave and serious offences. Accordingly, the [lower] court’s decision to extend the applicant’s detention was justified. As regards [the applicant’s] allegations about violations of rules of criminal procedure... they will be subject to examination in the course of the trial ...” 21. It appears that in 2004 the defendants, including the applicant, and their counsel, completed their study of the case file. According to the Government, on 27 April 2004 the Deputy Prosecutor of the Republic of Tatarstan approved the bill of indictment in respect of the applicant and fifteen other persons and forwarded the case file to the Supreme Court of the Republic of Tatarstan. 22. On 22 July 2004 the Supreme Court of the Republic of Tatarstan reviewed the material in the case file in respect of the sixteen defendants, including the applicant, and scheduled the first hearing for 27 September 2004. The court further decided that the case would be tried by a jury and that fourteen defendants, including the applicant, should remain in custody pending trial. No time-limit for their detention was fixed. When dismissing the defendants’ application for release, the court noted as follows: “The defendants have been charged with numerous grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist.” 23. The applicant appealed. He argued that he had spent over two years and eight months in detention. He asked the court to release him on an undertaking not to leave town or on bail. He further referred to the fact that he had no previous convictions, that he was married and had a minor child and a full-time job. On 7 September 2004 the Supreme Court of Russia dismissed the applicant’s appeal and upheld the decision of 22 July 2004 finding no reason to depart from the lower court’s findings. 24. On 29 October 2004 the Supreme Court of the Republic of Tatarstan extended the detention of fourteen defendants, including the applicant, until 29 January 2005. The applicant argued that he should be released pending trial. He claimed that the gravity of the charges alone could not constitute a sufficient reason for extension of his detention; that he had been detained during a lengthy period; that the prosecution had failed to prove that he might abscond or interfere with the administration of justice; that the court had already examined the materials concerning a number of charges against the defendants; and that the criminal proceedings had been too long. The court dismissed the applicant’s arguments, noting as follows: “[The defendants’] application for release cannot be granted for the following reasons. They have been charged with grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist... The fact that the court had already examined several charges against the defendants cannot be regarded as a sufficient reason to justify their release. Nor is the length of the criminal proceedings a factor to be taken into account when deciding the issue of detention.” 25. On 28 January, 29 April, and 29 July 2005 the Supreme Court of the Republic of Tatarstan extended the pre-trial detention for the applicant and thirteen other defendants until 29 April, 29 July and 29 October 2005 respectively. Each time the court dismissed the defendants’ applications reproducing verbatim its earlier reasoning as follows: “[The defendants’] application for release cannot be granted for the following reasons. They have been charged with grave and serious offences which might entail a custodial sentence exceeding two years. [The court does not] discern any special exceptional circumstances which would render [the defendants’] release possible. The reasons earlier [indicated by the court] to extend the defendants’ detention, i.e., the risk of absconding, threatening the witnesses and other parties involved in the criminal proceedings or interfering with the administration of justice in any other way, have not ceased to exist... The fact that the court had already examined several charges against the defendants cannot be regarded as a sufficient reason to justify their release. Nor is the length of the criminal proceedings a factor to be taken into account when deciding the issue of detention.” 26. It appears that the applicant did not appeal against the above decisions. 27. On 24 October 2005 the Supreme Court of the Republic of Tatarstan found the applicant guilty as charged and sentenced him to twenty-one years’ imprisonment. On 12 April 2006 the Supreme Court of Russia upheld the applicant’s conviction on appeal. 28. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (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”). 29. 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 pre-trial 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). 30. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96). The amendments of 14 March 2001 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. 31. After arrest the suspect is taken into custody “pending investigation”. The permitted period of detention “pending investigation” may be extended for up to eighteen months in “exceptional circumstances”. No extension beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 § 4 of the new CCrP). 32. Access to the case material 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 the 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 be granted once only and for no longer than six months. The new CCrP does not set any time-limits in this respect. Once the defendant has finished reading the file, the prosecutor remits the case to the trial court and from that date the detention is classified as “before the court” (or “during the judicial proceedings”). 33. Before 15 June 2001 the old CCrP set no time-limit for detention “during judicial proceedings”. On 15 June 2001 a new Article, 239-1, entered into force which established that the period of detention “during judicial proceedings” 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 particularly serious criminal offences. The new CCrP provides that the term of detention “during judicial proceedings” is calculated from the date the court received the file up to the date on which the judgment is given. The period of detention “during judicial proceedings” 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). | 1 |
train | 001-57984 | ENG | GBR | CHAMBER | 1,996 | CASE OF SINGH v. THE UNITED KINGDOM | 2 | Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | John Freeland;N. Valticos | 6. Mr Prem Singh was born in 1957 and is currently resident in Wakefield, West Yorkshire. 7. On 19 February 1973, the applicant - then aged 15 - was convicted at Leeds Crown Court of the murder of a 72-year-old woman. He had broken into her home, strangled her, cut her throat and had sexual intercourse with her at around the time of her death. Mr Singh received a mandatory sentence of detention "during Her Majesty’s pleasure" pursuant to section 53 (1) of the Children and Young Persons Act 1933 (as amended) (see paragraph 29 below). Its effect was to render the applicant "liable to be detained in such a place and under such conditions as the Secretary of State [for the Home Department] may direct". 8. In October 1990, having served the punitive part of his sentence ("tariff" - see paragraph 33 below), Mr Singh was released on licence. 9. On 11 March 1991 the applicant was arrested and interviewed at Southmead police station, Bristol, in connection with a number of alleged offences involving deception, and one of using threatening behaviour. He denied the allegations. 10. On 12 March 1991 the Parole Board considered Mr Singh’s case, and on 21 March 1991 his life licence was revoked by the Secretary of State on its recommendation. On 21 March 1991 the applicant received a formal notice of the reasons for this decision, which he was entitled to by virtue of section 62 (3) of the Criminal Justice Act 1967 (see paragraph 43 below). It informed him that the Secretary of State had revoked his licence in the light of: "(i) Reports indicating that you had lied to and misledyour supervising officers and avoided telling them of avariety of significant events following your release onlicence. (ii) Your arrest and subsequent appearances beforeBristol Magistrates on several criminal charges includingfraud and using threatening behaviour, set against thecircumstances surrounding the offence for which you weregiven a life sentence in 1973, make it impossible for theSecretary of State to be satisfied that your continuedpresence in the community did not constitute a risk tothe public." 11. On 27 August 1991, having complained to the Avon Probation Service about its recommendation, Mr Singh received a more detailed explanation of his recall in a letter from the chief probation officer. The reason given for his recall was not the alleged offences (which were a matter for the court), but rather his failure to provide accurate information about his circumstances to his supervising probation officer. The letter cited specifically his failure to inform her about the purchase of a motor vehicle; getting a job and giving false information to his employers about his age and character; having a relationship and not telling his girlfriend all about his background; and falling into arrears with his rent. 12. Mr Singh denied the accuracy of most of these allegations, and asked the Parole Board to review the merits of the revocation of his licence. Under section 62 (4) of the Criminal Justice Act 1967 (now section 39 (4) of the Criminal Justice Act 1991 - see paragraph 43 below), the Parole Board was empowered at this stage to take a binding decision for Mr Singh’s immediate release. 13. The Parole Board considered the applicant’s case on 27 August and 19 December 1991. It had before it a number of reports from the probation service and the police, none of which was disclosed to the applicant. On 19 December 1991 the Board decided against recommending Mr Singh’s immediate release. He was not told the reasons for this decision. 14. On 2 March 1992 the criminal charges against Mr Singh (see paragraph 9 above) were dismissed because the prosecution had presented the indictment out of time. Mr Singh asked for his case to be reconsidered in the light of this development, and the Secretary of State accordingly referred it back to the Parole Board, under the procedure set out in section 61 (1) of the Criminal Justice Act 1967 (see paragraph 34 below). On 30 July 1992 the Board again declined to recommend Mr Singh’s release. 15. The applicant then sought judicial review (see paragraph 47 below) of the two decisions of the Parole Board of 19 December 1991 and 30 July 1992. On 20 April 1993 the Divisional Court quashed the Parole Board’s decision of 19 December 1991 on the ground that there had been a breach of natural justice because of the Board’s failure to disclose to Mr Singh all the reports before it. The court held that the applicant was entitled to a fresh consideration by the Parole Board under the terms of section 39 (4) of the Criminal Justice Act 1991, at which the Board would be empowered to order (not merely to recommend) his release (see paragraph 43 below). Lord Justice Evans found, inter alia, that: "[Mr Singh’s] status is that of a person whose continueddetention can only be justified if the test ofdangerousness, meaning an unacceptable risk of physicaldanger to the life or limb of the public, is satisfied"(R. v. Secretary of State for the Home Department, exparte Prem Singh, unreported, transcript pp. 26F-27B) He further commented that the disclosed facts "scarcely seem able to support a positive answer to [this question]". 16. As a result of the Divisional Court’s decision, Mr Singh received a complete file of the documents which were before the Parole Board. This included a number of detailed probation reports alleging deception of his supervising officers by Mr Singh, and also several hundred pages of witness statements obtained by the police in connection with the criminal charges which had been dismissed (see paragraphs 9 and 14 above). 17. With the help of his solicitor, Mr Singh made written representations to the Parole Board. He denied the allegations contained in the letter from the chief probation officer that he had deceived his supervising probation officer (see paragraph 11 above) and supported his case with witness statements from his girlfriend and landlady. 18. On 18 June 1993 the Parole Board considered Mr Singh’s case. He was not permitted to be present at the review and had no opportunity to give oral evidence or to question those who had made allegations against him. The Board decided not to recommend release, and gave the following reasons: "The Panel accepted that Mr Singh’s representationsanswered some matters which were of concern to hisprobation officer. However, there was a lack of opennessin his dealings with the Probation Service. The Panelalso considered that the conduct which led to thecriminal charges indicated a serious kind ofdeceptiveness. His behaviour under supervision led thePanel to conclude that the nature of his personality andbehaviour had not changed significantly since theoriginal offence at the age of 15. His failure to complywith the discipline of licence supervision, bearing inmind the original offence, gives rise to considerableconcern." 19. Mr Singh applied for judicial review of this decision, but he withdrew his application on or about 7 March 1994 because he had been offered an early review of his case by the Parole Board. 20. In June 1994 the Parole Board reconsidered Mr Singh’s case in accordance with section 35 (2) of the Criminal Justice Act 1991 (see paragraph 35 below). Mr Singh entered detailed representations and the file before the Board was disclosed to him; it contained recent reports from probation officers, from a psychologist working with Mr Singh and from the Local Review Committee (see paragraph 46 below). All the reports which made a specific recommendation were in favour of the applicant’s release as soon as possible via a pre-release hostel. 21. As the applicant was informed on 21 July 1994 the Parole Board unanimously recommended his release subject to six months in a pre-release employment scheme. The reasons given were as follows: "On the evidence presented to [the panel], theyconsidered Prem Singh no longer constituted a danger tolife or limb of committing further life threateningoffences to justify his continued detention since hisrecall in March 1991." 22. The applicant was also informed on 21 July 1994 that the Secretary of State was "not prepared to accept this recommendation and [did not agree] to [the applicant’s] release". The Secretary of State so decided in exercise of his statutory powers (see paragraph 43 below). 23. By a communication of 8 September 1994 the applicant was given the reasons for the Secretary of State’s decision. These were that Mr Singh had misled the probation service after his release in October 1990 and had appeared before the magistrates on several criminal charges, although these had subsequently been dismissed on technical grounds. Thus, he had been recalled to prison "following serious breaches of the trust placed in [him] as a life licensee". The Secretary of State was unable to assess accurately whether he was still a threat to the public, because he had spent the three and a quarter years since his recall in a closed prison. He considered that Mr Singh’s relationship with the probation service needed to be tested in the "more challenging environment of an open prison". For these reasons, he believed that Mr Singh should be transferred to an open prison for further testing. His next formal review by the Parole Board would begin in October 1995. 24. Mr Singh applied for judicial review of the Secretary of State’s decision. On 16 March 1995 the Divisional Court quashed the Secretary of State’s decision and ordered him to reconsider it. The court found, inter alia, that the correct test to be applied was whether Mr Singh constituted a danger to the "life or limb" of the public, and that the reasoning process of the Secretary of State had been flawed because he had not properly explained how the findings he had made related to the test of dangerousness (R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), unreported). 25. In September 1995 Mr Singh joined a pre-release employment scheme. His provisional date for release is 18 March 1996. 26. A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder. English law imposes a mandatory sentence for the offence of murder: "detention during Her Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1) of the Children and Young Persons Act 1933 (as amended) - see paragraph 29 below); "custody for life" if the offender is between 18 and 20 years old (section 8 (1) of the Criminal Justice Act 1982); and "life imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965). Mandatory life sentences are fixed by law in contrast to discretionary life sentences, which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (for example manslaughter, rape, robbery). The principles underlying the passing of a discretionary life sentence are: (i) that the offence is grave and (ii) that there are exceptional circumstances whichdemonstrate that the offender is a danger to the publicand that it is not possible to say when that danger willsubside. Discretionary life sentences are indeterminate so that "the prisoner’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108). 27. The notion of detention during Her Majesty’s pleasure has its origins in statutory form in an Act of 1800 for "the safe custody of insane persons charged with offences" (Criminal Lunatics Act), which provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty’s pleasure shall be known" and described their custody as being "during His [Majesty’s] pleasure". 28. In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged between 10 and 16. It was extended to cover those under the age of 18 at the time of conviction (1933) and further extended to cover persons under the age of 18 at the time when the offence was committed (1948). 29. The provision in force at present is section 53 (1) of the Children and Young Persons Act 1933 (as amended) ("the 1933 Act") which provides: "A person convicted of an offence who appears to thecourt to have been under the age of eighteen years at thetime the offence was committed shall not, if he isconvicted of murder, be sentenced to imprisonment forlife, nor shall sentence of death be pronounced on orrecorded against any such person; but in lieu thereof thecourt shall ... sentence him to be detained during HerMajesty’s pleasure and, if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of State may direct." 30. In the case of R. v. Secretary of State for the Home Department, ex parte Prem Singh (20 April 1993, cited above at paragraph 15) Lord Justice Evans in the Divisional Court held as follows in respect of detention "during Her Majesty’s pleasure": "At the time of sentencing, the detention orders under section 53 were mandatory. It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder. But the sentence itself is closer in substance to the discretionary sentence of which part is punitive (retribution and deterrence) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied. The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period: see R. v. Secretary of State Ex. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992). The order for detention under section 53 is by its terms both discretionary and indeterminate: it provides for detention ‘during Her Majesty’s pleasure’ I would decide the present case on the narrow ground that, notwithstanding Home Office and Parole Board practice, the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether Wilson rather than Payne governs his case." (transcript, pp. 24C-25B) The court accordingly held that the applicant should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before the Parole Board when it decided whether he should be released after his recall to prison on revocation of his licence. The Parole Board has changed its policy accordingly. 31. However, in a statement in Parliament made on 27 July 1993 (see paragraph 38 below), the Secretary of State, Mr Michael Howard, explained that he included in the category of "mandatory life sentence prisoners" those "persons who are, or will be, detained during HerMajesty’s pleasure under section 53 (1) of the Childrenand Young Persons Act 1933 ..." 32. In R. v. Secretary of State for the Home Department, ex parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the Divisional Court (with whom Mr Justice Pill agreed) said: "I see no reason to regard him as having any specialstatus because he was sentenced to detention [during HerMajesty’s pleasure] rather than to life imprisonment,despite what was said by Evans LJ when giving judgment inReg. v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues in that casewere very different from those with which we areconcerned. If Hickey had not been sent to hospital hecould hope to benefit from the provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It will be recalled that in Hickey’s casethe offence was murder, so the sentence was mandatory notdiscretionary." On appeal the Court of Appeal stated that in respect of a person sentenced to detention during Her Majesty’s pleasure under section 53 (1) of the 1933 Act for the offence of murder, the relevant provisions on release were those in section 35 (2) of the Criminal Justice Act 1991 (see paragraph 35 below), and not those relating to a discretionary life prisoner (R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All England Law Reports 479, 488). 33. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 ("the 1991 Act"). 34. Section 61 (1) of the Criminal Justice Act 1967 ("the 1967 Act") provided, inter alia, that the Secretary of State, on the recommendation of the Parole Board and after consultation with the Lord Chief Justice and the trial judge, may "release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933". In this respect no difference was made between discretionary and mandatory life prisoners. 35. By virtue of section 35 (2) of the 1991 Act, persons detained during Her Majesty’s pleasure and those life prisoners who are not discretionary life prisoners (see paragraph 26 above), may be released on licence by the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. The decision on whether to release still lies, therefore, with the Secretary of State. 36. The Secretary of State also decides the length of a prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993 (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531, 567G), the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff. Where the Secretary of State decides to depart from the judicial recommendation he is obliged to give reasons. As a matter of practice the prisoner is informed of the Secretary of State’s final decision. In the second, post-punitive phase of detention the prisoner knows that "the penal consequence of his crime has been exhausted" (ibid., 557A). 37. A statement of policy issued by Sir Leon Brittan, then Secretary of State for the Home Department, on 13 November 1983 indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public. 38. On 27 July 1993, the Secretary of State, Mr Michael Howard, made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he "will consider not only, (a) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the publicacceptability of early release. This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice". 39. In a number of recent court cases involving persons detained during Her Majesty’s pleasure, it has been stated that the correct test for post-tariff detention was to be whether the offender continued to constitute a danger to the public (R. v. Secretary of State for the Home Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph 15; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), 16 March 1995). 40. The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A). 41. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel (see paragraph 45 below) and to legal representation. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him. 42. For the purposes of the 1991 Act, persons detained during Her Majesty’s pleasure are not regarded as discretionary life prisoners (section 43 (2)). 43. Recall to prison of a person released on licence was governed by section 62 of the 1967 Act which reads: "(1) Where the Parole Board recommends the recall of anyperson who is subject to a licence under section 60 or 61of this Act, the Secretary of State may revoke thatperson’s licence and recall him to prison. (2) The Secretary of State may revoke the licence of anysuch person and recall him as aforesaid withoutconsulting the Board, where it appears to him that it isexpedient in the public interest to recall that personbefore such consultation is practicable. (3) A person recalled to prison under the foregoingprovisions of this section may make representations ... (4) The Secretary of State shall refer to the Board thecase of a person recalled under subsection (1) of thissection who makes representations under the lastforegoing subsection and shall in any event so refer thecase of a person returned to prison after being recalledunder subsection (2) of this section. (5) Where the Board recommends the immediate release onlicence of a person whose case is referred to it underthis section, the Secretary of State shall give effect tothe recommendation..." 44. Section 39 of the 1991 Act has added that a person recalled to prison shall be informed of the reasons for his recall and of his right to make representations in writing. 45. Section 59 of the 1967 Act set out the constitution and functions of the Parole Board: "(1) For the purposes of exercising the functionconferred on it by this Part of this Act as respectsEngland and Wales there shall be a body known as theParole Board ... consisting of a chairman and not lessthan four other members appointed by the Secretary ofState. ... (4) The following provisions shall have effect withrespect to the proceedings of the Board on any casereferred to it, that is to say (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained; and (b) if in any particular case the Board thinks it is necessary to interview the persons to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member ... (5) The documents to be given by the Secretary of Stateto the Board under the last foregoing subsection shallinclude (a) where the case referred to the Board is one of release under section 60 or 61 of this Act, any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection; (b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section." As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides: "1. The Parole Board shall include among its members (a) a person who holds or has held judicial office; (b) a registered medical practitioner who is a psychiatrist; (c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after care of discharged prisoners; (d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders." The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, including, in the case of life prisoners, a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after consultation with the Lord Chief Justice. With the exception of the new rules concerning discretionary life prisoners, similar provisions apply under the 1991 Act. 46. Under section 59 (6) of the 1967 Act the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee reviewed a case, a member of the committee would interview the prisoner if he was willing to be interviewed. The first review by the Local Review Committee was normally fixed to take place three years before the expiry of the tariff. Local Review Committees were abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a member of the Parole Board. 47. Persons serving a sentence of detention during Her Majesty’s pleasure may institute proceedings in the High Court to obtain judicial review of any decision of the Parole Board or of the Secretary of State if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality, irrationality or procedural impropriety (Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All England Law Reports 935, 950-51). | 1 |
train | 001-91403 | ENG | GBR | GRANDCHAMBER | 2,009 | CASE OF A. AND OTHERS v. THE UNITED KINGDOM | 1 | No violation of Art. 3;No violation of Art. 13+3;Preliminary objection rejected (Government not precluded from raising defence under Art. 5-1-f or claiming that the derogation under Article 15 was invalid);No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-4;No violation of Art. 5-4;Violation of Art. 5-5;Remainder inadmissible;Pecuniary and non-pecuniary damage - award | Christos Rozakis;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristaq Traja;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Stanislav Pavlovschi | 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 11 September 2001 four commercial aeroplanes were hijacked over the United States of America. Two of them were flown directly at the Twin Towers of the World Trade Centre and a third at the Pentagon, causing great loss of life and destruction to property. The Islamist extremist terrorist organisation al-Qaeda, led by Osama Bin Laden, claimed responsibility. The United Kingdom joined with the United States of America in military action in Afghanistan, which had been used as a base for al-Qaeda training camps. 10. The Government contended that the events of 11 September 2001 demonstrated that international terrorists, notably those associated with al-Qaeda, had the intention and capacity to mount attacks against civilian targets on an unprecedented scale. Further, given the loose-knit, global structure of al-Qaeda and its affiliates and their fanaticism, ruthlessness and determination, it would be difficult for the State to prevent future attacks. In the Government’s assessment, the United Kingdom, because of its close links with the United States of America, was a particular target. They considered that there was an emergency of a most serious kind threatening the life of the nation. Moreover, they considered that the threat came principally, but not exclusively, from a number of foreign nationals present in the United Kingdom, who were providing a support network for Islamist terrorist operations linked to al-Qaeda. A number of these foreign nationals could not be deported because of the risk that they would suffer treatment contrary to Article 3 of the Convention in their countries of origin. 11. On 11 November 2001 the Secretary of State made a derogation order under section 14 of the Human Rights Act 1998 (“the 1998 Act” – see paragraph 94 below) in which he set out the terms of a proposed notification to the Secretary General of the Council of Europe of a derogation pursuant to Article 15 of the Convention. On 18 December 2001 the Government lodged the derogation with the Secretary General of the Council of Europe. The derogation notice provided as follows: “Public emergency in the United Kingdom The terrorist attacks in New York, Washington, D.C. and Pennsylvania on 11 September 2001 resulted in several thousand deaths, including many British victims and others from seventy different countries. In its Resolutions 1368 (2001) and 1373 (2001), the United Nations Security Council recognised the attacks as a threat to international peace and security. The threat from international terrorism is a continuing one. In its Resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, required all States to take measures to prevent the commission of terrorist attacks, including by denying safe haven to those who finance, plan, support or commit terrorist attacks. There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom. As a result, a public emergency, within the meaning of Article 15 § 1 of the Convention, exists in the United Kingdom. The Anti-terrorism, Crime and Security Act 2001 As a result of the public emergency, provision is made in the Anti-terrorism, Crime and Security Act 2001, inter alia, for an extended power to arrest and detain a foreign national which will apply where it is intended to remove or deport the person from the United Kingdom but where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domesticlaw powers. The extended power to arrest and detain will apply where the Secretary of State issues a certificate indicating his belief that the person’s presence in the United Kingdom is a risk to national security and that he suspects the person of being an international terrorist. That certificate will be subject to an appeal to the Special Immigration Appeals Commission (‘SIAC’), established under the Special Immigration Appeals Commission Act 1997, which will have power to cancel it if it considers that the certificate should not have been issued. There will be an appeal on a point of law from a ruling by SIAC. In addition, the certificate will be reviewed by SIAC at regular intervals. SIAC will also be able to grant bail, where appropriate, subject to conditions. It will be open to a detainee to end his detention at any time by agreeing to leave the United Kingdom. The extended power of arrest and detention in the Anti-terrorism, Crime and Security Act 2001 is a measure which is strictly required by the exigencies of the situation. It is a temporary provision which comes into force for an initial period of fifteen months and then expires unless renewed by Parliament. Thereafter, it is subject to annual renewal by Parliament. If, at any time, in the Government’s assessment, the public emergency no longer exists or the extended power is no longer strictly required by the exigencies of the situation, then the Secretary of State will, by order, repeal the provision. Domestic-law powers of detention (other than under the Anti-terrorism, Crime and Security Act 2001) The Government has powers under the Immigration Act 1971 (‘the 1971 Act’) to remove or deport persons on the ground that their presence in the United Kingdom is not conducive to the public good on national security grounds. Persons can also be arrested and detained under Schedules 2 and 3 to the 1971 Act pending their removal or deportation. The courts in the United Kingdom have ruled that this power of detention can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal and that, if it becomes clear that removal is not going to be possible within a reasonable time, detention will be unlawful (R. v. Governor of Durham Prison, ex parte Singh [1984] All ER 983). Article 5 § 1 (f) of the Convention It is well established that Article 5 § 1 (f) permits the detention of a person with a view to deportation only in circumstances where ‘action is being taken with a view to deportation’ (Chahal v. the United Kingdom (1996) 23 EHRR 413 at paragraph 112). In that case the European Court of Human Rights indicated that detention will cease to be permissible under Article 5 § 1 (f) if deportation proceedings are not prosecuted with due diligence and that it was necessary in such cases to determine whether the duration of the deportation proceedings was excessive (paragraph 113). In some cases, where the intention remains to remove or deport a person on national security grounds, continued detention may not be consistent with Article 5 § 1 (f) as interpreted by the Court in the Chahal case. This may be the case, for example, if the person has established that removal to their own country might result in treatment contrary to Article 3 of the Convention. In such circumstances, irrespective of the gravity of the threat to national security posed by the person concerned, it is well established that Article 3 prevents removal or deportation to a place where there is a real risk that the person will suffer treatment contrary to that Article. If no alternative destination is immediately available then removal or deportation may not, for the time being, be possible even though the ultimate intention remains to remove or deport the person once satisfactory arrangements can be made. In addition, it may not be possible to prosecute the person for a criminal offence given the strict rules on the admissibility of evidence in the criminal justice system of the United Kingdom and the high standard of proof required. Derogation under Article 15 of the Convention The Government has considered whether the exercise of the extended power to detain contained in the Anti-terrorism, Crime and Security Act 2001 may be inconsistent with the obligations under Article 5 § 1 of the Convention. As indicated above, there may be cases where, notwithstanding a continuing intention to remove or deport a person who is being detained, it is not possible to say that ‘action is being taken with a view to deportation’ within the meaning of Article 5 § 1 (f) as interpreted by the Court in the Chahal case. To the extent, therefore, that the exercise of the extended power may be inconsistent with the United Kingdom’s obligations under Article 5 § 1, the Government has decided to avail itself of the right of derogation conferred by Article 15 § 1 of the Convention and will continue to do so until further notice.” The derogation notice then set out the provisions of Part 4 of the Anti-terrorism, Crime and Security Bill 2001. 12. On 12 November 2001 the Anti-terrorism, Crime and Security Bill, containing the clauses which were to eventually become Part 4 of the Anti-terrorism, Crime and Security Act 2001 (“the 2001 Act” – see paragraph 90 below), was introduced into the House of Commons. The Bill was passed by Parliament in two weeks, with three days of debate on the floor of the House of Commons set aside for its 125 clauses in a restrictive programming motion, prompting both the Joint Committee of Human Rights and the Home Affairs Select Committee to complain of the speed with which they were being asked to consider the matter. 13. The 2001 Act came into force on 4 December 2001. During the lifetime of the legislation, sixteen individuals, including the present eleven applicants, were certified under section 21 and detained. The first six applicants were certified on 17 December 2001 and taken into detention shortly thereafter. The seventh applicant was certified and detained in early February 2002; the ninth applicant on 22 April 2002; the eighth applicant on 23 October 2002; the tenth applicant on 14 January 2003; and the eleventh applicant was certified on 2 October 2003 and kept in detention, having previously been held under other legislation. 14. In proceedings before the Special Immigration Appeals Commission (SIAC – see paragraphs 91-93 below), the first seven applicants challenged the legality of the derogation, claiming that their detention under the 2001 Act was in breach of their rights under Articles 3, 5, 6 and 14 of the Convention. Each, in addition, challenged the Secretary of State’s decision to certify him as an international terrorist. 15. On 30 July 2002, having examined both open and closed material and heard submissions from special advocates in addition to counsel for the parties and for the third party, Liberty, SIAC delivered its ruling on the legality of the derogation. It held that, on the basis of the open material, it was satisfied that the threat from al-Qaeda had created a public emergency threatening the life of the nation, within the meaning of Article 15 of the Convention, and that the closed material confirmed this view. SIAC further held that the fact that the objective of protecting the public from international terrorists could possibly have been achieved by alternative methods did not demonstrate that the measures actually adopted were not strictly necessary. Moreover, since the purpose of the detention was the protection of the United Kingdom, the fact that the detainee was at liberty to leave demonstrated that the measures were properly tailored to the state of emergency. SIAC rejected the applicants’ complaints under Article 3 of the Convention. It held that, in so far as they related to conditions of detention, the applicants should bring proceedings in the ordinary civil courts, and that SIAC had no jurisdiction to determine such a complaint as it was not a “derogation issue”. It further saw no merit in the applicants’ argument that detention for an indefinite period was contrary to Article 3. On this point, SIAC held that the detention was not indefinite, since it was governed by the time-limits of the 2001 Act itself and since the 2001 Act provided that each applicant’s certification was subject to automatic review by SIAC every six months. In any event, the mere fact that no term had yet been fixed for preventive detention did not give rise to a breach of Article 3. SIAC did not accept that Article 6 of the Convention applied to the certification process. The certification of each applicant as a suspected international terrorist was not a “charge” but instead a statement of suspicion and the proceedings before SIAC were not for the determination of a criminal charge. Furthermore, there was no relevant civil right at issue and Article 6 did not apply in its civil limb either. SIAC did, however, rule that the derogation was unlawful because the relevant provisions of the 2001 Act unjustifiably discriminated against foreign nationals, in breach of Article 14 of the Convention. The powers of the 2001 Act could properly be confined to non-nationals only if the threat stemmed exclusively, or almost exclusively, from non-nationals and the evidence did not support that conclusion. In paragraphs 94-95 of its judgment, SIAC held: “94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section. 95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists’, and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin.” SIAC thus quashed the derogation order of 11 November 2001 and issued a declaration of incompatibility in respect of section 23 of the 2001 Act under section 4 of the 1998 Act (see paragraph 94 below). It adjourned the first seven applicants’ individual appeals against certification (see paragraphs 24-69 below) pending the outcome of the Secretary of State’s appeal and the applicants’ cross-appeal on points of law against the above ruling. 16. On 25 October 2002 the Court of Appeal delivered its judgment (A. and Others v. Secretary of State for the Home Department [2002] EWCA Civ 1502). It held that SIAC had been entitled to find that there was a public emergency threatening the life of the nation. However, contrary to the view of SIAC, it held that the approach adopted by the Secretary of State could be objectively justified. There was a rational connection between the detention of non-nationals who could not be deported because of fears for their safety, and the purpose which the Secretary of State wished to achieve, which was to remove non-nationals who posed a threat to national security. Moreover, the applicants would be detained for no longer than was necessary before they could be deported or until the emergency was resolved or they ceased to be a threat to the country’s safety. There was no discrimination contrary to Article 14 of the Convention, because British nationals suspected of being terrorists were not in an analogous situation to similarly suspected foreign nationals who could not be deported because of fears for their safety. Such foreign nationals did not have a right to remain in the country but only a right, for the time being, not to be removed for their own safety. The Court of Appeal added that it was well established in international law that, in some situations, States could distinguish between nationals and non-nationals, especially in times of emergency. It further concluded that Parliament had been entitled to limit the measures proposed so as to affect only foreign nationals suspected of terrorist links because it was entitled to reach the conclusion that detention of only the limited class of foreign nationals with which the measures were concerned was, in the circumstances, “strictly required” within the meaning of Article 15 of the Convention. The Court of Appeal agreed with SIAC that the proceedings to appeal against certification were not “criminal” within the meaning of Article 6 § 1 of the Convention. It found, however, that the civil limb of Article 6 applied but that the proceedings were as fair as could reasonably be achieved. It further held that the applicants had not demonstrated that their detention amounted to a breach of Article 3 of the Convention. 17. The applicants were granted leave to appeal to the House of Lords, which delivered its judgment on 16 December 2004 ([2004] UKHL 56). A majority of the Law Lords, expressly or impliedly, found that the applicants’ detention under Part 4 of the 2001 Act did not fall within the exception to the general right of liberty set out in Article 5 § 1 (f) of the Convention (see Lord Bingham, at paragraphs 8-9; Lord Hoffman, at paragraph 97; Lord Hope, at paragraphs 103-05; Lord Scott, at paragraph 155; Lord Rodger, at paragraph 163; Baroness Hale, at paragraph 222). Lord Bingham summarised the position in this way: “9. ... A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country, and is not charged with any crime, may not under Article 5 § 1 (f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.” 18. The House of Lords further held, by eight to one (Lords Bingham and Scott with considerable hesitation), that SIAC’s conclusion that there was a public emergency threatening the life of the nation should not be displaced. Lord Hope assessed the evidence as follows: “118. There is ample evidence within [the open] material to show that the government were fully justified in taking the view in November 2001 that there was an emergency threatening the life of the nation. ... [The] United Kingdom was at danger of attacks from the al-Qaeda network which had the capacity through its associates to inflict massive casualties and have a devastating effect on the functioning of the nation. This had been demonstrated by the events of 11 September 2001 in New York, Pennsylvania and Washington. There was a significant body of foreign nationals in the United Kingdom who had the will and the capability of mounting coordinated attacks here which would be just as destructive to human life and to property. There was ample intelligence to show that international terrorist organisations involved in recent attacks and in preparation for other attacks of terrorism had links with the United Kingdom, and that they and others posed a continuing threat to this country. There was a growing body of evidence showing preparations made for the use of weapons of mass destruction in this campaign. ... [It] was considered [by the Home Office] that the serious threats to the nation emanated predominantly, albeit not exclusively, and more immediately from the category of foreign nationals. 119. The picture which emerges clearly from these statements is of a current state of emergency. It is an emergency which is constituted by the threat that these attacks will be carried out. It threatens the life of the nation because of the appalling consequences that would affect us all if they were to occur here. But it cannot yet be said that these attacks are imminent. On 15 October 2001 the Secretary of State said in the House of Commons that there was no immediate intelligence pointing to a specific threat to the United Kingdom: see Hansard (HC Debates, col 925). On 5 March 2002 this assessment of the position was repeated in the government’s response to the Second Report of the House of Commons Select Committee on Defence on the Threat from Terrorism (HC 348, para 13) where it was stated that it would be wrong to say that there was evidence of a particular threat. I would not conclude from the material which we have seen that there was no current emergency. But I would conclude that the emergency which the threats constitute is of a different kind, or on a different level, from that which would undoubtedly ensue if the threats were ever to materialise. The evidence indicates that the latter emergency cannot yet be said to be imminent. It has to be recognised that, as the attacks are likely to come without warning, it may not be possible to identify a stage when they can be said to be imminent. This is an important factor, and I do not leave it out of account. But the fact is that the stage when the nation has to face that kind of emergency, the emergency of imminent attack, has not been reached.” Lord Hoffman, who dissented, accepted that there was credible evidence of a threat of serious terrorist attack within the United Kingdom, but considered that it would not destroy the life of the nation, since the threat was not so fundamental as to threaten “our institutions of government or our existence as a civil community”. He concluded that “the real threat to the life of the nation ... comes not from terrorism but from laws such as these”. 19. The other Law Lords (Lords Bingham, Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale, with Lord Walker dissenting) rejected the Government’s submission that it was for Parliament and the executive, rather than the courts, to judge the response necessary to protect the security of the public. Lord Bingham expressed his view as follows: “42. It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the derogation order and the compatibility with the Convention of section 23 [of the 2001 Act] and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney-General’s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true ... that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic State, a cornerstone of the rule of law itself. The Attorney-General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right; has required courts (in section 2) to take account of relevant Strasbourg jurisprudence; has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate.” 20. The majority therefore examined whether the detention regime under Part 4 of the 2001 Act was a proportionate response to the emergency situation, and concluded that it did not rationally address the threat to security and was a disproportionate response to that threat. They relied on three principal grounds: firstly, that the detention scheme applied only to non-nationals suspected of international terrorism and did not address the threat which came from United Kingdom nationals who were also so suspected; secondly, that it left suspected international terrorists at liberty to leave the United Kingdom and continue their threatening activities abroad; thirdly, that the legislation was drafted too broadly, so that it could, in principle, apply to individuals suspected of involvement with international terrorist organisations which did not fall within the scope of the derogation. On the first point, Lord Bingham emphasised that SIAC’s finding that the terrorist threat was not confined to non-nationals had not been challenged. Since SIAC was the responsible fact-finding tribunal, it was unnecessary to examine the basis for its finding, but there was evidence that “upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years”; that some British citizens were said to have planned to return from Afghanistan to the United Kingdom; and that the background material relating to the applicants showed the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks. Lord Bingham continued: “33. ... It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to UK nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from UK nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively ... Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country ‘A’ because of Chahal their purpose is as well served by his voluntary departure for country ‘B’. But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. ... ... 35. The fifth step in the appellants’ argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are UK nationals are not simply ignored by the authorities. When [the fifth applicant] was released from prison by SIAC on bail ... it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so. 36. In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to Chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day. ... In its treatment of Article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. ... ... 43. The appellants’ proportionality challenge to the order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney-General could give no persuasive answer.” 21. In addition, the majority held that the 2001 Act was discriminatory and inconsistent with Article 14 of the Convention, from which there had been no derogation. The applicants were in a comparable situation to United Kingdom nationals suspected of being international terrorists, with whom they shared the characteristics of being irremovable from the United Kingdom and being considered a threat to national security. Since the detention scheme was aimed primarily at the protection of the United Kingdom from terrorist attack, rather than immigration control, there was no objective reason to treat the applicants differently on grounds of their nationality or immigration status. 22. Although the applicants’ appeal had included complaints under Articles 3 and 16 of the Convention, the House of Lords did not consider it necessary to determine these complaints since it had found the derogation to be unlawful on other grounds. 23. It granted a quashing order in respect of the derogation order, and a declaration under section 4 of the 1998 Act (see paragraph 94 below) that section 23 of the 2001 Act was incompatible with Articles 5 § 1 and 14 of the Convention in so far as it was disproportionate and permitted discriminatory detention of suspected international terrorists. 24. Meanwhile, SIAC’s hearing of the applicants’ individual appeals against certification commenced in May 2003, after the Court of Appeal had given judgment in the derogation proceedings but before the above judgment of the House of Lords. 25. For the purposes of each appeal to SIAC, the Secretary of State filed an “open statement” summarising the facts connected to the decision to certify each applicant and as much of the supporting evidence which the Secretary of State considered could be disclosed without giving rise to any risk to national security. A further, “closed” statement of facts and evidence was also placed before SIAC in each case. 26. On 29 October 2003 SIAC issued a “generic” judgment in which it made a number of findings of general application to all the appeals against certification. As regards preliminary issues, it found, inter alia, that it had jurisdiction to hear an appeal against certification even where the person certified had left the United Kingdom and the certificate had been revoked. It held that the tests whether reasonable grounds existed for suspicion that a person was a “terrorist” and for belief that his presence in the United Kingdom was a risk to national security, within the meaning of section 21 of the 2001 Act, fell “some way short of proof even on the balance of probabilities”. It further held that “reasonable grounds could be based on material which would not be admissible in a normal trial in court, such as hearsay evidence of an unidentified informant”. The weight that was to be attached to any particular piece of evidence was a matter for consideration in the light of all the evidence viewed as a whole. Information which might have been obtained by torture should not automatically be excluded, but the court should have regard to any evidence about the manner in which it was obtained and judge its weight and reliability accordingly. SIAC held that the detention provisions in the 2001 Act should be interpreted in the light of the terms of the derogation. The threat to the life of the nation was not confined to activities within the United Kingdom, because the nation’s life included its diplomatic, cultural and tourism-related activities abroad. Moreover, attacks on the United Kingdom’s allies could also create a risk to the United Kingdom, given the interdependence of countries facing a global terrorist threat. The derogation identified the threat as emanating from al-Qaeda and its associates. It was therefore necessary, in respect of both the “national security” and the “international terrorist” limbs of section 21 of the 2001 Act, to show reasonable grounds for suspicion that the person certified was part of a group which was connected, directly or indirectly, to al-Qaeda. Even if the main focus of the group in question was a national struggle, if it backed al-Qaeda for a part of its agenda and the individual nonetheless supported the group, it was a legitimate inference that he was supporting and assisting al-Qaeda. SIAC also made a number of findings of fact of general application concerning organisations alleged by the Secretary of State to be linked to alQaeda. These findings were based on both “open” and “closed” material. Thus, it held, for example, that the Salafist Group for Call and Combat (GSPC), which was formed in Algeria in 1998, was an international terrorist organisation linked to al-Qaeda through training and funding, but that the earlier Algerian organisation, Armed Islamic Group (GIA), was not. The Egyptian Islamic Jihad (EIJ) was either part of al-Qaeda or very closely linked to it. The Chechen Arab Mujahaddin was an international terrorist group, pursuing an anti-West agenda beyond the struggle for Chechen independence, with close links to al-Qaeda. SIAC also identified as falling within the terms of the derogation a group of primarily Algerian extremists centred around Abu Doha, an Algerian who had lived in the United Kingdom from about 1999. It was alleged that Abu Doha had held a senior role in training camps in Afghanistan and had many contacts in al-Qaeda, including a connection with the Frankfurt cell which had been accused of plotting to bomb the Strasbourg Christmas Market in December 2000. Abu Doha was arrested in February 2001, following an extradition request from the United States of America, but his group remained active. 27. The applicants appealed against SIAC’s ruling that evidence which might have been obtained by torture was admissible. For the purposes of the appeal, the parties agreed that the proceedings before SIAC to challenge certification fell within Article 5 § 4 of the Convention and as such had to satisfy the basic requirements of a fair trial. It was not, therefore, necessary to decide whether Article 6 also applied and the issue was left open. On 11 August 2004 the Court of Appeal, by a majority, upheld SIAC’s decision ([2004] EWCA Civ 1123). On 8 December 2005 the House of Lords held unanimously that the evidence of a suspect or witness which had been obtained by torture had long been regarded as inherently unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles on which courts should administer justice. It followed that such evidence might not lawfully be admitted against a party to proceedings in a United Kingdom court, irrespective of where, by whom and on whose authority the torture had been inflicted. Since the person challenging certification had only limited access to the material advanced against him in the proceedings before SIAC, he could not be expected to do more than raise a plausible reason that material might have been so obtained and it was then for SIAC to initiate the relevant enquiries. The House of Lords therefore allowed the applicants’ appeals and remitted each case to SIAC for reconsideration ([2005] UKHL 71). 28. SIAC’s conclusions as regards each applicant’s case are set out in paragraphs 29-69 below. Of the sixteen individuals, including the eleven applicants, detained under Part 4 of the 2001 Act, one had his certificate cancelled by SIAC. 29. The first applicant was born in a Palestinian refugee camp in Jordan, is stateless, and was granted indefinite leave to remain in the United Kingdom in 1997. On 17 December 2001 the first applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. On 18 December 2001 a deportation order was made on the same grounds. 30. The first applicant was taken into detention on 19 December 2001. He subsequently appealed to SIAC against certification and the decision to make a deportation order. On 24 July 2002 he was transferred to Broadmoor Secure Mental Hospital. 31. The first applicant and his representatives were served with the Secretary of State’s “open” material, including a police report which showed that large sums of money had moved through the four bank accounts in his name. SIAC and the special advocate instructed on behalf of the first applicant were in addition presented with “closed” evidence. Assisted by an interpreter, the first applicant gave oral evidence to SIAC and called one witness to testify to his good character. He also filed four medical reports concerning his mental health. SIAC observed in its judgment of 29 October 2003: “We are acutely aware that the open material relied on against the Applicant is very general and that the case depends in the main upon assertions which are largely unsupported. The central allegation is that he has been involved in fund-raising and distribution of those funds for terrorist groups with links to al-Qaeda. It is also said that he has procured false documents and helped facilitate the movement of jihad volunteers to training camps in Afghanistan. He is said to be closely involved with senior extremists and associates of Osama Bin Laden both in the United Kingdom and overseas. His case is and always has been that he is concerned and concerned only with welfare projects, in particular a school in Afghanistan for the children of Arab speakers there and projects such as construction of wells and provision of food to communities in Afghanistan. He has also raised money for refugees from Chechnya. Any contact with so-called extremists has been in that context and he had no reason to believe they were terrorists or were interested in terrorism. We recognise the real difficulties that the Appellant has in making this appeal. We have made appropriate allowance for those difficulties and his mental problems. We note [his counsel’s] concerns that there has been gross oversimplification by the Security Service of the situation which is, he submits, highly complex and a tendency to assume that any devout Muslim who believed that the way of life practised by the Taliban in Afghanistan was the true way to follow must be suspect. We note, too, that initially the Respondent asserted that all the Appellant’s fund-raising activities were for the purpose of assisting terrorism and that it was only when evidence was produced by the Appellant to show that there were legitimate charitable objectives that he accepted that at least some money was raised for those purposes. In so far as connections with named individuals are relied on, we bear in mind that some of them, who are alleged to be involved in terrorism, have appeals pending ... and that allegations against others have not been tested nor have alleged links been able to be explained. ... [The first applicant’s counsel] accepted, as he had to, the unreliability of the Applicant’s evidence about his movements in the 1990s, but asked us not to hold it against him because of his mental state. We do not accept that we can do that. The lies were a deliberate attempt to rebut the allegation that he had been a mujahid in Afghanistan, saying that he spent three years in a Jordanian prison. There was an overstatement by the police of the amount involved through the bank account. This we accept, but there was still a substantial sum of money going through them. And [the applicant’s counsel] submitted that the allegation was that he had provided false documents for others not for himself. Thus his false Iraq passport was not material. It does however show an ability to obtain a false passport. [The applicant’s counsel] attacked the reliability of the intelligence relied on against the Appellant since it was only belatedly accepted that he had been involved in genuine charitable work and that some of the money going through his account and raised by him was for such a purpose. We recognise the danger that all activities by one who is under suspicion may be regarded as themselves suspicious and that there may not be a fair consideration of all material to see whether it truly does support the suspicion. We have considered all the material, in particular that which is closed, with that danger in mind. As we have said, the open evidence taken in isolation cannot provide the reasons why we are dismissing this appeal and we sympathise with [the first applicant’s counsel’s] concerns that he had a most difficult task. We were not impressed with the Appellant as a witness, even making all allowances for his mental state and the difficulties under which he was labouring. He was often evasive and vague and has admittedly told lies in relation to his movements in the 1990s. His explanations about some of the transactions recorded in his bank accounts we have found difficult to follow or accept. We should say that we do not consider that the Respondent’s case is significantly advanced by what has been said about the Appellant’s involvement with Algeria or Chechnya; the case depends essentially on the evidence about the Appellant’s dealings with Afghanistan and with terrorists known to have links with al-Qaeda. It is clear that the Appellant was a very successful fund-raiser and, more importantly, that he was able to get the money to Afghanistan. Whatever his problems, he was able to and was relied on to provide an efficient service. His explanations both of who were the well known terrorists whose children were at the school and of the various of the more substantial payments shown in the bank accounts are unsatisfactory. He was vague where, having regard to the allegations made against him, we would have expected some detail. ... We have considered all the evidence critically. The closed material confirms our view that the certification in this case was correct. There is both a reasonable belief that the Appellant’s presence in the United Kingdom is a risk to national security and a reasonable suspicion that he is a terrorist within the meaning of section 21 of the 2001 Act. This appeal is accordingly dismissed.” 32. In accordance with the terms of the 2001 Act, the first applicant’s case was reviewed by SIAC six months later. In its judgment of 2 July 2004, SIAC found that: “The updated open generic material ... continues to show that there is a direct terrorist threat to the United Kingdom from a group or groups of largely North African Islamic extremists, linked in various ways to al-Qaeda. Although some of his contacts have been detained, the range of extremists prominent in various groups was such that he would have no difficulty and retains the will and ability to add his considerable experience of logistic support to them in pursuit of the extremist Islamic agenda in the UK. The certificate is properly maintained.” 33. SIAC reviewed the case again on 15 December 2004 and again found that the certificate should be maintained. 34. The second applicant is a citizen of Morocco born on 28 February 1963. He entered the United Kingdom as a visitor in 1985 and was granted leave to remain as a student. On 21 June 1988 he was granted indefinite leave to remain on the basis of his marriage to a British citizen, which subsequently broke down. In 1990 and again in 1997 he applied for naturalisation, but no decision was made on those applications. In 2000 he remarried another British citizen, with whom he has a child. 35. On 17 December 2001 the second applicant was certified by the Secretary of State as a suspected international terrorist under section 21 of the 2001 Act. A deportation order was made on the same date. The second applicant was taken into detention on 19 December 2001. He appealed against the certification and deportation order but, nonetheless, elected to leave the United Kingdom for Morocco on 22 December 2001. He pursued his appeals from Morocco. 36. In its judgment of 29 October 2003, SIAC summarised the “open” case against the second applicant as follows: “... (1) he has links with both the GIA and the GSPC [Algerian terrorist groups: see paragraph 26 above] and is a close associate of a number of Islamic extremists with links to al-Qaeda and/or Bin Laden. (2) he has been concerned in the preparation and/or instigation of acts of international terrorism by procuring high-tech equipment (including communications equipment) for the GSPC and/or Islamic extremists in Chechnya led by Ibn Khattab and has also procured clothing for the latter group. (3) he has supported one or more of the GIA, the GSPC and the Ibn Khattab faction in Chechnya by his involvement in fraud perpetrated to facilitate the funding of extremists and storing and handling of propaganda videos promoting the jihad. 9. The Secretary of State’s open case expands on those allegations and further indicates the use of at least one alias and a pattern of association with individuals known or assessed to be involved in terrorism [five individuals were identified]. All these were described by [counsel for the Secretary of State] as ‘known Algerian Islamic extremists’. 10. Witness B [for the Secretary of State] confirmed that the allegation against [the second applicant] is that he is a member of a network, rather than a member of any particular organisation such as the GSPC or the GIA.” SIAC continued by explaining the findings it had made against the applicant: “Like the other Appellants, [the second applicant] is not charged in these proceedings with a series of individual offences. The issue is whether, taking the evidence as a whole, it is reasonable to suspect him of being an international terrorist (as defined). When we look at the material before us, as we do, we treat it cumulatively. It might be that the material relating to fraud alone, or to clothing alone, or to videos alone, or to associations, would not by itself show that a person was in any way involved in terrorism or its support. But we need to assess the situation when various factors are found combined in the same person. Those factors are as follows. First is his involvement in acts of fraud, of which he must be aware but of which he seeks to provide no explanation, excusing himself apparently on the ground that he is not aware which particular act or acts the Secretary of State has in mind. Secondly, he has been involved in raising consciousness (and hence in raising money) about the struggle in Chechnya, and has been doing so in a specifically Islamic (rather than a merely humanitarian) context, using and distributing films which, according to the evidence before us, tend to be found in extremist communities. In the generic evidence, we have dealt with the Chechen Arab Mujahaddin and the significance of support for it which we accepted is given in full knowledge of its wider jihadist agenda. ... [He] has done so as a close associate of Abu Doha. Given the information we have about Abu Doha which, as we have said, we have no reason to doubt, we regard [the second applicant’s] claim that Abu Doha was doing nothing illegal (save that he was hiding his activities from the Russians) as entirely implausible. ... [He] has had associations with a number of other individuals involved in terrorism. They are for the most part specified by name in the open case but are not mentioned in his own statement. ... These are the five features which meet in [the second applicant]. No doubt the Secretary of State could have made his case by demonstrating various combinations of them in a single person. With all five, we regard the case as compelling. We are entirely satisfied that the Secretary of State is reasonable in his suspicion that [the second applicant] supports or assists the GIA, the GSPC, and the looser group based around Abu Doha, and in his belief that at any time [the second applicant] is in the United Kingdom his presence here is a risk to national security.” 37. The third applicant is of Tunisian nationality, born in 1963 and resident in the United Kingdom from about 1994. He was certified by the Secretary of State on 18 December 2001 and detained the following day. 38. In its judgment of 29 October 2003, dismissing the third applicant’s appeal against certification, SIAC observed: “The case against the Appellant, as framed in the open material, is that he is a key member of an extreme Islamist group known as the Tunisia Fighting Group (TFG). It is said that this group was formed during 2000 and had its origins in the Tunisian Islamic Front (known as the FIT since the name is in French). Its ultimate aim is said to be to establish an Islamic State in Tunisia. It is further asserted that the Appellant has been in regular contact with a number of known extremists including some who have been involved in terrorist activities or planning. Both the FIT and the TFG are said to have links with al-Qaeda. The open material deployed against the Appellant is not at all substantial. The evidence which is relied on against him is largely to be found in the closed material. This has meant that he has been at a real disadvantage in dealing with the case because he is not aware of those with whom he is alleged to have been in contact. ... In his statement the Appellant says that he has never heard of the TFG and is certainly not a member of it. ... We have no doubts that the TFG exists ... [and] also that it has links to al-Qaeda. Our reasons for so concluding must be given in the closed judgment. In May 1998 the Appellant and some ten others were arrested in a joint Special Branch and Security Service operation pursuant to warrants under the Prevention of Terrorism Act. The Appellant was released without charge and in due course received £18,500 compensation for wrongful arrest. The arrests were in connection with allegations of involvement in a plot to target the World Cup in France. We of course give weight to the absence of any admissible evidence to support the Appellant’s involvement in the alleged conspiracy, but it is not and cannot be the answer to this appeal. We have to consider all the material to see whether there are reasonable grounds for a belief or suspicion of the kind referred to in section 21(a) or (b) of the 2001 Act. ... We are satisfied that the Appellant is a member of the TFG, itself an international terrorist organisation within the scope of the 2001 Act, and that he has links with an international terrorist group. We appreciate that our open reasons for being so satisfied are sparse. That is because the material which drives us to that conclusion is mainly closed. We have considered it carefully and in the context of knowing the Appellant denies any involvement in terrorism or any knowing support for or assistance to terrorists. We have therefore been careful only to rely on material which cannot in our judgment have an innocent explanation.” 39. SIAC reached similar conclusions in its periodic reviews of the case on 2 July and on 15 December 2004. 40. The fourth applicant was born in Algeria in 1971 and first entered the United Kingdom in 1994. In May 1997 he was arrested and charged with a number of offences, including a conspiracy to export to Algeria material which it was alleged was to be used for the purposes of terrorism. It was alleged that he was a member of GIA. The case against the applicant was abandoned in March 2000 when a key witness, a Security Service agent, who was to give evidence concerning the need for civilians to defend themselves against atrocities allegedly committed by the Algerian government, decided that it was too dangerous for him to give evidence. 41. In 1998 the fourth applicant married a French national. He became a French citizen in May 2001, although he did not inform the United Kingdom authorities of this. The Secretary of State certified him under section 21 of the 2001 Act on 17 December 2001 and he was detained on 19 December 2001. On 13 March 2002 he left for France, where he was interviewed on arrival by security officials and then set at liberty. Since he had left the United Kingdom, the certificate against him was revoked and the revocation was backdated to 22 March 2002. 42. In its judgment of 29 October 2003, SIAC held that the backdating of the revocation meant that the fourth applicant could not be regarded as having been certified at the time he lodged his appeal and that, therefore, he had no right of appeal. It nonetheless decided to consider the appeal on the basis that this conclusion might be wrong. Since the Secretary of State could not reasonably have known at the time the certificate was issued that the applicant was a French citizen and could safely be removed to France, it could not be said on that ground that the certificate should not have been issued. SIAC therefore continued by assessing the evidence against him: “In reaching our decision, we will have to consider not only the open but also the closed material. The Appellant appears to have suspected that he was the subject of surveillance over much of the relevant period. We are conscious of the need to be very careful not to assume guilt from association. There must be more than friendship or consorting with those who are believed to be involved in international terrorism to justify a reasonable suspicion that the Appellant is himself involved in those activities or is at least knowingly supporting or assisting them. We bear in mind [his solicitor’s] concerns that what has happened here is an attempt to resurrect the prosecution with nothing to add from his activities since. Detention must be regarded as a last resort and so cannot be justified on the basis of association alone and in any event the guilt of the associates has never been established. ... Nonetheless, continued association with those who are suspected of being involved in international terrorism with links to al-Qaeda in the light of the reasonable suspicion that the Appellant was himself actively involved in terrorist activities for the GIA is a matter which can properly be taken into account. The GSPC, which broke away from the GIA, has links to al-Qaeda and the Appellant has continued to associate with those who took to the GSPC rather than the GIA. We are in fact satisfied that not only was the Appellant actively involved initially with the GIA and then with the GSPC but also that he provided false documentation for their members and for the Mujahaddin in Chechnya as is alleged in the open statement. But we accept that his activities in 2000 and 2001 justify the use of the expression that he had been maintaining a low profile, and we make that observation having regard to both open and closed material. Nonetheless, a low profile does not mean that he is not properly to be regarded as an international terrorist within the meaning of section 21. An assessment has to be made of what he may do in the light of what he has done and the fact that he has shown willingness and the ability to give assistance and support in the past and continues the associations and to provide some help (e.g. the use of his van) is highly relevant. We have not found this aspect of the Appellant’s case at all easy. We have given full weight to all [his solicitor’s] submissions which were so persuasively put before us but in the end have reached the view that, looking at the evidence as a whole, the decision to issue a certificate was not wrong. Accordingly, we would not have allowed the appeal on the facts.” 43. The fifth applicant was born in Algeria in 1969. In his statement to SIAC he claimed to have developed polio as a child which left him with a permanently weak and paralysed right leg. He was arrested and tortured by the Algerian government in 1991, whereupon he left Algeria for Saudi Arabia. In 1992 he moved to Pakistan and travelled to Afghanistan on several occasions. In August 1995 he entered the United Kingdom and claimed asylum, alleging in the course of that claim that his leg had been injured by a shell in Afghanistan in 1994. His asylum claim was refused and his appeal against the refusal was dismissed in December 1999. The applicant married a French citizen and had a child with her. 44. He was certified by the Secretary of State under section 21 of the 2001 Act on 17 December 2001 and detained on 19 December 2001. In its judgment of 29 October 2003, dismissing the fifth applicant’s appeal against certification, SIAC observed: “The open statements provided to justify the certification do not refer to a great deal of source material and so consist mainly of assertions. As with most of these appeals, the main part of the evidence lies in closed material and so, as we are well aware, the Appellants have been at a disadvantage in that they have not been able to deal with what might be taken to be incriminating evidence. The Special Advocates have been able to challenge certain matters and sometimes to good effect. That indeed was the case in relation to a camp in Dorset attended by a number of those, including the Appellant, of interest to the Security Service. ... The case against the Appellant is that he was a member of the GIA and, since its split from the GIA, of the GSPC. He is associated with a number of leading extremists, some of whom are also members of or associated with the GSPC, and has provided active support in the form of the supply of false documents and facilitating young Muslims from the United Kingdom to travel to Afghanistan to train for jihad. He is regarded as having undertaken an important role in the support activities undertaken on behalf of the GSPC and other Islamic extremists in the United Kingdom and outside it. All this the Appellant denies and in his statement he gives innocent explanations for the associations alleged against him. He was indeed friendly with in particular other Algerians in the United Kingdom and, so far as [the fourth applicant] was concerned, the families were close because, apart from anything else, their respective wives were French. He attended [the eighth applicant’s] mosque. He was an impressive preacher and the Appellant says he listened but was never involved. Indeed he did not know [the eighth applicant] except through Chechen relief, which the Appellant and many hundreds of other Muslims supported, and he had never spoken to him on the telephone. He had on occasions approached [the eighth applicant] at Friday prayers at the mosque if he wanted guidance on some social problem.” SIAC referred to “open” surveillance reports which showed the applicant to have been in contact with other alleged members of GIA and GSPC, including at a camp in Dorset in July 1999. Further “open” evidence concerned his “unhelpful” and “not altogether truthful” responses to questioning by officers of the Security Service in July and September 2001. SIAC continued: “Reliance is placed on various articles found in his house when he was arrested. These include a copy of the fatwa issued by Bin Laden. The Appellant says he had never seen it and could not explain its presence. A GSPC communiqué was, he says, probably one handed out at the mosque. Analysis of the hard drive of his computer showed it had visited an Internet site that specialised in United States military technology. This was not something which could be relevant to the Appellant’s studies. And a hand-drawn diagram of a missile rocket he has not seen before. It might, he thinks, have been in a book about Islam he had bought second hand from the mosque. We note the denials, but we have to consider all the evidence. As will be clear from this judgment, we have reason to doubt some of the Appellant’s assertions. But the closed material confirms our view that there is indeed reasonable suspicion that the Appellant is an international terrorist within the meaning of section 21 and reasonable belief that his presence in the United Kingdom is a risk to national security. We have no doubt that he has been involved in the production of false documentation, has facilitated young Muslims to travel to Afghanistan to train for jihad and has actively assisted terrorists who have links with al-Qaeda. We are satisfied too that he has actively assisted the GSPC. We have no hesitation in dismissing his appeal.” 45. On 22 April 2004, because of concerns about his health, the fifth applicant was released from prison on bail on strict conditions, which amounted to house arrest with further controls. In its review judgment of 2 July 2004, SIAC held: “... in granting bail, [SIAC] did not revise its view as to the strength of the grounds for believing he was an international terrorist and a threat to national security. The threat could be managed proportionately in his case in view of his severe mental illness. That however is no reason to cancel the certificate. There might be circumstances in which he breaches the terms of his bail or for other reasons it was necessary to revoke it. The need for the certificate to continue must depend on whether the terms of the statute and of the derogation continue to be met. A number of his contacts remain at large including some who are regarded as actively involved in terrorist planning. There is nothing to suggest that his mental illness has diminished his commitment to the extremist Islamic cause; he has the experience and capacity to involve himself once more in extremist activity. The bail restraints on him are essential; those are imposed pursuant to his certification and the SIAC dismissal of his appeal against it. The certificate is properly maintained.” 46. On 15 December 2004, SIAC again reviewed the case and decided that the certificate should be maintained. 47. The sixth applicant was born in Algeria in 1967 and was resident in the United Kingdom from 1989. The Secretary of State issued a certificate against him on 17 December 2001 and he was taken into detention on 19 December 2001. 48. In its judgment of 29 October 2003, SIAC observed as follows: “Although we have to make our decision on the basis both of the open and of the closed material, it is important to indicate the case against [the sixth applicant] as it has been set out by the Secretary of State in open material, because that is the case that [the sixth applicant] knows that he has to meet. In assessing his statement and the other evidence and arguments submitted on his behalf, we remind ourselves always that he is not aware of the Secretary of State’s closed material, but nevertheless that he is not operating entirely in a vacuum because of the open allegations; and we may test the Appellant’s own case by the way he deals with those allegations. The Secretary of State’s case against [the sixth applicant] is summarised as follows: (1) he belongs to and/or is a member of the GSPC, and previously was involved with the GIA; (2) he has supported and assisted the GSPC (and previously the GIA) through his involvement in credit card fraud which is a main source of income in the United Kingdom for the GSPC; (3) from about August 2000, [the sixth applicant] took on an important role in procuring telecommunications equipment for the GSPC and the provision of logistical support for satellite phones by way of purchase and allocation of airtimes for those phones; (4) he has also played an important part in procuring telecommunications equipment and other equipment for the Mujahaddin fighting in Chechnya – that is to say the faction which until 2002 was under the command of Ibn Khattab.” SIAC then reviewed the open evidence before it regarding the purchase by Abu Doha, assisted by the sixth and seventh applicants, of a number of satellite telephones and other telecommunications equipment to the value of 229,265 pounds sterling and the nature and extent of the connection between the sixth and seventh applicants. It concluded: “In the circumstances we have set out, it appears to us that the Secretary of State has ample ground for suspicion that [the sixth applicant’s] procurement activities were directed to the support of the extremist Arab Islamist faction fighting in Chechnya. That support arises from [the sixth applicant’s] connections with and support of the GSPC. We emphasise, as is the case with other appeals as well, that it is the accumulation of factors, each lending support to the others rather than undermining other points, providing colour and context for the activities seen as a whole which is persuasive; it would be wrong to take a piece in isolation, thereby to diminish its significance and to miss the larger picture. The generic judgment supports these conclusions. These are activities falling centrally within the derogation. [The sixth applicant] has provided only implausible denials and has failed to offer credible alternative explanations. That is sufficient to determine his appeal, without making any further reference to the Secretary of State’s other allegations which, as was acknowledged in the open statement and in open evidence before [SIAC], can be properly sustained only by examination of the closed material.” 49. SIAC reviewed the case on 2 July 2004 and on 28 February 2005 and, on each occasion, decided that there were still grounds for maintaining the certificate. 50. The seventh applicant was born in Algeria in 1971 and apparently entered the United Kingdom using false French identity papers in or before 1994. On 7 December 2001 he was convicted of a number of driving offences and sentenced to four months’ imprisonment. He was certified by the Secretary of State on 5 February 2002 and taken into detention pursuant to the certificate as soon as his prison sentence ended on 9 February 2002. 51. In its judgment of 29 October 2003, SIAC noted that the allegations against the seventh applicant were that he had been a member of GSPC since 1997 or 1998, and before that a member of GIA; that his contacts with leading GSPC members in the United Kingdom showed that he was a trusted member of the organisation; and that he had been involved with Abu Doha and the sixth applicant in purchasing telecommunications equipment for use by extremists in Chechnya and Algeria. It further noted that: “[The seventh applicant] did not give evidence before [SIAC] and, indeed, chose not to attend the hearing of his appeal. His statement, which we have of course read, is in the most general terms, and, perhaps not surprisingly, [his counsel’s] submissions, both oral and written, were similarly general. [The seventh applicant’s] approach to the present proceedings of themselves and the fact that he did not give oral evidence or make any detailed written statement are not matters to be put in the scale against him. We well understand the difficulty that Appellants have in circumstances where the allegations against them are only summarised and where much of the evidence on which those allegations are based cannot, for reasons of national security, be communicated to the Appellants themselves. However, [the seventh applicant] is in the best position to know what his activities and motives have been in the relevant period. Nothing prevents him from giving a full description and account of those activities if he wishes to do so. The fact that he has chosen to provide no detailed account of his activities means that he has provided no material to counter the evidence and arguments of others.” SIAC concluded that the open and closed material supported the allegations against the seventh applicant and it dismissed his appeal. 52. In its review judgments of 2 July and 15 December 2004, SIAC decided that the certificate should be maintained. 53. The eighth applicant is a Jordanian national, born in Bethlehem in 1960. He arrived in the United Kingdom on 16 September 1993 and claimed asylum. He was recognised as a refugee and granted leave to remain until 30 June 1998. On 8 May 1998 he applied for indefinite leave to remain but the application had not been determined at the time of the coming into force of the 2001 Act. 54. The eighth applicant was convicted in absentia in Jordan for his involvement in terrorist attacks there and in relation to a plot to plant bombs to coincide with the millennium. He was investigated in February 2001 by anti-terrorism police officers in connection with a plot to cause explosions at the Strasbourg Christmas Market in December 2000, but no charges were brought against him. When the 2001 Act was passed he went into hiding. He was arrested on 23 October 2002 and was immediately made the subject of a section 21 certificate and taken into detention. On the same date, a deportation order was made against him. 55. In its judgment of 8 March 2004, dismissing the eighth applicant’s appeal against certification, SIAC observed as follows: “[The eighth applicant’s counsel], on instructions from the Appellant, informed us that his client had chosen not to attend the hearing or to participate in any way. He had read the decisions relating to the Appellants who had been certified when the 2001 Act came into force and the generic judgment and so felt certain that the result of his appeal was a foregone conclusion. There had been many references to his role in the other appeals and some had been certified and detained, at least in part, on the basis that they associated with him. Since that association was regarded as sufficient to justify their continued detention, he considered that the decision on his appeal had, in effect, already been taken. He had chosen not to play any part precisely because he has no faith in the ability of the system to get at the truth. He considered that the SIAC procedure had deliberately been established to avoid open and public scrutiny of the respondent’s case, which deprived individuals of a fair opportunity to challenge the case against them. Having said that, [the eighth applicant’s counsel] made it clear that the appeal was not being withdrawn. It was accordingly necessary for us to consider it and to take into account the statement made by the Appellant. [His counsel] emphasised a number of matters which, he suggested, should be regarded as favourable to the Appellant’s contention that he was not and never had been involved in terrorism within the meaning of the 2001 Act. Furthermore, the allegations showed that a distorted and over-simplified view was being taken by the security services of the Appellant’s activities and his role as a respected teacher and believer in the rights of Islamic communication throughout the world. We should make it clear that we have considered the case against the Appellant on its merits. We have not been influenced by any findings made in other appeals or the generic judgments. One of the reasons why this judgment has taken a long time to be prepared was the need for us to read through and consider the evidence, both open and closed, that has been put before us. There is much more of it than in most of the other appeals. That is a reflection of the fact that the Appellant has been associated with and had dealings with many of the others who have been certified and with individuals and groups themselves linked to al-Qaeda. We see no reason to dissent from the views expressed in the generic judgment of the significance of the various individuals and groups referred to in it. But that does not mean we have therefore automatically accepted its views. We draw attention to the fact that the panel which produced the generic judgment was not the same constitution as this panel and that such input as there was by the chairman of this panel to the generic judgment was limited to issues of law. We have considered the case against the Appellant on the material put before us in this appeal. ... When it came to the closed session, the Special Advocates informed us that after careful consideration they had decided that it would not be in the Appellant’s interests for them to take any part in the proceedings. We were very concerned at this, taking the view that the decision was wrong. The appeal was still being pursued and the Appellant did not know what was relied on against him in the closed material. We were unable to understand how in the circumstances it could not be in his interests for the Special Advocates, at their discretion, to elicit or identify matters favourable to the Appellant and to make submissions to us to seek to persuade us that evidence was in fact unreliable or did not justify the assessment made. When we asked [one of the two Special Advocates appointed on behalf of the eighth applicant] to tell us why he had decided as he had he told us that he could not do so since to do so would not be in the Appellant’s interest. We adjourned to enable the Special Advocates to seek to discover from the Appellant through his representatives whether he did wish them to do what they could on his behalf and we also contacted the Solicitor-General who had appointed the Special Advocates to seek her help in trying to persuade them to assist us. The Appellant’s representatives indicated that they had nothing to say on the subject and the Solicitor-General took the view that it would be wrong for her to intervene in any way. Our further attempts to persuade the Special Advocates to change their minds were unsuccessful and since we could not compel them to act in any particular way we had to proceed without them. [Counsel for the Secretary of State], at our request, identified various matters which might be regarded as possibly exculpatory and we ourselves raised other matters in the course of the closed hearing. We are conscious that the absence of a Special Advocate makes our task even more difficult than it normally is and that the potential unfairness to the Appellant is the more apparent. We do not doubt that the Special Advocates believed they had good reasons for adopting the stance that they did and we are equally sure that they thought long and hard about whether they were doing the right thing. But we are bound to record our clear view that they were wrong and that there could be no reason for not continuing to take part in an appeal that was still being pursued. ... As it happens, the evidence in this case against the Appellant is so strong that no Special Advocates, however brilliant, could have persuaded us that reasonable suspicion had not been established so that the certification was not justified. Thus the absence of Special Advocates has not prejudiced the Appellant. ...” 56. SIAC then summarised the open case against the applicant, which was that he had associated with and acted as spiritual adviser to a number of individuals and groups linked with al-Qaeda. He held extreme and fundamentalist views and had been reported as having, in his speeches at a London mosque, given his blessing to the killing of Jews and Americans, wherever they were. SIAC concluded: “We are satisfied that the Appellant’s activities went far beyond the mere giving of advice. He has certainly given the support of the Koran to those who wish to further the aims of al-Qaeda and to engage in suicide bombing and other murderous activities. The evidence is sufficient to show that he has been concerned in the instigation of acts of international terrorism. But spiritual advice given in the knowledge of the purposes for which and the uses to which it is to be put provides assistance within the meaning of section 21(4) of the 2001 Act. ... There are a large number of allegations made. We see no point in dealing with them seriatim. We have indicated why we have formed the view that the case made against the Appellant is established. Indeed, were the standard higher than reasonable suspicion, we would have had no doubt that it was established. The Appellant was heavily involved, indeed was at the centre in the United Kingdom of terrorist activities associated with al-Qaeda. He is a truly dangerous individual and these appeals are dismissed.” 57. The ninth applicant is Algerian, born in 1972. In 1991 he left Algeria for Afghanistan, where he taught Arabic in a refugee camp. He claimed asylum in the United Kingdom in 1993. In 1994 he was granted leave to remain for four years and in 2000 he was granted indefinite leave to remain, on the basis that he was to be regarded as a refugee. On four occasions, the last in May 1998, the applicant was arrested and released without charge. The first three arrests related to credit card fraud. The arrest in May 1998 related to alleged terrorist activities and the applicant was subsequently paid compensation by the police for false arrest. 58. The ninth applicant was certified by the Secretary of State and made the subject of a deportation order on 22 April 2002. He was detained on the same day. According to the evidence of one of the witnesses for the Secretary of State, he was not certified, with the other applicants, in December 2001 because one of his files had been lost. 59. In its judgment of 29 October 2003, SIAC noted that the allegations against the ninth applicant were that he was an active supporter of GSPC and had raised considerable sums of money for it through fraud. There was evidence that the applicant had in the past been found, by customs officers, attempting to enter the United Kingdom by ferry with large amounts of cash and that he had close links with others who had been convicted of credit card fraud. SIAC held that evidence of involvement in fraud did not establish involvement in terrorism. However, it noted that the applicant had been present at a camp in Dorset in the company of the fifth applicant and a number of others suspected of being GSPC supporters and that a telephone bill had been found at his house at the time of his arrest in the name of Yarkas, who had been arrested in Spain in November 2001 due to his alleged links with al-Qaeda. The applicant had given evidence but had not been a convincing witness and had not given a credible explanation for the foregoing. The closed evidence supported the Secretary of State’s allegations and SIAC therefore dismissed the applicant’s appeal against certification. 60. In its review judgments of 2 July 2004 and 15 December 2004, SIAC held that the certificate was properly maintained. 61. The tenth applicant is an Algerian national. Following a bomb explosion in Algeria, his left hand was amputated at the wrist and his right arm was amputated below the elbow. In 1999 he travelled to the United Kingdom, via Abu Dhabi and Afghanistan, and claimed asylum. His claim was refused on 27 February 2001. He was then in custody, having been arrested on 15 February 2001 and charged with possession of articles for suspected terrorist purposes, conspiracy to defraud and conspiracy to make false instruments. At the time of his arrest he was found to have in his possession approximately forty blank French driving licences, identity cards and passports, a credit card reader, laminators and an embossing machine. The charges were not, however, proceeded with and he was released on 17 May 2001. 62. On 14 January 2003 the Secretary of State issued a certificate against him under section 21 of the 2001 Act and he was taken into detention. A deportation order was made against him on the same day. 63. In its judgment of 27 January 2004, SIAC noted that the essence of the case against the tenth applicant was that since his arrival in the United Kingdom he had been closely associated with a network of extremists formerly led by Abu Doha (see paragraph 26 above). In particular, it was alleged that he had provided logistical support in the form of false documentation and money raised through credit card fraud. He had spent a lot of time at the Finsbury Park Mosque, a known centre of Islamist extremism, and was alleged to have attended a meeting there in June 2001 at which threats were made against the G8 summit in Genoa. The applicant submitted a written statement on 28 June 2003 in which he denied the allegations against him. He did not, however, participate in the hearing of his appeal, as SIAC explained in its judgment: “He was, said [his counsel], a genuine refugee, a member of no organisation or group and not involved in terrorism or in advocating terrorism. He had no knowledge of any planned terrorist attacks and could not understand why the accusations had been made against him. He had seen none of the underlying material and had no means of challenging it. In effect, he could do no more than assert that it could not justify the conclusion that he was an international terrorist within the meaning of the Act since he was not. He had had read to him the decisions of [SIAC] in the previous appeals. Given the relevance which was placed on the closed material and the statutory test applicable, he felt that the result was a foregone conclusion. He did not wish in participating in the appeal to give an impression which was false that he could deal with the matters which were being relied on against him. He had no confidence in the proceedings. Accordingly he would take no active part in them beyond the statement which [his counsel] made on his behalf. He did not withdraw his appeal. While we appreciate the handicap under which he and indeed all the Appellants labour, we wish to make it clear that no appeal is a foregone conclusion. We have to and we do consider the evidence put before us, whether open or closed, with care because we recognise that the result is detention for an unspecified period without trial. While we recognise that the Special Advocate has a difficult task when he has and can obtain no instructions on closed material, he is able to test evidence from the Security Service and to draw our attention to material which assists the Appellant’s case.” SIAC found that there was ample evidence to support the view that the applicant was involved in fraudulent activities. The evidence before it, most of it closed, was sufficient to establish that he was doing it to raise money for terrorist causes and to support those involved in terrorism. It therefore dismissed the appeal against certification. 64. SIAC reached similar decisions in its review judgments of 4 August 2004 and 16 February 2005. In the latter judgment, it noted that although the applicant had been transferred to Broadmoor Secure Mental Hospital because of mental health problems, that made no difference to the assessment of the risk to national security which he would pose if released. 65. The eleventh applicant is an Algerian national. He entered the United Kingdom in February 1998, using a false Italian identity card, and claimed asylum the following week. While his claim was pending, in July 2001, he travelled to Georgia using a false French passport and was deported back to the United Kingdom, where he was informed that his travel outside the United Kingdom had terminated his asylum claim. He made a second claim for asylum, which was refused on 21 August 2001. The applicant absconded. He was arrested on 10 October 2001 and held in an immigration detention centre, from which he absconded in February 2002. He was rearrested on 19 September 2002 and detained at Belmarsh Prison under immigration law provisions. 66. On 2 October 2003 the Secretary of State certified him as an international terrorist under section 21 of the 2001 Act and made a deportation order against him on grounds of national security. 67. In its judgment of 12 July 2004, dismissing the eleventh applicant’s appeal against certification, SIAC set out the open case against him. It was alleged that he was an established and senior member of the Abu Doha group (see paragraph 26 above). In July 2001 he had attempted to travel to Chechnya and, when arrested by the Georgian police, he had been found in possession of telephone numbers associated with a senior member of the Abu Doha group and a named member of GSPC, who was known to be involved in fund-raising for the Chechen Mujahaddin. He was alleged to have provided money and logistical support to a North African extremist Islamist network based in Pakistan and Afghanistan, with links to al-Qaeda, and to have assisted members of the Abu Doha group in travelling to Afghanistan, Pakistan and Chechnya. He had lived at the Finsbury Park Mosque for over a year in 1999/2000. He was very security-conscious and during a trip to St Albans in September 2001 he had taken measures to avoid being followed. When he was arrested in September 2002 he was found in possession of a false Belgian passport bearing the photograph of a senior member of the Abu Doha group. He was alleged to have been heavily involved in the supply of false documents and the fraudulent use of cheque books and credit cards. 68. The applicant filed a written statement in which he denied being an international terrorist. He admitted that he had travelled to Afghanistan in 1999 and that he had attempted to go to Chechnya in 2001, but claimed that his interest in these countries was no more than that shown by many devout Muslims. He refused to participate in the hearing of his appeal or to be represented by a lawyer, in protest at the fundamental unfairness of the procedure. In view of the applicant’s position, the special advocates decided that his interests would best be served if they refrained from making submissions on his behalf or asking questions of the witnesses in the closed session. 69. In dismissing the applicant’s appeal, SIAC held as follows: “We recognise the difficulties faced by an Appellant who only sees only the open material and can understand [the eleventh applicant’s] perception that the procedures are unfair. However, each case will turn upon its own individual facts, and it would be wrong to give the impression, which [his solicitor] sought to do, that this particular Appellant had been placed in a position where he was prevented by reason of the procedures under the Act from mounting an effective defence in response to the case made against him. We have summarised the information made available to [the eleventh applicant] at the various stages of the procedure ... and [his] response to this information in his written statement. While some of the assessments in the open material can fairly be described as general assertions unsupported by any documentary evidence, in response to which [the eleventh applicant] would not have been able to give any more than an equally general denial, it is clear that in respect of other assessments [he] was provided with a great deal of detailed information: names, dates, places and supporting documents. [The eleventh applicant] is in the best position to give an account of his whereabouts and activities since he first claimed asylum in 1998. His written statement is significant not so much for what it says, as for what it does not say. To take one example: the visit to St Albans and the photo-booth where [the eleventh applicant] says that the Respondent’s specific assertion is ‘completely wrong’ ... [The eleventh applicant] has not denied that he went to St Albans. He knows who accompanied him and why they went there. He has not explained why they went there, nor has he identified his companion, despite having been provided with the photographs taken during the surveillance operation. ...” SIAC continued by noting the inconsistencies in the applicant’s various accounts of his trips to Afghanistan, Georgia and Dubai and his failure to deal with the Secretary of State’s allegations that he had associated with various members of the Abu Doha group, identified by name. SIAC continued: “The matters referred to ... are not an exhaustive list, merely the most obvious examples of the way in which [the eleventh applicant’s] written statement fails to deal with the open case made against him. Given the unsatisfactory nature of the statement we do not feel able to give any significant weight to the general denials contained within it ... We have dealt with these matters in some detail because they are useful illustrations of the extent to which [the eleventh applicant] would have been able to answer the case against him, if he had chosen to do so. While we do not draw any adverse inference from [his] failure to give evidence, or otherwise participate in the hearing of his appeal, we do have to determine his appeal on the evidence and we are left with the position that there has been no effective challenge by way of evidence, cross-examination or submission to the open material produced by the Respondent. ... The standard of proof prescribed by section 25(2) of the 2001 Act is relatively low: are there reasonable grounds for belief or suspicion. As explained above, we are satisfied that this low threshold is easily crossed on the basis of the open material alone. If the totality of the material, both open and closed, is considered, we have no doubt that [the eleventh applicant] was a senior, and active, member of the Abu Doha group as described in the Respondent’s evidence.” 70. The detained applicants were all initially detained at Belmarsh Prison in London. The sixth applicant was transferred to Woodhill Prison and the first, seventh and tenth applicants were transferred to Broadmoor Secure Mental Hospital. 71. They were held in prison under the same regime as other standard-risk Category A prisoners, which was considered the appropriate security classification on the basis of the risk they posed. They were allowed visitors, once those visitors had been security-cleared, and could associate with other prisoners, make telephone calls and write and receive letters. They had access to an imam and to their legal representatives. They had the same level of access to health care, exercise, education and work as any other prisoner of their security ranking. Following a recommendation of the inspector appointed under the 2001 Act to review the detention regime, the Government created a Special Unit at Woodhill Prison to house the 2001 Act detainees. The Unit, which was refurbished in consultation with the detained applicants and their representatives and had a specially selected and trained staff, would have allowed for a more relaxed regime, including more out-of-cell time. The applicants, however, chose not to move to the Unit, a decision which the inspector found regrettable. 72. The first applicant, who alleged a history of ill-treatment in Israeli detention and who had first been treated for depression in May 1999, suffered a severe deterioration in his mental health while detained in Belmarsh Prison. He was transferred to Broadmoor Secure Mental Hospital in July 2002. 73. The seventh applicant reported a family history of psychiatric disorder and had experienced depression as an adolescent. He claimed to suffer increasingly throughout his detention from depression, paranoia and auditory hallucinations. He attempted suicide in May 2004 and was transferred to Broadmoor Secure Mental Hospital on 17 November 2004. 74. The tenth applicant, a double amputee, claimed to have been detained and tortured in Algeria. He suffered a deterioration in his physical and mental health in Belmarsh Prison. He went on hunger strike in May/June 2003 and refused to use the prostheses which had been issued to him or to cooperate with his nurses. Early in November 2003, the prison authorities withdrew his nursing care. His legal representatives applied for judicial review of this decision and in December 2003 nursing care was resumed following the order of the Administrative Court. On 1 November 2004 the tenth applicant was transferred to Broadmoor Secure Mental Hospital. 75. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the detained applicants in February 2002 and again in March 2004, and made a number of criticisms of the conditions in which the detained applicants were held. The Government rejected these criticisms (see paragraphs 101-02 below). 76. In October 2004, at the request of the applicants’ legal representatives, a group of eight consultant psychiatrists prepared a Joint Psychiatric Report on the detained applicants, which concluded: “The detainees originate from countries where mental illness is highly stigmatised. In addition, for devout Muslims there is a direct prohibition against suicide. This is particularly significant given the number who have attempted or are considering suicide. All of the detainees have serious mental health problems which are the direct result of, or are seriously exacerbated by, the indefinite nature of the detention. The mental health problems predominantly take the form of major depressive disorder and anxiety. A number of detainees have developed psychotic symptoms, as they have deteriorated. Some detainees are also experiencing PTSD [post-traumatic stress disorder] either as a result of their pre-migration trauma, the circumstances around their arrest and imprisonment or the interaction between the two. Continued deterioration in their mental health is affected also by the nature of, and their mistrust in, the prison regime and the appeals process as well as the underlying and central factor of the indefinite nature of detention. The prison health-care system is unable to meet their health needs adequately. There is a failure to perceive self-harm and distressed behaviour as part of the clinical condition rather than merely being seen as manipulation. There is inadequate provision for complex physical health problems. Their mental health problems are unlikely to resolve while they are maintained in their current situation and given the evidence of repeated interviews it is highly likely that they will continue to deteriorate while in detention. The problems described by the detainees are remarkably similar to the problems identified in the literature examining the impact of immigration detention. This literature describes very high levels of depression and anxiety and eloquently makes the point that the length of time in detention relates directly to the severity of symptoms and that it is detention per se which is causing these problems to deteriorate.” 77. For the purposes of the present proceedings, the Government requested a Consultant Psychiatrist, Dr J., to comment on the above Joint Psychiatric Report. Dr J. was critical of the methodology and conclusions of the authors of the Joint Report. In particular, he wrote (references to other reports omitted): “I would comment that I find many of the assertions made do not bear close inspection. For example in the case of [the first applicant] it was my finding after a careful and detailed assessment that his mental state after imprisonment and then detention in Broadmoor Hospital was, overall, no worse and arguably no better than it had been before he was arrested. Nor do his records suggest initial improvement followed by deterioration in Broadmoor Hospital. I found he deteriorated in HMP Belmarsh [Prison] because he chose to go on hunger strike and that he had a fluctuating course in Broadmoor Hospital despite agreeing to eat, his histrionic behaviour in both places being essentially the same. In his case I found the diagnosis to be one of personality disorder, diagnoses of major depressive disorder, psychosis and PTSD not being sustainable. Moreover, it was my finding that his frequent self-harming was indeed manipulative. ... I am not alone in finding the diagnoses claimed by the authors of this report to be mistaken and have drawn attention in my own report to the scepticism of some others who have reported on [the first and seventh applicants]. It is not the case therefore that there is the consensus of opinion claimed in the report and I note that in both the cases I assessed [the first and seventh applicants], their so-called psychotic symptoms claimed by some reporters and said not to be present before they were detained, were in fact present before they were arrested. An issue I find to be of the greatest concern relates to the tacit acceptance of information gained by self-report. It appears to be accepted by the authors of the report, for example, that three of the detainees had been the victims of detention and torture and all felt themselves seriously threatened prior to migration. Nowhere have I seen any evidence to corroborate these claims or indeed any attempt to check them. As it is the case that immigrants and asylum-seekers need to justify their attempts to gain entry to another country, is it not possible or even probable that some may not always be entirely truthful in what they claim about their past experiences or their current symptoms? Where alleged terrorists are concerned it should be borne in mind that they have denied such allegations in spite of the open and closed evidence against them, which has been considered at the highest level. Surely this should raise doubts about their truthfulness?” 78. On 20 January 2004, SIAC decided that it should, in principle, grant bail to the fifth applicant. The Secretary of State attempted to appeal against this decision but was informed by the Court of Appeal in an interim decision dated 12 February 2004 that it had no jurisdiction to entertain an appeal. 79. SIAC explained its reasons for granting bail in greater detail in a judgment dated 22 April 2004. It held that under the 2001 Act it had a power to grant bail only in an exceptional case, where it was satisfied that if bail were not granted the detainee’s mental or physical condition would deteriorate to such an extent as to render his continued detention a breach of Article 3 of the Convention on grounds of inhumanity, or Article 8 on grounds of disproportionality. 80. SIAC noted that there had been concerns about the fifth applicant’s mental health among prison staff from May 2002, although these concerns had not been communicated to his legal representatives. In December 2003 he had suffered a serious relapse into severe depression with psychotic symptoms, including auditory hallucinations and suicide ideation. A number of psychologists and psychiatrists had examined him, at the request of his legal representatives and at the initiative of the Home Office, and had agreed that he was seriously ill and that his mental health would be likely to improve if he were allowed to go home. SIAC concluded: “We do not think that the threshold has been crossed so that there is a breach of [the fifth applicant’s] human rights. The jurisprudence of the [European Court of Human Rights] emphasises the high threshold which must be crossed and that detention is unlikely to be regarded as disproportionate unless it at least verges on treatment which would constitute a breach of Article 3. But we are satisfied that, if he were not released, there would be such a breach. To permit someone to reach a state whereby he requires treatment in a special hospital or continuous care and attention to ensure he does not harm himself can constitute a breach of Article 8, unless perhaps there is no possible alternative to detention, and probably of Article 3. As we have said, we do not have to wait until that situation exists. Provided that we are persuaded, as we are, that the conditions we impose are sufficient to minimise the risk to the security of the State if [the fifth applicant] is released, we can act as we have. We must emphasise that the grant of bail is exceptional. We are only doing so because the medical evidence is all one way and the detention has caused the mental illness which will get worse. ...” 81. The fifth applicant was, therefore, released on bail on 22 April 2004 on conditions amounting to house arrest. He was not permitted to leave his home address and had to wear an electronic tag at all times. He had no Internet access and a telephone link to the Security Service only. He was required to report by telephone to the Security Service five times a day and allow its agents access to his home at any time. He was not permitted contact with any person other than his wife and child, legal representative and a Home Office-approved doctor or see any visitor except with prior Home Office approval. 82. The declaration of incompatibility made by the House of Lords on 16 December 2004, in common with all such declarations, was not binding on the parties to the litigation (see paragraph 94 below). The applicants remained in detention, except for the second and fourth applicants who had elected to leave the United Kingdom and the fifth applicant who had been released on bail on conditions amounting to house arrest. Moreover, none of the applicants was entitled, under domestic law, to compensation in respect of their detention. The applicants, therefore, lodged their application to the Court on 21 January 2005. 83. At the end of January 2005, the Government announced their intention to repeal Part 4 of the 2001 Act and replace it with a regime of control orders, which would impose various restrictions on individuals, regardless of nationality, reasonably suspected of being involved in terrorism. 84. Those applicants who remained in detention were released on 1011 March 2005 and immediately made subject to control orders under the Prevention of Terrorism Act 2005, which came into effect on 11 March 2005. 85. The Government withdrew the derogation notice on 16 March 2005. 86. On 11 August 2005, following negotiations commenced towards the end of 2003 to seek from the Algerian and Jordanian governments assurances that the applicants would not be ill-treated if returned, the Government served notices of intention to deport on the fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants. These applicants were taken into immigration custody pending removal to Algeria (the fifth, sixth, seventh, ninth, tenth and eleventh applicants) and Jordan (the eighth applicant). On 9 April 2008 the Court of Appeal ruled that the eighth applicant could not lawfully be extradited to Jordan, because it was likely that evidence which had been obtained by torture could be used against him there at trial, in flagrant violation of his right to a fair trial. At the date of adoption of the present judgment, the case was pending before the House of Lords. 87. Under section 3(5) of the Immigration Act 1971 (“the 1971 Act”) the Secretary of State could make a deportation order against a non-national, on the ground that the deportation would be conducive to the public good, for reasons of national security, inter alia. A person who was the subject of a deportation order could be detained pending deportation (the 1971 Act, Schedule 3, paragraph 2). However, it was held in R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 that the power to detain under the above provision was limited to such time as was reasonable to enable the process of deportation to be carried out. Detention was not, therefore, permissible under the 1971 Act where deportation was known to be impossible, whether because there was no country willing to take the person in question or because there would be a risk of torture or other serious ill-treatment to the proposed deportee in his or her country of origin. 88. In July 2000 Parliament enacted the Terrorism Act 2000. As Lord Bingham noted in his judgment in the present case, “this was a substantial measure, with 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism”. “Terrorism” was defined, in section 1 of the Act, as: “... the use or threat of action where – (a) the action falls within subsection (2); (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public; and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause. (2) Action falls within this subsection if it – (a) involves serious violence against a person; (b) involves serious damage to property; (c) endangers a person’s life, other than that of the person committing the action; (d) creates a serious risk to the health or safety of the public or a section of the public; or (e) is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section – (a) ’action’ includes action outside the United Kingdom; (b) a reference to any person or to property is a reference to any person, or to property, wherever situated; (c) a reference to the public includes a reference to the public of a country other than the United Kingdom; and (d) ’the government’ means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” For the purposes of the Act, an organisation was “proscribed” if: “3.(1) ... (a) it is listed in Schedule 2; or (b) it operates under the same name as an organisation listed in that Schedule. (2) Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule. (3) The Secretary of State may by order – (a) add an organisation to Schedule 2; (b) remove an organisation from that Schedule; (c) amend that Schedule in some other way. (4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism. (5) For the purposes of subsection (4) an organisation is concerned in terrorism if it – (a) commits or participates in acts of terrorism; (b) prepares for terrorism; (c) promotes or encourages terrorism; or (d) is otherwise concerned in terrorism.” 89. Part 2 of the Act created offences of membership and support of proscribed organisations; it created offences of fund-raising, use and possession of terrorist funds, entering into an arrangement for the transfer of terrorist funds, money-laundering and failing to disclose suspect money-laundering. There were a number of further substantive offences in Part 4, including offences of weapons training; directing terrorism; possession, without reasonable excuse, of items likely to be useful to a person committing or preparing an act of terrorism; and collection, without reasonable excuse, of information likely to be useful to a person committing or preparing an act of terrorism. By section 62, the Act had extraterritorial scope, in that a person within the jurisdiction of the United Kingdom might be prosecuted for any of the above offences regardless of where the acts in furtherance of those offences were committed. 90. Part 4 of the 2001 Act (see paragraph 12 above), which was headed “Immigration and Asylum”, set out powers which enabled the detention of non-nationals suspected of being international terrorists, even where their deportation was for the time being impossible. The 2001 Act provided, so far as material: “PART 4 IMMIGRATION AND ASYLUM Suspected international terrorists 21. Suspected international terrorist: certification (1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably – (a) believes that the person’s presence in the United Kingdom is a risk to national security; and (b) suspects that the person is a terrorist. (2) In subsection (1)(b) ‘terrorist’ means a person who – (a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism; (b) is a member of or belongs to an international terrorist group; or (c) has links with an international terrorist group. (3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if – (a) it is subject to the control or influence of persons outside the United Kingdom; and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism. (4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it. (5) In this Part – ‘terrorism’ has the meaning given by section 1 of the Terrorism Act 2000 (c. 11); and ‘suspected international terrorist’ means a person certified under subsection (1). (6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable – (a) take reasonable steps to notify the person certified; and (b) send a copy of the certificate to the Special Immigration Appeals Commission. (7) The Secretary of State may revoke a certificate issued under subsection (1). (8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26. (9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under – (a) section 25 or 26; or (b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal). 22. Deportation, removal, etc. (1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of – (a) a point of law which wholly or partly relates to an international agreement; or (b) a practical consideration ... (2) The actions mentioned in subsection (1) are – ... (e) making a deportation order ... (3) Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification. 23. Detention (1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by – (a) a point of law which wholly or partly relates to an international agreement; or (b) a practical consideration ... (2) The provisions mentioned in subsection (1) are – (a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77) (detention of persons liable to examination or removal); and (b) paragraph 2 of Schedule 3 to that Act (detention pending deportation).” Part 4 of the 2001 Act included a provision that the legislation would remain in force for five years only and was subject to an annual affirmative resolution by both Houses of Parliament. 91. SIAC was set up in response to the Court’s judgment in Chahal v. the United Kingdom ([GC], 15 November 1996, Reports of Judgments and Decisions 1996-V). It is a tribunal composed of independent judges, with a right of appeal against its decisions on a point of law to the Court of Appeal and the House of Lords. By section 25 of the 2001 Act: “(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21. (2) On an appeal [SIAC] must cancel the certificate if – (a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b); or (b) if it considers that for some other reason the certificate should not have been issued.” SIAC was required to carry out a first review to ensure that the certificate was still justified six months after the issue of the certificate or six months after the final determination of an appeal against certification, and thereafter at three-monthly intervals. Under section 30 of the 2001 Act, any legal challenge to the derogation under Article 15 of the Convention had also to be made to SIAC. 92. SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also material which, for reasons of national security, cannot (“closed material”). Neither the appellant nor his legal adviser can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the solicitor-general to act on behalf of each appellant. 93. In the certification appeals before SIAC at issue in the present case, the open statements and evidence concerning each appellant were served first, and the special advocate could discuss this material with the appellant and his legal advisers and take instructions generally. Then the closed material would be disclosed to the judges and to the special advocate, from which point there could be no further contact between the latter and the appellant and/or his representatives, save with the permission of SIAC. It was the special advocate’s role during the closed sessions to make submissions on behalf of the appellant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. In respect of each appeal against certification, SIAC issued both an “open” and a “closed” judgment. The special advocate could see both but the detainee and his representatives could see only the open judgment. 94. Section 4 of the 1998 Act provides that where a court finds that primary legislation is in breach of the Convention, the court may make a declaration of incompatibility. Such a declaration does not affect the validity of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made, but special arrangements may be made (section 10) to amend the provision in order to remove the incompatibility (see, further, Burden v. the United Kingdom [GC], no. 13378/05, §§ 21-24 and 40-44, ECHR 2008). 95. The Terrorism Act 2006 came into force on 30 March 2006, creating a number of offences to extend criminal liability to acts preparatory to the terrorist offences created by the Terrorism Act 2000. The new offences were encouragement, dissemination of publications, preparation and training. The offences were designed to intervene at an early stage in terrorist activity and thus prevent the development of more serious conduct. They were also designed to be easier to prove. 96. On 31 October 2007 the House of Lords gave judgment in Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant) [2007] UKHL 46, which concerned a challenge to a non-derogating control order made by the Secretary of State under sections 2 and 3(1)(a) of the Prevention of Terrorism Act 2005. The House of Lords had to decide, inter alia, whether procedures provided for by section 3 of the 2005 Act, involving closed hearings and special advocates, were compatible with Article 6 of the Convention, given that, in the case of one of the appellants, they had resulted in the case against him being in its essence entirely undisclosed, with no specific allegation of terrorism-related activity being contained in open material. The House of Lords was unanimous in holding that the proceedings in question determined civil rights and obligations and thus attracted the protection of Article 6. On the question of compliance, the majority (Baroness Hale, Lord Carswell and Lord Brown) held that although in many cases the special-advocate procedure would provide a sufficient counterbalance where the Secretary of State wished to withhold material upon which she wished to rely in order to establish the existence of reasonable grounds for suspecting that the controlee was or had been involved in terrorism-related activity, each case had to be considered individually. Baroness Hale put it as follows: “65. ... It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been ‘given a meaningful opportunity to contest the factual basis’ for the order. 66. I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special-advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with Article 6. However, with strenuous efforts from all, difficult and time-consuming though it will be, it should usually be possible to accord the controlled person ‘a substantial measure of procedural justice’. Everyone involved will have to do their best to ensure that the ‘principles of judicial inquiry’ are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client’s instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge. 67. The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. ...” Lord Carswell observed: “There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is ... fact-specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of Article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of Article 6.” Lord Brown held as follows: “There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State’s case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at ...), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even ‘a substantial measure of procedural justice’ (Chahal, [cited above] § 131) notwithstanding the use of the special-advocate procedure; ‘the very essence of [his] right [to a fair hearing] [will have been] impaired’ (Tinnelly & Sons Ltd [and Others] and McElduff and Others v. [the] United Kingdom, [cited below] § 72).” Lord Bingham did not dissent but employed different reasoning. He held that it was necessary to look at the process as a whole and consider whether a procedure had been used which involved significant injustice to the controlee; while the use of special advocates could help to enhance the measure of procedural justice available to a controlled person, it could not fully remedy the grave disadvantages of a person not being aware of the case against him and not being able, therefore, effectively to instruct the special advocate. Lord Hoffmann, dissenting, held that once the trial judge had decided that disclosure would be contrary to the public interest, the use of special advocates provided sufficient safeguards for the controlee and there would never in these circumstances be a breach of Article 6. 97. In Secretary of State for the Home Department v. AF [2008] EWCA Civ 1148, the Court of Appeal (Sir Anthony Clark MR and Waller LJ; Sedley LJ dissenting), gave the following guidance, based on the majority opinions in the case of MB (see paragraph 96 above), regarding compliance with Article 6 in control order cases using special advocates (extract from the head-note): “(1) In deciding whether the hearing under section 3(10) of the 2005 Act infringed the controlee’s rights under Article 6 the question was whether, taken as a whole, the hearing was fundamentally unfair to the controlee, or he was not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing was impaired. More broadly, the question was whether the effect of the process was that the controlee was exposed to significant injustice. (2) All proper steps ought to be taken to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting. (3) Where the full allegations and evidence were not provided for reasons of national security at the outset, the controlee had to be provided with a special advocate. In such a case the following principles applied. (4) There was no principle that a hearing would be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there was, the irreducible minimum could, depending on the circumstances, be met by disclosure of as little information as was provided in AF’s case, which was very little indeed. (5) Whether a hearing would be unfair depended on all the circumstances, including the nature of the case, what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be, what steps had been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate was able to challenge it on behalf of the controlee and what difference its disclosure would or might make. (6) In considering whether open disclosure to the controlee would have made a difference to the answer to whether there were reasonable grounds for suspicion that the controlee was or had been involved in terrorist-, if any, information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor would depend upon the particular circumstances. (7) There were no rigid principles. What was fair was essentially a matter for the judge, with whose decision the Court of Appeal would very rarely interfere.” 98. Part 4 of the 2001 Act provided for the creation of a Committee of Privy Counsellors to review its operation. The Committee, under the chairmanship of Lord Newton, reported in December 2003. Having recorded the Home Office’s argument that the threat from al-Qaeda terrorism was predominantly from foreigners, the Newton Committee’s report drew attention to: “... accumulating evidence that this is not now the case. The British suicide bombers who attacked Tel Aviv in May 2003, Richard Reid (‘the Shoe Bomber’), and recent arrests suggest that the threat from UK citizens is real. Almost 30% of Terrorism Act 2000 suspects in the past year have been British. We have been told that, of the people of interest to the authorities because of their suspected involvement in international terrorism, nearly half are British nationals.” Given this evidence, the Newton Committee observed that not only were there arguments of principle against having discriminatory provisions, but there were also compelling arguments of limited efficacy in addressing the terrorist threat. The Newton Committee therefore called for new legislation to be introduced as a matter of urgency which would deal with the terrorist threat without discrimination on grounds of nationality and which would not require a derogation from Article 5 of the Convention. 99. In February 2004 the Government published their response to the Newton Committee’s report. It continued to accept that the terrorist threat “came predominantly, but not exclusively, from foreign nationals” and made the following observation about the Newton Committee’s suggestion that counter-terrorist measures should apply to all persons within the jurisdiction regardless of nationality: “While it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify. Experience has demonstrated the dangers of such an approach and the damage it can do to community cohesion and thus to support from all parts of the public that is so essential to countering the terrorist threat.” The Government also indicated that work was under way to try to establish framework agreements with potential destination countries for the purposes of deportation of terrorist suspects. 100. The Joint Committee has constitutional responsibility in the United Kingdom for scrutinising legislation to ensure that it is compatible with Convention rights. In its Second Report of the Session 2001-02, drawn up very shortly after publication of the Bill which became the 2001 Act, the Joint Committee expressed concern at the potentially discriminatory effect of the proposed measure, as follows: “38. Second, by relying on immigration legislation to provide for the detention of suspected international terrorists, the Bill risks discriminating, in the authorisation of detention without charge, between those suspected international terrorists who are subject to immigration control and those who have an unconditional right to remain in the United Kingdom. We are concerned that this might lead to discrimination in the enjoyment of the right to liberty on the ground of nationality. If that could not be shown to have an objective, rational and proportionate justification, it might lead to actions which would be incompatible with Article 5 of the ECHR [the Convention] either taken alone or in combination with the right to be free of discrimination in the enjoyment of Convention rights under Article 14 of the ECHR[the Convention]. It could also lead to violations of the right to be free of discrimination under Article 26 and the right to liberty under Article 9 of the ICCPR [International Covenant on Civil and Political Rights]. 39. We raised this matter with the Home Secretary in oral evidence. Having considered his response, we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board.” In its Sixth Report of the Session 2003-04 (23 February 2004), the Joint Committee expressed deep concern “about the human rights implications of making the detention power an aspect of immigration law rather than anti-terrorism law” and warned of “a significant risk that Part 4 violates the right to be free of discrimination under ECHR [the Convention] Article 14”. Following the Report of the Newton Committee and the Secretary of State’s discussion paper published in response to it, the Joint Committee returned to this subject in its Eighteenth Report of the Session 2003-04 (21 July 2004), paragraphs 42-44: “42. The discussion paper rejects the Newton Report’s recommendation that new legislation replacing Part 4 [of the 2001 Act] should apply equally to all nationalities including British citizens. It states the Government’s belief that it is defensible to distinguish between foreign nationals and UK nationals because of their different rights and responsibilities. 43. We have consistently expressed our concern that the provisions of Part 4 [of the 2001 Act] unjustifiably discriminate on grounds of nationality and are therefore in breach of Article 14 ECHR [of the Convention]. Along with Lord Newton, we find it extraordinary that the discussion paper asserts that seeking the same power to detain British citizens would be ‘a very grave step’ and that ‘such draconian powers would be difficult to justify’. 44. The interests at stake for a foreign national and a UK national are the same: their fundamental right to liberty under Article 5 ECHR [of the Convention] and related procedural rights. Article 1 of the ECHR [the Convention] requires States to secure the Convention rights to everyone within their jurisdiction. Article 14 requires the enjoyment of Convention rights to be secured without discrimination on the ground of nationality. The Government’s explanation in its discussion paper of its reluctance to seek the same powers in relation to UK nationals appears to suggest that it regards the liberty interests of foreign nationals as less worthy of protection than exactly the same interests of UK nationals, which is impermissible under the Convention.” 101. The CPT visited the detained applicants in February 2002 and again in March 2004. In its report published on 9 June 2005, the CPT was critical of the conditions in which the applicants were held in Belmarsh Prison and Broadmoor Secure Mental Hospital and reported allegations of ill-treatment by staff. It found the regime in Woodhill Prison to be more relaxed. The CPT found that the health of the majority of the detained applicants had declined as a result of their detention, in particular its indefinite character. The CPT stated in its report: “In fact, the information gathered during the 2004 visit reveals that the authorities are at a loss at how to manage this type of detained person, imprisoned with no real prospect of release and without the necessary support to counter the damaging effects of this unique form of detention. They also highlight the limited capacity of the prison system to respond to a task that is difficult to reconcile with its normal responsibilities. The stated objective, in the response to the CPT’s report on the February 2002 visit, of formulating a strategy to enable the Prison Service to manage most appropriately the care and detention of persons held under the 2001 Act, has not been achieved. Two years after the CPT visited these detained persons, many of them were in a poor mental state as a result of their detention, and some were also in poor physical condition. Detention had caused mental disorders in the majority of persons detained under the [2001 Act] and for those who had been subjected to traumatic experiences or even torture in the past, it had clearly reawakened the experience and even led to the serious recurrence of former disorders. The trauma of detention had become even more detrimental to their health since it was combined with an absence of control resulting from the indefinite character of their detention, the uphill difficulty of challenging their detention and the fact of not knowing what evidence was being used against them to certify and/or uphold their certification as persons suspected of international terrorism. For some of them, their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment.” 102. The Government published their response to the CPT’s 2004 report on 9 June 2005. The Government strongly disputed the allegations of ill-treatment by prison staff and pointed out that the detained applicants had at their disposal the remedies provided by administrative and civil law to all prisoners to complain of ill-treatment. The Government’s response continued: “Although the Government respects the conclusions reached by the delegates of the [CPT] based on the observations on the day of visit, it categorically rejects the suggestion that at any point during their detention the [2001 Act] detainees were treated in an ‘inhuman or degrading’ manner that may have amounted to a breach in the United Kingdom’s international human rights obligations. The Government firmly believes that at all times the detainees received appropriate care and treatment in Belmarsh and had access to all necessary medical support, both physical and psychological, from medical support staff and doctors. The Government accepts that the individuals had difficult backgrounds prior to detention, but does not accept that ‘detention had caused mental disorders’. Some of the detainees had mental health issues prior to detention, but that did not stop them engaging in the activities that led to their certification and detention. Mental health issues do not prevent an individual from posing a risk to national security. ... The Government does not accept that those certified under [the 2001 Act] were detained without any prospect of their release. ... ... On no occasion did SIAC, or any other court, find that the conditions of detention breached the absolute obligation imposed upon the Government by Article 3 of [the Convention]. It is the Government’s view that, given the extensive judicial safeguards available to the detainees, the Government would not have been able to maintain the detention of these individuals had the powers breached the detainees’ Article 3 rights in any way. To suggest otherwise would be to ignore the extensive contact the detainees had with the British judicial system and the absolute obligation upon the judiciary to protect against any such breach.” 103. In August 2002 the European Commissioner for Human Rights to the Council of Europe published his opinion on certain aspects of the United Kingdom’s derogation from Article 5 of the Convention and Part 4 of the 2001 Act. In that opinion he expressly criticised the lack of sufficient scrutiny by Parliament of the derogation provisions and questioned whether the nature of the al-Qaeda threat was a justifiable basis for recognising a public emergency threatening the life of the nation: “Whilst acknowledging the obligations of the governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11 2001 cannot, on their own be sufficient to justify derogating from the Convention. Several European States long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown.” The Commissioner continued, with reference to the detention scheme under Part 4 of the 2001 Act: “In so far as these measures are applicable only to non-deportable foreigners, they might appear, moreover, to be ushering in a two-track justice, whereby different human rights standards apply to foreigners and nationals.” 104. On 8 June 2005 the Commissioner published a report arising out of his visit to the United Kingdom in November 2004. He specifically referred to the House of Lords’ decision in the applicants’ case and noted the fact that the Government had not sought to renew the relevant provisions of the 2001 Act in March 2005. He welcomed the decision of the House of Lords, which corresponded with his own previously published opinion, and also welcomed the release of the applicants, emphasising that as a result of his visit he was in a position personally to testify to “the extremely agitated psychological state of many of them”. As a result of interviews which he had conducted with, among others, the Home Secretary, the Lord Chancellor, the Attorney-General, the Lord Chief Justice and the Director of Public Prosecutions, the Commissioner also expressed a conclusion about the availability under the law of the United Kingdom of alternative measures to combat the threat of terrorism: “Terrorist activity not only must but can be combated within the existing framework of human rights guarantees, which provide precisely for a balancing, in questions concerning national security, of individual rights and the public interest and allow for the use of proportionate special powers. What is required is well-resourced policing, international cooperation and the forceful application of the law. It is to be noted, in this context, that in the Terrorist Act 2000, the United Kingdom already has amongst the toughest and most comprehensive anti-terror legislation in Europe.” 105. The Committee’s Concluding Observations on the United Kingdom, dated 10 December 2003, stated at paragraph 17: “17. The Committee is deeply concerned about provisions of the Anti-terrorism, Crime and Security Act which provide for the indefinite detention without charge or trial, pending deportation, of non-nationals of the United Kingdom who are suspected of terrorism-related activities. While acknowledging the State Party’s national security concerns, the Committee recommends that the State Party seek to balance those concerns with the protection of human rights and its international legal obligations. In this regard, the Committee draws the State Party’s attention to its statement of 8 March 2002 in which it underlines the obligation of States to ‘ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin’.” 106. On 24 January 2002 the Council of Europe’s Parliamentary Assembly adopted Resolution 1271 (2002) which resolved, in paragraph 9: “In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights.” In paragraph 12, it also called on all member States to: “... refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).” Apart from the United Kingdom, no other member State chose to derogate from Article 5 § 1 after 11 September 2001. 107. Following its meeting on 14 November 2001 to discuss “Democracies facing terrorism” (CM/AS(2001) Rec 1534), the Committee of Ministers adopted on 11 July 2002 “Guidelines on human rights and the fight against terrorism”, which provided, inter alia: “I. States’ obligation to protect everyone against terrorism States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States’ fight against terrorism in accordance with the present guidelines. II. Prohibition of arbitrariness All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.” 108. In its General Policy Recommendation No. 8 on combating racism while fighting terrorism, published on 8 June 2004, ECRI considered it the duty of the State to fight against terrorism; stressed that the response should not itself encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law; stressed that the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish; noted that the fight against terrorism since 11 September 2001 had in some cases resulted in the adoption of discriminatory legislation, notably on grounds of nationality, national or ethnic origin and religion; stressed the responsibility of member States to ensure that the fight against terrorism did not have a negative impact on any minority group; and recommended States: “... to review legislation and regulations adopted in connection with the fight against terrorism to ensure that these do not discriminate directly or indirectly against persons or group of persons, notably on grounds of ‘race’, colour, language, religion, nationality or national or ethnic origin, and to abrogate any such discriminatory legislation.” 109. Article 4 § 1 of the ICCPR states as follows: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” In spring 1984, a group of thirty-one experts in international law, convened by the International Commission of Jurists, the International Association of Penal law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights and the International Institute of Higher Studies in Criminal Sciences, met in Siracusa (Italy) to consider the above provision, inter alia. Paragraphs 3940 of the resulting “Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights” declare, under the heading “Public emergency which threatens the life of the nation”: “39. A State Party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called ‘derogation measures’) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that: (a) affects the whole of the population and either the whole or part of the territory of the State; and (b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant. 40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.” Paragraph 54 of the Siracusa Principles continues as follows: “54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.” 110. The United Nations Human Rights Committee, in General Comment No. 29 on Article 4 of the ICCPR (24 July 2001), observed in paragraph 2: “Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature.” 111. In Charkaoui v. Minister of Citizenship and Immigration [2007] 1 SCR 350, McLachlin CJ, for the Supreme Court of Canada, observed in paragraph 53: “Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to it.” That right was not absolute and might be limited in the interests of national security (paragraphs 57-58); however, paragraph 64 provides: “... The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?” 112. In Hamdi v. Rumsfeld 542 US 507 (2004), O’Connor J, writing for the majority of the Supreme Court of the United States of America, said (p. 533): “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker [authority cited]. ‘For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified ...’ These essential constitutional promises may not be eroded.” 113. The Council of Europe’s Commissioner for Human Rights, in paragraph 21 of his report of 8 June 2005 (see paragraph 104 above), and the Joint Parliamentary Committee on Human Rights (see paragraph 100 above), in paragraph 76 of its Twelfth Report of the Session 2005-2006, (HL Paper 122, HC 915) had difficulty in accepting that a hearing could be fair if an adverse decision could be based on material that the controlled person has no effective opportunity to challenge or rebut. | 1 |
train | 001-85630 | ENG | CZE | ADMISSIBILITY | 2,008 | HROMJAK v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Josef Hromják, is a Czech national who was born in 1934 and lives in Prostějov. He was represented before the Court by Mr L. Salaj, a lawyer practising in Prostějov. 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 29 April 1997 the applicant and his father lodged an action with the Jeseník District Court (okresní soud) seeking to determine the title to certain real estate. It appears that the proceedings are still pending. On 15 January 2007 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. In a letter of 22 February 2007 the Ministry of Justice informed the applicant that his application had been accepted, that it had been found that his right to a determination of his civil claim within a reasonable time had been violated and that he had been awarded a sum of CZK 72,000 (EUR 2,769) as just satisfaction. On 12 January 2007 the applicant informed the Registry that he had brought a civil action against the Ministry of Justice in the Prague 2 District Court (obvodní soud) under section 15(2) of Act no. 82/1998 as amended seeking to be paid CZK 428,000 (EUR 16,464) as a remainder of his compensation claims which had not been granted by the Ministry. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-107569 | ENG | MKD | ADMISSIBILITY | 2,011 | ADZI-SPIRKOSKA AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Inadmissible | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | The applicants, Ms Gordana Adži-Spirkoska (“the first applicant”), Mr Straso Gorgieski (“the second applicant”), Ms Ilinka Ivanoska (“the third applicant”), Mr Risto Goreski (“the fourth applicant”) and Mr Ilčo Topuzovski (“the fifth applicant”), are Macedonian nationals who were born in 1952, 1956, 1949, 1929 and 1964 respectively and live in Prilep and Skopje. The third and fourth applicants died on 22 April 2006 and 23 August 2010 respectively. Ms Vera Ivanoska, the daughter of the third applicant, and Ms Pandora Trenkovska and Ms Verka Petkovska, the daughters of the fourth applicant, have applied to continue the application in the name of their predecessors and designated the same counsel to represent them. For the sake of convenience, they will be referred to as “the successors of the third and fourth applicants”. The first applicant, a qualified lawyer from Prilep, was granted leave to represent the second, third and fourth applicants. The fifth applicant was represented by Mr Z. Gavriloski, a practising lawyer from Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. In 1956 the confiscation commission of the city of Bitola, the body with authority at the time, confiscated two plots of undeveloped building land from the applicants’ late predecessors in order to construct residential buildings. On 12 September 2000 the first, second, third and fourth applicants instituted restitution proceedings in which they sought restoration of title to the land that remained undeveloped and compensation in return for the remainder. Ten decisions have been given so far, including two decisions by the Supreme and Administrative Courts on appeals on points of law (тужба за управен спор) by the applicants. The most recent decision was given on 31 August 2011, when the restitution commission accepted the applicants’ claim and awarded compensation in return for the confiscated land. The applicants challenged this decision before the Administrative Court. The proceedings are still pending. In July 2001 the fifth applicant brought a civil action against his former employer, seeking compensation for injuries sustained while at work. In 2008 the Supreme Court, deciding upon appeals on points of law, ruled partly in favour of the applicant and awarded him compensation for the non-pecuniary loss sustained. The proceedings are still pending before the Skopje Court of First Instance in respect of the applicant’s claim for pecuniary damage (“the compensation proceedings”). On 17 December 2010 the fifth applicant requested the Supreme Court to find a violation of the “reasonable time” requirement in respect of the compensation proceedings and to award just satisfaction. On 15 February 2011 the Supreme Court found that the compensation proceedings had lasted too long and that they had not yet ended. It set a six-month time-limit for the Skopje Court of First Instance to decide on the applicant’s claim on the merits. It also awarded him compensation in the amount of 120,000 Macedonian denars (MKD – equivalent to about 2,000 euros (EUR)) as just satisfaction for the violation found. It further reimbursed the costs and expenses incurred in the course of these proceedings. The fifth applicant did not appeal against the decision. It became final on 9 March 2011. The amount awarded was paid to the fifth applicant. Under section 35(1)(1) of the 2006 Act, the Supreme Court is competent to decide on appeals against decisions of its panels when so specified by law. Under section 35(6), the Supreme Court is competent to decide on length complaints in proceedings specified by law. Section 36 of the 2006 Act provided that an interested party could apply to the immediately higher court (непосредно повисокиот суд) if he or she considered that there had been a breach by a competent court of the right to a hearing within a reasonable time. The immediately higher court was to deal with the length complaint (постапува по барањето) within six months after the application had been lodged and to decide whether the court below had breached the right in question. The higher court would award just satisfaction to the claimant if it found a violation of the right to a hearing within a reasonable time. The just satisfaction was payable from the court’s budget. The 2006 Act became applicable on 1 January 2007 (section 128). Section 3 of the 2008 Act supplements section 35(6) of the 2006 Act, and provides that the Supreme Court is to decide in accordance with the rules and principles specified in the European Convention and the Court’s case-law. Section 4 of the 2008 Act amends section 36 of the 2006 Act, providing for the exclusive competence of the Supreme Court to determine length-of-proceedings cases. The relevant part of this section reads as follows: “An interested party can use the length remedy while proceedings are pending, but not later than six months after the decision becomes final. The length complaint shall contain: - information about the claimant and his or her representative, - information about the case and proceedings complained of, - an indication of the reasons for the alleged violation of the right to a hearing within a reasonable time, - any claim for just satisfaction and - the signature of the claimant. The Supreme Court shall consider a length complaint meeting the criteria specified in subsections (2) and (3) within six months after it has been lodged and shall decide whether the court below breached the right to a hearing within a reasonable time. In so doing, it shall take into consideration the rules and principles set forth in the European Convention, in particular the complexity of the case, the parties’ behaviour and the conduct of the court in question. If the Supreme Court finds a violation of the right to a hearing within a reasonable time, it may set a time-limit for the court before which the impugned proceedings are pending to determine the right, obligation or criminal responsibility of the claimant and award just satisfaction for the violation found. Just satisfaction is to be paid within three months after the Supreme Court’s decision becomes final.” Section 5 of the 2008 Act adds a new section 36-a, which reads as follows: “After receiving the length complaint, the Supreme Court shall immediately, or within 15 days at the latest, request the first-instance court to forward the case file to it, and if need be, request the higher court to indicate the reasons for the length of the proceedings pending before it. A three-judge panel of the Supreme Court, sitting in private, shall decide on the length remedy. In exceptional cases, the Supreme Court may hear representations from the claimant and from the representative of the court concerned. Within 8 days after receipt, the party concerned may appeal against the panel’s decision before the Supreme Court, which shall decide in accordance with section 35(1)(1).” The 2008 Act entered into force eight days after being published in the Official Gazette (section 9). Section 10 of this Act adds a new section 36-b, by which the Supreme Court must forward a copy of its decision, eight days after its adoption, to the Judicial Budget Council. The latter must request the claimant, within fifteen days at the latest, to submit personal bank account details with a view to receiving payment of the just satisfaction awarded by the Supreme Court. If the claimant does not submit the required information within five days, the amount awarded is to be deposited in a special account of the Judicial Budget Council. It is to be transferred to the claimant’s bank account once the latter has submitted the required information. If the claimant does not submit the relevant account details within a year after the amount was deposited with the Judicial Budget Council, the money is to be returned to the State’s budget. The courts’ budget is an annual assessment of the assets and liabilities of the judiciary and the Academy for training of judges and public prosecutors (“the Academy” – section 2). The courts’ budget is managed by the Judicial Budget Council (section 6). The latter is chaired by the President of the Judicial Council. It is further composed of the Minister of Justice, the Presidents of the Supreme Court, Appeal Courts and two courts of first instance and the Director of the Academy (section 7). In view of the Court’s decision in Šurbanoska and Others v. the former Yugoslav Republic of Macedonia ((dec.), no. 36665/03, 31 August 2010), the “length-of-proceedings” department of the Supreme Court adopted the following recommendations: a) expedite proceedings before the Supreme Court in length-of-proceedings cases and keep their length under six months, as specified in the 2006 Act; b) award just satisfaction in an amount corresponding to the violation found, so that the claimant loses victim status; c) organise the Supreme Court in such a way that it fully applies the Court’s case-law; d) comply fully with the Court’s case-law as regards the amounts awarded by way of just satisfaction in length cases; in this connection the Supreme Court established that the award should not be lower than 66% of the sum awarded by the Court in similar cases; and e) comply fully with the orders issued by the Supreme Court in cases in which it finds a violation of the “reasonable time” requirement, namely payment of just satisfaction and observance of the time-limit that it sets for the courts in question to determine the case on the merits. According to statistics produced by the Supreme Court in April 2011, 828 length-of-proceedings cases have been brought before that court since the 2006 Act entered into force. The court has examined 657 cases, including 10 in 2008, 166 in 2009, 350 in 2010 and 131 until mid-March 2011. A violation of the “reasonable time” requirement has been found in 218 cases, including 33 cases in 2009, 137 cases in 2010 and 48 in 2011. Since September 2010, 119 cases have been decided to the claimants’ significant advantage. These cases have concerned the length of civil, criminal, minor-offence, administrative, insolvency and enforcement proceedings. Decisions on the merits dismissing length complaints have been rendered in 170 cases. The Supreme Court has further rejected 266 length cases as failing to comply with the admissibility requirements. Appeal proceedings have been instituted in 188 cases. The second-instance panel of the Supreme Court has given a decision in nearly all those cases. It has allowed the appeals and awarded compensation in a higher amount than that awarded at first instance in 23 cases; it has dismissed appeals in 78 cases and rejected them in 64 cases. In 480 cases the length of proceedings before the Supreme Court relating to the length remedy has been less than six months; in 130 cases, the proceedings have lasted a year; in 33 cases, they have lasted eighteen months, in 12 cases two years and in only 2 cases more than two years. In 113 of the 131 cases decided so far in 2011, the proceedings before the Supreme Court have lasted less than six months and in 18 cases they have lasted not more than a year. The Supreme Court has awarded just satisfaction in 202 cases. The total amount awarded in these cases is equivalent to EUR 159,100. Since September 2010, the court has awarded compensation in 115 cases, the total amount of which is approximately EUR 99,000. Of the total amount awarded, EUR 105,500 has so far been paid to the claimants. In 152 cases the compensation was paid within three months from the date on which the Supreme Court’s decision awarding compensation had become final; in 36 cases the award was paid with a delay of up to thirty days (in 32 cases the delay was attributable to the State); in 6 cases the payment was made with a delay of between thirty and sixty days; in 8 cases there was a three-month delay; in 9 cases the payment was made with a seven-month delay and lastly, in 7 cases the award was paid with a delay of over a year. In 15 cases the delay was attributable to the claimants. Finally, in 87 cases, 20 of which were decided in 2011, the Supreme Court has also set a deadline of between one and six months for the courts in question to determine the parties’ claims in the substantive proceedings. In 36 cases the courts concerned have complied with the Supreme Court’s order. | 0 |
train | 001-99221 | ENG | RUS | CHAMBER | 2,010 | CASE OF JEHOVAH'S WITNESSES OF MOSCOW AND OTHERS v. RUSSIA | 2 | Violation of Art. 9 read in the light of Art. 11;Violation of Art. 11 read in the light of Art. 9;Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens | 7. The first applicant is the religious community of Jehovah's Witnesses of Moscow (“the applicant community”) established in 1992. The other applicants are members of that community. All of them live in Moscow. 8. The second applicant, Mr Ivan Stepanovich Chaykovskiy, was born in 1955. He has been with the Jehovah's Witnesses since 1977 and is a community elder. 9. The third applicant, Mr Igor Vasilievich Denisov, was born in 1961. He has been a member of the applicant community since 1993. 10. The fourth applicant, Mr Stepan Vasilievich Levitskiy, was born in 1925. He was twice convicted in Soviet times – in 1957 and 1980 – for disseminating Jehovah's Witnesses' religious literature and officially rehabilitated in 1992 as a victim of religious persecution. 11. The fifth applicant, Mr Oleg Nikolaevich Marchenko, was born in 1965. He is a third-generation Jehovah's Witness whose grandparents were exiled to Siberia in 1951 under an order deporting Jehovah's Witnesses. 12. Jehovah's Witnesses have been present in Russia since 1891. They were banned soon after the Russian Revolution in 1917 and persecuted in the Soviet Union. 13. After the USSR Law on Freedom of Conscience and Religious Organisations was enacted in 1990, on 27 March 1991 the RSFSR Ministry of Justice registered the charter of the Administrative Centre of The Religious Organisation of Jehovah's Witnesses in the USSR. 14. On 11 December 1992 the Ministry of Justice of the Russian Federation registered the charter of the Administrative Centre of the Regional Religious Organisation of Jehovah's Witnesses. 15. The applicant community, which is the Moscow branch of the Jehovah's Witnesses, obtained legal-entity status on 30 December 1993 from the Moscow City Justice Department. According to its charter, the purpose of the applicant community was “joint profession and dissemination of [their] faith and carrying on religious activity to proclaim the name of God the Jehovah”. 16. In 1995 the Committee for the Salvation of Youth from Totalitarian Cults (“the Salvation Committee”), a non-governmental organisation aligned with the Russian Orthodox Church, filed a complaint against the members of the applicant community's management with the Savyolovskiy district prosecutor's office in Moscow. It alleged in particular that Jehovah's Witnesses burdened their followers with exorbitant membership dues that put their families in a financially precarious situation and that they incited hatred toward “traditional” religions. 17. On 11 August 1995 the prosecutor's office refused to institute a criminal investigation, finding no breaches of the community's registered charter, the Constitution or other laws. It was also noted that no complaints from private persons or legal entities concerning the activity of the applicant community had been filed. 18. In 1996 the Salvation Committee complained again and the inquiry into the same allegations was reopened. On 21 April 1997 the prosecutor of the Northern District of Moscow discontinued the investigation. Having heard several Jehovah's Witnesses and completed a study of their literature, the prosecutor found that the applicant community did not cause any harm to the health of citizens or their rights and did not incite citizens to refuse to fulfil their civil duties or commit disorderly acts. 19. Following a third complaint by the Salvation Committee, the prosecutor in charge of supervising compliance with laws on inter-ethnic relations in the General Prosecutor's Office ordered the case to be reopened. On 15 September 1997 an investigator with the prosecutor's office of the Northern District of Moscow again discontinued the investigation. She scrutinised in detail the Salvation Committee's allegations concerning the death of a Jehovah's Witness who had refused a blood transfusion and accusations about alienation of family members resulting from their involvement in the religious activity of the applicant community. The investigator established that no harm allegedly caused by the management of the applicant community to other persons could be proven. 20. Following a fourth complaint lodged by the Salvation Committee, the investigation was reopened on 28 November 1997. The complaint was based on the same allegations as the previous ones. On 28 December 1997 the same investigator discontinued the proceedings for the same reasons as those set out in her earlier decision. In particular, she pointed out that “the Committee for the Salvation of Youth's statements are based upon their active hostility towards this particular religious organisation, whose members they [the Committee] deny the mere possibility of exercising their constitutional rights because of their religious beliefs”. 21. The Salvation Committee requested a new investigation for the fifth time. The Moscow City prosecutor's office reopened the case and assigned it to another investigator on 20 March 1998. 22. On 13 April 1998 the new investigator, in charge of particularly important cases in the Northern District of Moscow, terminated the criminal proceedings. Her findings in respect of substantially the same allegations were different, however. She found that Jehovah's Witnesses alienated their followers from their families, intimidated believers and controlled their mind, as well as inciting them to civil disobedience and religious discord. The investigator pointed out that the community acted in breach of Russian and international laws, but that no criminal offence could be established. Accordingly, she discontinued the criminal case but recommended that the prosecutor of the Northern District of Moscow lodge a civil action for the applicant community to be dissolved and its activity banned. 23. On 20 April 1998 the prosecutor of the Northern Administrative District of Moscow filed a civil action for the applicant community to be dissolved and its activity banned. The prosecutor's charges against the applicant community were: (i) incitement to religious discord; (ii) coercion into destroying the family; (iii) encouragement of suicide or refusal on religious grounds of medical assistance to persons in life- or healththreatening conditions; (iv) infringement of rights and freedoms of citizens; and (v) luring teenagers and minors into the religious organisation. 24. On 29 September 1998 hearings before the Golovinskiy District Court of Moscow began. The presiding judge admitted several new witnesses for the prosecution and allowed the Salvation Committee to take part in the proceedings as a third party on the ground that it “defends the rights of citizens”, overruling an objection by the defence. 25. On 18 November 1998 the hearing was adjourned to February 1999 because the prosecutor was not ready. 26. On 15 January 1999 the prosecutor filed a supplementary action based on the same allegations and corroborated by references to quotations from the religious literature of Jehovah's Witnesses. 27. On 9 February 1999 the proceedings resumed. The judge reversed her previous decision and, on a request by the defence, removed the Salvation Committee as third party in the case. The court proceeded to hear witnesses and experts. 28. On 12 March 1999 the court stayed the proceedings. The judge found that contradictions between the expert opinions submitted by the parties could not be resolved and ordered a new expert study of the applicant community's religious beliefs. The court appointed five experts – two in religious studies, two in linguistics and one in psychology – and asked them whether the literature or materials of Jehovah's Witnesses contained indications of incitement to religious discord, coercion into destroying the family or infringements of the rights and freedoms of others. The source material for the study included two volumes of evidence in the civil case, literature and documents of Jehovah's Witnesses, and the Synodal translation of the Bible. 29. On 4 October 2000 the five-expert composite study was completed. On 9 February 2001 the proceedings resumed and on 23 February 2001 the District Court gave judgment. 30. The Golovinskiy District Court heard over forty witnesses and experts and examined religious literature and documents. It scrutinised the experts' report and took their oral testimony. A fifteen-page report by four experts endorsed the prosecutor's allegations, while the fifth expert dissented in a refutation of 139 pages. The court noted that he was the only expert who had ever observed “how Jehovah's Witnesses carry out their preaching work in different countries”, while the four other experts “confirmed that they did not examine anyone belonging to the indicated group [Jehovah's Witnesses or potential members of Jehovah's Witnesses]”. As to the four experts' conclusions, the court also stated: “However, not one of the experts, including ... [the] psychologist, could explain to the court on the basis of what objective information or research they came to this conclusion regarding the influence of the literature of Jehovah's Witnesses on people's perceptions. It is simply the experts' appraisal of this particular religious organisation and is not supported by any actual facts showing incitement to religious discord, infringements of the personality and rights and freedoms of citizens, etc.” 31. The District Court also referred to the conclusions of an expert examination of 15 April 1999 performed by the Expert Council for State Expert Examinations in Religious Studies at the Ministry of Justice. The examination, which was carried out at the request of the Ministry of Justice for the purpose of granting re-registration to the Administrative Centre of the Jehovah's Witnesses in Russia, found, with certain minor reservations concerning blood transfusion, that Jehovah's Witnesses' teachings inflicted no harm on citizens. The District Court also had regard to the fact that in 1998-2000 over 350 religious entities of Jehovah's Witnesses had obtained State registration in other Russian regions. 32. The District Court assessed the allegations advanced by the prosecutor and found that none of them had been based on any objectively verifiable facts. The court's examination of testimony by the prosecutor's witnesses who spoke in support of the allegation of coercion into destroying the family established that “the testimonies simply show the stand relatives take when a member of their family becomes a Jehovah's Witness and when it is unacceptable from the relatives' standpoint”. 33. The District Court determined that the other allegations were likewise unfounded: “Facts indicating deliberate incitement to religious discord, discrimination, hostility or violence, coercion into destroying the family, infringements of the personality and rights and freedoms of citizens ... were not adduced by the prosecutor or established by the court... ...[T]he court came to the conclusion that there is no basis for the dissolution and banning of the activity of the religious community of Jehovah's Witnesses in Moscow, since it has not been established that this community in Moscow violates the Russian Constitution or Russian laws, incites religious discord, coerces members into destroying the family, infringes the personality or rights or freedoms of citizens, encourages [others] to commit suicide or to refuse medical care for individuals who are in a life- or health-threatening condition for religious reasons.” 34. On an appeal by the prosecutor, on 30 May 2001 the Moscow City Court quashed the judgment of 23 February 2001 and remitted the claim for a fresh examination by a different bench. The City Court held that the District Court the existing expert opinions. 35. On 1 October 1997 a new Law on Freedom of Conscience and Religious Associations (“the Religions Act”) entered into force. It required all religious associations that had previously been granted legal-entity status to bring their articles of association into conformity with the Act and obtain re-registration from the competent Justice Department. 36. On 29 April 1999 the Ministry of Justice of the Russian Federation re-registered the Administrative Centre of the Religious Organisation of Jehovah's Witnesses in Russia as a centralised religious organisation. 37. On 20 October 1999 the first application for re-registration of the applicant community was lodged with the Moscow Justice Department. On 17 November 1999 the Moscow Justice Department refused to examine the application on the ground that some documents were missing, without specifying which documents these were. 38. On 7 December 1999 and 29 May 2000 a second and third application for re-registration were filed, both of which were rejected by the Moscow Justice Department on the same ground. 39. On 16 October 2000 the second applicant, Mr Chaykovskiy, sent a written enquiry to the Moscow Justice Department asking which documents were missing. On the same day he brought an action against the Moscow Justice Department before the Presnenskiy District Court of Moscow, seeking a court order to oblige the Moscow Justice Department to consider the third application. The court set a hearing date for 22 November 2000 and requested the Moscow Justice Department to provide a response by 23 October 2000. 40. On 23 October 2000 the deputy head of the Moscow Justice Department informed the applicant community that it had failed to submit the original charter and registration certificate of 1993. He also informed the applicants that he was under no legal obligation to specify the missing documents. 41. On 25 October 2000 the applicants filed a fourth application, which included the original charter and registration certificate. On 24 November 2000 the Moscow Justice Department issued the first formal refusal of re-registration. It referred to two allegedly incorrect wordings in the submitted documents: the Moscow community had “adopted”, rather than “approved” its charter and the organisation had indicated its “legal address” only, but no “location”. 42. On 12 December 2000 the fifth application was filed, in which the two required wordings were used. This was the last application because on 31 December 2000 the time-limit for submitting applications for re-registration expired. 43. On 12 January 2001 the Moscow Justice Department issued the second formal refusal of re-registration, in respect of the fifth application. It based its decision on the fact that the proceedings to have the applicant community dissolved and its activity banned were pending before the Golovinskiy District Court of Moscow. 44. On 11 January 2001 the fifth applicant, Mr Marchenko, as an individual and founding member of the Moscow community, filed a complaint with the Kuzminskiy District Court of Moscow against the Moscow Justice Department's first refusal of 24 November 2000. The court stayed the proceedings pending a decision of the Presnenskiy District Court. 45. On 11 April 2001 the third applicant, Mr Denisov, filed a complaint with the Butyrskiy District Court of Moscow against the Moscow Justice Department's second refusal of 12 January 2001. The court asked for official information from the Golovinskiy District Court about the proceedings to dissolve the applicant community. 46. On 14 September 2001 the Kuzminskiy District Court of Moscow dismissed the fifth applicant's complaints, finding that the refusal of re-registration restricted only the rights of the Moscow community, and not those of the fifth applicant himself. On 10 December 2001 the Moscow City Court upheld the judgment on appeal. 47. On 12 October 2001 the Butyrskiy District Court of Moscow dismissed the third applicant's claim. The court held that, pursuant to section 27 § 3 of the Religions Act, re-registration could not be granted to organisations that might be liquidated or banned pursuant to section 14 of the Religions Act. The court added that the third applicant's religious rights were not restricted by the refusal, which had only entailed legal consequences for the Moscow community as a legal entity. On 20 February 2002 the Moscow City Court upheld the judgment on appeal. 48. On 16 August 2002 the Presnenskiy District Court of Moscow allowed the action in part. The court found that the Moscow Justice Department had wrongly requested the original documents, copies of which had been available on file. It held that the Moscow Justice Department's reference to ongoing proceedings before the Golovinskiy District Court was inadmissible because it had first invoked this argument before the court and had never referred to it as a ground for its earlier refusals. The court declared the Moscow Justice Department's refusals unlawful but did not order re-registration of the applicant community on the ground that new application forms for religious organisations had been introduced and that the applicant community had to submit a fresh application for registration. 49. On an appeal by the applicant community, on 2 December 2002 the Moscow City Court upheld the decision of 16 August 2002. It decided that the application for registration could not be processed, not only because of the newly introduced application forms, but also with regard to the ongoing proceedings in the Golovinskiy District Court. 50. On 30 October 2001 a new round of proceedings began in the Golovinskiy District Court under a new presiding judge. On 9 November 2001 the hearing was adjourned. 51. Following the adjournment, the community of Jehovah's Witnesses in Moscow collected 10,015 signatures on a petition to protest against the prosecutor's claim that she was protecting the rights of the community members. Copies of the petition were sent to the District Court, the President, and the Prosecutor General of the Russian Federation. 52. On an unspecified date in 2001 the District Court ordered a new composite psycho-linguistic expert study of the applicant community's literature and teachings. The proceedings were stayed pending its completion. 53. On 22 January 2004 the composite study was completed and its findings made available to the court. 54. Following several oral hearings, on 26 March 2004 the Golovinskiy District Court of Moscow decided to uphold the prosecution's claim, to dissolve the applicant community and to impose a permanent ban on its activities. 55. The District Court found the applicant community responsible for luring minors into religious associations against their will and without the consent of their parents (section 3 § 5 of the Religions Act) and for coercing persons into destroying the family, infringing the personality, rights and freedoms of citizens; inflicting harm on the health of citizens; encouraging suicide or refusing on religious grounds medical assistance to persons in life- or health-threatening conditions; and inciting citizens to refuse to fulfil their civil duties (section 14 § 2). However, the court found the applicant community not liable for extremist activity in the form of inciting religious discord with calls for violent acts (section 14 § 2). Likewise, it found unproven the allegation that the applicant community had collected contributions from its members for its benefit. 56. Regarding the allegation of “coercion into destroying the family,” the District Court relied on the statements by seven family members of Jehovah's Witnesses – five of which were members of the Salvation Committee – who had been unhappy about their relatives' abidance by the religious norms, their active involvement in the applicant community and their estrangement from non-religious family members. Thus, one husband had blamed the applicant community for the collapse of his family life, claiming that since “his wife [had] joined the Jehovah's Witnesses, she fulfil[led] all their orders, [he] c[ould] not discuss anything with her, or even watch TV with her because of her comments on everybody, including the leadership of the country and the Orthodox Church”. Other witnesses complained that their adult children or, in one case, the daughter-in-law had spent less time caring for elderly relatives because they had been constantly busy within the community. The District Court further relied on the majority opinion of the expert study of 4 October 2000 which determined that “the texts of Jehovah's Witnesses do not contain direct coercion into destroying the family but apply and propose for application direct psychological pressure which risks causing the destruction of families”. Assessing the opinion by the dissenting expert and the findings of the new study of 22 January 2004, which found no coercion into destroying the family, the District Court considered that these experts had limited the scope of their inquiry to publicly available literature of Jehovah's Witnesses and had not analysed the “actual activity of the Moscow community” or implementation of the religious commandments and recommendations “in real life” and their influence on family relations. The District Court rejected statements by the witnesses for the defence who had Jehovah's Witnesses in their families and the conclusions of a sociological study of 995 community members, randomly selected, conducted by the Department of Family Sociology at the Moscow State University on the ground that it had been based on the lists of respondents supplied by the community itself and failed to “report a single instance of an internal family confrontation which objectively existed”. 57. As to the charge of infringement of the personality, rights and freedoms of citizens, the District Court firstly found a violation of the right to privacy in that the applicant community determined the place and nature of work of its members, recommended that they engage in part-time employment so as to have time for preaching, prohibited them from celebrating holidays or birthdays, and required them to preach door to door, thus also invading other people's privacy. As evidence of attempts to interfere with other people's private life, the District Court referred to the criminal conviction of a Mr K. for beating a female community member who had offered religious literature to his wife at their home. Moreover, in the District Court's view, the applicant community violated its members' right to a free choice of occupation as it recommended that they engage in part-time employment and provided applications for voluntary service at Bethel, the community centre near St Petersburg, where they only received a monthly living allowance and no salary. 58. The District Court found a violation of the constitutional guarantee of equality between parents in relation to the upbringing and education of children (Article 38 of the Constitution) because some parents involved their children in the religious activity of the applicant community without the permission of the other parent, a non-member of the community. It relied on the fact that there were pending custody disputes between parents in Moscow courts where religious education had been in issue. It noted that where a Witness parent had been represented in the custody dispute by a community-retained lawyer, this amounted to “a manifestation of interest in the outcome of the cases of the community itself and an interference with the family and private affairs of its members”. The District Court also relied on the opinions of three psychiatrist witnesses for the prosecution who stated that “the literal following of the Bible principles, as practised by Jehovah's Witnesses, restricted the person's independent thinking ... and arrested psychological development”. In their view, a child who did not celebrate holidays would become “a social outcast” and the community's teachings “hindered the development of patriotic feelings and love for the Motherland”. 59. The District Court found that the applicant community violated the right to freedom to choose one's religion by resorting to active proselytising and “mind control”. According to the prosecution experts, Jehovah's Witnesses were set apart from traditional religions because of the “theocratic hierarchy of the community”, “their striving to integrate families into the life of a totalitarian non-secular collective” and “military-like discipline in domestic life”. The District Court accepted the opinions of the prosecution experts and rejected the contrary conclusion in the expert study that the defence expert psychiatrist had conducted of 113 community members on the grounds that “participants had been selected from lists supplied by the organisations” and that the study “only concerned the community members whereas their relatives had not been examined”. The District Court also considered that the petitions signed by the community members in its support had been “evidence of the pressure that the community exercised on its members”. 60. Ruling on the charge of “encouragement of suicide or the refusal of medical assistance on religious grounds”, the District Court found that under the influence of the applicant community its members had refused transfusions of blood and/or blood components even in difficult or lifethreatening circumstances. That finding was based on the following evidence: the prohibition on blood transfusion contained in the literature of the applicant community, the “No Blood” card distributed within the community for the benefit of its members, testimonies by community members who confirmed carrying such cards, the existence of the Hospital Liaison Committee with the applicant community, and stories of patients who had refused a blood transfusion on religious grounds and whose refusal had been noted in their medical records. The District Court also had regard to a letter from the Moscow Health Protection Department that listed a number of instances in which patients had refused blood transfusions for themselves and, in one case, in respect of a newborn child. Even though the medical outcome of those cases was not specified, the District Court held that the proven fact of damage to the health of at least one individual was a sufficient ground for terminating the activities of the Moscow community. It further noted the opinions of medical experts who clarified that bloodless surgery was a prospective trend in medicine but that in case of certain diseases the transfusion of blood or its components was still indispensable. Finally, in the District Court's view, the “No Blood” card contravened the patient's right to take medical decisions for himself by delegating that right – in the eventuality of his being unconscious – to his fellow believers. 61. As to harming the health of citizens, the District Court found that, in addition to the prohibition on blood transfusion, the activities of the applicant community had had a “negative influence on the mental state and mental health of the followers”. This assessment rested on opinions of nonWitness family members who testified that they had seen “sudden and negatives changes of personality” in their relatives who had joined the applicant community and that many participants at religious meetings of Jehovah's Witnesses had “cried” and had complained thereafter “about colossal emotional exhaustion”. 62. As to luring minors into the religious association, the District Court found, on the basis of statements by two non-Witness parents, that where a Witness parent involved the child in the activities of the applicant community, there was an encroachment on the child's freedom of conscience and the joint right of parents to participate in the child's upbringing. 63. Finally, the District Court found that the applicant community's literature incited citizens to “refuse to fulfil their civil duties.” This included refusal to serve in the army and to perform alternative service and promotion of “a disrespectful attitude towards State emblems – the flag and the national anthem”, as well as a prohibition on celebrating State holidays. 64. The District Court held that the interference with the applicant community's rights was justified, prescribed by law and pursued a legitimate aim because the applicant community had “violated rights and freedoms of citizens, and its activity led to the destruction of families, encroachments on the fundamental rights and freedoms of citizens and calls to refuse to perform duties to society... Taking into account that the [applicant] community violated constitutional rights and freedoms of citizens, the contemplated restriction on its rights and termination of its activity is justified and proportionate to the constitutionally significant aims”. 65. The applicant community was ordered to bear the costs of the expert studies of 4 October 2000 and 22 January 2004 and to pay costs of 102,000 Russian roubles to the State. 66. The applicant community appealed, claiming, in particular, that the interference with its right to freedom of religion was not justified from the standpoint of Articles 9 and 11 of the Convention. It also invoked Articles 6, 10, 14 and 17 of the Convention. 67. On 16 June 2004 the Moscow City Court dismissed the applicants' appeal in a summary fashion and upheld the judgment of the Golovinskiy District Court, endorsing its reasons. 68. The “No Blood” card referred to in the proceedings is a pre-printed foldable card that bears the words “No Blood” in capital letters on the front page and empty fields to be filled out concerning the person(s) to be contacted in case of emergency and the holder's allergies, diseases and medicine(s). The text inside the card reads as follows: “MEDICAL DIRECTIVE / RELEASE FROM LIABILITY I, [name], have filled out this directive as an official statement of my will. The instructions contained therein reflect my firm and conscious decision. I direct that under no circumstances – even if doctors consider it necessary to save my life or health – shall any blood transfusion be performed on me ... I consent to the use of blood substitutes, hemodiluting solutions... or bloodless methods of treatment. By this legal directive I exercise my right to consent to medical treatment or refuse it in accordance with my principles and convictions. I am a Jehovah's Witness and issue this directive in pursuance of the Biblical precepts... I release doctors, anaesthetists, hospital and medical personnel from liability for any consequences of my refusal of blood provided that I have been given full alternative qualified medical assistance. Should I be unconscious, the person listed on the reverse side of the card [emergency contacts] may represent me before others, acting in accordance with this directive. [Date, signature, address, phone number, and signatures of two witnesses].” 69. Article 28 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, to freely choose, have and share religious and other beliefs and manifest them in practice. 70. Article 30 provides that everyone shall have the right to freedom of association. 71. Article 38 establishes that maternity, childhood and the family shall be protected by the State. The parents have equal rights and obligations with regard to providing care for children and their upbringing. 72. On 1 October 1997 the Federal Law on the Freedom of Conscience and Religious Associations (no. 125-FZ of 26 September 1997 – “the Religions Act”) entered into force. 73. The Religions Act prohibits the involvement of minors in religious associations, as well as the religious education of minors against their will and without the consent of their parents or guardians (section 3 § 5). 74. The founding documents of religious organisations that had been established before the Religions Act were to be amended to conform to the Act and submitted for re-registration. Until so amended, the founding documents remained operative in the part which did not contradict the terms of the Act (section 27 § 3). Re-registration of religious organisations was to be completed by 31 December 2000 (section 27 § 4, with subsequent amendments). 75. The list of documents required for (re-)registration was set out in section 11 § 5 and read as follows: “— application for registration; — list of founders of the religious organisation indicating their nationality, place of residence and dates of birth; — charter (articles of association) of the religious organisation; — minutes of the constituent assembly; ... — information on the address (location) of the permanent governing body of the religious organisation at which contact with the religious organisation is to be maintained...” 76. Section 12 § 1 stated that (re-)registration of a religious organisation could be refused if: “— the aims and activities of a religious organisation contradict the Russian Constitution or Russian laws – with reference to specific legal provisions; — the organisation has not been recognised as a religious one; — the articles of association or other submitted materials do not comply with Russian legislation or contain inaccurate information; — another religious organisation has already been registered under the same name; — the founder(s) has (have) no capacity to act.” 77. Section 14 § 2 (as amended on 29 June 2004) provides for the following grounds for dissolving a religious organisation by judicial decision and banning its activity: “— breach of public security and public order; — actions aimed at engaging in extremist activities; — coercion into destroying the family unit; — infringement of the personality, rights and freedoms of citizens; — infliction of harm, established in accordance with the law, on the morals or health of citizens, including by means of narcotic or psychoactive substances, hypnosis, or committing depraved and other disorderly acts in connection with religious activities; — encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life- or health-threatening conditions; — hindrance to receiving compulsory education; — coercion of members and followers of a religious association and other persons into alienating their property for the benefit of the religious association; — hindering a citizen from leaving a religious association by threatening harm to life, health, property, if the threat can actually be carried out, or by application of force or commission of other disorderly acts; — inciting citizens to refuse to fulfil their civil duties established by law or to commit other disorderly acts.” 78. Section 27 § 3 establishes that an application for re-registration must be refused if there are grounds for dissolving the religious organisation and banning its activity as set out in section 14 § 2. 79. Under the Religions Act, the following rights may be exercised solely by registered religious organisations: the right to establish and maintain religious buildings and other places of worship or pilgrimage (section 16 § 1); the right to manufacture, acquire, export, import and distribute religious literature, printed, audio and video material and other religious articles (section 17 § 1); the right to create cross-cultural organisations, educational institutions and mass media (section 18 § 2); the right to establish and maintain international links and contacts for pilgrimages, conferences and so on, including the right to invite foreign nationals to the Russian Federation (section 20 § 1); the right to own buildings, plots of land, other property, financial assets and religious artefacts, including the right to have municipal and State property transferred to them free of charge for religious purposes and the immunity of such property from legal charge (section 21 §§ 1 to 5); the right to hire employees (section 24). 80. In addition, the following rights are explicitly reserved to registered religious organisations, to the exclusion of other non-religious legal entities: the right to found companies publishing religious literature or producing articles for religious services (section 17 § 2); the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff (section 19 § 1); and the right to invite into the Russian Federation foreign nationals planning to engage in professional religious activities, including preaching (section 20 § 2). 81. A citizen or his or her legal representative may refuse medical assistance or require that it be terminated, save in the circumstances listed in Article 34. In that case the possible consequences of such refusal should be presented in an accessible form to the citizen or his or her legal representative. The refusal must be noted in the medical record and countersigned by the citizen and a medical specialist (Article 33 §§ 1-2). 82. If the parents or guardians of a child below fifteen years of age refuse medical assistance which is necessary for saving the child's life, the medical institution may apply to a court for the protection of the child's interests (Article 33 § 3). 83. Medical assistance shall be provided without the consent of the individuals concerned if they suffer from highly contagious diseases, grave mental disorders or if they have committed a criminal offence and been ordered to follow medical treatment by a judicial decision (Article 34). 84. On 14 November 2000 the Supreme Court of the Tatarstan Republic upheld at final instance a judgment of the lower court by which the prosecutor's request to liquidate the local organisation of Jehovah's Witnesses had been refused. One of the grounds advanced by the prosecutor in support of the liquidation claim was that a Witness mother had refused a blood transfusion for her child. The Supreme Court noted that the mother had refused a blood transfusion but had been in favour of blood substitutes which had been successfully used during surgery. It also pointed out that the teachings of Jehovah's Witnesses did not require believers to refuse blood but let everyone make an independent decision on that issue. 85. In 1990 the Ontario Supreme Court in Canada upheld a decision of the lower court to hold a medical doctor liable for administering blood transfusions to an unconscious patient carrying a card stating that she was a Jehovah's Witness and, as a matter of religious belief, rejected blood transfusions under any circumstances (Malette v. Shulman 72 O.R. 417). It held, in particular, as follows: “25... The principles of self-determination and individual autonomy compel the conclusion that the patient may reject blood transfusions even if harmful consequences may result and even if the decision is generally regarded as foolhardy... To transfuse a Jehovah's Witness, in the face of her explicit instructions to the contrary, would, in my opinion, violate her right to control her own body and show disrespect for the religious values by which she has chosen to live her life... 34 The state undoubtedly has a strong interest in protecting and preserving the lives and health of its citizens. There clearly are circumstances where this interest may override the individual's right to self-determination. For example, the state may, in certain cases, require that citizens submit to medical procedures in order to eliminate a health threat to the community... 35 The state's interest in preserving the life or health of a competent patient must generally give way to the patient's stronger interest in directing the course of her own life. As indicated earlier, there is no law prohibiting a patient from declining necessary treatment... Recognition of the right to reject medical treatment cannot, in my opinion, be said to depreciate the interest of the state in life or in the sanctity of life. Individual free choice and self-determination are themselves fundamental constituents of life. To deny individuals freedom of choice, with respect to their health care, can only lessen and not enhance the value of life...” 86. A 1992 landmark case from the United Kingdom involved an adult daughter of a Jehovah's Witness who had been prevailed upon by her mother to refuse blood transfusions for religious reasons (In re T. (Adult: Refusal of Treatment) 3 Weekly Law Reports 782 (Court of Appeal)). Lord Donaldson gave the following summary of his opinion: “1. Prima facie every adult has the right and capacity to decide whether or not he will accept medical treatment, even if a refusal may risk permanent injury to his health or even lead to premature death. Furthermore, it matters not whether the reasons for the refusal were rational or irrational, unknown or even non-existent. This is so notwithstanding the very strong public interest in preserving the life and health of all citizens. However, the presumption of capacity to decide, which stems from the fact that the patient is an adult, is rebuttable... 5. In some cases doctors will not only have to consider the capacity of the patient to refuse treatment, but also whether the refusal has been vitiated because it resulted not from the patient's will, but from the will of others. It matters not that those others sought, however strongly, to persuade the patient to refuse, so long as in the end the refusal represented the patient's independent decision. If, however, his will was overborne, the refusal will not have represented a true decision. In this context the relationship of the persuader to the patient – for example, spouse, parents or religious adviser – will be important, because some relationships more readily lend themselves to overbearing the patient's independent will than do others...” 87. In United States law, the doctrine of informed consent required for any kind of medical treatment has been firmly entrenched since 1914 when Justice Cardozo, on the Court of Appeals of New York, described this doctrine as follows: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault” (Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92). The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment (Cruzan v. Director, MDH, 497 U.S. 261 (1990)). The following summary of the relevant case-law can be found in the case of Fosmire v. Nicoleau (75 N.Y.2d 218, 551 N.E.2d 77, 551 N.Y.S.2d 876 (1990): “The State has a well-recognized interest in protecting and preserving the lives of its citizens. ... [A] distinction should be drawn between the State's interest in protecting the lives of its citizens from injuries by third parties, and injuries resulting from the individual's own actions (see, e.g., Public Health Trust v. Wons, 541 So.2d 96, 98 [Fla.1989, Ehrlich, Ch. J., concurring]). When the individual's conduct threatens injury to others, the State's interest is manifest and the State can generally be expected to intervene. But the State rarely acts to protect individuals from themselves, indicating that the State's interest is less substantial when there is little or no risk of direct injury to the public. This is consistent with the primary function of the State to preserve and promote liberty and the personal autonomy of the individual (Rivers v. Katz, supra). ... The State will intervene to prevent suicide ... but merely declining medical care, even essential treatment, is not considered a suicidal act or indication of incompetence (Matter of Storar, supra, 52 N.Y.2d at 377-378, n. 6, 438 N.Y.S.2d 266, 420 N.E.2d 64).” 88. The right of an individual to refuse blood transfusions on religious grounds and to be compensated in damages if such transfusion has been carried out against the patient's wishes has also been upheld by courts in other jurisdictions (see, for example, Phillips v. Klerk, Case No. 19676/82; Supreme Court of South Africa [1983]; Bahamondez, Marcelo v. Medida Cautelar, Corte Suprema de Justicia de la Nación (Argentina, 6 April 1993); Sentence No. 166/1996 in case of Mr Miguel Angel, Constitutional Court of Spain, 28 October 1996; Ms A. and her heirs v. Dr B. and Institute of Medical Science, Case No. 1998 (O) Nos. 1081, 1082, 29 February 2000, Supreme Court of Japan). 89. The relevant part of the Report by the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee, doc. 9396, 26 March 2002) on the honouring of obligations and commitments by the Russian Federation stated: “95. The Russian Constitution safeguards freedom of conscience and of religion (article 28); the equality of religious associations before the law and the separation of church and state (article 14), and offers protection against discrimination based on religion (article 19). The law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new federal law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions. 96. ...In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many articles of the 1997 law “On Freedom of Conscience and Religious Associations” do not meet Russia's international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended. ... 98. According to the regulations by the Ministry of Justice, - responsible for the implementation of the law on freedom of conscience and religious associations -, religious organisations established before the law came into force (26 September 1997) had to re-register before 31 December 2000. 99. The registration process was finally completed on 1 January 2001 as the State Duma decided to extend the deadline twice. About 12 000 religious organisations and groups have been registered, and only 200 were refused their registration, most of them because they failed to produce a complete file. Many others have, for a variety of reasons, failed to register. The Minister of Justice, Mr Chaika strongly rejected allegations that the Orthodox Church had exerted pressure on the Ministry to prevent some religious organisations from obtaining their registration. Mr Chaika also indicated that experts of the Ministry had “closely examined” the status of the Salvation Army and the Jehovah's Witnesses, and had come to the conclusion that nothing prevented the latter's' registration at the federal level. ... 101. Indeed, there have been cases where, even if a religious organisation had re-registered nationally, local authorities created obstacles. This has especially been the case with the Jehovah's Witnesses, whose Moscow congregation has long been the target of civil and criminal proceedings designed to prevent its activities. 102. The Jehovah's Witnesses were registered at federal level in 1999, and its 360 communities have also been registered throughout Russia. Nevertheless, the community in Moscow was forced completely underground and prevented from possessing properties and places of worship. The Moscow civil trial against Jehovah's Witnesses (since 1995) has been considered by many as an important test case. The co-rapporteurs thought then that the Moscow case has come to an end with a judgment issued on 23 February 2001, dismissing the charges against Jehovah's Witnesses. However, on 30 May 2001, the Moscow City Court set aside this ruling and ordered the Golovinskiy District Court to hear the case once again. The retrial started on 30 October 2001. Until a definitive ruling is reached, Jehovah's Witnesses in Moscow will be without registration and unable to profess their faith without hindrance. The co-rapporteurs regard the length of the judicial examination in this case as an example of harassment against a religious minority and believe that after six years of criminal and legal proceedings the trial should finally be halted.” 90. Resolution 1277 (2002) on the honouring of obligations and commitments by the Russian Federation adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xiv. the Assembly regrets the problems of the Salvation Army and Jehovah's Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end; ...” | 1 |
train | 001-85803 | ENG | GBR | ADMISSIBILITY | 2,008 | BENJAMIN v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Peter Benjamin, is a British national who was born in 1947 and lives in London. 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 18 November 1999. On 1 October 2000, the applicant made a claim for widows’ benefits. On 11 October 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On an unspecified date the applicant made a request for reconsideration. On 23 November 2000 his claim was reconsidered but the decision remained unchanged. 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 | 001-109003 | ENG | SWE | ADMISSIBILITY | 2,012 | H.N. AND OTHERS v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were born in 1969, 1995, 1998, 2004, 2006 and 2007 respectively and are currently in Sweden. The applicants arrived in Sweden in May 2007 and applied for asylum and residence permits. Before the Migration Board (Migrationsverket) they essentially submitted the following. The first applicant had worked as a teacher. In December 2006 the first applicant, her sister and her adopted daughter had been raped in her home by five unknown men and at the same time a hand grenade had been thrown at her husband, P. The incident had taken place a few months after the couple had started enquiring of the authorities how it was that a man, G., who had been convicted of abusing their daughter A.B. (the third applicant) in 2000, had been released before serving his entire sentence. The authorities had told them to stop asking questions about the matter and shortly thereafter P. had started receiving telephone threats to the effect that the family would be hurt if they did not stop asking about G. The first applicant and P. had also suspected that P.’s phone was tapped. The first applicant suspected that G. had been released early from prison in order to spy on the FNL (Forces Nationales de Libération, at the time a rebel group) for the Government, for which reason the authorities would want to cover up his release by silencing the first applicant and her family. The first applicant added that P. and their adopted daughter had left Burundi in July 2007 due to continued threats and were currently in Angola. The applicants were convinced that, if returned to Burundi, they would be killed by those who had threatened them. Moreover, the first applicant was worried about how she would be able to protect B.B. (the sixth applicant) from it becoming known that she might be the result of the rape. The applicants submitted their passports as well as two medical certificates; one issued on 6 February 2000 which stated that the third applicant had been receiving care following sexual abuse and the other issued on 20 December 2006 which stated that the first applicant, her sister and adopted daughter had received care following a rape. On 25 October 2007 the Migration Board rejected the application. It did not question that the first applicant, her sister and adopted daughter had been the victims of rape in December 2006. However, it found it unsubstantiated that men from the governing party had been responsible for the rapes and the threats against the family. It also considered that it was merely speculation by the first applicant that P.’s telephone had been tapped or that G. had been released early to work as a spy for the Government, as she had presented nothing to show that this was actually the case. In the Board’s view, having regard to what the first applicant had said during the interviews, it rather appeared as if the rapes were acts of revenge on the part of G., carried out by private persons connected to G. Here the Board noted that the first applicant had stated that they had reported the rapes in December 2006 to the police and that the police had commenced an investigation. It further observed that although sexual violence was a problem in Burundi, the number of rapes had decreased during 2006 while there was an increase in reports to the police concerning rape. Moreover, G. had been prosecuted and convicted of the abuse of the third applicant, which indicated that the Burundian authorities were willing and able to deal with the problem. Consequently, the Board concluded that the applicants were not in need of protection in Sweden. The Board also took into account that the case included five minor children, of whom the sixth applicant had been born prematurely in Sweden. However, she was developing well and there was no indication that there would be problems for her in the future due to the uncertainty as to the identity of her father. In conclusion, the Board considered that there were no exceptional reasons to let the applicants remain in Sweden. The applicants appealed to the Migration Court (Migrationsdomstolen), relying on the same grounds as previously and adding that the police report concerning the rapes had not led to anything and that the authorities would not be able to protect them from their assailants. The first applicant stressed that the family had had a good life before the attacks and that they would not have left the country if they had not been forced to. From the way her assailants had spoken to her during the attack, she had understood that they were Hutus. On 19 February 2008, after having held an oral hearing, the Migration Court rejected the appeal. Like the Migration Board, it first noted that the abuse of the third applicant had been investigated and the assailant tried and convicted. Moreover, the police were investigating the rapes of the first applicant, her sister and adopted daughter. Thus, the Burundian authorities were able and willing to help the applicants. The court further noted that the applicants had remained in Burundi for four months after the attack without being the victims of any further attacks and that P. had remained in their home until July 2006. In the court’s view, the reasons put forward for the attacks and the threats were pure speculation on the part of the first applicant and not substantiated. Hence, the applicants had failed to show that they were in need of protection in Sweden. Even having regard to the fact that the case involved children, the court considered that they could not be granted leave to remain in Sweden. One lay judge (out of three lay judges and a professional judge) dissented. She considered that the first applicant had given a credible and coherent account and that she had thereby shown that she would face a real risk of being persecuted or ill-treated due to her gender if returned to Burundi. The applicants should therefore be considered as refugees. Upon further appeal, the Migration Court of Appeal refused leave to appeal on 23 May 2008. On 6 August 2008 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant’s husband had been arrested and taken to the security police, where he had been tortured. The Migration Board rejected the request on 21 October 2008. It held that the requirements for examining the request had not been met since, inter alia, the documentation submitted in support of the application consisted of photocopies which had low value as evidence. Moreover, it was not clear from the documents why the first applicant’s husband had been arrested. The decision was upheld by the Migration Court on 22 December 2008 and on 13 February 2009 the Migration Court of Appeal refused leave to appeal. It should be noted that the applicants have failed to submit these decisions to the Court. In February 2009 the applicants lodged yet another request for residence permits in Sweden on the basis that there were impediments to the enforcement of their deportation order. They claimed that the first applicant was unable to care for her children because she was depressed and had been treated for this condition at the psychiatric unit at Säter hospital between 3 and 12 February 2009. The hospital had commenced treating the first applicant with medication and the treatment would continue for six months. The fourth, fifth and sixth applicants had been placed in a family home by the social services while the second and third applicants remained in the family’s apartment and took care of themselves. Thus, the applicants requested residence permits, or at least a stay of execution of the deportation order for six months. On 27 February 2009 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no absolute impediments to the enforcement of the applicants’ deportation order. In June 2009 the applicants lodged another new application for residence permits in Sweden. The first applicant claimed that she had been threatened by one of her assailants by text messages sent to her mobile phone in Sweden and she thought he had obtained the number through contacts with Hutus in Sweden. Moreover, her husband’s family had repudiated her because she had been raped and had had an illegitimate child as a result. The first applicant further invoked her poor mental health and stated that she had attempted to commit suicide by taking an overdose when the Swedish police had tried to deport her and her children at the beginning of June. The first applicant submitted a medical certificate, dated 17 June 2009, by A.K., psychologist at the Red Cross in Hedemora, which stated that the psychologist had met the first applicant five times and that she had traumas from having been the victim of violence in Burundi. The first applicant showed symptoms of Post Traumatic Stress Disorder (PTSD) and depression for which she was taking medication. During the autumn of 2008 she had had a serious crisis reaction after she had been informed that her husband had probably died. She had attempted suicide, for which she had been treated at a closed psychiatric unit for ten days (in February 2009). According to the psychologist, the police had fetched the first applicant at her home in Sweden in June 2009 to detain her, awaiting the deportation. However, she had tried to commit suicide in the detention centre by drinking soap mixed with her medication. She had heard voices which had told her that her children had been killed and that she should kill herself. In the psychologist’s view, the applicant was now suffering from PTSD, depression with psychotic symptoms and acute stress. On 23 June 2009 the Migration Board rejected the new request as it found that the applicants had invoked no new circumstances of importance but had only made certain additions and adjustments to their previous claims. Nor did it consider that there were impediments to the enforcement of the deportation order. On the same day, the applicants’ lawyer submitted a medical certificate and an extract from the first applicant’s medical records from the Crisis and Trauma Centre at Danderyd Hospital, both dated 18 June 2009 and written by H.P.S., psychotherapist and docent in psychiatry. According to the medical certificate, which was based on the medical records, the first applicant was taking antidepressants and sleeping pills. She heard voices which had prompted her to three suicide attempts. She fulfilled the criteria for PTSD and depression and was in need of treatment. In the doctor’s view, there were impediments to the enforcement of the deportation order due to the first applicant’s poor mental health, since being deported might cause her to lose her sense of reality and try to commit suicide again. The Migration Board considered that this material should be considered as a new request for residence permits and decided to stay the enforcement of the deportation order while it considered the request. Moreover, the Board found that the information about the first applicant’s poor mental health was of a certain importance, for which reason it assigned P.N., physician and specialist in psychiatry, to examine the first applicant in order to evaluate her state of health and whether an enforcement of the deportation order would be possible from a medical point of view. After having consulted the first applicant’s medical records and examined her, Dr P.N. concluded that her mental health problems did not amount to a serious mental disorder and that there was no impediment to the enforcement of the deportation order from a medical point of view. However, he considered that experienced and competent personnel should be present during the deportation as the first applicant’s anxiety could escalate and manifest itself through self-destructive behaviour. On 12 August 2009 the Migration Board, having regard to Dr P.N.’s evaluation, decided that there were no impediments to the enforcement of the deportation order and that the applicants could not be granted leave to remain in Sweden. It also lifted the stay on the deportation order. The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions. The Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9). The United States Department of State Country Reports on Human Rights Practices concerning Burundi of 2010, dated 8 April 2011, sets out, inter alia, the following: “Burundi is a constitutional republic with an elected government and a population of 8.6 million. From May to September, the country held elections for all public offices, including the first direct presidential elections since 1993. Following the May 25 Communal Council elections, which the international community characterized as generally free and fair, a coalition of 12 opposition parties alleged massive fraud and called for the annulment of the results and new elections. When the parties’ demands were not met, they withdrew their candidates from the subsequent presidential, legislative, and "colline" elections. President Pierre Nkurunziza, of the ruling National Council for the Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD) party, ran unopposed in the June presidential election and was reelected to a second term. International observers characterized the elections as generally free and fair, although there were reports of political violence leading up to and throughout the five-month election season. Security forces reported to civilian authorities. There were instances in which elements of the security forces acted independently of civilian control. Women The law prohibits rape, which is punishable by up to 30 years’ imprisonment; however, the government did not enforce the law effectively, and rape and other sexual violence against women and girls were problems. The rape of minors, or rape committed by persons who infect their victim with an incurable sexually transmitted disease, is punishable by life imprisonment. Spousal rape is punishable by fines of 10,000 to 50,000 francs ($8 to $40) and eight days’ imprisonment. Many women were reluctant to report rape for cultural reasons, fear of reprisal, and the unavailability of medical care. Men often abandoned their wives following acts of rape, and rape victims were ostracized. Police and magistrates regularly required that victims provide food for and pay the costs of incarceration of those they accused of rape. According to a March 2009 report by Médecins Sans Frontières de Belgique (MSF-Belgium), many victims who sought judicial redress faced an unresponsive judicial system, and courts often refused to act on cases without witnesses. Some victims were reportedly required to pay 15,000 francs ($12.07), a large sum for most victims, to obtain a certified medical report. Other problems included judges who did not regard rape as a serious crime and a lack of medical facilities to gather medical evidence. According to women’s rights organizations, at times families or communities forced victims to withdraw their complaints and negotiate settlements with the perpetrator or his family outside of the formal judicial system. In other cases the victims were forced by their families and local arbiters to marry their attackers. According to the local NGO Centre Seruka, 60 percent of persons responsible for rape were arrested, and of these 30 percent were prosecuted. As of September the APRODH recorded 61 rapists arrested. Of the limited number of cases that were investigated, successful prosecutions of rapists were rare. During the year the Ministry of Solidarity began compiling rape statistics through decentralized family development centers (CDF) throughout the country. According to CDF reports, there were 1,556 reported cases of gender-based violence as of July. The ADDF received reports of 3,701 cases of rape and domestic violence as of September, most of which occurred in Bujumbura and its outlying areas. Centre Seruka, equipped in part by MSF-Belgium and funded by the UN, received 742 victims during the year at its center for rape victims in Bujumbura. Of the victims they assisted, 60 percent were raped by persons they knew, including members of their families, cooks, and neighbors. Local and international NGOs, the government, and the UN claimed the number of rape victims was likely much higher. Civil society and religious communities worked to overcome the cultural stigma of rape to help victims reintegrate into families that had rejected them. Ligue Iteka, the APRODH, the ADDF, and BINUB continued to encourage rape victims to press charges and to seek medical care, and international NGOs provided free medical care, mostly in urban areas. The government also raised awareness of the problem through seminars and local initiatives describing the kinds of medical care available...” According to the fifth Report of the Secretary General on the United Nations Integrated Office in Burundi (document S/2010/608), dated 30 November 2010, the security situation, although relatively stable during the period under Review (December 2009 to November 2010), remains a concern. The incidence of criminal activities remained high, with acts of armed robbery, killings and sexual violence. Those acts are largely attributed to the widespread circulation of weapons, land disputes and the socio-economic situation in the country. During the electoral period, there was a massive deployment of security forces throughout the country. Amnesty International reported in its Report 2009 – Burundi that there continued to be a high incidence of rape and other sexual violence against women and girls during 2008. For example, a centre run by Médecins sans Frontières in Bujumbura received an average of 131 rape victims a month in 2008. | 0 |
train | 001-5637 | ENG | FRA | ADMISSIBILITY | 1,999 | PONSETTI and CHESNEL v. FRANCE | 1 | Inadmissible | null | Mr [Frédéric] Ponsetti, who was born in 1949, lives at Pierrelatte and practises as a bailiff. Mr [Christian] Chesnel was born in 1936 and lives in Paris. He is a practising notary. Both are French nationals. They were represented before the Court by Mr P.F. Ryziger, a member of the Conseil d’État and Court of Cassation Bar. The facts, as submitted by the parties, may be summarised as follows. The applicant failed to file income tax returns for the years 1988, 1989 and 1990 despite receiving demands to do so from the tax authorities. In April 1991 the tax authorities conducted an audit of his accounts and assessed him to 95,823 French francs (FRF) in unpaid income tax for the first of those three years, FRF 206,388 for the second and FRF 286,957 for the third. They sought recovery of those amounts, to which on 20 December 1991, pursuant to Article 1728 of the General Tax Code, they added default interest and surcharges at the rate of 80% of the sum due for 1988 (namely FRF 76,658) and of 40% for the other two years (amounting to FRF 104,352 and FRF 155,395). At the same time the tax authorities lodged a criminal complaint against Mr Ponsetti alleging tax evasion and sought to be joined as a civil party to the proceedings. The applicant was charged with “having at Montélimar, during the years 1988 to 1990, fraudulently evaded assessment of his income tax liability and evaded partial payment of such tax by wilfully omitting to file his return within the prescribed time, by concealing parts of his income liable to tax, by arranging his insolvency or obstructing the collection of the tax by other subterfuges, or by acting in any other fraudulent manner, in the instant case by omitting to file income tax returns for the years 1988 to 1990, thus evading payment of FRF 589,168 in income tax, being FRF 95,823 for 1988, FRF 206,388 for 1989 and FRF 286,957 for 1990”, an offence under Article 1741 of the General Tax Code. On 21 July 1993, Valence Criminal Court convicted the applicant and imposed a three months’ suspended prison sentence and fine of FRF 10,000 on him. In reaching its verdict it stated: “... by failing to file income tax returns for the years 1988 to 1990, Mr Ponsetti committed the offence of which he stands accused of tax evasion, contrary to Article 1741 of the General Tax Code ...”. The applicant and the prosecution appealed to Grenoble Court of Appeal. On 17 November 1994 the Court of Appeal upheld the applicant’s conviction and increased the sentence to a suspended term of six months’ imprisonment and a fine of FRF 200,000. It reached its decision on the following ground: “... the intentional element of the offence of tax evasion is sufficiently made out by the fact that the accused failed to make the tax returns necessary for assessing his liability to tax when: – he was perfectly aware of that requirement, if only as a result of the 1986 audit; – he had been given due notice before the audit to make the returns for each of the three years concerned; – whatever the truth of his computing problems, the relevant information was available to him, as he had duly filed the monthly turnover figures for the calculation of VAT on time and therefore had only to deduct his professional liabilities in order to determine and declare his income; – it is plain that he has used the pretext of computing difficulties to draw out matters as long as possible in order to plead the statute of limitations from which he has already partially benefited in 1986. The tax authorities’ decision regarding at what level on the scale of surcharges for unpaid tax to impose the – purely fiscal – penalty on Frédéric Ponsetti as a result of his conduct is, in law, a separate issue from the decision of the criminal court on whether the intentional element of the offence of tax evasion has been made out ...” The applicant appealed to the Court of Cassation on the ground that there had been a violation of Article 6 of the Convention and of Article 4 of Protocol No. 7 to the Convention in so far as it guarantees the non bis in idem principle. On 20 June 1996 the Criminal Division of the Court of Cassation dismissed the appeal in a judgment which read as follows: “... Frédéric Ponsetti argued in his defence that as he had already been subjected to tax penalties for the same matters, no further penalties could be imposed on him. In rejecting the accused’s submissions and sentencing him to a term of imprisonment and a fine under Article 1741 of the General Tax Code, the Court of Appeal stated that the nature and purpose of prosecution for tax evasion, which is aimed at curbing the unlawful avoidance of tax, are different from those pursued by the tax authorities when conducting a tax audit with a view to collecting unpaid tax. Having regard to that reasoning, this Court is satisfied that the Court of Appeal gave a valid basis for its decision. In accordance with the reservations made by France regarding Protocol No. 7, the non bis in idem rule enshrined in Article 4 of Protocol No. 7 to the European Convention on Human Rights and Fundamental Freedoms is applicable only to offences which under French law fall within the jurisdiction of the criminal courts and does not prevent tax penalties being imposed concurrently with penalties by the criminal courts. It follows that the ground of appeal must be rejected ...” The applicant has since 1979 been in practice as a notary in Bezons. From October 1990 onwards, he failed to make his monthly value-added tax (VAT) returns with the result that his activity was included on the audit programme of the Val d’Oise département tax office by the administrative department. The audit, which concerned VAT, covered 1989, 1990, 1991 and January to April 1992. A notice advising that the accounts would be inspected was sent to the applicant on 12 June 1992 and the audit took place at his office between 25 June and 25 October 1992. The arrears to be paid by the applicant were assessed on the basis of VAT shown to be due by returns lodged during the audit. They came to a total of FRF 1,212,599. A demand for that amount was sent to the applicant on 27 November 1992. In addition to the VAT, the applicant was required to pay the surcharges laid down by Article 1728 of the General Tax Code for failure to file returns. They amounted to FRF 812,035 and FRF 209,859 (namely 90,95 % of the total). On 19 November 1993 the tax office of the Val d’Oise département lodged a complaint with Pontoise Criminal Court with the approval of the Tax Offences Board dated 8 November 1993. The tax authorities, represented by the Director of Taxes of the Val d’Oise département, lodged a request to be joined as a civil party to the proceedings. The applicant was charged with “having at Bezons, between 1 October 1990 and 30 April 1992, fraudulently evaded assessment of his liability to tax, namely value-added tax, and evaded its payment in whole or in part, by wilfully concealing part of the sums, namely FRF 9,073,333, liable to such tax, on which was due FRF 1,212,596 in unpaid VAT ...” Before the Criminal Court the applicant pleaded the non bis in idem rule, arguing that, since tax penalties had already been imposed on him he could not be prosecuted in the criminal courts for matters arising out of the same facts. On 8 November 1995 the Criminal Court dismissed that procedural objection in a judgment which read as follows: “It is common ground that an estoppel per rem judicatam constitutes an obstacle to a further prosecution if there is identity of legal basis, subject-matter and parties with a previous prosecution that has ended with an unappealable decision. In the instant case, even supposing that the tax proceedings resulted in a decision that could be described as criminal in character, the administrative proceedings involve different parties, a different subject-matter and a different legal basis. Firstly, there is no identity of parties between tax proceedings and criminal proceedings as the public prosecutor, who plays no role in the administrative proceedings, acts as the prosecuting party in the court proceedings. In the administrative proceedings, however, it is the tax authorities who instigate matters. In addition, the subject-matter and legal basis in tax proceedings and in criminal proceedings are different. Whereas the purpose of administrative proceedings is to obtain compensation only for the loss sustained by the tax authorities through the non-payment of taxes, the function of criminal proceedings is to remedy the harm caused to society by the actions of the perpetrator of the fraud. There is a radical difference in the nature of tax penalties and criminal penalties, as the former may be imposed following a mere unintentional mistake by the taxpayer, without there being any additional harm to society. The offence of tax evasion, however, causes additional harm which affects the whole fabric of society. Reparation for that harm is sought by the public prosecutor on behalf of society; thus, criminal proceedings and tax proceedings have a different purpose. That difference in character is likewise demonstrated by the different statutory bases for tax penalties and criminal prosecutions ...” As regards the merits, the Criminal Court stated “... in any event, the fact that notices were served on the accused from March 1991 onwards enables the arguments relating to the absence of intent or to improbable implied agreements with the tax authorities to be discounted ...”. The Criminal Court found the applicant guilty of the offences of which he was accused and sentenced him to, inter alia, twelve months’ suspended imprisonment and a fine of FRF 100,000. The applicant, the public prosecutor and the tax authorities appealed against that judgment. Referring to the European Convention on Human Rights, the applicant repeated his arguments based on the non bis in idem rule. On 24 October 1996 the Court of Appeal rejected that argument in a judgment in which it stated: “... the case-law of the European Court ... does not require the court concerned to treat fiscal administrative penalties as criminal penalties but to examine whether under domestic law any of the aims of the penalty for the violation of a general rule concerning all citizens – irrespective of how such penalty is classified under domestic law – is at once preventive or deterrent and punitive rather than the reparation of damage for the purposes of Article 6 § 1 of the [Convention]. That Article provides: ‘In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal.’ In practice, [the applicant] could have raised the ‘criminal’ character of the penalties imposed for tax evasion by seeking a review (which he did not do in the instant case) before a court, namely the administrative court, which would try the issue of the penalties fairly. As matters stand, the case-law of the European Court regarding the interpretation of Article 6 of the [Convention] requires no more than that. Secondly, [as regards Article 4 of Protocol No. 7] ... France has made the following reservation regarding the application [of Article 4 of Additional Protocol No. 7]: ‘... only those offences which under French law fall within the jurisdiction of the French criminal courts may be regarded as offences within the meaning of Articles 2 to 4 of this Protocol’. Fiscal penalties and criminal penalties are different in nature, even though fiscal penalties, which are exclusively monetary, have a penal character for the purposes of the application of Article 6 § 1 of the [Convention]. Fiscal penalties are imposed by the authorities subject to review by the administrative courts whereas criminal penalties are imposed by the ordinary courts and may be other than financial, with sentences ranging from alternatives to prison to imprisonment itself and the imposition of additional penalties, none of which are available to the tax authorities. Proceedings for the collection of tax and penalties or, as in the instant case, for challenging interest or tax penalties are not criminal proceedings; there is no determination of ‘a criminal charge’ for the purposes of either domestic law or of the international convention ratified, with a reservation, by France. A criminal prosecution for tax evasion and administrative proceedings for the assessment of the base for tax, interest and penalties (whatever the stage, including the contentious stage, reached in the contemplated proceedings) are, both as regards their nature and subject-matter, different from each other and mutually independent. Thus, for the purposes of Article 4 of Protocol [No. 7], in the instant case neither the administrative proceedings (which cannot be classified as criminal) nor the nature of the administrative financial penalty (whose preventive and repressive character is relevant only as regards the requirement that the fundamental guarantees provided by Article 6 of the [Convention] should be applied), allow Mr Chesnel to affirm that he has previously been prosecuted in criminal proceedings solely on the ground that penalties were imposed on him in connection with unpaid VAT pursuant to Article 1728 of the General Tax Code. That is because the statutory basis is different from the one used in criminal proceedings, namely Articles 1741 and 1750 of the General Tax Code. The non bis in idem rule cannot be applied in the present case. Consequently, Mr Chesnel cannot assert that he has been prosecuted twice on the same basis. The Court of Appeal upholds the decision of the court below to reject that argument, but does so on different grounds ...” On the merits, the Court of Appeal upheld the impugned judgment finding that the applicant was guilty of the offence of tax evasion, and confirmed each of the penalties imposed by the Criminal Court. The applicant appealed to the Court of Cassation. His sole ground of appeal was that there had been a violation of Article 4 of Protocol No. 7. In a judgment of 11 December 1997, the Court of Cassation dismissed the appeal on the following ground: “... The Court of Appeal rejected the submissions [of the applicant] that, as a fiscal penalty had already been imposed on him, he could not be prosecuted for the same offence, and sentenced him to a term of imprisonment and fine pursuant to Article 1741 of the General Tax Code. In so doing, it stated that a criminal prosecution for tax evasion, which concerns criminal conduct, and administrative proceedings for the determination of the base of the tax, plus interest and penalties, are different in nature and purpose and independent of each other. Having regard to that reasoning, this Court is satisfied that the Court of Appeal gave a valid basis for its decision. The prohibition on two convictions for the same offence contained in Article 4 of Protocol No. 7 ..., is, according to the reservations made by France on signing the Protocol, applicable only to offences which under French law are within the jurisdiction of the criminal courts and does not preclude fiscal penalties being imposed concurrently with the penalties imposed by the criminal courts ...” The relevant provisions of the General Tax Code are as follows: “1. Where a natural or juristic person or an association under an obligation to make a return or to lodge a document supplying information needed for the calculation of the base of any of the taxes, duties, charges, dues or other sums assessed or collected by the Department of Revenue or their payment fails to make such return or lodge such document within the time-limit, interest for late payment calculated in accordance with Article 1727 and a 10% surcharge shall be added to the tax liability imposed on the person concerned or assessed on the basis of the return or document lodged out of time. ... 3. The surcharge shall be increased to: – 40% if the document is not lodged within thirty days after receipt of notice sent by registered post to produce the document within that time-limit; – 80% if the document is not lodged within thirty days after receipt of a second notice sent in the same manner as the first.” “Without prejudice to any special provisions ... anyone who fraudulently evades assessment or payment in whole or in part of the taxes with which this Code is concerned, or attempts to do so, whether by wilfully omitting to make his return within the prescribed time, or by wilfully concealing part of the sums liable to tax, or by arranging his insolvency or obstructing the collection of tax by other subterfuges, or by acting in any other fraudulent manner, shall be liable, independently of the applicable tax penalties, to a fine of FRF 250,000 and to imprisonment for a term of five years ...” Under the case-law of the Criminal Division of the Court of Cassation the offence of fraudulent evasion or attempted fraudulent evasion of the assessment or payment of tax is characterised by the accused’s wilful omission to make his returns within the prescribed time, there being no requirement that fraudulent means should have been used (see judgments of 4 October 1974, Gazette du palais 1975.1 Somm. p. 150; 2 March 1976, Reports Dalloz Sirey, 1976, 25e cahier; and 2 July 1998, Reports no. 213). A finding that there has been wilful concealment of sums attracting tax suffices to characterise the tax offence “in all its constitutive elements”, it being unnecessary to establish the use of fraudulent means (see judgment of 2 July 1998 cited above). | 0 |
train | 001-90436 | ENG | RUS | CHAMBER | 2,009 | CASE OF DZHAMAYEVA AND OTHERS v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life) | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicants are: 1. Ms Salamat Dudayevna Dzhamayeva, born in 1947; 2. Ms Khedisht Issayevna Dzhamayeva, born in 1974; 3. Ms Kheda Issayevna Dzhamayeva, born in 1971; 4. Mr Magomed Ismailovich Dzhamayev, born in 2001. They live in Staryye Atagi, the Chechen Republic. 5. The first applicant is the mother, the second and third applicants are the sisters and the fourth applicant is the son of Mr Ismail Issayevich Dzhamayev, born in 1981. They lived together in the village of Stariye Atagi, the Grozny District. Mr Ismail Dzhamayev was a student of mathematics. 6. According to the applicants, from 6 to 11 March 2002 federal military officers, under the command of General Borisov, conducted a sweeping operation (зачистка) in the village of Stariye Atagi involving around 10,000 servicemen, 50 armoured personnel carriers (“APCs”) and several military helicopters. 7. Throughout the said period the military besieged Stariye Atagi and restricted freedom of movement in the village. They organised a filtering point at the poultry-yard and the mill on the outskirts of Stariye Atagi where they kept the residents detained during the operation. 8. In total fifteen men residing in Stariye Atagi were apprehended between 6 and 11 March 2002. Whilst some of them were subsequently released, eleven residents disappeared. Relatives of ten of those who disappeared applied to the Court (see Arzu Akhmadova and Others v. Russia, no. 13670/03). 9. According to the applicants, Mr Ismail Dzhamayev was apprehended in the following circumstances. In the morning of 6 March 2002 the first applicant asked him to go and see his uncle who lived in the same village and buy something for him in the village shop. When Mr Ismail Dzhamayev was in the street apparently on the way from the shop to his uncle’s house, he saw two APCs approaching. He got frightened, turned around the corner to Bezymyannaya Street and dropped in at Mr B.’s, his acquaintance. Mr B.’s mother let him in. As soon as he entered, servicemen ran into the yard after him. They said that there was a sweeping operation in the village and that they would check the house. They searched the house. After the search they took Mr B. and Mr Ismail Dzhamayev with them. Mr B.’s mother asked them not to take the children away since they had all their documents with them. The servicemen checked the documents and then put Mr B. and Mr Ismail Dzhamayev in an APC. When Mr B.’s mother tried to intervene, however, the servicemen pushed her aside, hit her against the wall and left her lying on the ground. 10. The next day Mr B. was released. He said that after they had been apprehended, the servicemen took them around the village in the APC for approximately two or three hours while they checked other houses. They were thrown on the floor of the APC and the servicemen put their feet on them. Then they were taken to the filtration point. Mr B. said that he had heard Mr Dzhamayev’s voice when the latter had been questioned. They had asked him what he had been doing at B.’s house, and Mr Dzhamayev had explained that he had gone to the shop and had just dropped by. When Mr B. heard that Mr Ismail Dzhamayev had not returned home he was surprised because he had heard nothing during the night and thought that Mr Dzhamayev had been released. 11. Upon his release Mr B. was barely alive because of the beating he had received from the servicemen. He died six months later. 12. On 7 March 2002 the residents of Stariye Atagi found several bodies in an abandoned house in the village. The applicants heard others saying that the people had first been blown up and then burned. It was impossible to identify them. However, somebody said that the bodies of some of the persons apprehended on 6 March 2002 had been seen. 13. The applicants also heard that a car had been burned on 9 March 2002. 14. On 10 March 2002 Mr T. Kh., Mr R. D. and Mr V. D. were apprehended and then held at a mill. They were put in a pit where they saw an inscription on the wall “Maka and Amir were here”. Although Mr Dzhamayev’s name was Ismail, everybody had called him Maka since his childhood. One of the servicemen confirmed that Mr Dzhamayev and Mr Amir Pokayev had been held there and said that they had been released in the afternoon the previous day, 9 March 2002. 15. The applicants concluded that Mr Dzhamayev could not have been one of the persons whose burnt bodies had been found in the burnt house on 7 March 2002 or in the car burnt on 9 March 2002. They alleged that on 9 March 2002, instead of being released, he had been transferred elsewhere. 16. The Government confirmed that a sweeping operation had been conducted in the village of Stariye Atagi from 6 to 13 March 2002. The aim of the operation had been to find and arrest members of illegal armed groups who had abducted and killed four servicemen of the FSB on 12 February 2002. 17. On 7 March 2002, at around 2 p.m., a fight broke out between members of the illegal armed groups and federal servicemen in a house at 81 Nagornaya Street. As a result of the use of small arms and grenade dispensers, four members of the illegal armed group were killed. Since the house was set on fire, bodies were severely burnt; after an inspection by law-enforcement officers they were handed over to the local administration for burial. 18. On 9 March 2002 a group of servicemen of military unit no. 3228 at a checkpoint situated within three kilometres from Stariye Atagi was fired at from a car that approached the checkpoint. The servicemen fired back. The explosives contained in the car were blown up, the car was set on fire and the three members of an illegal armed group in it were killed. Their bodies were also severely burnt and handed over to the local administration for burial. An AKM machine gun without its wooden parts, RGD-5 grenades without fuses, a makeshift hand grenade launcher, and other components of AKM machine guns and cartridge cases were found in the car and seized. 19. After the operation had been completed, village residents lodged applications concerning the apprehension and subsequent disappearance of eleven residents of Stariye Atagi, including Mr Ismail Dzhamayev. 20. On 13 March 2002, after the special operation was over and the restrictions were lifted, the villagers brought all the unidentified corpses to Grozny. It appears that they did not manage to contact the authorities, and later that day they returned the bodies to Stariye Atagi. 21. On 14 or 15 March 2002 officers of the Grozny district office of the Interior (РОВД Грозненского района) took the corpses to the village of Tolstoy-Yurt intending to send them on to Mozdok for a forensic examination. 22. On 1 April 2002 D., an investigator from the Prosecutor’s Office of the Chechen Republic, delivered the bodies back to Stariye Atagi. The corpses were wrapped in bags and were decomposed. They remained unidentified. D. explained to the villagers that the prosecutor’s office had insufficient funds to conduct the forensic examination of the corpses and that the refrigerators in the forensic examination department in which they had been kept had been out of order. 23. On 3 April 2002 the residents of Stariye Atagi buried the unidentified bodies. 24. Immediately after Mr Ismail Dzhamayev had been apprehended, the applicants started searching for him. They lodged numerous applications with prosecutors of various levels, public bodies and regional administrative authorities. They also visited a number of State bodies. The applicants mainly received formal responses informing them that their requests had been forwarded to various prosecutor’s offices for examination. 25. On 13 March 2002 the Prosecutor’s Office of the Grozny District (прокуратура Грозненского района) instituted a criminal investigation under Article 105 § 2 (a) of the Criminal Code of Russia (murder of two or more persons) in respect of the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The file was assigned no. 56031. 26. According to the applicants, on an unspecified date Mr B. and his mother were questioned. The second applicant went for questioning together with them and the relevant records should be in the criminal file. 27. According to the Government, on unspecified dates two of the applicants were granted victim status in the proceedings. 28. On 5 April 2002 the local administration of Stariye Atagi (местная администрация села Старые Атаги) issued the applicants with a certificate confirming that Mr Ismail Dzhamayev and nine other residents of Stariye Atagi had been apprehended and taken away by federal military officers between 6 and 11 March 2002 and had then disappeared. The certificate was signed by the acting head of administration of Stariye Atagi and bore an official stamp of the administration. It read, in so far as relevant, as follows: “[The present] certificate is issued by the local administration of the village Stariye Atagi in respect of written applications by the village’s residents, whose children were apprehended and taken for passport check in the period between 6 and 10 March 2002 during the special operation conducted by the federal troops. The local administration thereby confirms that: 1. The following residents of Stariye Atagi were apprehended by the federal troops and taken to an unknown destination: on 6 March 2002 ... Dzhamayev Ismail Issayevich, born in 1981 ... 2. On 13 March 2002 the Grozny Military Prosecutor’s Office instituted criminal proceedings no. 56031 in respect of the disappearance of the above-named persons following their relatives’ applications; the investigation is under way. 3. A governmental commission headed by the deputy chairman of the Government of the Chechen Republic, Magomadov Nasrudin Nozhayevich, was created (by governmental decree no. 188-rp of 13 March 2002) [to investigate] the events.”. 29. On 11 March 2004 the Ministry of the Interior informed the first applicant that, since so far the investigation had failed to establish her son’s fate, the Southern Federal District Office of the Interior was engaged in the search for him. 30. On 17 June 2004 a report of a forensic molecular-genetic expert examination was drawn up according to which Mr Ismail Dzhamayev’s body was among the remains of six bodies found at the cemetery. 31. On 26 March 2007 the investigation was discontinued on account of the absence of any indication of a crime allegedly committed by servicemen. 32. In their submissions the parties referred to the information provided in relation to the above case. The Court shall set out below the facts relevant to the present case. 33. On 7 April 2002 the Prosecutor’s Office of the Chechen Republic answered a request received from Memorial, stating that on 13 March 2002 a criminal investigation had been instituted under Article 105 § 2 (a) of the Russian Criminal Code into the disappearance of 13 residents of Stariye Atagi, including Mr Ismail Dzhamayev, between 6 and 11 March 2002. The letter also stated that: “On 9 March 2002, at around 3 p.m., a VAZ 21099 vehicle approached a checkpoint of military unit 3179 situated about 4 km away from the outskirts of Stariye Atagi on the road between Chechen-Aul and Stariye Atagi. In response to [the servicemen’s] order to stop the car and produce identity papers, shots were fired from the car. During the shoot-out four passengers were killed and the car was burnt. During the examination of the vehicle the remains of a AKM machine gun, a hand grenade launcher and RGD-5 grenades without fuses were found and seized. In this connection, on 12 March 2002 the Prosecutor’s Office of the Grozny District initiated criminal proceedings in case no. 56030 under Article 317 of the Russian Criminal Code. The identities of the persons killed in the car have not yet been established.” 34. On 21 August 2002 the military prosecutor of military unit no. 20102 informed the applicants that their allegations that Mr Ismail Dzhamayev and other residents of Stariye Atagi had disappeared during the sweeping operation had been investigated and that criminal proceedings in criminal cases nos. 14/33/0184-02 and 14/33/0185-02 had been instituted in connection with the combats between the servicemen and the members of the illegal armed groups and as regards the discovery of four bodies bearing signs of a violent death in a burnt car on the road from Chechen-Aul to Stariye Atagi. The letter continued as follows: “The preliminary investigation established that on 9 March 2002, during the special operation in the village of Stariye Atagi, the servicemen of military unit no. 3228 under the command of Senior Lieutenant Z. were checking vehicles going out of the village of Stariye Atagi, since, in accordance with intelligence received, members of illegal armed groups stationed in Stariye Atagi were planning an attack on this road. At around 3 p.m. a VAZ 21099 car approached the servicemen of military unit no. 3228 under the command of Z. In reply to the servicemen’s order to stop, machine-gun fire was opened from the car. The servicemen opened return fire with the result that the car started burning. Subsequently three burnt corpses of unidentified persons were found in it. On 18 May 2002 the criminal proceedings brought in connection with the servicemen’s use of firearms were discontinued... Accordingly, no involvement on the part of the servicemen in the abduction of [the applicants’ relatives] has ever been established ...” 35. On 9 October 2002 the Prosecutor’s Office of the Grozny District sent the case file to the military prosecutor of military unit no. 20102 for investigation. The case file was given the number 34/33/0657-02. 36. On 26 October 2002 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to establish the identity of the culprits. The decision read, in particular: “During the period from 6 to 10 March 2002, in the course of a special operation in the village of Stariye Atagi, unidentified servicemen abducted thirteen residents of the village: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, [V. D.], [R. D.], N. Zakayev. Upon the completion of the operation on 13 March 2002 [V. D.] and [R. D.] were released. The whereabouts of the other residents of Stariye Atagi who were apprehended has not been established... In the course of the investigative actions ... person(s) who had committed the offence were not identified...” 37. The applicants and relatives of other disappeared persons were notified of the decision to suspend the investigation. 38. On 14 December 2002 the Military Prosecutor’s Office of the United Group Alignment (UGA) quashed the decision to suspend the investigation for the following reasons: “The decision was unfounded since in the course of the preliminary investigation not all the investigative measures aimed at identifying persons involved in the disappearance of the named residents of Stariye Atagi were taken. [In particular,] the military units that had conducted the special operation in the village were not identified, the commanders of these units were not questioned, the persons who had conducted a check and apprehended the [disappeared residents] were not identified. Therefore, the preliminary investigation should be reopened.” 39. On 23 December 2002 the case was taken up again by the military prosecutor of military unit no. 20102. Relatives of the disappeared persons were notified of the reopening of the investigation. 40. On 23 January 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 41. By letter of 18 March 2003 the military prosecutor of military unit no. 20102 replied to a query lodged by the SRJI on the applicants’ behalf and stated that in the file of criminal case no. 56031 opened in relation to the abduction of Mr Ismail Dzhamayev and other persons there was no indication that the federal servicemen had been involved in the alleged offence. 42. On 2 April 2003 the military prosecutor of military unit no. 20102 notified the SRJI that the case file of the investigation instituted in connection with the disappearance of Mr Ismail Dzhamayev and other persons had been returned to the Prosecutor’s Office of the Chechen Republic, as the military prosecutor had no competence over the case in the absence of evidence of the military personnel’s involvement in the alleged offence. 43. On 26 June 2003 the military prosecutor of military unit no. 20102 quashed the decision of 23 January 2003 and reopened the investigation. Relatives of the disappeared persons were notified of the reopening. 44. On 27 July 2003 the military prosecutor of military unit no. 20102 suspended the investigation on account of the failure to identify persons to be charged with the offence. Relatives of the disappeared persons were notified of the decision. 45. On 7 August 2003 the SRJI applied to the Military Prosecutor’s Office of the UGA requesting, inter alia, exhumation of the remains of the unidentified bodies buried by the residents of Stariye Atagi in a common grave and a forensic examination with a view to their identification. 46. On 29 October 2003 the Military Prosecutor’s Office of the UGA quashed the decision of 27 July 2003 to suspend the investigation on the ground that the whereabouts of unspecified witnesses had been established which required further investigative actions. Relatives of the disappeared persons were notified of the reopening. 47. On 19 March 2004 the Military Prosecutor’s Office of the UGA suspended the investigation. The decision read, in particular: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... During the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted [the following] residents of Stariye Atagi: A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 48. Relatives of the disappeared persons were notified of the decision to suspend the investigation. 49. On 22 May 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 50. On 22 June 2004 the Military Prosecutor’s Office of the UGA again suspended the investigation. The decision read, in so far as relevant: “During the period from 6 to 13 March 2002 servicemen from the internal troops of the Ministry of the Interior and the Ministry of the Defence, officials of the Ministry of the Interior and the FSB conducted a special operation in the village of Stariye Atagi... aimed at the identification, arrest and extermination of members of an illegal armed group and the search for four servicemen of the FSB who had gone missing. ... At around 4 p.m. on 9 March 2002 in Stariye Atagi servicemen of military unit 3179 killed three members of the illegal armed group who were in a car. [Their] bodies were severely damaged and burnt. No measures were taken to identify them. At the same time, according to applications and statements by residents of Stariye Atagi, during the period when the special operation was being conducted unidentified persons in camouflage uniform accompanied by cars and armoured vehicles abducted A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. Kuntayev, I. A. Chagayev, A. Sh. Pokayev, I. S. Magomadov, M. Kh. Isambayev, A. Baysarov, T. S. Khadzhayev, A. N. Zakayev. In the course of the investigation the bodies of the members of the illegal armed groups buried in the cemetery of Stariye Atagi were exhumed and body tissue taken from them; blood samples were taken from relatives of the abducted persons. According to the medical opinion no. 52/2004, the forensic (molecular-genetic) expert examination showed that the remains found at the cemetery were those of I. A. Chagayev, A. Sh. Pokayev, S.-S. Kanayev, I. Dzhamayev, A. P. Akhmadov and I. S. Magomadov... Taking into account that the term of the preliminary investigation has expired and that the investigative measures that could be taken in the absence of a suspect have been completed, [the investigation should be suspended].” 51. On 6 November 2004 the Military Prosecutor’s Office of the UGA quashed the decision and reopened the investigation. Relatives of the disappeared persons were informed accordingly. 52. On 6 December 2004 the Military Prosecutor’s Office of the UGA suspended the investigation again. Relatives of the disappeared persons were notified of the decision. 53. On 10 January 2006 the Military Prosecutor’s Office of the UGA quashed the decision of 6 December 2004 and reopened the investigation on the following grounds: “In the course of the investigation significant discrepancies between statements by residents of Stariye Atagi and servicemen concerning the detention of the [disappeared] persons and their possible death as a result of the fighting on 7 and 9 March 2002 ... were not resolved. Witness statements in this regard were not duly verified and recorded. The investigating authorities did not take comprehensive measures in order to establish the specific places where the bodies of A. P. Akhmadov, S.-S. Kanayev, I. Dzhamayev, I. A. Chagayev, A. Sh. Pokayev, and I. S. Magomadov, who, according to their relatives, had been apprehended together with the other residents of the village, had been found. Up until now the whereabouts and the fate of other residents of Stariye Atagi who have been missing since the operation was conducted in March 2002 have not been established. In such circumstances the decision to suspend the preliminary investigation should be quashed and the investigation resumed.” 54. On 9 September 2006 the Military Prosecutor’s Office of the UGA ordered another forensic molecular-genetic expert examination aimed at establishing the fate of several other disappeared persons. The order contained the following passage: “...In the course of the operation a house situated in Nagornaya Street was shelled and blown up, a red VAZ 21099 car with members of an illegal armed group in it was burned and crushed by an APC. ...” Despite specific requests made by the Court to submit a copy of the file in criminal case no. 56031 (at present no. 34/00/0014-03), the Government did not provide any documents from the case file. They stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. At the same time the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of documents of a confidential nature and without the right to make copies. 55. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 56. Article 125 of the new CCP lays down a judicial procedure for the consideration of complaints. Orders of an investigator or prosecutor refusing to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice may be appealed against to a local district court, which is empowered to check the lawfulness and grounds of the impugned decisions. 57. Article 161 of the new CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited. 58. Federal Law no. 130-FZ of 25 July 1998 on the Suppression of Terrorism (Федеральный закон от 25 июля 1998 г. № 130-ФЗ «О борьбе с терроризмом») provides as follows: “For the purposes of the present Federal Law the following basic concepts shall be applied: ... ‘suppression of terrorism’ shall refer to activities aimed at the prevention, detection, suppression and minimisation of the consequences of terrorist activities; ‘counter-terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts, ensuring the security of individuals, neutralising terrorists and minimising the consequences of terrorist acts; ‘zone of a counter-terrorist operation’ shall refer to an individual terrain or water surface, means of transport, building, structure or premises with adjacent territory where a counter-terrorist operation is conducted; ...” “1. In the zone of an anti-terrorist operation, the persons conducting the operation shall be entitled: ... (2) to check the identity documents of private persons and officials and, where they have no identity documents, to detain them for identification; (3) to detain persons who have committed or are committing offences or other acts in defiance of the lawful demands of persons engaged in an anti-terrorist operation, including acts of unauthorised entry or attempted entry to the zone of the anti-terrorist operation, and to convey such persons to the local bodies of the Ministry of the Interior of the Russian Federation; (4) to enter private residential or other premises ... and means of transport while suppressing a terrorist act or pursuing persons suspected of committing such an act, when a delay may jeopardise human life or health; (5) to search persons, their belongings and vehicles entering or exiting the zone of an anti-terrorist operation, including with the use of technical means; ...” “...2. Information that cannot be released to the public includes: (1) information disclosing the special methods, techniques and tactics of an anti-terrorist operation; ... (4) information on members of special units, officers of the operational centre managing an anti-terrorist operation and persons assisting in carrying out such operation. In accordance with the legislation and within the limits established by it, damage may be caused to the life, health and property of terrorists, as well as to other legally-protected interests, in the course of conducting an anti-terrorist operation. However, servicemen, experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage, in accordance with the legislation of the Russian Federation.” 59. Federal Law no. 1026-1 of 18 April 1991 on the Police governs various aspects of the police service. 60. Presidential Decree no. 1255c of 23 September 1999 on Measures Enhancing the Efficiency of Counter-Terrorist Operations in the Territory of the North Caucasia Region provides for the creation of the UGA and contains general provisions concerning its structure and operation. It also provides for additional measures to be taken by local authorities and the FSB to maintain public order and security in the region. | 1 |
train | 001-109855 | ENG | MKD | ADMISSIBILITY | 2,012 | DEARI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicants, Mr Gajur Deari (“the first applicant”), Mr Bedri Murtezanov (“the second applicant”) and Mr Asllan Sherifi (“the third applicant”), are Macedonian nationals who were born in 1952, 1952 and 1955 respectively and live in Golema Recica, Tetovo and Skopje. They were represented before the Court by Ms Nuala Mole, of the Aire Centre (Advice on Individual Rights in Europe, London). The Macedonian Government (“the Government”) were initially represented by their former Agent, Mrs R. Lazareska Gerovska, succeeded subsequently by their present Agent, Mr K. Bogdanov. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant is the father of Mr Agron Deari (“Mr A.D.”) who was killed on 30 August 2002; the second applicant is the father of Mr Jakup Murtezanov (“Mr J.M.”); and the third applicant is the father of Mr Qahil Sherifi (“Mr Q.S.”). Mr J.M. and Mr Q.S. were killed on 7 September 2003. 4. The Government invited the Court to view the events giving rise to the applicants’ complaints in the light of the 2001 armed conflict between ethnic Albanians and the Government security forces and the fact that armed criminal groups were still active in the former crisis areas several years after the conflict. In respect of Mr A.D.’s killing, particular attention was drawn to the incidents of 29 August 2002 on the Tetovo-Gostivar highway (“the highway”) in which armed civilians kidnapped eight persons, including two minor girls. In this connection the Government referred to a public announcement of 30 August 2002 in which the Ministry of the Interior (“the Ministry”) called for the inhabitants of neighbouring villages to remain, for security reasons, in their homes. 5. At 3.30 a.m. on 30 August 2002 Mr A.D. was travelling in a car with foreign registration plates, together with J.I., when police officers from the special police force “Lions”, under the Ministry, stopped them on the highway. According to a report drawn up the same day by the Ministry, Mr A.D., in an attempt to flee the scene, resisted the security forces by pulling out a pistol. Firearms were used against him. He sustained several bodily injuries. Furthermore, two pistols were found in the car. The local police station was alerted immediately. Police officers arrived at the scene and took Mr A.D., who still held the pistol in his hand, to the local medical centre where his death was confirmed. J.I. was arrested on account of unlawful possession of firearms and released without charge. The names of the officers involved in his arrest were not recorded in any register of the Ministry. 6. On the same day the investigating judge, public prosecutor, police and representatives of the OSCE’s mission in the respondent State inspected the scene, but no useful evidence was found owing to heavy rainfall. In a written and duly signed statement given before the investigating judge, the first applicant requested that no autopsy or investigation be conducted in relation to his son’s death. In view of that request, the investigating judge ordered an external examination of Mr A.D.’s corpse and requested that an expert describe the injuries, the way in which they had been sustained, as well as to determine, if possible, the time and direct cause of Mr A.D.’s death. The expert report noted bruises to Mr A.D.’s head, face, chest and stomach and several penetrating gun-shot wounds to his leg, arms, chest and neck. 7. On 2 September 2002 the public prosecutor requested that the investigating judge take certain steps to investigate Mr A.D.’s death. The request referred to the on-site examination report of 30 August 2002, which was to be regarded as a criminal complaint. 8. On 5 September 2002 the Ministry questioned J.I. According to a report signed by a police officer, J.I. stated, inter alia: “... we [with Mr A.D.] were stopped by the police. I showed them my ID and car registration document. The officers ordered me to step out of the car. A. [Mr A.D.] got out of the car as well. I was ordered to open the boot. ... During the search of the boot and the interior of the car, I heard an officer saying ‘I’ve found two guns’. After this statement, my hands were put behind my back and tied ... At one moment, they put my head in the boot. While my torso was in the boot I heard gunshots, after which a sweater was put over my head to prevent my sight ... I heard one of the officers speaking into the radio, saying that one of the persons concerned had been killed after he had fired a gun while attempting to flee ...” 9. On the same day, the Ministry submitted a criminal complaint against an unidentified perpetrator. Photo documentation of the scene and of Mr A.D.’s corpse, as well as expert reports confirming his bodily injuries and bullet wounds were submitted to the investigating judge. 10. On 22 November 2002 the Forensic Science Department (Управа за криминалистичка техника) at the Ministry sent the investigating judge an expert report concerning Mr A.D.’s pistol, which stated the following: “... it was concluded that it had been fired from the pistol submitted for examination ... all parts of the weapon are fully operational ... A test was done for nitrate residue on samples taken from Mr A.D. ... The reaction was negative, namely no nitrate residue was discovered. We emphasise that the samples were covered in blood, which significantly affected the analysis for nitrate residue... Since the clothes were abundantly covered in blood, we cannot determine the distance from which the gunshots were fired ...” 11. The first applicant alleged that on 27 September 2002 he had notified the OSCE’s representatives in the respondent State that he had not been contacted by any competent institution in respect of his son’s death. No evidence was provided in this respect. 12. In February 2003 the investigating judge returned the case file to the public prosecutor. The latter requested that the Ministry determine the identity of the police officers involved in the incident. 13. In a letter of 15 August 2003, the Ministry confirmed that the special police forces had used weapons against Mr A.D. Information was sought from the relevant department as to whether the officers concerned had taken the required actions (see paragraphs 35 and 36 below) after the incident. 14. In December 2003 the public prosecutor again asked the Ministry to submit the required information. 15. At the same time, a working group was set up to investigate several cases of alleged police abuse of citizens of Albanian ethnic origin, including the present case. The working group involved representatives of the Ministry, the OSCE, the EU, NATO and the US Embassy in the respondent State. The working group operated between December 2004 and October 2005. 16. On 12 January 2005 the investigating judge heard evidence from J.I. According to the transcript signed by J.I., the latter stated, inter alia: “... When we approached the toll booth on the Tetovo-Gostivar highway, I noticed a high police presence and decided to turn around and take the ‘old road’... While driving on the old road ... I again noticed a high police presence; the road was blocked by a heavy vehicle. At both sides of the road there were many armed police officers. A police officer used a lamp to stop our car. He approached the car and requested documents. I gave him my registration document and my ID. Then he grabbed my shirt and pulled me out of the car. After me, Mr A.D. was also removed from the car. Both of us were standing in front of the car, while police officers conducted the search. One of them said that he had found two guns in the car. Each of them belonged to me and A. [Mr A.D.]. At that moment, a police officer grabbed the handcuffs on my hands which were behind my back and pulled them up; another officer grabbed my leg and pushed me to the ground. They dragged me to the back of the car. ... They put me head first into the boot. My legs were outside the car. An officer pointed an automatic gun at my head and another beat me. I couldn’t see what was happening to A. I heard someone saying ‘stop, hold on’. Gunshots were subsequently heard, I think from several weapons, but I did not know what was going on. They took off my sweater and put it over my head. They took me out of the boot and placed me on the ground ...The two pistols were in the compartment in front of A.’s seat ... The person who pulled me out of the car that night was wearing a mask, so I could see only his eyes, I couldn’t see his face. Others were wearing masks as well. I only noticed the ‘Lions’ symbol on their uniforms...” 17. Between March and June 2005, the investigating judge examined eight police officers. Between September and December 2005, the investigating judge requested, in vain, that a certain police officer, A.M., be summoned. 18. In December 2005 the file was forwarded to the public prosecutor, who, in September 2006, returned it to the investigating judge, requesting, inter alia, that the first applicant be examined. By a letter of 17 November 2006, the investigating judge informed the public prosecutor that the first applicant had not been examined because he had not appeared in court owing to illness. After the file was returned to the public prosecutor, the latter requested, by a letter of 2 February 2007, that the Ministry undertake additional measures to identify the individuals involved in Mr A.D.’s killing. 19. On 15 September 2008 the first applicant, with the assistance of Mr M.R., a lawyer from Skopje, sought information from the public prosecutor about the death of his son and requested a copy of the case file. On 17 September 2008 the public prosecutor informed him that a file had been opened in respect of an unidentified perpetrator and that certain investigative steps had been taken, but the perpetrator had not yet been discovered. Mr M.R. was permitted to inspect the case file. 20. The first applicant took no further action. It appears that the investigation into the killing of Mr A.D. is still pending. 21. On 7 September 2003 the Ministry of the Interior and the Ministry of Defence conducted a joint operation in the village of Brest with the purpose of apprehending an armed group suspected of having committed several crimes, including robbery and kidnapping of civilians and police officers. There was an exchange of fire in which automatic long-range weapons and mortars were used. After the exchange of fire, the security forces searched the area and discovered five bunkers and a large quantity of heavy weaponry and ammunition. Mr J.M. and Mr Q.S. were killed in this operation. According to the post-mortem reports of the same date drawn up by the Forensic Institute, Mr J.M. sustained six bullet wounds and Mr Q.S. sustained four. Gunpowder tests confirmed the presence of nitrate residue on the hands of Mr J.M. and Mr Q.S. 22. On 12 September 2003 the Ministry submitted photos and video material of Mr J.M.’s and Mr Q.S.’s corpses to the public prosecutor, as well as an expert report regarding the weaponry and ammunition found. 23. On 7 November 2003 the public prosecutor requested information from the Ministry of the Interior. In a letter of 11 July 2005 the Ministry informed the public prosecutor that, owing to the use of heavy weapons by the armed group, police officers had not been able to reach the armed group’s positions, but that military forces from the Ministry of Defence had arrived at the critical area instead. 24. On 21 September 2005 the public prosecutor notified the Ministry that on the basis of the available information there were no grounds for the public prosecutor’s intervention. 25. As stated by the Government, on the basis of recommendations of the working group that also looked into this case, on 31 January and 4 April 2006 the public prosecutor contacted the Ministry of Defence seeking information about the operation. In a letter of 5 June 2006, the Ministry of Defence indicated that the operation had been carried out by the Ministry of the Interior. On 15 February 2007 the public prosecutor requested that both Ministries clarify the inconsistencies concerning their involvement in the operation. In submissions of 16 April 2007, the Ministry of the Interior confirmed its position indicated in its letter of 11 July 2005 and invited the public prosecutor to clarify the matter with the Ministry of Defence. The same was repeated in the Ministry’s letter dated 26 June 2008. 26. On 17 September 2008 the second and third applicants, represented by Mr M.R., asked the public prosecutor to provide them with a copy of the case file. They stated that all the information they had obtained about the death of Mr J.M. and Mr Q.S. had come from the media since no competent institution had ever contacted them concerning the case. By a letter of 26 December 2008, the public prosecutor informed the second and third applicants of his requests for information from both Ministries and his “resolution” of 21 September 2005 (see paragraph 24 above). According to the Government, this letter was sent on 21 January 2009. 27. The second and third applicants took no further action. It appears that the investigation into the killing of Mr J.M. and Mr Q.S. is still pending. 28. The applicants submitted extracts of articles and reports published between April 1998 and 2005 by Human Rights Watch and Amnesty International about alleged police abuse, in particular of Macedonian citizens of Albanian ethnic origin. Most of the documents concerned the period before and after the 2001 armed conflict. None of them discussed the deaths of the applicants’ sons. 29. Article 123 of the Criminal Code provides that a person who takes the life of another shall be punished with imprisonment of at least five years. It also provides for imprisonment of at least ten years or lifetime imprisonment in the case of aggravated murder. 30. The provisions of the Criminal Proceedings Act relevant to the present case were described in the Jašar judgment (see Jašar v. the former Yugoslav Republic of Macedonia, no. 69908/01, §§ 33-40, 15 February 2007). 31. Section 25 (1) and (3) of the Public Prosecution Act of 2004 (Закон за Јавното Обвинителство, Official Gazette no. 38/2004) provided that citizens, bodies and other legal persons could make submissions, complaints and statements to the public prosecutor in relation to activities that fell within his or her competence. The public prosecutor was required to take, as soon as possible, but not later than three months after the service of a criminal complaint, any action specified by law. 32. Under section 47 of this Act, the superior prosecutor’s office supervised the work of the subordinate prosecutor’s office through an inspection of case files and in any other way. 33. Section 21 of the Public Prosecution Act of 2007 (Official Gazette no.150/2007) provides that the superior prosecutor’s office supervises the work of the subordinate prosecutor’s office in concrete cases brought before the latter. The aim of that supervision is to detect inter alia any lack of professionalism, unlawful, untimely or irresponsible performance by the public prosecutor concerned and any serious violation of the rights of parties or other persons that participate in the proceedings. 34. Section 39 (1) and (3) of that Act provides for the same rules as those specified in section 25 of the 2004 Public Prosecution Act (see paragraph 31 above). 35. Under Article 27 of the Government Decree on the use of coercion and firearms, when means of coercion or firearms have been used, the State official concerned must submit a written report to his immediate superior who will decide whether the action was lawful and justified. 36. | 0 |
train | 001-73187 | ENG | TUR | CHAMBER | 2,006 | CASE OF UÇAR v. TURKEY | 3 | No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence;Article 6-3-c - Defence through legal assistance);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life);No violation of Article 14 - Prohibition of discrimination (Article 14 - Discrimination);No violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | null | 8. The applicant was born in 1948 and lives in Gaziantep. The application concerns the alleged abduction and ill-treatment of Cemal Uçar, the applicant’s son, by unknown persons and his death in Diyarbakır E-type prison. At the time of the events giving rise to the application, Cemal Uçar was 26 years old. The facts surrounding the detention and death of the applicant’s son are disputed between the parties. 9. On 5 October 1999 at around 11 a.m. Cemal Uçar left his house to buy water. Four plain-clothes persons carrying weapons and radios attempted to abduct him. Cemal Uçar tried to run away. However, he was caught behind his house. These persons told him that they were policemen. He was then blindfolded and put in a vehicle. The applicant claims that a neighbour witnessed the abduction. According to this witness, Cemal Uçar resisted arrest but was dragged into a dark red car. After being driven around for some time Cemal Uçar was taken to an unknown location. 10. Between 11 and 26 October 1999, the applicant filed petitions with the public prosecutor’s office at the Diyarbakır State Security Court and the Diyarbakır public prosecutor. He requested that the authorities carry out an investigation into the abduction of Cemal Uçar and that he be informed of his son’s whereabouts. 11. Between 5 October and 2 November 1999 Cemal Uçar was detained by the kidnappers. He was kept blindfolded, deprived of food and was subjected to electric shocks. 12. On 2 November 1999 the kidnappers took Cemal Uçar to the city stadium in Diyarbakır and left him outside. A balaclava was put over his head and he was made to lie on the ground. The kidnappers told him that they would send the police shortly. 13. On 11 October 1999, after having received the applicant’s petition, the Diyarbakır public prosecutor requested the security directorate to examine the allegations. He took statements from the applicant concerning the alleged abduction of Cemal Uçar. 14. On 22 November 1999 the Diyarbakır public prosecutor sent letters to the public prosecutor’s office in Nusaybin, the Security Directorate, the Gendarme Command and the Population Office in Diyarbakır, requesting these offices to conduct an investigation. 15. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır AntiTerror Branch and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court. 16. On 29 November 1999 the deputy chief of police in Diyarbakır notified the Diyarbakır public prosecutor that on 24 November 1999 Cemal Uçar had committed suicide in Diyarbakır E-type prison. 17. On 10 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant’s allegations. 18. On 23 December 1999 the decision of 10 December 1999 was served on the applicant. 19. On 2 November 1999, at 3.30 a.m., within 3 to 5 minutes after the kidnappers had left, police arrived at the stadium and arrested Cemal Uçar. The police officers found a forged identity card in Cemal Uçar’s pocket. It had been placed there by his kidnappers. He was then taken to the Diyarbakır State Hospital and examined by a doctor who noted that there were several injuries on various parts of his body. 20. On 10 November 1999 Cemal Uçar was forced by the police to sign a statement, according to which he had been responsible for the organisation of Hizbullah activities in Diyarbakır. 21. On 11 November 1999 Cemal Uçar, along with nine other persons, was taken to a medical expert who noted that none of the ten persons had sustained any injuries. 22. On the same day, Cemal Uçar made statements before the public prosecutor at the Diyarbakır State Security Court and denied the truth of the statements taken from him on 10 November 1999 by the police. Subsequently, he was taken to the Diyarbakır State Security Court before which he repeated the statements that he had made to the public prosecutor. The court ordered his detention on remand. 23. On 2 November 1999, at around 3.15 a.m., in the course of a routine police check, Cemal Uçar was seen sitting in front of the city stadium. As he appeared suspicious, the police officers asked him to show them his identity card. A forged identity card was seized and Cemal Uçar was taken into custody. 24. On 4 November 1999 the public prosecutor at the Diyarbakır State Security Court extended Cemal Uçar’s custody period for two days. On 6 November 1999 the period was extended for a further six days by the Diyarbakır State Security Court. 25. In his statement to the police dated 10 November 1999, Cemal Uçar acknowledged his involvement in Hizbullah activities in Diyarbakır. 26. On 11 November 1999 the Diyarbakır State Security Court ordered his detention on remand. Cemal Uçar was then transferred to Diyarbakır Etype prison. 27. After being transferred to Diyarbakır E-type prison, the applicant was placed in a cell where he remained for eleven days. 28. On 24 November 1999 Cemal Uçar died in Diyarbakır E-type prison. 29. In a letter dated 27 September 2000, the applicant’s representatives informed the Court that the applicant believed that police officers had killed his son. In their submissions of 15 September 2005, the representatives claimed that Cemal Uçar could have been killed by other inmates of the ward where Cemal Uçar had been detained. 30. On 24 November 1999 during the regular morning inspection, at around 8.15 a.m., Cemal Uçar was discovered by prison officers hanging from a bunk bed by a belt in ward no. 1 in Diyarbakır E-type prison. The prison officers called the prison doctor who established that Cemal Uçar was dead. They drafted a report immediately after the incident which stated that Cemal Uçar had been hung by a belt. They then informed the prison director and his deputy. 31. On the same day, at 9.30 a.m., the public prosecutor, the prison director, his deputy and one prison officer prepared a further report describing the ward in which the applicant’s son had died. 32. At 11.30 a.m. a further report was drafted by technical police officers from the Diyarbakır Security Directorate. 33. Subsequently, an autopsy was carried out on the deceased. According to the autopsy report, no indication of ill-treatment, such as scars or bruises, was identified on the corpse. The report revealed that the cause of death was mechanical asphyxia resulting from suspension. 34. On the same day, statements were taken from the three prison officers who had found the body of Cemal Uçar and from the two other inmates of the ward in which Cemal Uçar had been found dead. 35. On 2 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute, finding that Cemal Uçar had committed suicide and that there was no offence to prosecute. 36. On the same day, the public prosecutor at the Diyarbakır State Security Court issued an additional decision not to prosecute in respect of the charges against Cemal Uçar, given the latter’s demise. 37. The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, may be summarised as follows. 38. The following information is disclosed in the documents submitted by the Government. 39. The applicant maintained before the Diyarbakır public prosecutor that his son had been abducted, that he did not know whether the persons who had abducted his son had been police officers and that he feared for his son’s life. 40. The Diyarbakır public prosecutor informed the security directorate of the alleged abduction of Cemal Uçar and requested that an investigation be conducted into his disappearance. 41. On 22 November 1999 the Diyarbakır public prosecutor sent letters to the public prosecutor’s office in Nusaybin, the Security Directorate, the Gendarme Command and the Population Office in Diyarbakır, requesting these offices to conduct an investigation and transmit certain information regarding Cemal Uçar. 42. On 26 November 1999 the Diyarbakır Security Directorate reported to the Diyarbakır public prosecutor that Cemal Uçar had been taken into police custody on 2 November 1999 by police officers from the Diyarbakır AntiTerror Branch, and that on 10 November 1999 his detention on remand had been ordered after he had been brought before the public prosecutor at the Diyarbakır State Security Court. 43. By a further letter dated 29 November 1999, the deputy chief of police in Diyarbakır notified the Diyarbakır public prosecutor that on 24 November 1999 Cemal Uçar had committed suicide in Diyarbakır Etype prison. 44. On 10 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute in respect of the applicant’s allegations, finding that Cemal Uçar had been taken into police custody and, consequently, no offence had been committed or offender sought. On 23 December 1999 the decision of 10 December 1999 was served on the applicant. 45. In his statement to the police dated 10 November 1999, Cemal Uçar acknowledged his involvement in Hizbullah activities in Diyarbakır. 46. On 2 November 1999, following his arrest, Cemal Uçar was taken to the Diyarbakır State Hospital and examined by a doctor who noted the following: “An abrasion on the nose, scars on the right wrist, right hand and left foot, an oedema on the right foot and injuries to various parts of the body have been identified...” 47. On 11 November 1999 Cemal Uçar, along with nine other persons, was taken to a medical expert in a health clinic in Diyarbakır who noted that none of the ten persons had sustained any injuries. 48. On 11 November 1999 Cemal Uçar requested to be placed in the same prison ward as the other persons who were charged with membership of the Hizbullah. 49. According to two reports drawn up by prison officers, on 24 November 1999, during the regular morning inspection at around 8.15 a.m., Cemal Uçar was discovered by prison officers hanging from a bunk bed by means of a belt. The prison officers called the prison doctor who established that Cemal Uçar was dead. They then informed the prison director and his deputy. 50. On 24 November 1999, at 9.30 a.m., the public prosecutor, the prison director, his deputy and a prison officer prepared a further report describing the ward in which the applicant’s son had died. According to this second report, there were six bunk beds in the 36 m² ward where Cemal Uçar was kept. One of these six beds was turned upright so that it could be used as a wardrobe. The deceased was hanging from the upright bunk bed by a blue belt. There were two pillows, a bottle of water and two glasses placed under his feet. There was no sign of a struggle in the ward, such as broken objects or traces of blood. 51. At 11.30 a.m. a report was drafted by technical police officers from the Diyarbakır Security Directorate. They established that Cemal Uçar had committed suicide by hanging himself from a bunk bed, positioned vertically, by means of a black belt. They took photographs of the scene of the incident, drew a plan and filmed the ward with a video camera. 52. An autopsy was carried out on the deceased at Diyarbakır State Hospital by Dr Lokman Eğilmez, the director of the Diyarbakır Forensic Medical Branch Office. According to the examination of the body and autopsy report, no indication of ill-treatment, such as scars or bruises, was identified on the corpse. At the end of the examination, Dr Lokman Eğilmez concluded that the cause of death was mechanical asphyxia resulting from suspension. 53. According to the documents submitted to the Court, the prison officers testified that Cemal Uçar had taken breakfast at around 6.45 a.m. and that at around 8.15 a.m. they had found him dead during the inspection of the ward. One of the officers stated that the other inmates were asleep when they arrived at the scene of incident. The officers stated that they then informed the prison authorities. The two inmates stated that they had been woken up at around 8 a.m. by a noise in the ward and had found that Cemal Uçar had hung himself and that prison officers had been in the ward. They both testified that Cemal Uçar had been depressed and had talked about killing himself prior to his death. They affirmed that Cemal Uçar had talked about his previous suicide attempts during his detention in police custody. 54. On 2 December 1999 the Diyarbakır public prosecutor issued a decision not to prosecute, finding that Cemal Uçar had committed suicide and that there was no offence to prosecute. 55. On the same day, the public prosecutor at the Diyarbakır State Security Court issued an additional non-prosecution decision in respect of the charges against Cemal Uçar, given the latter’ demise. 56. The following information appears from documents submitted by the applicant. 57. In his petition dated 11 October 1999 addressed to the public prosecutor at the State Security Court, the applicant submitted that his son had been arrested by persons claiming to be police officers. He requested the authorities to inform him whether his son had been taken into police custody. On the same day, after having been notified that Cemal Uçar had not been taken into police custody, the applicant lodged a further petition with the public prosecutor’s office in Diyarbakır, requesting the authorities to ascertain the whereabouts of his son. 58. In his second petition dated 26 October 1999, addressed to the Diyarbakır public prosecutor, the applicant repeated his allegation concerning his son’s abduction. The applicant further stated that two plain-clothes police officers had gone to his son’s house two days after the abduction and that, on the same day, a plain-clothes police officer had gone to his house, searching for his son. The applicant contended that he had been unable to obtain information about his son from the Diyarbakır Security Directorate. He requested the public prosecutor’s office to ascertain his son’s whereabouts. 59. In his letter, Mr Ensaroğlu informed the Minister of the Interior of the disappearance of Cemal Uçar and requested that an investigation be conducted. 60. In his statements to the public prosecutor, Cemal Uçar claimed that he had been kidnapped and taken somewhere close to the Diyarbakır prison. There he had been tortured by the kidnappers, who said they were working for Mahmut Yıldırım, an individual also known as “Yeşil”, who carried out unlawful acts in the south-east in the 1990s and whose activities were allegedly known to the police and the Turkish intelligence service. He denied the truth of the statements taken from him by the police. He maintained that he had been forced to sign them. 61. In his statements before the Diyarbakır State Security Court, Cemal Uçar repeated the statements that he had made to the public prosecutor. 62. According to the report drafted at 5.45 a.m. on 2 November 1999 about the search conducted in Cemal Uçar’s house, the house was searched in the course of a police operation carried out against the Hizbullah and seven books were found. This report was signed by eight police officers and Cemal Uçar. 63. Mr İ. Sağlam stated that Cemal Uçar sent a letter to his family, informing them that he had been taken into police custody and, subsequently, detained in Diyarbakır E-type prison. After having received the letter, the applicant went to the prison and saw his son. Subsequently, he asked Mr İ. Sağlam to visit his son. On an unspecified date, Mr İ. Sağlam visited Cemal Uçar, who maintained that he had been kidnapped by security forces and that he had made statements before the public prosecutor about his abduction. Cemal Uçar refrained from informing the public prosecutor about the place where had been kept for almost a month as he feared for himself and his family. Mr İ. Sağlam further stated that he did not have the impression that Cemal Uçar was disturbed psychologically. However, he had feared the possibility of being taken to the security directorate again. 64. Two reports were prepared on behalf of the applicant by Dr A.M. Anscombe, a consultant forensic pathologist practising in the United Kingdom. The applicant instructed Mr Anscombe to review the autopsy report on Cemal Uçar, the police reports on the inspection and verification of the scene of the incident, the plan of the ward, the video and photocopies of photographs of the scene, with the deceased in situ, and to comment on the adequacy of the autopsy examination. 65. In his reports Dr Anscombe maintained that his main criticism was the absence of autopsy photographs. He stated that autopsy photographs were a standard part of any forensic post-mortem examination since without photographs, one was reliant upon the description by the pathologist and there was no other means of corroborating what the pathologist had found or described. He further maintained that the autopsy report would be considered to be inadequate in the United Kingdom because of its brevity and lack of detail. As regards the cause of death of Cemal Uçar, Dr Anscombe stated that there was nothing in the disposition of the body, the manner of dress, and disposition of the scene which raised suspicion of anything other than suicide. He however opined that it was possible that the deceased could have been suspended by another person or persons, the assessment of which likelihood in turn rested on the accuracy and reliability of the autopsy report. He concluded that that was why an adequate autopsy description with documentation, including photographs, was so important. 66. At the time of the events, Turkish law did not contain any provision regulating communications between persons held in custody and their relatives. On 6 February 2002 the third paragraph of Article 128 of the Code of Criminal Procedure was amended by Law no. 4744 and currently reads as follows: “When a person is arrested, following the public prosecutor’s decision, a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period.” 67. A description of the other relevant domestic law at the material time may be found in the judgments of Tekdağ v. Turkey (no. 27699/95, §§ 4051, 15 January 2004), and Akdoğdu v. Turkey (no. 46747/99, §§ 28 and 29, 18 October 2005). | 1 |
train | 001-88562 | ENG | NOR | CHAMBER | 2,008 | CASE OF K.T. v. NORWAY | 2 | No violation of Art. 8;No violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1971 and lives in Stavanger. 7. The applicant was married to Mrs J.V. Together they had two boys born in 1994 and 1996. He receives a disability pension on account of Attention Deficit Hyperactivity Disorder (ADHD). He is active as an instructor in ice hockey and football. 8. In July 2001, the applicant's wife moved out of their home and went to live in Finland. The children have since lived with the applicant. Shortly after her departure, Mrs J.V. sought to obtain an interlocutory injunction granting her the sole responsibility for the daily care of the children, arguing that the applicant had physically abused her and had an abusive consumption of medication. 9. The applicant has been taking medication for ADHD and for an earlier back injury. 10. Both the Stavanger City Court (byrett) and Gulating High Court (lagmannsrett) rejected her request. Subsequently the applicant and Mrs J.V. concluded a judicial settlement agreement according to which he was to assume the daily care. 11. Concurrently with the above, Mrs J.V. reported the applicant to the police alleging that he had assaulted and threatened her. The police granted a request for an injunction prohibiting the applicant from visiting her or calling her by telephone but, after having heard the applicant, they dismissed all her complaints and lifted the prohibition. 12. In addition, Mrs J.V. reported her concerns (bekymringsmelding) to the local child care authorities, alleging that the applicant was abusing intoxicating substances and that the children were at risk of violence. The child welfare services (Barneverntjenesten) at the Hillevåg District Office (helse- og sosialdistrikt) opened an investigation (hereinafter referred to as “the first investigation”) under section 4-3 of the Child Welfare Services Act 1992 (hereinafter referred to as “the 1992 Act”), in order to verify whether there was any ground for taking child care measures under the 1992 Act (notably under section 4-12 which sets out the grounds for compulsory taking into care of a child, such as serious deficiencies in the child's daily care, ill-treatment or other serious abuse occurring in the home, likelihood of parents' inability to provide care causing serious damage to the child's health or development). As a result, from 22 August 2001 until the end of October 2001, the authorities carried out 10 unannounced visits to the applicant's home. 13. The applicant felt that the Hillevåg District Office held preconceived views against him, due to the number of visits over a period of two months, inter alia in order to reveal high consumption of medicines, and that confidential information had been imparted to Mrs J.V. in this way. After exchanges between his lawyer and the Hillevåg District Office, the matter was transferred to the child welfare services at the Hinna District Office, which had their first conversation with the applicant on 7 November 2001. He was reticent to talk to begin with but, after being told that his ability to shield the children against the parental conflict was of great relevance, at a meeting on 12 December 2001 he provided such information and also produced written statements by his doctor on his consumption of medicines and the possibility of reducing it. 14. The first investigation was discontinued on 17 December 2001. 15. On 25 December 2001 followed a renewed call of concern to the child welfare services (Barnevernvakten) in Stavanger. The boyfriend of J.V.'s sister had called to inform that J.V. had perceived the applicant as being drugged when speaking to him on the phone that day. Immediately, on the same day, the child welfare services carried out an unannounced visit to the applicant's home and left after 10 minutes, having found no evidence of intoxication. 16. In a report of 10 January 2002 by the Hinna District Office concerning the first investigation, it was noted inter alia that the applicant's doctor considered his consumption of medication too high and that it was desirable to reduce it, while the applicant, following his lawyer's advice, was unwilling to come forward with information on the subject. No instances of intoxication had been found. The report concluded that the children did not live in a situation that was covered by any of the grounds for compulsory taking into public care under section 4-12 of the 1992 Act, although the boys' care situation had been made insecure and unpredictable by the parents' conflict. The report also contained an assessment of the conduct of the mother, who appeared very assertive and was using inter alia the child welfare services in her “warfare” against the applicant, to the boys' detriment. 17. On 28 February 2002, after a new report of concern, this time by a named third party, Mr R, who was a police officer, the child welfare services at Hillevåg opened a new investigation (hereinafter referred to as “the second investigation”). The source referred to an incident which he had observed while off duty near an ice hockey arena on 16 February 2002, when the applicant allegedly had difficulty standing on his feet, due to intoxication. A trainer had held him under his arm and had led him out. As the applicant wished to drive home his car keys had been taken from him. The applicant's mother had then come to collect him. Mr R worked at the local police station and as he had returned to work he had found a message stating that somebody had called to report that the applicant had driven his children by car while in a state of intoxication. Mr R had the impression that the applicant often had turned up at the sports hall in a visibly intoxicated state. 18. Three other sources, two of which were anonymous, had reported respectively on 4, 14 and 25 March 2002 incidents of intoxication and, one of them, that the applicant was violent and threatening and mentioned rumours about drugs abuse. 19. The anonymous report of 25 March 2002 recounted an incident when the applicant had been so intoxicated that he did not manage to pass the sliding door in the sports hall and that, when his oldest son assisted him through the door, the applicant hit after him. Some adults in the hall had commented that this was not the first time. The managers of the sports club had called the applicant's mother who came to collect the children. The source was worried about the children's situation. 20. The report of 4 March 2002 had been submitted by another named third party, Mr O, recounting that some time before Christmas his son and the latter's mother had gone to the applicant's home to fetch some money. When they arrived the applicant had fallen over due to intoxication. They had then brought the applicant's eldest son with them to the cinema. Since the applicant was not capable of fetching the youngest son in the kindergarten, they had called the applicant's mother and informed her. When Mr O. heard about this incident he was worried for the applicant's children. 21. On 21 March 2002 the child welfare authorities communicated to the applicant through his lawyer two of the above reports of concern, namely those of 28 February and 14 March 2002, with an invitation to the applicant for a meeting to discuss the allegations. In response to the above, the applicant's lawyer pointed out that the reports of concern were of the same type as those that had prompted the investigation which had been opened in August 2001 and had been concluded. He explained to the authorities that the applicant had not been under the influence of drugs but had fainted in a state of malaise; he had not had breakfast that day and had been under duress because of the proceedings against him. 22. According to the applicant, who refused his cooperation in the investigation, the allegations against him must have originated from persons within his ex-wife's entourage and were part of her attempt to obtain the daily care of the children. 23. On 11 April 2002 the Hillevåg District Office, with reference to an investigation conducted under section 4-3 of the 1992 Act, addressed requests for information to several instances, stating that the Office had reason to fear that the applicant's children lived in a situation such as described in section 4-12 of the Act. The requests, which set out specific questions capable of shedding light on the children's situation, were addressed to the applicant's doctor, who was also the doctor of his two sons, the school of the eldest son, the kindergarten of the youngest son, and the police, who were reminded of their obligation under section 6-4(3) to disclose such information to the child welfare services. In addition, the applicant's mother was invited to the Office for an interview. 24. By a letter also dated 11 April 2002 (but posted on 16 April 2002) to the applicant's lawyer, the Hillevåg District Office, enclosing copies of the above mentioned requests, informed him of the commencement of the second investigation. It referred to the Hinna District Office's report of 10 January 2002 stating that the extent of the applicant's use of tablets was unclear and that he, on the advice of his lawyer, had refused to comment. It had been the Office's intention to inform about these requests at a meeting on 4 April 2002, but since the applicant and his lawyer had objected to meet, they had been informed in writing. The Office added that a meeting with the applicant was scheduled for 14 May 2002, by which date they expected to have received the information requested from the above instances. 25. The Hillevåg District Office received information from the doctor, the school, the kindergarten and the police. The applicant's mother declined to meet for an interview. His ex-wife gave an interview by telephone from Finland. 26. The investigation was concluded by a report from the child welfare services at the Hillevåg District, dated 18 July 2002, which stated that they were worried that the applicant might abuse intoxicating substances (“rusmisbruk”), were unsure as to how much his ADHD diagnosis affected his ability to assume care and were uncertain as to his capability to provide the children with a sufficiently good up-bringing and about his potential for development. It recommended support measures under section 4-4 of the 1992 Act, to be evaluated by the end of a six month period. The measures included assistance such as designating a support home which the children could visit, providing the applicant with guidance on how to master his ADHD illness and problems related to drug taking, while at the same time assuming responsibility as a carer. 27. The applicant disputes this assessment, which had not been based on any further unannounced visits to his home, nor on information provided by his doctor, but on circumstantial evidence collected outside the home. 28. In the meantime, on 23 April 2002, the applicant had instituted proceedings before the Stavanger City Court to obtain a declaratory judgment (fastsettelsesdom), maintaining that there was no legal basis for conducting an investigation against him. He also requested an interlocutory injunction suspending the investigation pending judgment in the case. The City Court found that it was not possible to bring the matter before the courts and on 14 May 2002 dismissed (avviste) the case. It observed that the matter could not be viewed as a “decision” taken in the exercise of official duties in the sense of Article 435(1)(1) of the Code of Civil Procedure. As interpreted in light of the requirement of “legal interest” in Article 54, this term clearly referred to “individual decisions” (“enkeltvedtak”). 29. On an appeal by the applicant, the Gulating High Court, by 2 votes to 1, upheld the City Court's decision, by a judgment of 25 June 2002. 30. The majority considered that a decision taken by the child welfare services to carry out an investigation was not decisive for the applicant's rights and obligations and thus was not a “decision” in the sense of section 2 of the Public Administration Act. The applicant did not have a legal interest in the case under Article 54 of the Code of Civil Procedure. A decision to implement an investigation was only a step in the child welfare services' preparation of the case and thus was not decisive for his rights and obligations. Nor was there any conflict with Articles 6, 8 and 13 of the Convention. 31. The minority found that the appeal should be admitted for review (fremmet), considering that the applicant had a legal interest in having it judicially established whether the authorities had unjustifiably interfered with his right to respect for private life. 32. The applicant sought to appeal against the High Court's decision by challenging its application of the law. He maintained that from Articles 54 and 435 of the Code of Civil Procedure and Articles 6, 8 and 13 of the Convention, it followed that he should have a right to have the lawfulness of the investigation carried out by Stavanger Municipality reviewed by the City Court. He requested the Supreme Court to quash the High Court's decision of 25 June 2002 which upheld the City Court's dismissal of his case and to refer the case back to the City Court for examination. 33. On 21 August 2002 the Appeals Selection Committee of the Supreme Court decided that the case as a whole should be determined by the Supreme Court, under section 6 (2) of the Supreme Court Act 1926 (Høyesterettsloven - lov om forandring i lovgivningen om Høyesterett, 25 June 1926 no. 2). On the same date the President of the Supreme Court decided that it should hear the parties according to the rules applicable to ordinary appeals (ibid.). 34. In his letter to the applicant's lawyer of 3 September 2002, notifying the applicant of the above decisions, the Registrar of the Supreme Court pointed out that, having regard to the fact that the case concerned the application of the law, it was assumed not to be necessary (to commission a first instance court) to collect evidence for use by the Supreme Court. Should the parties nonetheless be of the view that this was necessary, their representatives should by 16 September 2002 give an account of what evidence should be collected and how. Within the same time limit the representatives of the parties were requested to confer about possible dates for oral hearing and shortly thereafter the Supreme Court would contact them to fix the hearing date. The rapporteur judge had estimated that the hearing would last for one day and the representatives of the parties were invited to express a view on the presumed duration of the hearing. 35. The child welfare services of Hillevåg submitted their concluding report of 18 July 2002. Otherwise the state of the evidence was the same as before the lower courts. Neither of the parties had responded to the above-mentioned communication of 3 September 2002 by asking that additional evidence to be collected for use by the Supreme Court. 36. After holding an oral hearing, at which both parties were legally represented, the Supreme Court in a decision of 4 March 2003 upheld, by four votes to one, the High Court's dismissal of the case. On behalf of the majority, Mr Justice Mitsem gave the following reasons: “(23) By way of introduction, I would point out that this case concerns a further interlocutory appeal, in which the jurisdiction of this court in principle is limited pursuant to Article 404 of the Code of Civil Procedure. In this instance, however, the Appeals Committee, and now the Supreme Court, has full jurisdiction, since the lawsuit filed by [the applicant] was summarily dismissed 'because the case is not a matter for the courts of law', see Article 404 (1)(1). (24) I will first consider the suit in relation to the conditions for filing a lawsuit under traditional Norwegian procedural law, set out in Article 54 of the Code of Civil Procedure. Under this provision, it is a procedural condition that the suit shall concern 'a legal relationship or a right'. Furthermore, there must be a 'legal interest' in having the case decided, which inter alia means that the plaintiff must have an actual need for a judicial clarification. (25) The investigation was opened on 28 February 2002 and had to be carried out as soon as possible and within three, alternatively six, months at the latest, see section 6-9 (1) of the [1992] Act. The final report is dated 18 July 2002 and was sent to [the applicant's] lawyer on the same day, with notification that the investigation was closed. (26) [The applicant] has contested the fact that the final report represented the end of the investigation. Reference is made to the fact that the report culminated in a recommendation that family assistance be provided in the home, subject to evaluation within six months, so that there was still a 'case' in progress. (27) To this I would comment that the purpose of an investigation, as expressed in section 4-3 of the [1992] Act, is to ascertain whether there is a basis for taking measures pursuant to the Act, and section 6-9 (2), first sentence, states that 'an investigation [pursuant to section 4-3] is regarded as completed when the child welfare services have made an administrative decision to implement measures or it has been decided to drop the case.' Thus such measures do not represent a continuation of the investigation, but its conclusion. (28) Since the investigation has been closed, it is difficult to see how a judicial decision could have any legal significance for [the applicant]. It will not affect the implementation of the voluntary assistance measures recommended in the final report. Nor will it make any difference as regards the right to initiate a possible investigation in the future, based on new circumstances, or to decide to implement other measures pursuant to the Child Welfare Act, if warranted by circumstances. (29) According to precedent it is undoubtedly the case that the requisite legal interest may cease to exist after legal proceedings have been instituted, with the consequence that the case must then be summarily dismissed. This may even occur - as in the present case – after judicial remedies have been pursued against a decision made in a court of second instance. (30) I would add that a decision to carry out an investigation pursuant to section 4-3 of the [1992] Act is not an individual decision in the sense of the Public Administration Act. The same applies to the measures initiated in the course of the investigation, in this instance the obtaining of information pursuant to section 6-4 of the Child Welfare Act. As a general rule, it is not possible to make the lawfulness of such procedural steps the object of a separate lawsuit pursuant to Article 54 of the Code of Civil Procedure. However, any errors made at this stage could be significant in a lawsuit brought against any administrative decision that might be taken, and could possibly also form the basis for a claim for damages. (31) [The applicant] has undoubtedly experienced the investigation as a strain, also because it was started shortly after the end of a prior investigation, and any judgment in his favour might seem like redress. However, this is not sufficient either to justify a legal interest, see Norsk Retstidende (Supreme Court Legal Reports - “Rt”)-2001-1123. (32) Accordingly, I conclude that under traditional Norwegian procedural law [the applicant 's] suit had to be summarily dismissed. (33) [The applicant] has claimed that a summary dismissal of the case will constitute a breach of the right of access to a court under Article 6 § 1 of the Convention in cases relating to 'civil rights'. (34) I find it unnecessary to express a view on whether a demand that the child welfare services shall not make an investigation concerns a 'civil right' at all. In any event, the Convention accepts that national law must have some latitude to impose limitations on the right of access to a court. However, this is conditional on the limitations having a legitimate purpose, and a proportionality criterion also applies, which means that there must be a reasonable relationship between the purpose of the limitations and the effects they have. Finally, the limitations must not have such far-reaching consequences that the very essence of the right to a court is impaired, see the judgment of the European Court in the case of O v. the United Kingdom (1987), Series A No. 120, which states that the right to a court cannot be precluded in more substantial disputes. (35) In the Rt-2001-1123, the first voting judge points out that 'sparing society – both courts of law and involved parties – lawsuits which, even if they were to succeed, would have no significance for the plaintiff's legal position', constitutes a legitimate aim, and that the proportionality requirement does not militate against maintaining the requirement of a 'legal interest' either. I concur with this. Nor can I see either that the limitation on the right to bring special lawsuits regarding the type of procedural decisions at issue in this case affects the essence of Article 6 § 1. (36) In my opinion, therefore, the summary dismissal of [the applicant 's] suit does not represent a breach of Article 6 § 1. (37) Accordingly, I shall move on to the question of whether the suit must be allowed in pursuance of Article 13 of the Convention ... . [The applicant] has asserted that the investigation was a breach of Article 8 of the Convention regarding the 'right to respect for his private and family life'. The parties are in agreement that in this case there existed no right to lodge an appeal to a superior administrative body, in connection with either the opening of the investigation or the specific steps that were subsequently taken. Thus any review provided for in Article 13 must be carried out by a court of law. (38) The Convention was incorporated into Norwegian law by the Human Rights Act of 21 May 1999 No. 30 and, in the event of a conflict, takes precedence over provisions in other legislation, see section 3. This means, as stated on page 54, first column, of Proposition No. 3 to the Odelsting [the larger division of Parliaemnt] (1998-1999), that 'should a situation arise, after incorporation, where ... Article 13 ... requires the right to a judicial hearing whereas no corresponding right is provided by Article 54 of the Code of Civil Procedure, a judicial hearing must be allowed'. (39) It is my understanding that the Municipality acknowledges that the grounds that would lead to a summary dismissal of [the applicant's] lawsuit pursuant to Article 54 of the Code of Civil Procedure are not tenable pursuant to Article 13 of the Convention. I concur. Pursuant to Article 13, the question of whether Article 8 has been breached must be regarded as a legal issue and be made the object of a declaratory suit [fastsettelssøksmål], even if the breach has ceased to exist. The doubt as regards the right to demand a judgment for non-compliance with a convention that existed in Rt-1994-1244, the so-called 'Women's Prison' case, must be regarded as having been dispelled by the adoption of the Human Rights Act and the rule of precedence set out in section 3 of the said Act. (40) Nevertheless, under the case-law of the European Court, Article 13 only requires the availability of a remedy before a national authority if there is a reasonable ground for claiming that the Convention has been breached; there must be an arguable claim. This criterion is interpreted in accordance with Article 35 § 3 of the Convention, pursuant to which a complaint to the Strasbourg Court shall be summarily dismissed if it is 'manifestly ill-founded'; see inter alia paragraph 33 of the judgment in Powell and Rayner v. the United Kingdom (1990), Series A No. 172. (41) Since the right to take legal action pursuant to Article 54 of the Code of Civil Procedure has been extended as a result of the incorporation of the European Convention on Human Rights, there is reason to consider whether the limitations developed in the Convention case-law should also apply in Norwegian law. The question will then be whether the courts shall summarily dismiss a suit which, after a preliminary substantive assessment, is considered to be clearly unfounded. In that event, it is not a question of limiting rights that are already protected under Norwegian law, but of the degree to which they are to be extended. Thus no conflict with Article 53 of the Convention can arise either, as [the applicant] has argued. (42) In the continuation of the passage I cited above from Proposition No. 3 (1998-1999) to the Odelsting, it is stated that '[the Ministry] will however obtain an assessment ... of whether the Code of Civil Procedure should be amended so that it is clearly evident from the statute when lawsuits concerning alleged breaches of human rights conventions are to be allowed and when they are to be summarily dismissed', and that the question was to be considered by the committee that was to be appointed to examine the Code of Civil Procedure with a view to its revision. The report of the Code of Civil Procedure Committee recommends that no substantive 'screening system' should be introduced for lawsuits concerning possible breaches of the Convention; see Norges Offentlige Utredninger (Official Norwegian Report – “NOU” 2001:32 page 201. On the other hand, the Committee points out that lawsuits that clearly cannot succeed could be decided by means of a proposed simplified court hearing. No such possibility exists in our current procedural system, but it will, if it is introduced as proposed by the Committee, largely satisfy the considerations regarding the saving of time and costs in legal proceedings that have been advanced as the main arguments in favour of a screening system. (43) How the issue should be resolved in the current dispute seems uncertain. I find it natural to take as the point of departure the fact that Article 54 of the Code of Civil Procedure establishes by statute – while at the same time limits – the right to bring any declaratory suit before a court. In the absence of statutory regulation of the issue, it is my view that the relaxation of the statutory conditions for bringing a lawsuit that follows from the Convention cannot in principle go beyond what would be a direct consequence of the Convention and its incorporation into Norwegian law. Admittedly, some might object that it is foreign to Norwegian law to assess the merits of the claim in order to decide whether the case shall be heard. But the question concerns a right to take legal action that until now has not had a clear basis in Norwegian law. (44) I would add that filing a suit such as the one at hand, which has aimed at halting the investigations of the child welfare services, could entail considerable disadvantages. It will draw resources away from the real functions of the child welfare services, and might make its work more difficult in situations where it is necessary to react without undue delay. This reinforces the need for a simple, rapid assessment of whether there is any substance at all in the plaintiff's claim. This concern will be met by applying the Convention's own rule of summary dismissal if the claim is not arguable. (45) The consequence of my view is that the question of summary dismissal will depend on whether the suit, based on Article 8 of the Convention, must be considered manifestly ill-founded. (46) I would add, however, that I have not thereby concluded whether the threshold for summary dismissal should be as low as that applied by the European Court of Human Rights. As emphasized by Jørgen Aall in Tidsskrift for Rettsvitenskap (Journal of Jurisprudence) 1988, page 90, there are good reasons why national courts should follow a less stringent practice as regards summary dismissal. However, as will be shown below, the present case is in no way on the borderline in that respect. (47) ... (48) I find that the investigation constituted an interference with [the applicant's] right to respect for his private and family life under Article 8 § 1 of the Convention. On the other hand, however, I find it clear that it was an interference that was justified under the exception clause in Article 8 § 2. (49) The decision to make an investigation is subject to a statutory condition - there must be 'reasonable cause to assume that circumstances prevail which may provide a basis for measures'; see section 4-3 of the [1992] Act. However, as stressed by the Municipality, this criterion is linked to a professional assessment by the child welfare services, and the threshold for initiating an investigation is meant to be low. In Proposition No. 44 (1991-1992) to the Odelsting, it is also emphasized that interests of privacy will often have to yield to the child's best interests; see pages 29 and 107. (50) The investigation in dispute was opened on 28 February 2002. One and a half months earlier, a first investigation had been completed, in which it had been concluded that the children 'are living in an insecure and unpredictable care situation'. When a new child concern report was received on 28 February 2002, under section 4-2 of the [1992] Act the child welfare services had to consider whether it should be followed up by investigations pursuant to section 4-3. (51) [The applicant] has maintained with vigour that this child concern report – which had given cause to suspect that he was intoxicated when he was with the children and misused pills, which was also the basis for the previous investigation – was unwarranted. I offer no opinion on this question, but cannot see it otherwise than that the child welfare services had to carry out an investigation pursuant to section 4-3, with a view to obtaining confirmation or disproving that there was cause for concern in regard to the children's care situation. The fact that there was an objective basis for initiating investigations was otherwise corroborated by new child concern reports and information from the school and day care centre indicating that the children had special care needs which it was doubtful that [the applicant] could fulfil. Finally, this was also confirmed by the assistance measures recommended by the child welfare services in their final report. (52) In relation to Article 8 of the Convention it is particularly important to consider the specific steps that were taken during the investigation. In this case, it was a question of obtaining information pursuant to section 6-4 (2) and (3) and section 4-12 of the [1992] Act. (53) I find it clear that it cannot be claimed that any breach of the [the 1992] Act or the Convention had occurred. Admittedly, in its final report, the child welfare services found no basis for making an administrative decision under section 4-12. However, in order to collect information it was sufficient that there was a substantiated suspicion that the children were in a situation such as described in the said provision. I would add that [the applicant's] unwillingness to cooperate with the child welfare services was also unlikely to calm their basically justified uneasiness about the children's situation. (54) Nor is there any ground to claim that the investigation did not pursue legitimate purposes or was unnecessary. In this respect it suffices to refer to the European Commission of Human Right's decision of inadmissiblity of 22 May 1995 in the case of Andersson v. Sweden, in which precisely the children's best interest were emphasised. The Commission stressed that the obtaining of information, as in the present case, was proportionate to the legitimate purpose and an interference of limited extent, since the public administration was also subject to a duty of confidentiality. Finally, it was also emphasized as a factor that the person whom the interference concerned was kept informed as to the information that was disclosed, as was done in [the applicant's] case. (55) Accordingly, it is my view that point 1 of the operative part of the High Court's decision must be upheld. (56) The interlocutory appeal has not succeeded. However, the case has raised hitherto unsettled questions concerning the relationship between traditional Norwegian law and the European Convention on Human Rights. In my view, the circumstances must be said to be so special that [the applicant] should not be ordered to pay costs either before the High Court or the Supreme Court. The Supreme Court hearing has also been conducted in accordance with the rules for appeals, with the consequences that this has for the amount of the costs. Otherwise as regards the Supreme Court, the legal representatives were appointed at public expense .... 37. The dissenting member, Mr Justice Tjomsland, stated: “(58) It is my opinion that the lawsuit must be admitted to the City Court. (59) I agree with the first voting judge that the suit would have had to be summarily dismissed in accordance with 'traditional Norwegian procedural law'. I also agree that such a dismissal would not constitute a breach of the right of access to a court guaranteed by Article 6 § 1of the Convention. (60) The first voting judge expresses the opinion that, as a consequence of incorporation of the Convention into Norwegian law by the Human Rights Act of 21 May 1999 No. 30, a claim may be made for a declaratory judgment asserting that there has been a breach of the Convention. I concur in this opinion. The view taken by the majority as regards this question in Rt-1994-1244, the 'Women's Prison' case, cannot be maintained following the adoption of the Human Rights Act. Given the relatively limited requirements that can now be made in this respect for this type of suit, I also find that [the applicant] has a sufficient actual interest in the suit; see NOU 2001:32 Rett på sak (Straight to the Point), pp. 201-202. (61) On the other hand, I do not agree with the first voting judge that a suit regarded as manifestly unfounded must be summarily dismissed. Once it has been accepted that a suit may be brought with a claim for a declaratory judgment asserting a breach of the Convention, the way in which such a claim should be dealt with depends, in my view, on Norwegian rules of procedure. It is therefore not decisive that the screening system, which according to the first voting judge should be applied, will not be contrary to the Convention. Under Norwegian procedural law, the assessment of whether the conditions for filing suit have been satisfied is based on the plaintiff's submissions with regard to the claim he or she is putting forward. If the claim – in the event manifestly ill-founded – cannot succeed, judgment must be given for the respondent after a hearing on the merits of the claim. In my view, it would be contrary to this principle to procedurally dismiss on a non-statutory basis manifestly unfounded lawsuits regarding breaches of the Convention after a summary examination on the merits, cf. the majority vote in Rt-1994-1244, NOU 2001:32 Rett på sak, p. 201, and Schei: Tvistemålsloven med kommentarer (The Code of Civil Procedure, with commentary), 2nd edition, p. 270. (62) I cannot see that the provision in Article 35 § 3 of the Convention prescribing that a complaint to the European Court of Human Rights shall be summarily dismissed after a summary examination [...] if it is manifestly ill-founded can be transposed, on a non-statutory basis, as a procedural condition to lawsuits concerning breaches of the Convention that are brought before Norwegian courts. I would also note that the considerations that serve as grounds for the various dismissal provisions in Article 35 of the Convention may appear in a different light as regards lawsuits brought before national courts. A rule on summary dismissal of the kind at issue in this instance will, in my view, give rise to several procedural problems, concerning notably the legal force of the orders. My objections to such an arrangement also hold good if a rule of summary dismissal departing from Article 35 § 3 were to apply on a non-statutory basis, for instance if one were to apply a less stringent practice of summary dismissal than that of the European Court or if the scope of the summary dismissal rule were to be limited in another discretionary manner. (63) I agree with the first voting judge that filing a suit like the one at hand could give rise to significant disadvantages for the work of the child welfare services. However, such suits are – in my view – a consequence of the fact that it has now been made permissible to file suit complaining of a Convention breach irrespective of whether a judgment of this nature would entail specific legal effects for the plaintiff. In my view, an attempt must be made to reduce the problems that arise in this connection by adopting rules regarding simplified judicial hearings as has been proposed by the Civil Procedure Committee. In this connection, I wish to comment that the purpose of the screening system in question here will in actual fact be to introduce, on a non-statutory basis, a simplified hearing on the merits of the claims covered by the arrangement.” 38. The Child Welfare Services Act 1992 (“the 1992 Act”) contained the following provisions which are relevant: Section 4-2 “The child welfare services shall at the earliest opportunity, and within one week at the latest, examine reports it receives and assess whether the individual report shall give rise to investigations pursuant to section 4-3.” Section 4-3 “If there is reasonable cause to assume that circumstances prevail which may provide a basis for measures pursuant to this chapter, the child welfare services shall investigate the matter at the earliest opportunity; see the time limits set out in section 6-9. The investigation shall be carried out in such a way as to minimise the harm it causes anyone affected, and it shall not have a wider scope than justified by its purpose. Importance shall be attached to preventing the unnecessary spreading of information about the investigation. The parents or the persons with whom the child is living may not object to an investigation as mentioned in the first sub-section involving visits in the home ...” Section 6-4 “Information shall as far as possible be obtained in cooperation with the person whom the case concerns or in such a way that the person concerned is aware that the information is being obtained. Notwithstanding the duty of secrecy, public authorities shall on their own initiative disclose information to the municipal child welfare services when there is reason to believe that a child is being mistreated at home or subjected to other serious deficiency of parental care (see sections 4-10, 4-11 and 4-12), or when a child has shown persistent, serious behavioural problems; see section 4-24. Organizations and private entities that perform tasks for the State, a county municipality or a municipality are considered on par with public authorities. Public authorities are also obligated to disclose such information when ordered to do so by agencies which are responsible for implementation of the Act. Practitioners of professions pursuant to [various specified Acts] are also obligated to disclose information pursuant to the rules of the second paragraph.” Section 6-7 “Anyone who performs service or work for a public administrative agency or institution pursuant to this act is subject to a duty of secrecy pursuant to sections 13 to 13E of the Public Administration Act. Contraventions are punishable pursuant to Article 121 of the Penal Code. [...] Information may only be disclosed to other public administrative agencies, see section 13B, subsections 5 and 6, of the Public Administration Act, when necessary to facilitate the function of the child welfare services or the institution, or to prevent material danger to life or serious harm to a person's health. ...” 39. Articles 53 and 54 of the Code of Civil Procedure, as in force at the material time (it was replaced by a new Code which entered into force on 1 January 2008), provided: Article 53 “Until a claim matures, it may not be brought before the courts with a request for an executory judgment (fullbyrdelsesdom), except in the following circumstances: 1. If there is particular reason to fear that the respondent will escape fulfilling his or her obligations on time; 2. If it concerns a claim which is supplementary to a principal claim, such as interests running until payment, or compensation, which emerges from the disputed legal relationship; 3. If it concerns periodic payments, of which one instalment has matured and when future instalments do not depend on any service in return; 4. If the claim is conditional upon the non-fulfilment of another claim, in respect of which the claimant requests a judgment in the same case. If the claim has not matured by the time of judgment, the judgment shall stipulate what condition should occur or what time-limit should run, before it is to be executed.” Article 54 “If a plaintiff has a legal interest in it being established by a judgment that a legal relationship or a right exists or does not exist ... he can institute proceedings with a request for a declaratory judgment (fastsettelsesdom), even though an executory judgment may not yet be obtained.” 40. Section 6 (2) of the Supreme Court Act 1926 read: “When it is desirable for special reasons, the Appeals Leave Committee of the Supreme Court may, in cases being examined by it, refer a question of law to the Supreme Court or decide that the case as a whole [saken i sin helhet] shall be decided by the Supreme Court. The Supreme Court will rule on the legal issue or on the case in the form of a decision. The court may decide that oral proceedings may be held in accordance with the rules that apply to ordinary appeals [ankesaker]. A decision to this effect may also be taken by the presiding judge before the case is examined by the Supreme Court.” 41. From Article 404 (1), item 1, of the former Code of Civil Procedure it followed that a decision by the High Court on an appeal against a dismissal of a case on grounds of lack of jurisdiction may form the subject of further appeal to the Supreme Court. The latter then has full jurisdiction to examine questions of law, fact and procedure (see Tore Schei, Tvistemålsloven med kommentarer (Code of Civil Procedure with Commentary), 1990, p, 361). 42. Pursuant to Article 374, the Supreme Court could not take oral evidence from witnesses directly, but the parties could make a request to the relevant district- or city court to hear witness evidence (bevisopptak). In such event, the statements of the parties and/or witnesses were recorded in extenso by the first instance judge. The records were included in the Supreme Court's case file and may be read out by the parties' representatives during the Supreme Court hearing, should they so wish, like other documentary evidence contained in the file. 43. The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. This instrument entered into force on 2 September 1990 and has been ratified by 193 countries, including Norway, which has also incorporated it together with the Convention into its domestic legal order (1999). 44. The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children's rights by setting standards in health care, education and legal, civil and social services. 45. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9). 46. Article 19 reads: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” | 0 |
train | 001-97343 | ENG | UKR | CHAMBER | 2,010 | CASE OF GAVAZHUK v. UKRAINE | 4 | Violation of Art. 5-1-c | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger | 4. The applicant was born in 1971. He is currently serving a prison sentence at the Berdychiv Town Correctional Colony (Prison) No. 70, Zhytomyr Region (“the Berdychiv Colony”). 5. On 4 November 1998 the Deputy Prosecutor of Chernivtsi initiated criminal investigations into the murder of Mrs S. 6. On 30 July 1999 the applicant’s wife was arrested on suspicion of the murder of Mrs S. On 2 August 1999 she was released. 7. On 4 August 1999 the prosecutors placed Mr V. on the list of persons suspected of the crime. The investigations were suspended. 8. On 2 September 1999 the applicant was arrested following the issue of a warrant by the Head of the Investigation Unit of the Chernivtsi Town Prosecutor’s Office on suspicion of the murder of Mrs S., and the criminal investigations resumed. The applicant chose Mr Shelepa to defend him in the proceedings. 9. On 4 September 1999 the Chernivtsi Town Prosecutor remanded the applicant in custody in view of the pending criminal investigations against him. The applicant remained in detention throughout the proceedings. 10. On 7 September 1999 the applicant and Mr V. were charged with aggravated murder. 11. On 18 October 1999 the Chernivtsi Town Prosecutor extended the maximum period of the applicant’s pre-trial detention to three months. 12. On 23 November 1999 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. 13. On 20 December 1999 the applicant and his lawyer completed their study of the case file. 14. On 28 January 2000 the prosecutors referred the case together with the indictment, containing charges of aggravated murder and theft, to the Chernivtsi Regional Court (“the Chernivsti Court”). The latter received the case file on 4 February 2000. 15. On 25 February 2000 the court remitted the case for additional investigation as it was incomplete. It also ordered the applicant to remain in detention. On 6 March 2000 the prosecutors received the case file. 16. On 9 March 2000 the prosecutors resumed the pre-trial investigations. 17. On 13 March 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to five months on the ground that it was not possible to complete the investigation. 18. On 15 May 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On 5 June 2000 the latter finished consulting the file. 19. On 22 June 2000 the prosecutors referred the case to the Chernivtsi Court. 20. On 30 June 2000 the court received the case file and on 19 September 2000 it remitted the case for additional investigation. The court refused to change the applicant’s preventive measure. 21. On 26 September 2000 the prosecutors received the case file. 22. On 10 October 2000 the Chernivtsi Regional Prosecutor extended the maximum period of the applicant’s detention to six months. 23. On 25 October 2000 the Deputy Prosecutor General of Ukraine extended the maximum period of the applicant’s detention to nine months. 24. On 28 November 2000 the investigations were completed and the applicant, together with his lawyer, was given access to the case file. On the same day they completed their study of the case file. 25. On 22 December 2000 the case was referred to the Chernivtsi Court. 26. On 12 January 2001 the Deputy Prosecutor of the Chernivtsi Region withdrew the case from the court and resumed the investigations. 27. On 18 January 2001 the applicant was informed that the investigations were complete and that he was charged with concealment of crime. 28. On 26 January 2001 the applicant and his lawyer were given access to the case file. On the same day they completed consulting the case file. 29. On 1 February 2001 the case was referred to the Chernivtsi Court. 30. On 5 February 2001 the court received the case file. 31. On 14 March 2001 the court remitted the case for additional investigation. The applicant was ordered to remain in detention. 32. On 19 March 2001 the prosecutors received the case file. 33. On 29 March 2001 the applicant was informed that the investigations were complete, and was given a copy of the indictment, in which he was charged with aggravated murder and robbery. Between 29 March and 2 April 2001 the applicant and his lawyer consulted the case file. 34. On 6 April 2001 the case was referred to the Chernivtsi Court. On 9 April 2001 the court received the case file. 35. On 17 April 2001 the prosecutors withdrew the case and resumed the investigations. On the same day they issued an indictment, containing the same charges and based on the same facts as the indictment of 29 March 2001. 36. On 16 May 2001 the applicant was informed that the investigations were complete and he was given a copy of the indictment of 17 April 2001. On the same day the applicant was provided with another lawyer, Mr B., whom the prosecutors gave access to the case file. 37. According to the applicant, he had agreed to have another lawyer, as the prosecutors told him that Mr Shelepa had not been able to participate in the proceedings due to his illness. From mid-April to 5 May 2001 Mr Shelepa was having medical treatment in a hospital in Kyiv. The latter was not informed that the investigations were complete on 16 May 2001. 38. On the same day the applicant and his new lawyer finished consulting the case file and on 18 May 2001 the case was referred to the Chernivtsi Court, the latter having received it on 24 May 2001. 39. On 29 May 2001 Mr Shelepa was again admitted to participate in the proceedings. 40. In the course of the investigations, in particular on 11 June and 28 November 2000, and 30 March 2001 the applicant’s lawyer made three requests to the prosecutors that the proceedings against the applicant be discontinued for absence of elements of a crime in his actions. The requests were dismissed as unfounded by the prosecutors’ decisions of 13 June and 30 November 2000 and 3 April 2001. 41. In the course of the trial, the applicant and his lawyer argued that some of the evidence submitted by the prosecutors had been collected after the expiry of the statutory terms of the investigation and the applicant’s detention and therefore should not be admitted by the court. 42. On 26 June 2001 the court found the applicant and Mr V. guilty of aggravated murder and sentenced the applicant to twelve years’ imprisonment. It rejected the applicant’s and his lawyer’s argument concerning the admissibility of evidence, holding in particular that the maximum statutory terms of the investigation and pre-trial detention envisaged by the Code of Criminal Procedure had not expired in the case, and that those terms had ceased to run during the periods when the applicant and his lawyer were studying the case file, when it had been referred to the court, and when the lawyer’s petitions had been considered by the prosecutors. The court, relying on Articles 120 and 156 of the same Code, also noted that the terms of the investigation and detention had actually been extended up to twelve months, as the case had been remitted for additional investigation on three occasions. 43. In his appeal in cassation, the applicant complained about the wrongful assessment of the facts and a violation of his procedural rights in the course of the investigation and trial. 44. On 25 September 2001 the Supreme Court rejected the applicant’s appeal in cassation as unsubstantiated. 45. The relevant provisions of the Constitution read as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in detention other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law...” “...13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an inspection and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution...” 46. The relevant provisions of the Code, as worded at the material time, read as follows: “An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles 106, 106-1, and 107 of the Code.” “Pre-trial investigation in criminal cases shall be completed within two months. The [running of this] term shall commence from the moment the criminal proceedings are initiated up to the moment when the case is referred to the prosecutor together with an indictment or a resolution concerning the referral of the case to the court for a decision concerning the application of the measures of compulsory medical treatment, or until the proceedings are suspended or discontinued. If it is impossible to complete the investigation, this term may be extended to up to three months by district, city prosecutor, military prosecutor of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case file shall not be included in the calculation of the term of pre-trial investigation. In especially complicated cases the term of pre-trial investigation set by part 1 of this Article may be extended to up to six months by the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank or their deputies on the basis of a reasoned resolution of the investigator. Further extension of the term of pre-trial investigation may only be enacted by the Prosecutor General of Ukraine or by his deputies. Where the case has been remitted for additional investigation, or if the discontinued proceedings have resumed, the term of additional investigation shall be established by the prosecutor who supervises the investigation, and shall not exceed one month from the moment when the investigation is resumed. Further extension of this term shall be enacted on general grounds. The rules set in this Article shall not be applicable to criminal proceedings where the person having committed the crime has not been identified. The running of the term of investigation in such cases shall commence from the date on which the person who committed the crime is identified.” “If there are sufficient grounds to consider that the accused, if at liberty, will abscond from the investigation or trial, or will obstruct the establishment of the truth in a criminal case or will pursue criminal activities, and if it is necessary to ensure the execution of a sentence, the investigator and prosecutor shall be entitled to impose on the accused one of the preventive measures envisaged by Article 149 of the Code... In exceptional cases a preventive measure may be applied in respect of a person suspected of having committed a crime before the charges are brought against that person. In such a case the charges shall be brought [against the suspect] within ten days of the application of the preventive measure...” “The preventive measures shall be as follows: (1) a written undertaking not to abscond; (2) personal surety; (3) the surety of a non-governmental organisation or labour collective; (3-1) bail; (4) placement in custody; (5) supervision by the command of a military unit.” “Placement in custody as a preventive measure shall be applied in cases concerning criminal offences for which the law envisages a punishment of more than one year’s imprisonment. In exceptional circumstances this preventive measure may be applied in cases concerning criminal offences for which the law envisages a punishment of up to one year’s imprisonment...” “Pre-trial detention during the investigation of criminal offences in criminal cases shall not last more than two months. This term may be extended to three months by district, city prosecutors, military prosecutors of the army, fleet, military districts (commands), garrisons, and prosecutors of equal rank, if it is not possible to complete the criminal investigation and there are no grounds for changing the preventive measure. Further extension of this term to six months from the moment of the arrest may only be enacted if the case is exceptionally complex by the Prosecutor of the Republic of the Crimea, prosecutors of regions, the prosecutor of Kyiv, military prosecutors of the military district (command), navy and prosecutors of equal rank. The six-month term of pre-trial detention may be extended to one year by the Deputy Prosecutor General of Ukraine and to one year and a half by the General Prosecutor of Ukraine. No further extension of the term of pre-trial detention is allowed; an accused held in detention must be immediately released. If it is impossible to complete the investigation within the terms set by the law for pre-trial detention and there are no grounds for changing the preventive measure, the General Prosecutor of Ukraine or his Deputy shall have the power to approve the referral of the case to the court in the part relating to proven charges. The part of the case relating to criminal offences, the investigation of which has not been completed, shall be disjoined from the proceedings and completed in accordance with the general rules. The accused and his defence shall be provided, not later than one month before the expiry of the term of pre-trial detention set by part 2 of the Article, with the materials of the part of the criminal case in respect of which the investigation has been completed, so that they can familiarise themselves with [those materials]. The time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account in the calculation of the term of pre-trial detention. If the court remits the case for a new investigation, and where the term of pre-trial detention has ended, and the preventive measure of pre-trial detention may not be changed, an extension, for up to one month following the receipt of the case, of the term of pre-trial detention shall be enacted by the prosecutor supervising investigation. Further extension of this term shall be enacted according to the procedure envisaged by paragraphs 1, 2 and 6 of the Article, taking into account the period the accused has been held in detention.” “Pre-trial detention during pre-trial investigation shall not last more than two months. When it is impossible to complete the investigation within the period provided for in part 1 of the Article and there are no grounds for discontinuing the preventive measure or substituting it with a less restrictive measure, [the term of pre-trial detention] may be extended: (1) up to four months – upon a request approved by the prosecutor supervising the compliance with the laws by the bodies of inquiry and investigation, or at the same prosecutor’s [own request], by a judge of the court, which adopted a resolution on the application of the preventive measure; (2) up to nine months – upon a request approved by the Deputy Prosecutor General of Ukraine, the Prosecutor of the Autonomous Republic of the Crimea, prosecutors of regions, prosecutors of Kyiv and Sevastopol, and prosecutors of equal rank, or at the same prosecutor’s [own request] in cases concerning serious and particularly serious crimes, by a judge of a court of appeal; (3) up to eighteen months - upon a request approved by the Prosecutor General of Ukraine and his Deputy, or at the same prosecutor’s [own request] in particularly complex cases concerning particularly serious crimes, by a judge of the Supreme Court of Ukraine; In each case, when it is impossible to complete the investigation within the terms specified in parts 1 or 2 of the Article and there are no grounds for changing the preventive measure, the prosecutor supervising the compliance with the law in the course of the investigation in the case shall have the right to approve the referral of the case to the court in the part relating to proven charges. In such an event, the part of the case relating to criminal offences or episodes of criminal activities, the investigation of which has not been completed, shall be disjoined from the proceedings pursuant to the requirements of Article 26 of the Code and completed in accordance with the general rules. The term of pre-trial detention shall be calculated from the moment when the person was placed in custody, or, if his placement in custody was preceded by his arrest [within the meaning of Article 115 of the Code], from the moment of the arrest. The term of pre-trial detention shall include the time during which the person underwent in-patient expert examination at a psychiatric medical institution of any type. If the person is repeatedly placed in custody in the framework of the same proceedings ... or if new charges are brought against him, the time the person has spent in detention before this shall be taken into account when calculating the term of pre-trial detention. The term of pre-trial detention shall end on the day the court receives the case file; however, the time it takes for the accused and his defence to familiarise themselves with the materials of the criminal case shall not be taken into account when calculating the term of pre-trial detention as a preventive measure. If the case is withdrawn by the prosecutor from the court pursuant to Article 232 of the Code, the running of the term shall resume from the day on which the prosecutor receives the case. If the case is returned by the court to the prosecutor for additional investigation, the term of pre-trial detention shall be calculated from the moment the case is received by the prosecutor and shall not exceed two months. Further extension of that term shall be enacted in accordance with the procedure envisaged by part 2 of the Article and the time the accused was held in detention before the referral of the case to the court shall be taken into account. If the term of pre-trial detention ... envisaged by parts 1 and 2 of the Article has ended and if this term was not extended in accordance with the procedure envisaged by the Code, the body of inquiry, investigator, or prosecutor shall immediately release the person from detention. Governors of pre-trial detention centres shall immediately release from detention any accused in whose respect no court resolution extending the term of pre-trial detention has been received on the day of expiry of the terms of pre-trial detention envisaged by parts 1, 2, and 6 of the Article. They shall notify accordingly the person or authority before whom the case is pending and the prosecutor supervising the investigation.” “Having found the collected evidence to be sufficient for formulating charges and having satisfied the requirements of Article 217 of the Code, the investigator shall notify the accursed of the completion of the investigation in his case and of his right to familiarise himself, personally or with the assistance of defence, with the materials of the case... The accused and his defence shall not be limited in the time which they require to familiarise themselves with the materials of the case file. However, if the accused and his defence are obviously trying to delay the completion of the case, the investigator shall have the right to set, by a reasoned resolution, a certain time-limit for study of the case file. Such a resolution shall be approved by the prosecutor.” 47. The relevant extracts from the Reservation contained in the instrument of ratification deposited by Ukraine on 11 September 1997 (period covering 11 September 1997 – 28 June 2001) provide as follows: “...2. The provisions of Article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene paragraph 13 of Chapter XV of the Transitional Provisions of the Constitution of Ukraine and Articles 106 and 157 of the Code of Criminal Procedure of Ukraine concerning the detention of a person and the issue of an arrest warrant by a public prosecutor. Such reservations shall be in force until appropriate amendments to the Code of Criminal Procedure of Ukraine are introduced or until the adoption of the new Code of Criminal Procedure of Ukraine, but not later than 28 June 2001... The provisions of Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 shall apply in the part that does not contravene Articles 48, 49, 50 and 51 of the Disciplinary Statute of the Armed Forces of Ukraine concerning the imposition of arrest as a disciplinary sanction.” 48. The relevant extracts from Article 106 of the Code of Criminal Procedure, the English translation of which was provided in the appendix to the reservation of Ukraine, read as follows: “A body of inquiry shall be entitled to detain a person suspected of committing an offence for which a custodial penalty may be imposed, subject to the existence of one of the following grounds: 1. if the person is discovered whilst committing an offence or immediately after committing one; 2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence; 3. if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established. For each case of detention of a person suspected of committing an offence, the body of inquiry shall be required to draw up a record setting out the grounds, the reasons, the day, time, year and month, the place of detention, the explanation given by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before being questioned for the first time, in accordance with the procedure provided for in Part 2 of Article 21 of the present Code. The body of inquiry shall also be required to notify the public prosecutor of the detention in writing within twenty-four hours and, at his request, give him the documents constituting the grounds for detention. The record of detention shall be signed by the person who drew it up and by the detained person. Within forty-eight hours of receipt of the notification of detention, the public prosecutor shall authorise the person detained to be taken into custody or order his release. The body of inquiry shall inform the suspected person’s family of his detention if his place of residence is known.” 49. The relevant extracts from Article 157 of the Code of Criminal Procedure, which set out the specific duties of a public prosecutor when issuing a warrant for arrest, provide as follows: “The public prosecutor shall issue a warrant for the arrest of a suspect or accused subject to the existence of the grounds prescribed by law. When deciding whether to issue a warrant for arrest the public prosecutor shall be required to study conscientiously all the relevant documents and, where necessary, question the suspect or accused personally. In the case of a suspect or accused who has not attained the age of majority, such questioning shall be mandatory. The right to issue a warrant for the arrest of a person shall be vested in the Prosecutor General of Ukraine, the public prosecutors of the Republic of the Crimea, the regional prosecutors, the prosecutors of the cities of Kyiv and Sevastopol, and other equal-ranking prosecutors. The same right shall also be vested in the deputy public prosecutors of towns and districts with a population exceeding 150,000, unless otherwise stipulated in a special order of the Prosecutor General of Ukraine.” | 1 |
train | 001-81604 | ENG | RUS | CHAMBER | 2,007 | CASE OF MAGOMADOV AND MAGOMADOV v. RUSSIA | 4 | Violation of Art. 2;Violation of Art. 3;No violation of Art. 3;Violation of Art. 5 | Christos Rozakis | 6. The applicants are brothers. They were born in 1967 and 1965 respectively and lived in Chechnya. 7. The facts surrounding the disappearance of the applicants' brother, Ayubkhan Magomadov, and of the first applicant, as presented by the parties, are set out in Part A. A description of the materials submitted to the Court is contained in Part B. 8. The applicants lived with their family in the village of Kurchaloy in Chechnya. Their brother, Ayubkhan Magomadov, born in 1969, lived in the same house. He played for the local football team and in 1998 received the “Best Football Player of the Kurchaloy District” award. 9. The applicants submitted that on 2 October 2000 their house and their neighbours' house had been searched by an armed unit of the Federal Security Service (FSB), which had arrived in five UAZ vehicles and several armoured personnel carriers (APCs). No documents authorising the search were presented. Ayubkhan Magomadov was arrested in his house by men in military uniforms. They drove him away and he has not been seen since. 10. Immediately after Ayubkhan Magomadov's arrest the family started to look for him. They applied to various law-enforcement authorities in Chechnya and in Moscow, asking for information about him. They have submitted to the Court copies of letters addressed to the Chechnya Prosecutor's Office, the Chechnya Department of the FSB and the Chechnya Department of the Interior, as well as the Prosecutor General, the Chief Military Prosecutor, the director of the FSB and the Minister of the Interior. The relatives received very little substantive information in reply. On several occasions they received copies of letters stating that their complaints had been forwarded to other authorities. 11. On 12 October 2000 the head of the criminal police of the Oktyabrskiy Temporary Department of the Interior (VOVD) in Grozny (начальник криминальной милиции временного отдела внутренних дел Октябрьского района г. Грозного), Major I., issued a certificate stating that on 2 October 2000 Ayubkhan Magomadov had been detained in Kurchaloy on suspicion of having committed a serious crime. The suspicion had been dispelled, and Mr Magomadov had been released on 3 October 2000 at 8.30 a.m., after the end of the curfew. 12. The applicants' mother submitted that when she had requested to see the register of detainees in the Oktyabrskiy VOVD for the relevant dates, she had been refused permission. 13. On 6 November 2000 the Chechnya Department of the FSB informed the applicants' mother that the officers of the Kurchaloy District department of the FSB had not participated in the operation of 2 October 2000. At the same time the letter stated that on 2 October 2000 the head of the district department of the FSB, following a request from the Oktyabrskiy VOVD, had met with an “operative group” at the checkpoint between the villages of Oktyabrskoye and Novaya Zhizn. The letter further explained that Ayubkhan Magomadov had visually resembled a “wanted fighter” and that because of that the servicemen of the Ministry of the Interior “had invited him to the Oktyabrskiy VOVD in Grozny to clarify some questions of interest to them”. The letter stated that the FSB had no information about the whereabouts of Ayubkhan Magomadov and advised his mother to apply to the Oktyabrskiy VOVD. 14. On 17 November 2000 the Ingushetia Prosecutor's Office forwarded the applicants' mother's complaint about her son's detention to the Kurchaloy District Prosecutor. On 22 November and 1, 7 and 24 December 2000 the Ministry of the Interior forwarded the first applicant's complaints to the Chechnya Department of the Interior. On 13 December 2000 the Chechnya Prosecutor's Office forwarded the applicants' parents' complaint about the disappearance of their son to the Kurchaloy District Prosecutor's Office, with an instruction to open a criminal investigation under Article 126 of the Criminal Code (kidnapping). 15. On 9 December 2000 the Argun Inter-District Prosecutor's Office informed the first applicant that a criminal investigation into his brother's kidnapping had been opened on that same day. 16. On 20 December 2000 the Chechnya Department of the Interior informed the first applicant that on 2 October 2000 Ayubkhan Magomadov had been detained by the FSB officers on suspicion of involvement in illegal armed groups. He had been taken to the Oktyabrskiy VOVD in Grozny. Following an inquiry, it had been established that the detainee had no connection to the illegal armed groups and he had been released on the same day. However, in view of the curfew, he had requested to spend the night at the VOVD and had been permitted to do so. In the morning of 3 October 2000 he had left the VOVD and had never been seen again. The letter further stated that pre-trial detention centre IZ-4/2 in Chernokozovo had denied that Mr Magomadov had ever been detained there. On 8 November 2000 a search file (no. K-031/2000) had been opened and forwarded to the Oktyabrskiy VOVD as it was the last place where he had been seen. 17. On 29 January 2001 the head of the criminal investigations unit of the Chechnya Department of the Interior stated that the initial complaint about Ayubkhan Magomadov's disappearance had arrived at the Department on 15 November 2000. It had first been forwarded to the Kurchaloy VOVD and then, on 6 December 2000, to the Oktyabrskiy VOVD. No news had been obtained in the case after that. The Department's missing persons database contained no reference to an A.A. Magomadov. 18. On an unspecified date the Chechnya Department of the Interior issued a notice which stated that Ayubkhan Magomadov had been detained on 2 October 2000 by officer R. of the Oktyabrskiy VOVD, accompanied by the staff of the Kurchaloy district department of the FSB, on suspicion of having committed a crime. The detainee had been delivered to the Oktyabrskiy VOVD, where he had been checked and it had been established that he had no involvement in the crime. Ayubkhan Magomadov had been released at 8.30 a.m. on 3 October 2000 and had never been seen again by the VOVD officers. A document concerning the “operative measures” conducted to investigate Mr Magomadov's involvement in a crime had been issued to the officers of the Kurchaloy department of the FSB. 19. On an unspecified date a testimonial as to the character of Ayubkhan Magomadov was issued and signed by a number of sports officials from the Kurchaloy district and by more than 40 members of the football team and its supporters. It attested that he was a good player and a reliable member of the team and stated that, since 1994, when the hostilities had started in Chechnya, Ayubkhan Magomadov “had nothing to do with illegal armed groups or with terrorist activities, was not interested in the Wahhabist movement, did not use or distribute illegal drugs, and did not sell arms”. 20. On two occasions the NGO Memorial, acting on the first applicant's behalf, contacted the Prosecutor General with requests for information. Its letter of 5 March 2001 referred to the contradictory information obtained by his relatives from law-enforcement bodies. It indicated that there had been no entries in the register of detainees of the Oktyabrskiy VOVD referring to a Mr Magomadov. They also attached a copy of a statement by the head of the Kurchaloy village administration to the effect that on 2 October 2000 there had been a “special operation” in the village, as a result of which Ayubkhan Magomadov had been detained by unknown “military servicemen”. Memorial further requested a number of actions to be taken by the law-enforcement bodies to clarify the circumstances of Mr Magomadov's detention and to inform his relatives about the progress of the investigation. 21. On 19 December 2002 the Chechnya Prosecutor's Office informed the first applicant that on 17 December 2002 a decision to adjourn the criminal investigation in the case in which he was a victim had been quashed and the proceedings had been resumed. No further details were given. 22. On 17 March 2003 Memorial again contacted the Prosecutor General, requesting information about the criminal investigation into Ayubkhan Magomadov's disappearance. It appears that this letter remained unanswered. 23. The Government in their memorial of 16 September 2004 referred to documents received from different authorities, and gave several inconsistent versions of what had happened to Ayubkhan Magomadov on 2 and 3 October 2000. They submitted that the investigation had failed to identify the persons responsible for his kidnapping or to establish his whereabouts. Mr Magomadov had been declared a missing person and put on the federal missing persons list. They also stated that there existed information that in November and December 2000 he had been spotted in internally displaced persons' (IDP) camps in Ingushetia, recruiting fighters for the field commander Ruslan Gelayev. 24. On 31 May 2004 the applicants' representatives informed the Court about the first applicant's “disappearance”. They referred to Article 34 of the Convention and linked the first applicant's arrest with his application to the Court in connection with his brother's disappearance. They submitted that in April 2004 the first applicant had been in Moscow. He had last contacted his relatives on 19 April 2004. 25. The second applicant referred to information received from another of his brothers, Ibragim Magomadov, and his nephew, Khisir Magomadov. They had apparently been visited in their house in Kurchaloy on 29 April 2004 by a group of persons wearing camouflage and masks who had been looking for the first applicant. After intervention by other security officers the men in camouflage had presented FSB identity documents. They had instructed Ibragim Magomadov to come to the local FSB office. Several days later at the local FSB office Ibragim Magomadov was told that a criminal case had been opened against his brother, the first applicant. No further details were given. 26. On 16 May 2004 a man claiming to be a member of the Security Service of the President of Chechnya brought a note to the applicants' mother's house. The note was allegedly written by the first applicant and addressed to his family. This note was interpreted by his family as meaning that the applicant was at that time detained at the main Russian military base in Chechnya, in Khankala. It was dated 16 May 2004 and signed “Magomadov”. The applicants submitted a copy of this note to the Court. It says: “Hello, mother, father and the rest, I am fine. I am in good health, I am alive and well, and wish you the same. Mother, you probably recognise my handwriting. Grandmother Makka, grandfather Makhmud. Mother, your father's name was Yapu, your mother's was Shumiyat. Elisa, Timur from Geldagen will bring the letter. Please help him to find Yusup, in order to release me. At present I am in our republic. Yusup will be fine. You should find Doda through Yusup.” 27. On 7 June 2004 the Russian Human Rights Commissioner sent a letter to the Ministry of the Interior, asking them to take steps to discover the whereabouts of Mr Yakub Magomadov, an applicant to the Court. 28. On 24 June 2004 the Court requested the respondent Government to submit additional factual information concerning the first applicant's whereabouts and asked them whether he had been detained by a State authority in April or May 2004. 29. On 5 July 2004 the Ministry of the Interior responded to the Human Rights Commissioner. It had established that at the beginning of 2004 the first applicant had arrived in Moscow. On 8 February 2004 the first applicant had been briefly detained by officers from the Department of the Interior of the Moscow South-Eastern Administrative Circuit for an administrative offence, namely a breach of the requirement to be registered at his place of temporary residence. The letter further stated that the first applicant was not registered as residing in the capital, and that he had not been found on the lists of victims of accidents, missing persons, inmates of pre-trial detention centres or wanted persons. No applications were recorded at the bodies of the Ministry of the Interior about his abduction or search. 30. On 22 July 2004 the Department for Organised Crime of the Ministry of the Interior forwarded a letter to the Russian Human Rights Commissioner. The letter stated that the criminal case concerning Ayubkhan Magomadov's abduction was pending with the Kurchaloy District Prosecutor's Office. As to the first applicant, the Ministry of the Interior had no information about his whereabouts or alleged kidnapping. 31. On 1 July 2004 the Kurchaloy District Prosecutor's Office decided not to open criminal proceedings into the alleged abduction. On 19 July 2004 the Chechnya Prosecutor's Office quashed this decision and opened criminal investigation file no. 44032 under Article 126 of the Criminal Code (kidnapping). The Kurchaloy District Prosecutor's Office was entrusted with the investigation. Documents from the investigation file, submitted by the Government, are summarised below in Part B. 32. The Government in their memorials stated that it was impossible to establish the first applicant's whereabouts. No evidence had been obtained in support of the allegation that the first applicant had been detained at the Khankala military base, or that he had been kidnapped by servicemen of the State in connection to his application to the Court. Nor was there any information available to connect the first applicant with the illegal armed groups operating in Chechnya. The Government referred to the information from the Ministry of the Interior and the FSB, which denied having ever detained the first applicant and stated that they had no information about his whereabouts. The Government also stated that in July 2004 the investigation into the first applicant's kidnapping had questioned two relatives of the first applicant and that his mother had been granted victim status in the proceedings. One serviceman of the Ministry of the Interior of Chechnya, M.D., was questioned and stated that he had heard that the first applicant had been in Moscow prior to his disappearance. It also follows from the documents submitted by the Government that the first applicant was under arrest warrant for illegal handling of explosive devices. 33. It follows from the Government's memorials and from a copy of the prosecutor's order of 26 January 2006, submitted by them, that the criminal investigation into the first applicant's kidnapping was adjourned on 5 July 2005, on account of the failure to identify the culprits. On 26 January 2006 the investigation at the Chechnya Prosecutor's Office was resumed. 34. The applicants submitted a copy of an information letter from the Prosecutor General's Office, containing details of a number of allegations of persecution of human rights activists in the Northern Caucasus, based on the relevant report by the Amnesty International. In respect of the alleged abduction of the first applicant, the letter stated that in July 2004 the first applicant had been charged in absentia with illegal storage and transfer of explosive devices and put on the wanted list. They also cited data from the transport police, according to which the first applicant had travelled in May 2004 from Gudermes (Chechnya) to Rostov-on-Don. The Prosecutor General's Office noted that his relatives had not applied to the law-enforcement bodies with regard to his disappearance. In this connection, the Prosecutor General's Office concluded that there were reasons to suspect that the first applicant had staged his disappearance in order to evade justice (see Part B below). 35. The parties submitted a number of relevant documents, summarised below. 36. In September 2004 the Government submitted copies of the entire investigation file no. 38305 opened in relation to Ayubkhan Magomadov's disappearance. The case file consisted of three volumes comprising about 700 pages. In addition to these, in February 2006 the Government submitted an update and copies of documents produced after September 2004. The most important documents can be summarised as follows: 37. On 9 December 2000 the Kurchaloy District Prosecutor's Office opened a criminal investigation into the arrest of Ayubkhan Magomadov, born in 1969, by unidentified armed persons on 2 October 2000 at his home in Kurchaloy. The decision referred to Article 127, paragraph 1, of the Criminal Code (unlawful deprivation of liberty). 38. On 17 October 2000 the applicants' mother wrote a letter to the Chechnya Prosecutor in which she described the circumstances of her son's arrest and asked him to establish his whereabouts. 39. On 10 November 2000 she submitted a similar letter to the Ingushetia Prosecutor. 40. On 17 November 2000 the first applicant and his parents contacted the Prosecutor General, the Chief Military Prosecutor, the head of the FSB and the Minister of the Interior with a complaint about the inaction of the investigating bodies. They referred to the inconsistent statements made by various bodies and asked the authorities to carry out a number of investigative steps to find out the whereabouts of their relative. 41. On 7 and 13 February 2001 the first applicant wrote to the Chechnya Prosecutor and complained about the inefficiency of the investigation. He requested the prosecutor to inform him of the results of the investigation. He also offered to assist the investigation in organising the search for his brother. 42. On 17 December 2002 the investigator informed the first applicant that the investigation of the criminal case had been resumed. 43. On 22 December 2000 the first applicant was questioned as a witness about the circumstances of his brother's arrest and disappearance. In his statement he referred to the document signed by the head of the Oktyabrskiy VOVD stating that his brother had allegedly been released on 3 October 2000, but added that the family had had no news of him. 44. On 23 December 2000 the investigators questioned the applicants' mother. She submitted an account of her son's detention and the search for him. She also submitted a photograph of Ayubkhan Magomadov. 45. On 23 April 2002 the investigators questioned the first applicant. He confirmed that the family had had no information about his brother since 2 October 2000. On the same day he was granted the status of a victim in the proceedings. 46. On 29 May 2002 the first applicant was again questioned about the circumstances of his brother's detention and the search for him. 47. On 17 June 2002 the investigators questioned the head of the Kurchaloy village administration. He stated that on 2 October 2000 at about 2 p.m. he had been alerted by the residents to the fact that a “sweeping” operation was taking place at the Magomadovs' home. When he arrived there he saw two APCs with concealed numbers and about 20 men in camouflage around the house, mostly wearing masks. The witness did not know the servicemen who had conducted the operation and they had refused to identify themselves. The officers of the military commander's office and of the local police station, to whom he had applied, had not been aware of the operation and had refused to accompany him to the site. When a couple of hours later he had returned there, Ayubkhan Magomadov's mother had told him that her son had been taken away by the military. About two weeks later he had gone to the Oktyabrskiy VOVD to assist the relatives in the search for Ayubkhan Magomadov, together with officer B. from the district FSB department. The officer had gone inside and had returned about half an hour later with a letter which confirmed that on 2 October 2000 Mr Magomadov had been detained there and released on the following day. He had had no news of Ayubkhan Magomadov since. 48. On 24 December 2000 the investigator examined the log entries of the Oktyabrskiy VOVD listing the persons who had been delivered to the department premises and the persons who had been detained in the temporary detention unit (изолятор временного содержания – ИВС) between 30 September and 8 October 2000. Ayubkhan Magomadov was not listed in either of the logs. 49. On 2 January 2001 the Oktyabrskiy VOVD confirmed that Ayubkhan Magomadov's name was not listed in their records. 50. On 9 January 2001 the investigator requested the prosecutor of the Khanty-Mansiysk Region to question the police staff who had been on an assignment in the Oktyabrskiy VOVD in October 2000 about the circumstances of Ayubkhan Magomadov's detention, questioning and release. 51. On 28 March 2003 the investigator instructed the Tyumen Regional Prosecutor to question Major I., who at the relevant time had headed the criminal police at the Oktyabrskiy VOVD. 52. On 4 June 2002 the investigator requested the Khanty-Mansiysk Regional Prosecutor to question Major I. and officer R., who had at the time served at the Oktyabrskiy VOVD. 53. On 19 and 20 December 2002 the investigator again requested the Khanty-Mansiysk and Tyumen Regional Prosecutors to question officer R., Major I. and other servicemen, and supplied them with a detailed list of questions concerning the events of 2 to 3 October 2000. 54. On 21 January 2003 officer R. was questioned and stated that he had served at the Oktyabrskiy VOVD between 29 August and 11 November 2000. During that period he had on many occasions participated in operations in the village of Kurchaloy, and therefore he could not recall any specific details about the operation of 2 October 2000. He remembered that he had received operational information from undisclosed sources according to which Ayubkhan Magomadov had been an active member of the illegal armed group headed by Gelayev. On 2 October 2000 he had taken part in the cordoning-off of the Magomadovs' house in Kurchaloy, while other servicemen had been in charge of Ayubkhan Magomadov's arrest and questioning. R. stated that Mr Magomadov had been released from the VOVD before the end of the curfew hours and that he was not aware of any documents drawn up in respect of his detention, questioning or release. He further stated that he had heard from other servicemen of the VOVD and of the FSB that in late October or early November 2000 Mr Magomadov had been seen recruiting new members to Gelayev's group in the IDP camps in Ingushetia. 55. On 14 May 2003 R. was again questioned. He stated that on 2 October 2000, along with other officers of the VOVD, he had accompanied the FSB officers from Grozny to Kurchaloy, where they had detained Ayubkhan Magomadov and brought him to the VOVD. R. stated that when the group had arrived at Kurchaloy they had first visited the district department of the FSB and two officers from that department had accompanied them to the Magomadovs' house. R. could not recall the names of these officers, but he was certain that they were from the Grozny Department of the FSB where he had been on many occasions and seen them. He was also certain that they had a “good relationship” with the head of the VOVD and that that was the reason why the officers of the VOVD had accompanied them and had afterwards allowed them to question the detainee on their premises. R. stated that some FSB officers had told him that Mr Magomadov had been involved in illegal arms transfers and that later he had been seen in Ingushetia recruiting fighters. On 18 December 2003 R. was shown a photograph of Ayubkhan Magomadov, but did not identify him. 56. On 11 March 2003 the investigation questioned Major I., who at the relevant time had headed the criminal police of the VOVD. Major I. stated that a group of FSB officers had brought a detainee to the premises of the Oktyabrskiy VOVD and questioned him there. He was not aware of the details of the case and had not given any orders to detain or to question Ayubkhan Magomadov. The officers of the VOVD had not participated in the detention or questioning of the detainee, and he had not been placed in the administrative detention cell. Major I. testified that he had seen the detainee being questioned by the officer in charge of the FSB group, that the detainee had looked normal and that no physical pressure had been put on him. On the following day he had asked the FSB officers if there were any unauthorised persons on the VOVD premises, to which they had replied in the negative. Major I. denied that he had issued the notice of 12 October 2000 which had confirmed Mr Magomadov's detention on the VOVD premises, and denied that he had seen it before or had signed it. He alleged that some FSB officers had requested him to issue such a notice but that he had refused to do so. 57. In June 2003 a handwriting analysis concluded that it was impossible to determine whether it was indeed Major I.'s signature on the notice, owing to the insufficient amount of material under examination. 58. On 7 December 2003 the investigator was informed that further questioning of Major I. was not possible because the latter had quit the service and left his previous place of residence. 59. On 28 April 2003 the investigation questioned Colonel S., who at the relevant time had headed the Oktyabrskiy VOVD in Grozny. He stated that the officers of the department had participated in many special operations, that he could not recall any details about the one of 2 October 2000 and that all the information should be available in the appropriate records of the VOVD. 60. Between January and June 2003 the investigators questioned more than 60 servicemen of the Khanty-Mansiysk and Tyumen regional departments of the interior who from August to November 2000 had served at the Oktyabrskiy VOVD in Grozny. Nobody admitted taking part in the detention or questioning of Ayubkhan Magomadov, and no one identified him on the photograph. The officers responsible for the administrative detention cell stated that all detainees had been properly recorded, that the cell was the only place used for detention in the department and that the records were left in the VOVD for the next shift. They stated that the detainees could only be transferred to another law-enforcement body, such as the FSB, further to a written order from the head of the VOVD. 61. The investigators also identified persons who had been detained in the administrative detention cell at the Oktyabrskiy VOVD. Two of them were questioned in December 2003, and stated that Ayubkhan Magomadov had not been detained with them there or in the Chernokozovo pre-trial detention centre (SIZO) between August 2000 and March 2001. 62. In response to the investigator's request of March 2002, the Kurchaloy district department of the FSB on 10 April 2002 denied any involvement in the detention of Ayubkhan Magomadov. 63. On 27 April 2002, following a request by the first applicant, the investigator requested the head of the Chechnya Department of the FSB to identify and question officer P., who had headed the Kurchaloy district department of the FSB in October 2000, and who had allegedly participated in Ayubkhan Magomadov's arrest and questioning. 64. On 4 June 2002 the investigator requested the Kurchaloy District department of the FSB to submit a copy of the document issued to them by the Oktyabrskiy VOVD concerning the “operative measures” conducted to check Ayubkhan Magomadov's involvement in a crime. He also requested the department to find and question officer P. and any other persons who had been involved in the operation of 2 October 2000 and Mr Magomadov's questioning. 65. On 18 June 2002 the Kurchaloy District department of the FSB replied to the investigator that its office had no archives and therefore was unable to submit a copy of the document requested. 66. On 23 June 2002 the Chechnya Department of the FSB informed the investigator that it had no information about the operation of 2 October 2000 or about Mr Magomadov's arrest. They also stated that the officer who had been in charge of the district department at the relevant time had returned to his permanent place of service after the completion of his assignment, and that his whereabouts would be communicated later. 67. On 26 November 2003 the Chechnya Department of the FSB again stated that its service had not detained Ayubkhan Magomadov and had no information about him. 68. On 10 December 2000 the investigator requested the military commander of the Kurchaloy District to inform him which military units had participated in the special operation on 2 October 2000 and where Ayubkhan Magomadov was. In an undated reply the district military commander denied that any special operations with the participation of the military servicemen had taken place in Kurchaloy on that date and stated that the commander's office had no information about the whereabouts of the missing person. 69. On 9 January 2001 the investigator requested the Grozny prosecutor to check whether Ayubkhan Magomadov was still being detained at the Oktyabrskiy VOVD, since there had been no news of him after his alleged release on 3 October 2000. 70. In March 2002 the investigator forwarded a number of requests to the FSB, the military commanders' offices, the Kurchaloy and Oktyabrskiy district departments of the interior (ROVD), and detention facilities in the Northern Caucasus. The requests sought information about the operation carried out on 2 October 2000 in Kurchaloy, the detention of Mr Magomadov at the Oktyabrskiy VOVD on 2 and 3 October 2000, any witnesses and persons responsible for questioning him, and his current whereabouts. To the letters were attached photographs and a description of Mr Magomadov. The relevant authorities were requested to submit copies of the custody records for the periods in question. 71. In reply to the requests, on 6 April 2002 the military commander's office of the Kurchaloy District stated that none of its servicemen had participated in any operations on 2 October 2000 and that it had no information about the whereabouts of Ayubkhan Magomadov. Similarly, the Kurchaloy ROVD replied that its officers had been serving in Chechnya after 29 February 2002 [sic] and that upon arrival they had not received any registration documents relating to 2000. 72. In 2002 and 2003 the regional departments of the Ministry of Justice in the Northern Caucasus responsible for pre-trial detention facilities and the regional departments of the FSB each stated that Ayubkhan Magomadov's name was not in their respective lists of detainees. 73. On 24 April 2002 the Kurchaloy VOVD informed the investigators that on 28 June 2001 they had opened a search file (no. 15/15) in respect of the missing person A.A. Magomadov. Previously a search file had been opened by the Oktyabrskiy VOVD as no. 3/03. 74. In 2003 the regional departments of the Ministry of the Interior in the Southern Federal Circuit, in reply to requests from the investigator, confirmed that Ayubkhan Magomadov had been placed on the federal wanted list as a missing person, but that they had no information about him. 75. In November 2003 the investigators requested the Chechnya Department of the Interior to check Ayubkhan Magomadov's involvement with illegal armed groups. They also requested the Zavodskoy ROVD of Grozny to submit a copy of the search file opened by that office. It appears that both requests remained unanswered. 76. The copy of case file no. 38305 contains documents relating to other criminal cases investigated by the same prosecutor, concerning “disappearances” of several persons, allegedly after their detention at the Oktyabrskiy VOVD in Grozny between September and October 2000. According to these documents, on 29 September 2000 the officers of the VOVD had detained K.M. near a café at Lenina Street and delivered him to the VOVD, after which he had disappeared. On 6 October 2000 unidentified military servicemen had detained B.A. at roadblock no. 102 in Grozny because he had been carrying an invalid identity document, and had taken him to the Oktyabrskiy VOVD, after which point his whereabouts were unknown. On 19 October 2000 unknown military servicemen had detained M.T. in Lenina Street and delivered him to the Oktyabrskiy VOVD, after which he had disappeared. On 17 October 2000 A.Z. had arrived at the Oktyabrskiy VOVD, where he had been employed on a temporary contract, to receive his salary. After being discharged, he had been seen in the courtyard of the VOVD and had then disappeared, and his whereabouts remained unknown. The officers of the VOVD questioned about these persons denied having seen or detained them. 77. On 9 March 2001 the investigator of the Argun District Prosecutor's Office adjourned the investigation in criminal case no. 38305 owing to the failure to identify the culprits. 78. On 13 February 2002 a prosecutor from the Chechnya Prosecutor's Office quashed the order of 9 March 2001 and forwarded the case to the Argun District Prosecutor's Office for additional investigation. The order also listed a number of actions necessary for the conduct of the investigation, including identification and questioning of the officers of the Oktyabrskiy ROVD and other law-enforcement authorities who had been responsible for Ayubkhan Magomadov's detention, questioning and release. 79. Between December 2000 and January 2006 the investigation was adjourned eight times, and each time it was resumed with an instruction to carry out a more detailed investigation. The prosecutors, in particular, ordered to identify and question the officers of the FSB who had participated in the detention and questioning of Ayubkhan Magomadov. The latest document in the investigation file was dated 26 January 2006 and again ordered steps to elucidate the disappearance. 80. The applicants submitted information relating to other cases of “disappearances” in Grozny in 2000 and 2001. They stated that there had been several dozen cases of disappearances in the Oktyabrskiy district in 2000 and 2001. They listed 11 persons who had been detained between February and September 2000 and who had last been seen at the Oktyabrskiy VOVD, after which they had disappeared or been found dead. In all cases criminal investigations and/or searches had been commenced but had produced no results. 81. The applicants also submitted information about the trial in 2005 of a police officer, Sergey L., from the Khanty-Mansiysk Region, who had been charged with fraud, abuse of power and causing grave bodily harm, committed in January 2001. According to the bill of indictment, the officer had severely beaten a detainee on the premises of the Oktyabrskiy VOVD on 2 January 2000. According to the witness statements, as a result of the beatings the detainee had lost consciousness and suffered numerous fractures and other injuries. In order to conceal the crime, on the following morning the officer had forged a notice of release and driven the detainee away. The detainee had never been found and was considered a missing person. 82. The Government submitted a number of documents from the file on the criminal investigation opened into the first applicant's disappearance. On 1 July 2004 the Kurchaloy District Prosecutor reviewed information about the first applicant's disappearance and concluded that it was not necessary to conduct a criminal investigation owing to the absence of corpus delicti. The decision referred to the information obtained from the first applicant's relatives in Kurchaloy and from his ex-wife M.K. in Moscow, according to which he had not been seen since early April. It also referred to the note transmitted by an officer of the law-enforcement authorities to the first applicant's relatives, from which they concluded that he had been detained in Khankala and had asked them to find a certain person in order to be released. 83. On 19 July 2004 the Chechnya Prosecutor's Office quashed the order of 1 July 2004 and ordered a criminal investigation into the disappearance. The order noted that there were reasons to believe that the first applicant had been kidnapped. 84. The investigation file was assigned no. 44032. In August 2004 the investigation was transferred to a district prosecutor's office in Moscow, because the first applicant had been last seen there. The investigation located and questioned the first applicant's ex-wife, M.K., who stated that she and the first applicant had divorced in 2001 and that she had last seen him in October 2003. 85. Furthermore, the investigation found out that the first applicant was on the wanted list on suspicion of having committed the offence of illegal storage of explosive materials. The criminal case against the first applicant had been investigated by the FSB. In view of such circumstances the investigation concluded that the possibility of the first applicant's kidnapping by members of the law-enforcement bodies was ruled out. It failed to obtain any information concerning the first applicant's alleged kidnapping in Moscow in April 2004. 86. In January 2005 the investigation of the criminal case was entrusted to the Chechnya Prosecutor's Office. On 5 July 2005 the investigation was adjourned on account of failure to establish the culprits. On 26 January 2006 the investigation was resumed. The Deputy Prosecutor of Chechnya noted that the investigation was incomplete and had failed to elucidate the circumstances of the first applicant's disappearance. 87. The applicants submitted a copy of a letter from the Prosecutor General's Office to the Chairwoman of the Presidential Council for the Development of Civil Society and Human Rights, Mrs Ella Pamfilova. The letter, dated 1 March 2005, contained information concerning a number of allegations of persecution of human-rights activists in the Northern Caucasus, based on a report by Amnesty International. In respect of the first applicant, the letter stated the following: “It was established that Ya. A. Magomadov had left for Moscow on 2 April 2004 and had last contacted his relatives on 19 April 2004, after which date there had been no news from him. On 29 April 2004 unknown persons, armed with firearms and wearing camouflage uniforms and masks, looked for Magomadov in Kurchaloy. On 16 May 2004 the relatives received a note allegedly written by Magomadov and a copy of his passport photo. The man who had brought the note and the photograph stated that [the first applicant] was being detained at the military base in Khankala, that he had been brought there from Moscow and that [his relatives] were required to find a certain person in exchange for his release. The relatives contacted the military base in Khankala, where they were told that [the first applicant] was not being detained there. It follows from Ibragim Magomadov's statements that the note was delivered to them by a member of the Security Service of the President of Chechnya by the name of Timur, born in the village of Geldagen. According to information submitted by the head of the Kurchaloy ROVD, serviceman [Magomed D.] of the street patrol service of the Ministry of the Interior of Chcehnya (полк ППСМ при МВД ЧР) uses the radio call signal 'Lord' and is known to his friends and relatives as Timur. When questioned as a witness, [D.] stated that he came from the village of Geldagen. He did not know [the first applicant] and had never seen him. He was aware of the latter's detention in Moscow from local residents. The mother of the missing person, M. Magomadova, was questioned as a witness and stated that in 2000 during a 'sweeping operation' her son Ayubkhan had been kidnapped. ... Another of her sons, [the first applicant], was actively searching for Ayubkhan, but did not find anything. [The first applicant] has lived in Moscow since the early 1990s. While in Moscow, he submitted an application to the European Court. In connection with the search for his brother, [the first applicant] came to Chechnya and told her that servicemen from the law-enforcement bodies had advised him to be less persistent in the search for his brother. She was not aware of any other pressure put on [the first applicant]. She was also not aware of the search allegedly carried out at her house by FSB officers on 19 May 2003. As to the information from Memorial that [the first applicant] had contacted them on 18 or 19 April 2004 for the last time, she explained that he could not have called them because there was no telephone connection with Kurchaloy. On 29 April 2004 [M. Magomadova] returned home from Gudermes, and her daughter-in-law told her that around lunchtime they had been visited by officers of the law-enforcement bodies who had been looking for [the first applicant], and had then asked Ibragim [Magomadov, the applicants' brother] to come to the military commander's office. On the following day Ibragim went to the military commander's office, but she was not aware of the contents of the conversation. She was not aware about the note allegedly received from [the first applicant] and she would not be able to identify his handwriting. Ibragim Magomadov, the brother of the [first applicant], explained that he had a younger brother by the name of Yusup, who for the last two years had lived in Moscow. He was afraid to return to Chechnya because he had friends among members of [illegal armed groups]. [The first applicant] also did not allow him to come home. When he was questioned as a witness, Ibragim Magomadov stated that for about one year Yusup had not lived at home, and that, according to hearsay, he had joined an illegal armed group. He was not aware of his whereabouts. [The first applicant] was last at home in February, March and April 2004. As to the information from Memorial that [the first applicant] had called them on 18 and 19 April from Moscow, it could not be true, because there was no telephone connection with Kurchaloy. On 29 April 2004 he received a message through his wife to appear before the law-enforcement bodies. On 30 April 2004 he went to the military commander's office, where he talked to an FSB officer by the name of Sergey. He asked him questions about [the first applicant], in particular whether he had come by car and whether he had a car. In mid-May 2004 they were visited by a member of the President's Security Service called Timur, nicknamed 'Lord', who had brought a note from [the first applicant] in which he had written that he was in the territory of Chechnya. Timur also said that [the first applicant] had asked for a man called Doda to be found through their brother Yusup. The note was written [in the first applicant's] handwriting. They did not apply to Khankala in connection with the search for [the first applicant]. They did not look for Doda, because they had no connection with Yusup. [Four other relatives] gave similar statements. [The second applicant] stated, in addition, that after he had received the note he had gone to Moscow, where he had met M.K. [the first applicant's ex-wife]. She said that she had last seen him in Moscow in April 2004. She did not explain under what circumstances. She also stated that the officers of the Moscow Criminal Police Department were trying to find [the first applicant]. He did not take any other steps to find his brother, and did not apply to the military base in Khankala. He was not aware of [the first applicant's] whereabouts. The head of the Kurchaloy District Department of the FSB replied that they were not aware of [the first applicant's] whereabouts and had taken no action to find him. During the investigation it had proved impossible to locate the original of the note. Apart from that, the relatives had no examples of [the first applicant's] handwriting, and therefore it was impossible to verify who had been the author of the note. On 16 August 2004, according to information from witnesses and Memorial that [the first applicant] had been last seen in Moscow, the case was forwarded to the Moscow Prosecutor's Office for investigation. The head of the Operational/Search Bureau – head of centre “T” (начальник ОРБ - начальник центра «Т») [of the Main Department of the Ministry of Internal Affairs of Russia responsible for the Southern Federal Region?] replied to the investigator that [the first applicant] was wanted by the Investigative Department of the Russian FSB in relation to the investigation of a criminal case. It was established that criminal case no. 245 had been opened on 29 July 2004 by a senior investigator for particularly serious cases, from the Investigative Department of the Russian FSB, under Article 222, paragraph 2, of the Criminal Code. The criminal investigation was opened on the basis of a statement by [M.] about the illegal storage of explosive devices in the following circumstances. In 2003 M. had met a resident of the village of Kurchaloy named Yakub. In November 2003 Yakub asked him to hide some arms which belonged to him. Several days after the conversation Yakub brought him several packages, which, as M. had guessed, were explosive devices. He hid the packages in a barn at the following address: Moscow Region... In February 2004 M. decided to get rid of the explosives. He took five packages to the pond located at ... and, having broken the ice, threw the packages into the water. On 27 July 2004 the crime scene was examined in the presence of M. Three packages were found. According to the assessment by the experts from the FSB's Institute of Criminology, they were improvised explosive devices, containing plastic-based explosives, an ED-8 electric detonator and metal beads. On the basis of the above, on 5 August 2004 [the first applicant] was charged in absentia with committing a crime under Article 222, paragraph 2, and put on the wanted list. During the investigation of the case the investigation body raised doubts as to whether [the first applicant] had really been kidnapped or whether he had initiated his own kidnapping, having learnt that he was sought by the FSB in connection with a serious crime. This version is supported by the information obtained from the Northern Caucasus Department of the Transport Police, according to which the following tickets were used between 1 April and 13 September 2004: Ya. A. Magomadov had travelled from Gudermes to Rostov on 16 May 2004 at 14 hours 30 minutes. The ticket was purchased on 15 May 2004 at 9 hours 11 minutes. In the meantime, his relatives allege that he had left Chechnya on 2 April 2004. In addition, none of the [first applicant's] relatives have applied to the law-enforcement authorities in order to organise a search for him. Materials relating to the checks carried out by the FSB servicemen at the Magomadovs' house in Kurchaloy on 19 May 2003 and on 29 April 2004 were set aside and forwarded to the military prosecutor of the United Group Alignment (UGA) for a separate investigation on 9 August 2004 (document number 23-1699-04). Under instructions from the Prosecutor General's Office, on 14 January 2005 the criminal case file no. 44032 was sent by the Moscow Prosecutor's Office to the Chechnya Prosecutor's Office for further investigation. On 3 February 2005 the case file was received by an investigator from that office, who extended the term of the investigation until 5 April 2005. The investigation is under way.” | 1 |
train | 001-113617 | ENG | RUS | ADMISSIBILITY | 2,012 | TSARKOVA v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicant, Ms Lidiya Aleksandrovna Tsarkova, is a Russian national, who was born in 1940 in Ukraine and now lives in Ulyanovsk, the Russian Federation. 3. On 8 November 2003 the applicant relocated from Chernovtsy, Ukraine to Ulyanovsk. On 17 February 2004 she registered her temporary residence in Ulyanovsk and renewed it on 17 May, 21 August, and 7 December 2004. 4. In 2005 she acquired Russian citizenship. On 22 July 2005 she registered her permanent residence in Ulyanovsk. 5. On 25 July 2005 she lodged an application for payment of a State earnings-related pension (a “labour pension”) with the Pension Fund of the Russian Federation. 6. The pension was awarded to her from the date of application. In addition, she was paid the pension for the six months prior to the date of application, because Ukraine (her country of origin) was a party to the Agreement on securing the pension rights of citizens of the Member States of the Commonwealth of Independent States of 13 March 2003 (“the CIS Agreement of 2003”). 7. The applicant lodged a lawsuit against the Pension Fund of the Russian Federation, seeking recovery of unpaid pension payments for the period between June and December 2004 (six months prior to registration of temporary residence on 7 December 2004). On 5 October 2005 the Justice of the Peace for the 3rd Circuit of the Leninskiy District of Ulyanovsk ruled in her favour. 8. On 30 November 2005 the Leninskiy District Court of Ulyanovsk reversed the judgment on appeal. The appellate court reasoned that, according to the provisions of the CIS Agreement of 2003, the applicant, as a foreign citizen, could only have requested payment of a labour pension from the Russian Pension Fund if she had registered her permanent residence in Russia and received a residence permit. Until 22 July 2005 she did not have a residence permit or a registered permanent residence in Russia and thus had not satisfied the criteria prescribed by the international agreement and national legislation. 9. The Labour Pensions Act 2001 (Федеральный закон № 173-ФЗ «О трудовых пенсиях в Российской Федерации» от 17 декабря 2001 г.) stipulates in Section 3 that foreign citizens and persons without citizenship permanently residing in the Russian Federation have pension rights equal to those of Russian citizens. 10. The Legal Status of Foreign Citizens Act 2002 (Федеральный закон № 115-ФЗ «О правовом положении иностранных граждан в Российской Федерации» от 25 июля 2002 г.) provides in Section 2 that a foreign citizen may only be considered permanently residing in the Russian Federation if he has acquired a residence permit. 11. The Agreement on securing the pension rights of citizens of the Member States of the Commonwealth of Independent States of 13 March 2003 (Соглашение о гарантиях прав граждан государств-участников Содружества независимых государств в области пенсионного обеспечения от 13 марта 2003 г. – “the CIS Agreement of 2003”) regulates the mutual recognition of the pension rights of the citizens of the Contracting States. 12. According to the CIS Agreement of 2003 the award and payment of a pension are regulated by the law of the country where a pensioner has permanent residence (Article 1 and Article 6, Section 1). 13. In the event of relocation of a pensioner to another Member State, the payment of a pension is terminated in the country of origin if the same kind of pension is payable to him in the destination country (Article 7). | 0 |
train | 001-99994 | ENG | TUR | CHAMBER | 2,010 | CASE OF AKSU v. TURKEY | 2 | Preliminary objection dismissed (victim);No violation of Art. 14+8 | Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1931 and lives in Ankara. 6. In 2000 the Ministry of Culture published a book entitled “The Gypsies of Turkey”, written by Associate Professor Ali Rafet Özkan. 7. On 15 June 2001 the applicant filed a petition with the Ministry of Culture on behalf of the Turkish Gypsy associations. In his petition, he stated that in twenty-four pages of the book, the author had stated that Gypsies were engaged in illegitimate activities, lived as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and were polygamist and aggressive. Furthermore, Gypsy women were presented as being unfaithful to their husbands. The applicant also submitted that the book contained several other expressions that humiliated and debased Gypsies. Claiming that the expressions constituted criminal offences, he requested that the sale of the book be stopped and all copies seized. 8. On the same day, the head of the publication unit at the Ministry of Culture ordered that all copies of the book be returned to the publication unit as there were corrections to be made. 9. On 11 October 2001 the applicant wrote a letter to the Ministry of Culture enquiring whether the copies of the book had been seized. 10. On 17 October 2001 the head of the publication unit at the Ministry of Culture informed the applicant that the publications advisory board of the Ministry, composed of seven professors, had decided that the book was scientific research and that the expressions in the book did not contain any insults or similar expressions. The applicant was also informed that the author of the book would not permit any amendments to the text and that, in accordance with the author’s request, the Ministry had transferred the copyright of the book to him. 11. On 4 February 2002 the applicant sent letters to the Ministry of Culture and to Associate Professor Ali Rafet Özkan and repeated his initial request. He received no reply. 12. Subsequently, on 30 April 2002, the applicant brought proceedings before the Ankara Civil Court of General Jurisdiction against the Ministry of Culture and the author of the book, and requested compensation for the non-pecuniary damage he had suffered on account of the expressions contained in the book. He alleged that the expressions constituted an attack on his identity as a Gypsy and were insulting. The applicant also asked for the copies of the book to be confiscated and for its publication and distribution to be banned. 13. The author of the book submitted, in reply, that he had used the records of the Adana police headquarters and books written by other authors on Gypsies when writing the book and that he had not had any intention to insult or humiliate Gypsies. The author further stated that the passages referred to by the applicant should not be considered in isolation, but in the context of the whole book. 14. On 24 September 2002 the Ankara Civil Court dismissed the applicant’s requests in so far as they concerned the author of the book. It considered that the book was the result of academic research, was based on scientific data and examined the social structures of Gypsies in Turkey. The first-instance court therefore held that the expressions in question did not insult the applicant. As to the applicant’s case against the Ministry, the firstinstance court decided that it lacked jurisdiction as the administrative courts had jurisdiction over the applicant’s claim. 15. On 25 October 2002 the applicant appealed. In his petition, he submitted that the book could not be considered as scientific research and that therefore the Ministry of Culture should not have published it. 16. On 21 April 2003 the Court of Cassation upheld the judgment of the first-instance court. In its decision it noted that the expressions in question were of a general nature. It therefore found no grounds for concluding that they concerned all Gypsies or that they constituted an attack on the applicant’s identity. 17. On 8 December 2003 a request by the applicant for rectification of the decision was dismissed. 18. Subsequently, on an unspecified date, the applicant initiated proceedings against the Ministry of Culture before the Ankara Administrative Court. He requested non-pecuniary compensation, alleging that the content of the book published by the Ministry of Culture had been offensive and insulting towards the Gypsy community. On 7 April 2004 the Administrative Court dismissed the applicant’s case. It held that before its publication, the book in question had been examined by a Rapporteur appointed by the publications advisory board. Following his approval, the advisory board had agreed to publish the book. In the wake of the applicant’s allegations the advisory board, composed of seven professors, had examined the book again on 25 September 2001 and had decided that it was an academic study based on scientific research and that no inconvenience would be caused by continuing its distribution and sale. The Administrative Court therefore concluded that the applicant’s allegations were unsubstantiated. It is not clear from the documents in the case file whether or not the applicant lodged an appeal against this decision. 19. The last paragraphs of the conclusion to “The Gypsies of Turkey” read as follows: “The most important links connecting the Gypsies to each other are their familial and social structures as well as their traditions. Despite the fact that they have been leading a nomadic life for more than a thousand years, they have managed to protect their traditional way of living thanks to their endogamous character. Their attachment to these traditions begins at birth and continues till death. Doubtless, tradition is the most significant factor in the way of life of the Gypsies. The elderly members of the Gypsy society bear the heaviest responsibility in protecting and sustaining the traditions. However, due to ever-changing circumstances and needs, the social structure of the Gypsies has become difficult to preserve. In particular “Natia”, one of these social structures, can no longer be sustained in today’s Turkey. The liveliest characteristic of Gypsies is their way of living. Hence, all branches of socio-cultural activity, consisting of migration and settlement, dance, music, language, eating and drinking, fortune telling, sorcery and professions, constitute the true nature of Gypsy life. That is to say, these elements form the visible part of the iceberg. Other persons usually recognise Gypsies through these phenomena. Nevertheless, the way to truly know Gypsies is to mingle with their society and to fully analyse their traditions and beliefs. The secret world of the Gypsies reveals itself through their beliefs, in particular through their superstitions and taboos. Gypsies, like everyone, feel the need to have faith and to worship. In addition to adopting the religion of the country they live in, they also perpetuate the traditional beliefs specific to their culture. Consequently, it is observed that Gypsies have genuine feasts and celebrations stemming from their beliefs which can be partly traced to Hinduism. In our opinion, these people, who suffer from humiliation and rejection everywhere, could be transformed into citizens who are an asset to our State and our nation once their educational, social, cultural and medical problems are solved. The only thing that needs to be done is to focus on this issue with patience and determination.” 20. In December 1998 the Language Association, a non-governmental organisation, published a dictionary entitled “Turkish Dictionary for Pupils”. The publication of the dictionary was financed by the Ministry of Culture. 21. On 30 April 2002 the applicant sent a letter to the Executive Board of the Language Association on behalf of the Confederation of Gypsy Cultural Associations. In his letter, the applicant submitted that certain entries in the dictionary were insulting to and discriminatory against Gypsies. In this connection, he referred to the descriptions and idioms below: “Gypsy” (çingene): (metaphorically) stingy. “Gypsyness” (çingenelik) (metaphorically): stinginess, greediness. “Becoming a Gypsy” (Çingeneleşmek): “displaying stingy behaviour”. “Gypsy’s debt” (Çingene borcu): an unimportant debt. “Gypsy plays Kurd dances” (Çingene çalar Kürt oynar): a place where there is a lot of commotion and noise. “Gypsy tent” (Çingene çergesi) (metaphorically): a dirty and poor place. “Gypsy wedding” (Çingene düğünü): a crowded and noisy meeting. “Gypsy fight” (Çingene kavgası): verbal fight in which vulgar language is used. “Gypsy money” (Çingene parası): coins. “Gypsy pink” (Çingene pembesi): pink. 22. In the applicant’s opinion, these descriptions had negative, discriminatory and prejudiced meanings. The applicant further submitted that the Ministry of Education and the Turkish Language Society had amended their dictionaries at his request and asked the Language Association to correct the definitions of the aforementioned words and to remove the discriminatory expressions from the dictionary. He received no reply to his letter. 23. Subsequently, on 15 July 2002, the applicant sent a further letter to the Language Association, repeating his request. He added that he would bring a case against the Association if his request was not granted by 20 August 2002. 24. On 16 April 2003 the applicant brought proceedings in the Ankara Civil Court of General Jurisdiction against the Language Association, requesting that the aforementioned definitions and expressions be removed from the dictionary. The applicant also requested compensation for the nonpecuniary damage he had suffered on account of the expressions contained in the dictionary. He alleged in that connection that the dictionary definitions constituted an attack on his identity as a Gypsy and an insult to his personality. 25. On 26 May 2003 the representative of the Language Association made submissions to the firstinstance court. He maintained, inter alia, that the definitions and expressions contained in the dictionary were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. He further submitted that the dictionary contained expressions and definitions that were commonly used in society and that there were other similar expressions in Turkish which concerned Albanians, Jews and Turks. 26. On 16 July 2003 the Ankara Civil Court dismissed the applicant’s case. It held that the definitions and expressions in the dictionary were based on historical and sociological reality and that there had been no intention to humiliate or debase an ethnic group. It further noted that there were other similar expressions in Turkish concerning other ethnic groups, which existed in dictionaries and encyclopaedias. 27. The applicant appealed. On 15 March 2004 the Court of Cassation upheld the judgment of 16 July 2003. | 0 |
train | 001-76300 | ENG | EST | CHAMBER | 2,006 | CASE OF HARKMANN v. ESTONIA | 2 | Violation of Art. 5-3;Violation of Art. 5-5;Remainder inadmissible;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1955 in Estonia and lives in Tartu. 5. In 1995 or 1996 the applicant lodged an application with the Public Prosecutor’s Office in which he requested that criminal proceedings be initiated against four persons, including two police officers. The applicant had allegedly been beaten by these men. A prosecutor refused to initiate criminal proceedings. 6. Subsequently, the same four persons made a report concerning an offence allegedly committed by the applicant. They argued that the applicant had submitted false accusations concerning the beating. On 8 October 1996 criminal proceedings were instituted against the applicant under Article 174 § 1 (submitting knowingly false accusations concerning the commission of a criminal offence by another person) of the Criminal Code (Kriminaalkoodeks). 7. In the following years, the applicant repeatedly failed to appear at the police prefecture when summoned. On several occasions it proved to be impossible to compel him by force to appear (sundtoomine), as he was not present at the address he had indicated and his whereabouts were unknown. On some occasions, when the authorities found him, he refused to familiarise himself with the charges, to give statements or to sign an undertaking not to leave his place of residence (allkiri elukohast mittelahkumise kohta). 8. According to a forensic psychiatric expert opinion given in 2000 on the request of an investigator, the applicant was not mentally unsound but had a paranoid personality disorder. He was considered to be able to give statements, attend court hearings and serve any punishment. 9. Also in 2000 a new criminal case was instituted against the applicant, again under Article 174 § 1 of the Criminal Code. The case was joined with the case initiated in 1996. 10. In 2000 and 2001 the period of the preliminary investigation was extended repeatedly due to the applicant’s alleged ill-health. On 28 November 2001 he was compelled by the police to appear in the police prefecture. On the next day, he was presented with the formal charges under Article 174 § 1 of the Criminal Code. He refused to make any statements, to familiarise himself with any documents or to sign them. 11. On 15 January 2002 the prosecutor approved the summary of charges and the criminal case file was sent to the Tartu County Court (Tartu Maakohus). 12. On 17 January 2002 the County Court committed the applicant for trial and maintained the signed undertaking not to leave his residence as a preventive measure against him. The hearing was scheduled for 26 March 2002. By a letter of 24 March 2002 the applicant informed the court that he could not participate in the hearing due to his ill-health. He requested that the hearing be adjourned. On 26 March 2002 the hearing was adjourned due to the absence of the applicant and a new hearing was scheduled for 13 June 2002. The court decided that the applicant should be compelled by the police to appear before it on that date. As the police was unable to find the applicant and to secure his attendance at the court hearing on 13 June 2002, the hearing was adjourned until 30 September 2002. The court again decided that the applicant had to be compelled by the police to appear in court. 13. On 30 September 2002 the applicant failed to appear in court. The police had been unable to secure his attendance, as during repeated checks no one had opened the door at his residence. The applicant’s appointed lawyer, the prosecutor and one of the victims had appeared before the court. The County Court decided to adjourn the hearing and to declare the applicant a fugitive. It decided that when found he should be taken into custody (vahi alla võtmine) and that a new hearing would be scheduled then. The court relied on Articles 66, 68, 73 § 1, 209, 218 and 223 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks). 14. The applicant was taken into custody on 2 October 2002 in Tallinn. 15. He subsequently lodged a complaint addressed to the Tartu Court of Appeal (Tartu Ringkonnakohus). As stated by the applicant in the complaint, “[it was] handed over on 05.10.2002, in the presence of witnesses, to the officer in charge of the Arrest House of the Tallinn Police Prefecture to be transmitted to the Tartu Court of Appeal”. A copy of the complaint submitted to the Court by the Government bears a handwritten note “Complaint received. Tartu County Court. 10.10.02” and a seal and signature of a judge of the County Court. According to the complaint, the deprivation of the applicant’s liberty was unlawful, as he had not been presented with the decision of the County Court on the basis of which he had been arrested. Moreover, the decision had been taken by the County Court in his absence. He alleged that the registration of his residence at the address where the City Court had sent the summonses had been cancelled. He noted that, according to the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus), in case the residence of a person could not be determined, the place where he or she was actually staying should be deemed his or her residence. On 2 October 2002 he had stayed in Tallinn and prior to that in Tartu. However, he had not received the summonses. He requested that he be immediately released from custody and that the County Court’s decision concerning his arrest be invalidated. 16. The applicant was kept in custody until 17 October 2002. On that date the Tartu County Court held a hearing in the presence of the applicant, his appointed lawyer and the prosecutor. The court decided that, as the applicant and his lawyer had not familiarised themselves with the case file, the hearing had to be adjourned. As the applicant alleged that he had not received the summons for the hearing of 30 September 2002 and promised to appear before the court when invited in the future, he was released from custody. The court applied a more lenient preventive measure in respect of the applicant – a signed undertaking not to leave his place of residence. 17. On 5 November 2002 the Tartu Court of Appeal adjourned the hearing concerning the applicant’s appeal against the County Court’s decision of 30 September 2002, since the applicant’s lawyer had not appeared. On the same day the Court of Appeal received the applicant’s amendments to his appeal. He alleged, inter alia, that he had never signed an undertaking not to leave his place of residence and claimed compensation for his unlawful detention. 18. On 11 November 2002 the Court of Appeal held a hearing and dismissed the applicant’s appeal. It noted that, under Article 73 § 1 of the Code of Criminal Procedure, preventive custody could be applied in order to prevent a defendant at trial from evading the criminal proceedings or committing a new crime. It held that the County Court had had good grounds to believe that the applicant was evading the criminal proceedings and that he was in breach of a signed undertaking not to leave his place of residence. He had not reacted to summonses sent to his place of residence and had not answered phone calls. The fact that the applicant had been taken into custody had made it possible, on 17 October 2002, to conduct a hearing, after which the applicant had been released. In respect of the applicant’s allegation that he had never signed an undertaking not to leave his place of residence, the Court of Appeal established, based on the case file, that the applicant had been presented with a decision according to which a prohibition to leave his place of residence had been applied as a preventive measure. The fact that the applicant had refused to sign it could not be interpreted to mean that the measure had not been applied. The preventive measure in the form of a signed undertaking not to leave one’s place of residence was not meant to restrict one’s freedom of movement; its purpose was rather to keep the court informed of the person’s whereabouts so that the criminal proceedings could be conducted without delays. However, in the particular instance, the criminal case could not be conducted without delays, as the applicant had failed to comply with the preventive measure applied under Article 69 § 1 of the Code of Criminal Procedure. The Court of Appeal noted that it was not possible in those proceedings concerning the appeal against the County Court’s ruling to decide on the compensation claim for damage. Under the provisions of the applicable criminal procedure law, the decision of the Court of Appeal was final. 19. In late 2003 and 2004 the hearings in the criminal case were repeatedly adjourned, mainly due to the applicant’s failure to appear before the court and to comply with the court’s orders concerning his forensic psychiatric expert examination. At the same time, the applicant lodged numerous complaints and appeals against various institutions. 20. According to a forensic psychiatric examination’s report of 3 August 2005, the state of the applicant’s mind did not allow him to understand and control his acts. He was considered to be unable to give statements before a court or to serve punishment. His compulsory treatment was deemed to be unnecessary, as he presented no danger to himself or to society. 21. By a decision of 21 September 2005, the County Court found it established that the applicant had committed the acts that he had been charged with. However, since his state of mind had deteriorated, as evidenced by the forensic psychiatric examination’s report, and he was unable to give statements before a court and serve punishment, the criminal proceedings were discontinued. The decision could be appealed against within ten days. 22. By a decision of 27 September 2005, the Supreme Court (Riigikohus) rejected the applicant’s appeal against several decisions of lower courts, including the Court of Appeal’s decision of 11 November 2002. It held that only a lawyer – and not the applicant himself – could appeal against a decision of an appellate court. Moreover, the above decision of the Court of Appeal had been final according to the applicable criminal procedure law. 23. On 22 October 2005 the applicant lodged an appeal against the County Court’s decision of 21 September 2005. 24. The relevant provisions of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), as in force at the material time, provided: “(1) If there is sufficient reason to believe that an accused or a defendant at trial who is at liberty might abscond from an investigation or court proceedings or impede the establishment of the truth in a criminal matter or continue to commit criminal offences, or in order to ensure the enforcement of a court judgment, one of the following preventive measures may be applied with regard to him or her: 1) a signed undertaking not to leave place of residence (allkiri elukohast mittelahkumise kohta); ... 3) taking into custody; ...” “(1) In the choice of preventive measure, there shall be taken into account the seriousness of the criminal offence in question, the personality of the suspect, accused, or defendant at trial, the possibility that the suspect, accused, or defendant at trial may abscond from the investigation or from the court proceedings or may impede the establishment of the truth, and the state of health, age, marital status and other facts concerning the suspect, accused or defendant at trial which may be relevant to the application of a preventive measure. ...” “(1) A signed undertaking not to leave a place of residence means a written commitment obtained from a suspect, accused or defendant at trial not to leave his or her permanent or temporary residence without the permission of a preliminary investigator, prosecutor or court. (2) If the suspect, accused or defendant at trial violates such a commitment, a more severe preventive measure may be applied with regard to him or her, the consequences of which the suspect, accused or defendant at trial shall be warned of at the time of obtaining his or her signature.” “(1) A preventive custody measure may be applied in respect of a suspect, accused or defendant at trial in order to prevent him or her from evading the criminal proceedings or committing a new offence, as well as to ensure the enforcement of a court judgment. ... (4) ... A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of defence counsel ... Such requirements are not applied if the person to be taken into custody is a fugitive, or if his or her whereabouts are unknown. (5) A preventive custody measure ... shall be granted or refused by a reasoned ruling of a county or city court judge. ...” “A person taken into custody ... may challenge the custody measure by an appeal lodged within five days...” “... (3) A preventive measure applied in respect of a defendant at trial may be altered or annulled by the trial court or a higher court. ...” “(1) A person who has been summoned ... has to promptly inform ... the court ... if he or she is unable to appear at the time indicated in the summons. ...” “(1) Compulsory attendance (sundtoomine) may be ordered ... by a court with regard to ... an accused ..., if he or she fails to appear before ... the court and the summons indicates that the person concerned may be compelled to attend in case of failure to appear. ... (2) Compulsory attendance is effected by the police. (3) A person subject to compulsory attendance who is staying in the same district as ... the court may be detained for up to eighteen hours prior to the commencement of ... a court session. In the case of the compulsory attendance of a person who is staying in another district, the term of detention shall not exceed forty-eight hours. ...” “(1) A criminal matter shall be heard in a session of a court of first instance in the presence of the defendant at trial whose appearance in court is mandatory. ...” “If the defendant at trial fails to appear in a court session, a court shall adjourn the hearing of the criminal matter ... . The court shall impose a fine on a defendant at trial who fails to appear ... and shall decide on the application of compulsory attendance or other preventive measures with regard to the defendant at trial.” “In the course of a court hearing of a criminal matter, the court has the right to choose, amend or annul ... the preventive measures previously chosen with regard to the defendant at trial.” 25. According to section 7(1) of the State Liability Act (Riigivastutuse seadus), a person whose rights are violated by the unlawful activities of a public authority in a public law relationship may claim compensation for damage caused to him or her. 26. A special law – Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus) –, which entered into force on 1 January 1998, deals with the issues of compensation for damage caused by unlawful deprivation of liberty. According to section 1(3)(2) of the Act, damage caused by deprivation of liberty shall not be compensated for in a case where the person concerned absconded from the criminal proceedings, violated the obligation arising from a preventive measure not to leave his residence without the permission of a court, escaped or was in hiding. | 1 |
train | 001-60883 | ENG | POL | CHAMBER | 2,003 | CASE OF RAWA v. POLAND | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award | Nicolas Bratza | 8. The applicant was born in 1930 and lives in Warsaw. 9. The applicant, a professional army officer, took an early retirement in 1965. 10. On 13 June 1994 the applicant filed a civil action against the Ministry of National Defence, claiming that he had been deprived of adequate medical treatment, to which he was entitled as a retired army officer. He maintained that numerous errors committed by military dentists and their incompetence had led to irreversible bodily harm and damage to his health. 11. On 21 July 1994, on the Warsaw Regional Court’s order, the applicant particularised his claim. He sought a finding of the defendant’s liability, a sum of 1 PLN as compensation, and reimbursement of legal costs. On 3 August 1994 the Warsaw Regional Court gave a decision stating its lack of jurisdiction and forwarded the case to the Warsaw District Court. 12. On 8 August 1994 the applicant extended his claim and alleged that his heart illness had been caused by the defendant ministry. On 5 September 1994 the applicant submitted, on the court’s order, a statement of his financial and family situation. On 21 September 1994 the court exempted the applicant from the court fees. 13. On 22 September, 12 and 27 October 1994, the applicant filed his further objections as to the work and conduct of the dentists concerned. On 5 December 1994 the Ministry of National Defence sent copies of the applicant’s statement of claim to the Central Clinical Hospital at the Warsaw Medical Academy and to the court. The Ministry also declared that the hospital had been authorised to represent the State Treasury in the case. On 20 December 1994 the defendant’s counsel filed a reply to the applicant’s statement of claim with the court and requested it to summon three dentists as witnesses. 14. The applicant submitted his further pleadings on 21 November, 27 December 1994 and 21 February 1995. The hearing scheduled for 28 February had to be adjourned due to illness of the judge rapporteur. The applicant’s further pleadings were lodged with the court on 21 March, 11 and 24 April, 7 and 31 May, 16 and 30 June, 20 July, and 1, 7 and 21 August 1995. On 28 August 1995 the court held a hearing. It heard the applicant and one witness. Subsequently the applicant filed his pleadings on 21 September, 9 and 23 October 1995. 15. The second hearing was held by the court on 30 October 1995. The court interviewed one witness, a dentist who had treated the applicant in the defendant ministry polyclinic. The other witness, summoned for that date, failed to appear. The court accordingly adjourned the hearing. 16. The applicant filed his pleadings on 24 November and 19 December 1995. The subsequent hearing was fixed for 21 December 1995. It had to be adjourned as the defendant’s lawyer and the witness failed to comply with the summons. The applicant was told by the judge that the next hearing would be held on 15 February 1996, at 9.15 a.m. 17. On 15 February 1996 the applicant appeared before the court an hour after the hearing had begun. He complained to the President of the Warsaw District Court that he had not been properly informed about the time fixed for the hearing. He further complained that, after having waited several years for the trial, he had been denied the opportunity of questioning witnesses and had not been allowed to examine the minutes of the hearing. The President of the District Court was of the view that the applicant’s complaint was unfounded, explaining that the applicant himself bore the blame for having arrived late for the hearing. 18. On the same day the court decided to appoint professor J.P. as an expert. The applicant filed his further pleadings on 1 January, 12 and 19 February, 10 and 22 April 1996. In May 1996 the expert opinion reached the court. The applicant filed his pleadings and motions, inter alia as to the expert opinion, on 15 May, 19 and 26 July, 6, 19, 20 and 26 August 1996. On 10 September 1996 the defendant’s lawyer submitted her observations as to the expert opinion. 19. The applicant submitted his new pleadings and various motions on 19 September, 11 December 1996, 11 February, 4, 10, 12 and 24 March, 7, 17 and 21 April, 12 May, 18 and 20 August 1997. On 21 August 1997 the applicant submitted two sets of questions to the expert, altogether fifty questions. He submitted further pleadings on 4 November 1997, and 2 and 16 February 1998. 20. In 1996 and 1997 hearings were scheduled by the Warsaw District Court on the following dates: 23 September 1996, 12 November 1996, 17 December 1996, 14 January 1997, 7 March 1997, 17 June 1997 and on two other unspecified dates. On 21 August 1997 the Warsaw District Court stated its lack of jurisdiction to entertain the case and the case was subsequently transferred to the Warsaw Regional Court. As on each occasion the court expert, professor J.P., failed to attend, the hearings were adjourned. 21. On 18 February 1998 the Warsaw Regional Court sent letters to J.P.’s two addresses - to the hospital and to his home address - in order to set a date for the hearing. The court’s secretary also telephoned to the hospital to inform the expert about the need to achieve some progress in the proceedings, and to reiterate that a date had to be fixed so that he could finally attend the hearing. The expert informed the court that he could be present on 8, 9 and 14 July 1998, at 9 a.m. 22. On 3, 12, 18, 30 March, 20 April and 29 June 1998 the applicant filed his further pleadings with the Regional Court. In a letter of 31 March 1998, in reply to the applicant’s earlier letter of complaint to the Ministry of Justice of 19 February 1998 about the lack of progress in the proceedings, the President of the Warsaw Regional Court admitted that the proceedings were too slow, but in his opinion the court could not be blamed for it, since the delay had mainly been caused by the persistent failure of the expert J.P. to attend hearings. 23. During the hearing held on 14 July 1998, the court took the oral evidence of the expert J.P. On 15 July 1998 the applicant filed a list of his further claims with the court. On 17 July 1998 at a session held in camera the court decided that additional expert opinions should be prepared within thirty days. The court subsequently made a few attempts to appoint experts, but they refused to prepare their opinions for various reasons. The experts’ refusals were submitted to the court on 31 August, 20 October, 3 and 28 December 1998. On 31 July 1998 the Warsaw Regional Court answered the applicant’s question of 27 July 1998 concerning the decision of 17 July 1998 to take additional evidence. 24. The applicant filed his new pleadings with the court on 24 September, 29 October 1998, 15 January and 19 February 1999. On 5 March 1999 the court sent to the applicant a list of experts practising in other towns and asked him if he would agree to visit one of them at his own expense. On 11 March 1999 the applicant informed the court that he had chosen the expert A.K.S. living in Kraków. The applicant filed his new pleadings on 12,13 May and 8 June 1999. 25. On 9 June 1999 the court requested A.K.S. to submit her report. On 30 June 1999 the expert opinion prepared by professor A.K.S. was submitted to the court. On 31 June 1999 the expert explained that she had not been able to complete her opinion earlier due to serious family problems. She also informed the court that she had summoned the applicant for 22 June 1999, at 10 a.m. He had not reported for the examination and answered that he could only do so in the afternoon. Following that, the applicant formulated a list of questions addressed to the expert and submitted that list to the court. On 18 August, 2 and 27 September 1999, 6 and 28 April 2000 the applicant lodged his further pleadings with the court. 26. On 11 May 2000 the defendant’s lawyer submitted her observations on the merits of the case and informed the court that the Ministry of National Defence had to be summoned as a party to the proceedings. 27. On 17 May 2000 the President of the Warsaw Regional Court, in reply to the applicant’s letter of 30 March 2000 addressed to the Ministry of Justice, informed him once again that difficulties in hearing the evidence, as well as other reasons beyond the court’s control, had contributed to the excessive length of proceedings. It was true that no hearings had been held since 30 June 1999, but this was due to the fact that it was of primary importance for the court to establish which institution had assumed the obligations of the Central Clinical Hospital at the Warsaw Medical Academy after the reforms of the public system of health services, which had become effective from 1 January 1999. 28. The applicant countered these arguments in two letters of complaint written to the Ministry of Justice of 22 and 25 May 2000. He complained inter alia that the expert had not managed to take a stand on a number of questions he had asked. 29. On 22 May 2000 the court summoned the Ministry of National Defence as a party to the proceedings and on the same date it informed the hospital about it. On 13 June 2000 the Ministry of Justice informed the applicant that the President of the Warsaw Regional Court in his letter of 17 May 2000 had given convincing grounds as to why the proceedings were prolonged, but that the case would thereafter be placed under its administrative supervision in order to expedite the proceedings. 30. On 3 July 2000 the applicant filed a letter with the Chancellor of the Jagiellonian University in Kraków contesting the expert opinion of 30 June 1999. On 3 October 2000 the university informed the court that the expert A.K.S. had died on 23 September 2000. 31. On 14 September 2000 the applicant sent a letter of complaint to the Ministry of Justice, stating that he was not satisfied with the vague explanations he had obtained as to the length of the proceedings. 32. On 5 October 2000 the defendant filed its reply to the applicant’s statement of claim. On 9 October 2000 the university answered the applicant’s letter of 3 July 2000 and informed him that professor A.K.S. had been an expert appointed in the case and the university could not interfere with her opinion. On 25 September 2000 the defendant Ministry’s lawyer submitted its reply to the statement of claim. 33. On 18 October 2000 the court held a hearing in the case. The applicant contested the opinion prepared by A.K.S. On 27 October 2000 the court informed the Mazowsze Governor that he would be summoned as a co-defendant in the case. 34. On 13 November 2000 the applicant was informed by the Complaints Department in the Ministry that the Warsaw Regional Court had been notified of the expert’s death and that a new expert had been appointed. The proceedings would be resumed as soon as the appropriate expert opinion was submitted. 35. On 28 November 2000 a new expert opinion was ordered by the court. On 30 November 2000 the representative of the Mazowsze Governor stated that it was the Minister of National Defence who should be summoned as a defendant in the case. On 4, 22 and 27 December 2000 the applicant submitted his further pleadings. On 11 December 2000 the court received a letter from expert M.Z., refusing to prepare his opinion because of his heavy workload. On 14 December 2000 the expert refused the reiterated request of the court. 36. The applicant filed his new pleadings on 23 and 30 January, 12 February, 16 and 21 March and 11 April 2001. On 24 April 2001 the court ordered expert J.P. to prepare his opinion in the case. On 30 May 2001 the expert refused to do so. The court ordered the Dental Institute of the Warsaw Medical Academy to appoint an expert in order to prepare an opinion. The expert from the institute likewise refused to prepare a report and stated that the first opinion prepared by the expert J.P. had been a professional and conclusive one. The applicant submitted his further pleadings to the court on 13 September, 2, 8 and 24 October 2001. 37. On 1 October 2001 the Ministry of Justice answered the applicant’s letters and informed him that the length of proceedings in the present case was caused by the difficulties in obtaining an expert opinion. Answering the subsequent complaint of the applicant, the Ministry informed him that the independent court was considering the case and that no measures could be taken by the Ministry to interfere with the course of the proceedings. On 26 November 2001 the applicant submitted further pleadings to the court. 38. The court held a hearing on 13 December 2001. On 19 December 2001 it gave judgment and dismissed the applicant’s claim. On 20 December 2001 the applicant requested to be served with the written grounds of the judgment. He was served with these on an unspecified date and in June 2002 he lodged an appeal against the first-instance judgment. 39. The proceedings are pending. 40. Article 287 of the Code of Civil Procedure provides that a court shall impose a fine on an expert who, without reasonable cause, consistently fails to comply with his or her obligation to submit a report to the court, or submits such report with a delay. | 1 |
train | 001-70369 | ENG | POL | CHAMBER | 2,005 | CASE OF JARZYNSKI v. POLAND | 4 | Violation of Art. 5-3;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1972 and lives in Rumia, Poland. The application was lodged on his behalf by his mother, Mrs Teresa Jarzyńska, who submitted a duly signed written authorisation from the applicant. 5. On 1 June 1999 the Gdańsk District Court (Sąd Rejonowy) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed several counts of armed robbery. It considered that there was a risk that the applicant would attempt to induce witnesses to give false testimony or to obstruct the proceedings by other unlawful means. It also relied on the severity of the anticipated penalty. 6. In the course of the investigation, the applicant's detention was prolonged on the following dates: 19 August 1999, 24 November 1999, 24 May 2000, 13 December 2000 and 7 March 2001. 7. In its decision of 13 December 2000 the Gdańsk Court of Appeal (Sąd Apelacyjny) considered that the strong suspicion against him of having committed the serious offences with which he had been charged, the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody. 8. On 10 May 2001 the Gdańsk Regional Prosecutor terminated the investigation. On 15 May 2001 the applicant was indicted on 45 charges, including, inter alia, several counts of armed robbery before the Gdańsk Regional Court (Sąd Okręgowy). The bill of indictment listed 120 charges brought against 19 accused, who were all detained on remand. The case-file comprised 114 volumes. The prosecution asked the court to hear evidence from 366 witnesses. The principal witness was a certain A.Ł., who was indicted together with all the defendants but gave evidence against them. 9. The trial began on 28 December 2001. However, as of April 2002 the reading out of the bill of indictment by the prosecution was still continuing. 10. During the trial, the applicant's detention was prolonged several times by the Gdańsk Court of Appeal. The relevant decisions were given on 23 May 2001 (extending the applicant's detention until 31 October 2001), on 24 October 2001 (ordering his continued detention until 31 March 2002), on 13 March 2002 (prolonging his detention until 30 September 2002), on 11 September 2002 (extending that period until 31 December 2002), on 18 December 2002 (ordering his continued detention until 30 June 2003), on 25 June 2003 (prolonging that period until 31 December 2003), on 17 December 2003 (extending his detention until 30 June 2004), on 23 June 2004 (ordering his continued detention until 31 December 2004), on 15 December 2004 (prolonging his detention until 31 March 2005) and on 30 March 2005 (extending that period until 30 June 2005). As at the latter date, 8 of the 19 accused were still detained on remand and the trial court had heard most of the prosecution witnesses. 11. In its decision of 11 September 2002, the Court of Appeal considered that the applicant's detention was justified under Article 258 § 2 of the Code of Criminal Procedure since that provision established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings. 12. In its decision of 18 December 2002, the Court of Appeal added that the case was “particularly complex” within the meaning of Article 263 § 4 of the Code of Criminal Procedure. 13. In its decision of 23 June 2004, the Court of Appeal observed that up to April 2003 the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence. 14. On 21 March 2005 the trial court made a severance order with a view to expediting the proceedings, and thereafter four defendants (J.N., G.P., Z.S. and Z.C.), who in the meantime had been released from detention, were to be tried separately from other defendants. 15. During the trial the applicant filed numerous but unsuccessful applications for release on health grounds and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis. He also relied on his family's situation. 16. It appears that the applicant is still in detention pending trial. 17. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju). 18. Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused's committing another, serious offence; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence.” 19. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 20. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” 21. Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 22. The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 23. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” 24. On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. | 1 |
train | 001-79161 | ENG | GBR | ADMISSIBILITY | 2,007 | SMITH v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicant is a British citizen born in 1934 and resident in Uxbridge. He is represented by Mr De Cruz, a solicitor practising in London. In 1988 the applicant was the Managing Director and controlling shareholder of DEL or The Display Electronics Group. At the time DEL was involved in the development of four industrial units in Uxbridge. According to the applicant, an oral agreement was reached in a meeting on 11 January 1988 with Mr G. from Lloyds Bank to the effect that Lloyds would take over the funding of the development and that the applicant’s personal borrowings and DEL’s borrowings would be secured on the development and also by a mortgage on the applicant’s home. According to the applicant, it was also agreed that the short term bridging loan would be replaced by long term mortgage finance once two of the units had been let and two had been sold. Transfers and debits of money, flowing from the agreement, were made on DEL’s account. Lloyds Bank in later proceedings denied the existence of any such oral agreement. Lloyds refused to provide long term financing and in 1996 gave notice that they were calling in their loans. This led to protracted litigation in which the applicant was unsuccessful in his claims against Lloyds which gained possession of his home and, in 2000, made him bankrupt. In late 1998 the applicant traced Mr G, who allegedly disclosed the existence of contemporaneous notes of the meeting in 1988. These notes had never been disclosed in the various proceedings. On 13 September and 29 October 2001, the applicant made application for access to the notes under the Data Protection Act 1998 (“the 1998 Act”), claiming that he was a data subject and that personal data concerning him was either processed or part of a filing system within the meaning of that Act. On 23 February 2005, the High Court refused to order disclosure of the notes. Mr Justice Laddie noted that it was not in dispute that Lloyds held no computerised records relating to the applicant and that any such documents that might be retained were in the form of unstructured bundles kept in boxes. There were, it was accepted, some documents which at least mentioned the applicant within the bundles relating to DEL. The applicant’s counsel had conceded that such files were not sufficiently structured to fall within the scope of "relevant filing systems" and the judge rejected arguments that sought to bring the notes within the scope of the Act by reference to the fact that at one time they might have been subject to word processing or could be rendered into a structured form by means of scanning and processing, relying inter alia on indications in domestic and European materials that only filing systems, and not unstructured files, were intended to be covered by data protection The judge also considered that the notes did not concern "personal data" about the applicant. He cited case-law indicating that not all information retrieved from a search against an individual’s name was personal data; that mere mention of an individual’s name in a document held by a data controller did not mean that the document contained personal data; and that in determining whether information was capable of constituting personal data depended on its relevance or proximity to the data subject and that in answering that question it was relevant to consider whether the information was biographical in a significant sense, whether it had the putative data subject as its focus and finally whether the information affected the privacy of the putative data subject. Applying those principles, it was clear that the documents held by Lloyds and the information contained therein were not personal to the applicant in the relevant sense. The files related to the loans to DEL and the applicant was only mentioned because he acted on behalf of the company. The documents were not biographical about the applicant to a significant extent, dealing with the loan and its terms. Indeed what the applicant was trying to obtain were not documents about himself but documents dealing with the terms of an oral agreement under which Lloyds were to make GBP 500,000 available to DEL. On 18 July 2005, the Court of Appeal rejected his application for permission to appeal. Lady Justice Arden also found that domestic and European legislation did not cover information held in unstructured files as opposed to a processing or filing system. She also rejected arguments that the data were personal to the applicant, noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data. She further referred to judicially-expressed doubts that the Act was an appropriate means of seeking to compel the disclosure of documents which could not be obtained in legal proceedings for the purpose of obtaining documents to use in legal proceedings. | 0 |
train | 001-102807 | ENG | POL | ADMISSIBILITY | 2,010 | GERTER v. POLAND | 4 | Inadmissible | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | The applicant, Mr Patrycjusz Gerter, is a Polish national who was born in 1963 and is currently detained in Warsaw-Mokotów Remand Centre. He was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 November 1998 the applicant was sentenced to 25 years’ imprisonment and was committed to Wołów Prison. Since that date he has been continuously detained in several penitentiary facilities in Rawicz, Strzelin, Kłodzko, Brzeg, Kluczbork and Nowy Wiśnicz. On an unspecified date the applicant was transferred to Warsaw-Mokotów Remand Centre where he is currently detained. The parties gave partly differing accounts of the conditions of the applicant’s detention. The applicant maintained that throughout his detention he was held in overcrowded cells. Without submitting the exact statistics, the Government acknowledged that during the applicant’s detention in Strzelin Prison he had spent several days in a cell in which the statutory minimum size of 3 m² per person had not been respected. The Government did not comment on the level of overcrowding in the remaining penitentiary facilities. More recently, the Government also submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission. The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention. Only one of them was considered well-founded. The applicant brought a civil action in tort against the State Treasury statio fisci Wołów Prison to seek compensation for the infringement of his personal rights. On 17 May 2006 the Wroclaw Regional Court dismissed the applicant’s claim. The applicant appealed. On 24 August 2006 the applicant was requested to pay a basic court fee in the amount of PLN 30 (approximately EUR 7.50). In reply, the applicant requested the court to exempt him from payment of the basic court fee arguing that he was detained and lacked financial resources. On 11 October 2006 the court dismissed the applicant’s request stating that he had already been exempted from paying most of the court fees. On an unspecified date the Wroclaw Regional Court rejected the applicant’s appeal on formal grounds. The applicant has not brought a civil action in respect of the remaining period of his detention. (See Siedlecki and 9 other applications v. Poland, no. 5246/03). | 0 |
train | 001-95788 | ENG | RUS | ADMISSIBILITY | 2,009 | MARTYNETS v. RUSSIA | 3 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Valentina Kirillovna Martynets, is a Ukrainian national. She was born in 1937 and lives in Sebastopol. The applicant sued Ms M. and Ms G. in the Oktyabrskiy District Court of the Kursk Region, contesting their property rights to a house in the village of Repino located in that district. Ms M. brought a counter action, claiming her property rights on certain buildings and a plot of land in the same village. On 4 February 2008 the court dismissed the applicant's claim and partially granted that of Ms M. On 10 April 2008 the Kursk Regional Court upheld the judgment on appeal. The judgment thus became binding and enforceable on that date. Subsequently, the applicant lodged consecutive applications for supervisory review with the Kursk Regional Court, the Civil Chamber of the Supreme Court and the President of the Supreme Court of the Russian Federation. These applications were dismissed on 28 May, 30 July and 7 October 2008 respectively. Under the Code of Civil Procedure, binding and enforceable judgments are amenable to supervisory review by higher judicial instances at various levels. The supervisory review procedure was repeatedly amended over the past years. The supervisory review procedure in force up to 1 February 2003 is presented in the Court's judgment in the case of Ryabykh (see Ryabykh v. Russia, no. 52854/99, ECHR 2003IX). On 1 February 2003 the new Code of Civil Procedure entered into force. The provisions governing the supervisory review procedure between 1 February 2003 and 7 January 2008 are presented in the Court's previous judgments and decisions (see Denisov v. Russia, no. 21823/03, 25 January 2007, and Sobelin and Others v. Russia, nos. 30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, § 34, 3 May 2007). In particular, the new Code provided that supervisory review applications against binding and enforceable judgments could only be lodged by the parties to the proceedings and other persons whose rights and legal interests were affected by the judgments concerned. The Code also set a one-year time-limit for lodging such applications. In the judgment of 5 February 2007 (No. 2-П) the Constitutional Court of the Russian Federation found that the supervisory review procedure governed by the Code of Civil Procedure gave rise to a number of issues with regard to the principle of legal certainty enshrined in the Convention, as interpreted by the European Court of Human Rights. The Constitutional Court found in particular that binding and enforceable judgments delivered by courts of general jurisdiction could be altered in supervisory review proceedings not only consecutively but also indefinitely. The court explicitly refrained from declaring these and other shortcomings of the supervisory review procedure unconstitutional, in order to avoid a procedural vacuum that would undermine the effective administration of justice. It upheld nonetheless the obligation of the legislator to reform the supervisory review procedure so as to make it compatible with the principle of legal certainty, taking account of the case-law of the European Court of Human Rights and of Resolution ResDH (2006)1 of 8 February 2006 of the Committee of Ministers of the Council of Europe. The Constitutional Court also stated that the domestic remedies should not be considered exhausted within the meaning of Article 46 § 3 of the Constitution prior to the judgment delivered on supervisory review, as the latter may find a violation of any right and repeal the domestic decision at issue. The Constitutional Court concluded that individuals should be able to complain to the European Court of Human Rights upon completion of the supervisory review procedure, provided the latter is reformed so as to constitute an effective judicial remedy compatible with the constitutional requirements and the present judgment of the Constitutional Court. On 7 January 2008 the Law of 4 December 2007 (no. 330-ФЗ) entered into force, introducing a number of further amendments to the supervisory review procedure. Under the new provisions, judicial decisions may be challenged in supervisory review proceedings within six months of the date they become legally binding. Supervisory review proceedings may be entered into by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions, and only if other available ways of appeal have been exhausted before the decision becomes legally binding (Article 376). This time-limit may be waived (restored) only in exceptional circumstances which exclude any possibility of lodging a complaint in time (severe illness or incapacity of the plaintiff and so on), if such circumstances occurred within one year after the contested judgment became binding (Article 112 § 4). There are several levels of supervisory review of legally binding judgments and decisions. First, presidia of regional courts exercise supervisory review of judgments and decisions delivered by lower courts and by regional courts themselves acting as cassation instances (Article 377 § 2(1)). Second, judgments and decisions are amenable to supervisory review by the Civil Chamber of the Supreme Court of the Russian Federation (Article 377 § 2(3)). Third, decisions taken by the Civil Chamber on supervisory review may be challenged before the Presidium of the Supreme Court of the Russian Federation if they disrupt the uniformity of the case-law (Article 377 § 3). Moreover, the President or Deputy President of the Supreme Court of the Russian Federation may initiate supervisory review of binding judgments by the Supreme Court's Presidium on a limited number of grounds and upon an application by the persons concerned, lodged within six months of the date the judgment became binding (Article 389). A supervisory review application to a regional court is considered by the president or deputy president of this court or by a judge delegated for this purpose (Article 380.1 § 1). Applications for supervisory review which are lodged with the Supreme Court of the Russian Federation are considered by a judge of this court (Article 380.1 § 2). An application for supervisory review is considered by any court, except the Supreme Court of the Russian Federation, within one month if the case file has not been requested, and within two months if the case file has been requested from the lower instance, excluding the time elapsing between the request of the case file and its receipt. For supervisory review in the Supreme Court of the Russian Federation these time-limits are two and three months respectively; the latter may be extended by two months by the President or Deputy President of the Supreme Court (Article 382). Once it has been decided to transmit a case to the relevant instance for supervisory review, it must be examined within one month by the court and within two months by the Supreme Court (Article 386 § 1). The judge considers a supervisory review complaint on the basis of the material appended thereto and, where appropriate, on the basis of the case file requested from the lower instance (Article 381 § 1). The judge makes a decision to transmit the application for supervisory review by the relevant instance or to refuse to do so (Article 381 § 2). The President or Deputy President of the Supreme Court of the Russian Federation may overrule a decision of the judge of this court to refuse to transmit the application for supervisory review (Article 381 § 3). A similar power of the regional courts' presidents in respect of supervisory review applications lodged with presidia of those courts was abolished (former Article 383 § 2). The grounds for quashing or varying of binding judgments on supervisory review were limited to significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights, freedoms and lawful interests and to safeguard public interests protected by law (Article 387). If the supervisory review instance decides to quash the judgment or decision in full or in part, it may take any of the following actions: send the case back to a lower court for a new consideration, discontinue the proceedings, restore one of the lower court decisions, modify the decision or make its own decision without sending the case for new consideration (Article 390 § 1). The supervisory review is carried out on the basis of the arguments contained in the application. While the court may also invoke its own arguments, the supervisory review must not extend to those parts of the judgment that were not contested in the application (Article 390 § 1.1). Having noted questions arising in the courts' application of the supervisory review procedure as amended by the Law of 4 December 2007, the Supreme Court of the Russian Federation clarified various points in its ruling of 12 February 2008 (No. 2). The Supreme Court stated that the six-month time-limit applies to all supervisory review instances; it is not to be renewed after every rejection of a supervisory review complaint and application to a higher instance. On the other hand, the time spent by courts in considering supervisory review complaints should not be taken into account in the calculation of this time-limit. The court reiterated the exceptional nature of circumstances allowing this time-limit to be waived (restored) upon application by a physical or legal person. Courts should not take account of any such circumstance occurring later than one year after the judgment became binding. A decision waiving the time-limit should be duly motivated. The Supreme Court reiterated the obligation of exhaustion of ordinary ways of appeal prior to application for supervisory review. It also stated that the court examining an application for supervisory review should not take account of any document which has not been examined by the court of first instance and, in certain cases, by the court of second instance. The Supreme Court finally drew the courts' attention to new limits on the grounds for supervisory review enshrined in Article 387, which should be read in the light of the Convention provisions. Referring to the principle of legal certainty, it stated that courts are not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment; a different opinion of the supervisory review instance on the way the case should have been decided is not a sufficient reason for altering the lower court's decision. | 0 |
train | 001-22344 | ENG | AUT | ADMISSIBILITY | 2,002 | L.B. v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, L.B., is an Austrian national of Hungarian origin, born in 1939 and living in Maria Enzersdorf (Austria). He is represented before the Court by Mr R. Armster, a lawyer practising in Maria Enzersdorf. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant has lived in Austria since 1971 and obtained Austrian citizenship in 1979. On 9 October 1991 he filed a request with the Employees Pension Insurance Office (Pensionsversicherngsanstalt der Angestellten) to pay contributions under Section 227 of the General Social Security Act (Allgemeines Sozialversicherungsgesetz - “ASVG”) for the time he had been at school and had studied in Hungary. On 18 March 1992 the Employees Pension Insurance Office dismissed the request. It found that the applicant had not shown that he had undergone a period of training as specified by Section 227 ASVG. On 26 August 1992 the Regional Governor of Lower Austria (Landeshauptmann) dismissed the applicant’s appeal. He noted that periods of training in foreign countries were not mentioned in S. 227 ASVG. Therefore it was not possible to pay contributions for these periods. On 6 April 1993 the applicant filed a complaint with the Constitutional Court claiming that the above decision violated the principle of equality (Gleichheitssatz). On 15 June 1993 the Constitutional Court refused to entertain the applicant’s complaint for lack of prospect of success. It referred to its previous case-law on Section 227 § 1 ASVG, according to which territorial restraints (territoriale Beschränkung) of the social security system were in accordance with the Federal Constitution: Just as being employed in Austria was a legitimate requirement for participation in the social pensions scheme, the substitute requirement of having undergone training in Austria - and not abroad - was the same. Upon the applicant’s request it transferred the case to the Administrative Court. On 22 November the applicant supplemented his complaint to the Administrative Court. He argued that although the wording of Section 227 § 1 (1) ASVG explicitly mentioned attending a school in Austria as a condition this criterion should rather be construed as to mean training for a diploma which is subsequently recognised by Austria authorities. On 24 June 1997 the Administrative Court dismissed the applicant’s complaint. It rejected the applicant’s argument and found that the wording of Section 227 § 1 (1) ASVG was clear and unambiguous and required that such training be attended in Austria. It was reasonable to enable backpayments into the pension scheme for periods of pre-professional training only in cases when, without such training, the person concerned would have been employed in Austria and would have contributed to the Austrian social pension system. The Austrian social pension scheme is based on the principle that pension rights are acquired by contributions during a person’s employment (Beitragszeiten). Section 227 of the General Social Security Act also provides for the possibility to pay pension contributions for certain periods during which a person was not gainfully employed. By paying such contributions a person acquires pension rights and – when he or she retires – receives a higher pension. Section 227 § 1 of the Act defines these latter periods (Ersatzzeiten). As to periods of training, the provision only includes periods during which a person has attended an Austrian secondary school or university (inländische mittlere Schule oder Hochschule). | 0 |
train | 001-101622 | ENG | HRV | ADMISSIBILITY | 2,010 | DELIC v. CROATIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mrs Snježana Delić, is a Croatian national who was born in 1964 and lives in Split. She was represented before the Court by Mr S. Štimac, an advocate practising in Split. 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 working as a music teacher in M. Primary School in Split between 1 February and 28 June 1996. She was dismissed following a decision taken by the school's principal on 14 June 1996. On 23 July 1996 the applicant brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against her former employer challenging her dismissal and seeking reinstatement. At a hearing held on 16 May 1997 the applicant submitted a power of attorney which authorised Mr M.B. (“M.B.”), who was not an advocate but a teacher in the respondent school, to represent her in the proceedings. The power of attorney read as follows: “I, Snježana Delić, from Split, ..., authorise M.B. to represent me in the dispute with M. Primary School, Split. ” On 15 April 1999 the Municipal Court dismissed the applicant's action. Following an appeal by the applicant, on 14 April 2000 the Split County Court (Županijski sud u Splitu) quashed the first-instance judgment and remitted the case. In the resumed proceedings, on 19 April 2001 the Split Municipal Court again dismissed the applicant's action. Following an appeal by the applicant, on 19 April 2002 the Split County Court again quashed the first-instance judgment and remitted the case. In the resumed proceedings, on 27 June 2003 the Split Municipal Court dismissed the applicant's action for a third time. On 19 February 2004 the Split County Court dismissed an appeal by the applicant and upheld the first-instance judgment. Throughout the first and the second-instance proceedings, pursuant to section 138(1) of the Civil Procedure Act, the court decisions and other documents were served on the applicant's representative and not on her personally. All the decisions stated that the applicant was represented by her “representative, M.B.”. After having received the second-instance judgment of 19 February 2004, the applicant herself drafted and lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). On 13 June 2006 the Supreme Court dismissed the applicant's appeal on points of law. The Supreme Court's judgment stated that the applicant was represented by “M.B., an advocate from Split”. Under the Civil Procedure Act, all decisions in a case must be served through the first-instance court. So, on 8 November 2006, the Split Municipal Court served the Supreme Court's judgment on M.B. as the applicant's representative. On 12 June 2007 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court's judgment. In her constitutional complaint the applicant wrote, inter alia: “Even though I had personally drafted my appeal on points of law and other submissions and had indicated my address, the Supreme Court sent the reply [that is, the judgment of 13 June 2006] to professor M.B. who did not serve the decision on me until a long time had passed because he did not want to make me sad. I consider that the Supreme Court was obliged to reply to the person who had sent [lodged] the appeal [on points of law]. ” On 3 July 2007, of its own motion, the Supreme Court issued a decision rectifying its judgment of 13 June 2006 so as to specify that the applicant had not been represented in the proceedings before that court. The decision on rectification in its relevant part read as follows: “Judgment no. Revr-831/05-2 of 13 June 2006 of the Supreme Court of the Republic of Croatia in Zagreb is hereby rectified. In the fourth line of its header ... the words “represented by M.B., an advocate from Split” shall be deleted. The judgment remains unaltered in the remaining part. Reasons On 13 June 2006 judgment no. Revr-831/05-2 was rendered by this court, dismissing as unfounded an appeal of points of law by the plaintiff, Snježana Delić . By a clerical error in the header of the judgment it was stated that the plaintiff was represented by her representative, M.B., an advocate from Split. During the proceedings before the lower-instance courts, the plaintiff was represented by her representative, M.B., who is not an advocate. However, the plaintiff lodged the appeal on points of law herself. Therefore, it was necessary ... to rectify the judgment of this court in the fourth line of its header by omitting the reference to the plaintiff's representation. ” The decision on rectification, but not the judgment of 13 June 2006, was served on the applicant personally on 20 February 2008. On 19 March 2008 the Constitutional Court declared the applicant's constitutional complaint inadmissible as being lodged outside the statutory time-limit of thirty days, and on 8 April 2008 served its decision on the applicant personally. In so deciding, it held that the statutory time-limit for lodging a constitutional complaint had started running on the date that the Supreme Court's judgment of 13 June 2006 had been served on M.B. as the applicant's representative in the civil proceedings which had ended with that judgment. The relevant part of the Constitutional Court's decision read as follows: “The complainant received the Supreme Court's judgment of 13 June 2006 through her representative M.B., an advocate from Split, on 8 November 2006 ... The constitutional complaint was lodged on 12 June 2007, that is, after the expiry of the time-limit of thirty days. The time-limit for lodging a constitutional complaint in the present [case] expired on Friday, 8 December 2006.” On 28 April 2008 the applicant sent a letter to the Constitutional Court asking it to reconsider her case. She enclosed the Supreme Court's decision on rectification of 3 July 2007 with her letter. The applicant wrote, inter alia: It would appear that, on 20 May 2008, the Constitutional Court requested the case file from the Split Municipal Court, which sent it on 9 March 2009. However, the Constitutional Court never replied to the applicant's letter. The Government submitted that, after receiving the applicant's letter, the Constitutional Court had consulted the case file and established that the service of the Supreme Court's judgment of 13 June 2006 to M.B. constituted the proper service because the applicant had never revoked the power of attorney which she had given to him. Moreover, all decisions adopted during the civil proceedings had been served on him as her representative. The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows: “Unless provided otherwise by this Constitutional Act, in the proceedings before it, the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as ancillary rules.” “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional self-government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or right to local or regional self-government, guaranteed by the Constitution (“constitutional right”)... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] are available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.” “A constitutional complaint may be lodged within the time-limit of thirty days which begins on the day that the [contested] decision is received.” “The Constitutional Court shall ... declare inadmissible a [belated] constitutional complaint ....” The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) as in force at the material time provided as follows: C h a p t e r f i v e REPRESENTATIVES Section 96 “If in the power of attorney the party did not specify the powers of the representative, the representative who is not an advocate, may, on the basis of such a power of attorney, undertake all actions in the proceedings, but shall always need an explicit authorisation to ... lodge extraordinary legal remedies [that is, an appeal on points of law or a petition for reopening of the proceedings].” C h a p t e r e l e v e n SERVICE OF DOCUMENTS AND CONSULTATION OF CASE FILES Method of service Section 138(1) “When a party has ... a representative, court documents shall be served on the representative, unless this Act provides otherwise.” C h a p t e r t w e n t y t h r e e JUDGMENT Res judicata Section 334(2) “A judgment shall not take effect on the parties until the day it is served on them.” The relevant part of the Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08), as in force at the material time, provided as follows: Certificate of enforceability Section 33(2) and (3) “(2) A certificate of enforceability shall be issued by the court or [another] authority which adjudicated the claim in the first instance (3) A certificate of enforceability for the issuance of which the statutory conditions were not met, shall be cancelled by a decision of the same court or [another] authority, at the request [of a party] or sua sponte.” Under the Supreme Court's case-law (see, for example, decision no. Rev 1458/1997-2 of 30 September 1997 adopted in the context of civil proceedings, decision no. Uzz 2/1998-2 of 9 June 2000 adopted in the context of administrative proceedings, and decision no. I Kž 905/1995-3 of 13 March 1996 and decision no. IV Kž 45/1993-5 of 29 July 1993 adopted in the context of criminal proceedings), if a party was not properly served with a decision, the time-limit for lodging remedies against it does not start to run and the decision cannot acquire the force of res judicata in respect of that party. In such cases, the date on which the party to whom the decision had not been properly served learned of the existence of the decision (decision no. Rev 969/01-2 of 23 May 2001) is irrelevant. If such a decision nevertheless bears a stamp attesting that it acquired the force of res judicata, that is, the so-called certificate of finality (potvrda o pravomoćnosti, klauzula pravomoćnosti), a party to whom the decision had not been properly served may request the court which adjudicated the case in the first instance to cancel that certificate and serve the decision on that party in accordance with the law (see, for example, the Supreme Court's judgment no. Rev 673/05-2 of 8 February 2006). Such a request may be lodged at any time (see, for example, judgment no. Gž 1155/96 of Rijeka County Court of 30 December 1996). A request to restore the proceedings to their previous position (restiutio in integrum ob terminem elapsum, povrat u prijašnje stanje) may not be used in such a situation because it presupposes that a party missed a time-limit for undertaking a procedural action, whereas in a situation where a decision had never been properly served on a party, the time-limit for lodging a remedy against that decision had never started to run and thus could not have been missed (see the above cited Supreme Court's decision no. I Kž 905/1995-3 of 13 March 1996). The rules for cancelling the certificate of enforceability provided in legislation governing enforcement proceedings shall apply mutatis mutandis to cancelling the certificate of finality (see, for example, the Supreme Court's decisions nos. Gzz-6/1990-2 of 27 June 1990, Gž 19/1994-2 of 4 October 1994, Gž 14/1994-2 of 13 October 1994, Gr1 582/05-2 of 20 December 2005 and Gž 9/07-2 of 11 October 2007). | 0 |
train | 001-72207 | ENG | NLD | CHAMBER | 2,006 | CASE OF SEZEN v. THE NETHERLANDS | 3 | Violation of Art. 8 | null | 8. The applicants were born in 1966 and 1972 respectively and live in Amsterdam. 9. The first applicant entered the Netherlands in October 1989. From his relationship with the second applicant, who has been lawfully residing in the Netherlands since the age of seven and holds a permanent residence permit (vestigingsvergunning), a child, Adem, was born on 27 June 1990. The applicants married on 25 October 1990. One month later, the first applicant filed a request for a residence permit for the purposes of forming a family unit (gezinsvorming) with his wife and working in the Netherlands. This permit was granted on 12 February 1991. On 24 January 1992 the first applicant acquired the right to remain in the Netherlands indefinitely ex jure pursuant to Article 10 para. 2 of the Aliens Act 1965 (Vreemdelingenwet 1965). 10. On 31 July 1992 the first applicant was arrested and placed in detention on remand. The Regional Court of Amsterdam convicted the first applicant on 20 January 1993 of participating in an organisation aimed at committing offences and of being a co-perpetrator (medepleger) of intentionally being in the possession of about 52 kilos of heroin, committed on or around 31 July 1992. The first applicant was sentenced to four years’ imprisonment. In respect of the determination of this sentence, the Regional Court held as follows: “... in the decision to impose a sentence involving a deprivation of liberty and the duration thereof, the Regional Court is in particular taking account of the fact that the accused has for a long time let his house be used as a safe house for quantities, of considerable size and suitable for further distribution, of a substance harmful to public health, so that only a prison sentence of considerable duration is appropriate.” The first applicant was released on 11 April 1995. He went back to live with his wife and child and found a job. 11. Due to marital problems, the applicants did not live together for some time in 1995/1996. On 28 November 1995 the first applicant’s name was removed from the municipal register as living at the same address as his spouse. He was registered as once again living in the matrimonial home on 25 June 1996. 12. On 14 May 1996 both applicants went to the Aliens’ Police Department as they were going to resume cohabitation and wanted to prolong the first applicant’s residence permit. However, an official at that Department told them it would be better if the first applicant applied for an independent residence permit. For that reason, an application was made for prolongation of the first applicant’s residence permit or for an amendment of the restrictions attached to that permit so that it would enable him to reside in the Netherlands for the purpose of working in salaried employment without being required to live with his spouse. 13. On 14 October 1996 a second child, Mahsun, was born to the applicants. Both children have Turkish nationality. 14. The Deputy Minister of Justice (Staatssecretaris van Justitie) informed the first applicant on 7 March 1997 of her intention to impose a ten-year exclusion order on him by declaring him an undesirable alien (ongewenst vreemdeling). The first applicant was invited to submit his views on the matter. By letter of 24 March 1997 the first applicant declared that he would never again do anything wrong and asked to be given a second chance. 15. The Deputy Minister rejected the request for prolongation of the residence permit on 5 June 1997. According to the Deputy Minister, the first applicant had lost his indefinite right to remain on 28 November 1995 when he had ceased to cohabit with his wife. The fact that the spouses had in the meantime resumed cohabitation did not have the effect of reviving this right ex jure. Although Netherlands policy provided that aliens, following the dissolution or breakdown of their marriage on the basis of which they had acquired an indefinite right to remain, could under certain circumstances, relating to the duration of the marriage, be eligible for an independent residence permit, the prolongation of a residence permit could also be refused on general interest grounds. In view of the first applicant’s criminal conviction of 20 January 1993, the Deputy Minister considered that it was justified to deny the first applicant further residence and to impose a ten-year exclusion order. The interference with the first applicant’s right to respect for his family life was held to be justified in the interests of public order and for the prevention of crime. Having regard to the seriousness of the offences committed by the first applicant and the duration of the prison sentence imposed on him, the Deputy Minister concluded that the interests of the State outweighed those of the first applicant. 16. The first applicant filed an objection (bezwaar) against this decision. It was rejected on 19 March 1998 by the Deputy Minister who adopted the advice issued by the Advisory Board on Matters Concerning Aliens (Adviescommissie voor Vreemdelingenzaken). This Board was of the opinion that the first applicant’s request should be considered as a request for an independent residence permit (onafhankelijke verblijfsvergunning) in view of the fact that the right to remain indefinitely, pursuant to Article 10 § 2 of the Aliens Act 1965, did not constitute a residence permit which was eligible for prolongation or for amendment of the restrictions attached to it. The Board further considered, notwithstanding the fact that the first applicant had moved back to the matrimonial home after a separation of six or seven months, that the breakdown of the applicants’ marriage had been of a permanent nature given the duration of the separation and the first applicant’s request for an independent residence permit which did not require him to cohabit with his wife. Therefore, the question to be examined was whether, at the time of losing the indefinite right to remain, the first applicant had been eligible for continued residence (voortgezet verblijf). 17. Having regard to the first applicant’s criminal conviction, which implied that he had violated public order, the Board considered that the request for a residence permit should be refused and an exclusion order imposed. It saw no merit in the first applicant’s expressions of regret nor in his arguments to the effect that his wife and two children resided in the Netherlands and that he had been working in the Netherlands since 21 June 1995. In this connection the Board, referring to the duration of and the reasons for the prison sentence as set out in the judgment of the Regional Court of 20 January 1993, had regard to the nature and seriousness of the offence of which the first applicant had been convicted. The Board did not consider that the period of time between the conviction and the imposition of the exclusion order was so long that for that reason alone the authorities ought to refrain from taking that measure. In this respect it was borne in mind that the first applicant had held an indefinite right to remain from 24 January 1992 until 28 November 1995 which, pursuant to the policy in force, stood in the way of an exclusion order being imposed. Finally, as far as the first applicant’s rights under Article 8 § 1 of the Convention were concerned, the Board considered that the interests of the State outweighed those of the first applicant. 18. The first applicant filed an appeal against this decision with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam. He argued, inter alia, that there had not been any breakdown of his marriage, let alone one of a permanent nature. The spouses had merely not cohabited for a number of months because of marital problems; however, the first applicant had remained in contact with his wife. Moreover, during this time their child Mahsun had been conceived. The first applicant was gainfully employed, did not constitute a threat to public order and he had extricated himself from the criminal circles in which he had previously been involved. In the view of the first applicant, it was unreasonable to deny him continued residence and to impose an exclusion order on him more than four years after his criminal conviction. 19. In its judgment of 12 November 1998 the Regional Court agreed with the Deputy Minister that the applicants’ actual close family ties (feitelijke gezinsband) had been severed as a result of their temporary separation and that as a result the first applicant had lost his indefinite right to remain. It upheld the Deputy Minister’s decision in so far as the denial of continued residence was concerned. Having regard to the nature of the offence of which the first applicant was convicted and the length of the prison sentence imposed, the Regional Court considered that the interference with the applicants’ right to respect for family life was necessary in the interests of the protection of public order. In respect of the exclusion order, which denied the first applicant the right to visit the Netherlands even for short periods, the Regional Court quashed the impugned decision. It found that insufficient weight had been accorded to the interests of the applicants and their children. Thus, no attention had been given to the consequences which the exclusion order would have for the applicants and their children, both in the case where the other family members would follow the first applicant to Turkey and in the case where they would remain in the Netherlands. In this connection the Regional Court noted that the children, who had close links with the Netherlands as they had been residing there since their birth, might at this stage of their lives have a great need for regular contacts with their father within their own surroundings (levenssfeer), and not exclusively abroad. The exclusion order rendered such contacts – including occasional contacts – impossible. 20. On 6 May 1999 the Deputy Minister decided anew on the first applicant’s objection in so far as this concerned the exclusion order. She declared the objection well-founded and lifted the exclusion order. 21. The first applicant has not reoffended and has been in paid employment ever since his release from prison. 22. At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case. 23. Aliens married to a Netherlands national, a recognised refugee or a holder of a permanent residence permit acquired, after one year of legal residence, ex jure an indefinite right to remain pursuant to Article 10 § 2 of the Aliens Act 1965. This right expired ex jure when the alien no longer actually formed part of his or her spouse’s family unit. If the married couple ceased, other than temporarily, to live together, this was indicative of a breakdown in family relations even if the marital bond was preserved. The residence permit was not automatically reinstated if the actual close family ties were later restored. The alien could, however, apply for a new one, for the purposes of residence with his or her spouse, or for a residence permit in his or her own right. 24. Under the policy laid down in chapters A4/4.3.2 and A5/6 of the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994), an alien who has been given a custodial sentence by a Dutch or foreign court (at least part of which sentence was not suspended), by a judgment that has become final and conclusive, for intentionally committing a crime punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious a crime has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of a crime is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the crime. 25. In accordance with this policy, an alien who, at the time of committing the offence, had been residing lawfully in the Netherlands for less than three years – like the first applicant in the present case – would be refused permission for continued residence if he or she was sentenced to an unsuspended prison sentence of more than nine months. 26. An alien who has been sentenced by a final and conclusive judgment for an offence intentionally committed, punishable by a term of imprisonment of three years or more, was also liable to an exclusion order (Article 21 of the Aliens Act 1965). A person upon whom an exclusion order has been imposed is not allowed, for as long as the order is in force, either to reside in the Netherlands or to visit it. 27. Continued residence could not be refused to, and an exclusion order not imposed on, aliens with an indefinite right to remain pursuant to Article 10 § 2 of the Aliens Act 1965. | 1 |
train | 001-79926 | ENG | DEU | ADMISSIBILITY | 2,007 | REMMO AND UZUNKAYA v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The first applicant, Mr Mousbach Remmo, is a Lebanese national who was born in 1973. The second applicant, Ms Sapha Uzunkaya, is a Turkish national who was born in 1969. The applicants live in Senden, Germany. They were represented before the Court by Mr F. Münsterkötter, a lawyer practising in Münster. The applicants, who both lived in Lebanon before moving to Germany, are married in accordance with the Muslim rituals since 1994 but did not have a civil marriage in Germany. They are the parents of M. who was born on 15 September 1999. They have another four children born in 1997, 1998, 2000 and 2002. On 29 August 2001 the first applicant brought M. to a hospital in Münster on the advice of a child doctor. According to the first applicant, M. had fallen three days before, without his parents having observed this, and had been injured. He had a swollen forehead and a glasses haematoma, with his eyes being swollen following massive blood intrusions. When examining the child, the hospital doctors discovered further injuries. Considering these symptoms to be the result of M.’s maltreatment, they informed the police thereof. On 31 August 2001 two experts of the Münster Institute of Forensic Medicine submitted a report on the motion of the Münster Public Prosecutor’s Office. Having examined M. on 29 August 2001, they found that the child had numerous older haematoma all over his body, mostly at parts on which he was unlikely to fall, and several smaller scars stemming from injuries inflicted at different moments in time. These findings indicated that he had been ill-treated over a longer period of time and suffered from a so-called battered child syndrome. In the course of further examinations carried out in hospital, M. was found to have also suffered a fracture of the skull at an earlier date which his parents had not noticed. On 31 August 2001 the Lüdinghausen District Court, by way of an interim injunction and without having previously heard the applicants, provisionally withdrew the applicants’ right to determine M.’s place of residence and transferred it to the Coesfeld Youth Office. It found that, having regard to M.’s multiple injuries, the applicants were suspected of having ill-treated him. It ordered that the applicants’ other children be equally examined by the Institute of Forensic Medicine. In their report dated 3 September 2001 the two experts of the Münster Institute of Forensic Medicine, having examined M.’s three brothers, found that they did not show any signs of exposure to violent acts. On 7 September 2001 the applicants, who were from then on represented by counsel in the proceedings before the domestic courts, lodged an appeal against the order of 31 August 2001. They claimed that at no point in time they ill-treated M. On 17 September 2001 the Lüdinghausen District Court, having heard the applicants in person, confirmed the withdrawal of the applicants’ right to determine M.’s place of residence, provisionally withdrew the right of custody of the second applicant, who, in the court’s view, had sole custody pursuant to section 1626a § 2 of the Civil Code (see ‘Relevant domestic law’ below), and transferred it to the Youth Office. It further ordered an expert report on the question of whether there were signs that M. had been ill-treated by his mother and possibly also by his father from a psychological point of view. On 18 September 2001 M. was released from hospital. Since then, he has been living in a foster family. His parents visit him every two weeks. On 14 September 2002 the Münster Public Prosecutor’s Office discontinued the criminal proceedings against the applicants as there was no sufficient evidence that it had been them who had injured M. On 25 September 2002 the Lüdinghausen District Court withdrew the applicants’ parental custody of M. pursuant to section 1666 of the Civil Code (see ‘Relevant domestic law’ below) and conferred it to the Coesfeld Youth Office. The District Court had heard the applicants in person without appointing an interpreter for the second applicant, who hardly spoke German and whose submissions in Arabic were translated by the first applicant. It had further consulted a psychological expert and a representative of the Youth Office. The District Court was convinced that M. had repeatedly experienced violence. It noted that the applicants had stressed that M. had not been deliberately injured by them, but had injured himself while romping around. However, there were no innocent explanations for his numerous injuries inflicted at different points in time. Even assuming that some of them were caused by M.’s own inadvertence, there were several signs, such as the fact that he ducked when someone approached him or that he strongly resisted being undressed, which indicated that he had been ill-treated by others. The court, having regard to the report of the psychological expert, found that it could not be ascertained whether the injuries of the two-year-old M., who was not able to make any concrete statement, had been inflicted by his parents. However, it was clear that they had been unable to protect M. from such injuries. Moreover, relying on the report of the psychological expert, the District Court found that also M.’s mental development was jeopardized. Mere language problems were inevitable in a family in which one of the parents did not speak German and were no reason to separate a child from his parents. However, M. lived isolated in the family’s apartment with his mother, who spoke Arabic, hardly knew any German and showed no interest in his education, including his learning German. According to the psychological expert and the representative of the Youth Office M. had settled well in his foster family. The District Court found that there were no milder measures, such as aids by public authorities, which were suitable to avert risks to M.’s welfare. The first applicant was busy with two jobs and the second applicant, whom both applicants considered responsible for their children’s education, did not speak German and was unwilling to change this by starting to learn German. It conceded that the applicants had declared to be willing to cooperate with the authorities, if necessary with the help of a neighbour who was ready to interpret for them. However, as confirmed by a representative of the Youth Office, social pedagogic family support, which was based on a relationship of trust between the pedagogue and the parent, was not possible in the permanent presence of an interpreter. On 8 October 2002 the applicants lodged an appeal against the District Court’s decision of 25 September 2002. On 3 December 2002 the Court of Appeal appointed M. a curator ad litem who subsequently submitted two reports to the Court of Appeal. On 13 February 2003 the Hamm Court of Appeal heard the parties and the psychological expert. On 8 April 2003 the Hamm Court of Appeal, following another hearing in which it also consulted M.’s foster parents, dismissed the applicants’ appeal. Agreeing with the District Court, it found that the applicants, by their failure, had jeopardized M.’s welfare and that there were no milder means of averting danger to the child’s best interest. The applicants were unable to educate M. in a way which safeguarded his physical and mental integrity. The Court of Appeal found that M. had been considerably injured on several occasions in the applicants’ household. It could not be ascertained whether it had been M.’s parents or third persons who had injured the child so that the criminal investigations against the applicants had been discontinued. Despite this, there were several indications, notably M.’s repeated statements that his mother was mean, his aggressive behaviour and the fact that his parents had given different and contradictory explanations for his injuries, that M. had been ill-treated within his family. This could, however, be left open. Even assuming that M. (then aged two) had injured himself while romping around, his parents, despite his serious injuries, had failed to guarantee his full and prompt medical treatment. The applicants were indifferent towards physical injuries of their children. This was not least demonstrated by the fact that during the expert’s presence, their children were romping around with dangerous objects like turned chairs and forks without their parents interfering. Therefore, the need to protect M.’s physical integrity was already in itself a sufficient reason to withdraw his parents’ custody. The Court of Appeal, agreeing with the findings of the psychological expert, further found that the child’s mental welfare would be jeopardized if he returned to his family. M. had made traumatising experiences within his family which he had started to overcome as he had settled well in his foster family and, as confirmed by the Youth Office, had developed intensive bonds with them. On the contrary, he had never developed any relationship with his father and had told his mother that she should leave him alone. Visits of his parents had shown that there was hardly any relationship between them and M. any longer. The Court of Appeal stressed that it was irrelevant that M.’s foster parents could further M. considerably more from an intellectual and linguistic perspective than his parents. It was the child’s welfare which was decisive for the measures to be taken. The Court of Appeal observed that pursuant to section 1666a of the Civil Code (see ‘Relevant domestic law’ below), measures resulting in the separation of a child from his family were only permitted if the danger to the child’s welfare could not be averted by other means, notably aids by public authorities. However, the Youth Office had submitted that it had no pedagogues speaking Arabic and that a direct communication between the pedagogue and the parents was indispensable for a social pedagogic measure to have prospects of success. The parents had not changed their attitude towards physical injuries of their children so that support would be necessary day and night which was impossible to furnish. Even if this was possible, M.’s mental welfare would still be jeopardized for the reasons already set out. The Court of Appeal observed that, the applicants not having had a civil marriage in Germany, it was probably only the second applicant who had custody of M. It had nevertheless dismissed also the first applicant’s appeal for reasons of precaution. On 26 June 2003 the Hamm Court of Appeal dismissed the applicants’ remonstrance. Referring to the reasons given in its decision of 8 April 2003, it argued in particular that, even assuming delays in the proceedings, these did as such not warrant returning M. to his family. On 29 July 2003 the Federal Constitutional Court, without giving reasons for its decision, refused to admit the applicants’ constitutional complaint. The decision was served on the applicants’ lawyer on 4 August 2003. Pursuant to section 1626a of the Civil Code a child’s mother has sole custody if the child’s parents are not married and have not deposited a declaration of joint custody recorded by a notary with the authorities. Section 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers. Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids by public authorities. The right of personal custody may only be withdrawn in its entirety if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger. | 0 |
train | 001-84647 | ENG | CZE | ADMISSIBILITY | 2,008 | KRUGOVA v. THE CZECH REPUBLIC | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mrs Květa Krugová, is a Czech national who was born in 1938 and lives in Mladé Buky. She was represented before the Court by Mr K. Krug, her husband. 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 9 June 1994 the applicant received dental treatment during which she suffered a cerebral haemorrhage. According to her, the dentist did not provide her with the necessary medical help. On an unspecified date the applicant lodged a complaint against the dentist with the Ministry of Health. On 17 June 1994 the Trutnov Regional Chamber of Stomatology (oblastní stomatologická komora) filed a criminal complaint against the dentist. On 31 October 1995 the applicant joined the proceedings as a civil party, when her husband was heard by police officers and expressed, on behalf of his wife, a wish to join the proceedings. On 22 April 1996 the dentist was formally indicted for failure to provide medical assistance. On 23 May 1996 his lawyer informed the Náchod District Court (okresní soud) about a possible friendly settlement of the case. On 17 June 1996 the District Court conditionally stayed the criminal proceedings for eighteen months, ordering the dentist to pay CZK 150,000 (EUR 5,472) to the applicant. According to the Government, the dentist paid the sum requested. In a judgment of 21 March 2002 the District Court acquitted the dentist and instructed the applicant that she may claim damages in civil proceedings. On 8 August 2002 the Hradec Králové Regional Court (krajský soud) dismissed the appeals of the prosecutor and the applicant. This decision was apparently the last domestic decision taken in these proceedings. On 30 May 1997 the applicant filed with the District Court an action in which she claimed compensation from the dentist for alleged malpractice. On 22 April 2005 the District Court dismissed the applicant’s action. According to the Government, the proceedings have not yet been meritoriously terminated. 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 | 001-93768 | ENG | SVK | CHAMBER | 2,009 | CASE OF DVORACEK AND DVORACKOVA v. SLOVAKIA | 3 | Remainder inadmissible;Violation of Art. 2 (procedural aspect);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 | 5. The first applicant, Mr Ivan Dvořáček, was born in 1942. The second applicant, Mrs Jozefa Dvořáčková, was born in 1945. They are married and live in Bratislava. They filed the application also on behalf of Ms Ivana Dvořáčková, their daughter. 6. Ms Ivana Dvořáčková was born in 1981 with Down Syndrome (trisomy 21) and a damaged heart and lungs. She was in the care of a specialised health institution in Bratislava. In 1986 she was examined in the Centre of Paediatric Cardiology in PragueMotole where it was established that, due to post-natal pathological developments, her heart chamber defect could no longer be remedied. 7. On 1987 she underwent vascular surgery in Prague. However, the doctors considered that comprehensive heart surgery with a view to eliminating the cardio-vascular defect was no longer feasible. A conservative treatment was recommended and the medical prognosis was that her heart or lungs would fail in the second or third decade of her life. 8. Ms Ivana Dvořáčková died of heart failure on 14 March 2004 at the age of 23. 9. On 26 October 1987 Ms Ivana Dvořáčková and her parents instituted proceedings in the Bratislava I District Court. They claimed compensation for damage on the ground that Ms Ivana Dvořáčková’s health had been seriously and irreparably damaged as a result of shortcomings in the post-natal treatment she had received in a hospital to which the defendant was the legal successor. In particular, on the basis of the aforementioned examination in the Centre of Paediatric Cardiology in Prague, they alleged that the health institution in Bratislava had failed to diagnose in time the extent of the damage to her health and to ensure appropriate and timely treatment of the defect. 10. The District Court held eleven hearings in the case and dismissed the action on 9 August 1990. On 19 June 1991 the Regional Court in Bratislava quashed that judgment. The case file was returned to the District Court on 5 August 1991. 11. In 1994 and 1995 the District Court took various procedural steps. It scheduled two hearings in 1997. 12. On 2 March 1998 the District Court appointed an expert, who submitted an opinion on 17 November 1999. 13. Another hearing in the case was scheduled for 3 October 2000. The plaintiffs requested an adjournment but the District Court dismissed their request on 18 May 2001. On 30 November 2001 the Regional Court quashed that decision. After obtaining further evidence, the District Court stayed the proceedings on 19 March 2002 at the applicants’ request. On 13 June 2003 the plaintiffs requested that the proceedings be resumed. 14. On 11 December 2003 the District Court held a hearing at which Ms Ivana Dvořáčková challenged the expert. 15. On 20 April 2004, after their daughter had died, the first and second applicants asked the District Court to proceed with their case and determine whether the defendant was liable for damage to their daughter’s health. They indicated that the question arose whether her death had been caused by shortcomings in her medical treatment and that they intended to claim damages in that respect. On 5 May 2004 the first and second applicants specified their claims for damages with the District Court. 16. On 7 June 2004 the District Court dismissed the request for the exclusion of the expert. In a separate decision, which was rectified on 30 August 2004, it discontinued the proceedings. On 30 September 2004 the Bratislava Regional Court varied the first-instance court’s decision in that it discontinued the proceedings only to the extent that they concerned part of Ms Dvořáčková’s claim for compensation which under the relevant law could not pass to her heirs. The appellate court remitted the case to the District Court for further examination. 17. On 26 May 2005 the District Court adjourned the case as the defendant’s representative did not attend the hearing. 18. A further hearing was held on 28 June 2005. The first applicant stated that he challenged the three expert opinions included in the file as the experts involved either lacked the requisite qualifications or were biased. The District Court decided to obtain another expert opinion. A hearing scheduled for 20 March 2006 had to be adjourned as the judge was ill. 19. After the case had been transferred to a different judge, a hearing was held on 24 April 2006. The first applicant urged the court to determine the case. He maintained that the evidence available was sufficient and that obtaining another expert opinion was not necessary. The judge decided to obtain a fourth expert opinion in the case. In a decision of 25 May 2006 the District Court instructed the Medical Faculty of the P.J. Šafárik University in Košice to submit an opinion on the relevant issues within 40 days. 20. On 24 July 2008 the Bratislava I District Court asked the Hradec Králové District Court (Czech Republic) for assistance in obtaining a further opinion by two Czech medical experts. 21. In January 2009 the parties informed the Court that the proceedings were pending. 22. On 4 March 2004 the Constitutional Court held that the Bratislava I District Court had violated Ms I. Dvořáčková’s right to a hearing within a reasonable time. It found that the case was not particularly complex and that the plaintiff had not by her conduct contributed to the length of the proceedings in a substantial manner. The decision stated that there had been unjustified delays in the proceedings before the District Court, totalling approximately six years. 23. The Constitutional Court ordered the Bratislava I District Court to proceed with the case without further delay and to pay to the plaintiff, within two months from its judgment becoming final, the equivalent of 3,452 euros (EUR) as just satisfaction. It also ordered the Bratislava I District Court to reimburse the plaintiff’s costs related to the constitutional proceedings within fifteen days. 24. On 21 April 2004 the parents of Ms I. Dvořáčková, represented by an advocate, lodged a complaint with the Constitutional Court alleging a violation of their right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 25. They submitted further arguments and documents subsequently. In particular, in two letters which they personally sent by registered mail to the Constitutional Court and its President on 23 July 2004, they alleged that the inactivity of the District Court amounted to a denial of justice and that Articles 2, 8 and 14 of the Convention had also been violated. As regards Article 2 in particular, they submitted that their daughter had died as a result of medical negligence. The applicants referred to the States’ obligation to protect the life of persons within their jurisdiction and to “apply all civil-law remedies, such as compensation for damage, in cases of medical negligence”. 26. On 11 October 2004 the applicants appointed a different advocate to represent them in the proceedings before the Constitutional Court. In a submission of 21 October 2004 the advocate asked the Constitutional Court to have regard to all earlier submissions in the case and to consider the scope of the breach of the applicants’ rights guaranteed by both the Constitution and the Convention. At the request of the Constitutional Court the advocate submitted, on 18 February 2005, further information about the scope of the proceedings complained of and about the complaint under Article 127 of the Constitution. He indicated in his letter that in the proceedings before the Constitutional Court the plaintiffs “alleged a breach of their right under Article 48 § 2 of the Constitution to a hearing without unjustified delays and that they also complained of interference with their human rights guaranteed by the European Convention on Human Rights”. 27. On 23 May 2005 the Constitutional Court declared admissible the complaint of unjustified delays in the proceedings before the Bratislava I District Court. It stated that the plaintiffs had claimed damages in the action brought on 26 October 1987 and therefore had standing as a party to the proceedings complained of. 28. To the extent that the plaintiffs complained of “interference with their human rights guaranteed by the European Convention on Human Rights” the Constitutional Court rejected their complaint as not complying with the statutory requirements. In particular, the plaintiffs had not specified the rights which they alleged had been violated, submitted any arguments in support of their allegation or provided draft wording for the operative part of the decision they sought to obtain from the Constitutional Court with respect to that complaint. 29. On 11 October 2005 the Constitutional Court found that the Bratislava I District Court had violated the plaintiffs’ right to a hearing within a reasonable time. It ordered the District Court to proceed with the case without further delay and granted the equivalent of EUR 1,287 each to the first and second applicants as just satisfaction payable within two months. It also ordered the Bratislava I District Court to reimburse the costs of the constitutional proceedings to the applicants (the equivalent of EUR 807). 30. The Constitutional Court noted that the proceedings in issue concerned a claim for compensation for serious damage to the health of Ms Ivana Dvořáčková. That claim was based on allegedly incorrect medical diagnoses as a result of which I. Dvořáčková’s lung and heart had been damaged to the extent that she had been permanently handicapped as from 7 April 1987. Subsequently the plaintiffs had extended the claim to include, inter alia, compensation for the costs of medical treatment and care for their daughter, expenses relating to her burial and damages for unjustified interference with their privacy. 31. The Constitutional Court found that the case was not particularly complex and that the overall duration of the proceedings could not be imputed to the plaintiffs. In addition to the delays in the proceedings to which it had pointed in its judgment of 4 March 2004 (see paragraph 22 above), the Constitutional Court found that the case had been with an expert for eighteen months. During the subsequent period the District Court had not proceeded with the case effectively with the exception of a period of approximately one year between March 2002 and April 2003 when the proceedings had been stayed. 32. The following provisions of the Constitutional Court Act 1993 are relevant in the present case. 33. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support. 34. Pursuant to paragraph 2 of section 20, plaintiffs are required to submit an authority for a lawyer to represent them in the proceedings before the Constitutional Court. 35. Under paragraph 3 of section 20, the Constitutional Court is bound by a plaintiff’s request for proceedings to be started unless the Act expressly provides otherwise. 36. The Constitutional Court has declared itself bound, in accordance with section 20(3) of the Constitutional Court Act 1993, by a party’s submission aimed at initiating proceedings before it. The Constitutional Court has expressly stated that the submission was particularly relevant as regards the wording of the order which parties sought to obtain from it as it could only decide those matters which a party had requested be determined (see, for example, decisions III. ÚS 166/02 of 6 November 2002 or III. ÚS 65/02 of 9 October 2002). | 1 |
train | 001-84144 | ENG | MLT | ADMISSIBILITY | 2,007 | I.T.C. LTD v. MALTA | 3 | Inadmissible | Nicolas Bratza | The case originated in an application (no. 2629/06) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese company, International Trading Corporation Limited (“the applicant company”), on 31 October 2006. The applicant company was represented by Mr I. Refalo and Mr M. Refalo, lawyers practising in Valletta, Malta. The Maltese Government (“the Government”) were represented by their Agent, Mr S. Camilleri, Attorney General. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 December 2003 the Ministry for Youth and the Arts issued a call for tenders for the design, organisation and management of a quality national event, on the occasion of the celebration of Malta’s accession to the European Union. The deadline for submitting bids was January 2004. Three participants (the applicant company, Welcomeurope Consortium and Synergix Limited) paid the relevant fees and guarantees and submitted their bids. On 3 February 2004 the tender was awarded by the Adjudication Board to Welcomeurope Consortium. On 5 February 2004 the applicant company objected to this decision. On 19 February 2004 a hearing took place before the Public Contracts Appeals Board (the “PCAB”). The applicant company alleged that the bid made by Welcomeurope had not met the formal requirements of the tender. In particular, its components had been presented collectively and not individually and it had not been submitted in an itemised format. Moreover, the bid in question had been based on incorrect and misleading information. It had made reference to “laser cannons” which, according to the applicant, did not exist, and to a TV transmission deal with the European Broadcasting Union (the “EBU”), which was not dependent on the involvement of Welcomeurope. In the applicant’s view, as the EBU would have broadcast all the major shows from the ten acceding countries, this matter should not have been taken into consideration during adjudication. The applicant company further stated that its bid was better value for money. Welcomeurope challenged the applicant company’s arguments. It contended that “cannon lights” would be used in the show. Furthermore, the EBU had informed them that, due to the presence of an artist who had signed a contract with Welcomeurope for the exclusive right to use his services, Malta would have been allotted a longer transmission period. Representatives from the Adjudication Board gave oral evidence, stating that both bids had satisfied the formal requirements of the tender and that the final choice in favour of Welcomeurope had been based on the price and on the satisfactory standard reached. The applicant company requested the production of a number of documents, namely the Adjudication Board’s report, minutes of meetings regarding the bids, letters from Welcomeurope relating to TV coverage, Welcomeurope’s detailed list of equipment and its certificate of insurance cover. It alleged that these documents were indispensable for allowing it to substantiate its objections. Welcomeurope objected to this request, noting that some of the documents contained commercial information of a highly confidential nature. The PCAB observed that it could authorise the production of documents only in so far as they were relevant to the objections raised and strictly necessary for giving a ruling on their merits. As a consequence, only a small extract from the Adjudication Board’s report was produced. The chairman of the Adjudication Board had in fact noted that other parts of the report might have contained commercial and other information of a confidential nature. In a decision of 27 February 2004, the PCAB rejected the applicant company’s claim. It held that the invalidity of Welcomeurope’s bid had not been proved and that there had been no reason to doubt the method used by the Adjudication Board to assess the bids, which had been based on an overall assessment and had not been dependent on the amount or type of lasers used. On 24 February 2004 the applicant company lodged an application with the Civil Court (First Hall) in its constitutional jurisdiction. It alleged that the rejection of its request for the production of documents had infringed its right to a fair hearing. By a judgment of 16 December 2004, the Civil Court dismissed the applicant company’s claim on the ground that Article 6 of the Convention was not applicable to the proceedings before the PCAB. It recalled that this provision only applied to disputes concerning civil rights and obligations. These rights belonged to private and not to public law and existed only if they arose from a “clearly defined statutory right”. Thus, although a company was entitled not to be discriminated against in the adjudication procedure, it did not have a civil right to be awarded the tender. The fact that it carried out commercial activities aimed at earning profit was not in itself sufficient to bring Article 6 into play. Moreover, it could not be said that the PCAB was a “tribunal” within the meaning of this provision. It was not independent since essential features of its constitution and of the exercise of its functions depended on the Prime Minister. Furthermore, its decisions took the form of specific recommendations, which were final as regards the award of the contract. They were binding on the Director of Contracts who could not be considered a body having judicial powers. According to domestic case-law, a recommendation did not have the same authority as a judgment of a competent court determining the existence of civil rights and obligations. On 28 December 2004 the applicant company appealed to the Constitutional Court. It claimed that according to the case-law of the European Court of Human Rights, the word “tribunal” in Article 6 of the Convention had to be given a wider interpretation, not based on the distinction between quasi-judicial and purely administrative bodies. All judicial authorities that determined a person’s complaints affecting his or her rights should be considered a “tribunal”. In particular, the dispute submitted to the PCAB concerned civil rights and obligations. Indeed, the participation in the tender involved substantial financial and logistical efforts and the award of the contract would have entailed significant financial benefits for the applicant. By its very nature, the whole process gave rise to rights and obligations in respect of any person entering into negotiations to obtain such an award. The applicant further argued that, having regard to the manner of appointment of its members and to its procedures, the PCAB resembled more a court or judicial tribunal than an administrative body. By a judgment of 12 July 2005, the Constitutional Court rejected the applicant company’s appeal. It held that Maltese law applicable at the time (the Public Service (Procurement) Regulations 1996) did not grant any rights in the context of a public call for tenders. The mere act of submitting a tender did not give the applicant company the right to have its tender accepted. It was true that the amount of work involved in submitting a tender and the financial expenses attached to it carried with it an obligation to act in good faith and with the diligence of a bonus pater familias throughout the negotiations. However, these obligations only had a pre-contractual nature; they could give rise to a claim for damages, but not to any right to demand specific performance. In the present case, the applicant did not request damages but a reconsideration of the decision. The fact that the result of the proceedings before the PCAB had economic consequences for the applicant was not sufficient to conclude that the dispute concerned the determination of a civil right. The Constitutional Court distinguished the applicant company’s case from the case of Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (see judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV). Although that case had dealt with tenders, the right at issue was the right not to be discriminated against in the job market. In view of the above, the Constitutional Court concluded that the proceedings before the PCAB did not involve a determination of civil rights and obligations. It was therefore irrelevant to establish whether the PCAB was a “tribunal” within the meaning of Article 6 of the Convention. Article 469 A (1) of the Code of Organisation and Civil Procedure (the “COCP”), reads as follows: “Save as is otherwise provided by law, the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null, invalid or without effect only in the following cases: (a) where the administrative act is in violation of the Constitution; (b) when the administrative act is ultra vires on any of the following grounds: (i) when such act emanates from a public authority that is not authorised to perform it; or (ii) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon; or iii) when the administrative act constitutes an abuse of the public authority’s power in that it is done for improper purposes or on the basis of irrelevant considerations; or iv) when the administrative act is otherwise contrary to law.” Regulation 4.2 of the Public Service (Procurement) Regulations 1996 read as follows: “These regulations do not confer any right on any tenderer, supplier or contractor beyond those pertaining under civil law.” Regulation 2 of the sixth schedule to the 1996 Regulations required Contract Committees to: “evaluate tenders submitted as well as reports and recommendations made thereon by the respective departments and public organisations and make definite recommendations for the award of tenders ensuring that the best value for money at the lowest possible cost is attained. In this regard, due consideration shall be given to i. the final cost including financing costs to Government or to the public organisation, and ii. the impact of each offer on the recurrent expenditure of Government or the public organisation;” The 1996 Regulations were amended by Legal Notice 387 of 2003, (the “2003 Regulations”). In so far as relevant the 2003 Regulations read as follows: Regulation 4 “(1) Contracting authorities shall ensure that there is no discrimination between undertakings, and that all undertakings are treated equally in all calls for tenders whatever their estimated value. ... (4) Contracting authorities shall respect fully the confidential nature of any information furnished by candidates and tenderers. (5) In the context of provision of technical specifications to interested candidates and tenderers, the qualifications of candidates and selection of tenderers and the award of contracts, contracting authorities may impose requirements with a view to protecting the confidential nature of information which they may wish to make available.” Regulation 103 “(1) Any tenderer who feels aggrieved by a proposed award of a contract and any person having or having had an interest in obtaining a particular ... contract and who has been or risks being harmed by an alleged infringement may ... file a notice of objection with the Department of Contracts or the contracting authority involved as the case may be.” The functions of the PCAB have not been subject to any relevant changes in the past amendments and the Ninth Schedule to the 1996 Regulations in so far as relevant read as follows: “(l0) The sessions of the Board during which the complaint is heard shall be held in public and both the complainant and the interested party shall have the right to attend and to be accompanied by any person, professional or otherwise, whom they consider suitable to defend their interests. (11) The Chairman shall ensure that during the public hearing all interested parties are given the opportunity to state their cases. ... (17) All decisions taken by the Board shall be submitted in writing and shall contain the full facts and reasons on which the Board’s final decision is taken. All decisions shall be concluded with definite recommendations which shall be binding on the Director of Contracts. (18) Any bidder submitting a complaint who is not satisfied with the final decision taken by the Board shall have final legal rights to refer the matter to a Court of Law and to seek any redress or compensation which he considers due to him as a result of the decision with which he may disagree. Such recourse by any bidder to a Court of Law shall not deter the Director of Contracts from implementing the Board’s final decision.” | 0 |
train | 001-106541 | ENG | FIN | ADMISSIBILITY | 2,011 | LAUNIALA v. FINLAND | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | The applicant, Mr Mika Markus Launiala, is a Finnish national who was born in 1966 and lives in Aura. He was represented before the Court by Mr Antti Tapanila, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was the Head of the Sodankylä Police Department (nimismies, länsmannen). In November 2000 a detainee set fire to the department’s holding cell. In the subsequent investigation against the detainee in question, it turned out that the fire alarm had not gone off because it had been deliberately deactivated, presumably by one of the police officers. While the officer appointed to investigate the suspected criminal damage by the detainee was questioning one of his colleagues as a witness, the applicant entered the investigation room. He read the text of the unfinished report and noticed that the witness had indicated the name of a fellow officer who had, to his mind, deactivated the fire alarm. The applicant felt that such an allegation was improper and, after a discussion between the three persons present, that part of the witness statement was removed. The report was then finalised and it was read and signed by the witness. On 23 March 2006 the public prosecutor brought charges against the applicant in the Lappi District Court (käräjäoikeus, tingsrätten), accusing him of abuse of public office and, in the alternative, violation of official duty. As to the latter charge, she invoked Chapter 40, article 10, of the Penal Code (rikoslaki, strafflagen, as amended by Act no. 792/1989), which was the general provision sanctioning violation of official duty. She also invoked section 14, subsection 1, of the State Civil Servants Act (valtion virkamieslaki, statstjänstemannalagen; Act no. 750/1994), which stipulated that a civil servant was to perform his or her duties properly and without delay and follow supervisory orders. She further invoked section 39, subsection 2, of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen, Act no. 449/1987, as amended by Act no. 427/2003), according to which a report drawn up during questioning was not to be changed after the person giving the statement had checked it and any corrections and amendments requested by him or her had been made. The applicant denied the charges. He contended that his actions had not been contrary to section 39, subsection 2, of the Criminal Investigations Act. On the contrary, in contributing to the removal of the allegation which in his view had been defamatory, he had fulfilled his official duty as the superior officer, as defined in section 14, subsection 1, of the State Civil Servants Act. He also regarded the effects of his conduct as insignificant. In any case, the requirement of criminal intent was not met. During her closing arguments before the District Court, the prosecutor claimed that the applicant should, at any rate, be convicted of negligent violation of official duty under Chapter 40, article 11, of the Penal Code. On 4 October 2006 the District Court found the applicant guilty of violation of official duty, under Chapter 40, article 10, of the Penal Code and section 14, subsection 1, of the State Civil Servants Act, and sentenced him to a fine. According to the court he had, in his office as the Head of the Sodankylä Police Department, deliberately violated his official duty based on the provisions to be followed in official functions. The court found that, due to his intervention in the questioning, a statement already included in the report had been removed. As to the applicable legislation, the court stated that the general provision, Chapter 40, article 10, of the Penal Code, did not as such form a legal basis for a conviction. The actual substance of the official duty was to be found in other provisions or regulations. In the court’s view, the applicant’s actions had not been contrary to section 39, subsection 2, of the Criminal Investigations Act, as claimed by the prosecution. It did find, however, that section 14, subsection 1, of the State Civil Servants Act provided a sufficient legal basis for the conviction, as the applicant’s conduct, in the given circumstances, could not be regarded as proper. The applicant appealed against the judgment to the Rovaniemi Court of Appeal (hovioikeus, hovrätten) relying mainly on his previous arguments. During the appeal proceedings the prosecutor renewed her charge concerning negligent violation of official duty. The applicant contested that charge, arguing that he had not been able to respond to it at first instance. On 12 October 2007 the Court of Appeal, having held an oral hearing, convicted the applicant of negligent violation of official duty under Chapter 40, article 11, of the Penal Code and section 14, subsection 1, of the State Civil Servants Act. It found that the applicant had acted carelessly rather than with criminal intent. It also reduced the amount of the fine by half. As to the legal basis of the conviction the court reasoned its judgment as follows: “According to section 14, subsection 1, of the State Civil Servants Act, a civil servant shall perform his or her duties properly and without delay and follow supervisory orders. In the legal praxis [reference to the Supreme Court’s precedence no. KKO:2000:40], it has been held that the said provision, governing the general duties of public officials, does not have an independent status irrespective of other provisions. In the judicial literature the provision has been regarded as problematic in the light of the principle of legality, which includes the requirement of precision of criminal statutes. Criminal liability presupposes a breach of a clearly defined official duty. On the other hand, it has been expressed in the judicial literature that, in practice, it is impossible to describe all official duties in detail in legal provisions and regulations. However, one must always be able to deduce the more specific aspects of an official duty from some provision or regulation or at least from the established practice. ...” “The general principles to be followed in the pre-trial investigation are prescribed in sections 5 – 12 of the Criminal Investigations Act. For instance, those factors which are to be cleared up during the investigation are defined in these provisions. Further, sections 22 – 38 of the Criminal Investigations Act contain regulations about the procedure to be followed. According to those provisions a witness to the investigation, legal counsel of the person being questioned, his or her support person, guardian, trustee or other legal representative, the prosecutor and an interpreter may be present at the questioning, along with the questioner and the person being questioned. The statement given by the [latter] is recorded to the extent necessary, having regard to the issue under investigation. It is for the questioner to decide what, and to what extent, will be recorded in the report. The questioner must, however, always conduct the questioning in such a manner that the statement of the person being questioned is recorded according to his or her approval. Further, section 24 of the Criminal Investigations Act provides that the use of any impropriate means or practices that affect [a person’s] freedom of decision, will, memory or judgment, in order to obtain a statement leading for a specific direction, are forbidden. After the questioning the person being questioned shall be given an opportunity to check the report drawn up by the questioner, after which he or she shall be asked whether his or her account has been noted down correctly. The principle of impartiality is to be followed, which means that in the performance of official duties all persons must be treated equally...” “Even though the above-mentioned provisions of the Criminal Investigations Act do not directly regulate the duties of [the applicant] as the superior officer, the general requirement of proper discharge of duties, as defined in section 14, subsection 1, of the State Civil Servants Act means, in this case, that the provisions and principles concerning pre-trial investigation are to be followed. In this respect, regard is to be had to [the applicant’s] position and the nature of his duties and what that necessarily entails. The Court of Appeal finds that, in the light of the above general principles and the provisions concerning pre-trial questioning, it was not the duty of [the applicant] as the superior officer to intervene in the questioning conducted by his subordinate officer, not even in the form of a conversation. As a result of such a conversation the subordinate officer being questioned had asked that a part of his statement, already entered in the report, be removed.” The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining, inter alia, that he had been convicted without a sufficient legal basis. The substance of the official duty allegedly breached did not in his view transpire from those provisions of the Criminal Investigations Act referred to by the Court of Appeal. He also contended that, in the appellate proceedings, the prosecutor had only demanded that he be convicted of negligent violation of official duty after the court had inquired whether she intended to do so. At no stage did the prosecutor modify the charges accordingly or indicate the applicable provision concerning that offence. He further argued that the prosecutor had never invoked any specific provision other than section 39, subsection 2, of the Criminal Investigations Act. As to the other provisions of the said Act, the Court of Appeal had at no point of the proceedings brought to the applicant’s attention that it considered those provisions applicable to the case and that they could be relied upon for his conviction. On 13 May 2008 the Supreme Court refused the applicant leave to appeal. Chapter 40, article 10, of the Penal Code, as in force at the relevant time, read as follows: “If a public official, when acting in his or her office, deliberately in a manner other than provided above in this chapter violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty crime, he or she shall be sentenced for violation of official duty to a fine or to imprisonment for at most one year.” Chapter 40, article 11, of the Penal Code (as amended by Act no. 792/1989), regulating negligent violation of official duty and as in force at the relevant time, read: “If a public official, when acting in his or her office, through negligence or carelessness in a manner other than referred to in article 5 (2) violates or fails to meet his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not a petty crime, he or she shall be sentenced for negligent violation of official duty to a warning or a fine.” Section 14, subsection 1, of the State Civil Servants Act provides that a civil servant is to perform his or her duties properly and without delay and to follow superior orders. Section 24, subsection 1, of the Criminal Investigations Act reads (Act no. 449/1987) as follows: “A person being questioned shall be treated in a calm and pertinent manner. The use of false notice, promises or innuendo of special advantages, exhaustion, threats, force or other improper means or practices affecting the person’s freedom of decision, will, memory or judgment, in order to obtain a confession or a statement leading in a specific direction, are not allowed.” Section 39, subsection 2, of the said Act reads: “The statement entered in the report shall be read out to the person being questioned immediately after the questioning, and he or she may check it. The questioner shall ask the person being questioned whether his or her account has been entered into the report correctly. Any such request to correct or amend the report which has not been complied with shall also be noted in the report. The report must not be changed after the person being questioned has checked it and the requested corrections and amendments have been made.” According to Chapter 11, section 3, of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål, Act no. 689/1997), the court may pass a sentence only for the act for which a punishment has been requested or for which the court may, according to law, pass a sentence on its own initiative. The court is not bound by the heading of the offence or the reference to the applicable provisions in the charge. The Government Bill (hallituksen esitys, regeringens proposition, no. HE 82/1995) concerning the last-mentioned provision states, inter alia, that in criminal proceedings the court is only bound by the description of the events for which punishment is demanded. It is for the court to decide ex officio which offence the act described in the charge constitutes. The proceedings must be conducted in such a manner that the offence of which the defendant is convicted does not come as a surprise to him or her. The defence shall have the opportunity to point out any such circumstances which he or she feels are relevant in deciding about the culpability. If in the court’s view the defendant should be convicted of some other offence or under some other provision than that indicated in the charge, the court should draw the defendant’s attention to the matter in the course of the proceedings. | 0 |
train | 001-109541 | ENG | GBR | CHAMBER | 2,012 | CASE OF MALIK v. THE UNITED KINGDOM | 3 | Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions) | George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. The applicant was born in 1943 and lives in London. 7. In 1978 the applicant began practising as a general medical practitioner from premises which he owned. He was a sole practitioner and at the time of the events to which this application pertains he had a patient list of around 1,400 patients, many of whom were from the local Bangladeshi population. 8. On 30 March 2004, he entered into a contract with the Waltham Forest Primary Care Trust (“the PCT”) in accordance with the National Health Service (General Medical Services Contracts) Regulations 2004 (see paragraph 64 below). Under the terms of the contract, the applicant was obliged to ensure the provision of medical services to NHS patients registered with his medical practice. He could ensure this provision either by performing services himself or by employing another doctor to do so. The applicant was entitled, under the contract, to receive quarterly payments from the PCT based on the number of patients registered with his practice. The PCT also paid him notional rent for his premises as they were used for NHS purposes. This was a discretionary payment, rather than an entitlement. 9. On 20 January 2005 a monitoring visit by the PCT took place at the applicant’s medical practice premises. On 21 January 2005 the medical director of the PCT wrote to the applicant informing him that the visit had demonstrated “the serious risk you pose to patients under your care”. The applicant was advised that he had been suspended “to protect the interests of patients while a more detailed investigation into the issues of concern take place”. 10. The applicant challenged the suspension and a hearing before the PCT was arranged for 31 January 2005. In the meantime the applicant’s insurers wrote to the PCT expressing the view that the suspension was unlawful. They made an offer to the PCT that the applicant would voluntarily absent himself from practice for four weeks to enable him to deal properly with the matters relied on against him. The offer was not accepted. 11. The PCT arranged for locum cover for the applicant’s patients. These services were not provided at his surgery premises because it was not possible to find a locum prepared to work from the premises owing to their unsatisfactory condition. 12. On 28 January 2005 the PCT sent a letter to the applicant setting out the matters to be relied on in support of the suspension and referring specifically to regulation 13(1)(a) of the National Health Service (Performers Lists) Regulations 2004 (“the Performers List Regulations” – see paragraph 65 below). The letter identified a number of defects, namely: inadequate disease registers and patient records; lack of clinical knowledge in relation to bipolar disorder, emergency contraception and smoking cessation; inadequate maternity services; lack of proper sterilising equipment and the discovery of a bottle of orange juice in a fridge containing flu vaccine; and inadequate arrangements for out-of-hours cover and opening hours. 13. Prior to the hearing scheduled for 31 January 2005, the applicant sent a medical certificate notifying the PCT that he was suffering from flu. He repeated his offer to abstain from practice pending a hearing at a later date. However, the PCT went ahead with the hearing in his absence. On 3 February 2005 the PCT wrote to the applicant informing him that the suspension was to continue. 14. On 27 February 2005 the applicant’s solicitors wrote to the PCT alleging that its actions were unlawful. On 2 March 2005 the PCT’s solicitors responded stating: “The PCT considers that there were procedural irregularities surrounding decisions taken on the 21 January 2005 and 31 January 2005. Consequently, the PCT considers that those decisions should now be treated as nullities and/or revoked.” 15. They indicated that a hearing would be held to decide whether suspension should take place after giving proper notice. A new hearing was arranged for 16 March 2005. 16. At the hearing on 16 March 2005, it was decided to suspend the applicant for six months. 17. The applicant subsequently commenced civil proceedings seeking a declaration that the suspensions were unlawful and that any subsequent hearing must be by a freshly appointed panel and must have a legally qualified chairman. The legal action proceeded as a claim for judicial review of the suspension. 18. By letter dated 18 March 2005 the applicant was advised that, pursuant to regulation 13(17) of the Performers List Regulations (see paragraph 72 below), payments could continue to be made to him under the PCT contract in accordance with a determination by the Secretary of State. The entitlement was to be based on a reasonable approximation of what amounted to ninety percent of his normal monthly profits under the PCT contract (see paragraph 73 below). 19. The applicant’s solicitors replied on 30 March 2005 that they were considering whether the payment offered was correct and would respond in due course. In the meantime, they requested confirmation that the suspension payments were to commence only as of March 2005, and not January 2005. 20. By letter dated 7 April 2005 the applicant’s solicitors raised two further matters for the PCT’s consideration, namely whether the applicant should continue to be paid rent and whether his staff costs should be paid by the PCT. 21. By letter dated 16 May 2005 the PCT explained to the applicant that the reason he had not received any rent for the months of March and April was that the premises were no longer being used for NHS purposes. 22. On 9 June 2005 the PCT offered the applicant a fresh hearing regarding his suspension. It refused him a legally qualified chair and legal representation, but had no objection to his adviser attending. 23. By letter dated 9 June 2005 the applicant’s solicitors indicated that he would be willing to settle the judicial review proceedings if his suspension was quashed; his costs were paid; and losses incurred as a consequence of the reduced payments under the PCT contract were compensated. 24. On 20 June 2005 the PCT notified the applicant that prior to the fresh hearing, it would revoke the existing suspension. 25. On 21 June 2005 a fresh statement of case was served by the PCT setting out the matters to be relied on at the hearing. This covered all matters which had given rise to concern since the summer of 2004. 26. On 25 July 2005 the judicial review proceedings were adjourned pending the fresh hearing, which was to take place on 3 August 2005. Although the PCT had previously said it would revoke the suspension imposed at the hearing on 16 March, this was not done. 27. Following the hearing on 3 August 2005, the applicant was suspended for two months under regulation 13(1)(a) of the Performers List Regulations (see paragraph 65 below). 28. On 17 March 2006 the High Court handed down its judgment in the applicant’s claim for judicial review. 29. As regards the purported suspension of 21 January 2005, Mr Justice Collins found: “It was apparent that this was a purported exercise of the power conferred by regulation 13(1)(a). It was unlawful. It breached regulation 13(11) in that the claimant was neither told of the allegations against him nor given any opportunity to deal with them. It was also manifestly unfair. I can only express surprise that a PCT should so blatantly disregard not only the clear terms of the regulations but also the guidance given by the Department and act in such an unfair manner.” 30. As to the hearing in the applicant’s absence on 31 January 2005, the judge considered that: “Again, [the PCT] clearly acted in a manner which was unfair since the agreement to maintain a voluntary suspension meant that patients could not have been at risk if the hearing had been delayed. In fact, if they had taken advice, they would have been informed that the whole procedure was unlawful since they should not have suspended the claimant on 21 January and so the hearing could not properly have considered representations against the decision to suspend. Rather, the PCT had to decide whether suspension was required and the burden was on them to justify suspension.” 31. He found that the decision following that hearing to continue the applicant’s suspension was also unlawful, commenting: “In yet further breach of the regulations, this time regulation 13(2), the defendants failed to specify the period for which the suspension was to last. They gave as their reason for not accepting the offer of voluntary suspension that that ‘would not prevent you from working as a locum at another practice’. I am singularly unimpressed with that reasoning. The undertaking could easily have been extended to cover that if the defendants had bothered to raise it with the claimant and his advisers.” 32. Regarding the hearing of 16 March 2005, the judge concluded: “Unfortunately, there were serious flaws at the hearing of 16 March which in my judgment rendered it unfair and so unlawful. The presenting officer was not content to rely on the matters of which notice had been given but proceeded to refer to a number of other matters against the claimant none of which had been put to him. This was a breach of regulation 13(11). The chairman failed to stop him doing this, but contented herself, according to the notes provided subsequently, with instructing her colleagues on the panel after they had retired that ‘a lot of unnecessary information had been presented’ and advising them ‘to confine their discussion to the issues which had been considered by the previous panel and those which Dr Malik had been notified of’. The notes show that this did not happen since during the discussion reference was made to Dr Malik being ‘unclear about the prescribing of colostomy bags and food supplements’. Those related to matters not the subject of prior information. In any event, the matters raised must inevitably have prejudiced the claimant and the failure to exclude them at the hearing was itself unfair. Added to this, there was the failure to have [a relevant witness] attend despite the promise that he would and the observations of the presenting officer, compounded by the chairman, that the meeting was to review the decision to suspend the claimant. That has not been pursued by [counsel for the applicant], but it is symptomatic of the failure by the PCT to follow the proper procedures.” 33. As to the decision to suspend the applicant following that hearing, he said: “That [decision] was, quite apart from the unfairness of the hearing, unlawful since he had already been suspended on 21 January 2005 and so could not be suspended beyond 21 July 2005.” 34. Finally, in respect of the 3 August 2005 hearing, the judge concluded that, in light of the fact that the PCT had failed to revoke the previous suspension: “... the hearing on 3 August was clearly unlawful since there was already an existing suspension in being (assuming that that imposed on 16 March was lawfully imposed) and further the claimant had already been suspended (whether lawfully or not being irrelevant) for more than six months.” 35. Having concluded that the applicant’s suspension was unlawful, the question then arose whether there had been a breach of Article 1 of Protocol No. 1. The relevance of the question was that only a breach of the applicant’s human rights would have entitled him to damages under the Human Rights Act 1998. 36. Noting that under the terms of domestic legislation (see paragraph 78 below) a doctor was prohibited from selling the goodwill in his practice, the judge found: “In this case, inclusion in the list is akin to the possession of a licence. While the goodwill of the practice is not marketable, the inclusion has an intrinsic value in that it enables the doctor to practise. Since the amount of his remuneration will be affected by his patient numbers, suspension may well affect the economic value to him of his practice. Thus inclusion in the list has a present value apart from the right to future income and, as it seems to me, the decision in Van Marle v The Netherlands supports the view that it can and does amount to a possession ...” 37. He was therefore persuaded that inclusion in the list was a “possession” for the purposes of Article 1 of Protocol No. 1. Had the suspension been properly and lawfully imposed, he indicated that he would have had no doubt that the interference would have been proportionate and so justified. However, as it was unlawful for the reasons given, the interference was not justified. He concluded: “... Thus if the claimant can establish that he has suffered recoverable damage he may be entitled to some sums to recompense him for such loss. Since he should have been receiving payment which should have maintained his income, he may have difficulty in establishing any loss. However, I am not in a position to decide that issue.” 38. The PCT and the Secretary of State appealed against the finding that there had been a violation of Article 1 of Protocol No. 1. No appeal was lodged against the finding that the suspensions had been unlawful. 39. On 21 March 2006 the applicant’s solicitors wrote to the PCT referring to the High Court declaration that the suspension of the applicant from the Performers List was unlawful. They indicated that the applicant wished to return to practice as soon as practicable. By letter dated 29 March 2006 the PCT agreed that the applicant could return to practice. However, given previous concerns regarding the medical practice premises, the PCT wished to arrange a site inspection as soon as possible. 40. By letter dated 11 April 2006 the applicant’s solicitors confirmed that he consented to the site inspection and reiterated that he was anxious to return to practice as soon as possible. However, they explained that in order to ensure an orderly and organised return, he favoured a gradual reintroduction to work, with part-time work alongside another general practitioner. 41. On 16 May 2006 the applicant’s solicitors requested from the PCT information concerning the size of the applicant’s patient list immediately before the purported suspension in January 2005 and as it currently stood. 42. By letter dated 26 May 2006 the applicant’s solicitors informed the PCT that his health had deteriorated and that he was suffering from a stress-related illness. Accordingly, they requested that plans for the applicant’s return to practice be held in abeyance. 43. On 14 July 2006 the PCT’s solicitors confirmed that the applicant’s patient list size was 1,380 patients on 1 January 2005 and 1,013 patients on 23 May 2006. 44. On 28 March 2007 the Court of Appeal handed down its judgment. Lord Justice Auld identified two questions for the court’s consideration. The first question was in what respect future income could be an Article 1 “possession”. He considered it well established that Article 1 protected a right to existing possessions but not a future right to receive possessions. He continued: “... [G]oodwill in the sense of an established client-base with its own inherent market value along with other existing assets of a business, may often not be readily distinguishable from future earning prospects from existing trading circumstances, since the existence or valuation of goodwill will turn at least in part on projected future earnings. However, no such blurring of the line can occur here, since Dr Malik’s clientele in the form of the patients registered with him has no economic value and so cannot constitute a ‘possession’ because of statutory denial to him of any marketable goodwill in his patients list ...” 45. As to the approach of this Court to the question, the judge noted: “Wendenburg, unlike Van Marle and other such cases, did not, on its facts, turn on loss of goodwill and/or diminution in value of physical assets, but on what the Court appears to have regarded as a sort of acceptable middle position, one of a legitimate expectation of future earnings ... However, and with respect to the European Court, the shadowy nature of such possessory entitlement is evident from the way in which it disposed of the case against the applicants. It held – assuming without deciding that the German Court’s decision had the effect of interfering with that entitlement – that the interference would have been justified under the second paragraph of the Article as being in the general interest ... In my view and with respect, the Divisional Court and the Court of Appeal in Countryside displayed a surer touch, both of principle and practicality in rejecting the possibility of any such middle position between goodwill as a possession and future income which is not ...” 46. Thus on the question whether future income could be a “possession”, the judge concluded: “In summary on the issues of goodwill and legitimate expectation, there is clear Strasbourg authority, in Wendenburg and other cases, and domestic authority, in Countryside, that the assets of a business may include possessions for the purpose of Article 1 in the form of ‘clientele’ or goodwill of the business. Where such clientele/goodwill exists, measures that diminish its value, as, for example in Van Marle, interference with professional practice, may engage Article 1. But where it does not exist, as it does not here, the Court of Appeal’s decision in Countryside ... is also clear authority for the proposition that, without it, mere prospective loss of future income cannot amount to a possession for the purpose. Equally, any consideration of a further category of Article 1 possession based on a notion of legitimate expectation in this context would unacceptably blur that distinction of principle. It would also, as I have indicated, lead to great difficulties of practical application in the next stages of the Article 1 exercise of identifying precisely what legitimately expected ‘possession’ had been interfered with and to what extent, and in considering the ‘legitimacy’ of the expectation against considerations of the general interest on the issue of justification.” 47. On the second question – whether a personal permission, in the form of inclusion on a professional list, or a licence was a possession – he noted: “...Something may have value to a person though it may have no value in the market. One cannot comprehensively define possession for this purpose by reference to a person’s ability or wish to sell it ... objects that may be of no economic value to their possessors – wholly unmarketable – may have a sentimental or other personal value to them for the protection of their enjoyment of which Article 1 should, if necessary, provide. ... Where ... the possessory right claimed is, as here, to some intangible entitlement conferred by a licence or other form of permission to the grantee to continue to follow an activity to his advantage, it seems to me that some additional factor is necessary to render it a ‘possessory’ entitlement as distinct from the broader concept of a legal right to do so. In many or most cases, such identification is likely to depend on the existence of some present economic value of the entitlement to the individual claiming it conferred by a licence or other form of permission. The questions of principle in this case – which is concerned with potential loss of livelihood – is, therefore, whether economic value is a distinguishing feature of a possessory right and whether it can only be identified in the sense of marketability. If it is not so confined, where, in any given case is the boundary between an Article 1 possession and some other and broader Convention right not amounting to such a possession?” 48. He considered that it was necessary to distinguish between claimed future monetary entitlements derived from an instrument such as a licence or permit and a claimed future entitlement based on a personal interest in enjoyment of it but not involving any monetary claim. He concluded: “The matter has, in any event, been put beyond doubt in my view by the ruling of this Court in Countryside, which binds us, upholding the reasoning of the Divisional Court that an individual’s monetary loss, in the sense of loss of future livelihood, unless based on loss of some professional or business goodwill or other present legal entitlement, cannot constitute a possession attracting the protection of Article 1.” 49. Notwithstanding his conclusion that there was no possession in the applicant’s case, the judge went on to consider whether, if inclusion on the performers list had been a possession, the actions of the PCT would have deprived him of it. On this matter, he found: “If inclusion in a performers list is, contrary to my view, an Article 1 ‘possession’, it would follow that suspension from it under the Performers Lists Regulations is an interference with that ‘possession’. But ... the Judge did not reason the matter in that way ... [H]e recognised the need to examine the impact of suspension on Dr Malik’s practice, and concluded that there was such interference because his inclusion in the list had ‘a present value apart from the right to future income’ in that the amount of his remuneration was affected by his patient numbers and suspension might well affect the economic value to him of his practice. However, there was no evidence before the Judge to support such finding of interference, in particular, no effective loss of remuneration or of actual or prospective loss of patients, since he continued to receive 90% of his National Health Service remuneration by reference to his patient list, pursuant to regulation 13(17) of the 2004 Performers Lists Regulations ... and his practice was preserved by the PCT arranging and paying for his patients to be seen by a locum ... I should add that there is nothing in the further point ... that interference could be established in the PCT’s cessation of payment, following Dr Malik’s suspension, ... of notional rent for the use of his premises ... During the period of his suspension Dr Malik’s practice continued to provide services to patients on his list, but did so, as I have said, through a locum engaged by the PCT to perform those services. Because of the unsatisfactory condition of Dr Malik’s surgery premises, the PCT was obliged to refer his NHS patients to a locum at another nearby practice. However, his premises were still available for his use, for example, for the purpose of seeing private patients. More importantly, such notional rent as he might have continued to receive but for the suspension would not have constituted a possession for the purpose.” 50. On the question whether goodwill could constitute a “possession” in the present case, Lord Justice Rix noted: “The distinction between marketable goodwill, or at any rate that goodwill which it is acknowledged is a vested possession, and what the European Court describes as being merely a present-day reflection of anticipated future income, has never had to be determined on the facts ... One solution may be ... looking only to marketability. I am not sure of that, however, for two reasons: one is the substantive distinction drawn by Denimark; the other is the emphasis placed by the Strasbourg jurisprudence on goodwill as a possession in the case of professionals with respect to their clientele. I suspect that such goodwill is not readily marketable: on the other hand, I can conceive that a professional practice can perhaps only or best be thought of as involving a vested possession in terms of the goodwill consisting in its clientele. In the present case, however, this difficulty does not need resolving, for, as Auld LJ has pointed out ..., regulation 3 of the Primary Medical Services (Sales of Goodwill and Restrictions on Sub-Contracting) Regulations 2004 ... effectively means that an NHS doctor’s goodwill has no economic value. As such, I do not see how it can be regarded as an asset or, therefore, a possession for the purposes of [Article 1]. It is neither a physical thing (land or chattels) nor a right or other chose in action, nor an asset of any kind ...” 51. As regards the applicant’s inclusion in the Performers List, he considered the analogy between inclusion on the list and the grant of a licence to be unhelpful. He continued: “... licences come in all forms. Some licences are valuable assets in their own right .... Other licences are valuable only in the sense that they give value or greater value to some other asset. In such a case, the jurisprudence considered above, such as Tre Traktörer itself in the case of a liquor licence, shows that the possessions in question which need to be considered are the underlying assets, not the licence. So also in Karni, which in its way is the closest authority to the facts of the instant case, it was not the affiliation to Sweden’s social security system which was regarded as the possession with which there had been interference by reason of its withdrawal, but the doctor’s ‘vested interests’ in his practice which had had to be closed down ...” 52. He considered that in the applicant’s case, inclusion on the list was not a licence in itself but a condition precedent to a doctor being able to perform services himself in the NHS. Once on the list, a doctor was qualified to obtain a contract to provide medical services himself. If he was subsequently suspended from the list, he did not thereby lose his contract but lost only his ability to provide services under it by his own personal performance. He noted: “So in Dr Malik’s case, his suspension from the performers list did not prevent his contract continuing, only his personal performance as a sole practitioner under it. Even so, because his contract remained in force, the PCT continued to pay him his NHS remuneration, subject only to a 10% deduction to take account of expenses that he would otherwise have incurred. ... Dr Malik’s patients continued to receive medical services through a locum for whom the PCT paid. He continued to be entitled to practise as a doctor privately, from his surgery. ... It seems to me that inclusion on the performers list is a matter of regulation, a condition or qualification for performing NHS services, rather than a possession or property right in itself ...[O]ne cannot readily speak of the inclusion on the list as an economic interest. It is not an asset. It has no monetary value. If one was looking for a possession in this context, one would look naturally to the NHS contract, but that remained on foot, and is not the subject matter of Dr Malik’s ... claim ...” 53. The judge considered whether there was some other possession which the applicant could rely upon, and concluded: “... For reasons discussed above, it is not possible for Dr Malik to show that his practice had any asset in the nature of goodwill separate from his anticipation of future income under his NHS contract. Reference to his patient list ... is in one sense somewhat more to the point, because at least it can be said that the numbers on his list had a direct bearing, as I understand the matter, on his NHS remuneration, since that had to be recalculated every three months in accordance with those numbers. However, even so, his patient list remained in place, continued to earn him remuneration under his contract, and even if those numbers fell somewhat during the period of his suspension, as to which there was no evidence before the judge and no findings, that seems to me to be simply a matter relating to future income rather than an interference with vested rights in possession. The judge said that inclusion on the list had ‘an intrinsic value’ in that it enabled the doctor to practise and he went on immediately to explain that because the amount of remuneration would be affected by patient numbers, ‘suspension may well affect the economic value of his practice’ ... Although the judge then said that that reflected a present value apart from the right to future income, it seems to me that it plainly did not. The only way to measure any loss is by reference to future income.” 54. On the question whether, had there been a possession, there would have been an interference, he said: “There has been no separate ground of appeal in relation to the separate question of whether, assuming that a relevant possession had been involved, there had been an interference with it ... It seems to me that it is strongly arguable that, if a relevant possession had been involved, then there would only have been an interference for the purposes of [Article 1] if there had been material economic consequences: see Van Marle, Karni, and Tre Traktörer above. It is not as though any case of deprivation has been made. But it has not been found that there were any material economic consequences. As stated above, the purpose of the regulations was to ensure that during a period of temporary suspension the financial consequences for the doctor concerned were intended to be neutral; and there were mechanisms in place to resolve any disputes in that context.” 55. Finally, on the question whether there was a “possession” in the present case, Lord Justice Moses noted: “My concern, and, I suspect, that of the judge, for any unjustified damage to the doctor’s reputation ... brings me to an essential issue relating to goodwill, which has arisen in the instant appeal. This court has had to grapple with the need to maintain a clear and workable distinction between goodwill which is a possession within the meaning of [Article 1], and a right to future income, which is not. Goodwill which is marketable is undoubtedly a possession, notwithstanding that its present-day value reflects a capacity to earn profits in the future. But does goodwill have to be marketable in order to be identified as a possession within the meaning of [Article 1]? Goodwill is composed of a variety of elements, which differs in different businesses and professions ...” 56. He considered that reputation was undoubtedly an element of goodwill, although it was not marketable. However, he concluded “... I agree, on the basis of the reasoning of Rix LJ ... and of Auld LJ ... that that element of goodwill ... which is founded on the doctor’s reputation, is not a possession within [the meaning of Article 1]. It cannot be sold, it has no economic value other than being that which a professional man may exploit in order to earn or increase his earnings for the future. If the principle that the ability to earn future income is not a possession within [the meaning of Article 1] is to be maintained, it must follow that if the element of goodwill which has or may be damaged is reputation, or the loyalty of past clients, that element is not to be identified as a possession. In Denimark terms, the doctor’s complaint is as to an unjustified loss of reputation, caused by unlawful acts. But, in economic terms, that is no more than a complaint of a risk of loss of future income. It is not possible to distinguish his claim that his goodwill has been damaged from a claim to loss of future income.” 57. The applicant subsequently sought permission to appeal to the House of Lords. Consideration of his petition for leave was deferred pending the outcome of an appeal in Countryside Alliance, a case also concerning the applicability of Article 1 of Protocol No. 1, in which the applicant was given leave to intervene in writing. On 28 November 2007, the House of Lords handed down its judgment in Countryside Alliance (2007 UKHL 52). In the course of the judgment, Lord Bingham of Cornhill noted: “Strasbourg jurisprudence has drawn a distinction between goodwill which may be a possession for purposes of article 1 of the first protocol and future income, not yet earned and to which no enforceable claim exists, which may not ... The distinction was less clearly applied in Karni v Sweden (1988) 55 DR 157 where a doctor’s vested interest in his medical practice was regarded as a possession, Van Marle v Netherlands (1986) 8 EHRR 483 where an accountant’s clientele was held to be an asset and hence a possession, and Wendenburg, above, at CD 170, where the same rule was applied to law practices: in these cases no finding was made that the assets were saleable, although this may have been assumed. In R (Malik) v Waltham Forest NHS Primary Care Trust ... the Court of Appeal held that the inclusion of Dr Malik’s name on a list of those qualified to work locally for the NHS was in effect a licence to render services to the public and, being non-transferable and non-marketable, not a possession for purposes of article 1. While I do not find the jurisprudence on this subject very clear, I consider that the Court of Appeal reached a correct conclusion in that case ...” 58. On 4 December 2007, the applicant’s petition for leave to appeal was refused. 59. The applicant never returned to practice as a result of his health problems, which he attributed to his unlawful suspension. 60. Proceedings by the General Medical Council (“GMC”) were commenced against the applicant. However, no formal decision was ever taken by the GMC as the applicant subsequently voluntarily resigned on grounds of his ill-health. 61. At the relevant time, the position was governed by the National Health Service Act 1977 (“the 1977 Act”). Pursuant to section 28X(1) of the 1977 Act: “Regulations may provide that a health care professional of a prescribed description may not perform any primary medical service for which a Primary Care Trust or Local Health Board is responsible unless he is included in a list maintained under the regulations by a Primary Care Trust or Local Health Board.” 62. Under section 25(3) of the National Health Service Reform and Health Care Professions Act 2002, general practitioners were health care professionals for the purposes of the 1977 Act. 63. The relevant regulations were set out in the National Health Service (Performers Lists) Regulations 2004 (“the Performers List Regulations”). Regulation 3 imposed a duty on PCTs to prepare and publish a medical performers list. Regulation 22 provided that a medical practitioner could not perform any primary medical services unless his name was included on a medical performers list. Regulation 24(2) provided that a PCT was required to refuse to admit a medical practitioner to its medical performers list if he was included in the medical performers list of another PCT, unless he had given notice to that PCT that he wished to withdraw from that list. 64. Once on a list, a general practitioner could enter into a contract to provide services for the National Health Service. The National Health Service (General Medical Services Contracts) Regulations 2004 (“the Contracts Regulations”) set out in detail the nature of such contracts. Paragraph 53 of Schedule 6 to the Contracts Regulations provided that: “... no medical practitioner shall perform medical services under the contract unless he is– (a) included in a medical performers list for a Primary Care Trust in England; (b) not suspended from that list or from the Medical Register; and (c) not subject to interim suspension under section 41A of the Medical Act 1983 (interim orders).” 65. Under the Performers List Regulations, an individual could be suspended or removed from the list. Regulation 13 provided for the power to suspend: “(1) If a Primary Care Trust is satisfied that it is necessary to do so for the protection of members of the public or is otherwise in the public interest, it may suspend a performer from its performers list, in accordance with the provisions of this regulation– (a) while it decides whether or not to exercise its powers to remove him ... or contingently remove him ...; (b) while it waits for a decision affecting him of ... a licensing or regulatory body; ...” 66. Regulation 13(2) stipulated that the PCT had to specify a period, not exceeding six months, as the period of suspension. This initial period could subsequently be extended, pursuant to regulation 13(8), provided that the aggregate period of suspension did not exceed six months. Regulation 13(4) provided that the period of suspension could extend beyond six months in limited circumstances which were not relevant to the present case. 67. Regulation 13(9) explained that the effect of a suspension was that, while a performer was suspended, he was to be treated as not being included in the Performers List, even though his name appeared in it. 68. Regulation 13(10) allowed the PCT to revoke the suspension at any time and notify the performer of its decision. 69. Regulation 13(11) set out the applicable procedure to be followed by the PCT prior to suspending an individual from the Performers List: “Where a Primary Care Trust is considering suspending a performer or varying the period of suspension under this regulation, it shall give him– (a) notice of any allegation against him; (b) notice of what action it is considering and on what grounds; and (c) the opportunity to put his case at an oral hearing before it, on a specified day, provided that at least 24 hours notice of the hearing is given.” 70. Regulation 13(12) clarified that if the performer did not wish to have an oral hearing or did not attend the oral hearing, the PCT could suspend him with immediate effect. Pursuant to regulation 13(13), if an oral hearing did take place, the PCT had to take into account any representations made before it reached its decision. Regulation 13(14) and (15) provided that the PCT could suspend the performer with immediate effect following the hearing and that it had to notify the performer of its decision and the reasons for it (including any facts relied upon) within seven days of making that decision. 71. Regulation 18 of the Performers List Regulations prohibited a practitioner who was suspended from a list under regulation 13(1)(a) from withdrawing from a list without the consent of the Secretary of State until the question of his removal or contingent removal has been decided. Thus suspension had the effect of preventing the practitioner from engaging in NHS practice so long as the suspension continued. 72. As to payments during suspension, regulation 13(17) of the Performers List Regulations provided: “During a period of suspension payments may be made to or in respect of the performer in accordance with a determination by the Secretary of State.” 73. The general rule was to pay ninety per cent of the practitioner’s net income under his contract with the PCT. The deduction of ten per cent was to reflect the fact that a practising practitioner would have incidental expenses connected to his practice which would be met from his income. 74. A right to a review and to appeal of the determination was permitted under regulation 13(19) and (20): (19) If a performer is dissatisfied with a decision of a Primary Care Trust (‘the original decision’)– (a) to refuse to make a payment to or in respect of him pursuant to a determination under paragraph (17); (b) to make a payment to or in respect of him pursuant to a determination under paragraph (17), but at a lower level than the level to which he considers to be correct; ... he may ask the Primary Care Trust to review the original decision and, if he does so, it shall reconsider that decision, and once it has done so, it must notify the performer in writing of the decision that is the outcome of its reconsideration of its original decision (‘the reconsidered decision’) and give him notice of the reasons for its reconsidered decision. (20) If the performer remains dissatisfied (whether on the same or different grounds), he may appeal to the Secretary of State by giving him a notice of appeal within a period of 28 days beginning on the day that the Primary Care Trust notified him of the reconsidered decision.” 75. Regulation 13(21) to 13(24) set out the procedure for an appeal to the Secretary of State. 76. General practitioners are regulated by the GMC, which maintains a register of those individuals who are considered fit to practise as doctors. A doctor can be suspended from the register by decision of the GMC on grounds, for example, of misconduct. 77. Subsequent to the facts of the present case, the Medical Act 1983 was amended to introduce a requirement that doctors have a licence to practice which is conferred and may be withdrawn by the GMC. 78. Since the creation of the National Health Service in 1948, practitioners have been prevented from selling the goodwill of their medical practices. That rule is currently set out in Regulation 3 of the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-Contracting) Regulations 2004, which provides that a person with whom a PCT has entered into a general medical services contract may not sell the goodwill of his medical practice in any circumstances and that no other person may sell that goodwill in his stead. | 0 |
train | 001-60495 | ENG | NLD | CHAMBER | 2,002 | CASE OF OLIVIEIRA v. THE NETHERLANDS | 1 | No violation of P4-2;No separate issue under Art. 8 | Elisabeth Palm;Gaukur Jörundsson | 10. On 6 November 1992 the Burgomaster (Burgemeester) of Amsterdam, relying on section 219 of the Municipality Act (Gemeentewet) as in force at the relevant time, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed to enter a particular area, the so-called emergency area, of the city centre for fourteen days. The following events were referred to in the Burgomaster's decision as having led to this order being issued. (i) It transpired from police reports that on 21 July (twice), 29 July, 12 August, 26 August and 10 September 1992 the applicant had either overtly used hard drugs or had had hard drugs in his possession in streets situated in the emergency area and that on each of those occasions he had been ordered to leave the area for eight hours. (ii) On 5 November 1992 the applicant had been heard by the police about his conduct and he had been told that he would either have to desist from such acts, which disturbed public order (openbare orde), or stay away from the area. The applicant had further been informed that, if he committed such acts again in the near future, the Burgomaster would be requested to impose a fourteen-day prohibition order on him. The applicant had told the police that, as well as preparing and using drugs in the area concerned, he also met his friends there. (iii) On 5 November 1992 the applicant had nevertheless overtly used hard drugs on one of the streets in the emergency area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a fourteen-day prohibition order on the applicant. 11. In the opinion of the Burgomaster, the applicant would again commit acts disturbing public order in the near future. In this context, the Burgomaster took account of the kind of conduct involved, namely acts seriously disturbing public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight-hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant's home nor his place of work were situated in the area concerned. 12. The applicant lodged an objection (bezwaarschrift) against the Burgomaster's prohibition order. He submitted, inter alia, that the Burgomaster ought only to make use of the emergency powers granted him by section 219 of the Municipality Act in exceptional situations. As the Burgomaster had been issuing eight-hour prohibition orders since 1983 and fourteen-day ones since 1989, it could no longer be argued that an exceptional situation prevailed. Moreover, the Burgomaster had had sufficient time to ensure that the emergency measures were enacted in a general municipal by-law (Algemene Politie Verordening). 13. The applicant also stated that the prohibition order, which in his opinion constituted a criminal sanction, interfered with his right to liberty of movement and violated the principle of proportionality. In this connection, he argued that he had always complied with the prohibition orders imposed on him for a duration of eight hours and that he therefore failed to understand why a prohibition order for fourteen days had been called for all of a sudden. 14. On 14 January 1993 a hearing took place before an advisory committee. At this hearing the representative of the Burgomaster stated that, in 1992, 3,300 eight-hour prohibition orders (compared with 2,130 in 1991) and 204 fourteen-day prohibition orders (compared with 111 in 1991) had been issued against people dealing in or using drugs or committing acts related to those activities. The representative further stated that it was intended to enact the power to issue prohibition orders in a general municipal by-law. 15. On 8 March 1993 the committee advised the Burgomaster to dismiss the objection and to maintain the prohibition order. It considered, inter alia, that the disruption of public order in the area concerned was still such as to constitute an exceptional situation within the meaning of section 219 of the Municipality Act. In view of the seriousness and scale of the problems involved, the committee found it unlikely that public order could be adequately maintained by normal methods and that for that reason the Burgomaster was entitled to use the powers granted him under section 219. 16. Having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disturbed public order and that the eight-hour prohibition orders which had been issued had not prevented him from doing so, the committee further found that the imposition of a prohibition order for a duration of fourteen days had not been unreasonable. It did not agree with the applicant that the impugned measure constituted a penalty, as it had been taken in order to maintain public order. The committee finally found that the interference with the applicant's right to liberty of movement had been justified. 17. By a decision of 11 March 1993 the Burgomaster dismissed the applicant's objection, adopting as his own the reasoning applied by the advisory committee. 18. The applicant lodged an appeal against the Burgomaster's decision with the Judicial Division (Afdeling rechtspraak) of the Raad van State on 19 March 1993. In his appeal, which he detailed in a letter of 17 May 1993, he raised the same complaints as he had before the Burgomaster. In his written observations of 14 March 1994 the Burgomaster referred to the report drawn up by the advisory committee. A hearing took place before the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak), the successor to the Judicial Division, on 23 January 1996. 19. On 14 May 1996 the Administrative Jurisdiction Division dismissed the applicant's appeal. Its reasoning included the following: “Article 12 of the International Covenant on Civil and Political Rights provides that everyone lawfully within the territory of a State shall have the right to liberty of movement and freedom to choose his residence. According to the third paragraph of that provision, this right shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in that Covenant. An almost identical provision is contained in Article 2 of Protocol No. 4 to the Convention. Section 219, first paragraph, of the Municipality Act confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Contrary to what the party seeking review has argued, the issuing of orders in the situations set out in section 219 of the Municipality Act does not run counter to the above-mentioned treaty provisions, since the latter provide for the possibility of restricting the rights concerned by 'law' – a term which includes an order issued by the Burgomaster pursuant to the law – for the protection of public order. Section 219 of the Municipality Act is a legal provision intended for situations where ordinary means are insufficient for restoring and maintaining public order. In the opinion of the Division these ordinary means may be considered insufficient in the present case and there was, at the time of the decision appealed against, an exceptional situation. It is relevant in this context that at the time of the decision appealed against it was not possible to solve the problem in question through a municipal regulation. There was not at that time – and there is not now – any relevant provision in a municipal by-law, nor is any other sufficient legal means available. On the basis of the case file and the submissions made at the hearing, in addition to the number of eight-hour and fourteen-day orders that have been issued in the area concerned, the Division finds that the appropriate staff and means available to the defendant were inadequate to counter the difficult situation arising from breaches of public order resulting from the behaviour of drug addicts as described in the decision of 13 November 1989. This leads the Division to hold that it cannot be stated that the defendant could not reasonably make use of the powers granted him by section 219 of the Municipality Act. The Division would, however, express the following reservations. It cannot see why, if the situation described above should continue, the possibility of issuing fourteen-day prohibition orders should not be provided for in a by-law enacted by the Local Council. From the point of view of legal certainty and legitimacy of action by public authority, a regulation provided by a municipal by-law seems preferable to a measure based on the defendant's emergency powers. It appears from the case file that the defendant had already prepared the draft of an appropriate provision, which, however, was never incorporated into the General Municipal By-Law because the method used at present, which was decided on in consultation between the defendant, the police and the prosecuting authorities [verweerder, politie en justitie] with regard to the fourteen-day prohibition orders, was considered extraordinarily effective. The Division is, however, of the opinion that the presumed effectiveness of an emergency measure coupled with the prosecuting policy of the prosecution authorities [Openbaar Ministerie] do not constitute a reason not to make appropriate provision at the municipal level. The Division considers that the defendant, in assessing whether there is an exceptional situation within the meaning of section 219 of the Municipality Act (now section 175 of the Municipality Act), may, in principle, no longer rely on the lack of an appropriate provision in a municipal by-law, in view of the length of time this drugs-related nuisance [drugsoverlast] has already prevailed, causing it to display structural aspects, if the possibility of issuing fourteen-day prohibition orders is not now provided for in a by-law enacted by the Local Council within a reasonable time.” This decision was published, with a learned comment, in Jurisprudentie Bestuursrecht (Administrative Law Jurisprudence) 1996, no. 169. 20. Apart from the proceedings described above, the applicant was convicted by a single-judge Chamber (politierechter) of the Regional Court (arrondissementsrechtbank) of Amsterdam on 8 December 1992 of having intentionally failed to comply on 20 November 1992 with the prohibition order imposed by the Burgomaster on 6 November 1992. Under Article 184 of the Criminal Code (Wetboek van Strafrecht), this failure constituted a criminal offence. He was sentenced to four weeks' imprisonment. Following an appeal to the Amsterdam Court of Appeal (gerechtshof), which also convicted the applicant, an appeal on points of law was lodged with the Supreme Court (Hoge Raad). The Supreme Court dismissed the applicant's appeal on 8 December 1998. 21. The criminal proceedings against the applicant do not form part of the case before the Court. 22. At the material time section 219 of the Municipality Act (Gemeentewet) provided as follows: “1. In case of a riotous movement, gathering or other disturbance of public order or of serious calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. ...” 23. Article 184 of the Criminal Code (Wetboek van Strafrecht), in its relevant parts, reads: “1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a secondcategory fine. ... 4. If the offender commits the indictable offence within two years of a previous conviction for such an offence having become final, the term of imprisonment may be increased by one-third.” 24. In the Netherlands, the Burgomaster of a town or city is appointed by the Queen (section 65 of the former Municipality Act). Municipal regulations, such as general municipal by-laws, are adopted by the Municipal Council (section 168 of the former Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution). 25. By a letter of 4 July 1983 the Burgomaster of Amsterdam informed the Chief Superintendent (Hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Burgomaster's behalf would be able to issue orders, based on section 219 of the Municipality Act as in force at the time, for people to leave a particular area within the city centre and not to return to it for eight hours. 26. The Burgomaster extended the area of the city centre where these orders could be issued by a letter of 25 July 1988. Subsequently, by a letter of 8 March 1989, the Burgomaster also empowered the Chief Superintendent and his officers to order people to leave the designated area for fourteen days. 27. By a letter of 17 October 1989 the Burgomaster amended this instruction, replacing the discretion of the police officers to issue eight-hour prohibition orders by a strict order to do so in specified circumstances. This letter contains the following passage: “In so acting I have considered that the designated city centre area exerts a continuing attraction on persons addicted to, and/or dealing in, hard drugs. The attendant behaviour disrupts public order, causes considerable nuisance and constitutes an incessant threat to public life. In these circumstances [in dit verband], I judge the situation to constitute an exceptional situation within the meaning of section 219 of the Municipality Act.” 28. The Burgomaster's instructions were further amended by a letter of 13 November 1989 under the terms of which fourteen-day prohibition orders could no longer be issued by the police on behalf of the Burgomaster but only by the Burgomaster himself. 29. A fourteen-day prohibition order could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed public order, such as, inter alia: (i) the possession and use on the public highway of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; concerns hard drugs); (ii) dealing on the public highway in addictive substances appearing in Annex 1 to the Opium Act; (iii) overt possession of knives or other banned objects in so far as this constituted a criminal offence under the General Municipal By-Law or the Arms and Ammunition Act (Wet Wapens en Munitie); (iv) committing the offence defined in Article 184 of the Criminal Code where the order not complied with was an eight-hour prohibition order; (v) acts of violence, thefts from cars on or along the public highway, overt selling of stolen goods on or along the public highway, in so far as there was a connection between these offences and hard drugs. 30. On the occasion of a fourth procès-verbal being drawn up against him, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Burgomaster to impose a fourteen-day prohibition order. 31. It is undisputed that the aforementioned Burgomaster's letters were neither published nor laid open to public inspection and that the Burgomaster's instructions were not otherwise made public. 32. In a decision of 11 January 1989 (Administratiefrechtelijke Beslissingen (Administrative Law Reports) 1989, no. 424), the President of the Judicial Division of the Raad van State held as follows: “As the Judicial Division has held in previous decisions, section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus, provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order. It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section 219, first paragraph. In so doing, we will consider the undisputed statement made by the respondent party at the hearing concerning the situation in the (old) city centre of Amsterdam: 'The old city centre of Amsterdam is known internationally and nationally as a centre for the trade in hard drugs. It continues to attract large numbers of addicts. The doings and dealings of addicts and dealers generally cause serious nuisance: overt use and dealing, intimidating group behaviour, threats to passers-by (frequently with knives), shouting, raving, fights, robberies (frequently with knives), thefts, receiving stolen property, etc. The old city centre has many functions; an important one is that of being a residential and commercial area. However, the situation threatens all the time to become unbearable. The extent to which matters have deteriorated for the residents is again apparent from the desperate protests which took place at the beginning of November last year. These protests ended, for the time being, at a meeting of the Police Affairs Committee which was attended by a crowd of people. The Damstraat, Oude Doelenstraat, Nieuwe and Oude Hoogstraat are part of the crisis area. The Damstraat (the Oude Doelenstraat, the Nieuwe and Oude Hoogstraat are the prolongation of the Damstraat) constitutes the entrance to the old city centre. In this part of the town, all manner of soft drugs, but especially hard drugs, are for sale, in small or large amounts: hashish, cocaine, amphetamines, LSD, heroin and other mindaltering substances. In this area especially, street dealers go about more than elsewhere in the city centre peddling fake hard drugs. The presence of the dealers and large numbers of addicts, with the attendant criminality, seriously affect the area. As a result, among other things, of the strong protests of local residents, a special project team of the police was active in the Damstraat area for six weeks from 14 November 1988 onwards. Its actions were directed in particular towards the bridge between the Oude Doelenstraat and the Oude Hoogstraat, the so-called pills bridge. This bridge was occupied by representatives of a new phenomenon, namely, multiple drugs use. The project team set itself the primary task of restoring public order. During the action, there were 600! arrests, hundreds of knives were seized and hundreds of prohibition orders were issued.' Noting all this, we are of the provisional opinion that an emergency situation of the kind referred to in section 219, first paragraph, of the Municipality Act was rightly found to exist. The respondent was therefore entitled to issue the disputed orders.” Similarly, in a decision of 31 July 1989 (Kort Geding (Summary Proceedings Law Reports) 1989, no. 314), the President of the Judicial Division held: “As the Judicial Division has held in previous decisions, section 219 of the Municipality Act – paraphrased above – confers on the Burgomaster emergency powers which should be used only in exceptional situations. Such exceptional situations include riotous movements, gatherings or other disturbances of public order, serious calamities, and also a serious fear of the development thereof. Thus provision has been made by law for situations in which it may definitely be expected that ordinary measures will be insufficient for restoring and maintaining public order. It must now first be examined whether in the present case there was a situation of the kind aimed at by the aforementioned section 219, first paragraph. As was held in the decision of 11 January 1989 ... in relation to the situation in the (old) city centre, the respondent rightly found that an emergency situation of the kind referred to in section 219, first paragraph, of the Municipality Act existed.” 33. In a judgment of 23 April 1996 (Nederlandse Jurisprudentie 1996, no. 514), which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Supreme Court (Hoge Raad) accepted that the Burgomaster's powers under section 219 of the former Municipality Act were intended only for exceptional situations. It held, however, that the mere fact that two and a half years had passed since the Burgomaster had declared an emergency situation – the case related to the Burgomaster's instruction of 17 October 1989 – was not sufficient per se to justify the conclusion that an exceptional situation no longer existed. It also held, in the same judgment, that Article 6 of the Convention did not apply to eight-hour prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order. Nor did such orders violate Article 2 of Protocol No. 4 to the Convention, since they were “in accordance with law” and “necessary in a democratic society” for “the maintenance of ordre public”. The judgment of the Supreme Court upheld a judgment of the Amsterdam Court of Appeal sentencing the defendant in that case to two weeks' imprisonment. 34. Section 7 of the Act on Administrative Jurisdiction as to Decisions of the Administration (Wet administrative rechtspraak overheidsbeschikkingen – “the AROB Act”) provided that a person directly affected by an administrative decision (certain categories of decisions, not relevant to the present case, excepted) could submit an objection to the administrative body that had taken the decision. The objector was entitled to be heard; the administrative body could delegate the hearing to an advisory committee (section 14(1)). 35. An appeal against the decision of the administrative body lay to the Judicial Division of the Raad van State, an administrative tribunal (section 8 of the AROB Act). 36. The AROB Act was repealed on 1 January 1994 when the General Administrative Law Act (Algemene wet bestuursrecht) came into force. 37. Also as of 1 January 1994 the Judicial Division of the Raad van State was replaced by the Administrative Jurisdiction Division (sections 26 et seq. of the Raad van State Act (Wet op de Raad van State), as amended). The new Division took over the undecided appeals still pending before the Judicial Division. | 0 |
train | 001-4918 | ENG | TUR | ADMISSIBILITY | 1,999 | UYKUR v. TURKEY | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Turkish citizen of Kurdish origin, born in 1953 and living in Osmaniye, Adana. He is represented before the Court by Mr Kevin Boyle and Ms Françoise Hampson, both university teachers at the University of Essex. A. The applicant was the deputy district leader of the Motherland Party (Anavatan Partisi -ANAP) and a member of the party’s executive board. He later became the chairman of the Osmaniye Branch of the Democratic Party (DEP). He resigned from the DEP before it was closed down. On 4 December 1994 the applicant was taken into custody by members of the security forces. During his detention, he was beaten with sticks, punched in the face and his testicles were squeezed. He was blindfolded throughout the detention and subjected to continuous interrogation. He was sworn at and forced to sign a statement. When he refused to sign without first reading the statement, he was hosed with water and subjected to electric shocks and “hung” for a period of time. He did not receive food, nor was he allowed to rest. In a statement to the Osmaniye Criminal Court (Sulh Ceza Mahkemesi) dated 6 December 1994, the Public Prosecutor of Osmaniye requested that the applicant be remanded in detention. He stated that the applicant was suspected of collecting money for the PKK and disseminating propaganda against the indivisibility of the State. On the same day the applicant was brought before the Osmaniye Criminal Court of First Instance (Sulh Ceza Mahkemesi). Before the court the applicant denied the allegations. He requested his release. The court found no grounds for remanding the applicant and released him. One week later the applicant was taken from the town centre by the Anti-Terror Police. The police threatened him that he would be killed if he stayed in the area. He was further threatened that he would be taken to the police headquarters every two days. On 15 February 1995 the applicant filed a complaint with the Public Prosecutor of Osmaniye. He complained about the treatment to which he was subjected during his custody and his subsequent surveillance. He alleged that that the police “were coming to his address and disturbing him. They even threatened me indicating the flat of a Turkish police officer downstairs. They are provoking that family, encouraging them to commit an offence against us. I suspect that they listen to my house and my telephone.” The applicant deposed that he lived in fear of being killed, accused Constable Ali Karabıçak of being responsible and requested that an investigation be opened, that witnesses be heard and that Constable Ali Karabıçak be punished. In a statement dated 23 February 1995 to the Public Prosecutor of Osmaniye, Hatice Gül, who had been taken into custody by the security forces, stated that during her detention she had been questioned about the activities of the applicant. The police had asked her whether she had any information on the applicant’s connections with the PKK and whether she knew that the applicant had been assisting the PKK. In her statement , she stated that she had been persecuted and tortured during her detention and that a police officer made a threat against the applicant’s life. She stated that she too had lodged a complaint against Constable Ali Karabıçak. The Government dispute the applicant’s account. They maintain that the anti-terror department of Adana Police Headquarters carried out operations in Osmaniye against the PKK between 11 and 14 November 1994. The house of Yaşar Şimşek was searched during these operations and four video tapes were seised. These tapes depicted the PKK engaged in unlawful activities including raids. Yaşar Şimşek subsequently confessed to the police on 5 December 1994 and on the following day to the public prosecutor that the applicant had entrusted these tapes to him. The applicant’s house was searched on 4 December 1994 with his permission and he was taken into custody. The applicant denied the accusations put to him and remained silent when confronted with Yaşar Şimşek’s statement about the provenance of the video tapes. The applicant refused to sign the protocols indicating that he had been taken into custody and that he had heard Yaşar Şimşek’s oral statement regarding the video tapes. He wrote on both protocols “I cannot sign.” In his statement to the Public Prosecutor taken on 6 December 1994 the applicant denied that he had made Yaşar Şimşek watch the impugned video tapes and stated there was no serious dispute between the two of them. He asserted that a certain Abdullah Can had given him a video recorder but not for the purpose of watching PKK tapes. He declared that he did not have any sympathy for the PKK and had never viewed the tapes in question. The interrogation ended on 6 December 1994 whereupon the applicant was brought to a clinic for a medical check up. A medical report dated 6 December 1994 states that no traces of ill-treatment or torture were founded on the applicant’s body. On the same day the applicant was brought before a magistrate. He was released pending trial. The Osmaniye Public Prosecutor sent the preliminary investigation file to the Konya State Security Prosecutor together with a decision of non-jurisdiction dated 9 December 1994. The Public Prosecutor attached to the Konya State Security Court filed an indictment dated 13 March 1995 accusing the applicant of having violated Article 168 of the Turkish Penal Code in that he had made PKK video tapes available to third parties for unlawful propaganda purposes. On 15 February 1995 the applicant lodged a complaint with the Osmaniye Public Prosecutor alleging that he had been tortured during his detention and on being released was subjected to surveillance. The Public Prosecutor took a statement from the applicant the same day. The applicant accused Constable Ali Karabıçak of being responsible and of continuing to threaten him. The applicant stated that he only suspected that his house was being watched and his telephone tapped. He requested the Public Prosecutor to hear the evidence of Abdullah Toprak and Hatice Gül. The applicant declared that these witnesses had been forced to give evidence against him. The Public Prosecutor heard the statements of Abdullah Toprak and Hatice Gül on 23 February and 21 April 1995 respectively. Abdullah Toprak stated that the police had asked him questions when he was in the police station about the applicant’s involvement in the PKK. However, he could not say if the applicant had been tortured since the applicant had not been in the police station at the time. Abdullah Toprak mentioned that he was blindfolded when in detention. Hatice Gül stated that she did not know anything about the applicant’s allegations that he had been tortured. She stated that Constable Ali Karabıçak had questioned her and she had replied that she did not know the applicant. On 24 April 1999 the Public Prosecutor issued a decision not to bring charges against Constable Ali Karabıçak for lack of evidence. The decision was served on the applicant on 5 April 1995. In the decision the applicant was informed of his right to appeal against it. The applicant did not appeal and the decision became final on 21 May 1995. | 0 |
train | 001-60870 | ENG | ITA | CHAMBER | 2,003 | CASE OF E.P. v. ITALY | 4 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 8. The applicant was born in 1912 and lives in Mercato Sanseverino. 9. He is the owner of an apartment in Mercato Sanseverino, which he had let to M.S. in 1974. The lease was due to expire on 31 December 1983, but was extended until 31 December 1987 pursuant to Law No. 392/78. 10. In a writ served on the tenant on 4 September 1986, the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Mercato Sanseverino Magistrate. 11. By a decision of 30 September 1986, which was made enforceable on the same day, the Mercato Sanseverino Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1989. 12. On 1 August 1991, the applicant served notice on the tenant requiring him to vacate the premises. 13. On 15 October 1991, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 28 October 1991. 14. On 28 October 1991, the bailiff made an attempt to recover possession, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession. 15. On 18 November 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter. 16. On 18 February 1992, the bailiff asked the local police to provide their assistance in enforcing the order for possession and at the same time suspended the enforcement proceedings until the assistance would be granted. 17. At the beginning of 1998, the tenant spontaneously vacated the premises. 18. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
train | 001-70907 | ENG | POL | ADMISSIBILITY | 2,005 | WEIGT v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Antoni Weigt, is a Polish national who was born in 1942 and lives in Prudnik. He was represented before the Court by Mr T. Weigt, a lawyer practising in Bolesławiec. At the material time the applicant was an editor-in-chief of a local weekly “Tygodnik Prudnicki”. Apparently, on an unspecified date a municipal authority allocated certain municipal apartment to one of the local councillors, which caused widespread indignation in the local community. On 25 June 1995 the weekly published an article in which the applicant reported on a conflict between J.C., one of the local councillors, and the director of the local social assistance centre. The article contained a statement that “J.C. had instigated four or five supervision procedures in respect of the centre” and that his activities concerning the centre had been aimed at “delaying a public explanation of the conflict [between J.C. and the director of the centre] to the constituency”. On 27 August 1995 the weekly published an article entitled “Turning Things On Their Head” (“Odwracanie kota ogonem”) in which certain disagreements between J.C. and the director of the centre as to the policy which should be followed by that centre were described. On 17 September 1995 the weekly published another article, reporting on a session of the Prudnik Municipal Council, during which a motion to remove J.C. from his post of a member of the municipal executive board had been discussed. The article quoted certain arguments advanced by the councillors during the debate, referring to the lawfulness of the procedure and to various local controversies as they found their expression during the debates. It also summarised J. C.’s statements in the following way: “Consistent” J.C. once again presented his arguments. (...) He reiterated his objections concerning the Social Assistance Centre, threw in, for good measure, “a municipal apartment for one councillor”, [an issue of] premises for the “Tygodnik Prudnicki” – which he branded a “gang”. Many supervision procedures found his complaints about the Centre groundless, and [the question of the apartment and the premises] he had invented himself! Nothing like that had ever occurred. ” Another article on local politics, entitled “What’s up”, was published on 24 September 1995. In this article its author reported on the last meeting of the local municipal council and also purported to explain to the reader the subtleties of the local politics and personal conflicts behind them. Following these publications J.C. lodged a private bill of indictment with the Nysa District Court, charging the applicant with defamation in that he had published four articles blackening the plaintiff’s reputation. In a judgment of 16 October 1997 that court found that the applicant had committed a criminal offence of defamation punishable under Article 178 § 2 of the Criminal Code of 1969 and conditionally discontinued the proceedings, fixing a probation period of one year. It also obliged the applicant to apologise to the plaintiff in writing. The operative part of the judgment read as follows: “Having regard to the fact that the publication in September 1995 in issues Nos. 38 and 39 of Tygodnik Prudnicki, a weekly of which [A.W.] was an editor, of articles “A. against J.C.” and “What’s up” containing untrue information that J.C., who in the present case acted as a private prosecutor, had invented the issue of the [municipal] apartment and that he had ‘himself acknowledged that he had overstepped the limits of his competence by conducting many investigations on behalf of the Municipal Board, but without a relevant authorisation’ amounted to making public such allegations about the plaintiff’s conduct as could expose him to a risk of losing the public trust necessary for him to carry out his public function, amounted to a criminal offence provided for by Article 178 § 1 of the Criminal Code (...) discontinues the criminal proceedings against the accused and sets the period of probation for one year.” The court observed that the applicant had published in the weekly a number of articles on local politics. They were aggressive towards J. C. and had shown him in a bad light. It was suggested that he had a tendency to fantasise and to overstep the limits of his competence. It was also implied that he was vexatious and unreliable and had abused his powers. The texts and the charges contained therein could therefore expose J.C. to the risk of lowering him in public opinion. The court referred to the sub-titles of the text published on 17 September 1995, which had read as follows: “Mr C. forgot!”, “Personal ambitions are at play here”, “Detrimental to the interests of the municipality”, “He invented it himself!”. The court observed that these sub-titles well conveyed the essence of the author’s hostility towards J.C. The court noted that the article had made reference to some municipal apartment. It further noted that it was aware of the fact that a municipal apartment had in the past been assigned to one of the local politicians, a fact which created an uproar in Prudnik. The applicant had undoubtedly taken a certain shortcut when saying in the article of 17 September: “[the question of the apartment and premises] he had invented himself! Nothing like that had ever occurred. ” In this connection, the court referred to numerous pieces of evidence referring to the public debate concerning that apartment and concluded that in the light of this evidence the suggestion that J.C. had invented the whole story of the apartment was clearly erroneous. The court further observed that subsequently, on 24 September 1995, the weekly had published an article entitled “What’s up”, purported to explain to the reader the subtleties of the local politics. The article had contained the following statement on J.C: “He had himself admitted that he had overstepped his powers, having conducted many investigations on behalf of the municipal authorities, but without any relevant authorisation”. The court observed that J.C. had never admitted that he had been conducting any such investigations which could be established, for example, from the minutes of the session of the municipal council held on 7 September 1995. Hence, the reference to both the alleged non-authorised investigations and to the admission that he had allegedly overstepped his powers was clearly untrue. Having regard thereto, the court considered that the applicant had failed to observe his fundamental obligation as a journalist, in particular in that he had failed to check the veracity of information he had published. In the proceedings before the court he was unable to refer to any source on which he had based his pertinent statements. It was open to him to consult the detailed records of the sessions of the local council, which he had failed to do. In the absence of convincing evidence to support the applicant’s allegations and innuendos, the court concluded that when publishing the first two articles he had published untrue information, which amounted to a criminal offence of defamation punishable under Article 178 of the Criminal Code. Referring to the conditional discontinuation of criminal proceedings, the court observed that the offence was not dangerous and that the applicant did not have any criminal record. The applicant appealed, submitting, inter alia, that the judgment amounted to a breach of his freedom of expression. On 30 January 1998 the Opole Regional Court dismissed his appeal, considering that the assessment of the evidence by the lower court was not arbitrary. It observed that the applicant had failed to show that he had any factual basis for his allegations when publishing the articles. No evidence had been submitted to the court to show that J.C. had indeed admitted that he had overstepped the limits of his competence, as the applicant implied in the first article. Nor was it true that J.C. had invented the issue of the municipal apartment having been assigned to one local politician. The published statements being untrue, they amounted to defamation. The court also noted that under the case-law of the European Court of Human Rights freedom of expression covered the transmission of information but not of misinformation; conveying facts, not mendacious innuendos. Lastly, the court observed that the appeal referred to the applicant’s notes prepared for the purpose of writing the articles, but that the case was limited to the examination of the texts as they were eventually published, i.e to the untrue and laconic phrases used in the articles. On 23 November 2000 the Supreme Court, in a decision to which under applicable provisions of law no written grounds were prepared, dismissed the cassation appeal as manifestly ill-founded. Under Article 178 § 2 of the Criminal Code of 1969, applicable at the material time, whoever disseminated untrue statements about another person’s acts or character with an intention of lowering him or her in public esteem or of making him or her lose the public trust necessary for that person to carry out his or her public functions, committed a criminal offence punishable by a prison sentence of up to three years. Pursuant to Article 27 of the Code of Criminal Procedure of 1969, criminal proceedings could be conditionally discontinued, if the seriousness of the offence, punishable by a prison sentence of less than three years, was not significant, if the circumstances in which it had been committed had been established, if the perpetrator did not have a criminal record and if his personal circumstances and qualities justified a conclusion that he would respect the legal order during the probation period. Under Article 28, the court, when deciding to discontinue the proceedings for the probation period, could impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest. Under Article 29 of the Code, the court could fix a probation period of between one and two years, running from the date on which the judgment became final. Criminal proceedings could be resumed if during the probation period the offender disregarded the obligations imposed by the court, acted in flagrant breach of public order, or, in particular, committed a new criminal offence. | 0 |
train | 001-103426 | ENG | UKR | CHAMBER | 2,011 | CASE OF PLESHKOV v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva | 5. The applicant was born in 1960 and lives in Belgorod, Russia. 6. On 29 May 2003 a criminal case was opened against him, along with some other persons, on suspicion of trafficking in human beings, and on 31 May 2003 the applicant was arrested. 7. On 30 July 2003 the Kyivskyy District Court of Kharkiv (“the Kyivskyy Court”) released him subject to an undertaking not to abscond. 8. On 21 November 2003 the pre-trial investigation was declared complete and the case was sent to the trial court, which commenced the proceedings on 10 December 2003. 9. On 25 May 2004 the Kyivskyy Court, in a hearing in which the victims' representative took part, allowed the prosecutor's application for the applicant's (as well as the other co-defendant) remand in custody. The court agreed with the prosecutor's argument that the applicant had been putting pressure on the victims, which had led to changes in their testimonies. According to the applicant, his own argument, on which the court allegedly failed to comment, was that the changes in the victims' statements in the court might have been explained by the investigator's pressure on them in the course of the pre-trial investigation, which they were not any longer subjected to during the trial. The applicant was arrested in the hearing room. 10. He repeatedly and unsuccessfully requested to be released under an undertaking not to abscond. The applicant argued that there was no evidence of his guilt, that he had never faced any criminal charges before and had received some government awards. Furthermore, he referred to the facts that he had a permanent place of residence and elderly parents to take care of, and that his health had deteriorated in detention. 11. On 24 September 2004, 13 and 15 April, 31 May and 5 December 2005 the Kyivskyy Court rejected the applicant's requests for release. The reasoning of those rulings was practically identical. The court supported the prosecutor's opinion, which referred to the serious nature of the charges against the applicant and an inherent risk of his absconding. It further noted: “The court considers that the issue of changing the preventive measure is premature. The issue of the preventive measure [“of the penalty” – in the rulings of 24 September 2004 and 5 December 2005] will be resolved when the verdict is pronounced in the case and [the applicant] is convicted or acquitted.” 12. The applicant unsuccessfully complained about the length of the trial to the Council of Judges of Ukraine, to the Kharkiv Court of Appeal and to various other authorities. He was informed in reply that it was caused by the complexity of the case and the large number of victims, as well as by the need to handle numerous requests and petitions from the applicant. 13. On 31 July 2006 the Kyivskyy Court found the applicant guilty of trafficking in human beings and production and distribution of pornographic materials, and sentenced him to ten years' imprisonment, with prohibition on working in any film, video or computer programme production and distribution area. 14. Overall, the Kyivskyy Court held over sixty hearings. It issued rulings requiring the presence of the victims and witnesses, enforceable by the police, on some ten occasions. 15. On 13 February 2007 the Kharkiv Court of Appeal quashed that verdict and remitted the case to the same first-instance court for fresh examination. The main point of criticism was the vagueness of the verdict, including, in particular, the charges against the co-defendants, the classification of the films in which the victims had appeared as pornographic, and the conclusions that the victims had been both deceived and coerced by the co-defendants. The appellate court made a general conclusion that the investigation of the case by the first-instance court had been unbalanced and incomplete. It released the co-defendants under an undertaking not to abscond. 16. On 13 March 2007 the Kharkiv Court of Appeal decided to examine the case itself as a court of first instance. 17. On 12 April 2007 it remitted the case to the Kharkiv Regional Prosecutor's Office for additional investigation. 18. On 10 July 2007 the Supreme Court quashed the ruling of 12 April 2007. 19. On 27 September 2007 the Kharkiv Court of Appeal started the examination of the case. 20. On 4 and 16 October 2007 the court adjourned hearings on account of the applicant's failure to attend. 21. On 24 October 2007 it ordered the applicant's remand in custody, examination of the case being stayed until his whereabouts had been established. 22. The case remains pending before the Kharkiv Court of Appeal. 23. In his submissions to the Court, the applicant admitted he had absconded and gave as the reason that he did not trust the Ukrainian judiciary. 24. The relevant legal provisions can be found in the Shalimov v. Ukraine judgment, no. 20808/02, §§ 40-41, 4 March 2010). | 1 |
train | 001-81672 | ENG | TUR | ADMISSIBILITY | 2,007 | PAD AND OTHERS v. TURKEY | 3 | Inadmissible | null | 1. The applicants, Mansur Pad, Salim Ibrahim Manesh, Morad Afrasi, Ali Afrasi, Adel Keshavarz, Said Pourmola Borazan and Veysi Eli Mikail, are all Iranian citizens, apart from Veysi Eli Mikail, who is an Iraqi citizen. They all reside in Iran except for Mansur Pad, who lives in Sweden. They were represented before the Court by Mr Mark Muller, Mr Kerim Yıldız and Ms Anke Stock, lawyers practising in London. 2. The application concerns the alleged torture and killing of seven Iranian men from the village of Razgeh in the Margewar province of northwest Iran by Turkish soldiers on 7 May 1999. The victims of the alleged incident on 7 May 1999 were Vahab Pad, Kamfar Pad, Ghazi Afrazi, Changiz Afrazi, Jaader Ibrahim Manesh, Abdulhallkhleq Keshavarz and Vali Ali Hossain. 3. The applicants are, variously, brothers or fathers of the deceased, save for Said Pourmola Borazan, who claims to be a witness to the events and a friend of the victims. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On Friday 7 May 1999, a holiday in Iran, the seven men referred to above and the applicant Said Pourmola Borazan, all from the village of Razgeh, went on horseback into the mountains near their village (towards the Nari valley) to collect wild vegetables and fruit, such as mushrooms and rhubarb. 6. When they reached the top of Mount Baragawr, which was about 500 metres from the Turkish border, they heard the sound of helicopters. Two fighter helicopters circled overhead a few times and opened fire on the men. Said Pourmola Borazan's horse was killed by a rocket fired from the helicopters. The helicopters landed and the villagers were surrounded by at least forty Turkish soldiers. Seven of the villagers hid together under a rock, except Said Pourmola Borazan, who hid 500 metres away from the others and covered himself with vegetation and snow. 7. The Turkish soldiers captured the seven men on the Iranian side of the border but did not find Said Pourmola Borazan. The alleged facts are accordingly based on the latter's eyewitness evidence. 8. The seven men were handcuffed and taken by force across the border, about 300 metres into Turkish territory, in the region of the village of Halana. They were beaten and cut with knives. The soldiers then made them lie down on the ground and shot them dead with machine guns. According to Said Pourmola Borazan, the Turkish soldiers had forced the men to put on Kurdish costumes and placed guns beside them so that they could claim to have killed some terrorists. 9. Said Pourmola Borazan stayed in his hiding place from about 12 noon or 1 p.m. until approximately 9 p.m., by which time it had turned dark. He emerged from the hiding place and looked around to see if anybody was alive. He then ran back to the village of Razgeh. He informed the relatives of the seven men about the incident. The relatives of the victims and Said Pourmola Borazan went into the mountains to recover the corpses. The Iranian authorities, who were informed of the deaths, granted permission for burial. The funerals took place on 9 May 1999. 10. The applicant Sayyed Majid Pad stated that he had become anxious when the men had not returned by the evening of 7 May 1999. Later, they heard that the Turkish soldiers had captured some Iranians. It took people from the village three days to find the bodies and to bring them back to the village. He claimed that his son Kamfar Pad had forty-five bullet wounds and that his elder son Vahab Pad had received one hundred and ten. Further, Vahab's fingers had been cut. He also alleged that Vali Ali Hossein's hands and legs had been broken in several places and his legs cut to pieces. 11. Two or three days after the burial of the bodies, Iranian government officials came to the village. The applicant Said Pourmola Borazan accompanied the officials to the place where the incident had taken place. He reported the incident to the officials. 12. Sayyed Majid Pad stated that the Iranian Deputy Minister of the Interior visited the village after the incident. The Iranian Government then contacted the Turkish Government for an explanation about the events. The Turkish Government admitted their responsibility in relation to the incident and expressed their apologies for it. 13. Meanwhile, Özgür Politika, a pro-Kurdish newspaper published in Germany, and Orumiyeh Message, an Iranian regional newspaper, reported the incident in their editions of 10-13 May and 16 May 1999 respectively. According to Orumiyeh Message, the Ministry of Foreign Affairs of Iran summoned the Turkish Ambassador to make an official protest about the incident and the violation of border agreements between the two countries. The Ambassador was reportedly asked to inform the Turkish Government of the protest and to inform the Ministry of Foreign Affairs of the outcome. 14. The families of the seven men filed complaints with the Iranian authorities. However, they were not informed of any action taken by the latter. A request by the families to obtain a copy of autopsy reports was refused by the Iranian authorities. The families took the matter up with their parliamentary representatives. 15. On 19 May 1999 Mr Ghani Zaneh, an MP for the Orumiyeh province, and Mr Bahaddin Adab, an MP for the Sanandaj province, wrote to the President of Iran, Mr Khatami, requesting that the incident be investigated and followed up through appropriate international channels. They further requested the Ministry of Foreign Affairs and the Ministry of the Interior to investigate the incident and to send a delegation to the region. 16. The applicant Said Pourmola Borazan claimed that since the incident, he had been seriously affected and had attempted to commit suicide on several occasions. As the applicants and the families of the deceased were not informed of any action taken by the Iranian authorities, the first applicant, Mansur Pad, contacted the Iranian Embassy in Sweden with a view to obtaining information about the outcome of the investigation by the Iranian authorities. However, no response was received. 17. The applicants' legal representative also wrote to the Iranian Embassy in London on 25 January 2000. No response was received to that letter either. 18. As no response was forthcoming from the Iranian authorities, on 9 June 2000 the applicants' legal representative wrote to various Turkish authorities requesting an investigation into the incident and the institution of criminal proceedings against the perpetrators of the crime. In particular, he brought the alleged events to the attention of the following authorities: 19. The applicants received no response to their petitions and alleged that the Turkish authorities had failed to carry out an effective and adequate investigation into their complaints. 20. Subsequent to the impugned events, the Turkish Government made several attempts to offer compensation to the applicants through the Iranian authorities. The authorities of the Turkish Government placed the applicants under considerable pressure to accept the compensation, including threats of violence and daily visits from the Iranian authorities. The Iranian Government also imprisoned the eighth applicant on four separate occasions, in an attempt to silence him and prevent him from telling the truth about the incident. Mr Abdel Khalegh Pad, the brother of the deceased victims Vahab and Kamfar Pad, was harassed by the Iranian Government for taking steps to pursue the investigation into their deaths and was forced to flee the country and take refuge in Sweden. 21. Prior to the alleged events in question, the authorities were informed that a terrorist group would be entering Turkey with arms and equipment. Accordingly, the authorities planned a series of operations in order to prevent the entry of this terrorist group into Turkish territory. 22. On 5 May 1999 operations started in the area between ŞemdinliTekeli and the Iranian-Turkish border. 23. On 6 May 1999, at around 10 a.m., the security forces received information to the effect that an armed group, accompanied by animals and mules loaded with arms and equipment, had entered Turkey at a location 1.5 km away from border stone no. 496 in the Zona Stream area. 24. Given that the location in question was usually used by terrorists making their entry into Turkey in violation of border regulations, the security forces, which were carrying out a search operation in the Alan area at the relevant time, arrived at the scene by helicopter. Thereupon, the members of the suspicious group began to run away in various directions and did not stop despite warning shots from the helicopters. Considering that the land could have been mined and that the terrain was rough, the helicopters did not land but opened fire in order to prevent suspects from fleeing. 25. Next day, after taking the necessary security measures, the security forces carried out a search at the scene of the incident. They found thirtytwo dead mules, one G-3 rifle with one cartridge clip and one hundred and thirty cartridges, three binoculars, one laser meter, one sleeping bag, a large quantity of sugar and flour, cassettes and 2,200 sheep and goats. Although no corpses were found at the scene of the incident, the security forces noticed that there were traces of blood leading in the direction of the Iranian border. Therefore, they concluded that some of the terrorists had either been wounded or their corpses had been carried away by others. 26. On 12 May 1999 the Turkish Ambassador to Iran was summoned to the Iranian Ministry of Foreign Affairs to provide information on the killing of seven Iranian men on 7 May 1999 while they were engaged in cross-border trade. From this the Turkish authorities understood that the seven persons of Iranian origin had been killed during the operation in question. However, there was no allegation by the Iranian authorities that the Turkish security forces had violated Iranian borders. Contrary to the applicants' allegations, no cross-border operation had taken place and the security forces had not arrested or detained anybody in the course of the events. 27. Subsequent to the events of 7 May 1999, the Turkish and Iranian authorities held a number of meetings. In order to maintain good relations between the two States, the Turkish Government agreed to pay the amount of compensation claimed by the Iranian authorities, but stated that such payment should not be treated as an admission of the ill-treatment allegations. 28. On 9 June 2000 the applicant's representative in the United Kingdom, Mr Philip Leach, filed a petition with the Şemdinli Chief Public Prosecutor's office asking for information about the state of the investigation into the killing by the Turkish army forces of the applicants' relatives. 29. In a letter of 7 November 2000, addressed to Mr Philip Leach, the Şemdinli public prosecutor, Mr İsmail Sevinç, stated that the Şemdinli District Governor's office had declined to grant leave to bring a prosecution under Law no. 4438. He gave the information that this decision not to prosecute could be challenged before the Van Regional Administrative Court and that the Chief Public Prosecutor's office could proceed with prosecution should the administrative court set aside the District Governor's decision. 30. This letter was served on the applicants, save for Said Pourmola Borazan, by the Turkish Consulate General in Orumiyeh in Iran. The applicants affixed their fingerprints to a document stating that they had received the letter of 7 November 2000 pertaining to the public prosecutor's decision not to prosecute. 31. On 30 May 2002 the Turkish Government transferred 175,000 United States dollars (USD) to the Ambassador of the Islamic Republic of Iran to be paid to the relatives of the deceased. This amount was received by the Iranian authorities acting as the representatives of the applicants at the latter's request. The parties signed a protocol which stated: “The parties were unable to carry out a joint investigation to identify the perpetrators of the killing of seven citizens of Iranian Islamic Republic on 6 May 1999 nearby border stone no. 499 at the Turkish-Iranian border. In order to alleviate the grief of the families of the Iranian citizens who lost their lives at the common border, the Republic of Turkey agreed to pay in final settlement USD 25,000 to each family of the deceased, and in total USD 175,000. The Islamic Republic of Iran received the amounts to be paid for delivery to the said families and considered the issue settled in all respects. This agreement will not serve as a precedent for any other border incident. On 30 May 2002, USD 175,000 was delivered to Ambassador Mohammad Hossein Lavasani at a meeting in Ankara...” 32. Meanwhile, the Iranian authorities exchanged a number of letters with the families of the deceased regarding the payment of compensation by the Turkish Government. In a letter from the Department of the Interior to Mr Mirlohi, who was in charge of judicial and parliamentary affairs, it was noted that the Turkish authorities had paid compensation for the killing of seven Iranian citizens. However, it was pointed out that the deceased had been regarded as criminals under the laws of the Islamic Republic of Iran given that they had been involved in trafficking. 33. In a letter from the Deputy Minister and Head of Security to the Department of the Interior it was stated that full payment of the compensation in question to the families of the deceased would encourage law-breaking and lead border inhabitants to commit the offences of trespassing and trafficking. It was therefore decided to pay a maximum amount of 10,000 tomans (USD 10,953) to each family in order to prevent the recurrence of similar crimes in future. A representative of the Governorate of Orumiyeh visited the families of the victims to deliver those amounts. However, the families refused to take the money and told the representative that they had instructed a British lawyer, Mr Philip Leach, to take the matter to the European Court of Human Rights. 34. The Criminal Code in force at the material time made it a criminal offence (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); (b) to subject an individual to torture or ill-treatment (Articles 243 and 245); and (c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450). Under Article 102 of the Criminal Code, taken in conjunction with Articles 243 and 245, a prosecution for an offence of ill-treatment or torture by a public official must be brought within five years. 35. If the suspected authors of these criminal acts were military personnel, they could also be prosecuted for the above-mentioned crimes. Proceedings in these circumstances could be initiated by the persons concerned (nonmilitary) before the competent authority under the Code of Criminal Procedure or before the suspected persons' hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 36. Article 165 of the Code of Criminal Procedure provides that a complainant may appeal against the decision of a public prosecutor not to institute criminal proceedings. The appeal must be lodged, within fifteen days from the date of notification of the decision to the complainant, with the president of the assize court within whose territorial jurisdiction the public prosecutor's activities fall. 37. Section 32 of the Notification Act (Law no. 7201) provides that notification which was not served in accordance with the law may be deemed valid if the person concerned learns of its existence. The date of notification is the date on which that person claims to have learned about it. 38. By section 3 (a) of the Advocacy Act, only Turkish citizens are authorised to practise as lawyers in Turkey. | 0 |
train | 001-59100 | ENG | CYP | CHAMBER | 2,000 | CASE OF EGMEZ v. CYPRUS | 1 | Violation of Art. 3;No violation of Art. 5-1;No violation of Art. 5-2;No violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 13;No separate issue under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Antonio Pastor Ridruejo | 9. The Commission, in order to establish the facts which were disputed by the parties, conducted an investigation pursuant to former Article 28 § 1 (a) of the Convention. To that end, it examined a series of documents and appointed three delegates to take the evidence of witnesses at a hearing in Cyprus between 22 and 26 March 1999, which both parties attended. The Commission made the following findings as to the facts. 10. The applicant lived in the village of Louridjina/Akıncılar in the part of Cyprus that is not controlled by the government of the respondent State (“the northern part”). He owned fields in the buffer-zone that separates the northern part from the area controlled by the government of the respondent State (“the government-controlled area”). 11. Before 7 October 1995 the applicant had several meetings with undercover agents of the security forces of the Republic of Cyprus in the buffer-zone. At these meetings the possibility of trading in drugs was discussed. It was finally agreed that the applicant would deliver a quantity of drugs to two undercover agents, Mr K. Kiriakidis of the Anti-Drug Service (Ipiresia Dioxis Narkotikon – IDIN) and Mr K. Miamiliotis of the Central Intelligence Service (Kendriki Ipiresia Pliroforion – KIP). The delivery was scheduled to take place in the government-controlled area near the Athienou to Kosi road on 7 October 1995. The meeting point was adjacent to the buffer zone. 12. On the evening of 7 October 1995 a number of security agents, including members of the Special Forces (Mihanikiniti Monada Amesis Drasis – MMAD), hid around the meeting point. They had been briefed that the applicant was potentially very dangerous. The aim of the operation, which was organised by IDIN, was to arrest the applicant in flagrante delicto. 13. The meeting took place as planned and the two undercover agents tried to immobilise the applicant while he was delivering the drugs. The applicant hit them and started running towards the buffer-zone. Two of the MMAD officers present, Mr P. Andoniou and Mr Th. Koumas, gave chase. Mr Andoniou was the first to catch up with the applicant. A brief scuffle ensued in the government-controlled area. The applicant kicked Mr Andoniou who kicked him back. Then Mr Andoniou hit the applicant twice on the head with his firearm, once on the right side and once on the left. Mr Koumas threw the applicant to the ground and a third MMAD officer, Mr A. Ioannidis, who had arrived in the meantime, put a pair of handcuffs on him. Then the applicant was surrounded by a number of officers some of whom had participated in his arrest. 14. The head of the operation decided that the applicant should be taken in a car to Larnaka police headquarters. Apart from the driver, there were three officers in the car: Mr Andoniou, Mr Ioannidis and Mr Y. Superman, of IDIN. Mr Ioannidis sat with the applicant in the back of the car. 15. When the car arrived at the police headquarters, the decision was taken to take the applicant to Larnaka General Hospital. A fifth officer, Mr A. Vrionis, boarded the car for the second leg of the journey. 16. When the applicant arrived in the hospital he was fully conscious, and able to communicate in Greek. Mr Vrionis asked him questions concerning his meeting with Mr Kiriakidis and Mr Miamiliotis and the selling of drugs. He noted the answers on a hospital form. 17. The applicant was successively examined by Dr H. Panayiotu, Dr S. Loizou and Dr D. Orphanidou in Larnaka Hospital on the evening of 7 October 1995. 18. On his admission to the hospital, the applicant had bruises on the face, a clean laceration to the ear, a clean laceration to the buttock, parallel injuries to the feet and long, linear, clean, uninterrupted injuries to the back in a quasi-geometrical pattern. 19. On 8 October 1995 officers of the Nicosia police force started an investigation into the case. 20. On the afternoon of the same day, the Nicosia District Court held a hearing in Larnaka Hospital in the presence of the applicant. The judge, relying on the existence of a reasonable suspicion, the risk of absconding, the number of witnesses to be interviewed by the police and the severity of the charges, remanded the applicant in custody for eight days. 21. On 9 October 1995 three police officers requested and obtained Dr Orphanidou's permission to question the applicant. The police officers, one of whom spoke Turkish, informed the applicant that he was suspected of drug trafficking. The applicant signed a statement. 22. On the same day the applicant was examined by Dr H. Hatziharu. 23. On 10 October 1995 the applicant met his lawyers, Mr N. Pelides, who practised in the government-controlled area, and Mr A. Erdag and Mr A. Mentes, who had come from the northern part. The meeting took place in the applicant's room in Larnaka Hospital in the presence of police officers. 24. On the same day the police sought and obtained permission by Dr Hatziharu to examine the applicant. The applicant signed a supplementary statement. 25. On 11 October 1995 the applicant was transported to Nicosia General Hospital. 26. On 13 October 1995 the applicant was visited by two members of the United Nations Force in Cyprus (UNFICYP): the United Nations Senior Medical Officer, Lieutenant-Commander H. Marquez, and Superintendent W. Harrigan of the United Nations Australian Police Force. 27. On 16 October 1995 the Nicosia District Court held a hearing in Nicosia Hospital. The applicant was assisted by an interpreter and was represented by Mr Pelides. The judge, considering that the police had used the first warrant properly and that it was necessary that the detention should be continued for the police to be able to complete their investigation, remanded the applicant in custody for another eight days. 28. On 17 October 1995 the applicant was transferred to Likavitos police station. On the same day he received a visit there by his wife, Dr Marquez, Superintendent Harrigan and Lieutenant-Colonel J. Tereso, Chief Humanitarian Officer of UNFICYP. 29 30. On the same day the applicant appeared before the Nicosia District Court. He was represented by two counsel, Mr Pelides and Mr G. Kadri, the latter practising in the northern part. The charges were read out. The Attorney-General informed the court in writing that, given that there had been a police investigation, no preliminary inquiry was necessary. The police submitted the case file, which had also been sent to the applicant's lawyers. The applicant's lawyers stated that they reserved their position as to the applicant's defence. They also stated for the record that the applicant had been ill-treated during his arrest and transport to Larnaka police headquarters. The court committed the applicant for trial on 4 December 1995. The applicant's lawyers asked for his provisional release. The court ordered his continued detention because of the risk of absconding, the severity of the charges he was facing and the possibility that he would be convicted. 31. The applicant was transferred to Nicosia Prison. On 25 October 1995 he was visited by Dr K. Bekiroglu, a private practitioner from the northern part. 32. On 1 November 1995 Mr Andoniou, Mr Koumas, Mr Miamiliotis, Mr Kiriakidis and Mr S. Georyiu of KIP were rewarded with a promotion for their contribution to the applicant's arrest. 33. On 9 November 1995 Lieutenant-Colonel Tereso informed the Presidential Commissioner for Humanitarian Affairs of the Republic of Cyprus of the following: “On 13 October 1995, a week after his arrest, the United Nations Senior Medical Officer examined Mr Yusuf [see paragraph 35 below] at the Nicosia General Hospital and made the following observations: His head and face were swollen with many bruises on his cheeks and lips. His forehead was bruised with two recent scars. His eyes were bloodshot, swollen and discoloured. He had a cut on his left ear which was recently stitched. This wound may have been inflicted with a knife or a similar sharp object. He had a superficial wound to his right wrist which was caused by his handcuffs. He had abrasions to his left forearm, right shoulder and both knees which could indicate an involvement in a fight or a struggle. He had two cuts on his right buttock which were 1 cm and 3 cm long and recently stitched. These wounds were probably inflicted with a knife or sharp object. On his back he had many superficial, horizontal marks, particularly in his lower lumbar region. These scars on his back may have been caused by whipping or beating. He complained of a pain in his abdomen but it must have been muscular pain because the abdomen did not show signs of internal injury. Such muscular pain could be consistent with punching or kicking. Yusuf was handcuffed to his hospital bed. It is the considered medical opinion [sic] that his injuries could not have been self-inflicted and that his injuries are consistent with being ill-treated in a fight or severely beaten, the condition of his wounds suggest that they were inflicted during the previous week and his injuries indicated that they may have occurred over a period of time as his wounds were at different stages of healing.” 34. On 1 December 1995 the AttorneyGeneral filed with the Nicosia District Court a nolle prosequi in the applicant's case, in accordance with Article 113 § 2 of the Constitution. 35. The applicant was released on the same day. Before his release he signed the following complaint to the Ombudsman of the Republic of Cyprus: “I, the undersigned Osman Yusuf (Erkan Egmez), hereby complain that as I was working in my market garden I was arrested by Greek Cypriot policemen and tortured. On arresting me they hit me over the head with a baton or a heavy metal or wooden object. They kicked and punched me in the abdomen. They stabbed me five or six times in the buttocks with a knife. I was also injured. They cut off my ear with a knife. Between eight and twelve men attacked me and beat me. I lost consciousness. When I came to, they were cutting the soles of my feet with a knife or razor blade. I was screaming with pain. They hit me in the face and wounded me under the left eye. Blood started to flow from the wound. I was injured on the forehead, which also began to bleed. Someone (a policeman) thrust his fingers into my eyes as hard as he could. They didn't stop kicking me. One of them hit me with his gun. I had injuries to my shoulders, which also began to bleed. They split my lips. My left eye was swollen up so much that I could no longer see. I was unable to speak and have absolutely no recollection of them taking a statement from me at the hospital. I therefore complain about all of these acts of torture and inhuman acts which they inflicted on me and respectfully request you to open an investigation. PS I am at your disposal for any further information on this subject.” The complaint was countersigned by a UNFICYP officer. 36. The applicant returned to the northern part immediately. On the same day he was visited by a journalist who photographed his wounds. 37. On 4 December 1995 there was a hearing before the Nicosia District Court. The prosecution did not appear. The applicant, who was not present, was represented by Mr Kadri, who declared that he spoke Greek. The court found that, given the nolle prosequi filed by the Attorney-General, the applicant was discharged. 38. Some time after the applicant's release the Kıbrısli Türkün Sisi magazine published in its 15 December 1995-15 January 1996 issue the following statement by the applicant: “I grow fruit and vegetables that are irrigated in a market garden to which I hold title. On 2 October 1995, towards 4.30 p.m., I went there to turn off the irrigation system, which is near the greenhouse. As I went past the apparatus, I saw two people coming towards me. When they approached, they said to me in Greek: 'Stay where you are. Police.' I realised that they meant me harm and started to run to the village. As I did so, they began to fire at me with automatic weapons equipped with silencers. I heard a shot fly past my head and immediately dropped to the ground. At that point they set about me. They didn't say anything. They hit me. At some point I looked up and saw that there were ten to twelve of them beating me. They did so for a long time. Then I passed out. At the last minute I received a shock. I don't remember whether they used an electric baton or gas. I was semiconscious. In the meantime, they had dragged me and thrown me into the back of a jeep. When it started up, they continued to hit me. Then they began to torture me somewhere; I didn't know where we were. They said that I was an MİT [the Turkish national intelligence agency] agent, asked me whether there were other agents in the area, from whom I received my orders and all sorts of absurd questions of that kind while continuing to beat me without respite. At some point, a masked man arrived with a cutting instrument, something like a knife. He said that if I didn't speak he would cut my ear off, that if I didn't speak he would drink my blood. I must have blacked out as, when I came to, he was cutting the soles of my feet with a cutting instrument. I couldn't see because I was tied up. I was in such pain that I passed out several times. Each time I came to, the torture would start up again. At some stage they laid me out on my back and pushed something like a bayonet into the upper side of my thigh. I screamed and passed out again. They carried on torturing me like that. I couldn't cry out any more. But they continued to torture me like that. When I came to for the last time, I realised that I was somewhere else. They were no longer hitting or cutting me. I couldn't see out of one eye at all, but with the other, which was injured, I tried to make out where I was. Later, I was told that after the torture session I was taken to Larnaka Hospital, but the hospital authorities, seeing how serious my condition was, had me transferred to Nicosia Hospital. I have no recollection of that whatsoever. I do not recall being transferred from Larnaka to Nicosia. I have no idea how many days went by in the meantime. They gave me painkilling injections. At some stage they put a table and chairs in my room at the hospital. Two police officers and a judge then came in. When the judge saw the situation he left the room. As he was leaving, I heard him say something about a lawyer. As I was later to learn, it was decided that I was under arrest. Another day the police officers again brought a table and chairs into my room at the hospital. I remember the second time better. I was lying in my bed. I had one hand handcuffed to the bed and an intravenous drip attached to my other arm. My feet were of course also attached to the bed. On this occasion the judge arrived with some lawyers. There were about twenty people in the room, most of them policemen. The judge had ordered that I be held in detention pending trial for eight days so that questioning could continue. As he left the room, the judge turned to me with a look of pity before walking out. ...” The statement was accompanied by five of the photographs of the applicant's wounds taken on 1 December 1995. At least some of them had been “retouched”. 39. On 5 January 1996 the Ombudsman met the applicant at the Ledra Palace, a hotel situated in the buffer-zone in Nicosia. The applicant was assisted by Mr Kadri. 40. On 17 January 1996 the applicant addressed the following letter to the President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT): “When I was attacked by a team of armed Greek-Cypriot policemen in my field in the buffer-zone, I was first beaten indiscriminately until my senses were numbed and I passed out. When I regained consciousness, I was in a small room surrounded by uniformed men who verbally abused, intimidated and threatened me. There the Greek-Cypriot police asked me to sign a statement to the effect that 'President Rauf Denktaş is intransigent, does not want peace and as a leader is misleading the Turkish-Cypriot people'. In return, I was offered money, a house and a job in what they called 'the free areas', i.e. South Cyprus. I refused without hesitation. They got angry and started hitting and beating me again. I thought I would be beaten to death. I was punched and slapped across my face. Suddenly one policeman held my head tightly and another cut my ear. I totally blacked out. I came to my senses in a hospital. I was on a stretcher, chained and handcuffed. Again several policemen in civilian clothes approached me, their mouths full of profanity and threats, and again started hitting. They also pressed their hands heavily on my eyes, which really hurt. As a result of such pressure my eyes got bloodshot. In the middle of this ordeal a Greek-Cypriot nurse protested. She was shouting: 'This is enough ... do not hit ... he is wounded ... you brought him here for treatment but you are killing him. He is a human being. This is a sin, even if he is a Turk ... do we have the right to treat him this way, a wounded and chained man ...' The police left me and walked towards the nurse. The Greek-Cypriot police were obviously well-trained and professional in torture methods. I don't even recall if and when I gave a statement. But I recall that twice the Greek-Cypriot police made me sign false confession papers accepting Greek-Cypriot accusations. I was branded a 'dangerous smuggler' and a Turkish-Cypriot 'spy'. In the hospital I was in chains, handcuffed to a bed and put on a drip and continuously given painkillers. The pain was excruciating. For a long time my bruised jaw hurt badly. I had difficulty even drinking water, let alone chewing. The Greek-Cypriot court was brought twice to the hospital, once on a Sunday, because they were ashamed to publicly take me to court. ...” 41. On 8 February 1996 the President of the CPT requested the applicant to keep him informed of the Ombudsman's investigation. 42. The Ombudsman, in the course of his investigation, questioned, among others, the police officers involved in the applicant's arrest, the Greek-Cypriot doctors who had examined the applicant and Dr Marquez. On 25 April 1996 he issued his report. In respect of his 5 January 1996 meeting with the applicant he recorded the following: “At the meeting, Mr Egmez said that late afternoon on 7 October 1995, when he was busy watering his tomatoes in his vegetable garden in the Louridjina region, two strangers in civilian clothes approached him, crossed the 'border' and threw him to the ground without uttering a word. Afterwards, when he next opened his eyes, he found himself in hospital. He said that he had probably received a blow to the head in order to be knocked out. He had not tried to get away. Despite my repeated questions, Mr Egmez has not provided me with details regarding what exactly happened, the circumstances or what had happened to him. He said that he did not remember. He has also said that he has no recollection of having made a deposition on 9 October (two days after his arrest), of being visited by his three lawyers (Mr N. Pelides and two Turkish-Cypriot lawyers) at Larnaka Hospital the following day, 10 October, of making a further deposition that same day or of being transferred to Nicosia Hospital. As I asked him how he had remembered all he had put in the letter [he had addressed to the Ombudsman on 1 December 1995], he replied: 'What I know is that I was in physical pain but when I found myself in hospital and came to I still had blood running down by my eye. That was when I realised I had injuries to my ear, the soles of my feet and elsewhere on my body. The cuts to my feet were so bad that I am still unable to walk.' At the end of our meeting, Mr Egmez handed me some items, including a copy of the magazine entitled Kıbrısli Türkün Sisi, first year, no. 5, 15 December 1995-15 January 1996.” 43. According to the Ombudsman's report, the applicant had been ill-treated on the following two occasions: first, by a group of MMAD officers, amongst whom Mr Andoniou, Mr Koumas and Mr Ioannidis, during his arrest after he had been immobilised and, secondly, in the car that transported him from the place of arrest to Larnaka police headquarters when he was in the company of Mr Andoniou, Mr Ioannidis and Mr Superman. The Ombudsman considered that, on both occasions, the officers involved had acted with unprecedented brutality and without any respect for human life and dignity. The Ombudsman transmitted his report to the Council of Ministers, Parliament and the Attorney-General, in accordance with section 6(9) of the Laws on the Ombudsman. 44. No criminal or other proceedings were instituted against any of the police officers involved in the applicant's arrest. 45. The Government accepted the facts as established by the Commission. They added that it was the AttorneyGeneral who had encouraged the applicant to make the complaint to the Ombudsman and who had then transmitted the complaint, together with Lieutenant-Colonel Tereso's letter of 9 November 1995, to the Ombudsman on 4 December 1995. 46. The applicant questioned the Commission's findings of fact. In his view, the delegates had approached his case with a particular state of mind. He pointed out in this connection that, during the taking of evidence, they treated him as a drug trafficker, as opposed to a person suspected of drug-related offences. The applicant also submitted that the delegates were wrong in admitting vague descriptions of the events by the police officers involved in the incident. Finally, he pointed out that the delegates failed to pursue certain lines of inquiry. 47. The applicant's version was that he was not involved in drug trafficking. He was arrested in the buffer-zone by a large number of police officers in the presence of journalists. The police officers subjected him to physical violence before his admission to hospital in order for him to make a confession. He was under the influence of drugs when questioned. Finally, the decisions remanding him custody did not contain reasons. 48. The applicant further claimed that, as a result of the ill-treatment to which he had been subjected, he was unable to work. He had developed serious psychological problems – for example, he could not submit himself to any external authority –, could not stand and had become bulimic and diabetic. In support of his allegations he submitted two reports by Dr S. Ramadan, a psychiatrist from the northern part, one dated 26 July 1996 to the effect that the applicant suffered from “post-traumatic reaction” and needed lengthy treatment, and another dated 21 December 1998 to the effect that “having considered the treatment applied and the lengthy period that had passed since then, [the doctor was] of the opinion that the applicant's illness had become permanent”. 49. Article 113 § 2 of the Constitution of Cyprus provides: “The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings of an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under him and in accordance with his instructions.” 50. Article 172 of the Constitution provides: “The Republic shall be liable for any wrongful act or omission causing damage committed in the exercise or purported exercise of the duties of officers or authorities of the Republic. A law shall regulate such liability.” 51. Section 6 of the 1991 to 1995 Laws on the Ombudsman provides: “(7) If at the end of an inquiry ... the Ombudsman forms the conclusion that prejudice or injustice has been caused to the person concerned, he includes in his report a recommendation to the competent authority for the reparation of the prejudice or the redressing of the injustice ...” “(9) Any other provisions in this Law notwithstanding, if at the end of the inquiry ... the Ombudsman reaches the conclusion that the action complained of violated the human rights of the person concerned and could constitute a criminal offence, he transmits a copy of [his] report ... to the Council of Ministers, the House of Representatives and the Attorney-General of the Republic.” 52. Section 9(5) of the 1991 to 1995 Laws on the Ombudsman provides: “No testimony or reply to a question or statement given or made by an official or any other person in the course of an inquiry by the Ombudsman can be used as evidence against another person in court or in another inquiry or procedure.” 53. In most criminal cases the Attorney-General gives his consent for a preliminary inquiry not to take place. In such cases, a copy of the statement of each prosecution witness is served on the accused or his lawyer. The court then decides whether to commit or not without a preliminary inquiry. | 1 |
train | 001-76684 | ENG | BGR | CHAMBER | 2,006 | CASE OF DOBREV v. BULGARIA | 4 | Violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 3;Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 7. The applicant was born in 1978 and is a resident of Varna. At the time of the events, he lived in Plovdiv. 8. On 17 August 1999 a burglary was committed where, inter alia, a television and a video recorder were stolen. 9. On an unspecified date a preliminary investigation was opened. 10. On 26 August 1999 the apartment where the applicant was living was searched by the police, with the apparent subsequent approval of the Prosecutor's Office. Neither the applicant nor any other representative of the household was present. The search was conducted in the presence of two witnesses, neither of them was indicated to be the residence's manager or a representative of the municipality. Various items were seized among which were three photo cameras, a hi-fi system and a wrench. 11. On the same day, 26 August 1999, the applicant was arrested in Plovdiv and taken into police custody. He was then transferred to Pazardzhik. 12. On 28 August 1999, under an order issued by an investigator and approved by the Prosecutor's Office, the applicant was placed under twenty-four hours' preliminary detention as of 5 p.m. and held at the Pazardzhik Regional Investigation Service. The applicant was suspected of having committed the burglary on 17 August 1999 because the stolen television and a wrench, allegedly used to perpetrate the offence, had been found in his apartment. In addition, at the time of his arrest the applicant had apparently attempted to abscond. 13. On 29 August 1999 the Prosecutor's Office extended the preliminary detention of the applicant for another two days until 5 p.m. on 31 August 1999. 14. On 31 August 1999 the applicant, together with two other individuals, was charged with having committed the burglary of 17 August 1999. He was remanded in custody upon a decision of an investigator which was confirmed later in the day by the Prosecutor's Office. In ordering the remand in custody, the investigator stated that the applicant lacked a permanent address, that he had committed numerous other burglaries, that he might re-offend and that he might abscond as he had apparently done in 1998 when a national arrest warrant had been issued against him. 15. On 8 October 1999, under an order issued by an investigator, the charges against the applicant were amended to include another four burglaries and his detention on remand was maintained. In ordering the continued detention, the investigator cited the gravity of the offences with which the applicant had been charged, the likelihood that he might abscond and his personality. 16. On 12 November 1999 the applicant appealed against his detention. He maintained that his continued detention was unwarranted as there was no danger that he would abscond or re-offend because, inter alia, he had a permanent address in another city and his brother could pay his bail. The applicant also relied on Article 5 of the Convention in his submissions. 17. The Pazardzhik District Court dismissed the applicant's appeal on 18 November 1999. The court found that the applicant had been charged with a serious offence which warranted mandatory detention. In addition, the court concluded that the applicant might abscond because he did not have any personal identity documents, had no permanent address and was apparently residing in an apartment rented by one of his friends. It also found that it was likely that he would re-offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous one-year suspended sentence. In respect of the arguments pertaining to Article 5 of the Convention, the court examined them and found that the applicant's continued detention was in conformity with the exceptions provided in the said provision. 18. The applicant filed another appeal against his detention on 22 November 1999 arguing that there was no longer a danger that he might abscond or re-offend because his brother was willing to pay his bail, support him financially and provide him with employment. 19. On 26 November 1999 the Pazardzhik District Court dismissed the applicant's appeal. The court found, inter alia, that the applicant had failed to provide evidence that he even had a brother and was unable to indicate where the said brother lived, what kind of business he was running and where. 20. On 22 December 1999 the applicant filed his third appeal against his detention arguing that he had been in detention for more than four months and that there was no longer a danger that he might abscond or re-offend because his brother was willing to pay his bail, support him financially and provide him with employment. 21. An indictment was filed against the applicant on an unspecified date. 22. The judge rapporteur of the Pazardzhik District Court, also on an unspecified date, ruled that the court would examine the applicant's latest appeal at its hearing scheduled for 25 February 2000. For undisclosed reasons the hearing was postponed to 4 April 2000. 23. The Pazardzhik District Court dismissed the applicant's third appeal at its hearing on 4 April 2000. The court found that the applicant had been charged with a serious offence and that he might abscond because he did not have a permanent address and was residing in an apartment rented by one of the co-accused. It also found that it was likely that he would re-offend considering the fact that he had perpetrated the offences with which he had been charged during the operational period of a previous one-year suspended sentence. The decision was upheld on appeal by the Pazardzhik Regional Court on 13 April 2000. 24. In response to a fourth appeal of the applicant against his detention filed on an unspecified date, the Pazardzhik District Court found in his favour on 17 May 2000. On appeal by the prosecuting authorities the decision was quashed by the Pazardzhik Regional Court on 30 May 2000. The latter court found that the applicant might abscond because he did not have a permanent address and was residing in an apartment rented by one of his friends. It also found that it was likely that he would re-offend considering his past criminal tendencies and that he lacked employment. 25. The subsequent development of the criminal proceedings is unclear. It is also unknown whether, and when, the applicant was released or granted bail. However, as of the date of the applicant's submissions of March 2005, the case was still pending before the court of first instance. 26. The applicant contended, which the Government did not challenge, that as from 26 August 1999 he was detained for a period of two months at the Pazardzhik Regional Investigation Service and was then transferred to the Pazardzhik Prison where he remained at least until 30 May 2000. 27. In the applicant's submission the cells were small, overcrowded and below street level. There was no natural light or fresh air in the cells. Quite often there were rodents and cockroaches. A bucket was provided for the sanitary needs of the detained. There was no hot water, soap or other toiletries. The applicant was not permitted to go out of his cell for exercise. The food provided was of insufficient quantity and substandard. The applicant was not allowed to read newspapers or books. 28. In the applicant's submission the conditions in the Pazardzhik Prison were slightly better than those in the Pazardzhik Regional Investigation Service. Similarly, though, the food was insufficient and of the same inferior quality; the cells were small and overcrowded; fresh air and light were insufficient and a bucket was provided for the sanitary needs of the detained. Limited exercise was provided in the prison yard. 29. Under the Ministry of Internal Affairs Act, as in force at the relevant time, the police were empowered, on the basis of an order to that affect, to arrest and take a person into custody who, inter alia, had committed an offence or whose identity could not been ascertained due to lack of appropriate personal identity documents (section 70 (1)). A person taken into police custody had the right to be assisted by a lawyer and to appeal against his detention to the domestic courts, which were required to immediately rule on such an appeal (section 70 (3) and (4)). Police custody could not be longer than twenty-four hours (section 71). 30. In a reported case of 2003, the Supreme Administrative Court upheld a finding of a lower court that an order for taking a person into police custody had been unlawful due to lack of legal grounds (реш. № 10516 от 21 ноември 2003 г. по адм. д. № 4159/2003 г., V отд. на ВАС). 31. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)). 32. As of that date the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). 33. The relevant part of the amended Article 152 provides: “(1) Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment..., where the material in the case discloses a real danger that the accused person may abscond or commit an offence. (2) In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case: 1. in cases of special recidivism or repetition; 2. where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment; 3. where the charges concern an offence punishable by not less than ten years' imprisonment or a heavier punishment. (3) Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.” 34. It appears that divergent interpretations of the above provisions were observed in the initial period of their application upon their entry into force on 1 January 2000. 35. In June 2002 the Supreme Court of Cassation clarified that the amended Article 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Article 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 Supreme Court of Cassation). 36. At the relevant time, Article 191 of the CCP provided that in the course of an enquiry (i.e. when there is insufficient evidence to initiate formal criminal proceedings) a search of premises could be conducted only in the course of examining a crime scene and if its immediate execution was the only possibility to collect and secure evidence. 37. At the relevant time, Article 134 of the CCP provided that a search of premises may be carried out if there is probable cause to believe that objects or documents, which may be relevant to a case, would be found in them. Such a search could be ordered by the trial court (during the trial phase) or by the prosecutor (during the pre-trial phase) (Article 135). 38. A search of premises was to be conducted in the presence of witnesses and the person using them or an adult member of his family. In case the person using them or an adult member of his family could not be present, the search was to be conducted in the presence of the residence's manager or a representative of the municipality (Article 136). 39. There was no special procedure through which a search warrant issued by a prosecutor could be challenged. Thus, the only possible appeal was a hierarchical one to the higher prosecutor (Article 182), which did not have suspensive effect (Article 183). 40. The State Responsibility for Damage Act of 1988 (the “SRDA”) provides that the State is liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2). The relevant domestic law and practice under sections 1 and 2 of the SRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56 60, 8 April 2004). 41. In respect of conditions of detention, despite some initial uncertainty as to the applicability of the SRDA in respect of such complaints, in a number of recent cases the domestic courts have ruled that the State's liability does arise under the SRDA and its section 1 in particular (реш. от 17.02.2003 г. по гр. д. № 1380/2002 г. на Пловдивският АС; реш. № 126 от 08.06.2005 г. по въззивно гр. д. № 205/2005 г. на Добричкият ОС; реш. № 380 от 19.07.2005 г. по гр. д. № 177/2005 г. на Габровският РС; реш. 04.05.2005 г. по гр. д. № 21393/2003 г. на Софийският РС; реш. № 444 от 08.07.2005 г. по гр. д. № 1031/2004 г. на Ловешкият РС; реш. № 4 от 18.02.2005 г. по гр. д. № 3267/2004 г. на Русенският РС). 42. In respect of unlawful searches of premises, the only reported case dates from 2002 where the Sofia City Court examined, on appeal, an action for damages stemming from an allegedly unlawful search and seizure conducted by the authorities in the home of the claimant. In that particular case, the court rescinded the judgment of the lower court and remitted the case solely because the latter court had failed to examine the action under Article 1 of the SRDA, but had rather examined it as a tort action. Accordingly, the Sofia City Court instructed the lower court to re-examine the said action solely under the SRDA (реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, IVб отд.). 43. The CPT visited Bulgaria in 1995, 1999, 2002 and 2003. The Pazardzhik Regional Investigation Service and the Pazardzhik Prison were visited in 1995. There are also general observations about the problems in all Investigation Service detention facilities in the 1995, 1999 and 2002 reports. 44. The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained. 45. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided. 46. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited. There was no radio or television. 47. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances. 48. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency. 49. The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell. 50. Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed. 51. In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities. 52. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements. 53. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and outofcell activities. In some places, the situation had even deteriorated. 54. In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”. 55. During the 2002 visit some improvements were noted in the country's investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day. 56. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates. | 1 |
train | 001-100182 | ENG | RUS | CHAMBER | 2,010 | CASE OF STRELTSOV AND OTHER "NOVOCHERKASSK MILITARY PENSIONERS" CASES v. RUSSIA | 3 | Violations of Art. 6-1;Violations of P1-1;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 7. The eighty-seven applicants were born on the dates listed in Annex I and live in Novocherkassk, the Rostov Region. 8. , may be summarised as follows. 9. The applicants, retired military officers, sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of their pensions. One group of the applicants sought adjustment of the pension to the minimum wage and claimed arrears for 1995-1998 in line with the increase in the latter. Another group of the applicants claimed recalculation of their pensions on account of the increase of the monetary compensation paid in respect of the food allowance. Several applicants raised both types of claims before the domestic courts. 10. On the dates listed in Annex I the domestic courts found in the applicants' favour. As regards the case no. 25442/06 by Mr Pavlov, the judgment of 22 September 2004 was issued by the Justice of the Peace of the 6th Circuit of Novocherkassk. The judgment of 30 August 2004 in favour of Mr Pavlov, as well as all the judgments in favour of the remaining eighty-six applicants, were issued by the Novocherkassk Town Court of the Rostov Region. 11. The court ordered in respect of the first type of the claims that the pensions be adjusted to the minimum wage and that the arrears be paid to the applicants. As concerns the second type of the claims, the court held that the pensions should be increased in line with the increase of the daily food allowance and awarded the applicants the respective lump sums in arrears. The awards were made against the Military Commissariat of the Rostov Region, while the respective claims against the commissariat of Novocherkassk had been dismissed. 12. The representatives of the Military Commissariat of the Rostov Region were present at the court room on 30 August and 15 September 2004. 13. In several cases the respondent authority introduced the grounds of appeal with the Town Court. However, on various dates in 2004 the respondent authority revoked their applications. For example, in case of Mr Turutin (no. 18952/06) the grounds for appeal were revoked on 10 November 2004. As a result, none of the judgments was appealed against. They entered into force ten days later. 14. The applicants took various steps to obtain execution of the judgment. In particular, the Government submitted that in September-October 2004 Mr Sobolev, Mr Sedlyar and 31 other applicants sent the writs of execution to the respondent authority. It follows from the incoming correspondence log of the Rostov Regional Military Commissariat that the latter received the writs. 15. In 2005 the military prosecutor's office started an inquiry into lawfulness of proceedings concerning military pension arrears throughout the Rostov Region and detected several instances of fraud. In particular, they found out that the respondent commissariat on several occasions had made payments against forged writs of execution issued in the similar but unrelated proceedings. On various dates the enforcement proceedings in the cases at hand were suspended pending the region wide inquiry, because the prosecutor's office had to establish authenticity of the writs of execution issued in the applicants' cases. It appears that the investigation did not reveal any evidence of fraud in the present cases. 16. According to the Government, in September 2005 judge A. who had issued the judgments in question was dismissed by the decision of the Judicial Qualification Board of the Rostov Region. At some point several high officials of the Military Commissariat of the Rostov Region had been charged with and convicted of embezzlement. 17. As regards the group of nineteen applicants named in Part A of Annex I, the domestic awards in their favour were fully executed by the respondent authorities on the dates specified in the table. As concerns the remaining applicants whose names are listed in Part B of Annex I, at least one judgment in their favour has remained unenforced. 18. On various dates in 2005-2007 the respondent commissariat applied for the supervisory review of the judgments. 19. According to the Government's observations, thirty-three requests for review were lodged outside the one-year time-limit from the date of the judgment's entry into force. In such cases, the respondent authority also applied for extension of the time-limit for application for supervisory review arguing that it had not received copies of the respective first instance judgments in time and had only been informed of the judgments in October 2005, when the prosecutor's inquiry had been opened. On various dates the Novocherkassk Town Court allowed these applications. In particular, in case of Mr Turutin (no. 18952/06) the Novocherkassk Town Court on 20 December 2006 accepted the authority's argument that they had been unaware of the judgment, having found, in particular, as follows: “There is no evidence in the case materials to the effect that a copy of the judgment of 30 August 2004 ... had been sent to the Military Commissariat of the Rostov Region. It follows from the above that the [respondent commissariat] had a real opportunity to avail itself of its right to apply for supervisory review within one year.” 20. The Town Court made similar findings in respect of thirty-two remaining cases. 21. Enforcement of the unexecuted domestic judgments had been suspended pending the supervisory review. 22. On various dates in 2005-2007 the Rostov Regional Court allowed the applications for supervisory review of the judgments lodged by the military commissariat of the Rostov Region and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court. 23. On the dates specified in Annex I the Presidium of the Rostov Regional Court quashed the judgments in the applicants' favour and remitted the cases for a fresh consideration. In each case the Presidium concluded that the first-instance court had erroneously applied the substantive law. They also found that the Novocherkassk Town Court had lacked territorial jurisdiction to examine the cases. The arrears were awarded against the Military Commissariat of the Rostov Region and thus the cases should have been examined by a court in the Oktiabrskiy District of Rostov-on-Don where the respondent commissariat was located. 24. The cases were considered afresh by the Oktyabrskiy District Court of Rostov-on-Don. 25. According to the Government, Mr Karatayev (application no. 18352/06) modified the scope of his claim in the new round of the proceedings concerning the adjustment of his pension to the increase of the minimum wage. On 6 August 2007 The Oktyabrskiy District Court granted his action in full and ordered that he be paid 32,811.52 Russsian roubles (RUB). The judgment was executed. The parties did not submit copies of the respective statement of claims and judicial decision. 26. As regards the remaining applicants, the court either discontinued the proceedings or dismissed the applicants' claims. The particulars of the respective proceedings are summarised in Annex I below. 27. Under Article 376 of the Code of the Civil Procedure of the Russian Federation of 14 November 2002 (in force from 1 February 2003), judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals 28. For the summary of other applicable provisions of the domestic law, see Murtazin v. Russia, no. 26338/06, §§ 14-18, 27 March 2008. 29. Article 28 of the Code of Civil Procedure provides that a civil claim is to be filed with the court with territorial jurisdiction over the defendant's place of residence. A claim against the organisation is to be filed with the court having territorial jurisdiction over the organisation's residence. According to Article 31 § 1 of the Code, where a claim is filed against several defendants having different places of residence, a claim is to be lodged with a court having territorial jurisdiction over one of the defendants, upon the claimant's choice. 30. Succession is regulated by Part 3 of the Civil Code. The succession includes the deceased's property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased's person, such as alimony or a right to compensation for health damage (Article 1112). An heir should claim and accept succession, as well as obtain a succession certificate from a public notary (Articles 1152, 1162). The right to receive the amounts of salary and payments qualifying as such, pension and other amounts of money provided to the deceased person as means of subsistence which had been payable but had not been received in his lifetime shall belong to the members of the deceased's family who had been residing together with him and also his disabled dependants, irrespective of their having resided with the deceased or not (Article 1183 § 1). In accordance with section 63 of the Federal Law on Pension Welfare of Military Service Personnel (1993), as in force at the material time, the amount of pension due to a pensioner but not received in his lifetime shall belong to the members of the deceased's family if they were in charge of his or her funeral, and shall not be included in the succession. | 1 |
train | 001-57943 | ENG | GBR | GRANDCHAMBER | 1,995 | CASE OF McCANN AND OTHERS v. THE UNITED KINGDOM | 2 | Violation of Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings | C. Russo;John Freeland;N. Valticos;R. Pekkanen | 12. The facts set out below, established by the Commission in its report of 4 March 1994 (see paragraphs 132 and 142 below), are drawn mainly from the transcript of evidence given at the Gibraltar inquest (see paragraph 103 below). 13. Before 4 March 1988, and probably from at least the beginning of the year, the United Kingdom, Spanish and Gibraltar authorities were aware that the Provisional IRA (Irish Republican Army - "IRA") were planning a terrorist attack on Gibraltar. It appeared from the intelligence received and from observations made by the Gibraltar police that the target was to be the assembly area south of Ince’s Hall where the Royal Anglian Regiment usually assembled to carry out the changing of the guard every Tuesday at 11.00 hours. 14. Prior to 4 March 1988, an advisory group was formed to advise and assist Mr Joseph Canepa, the Gibraltar Commissioner of Police ("the Commissioner"). It consisted of Soldier F (senior military adviser and officer in the Special Air Service or "SAS"), Soldier E (SAS attack commander), Soldier G (bomb-disposal adviser), Mr Colombo (Acting Deputy Commissioner of Police), Detective Chief Inspector Ullger, attached to Special Branch, and Security Service officers. The Commissioner issued instructions for an operational order to be prepared to deal with the situation. 15. Soldier F and his group, including Soldier E and a number of other SAS soldiers, had arrived in Gibraltar prior to 4 March 1988. Preliminary briefings had been conducted by the Ministry of Defence in London. According to the military rules of engagement (entitled "Rules of Engagement for the Military Commander in Operation Flavius") issued to Soldier F by the Ministry of Defence, the purpose of the military forces being in Gibraltar was to assist the Gibraltar police to arrest the IRA active service unit ("ASU") should the police request such military intervention. The rules also instructed F to operate as directed by the Commissioner. 16. The rules also specified the circumstances in which the use of force by the soldiers would be permissible as follows: "Use of force 4. You and your men will not use force unless requested to do so by the senior police officer(s) designated by the Gibraltar Police Commissioner; or unless it is necessary to do so in order to protect life. You and your men are not then to use more force than is necessary in order to protect life ... Opening fire 5. You and your men may only open fire against a person if you or they have reasonable grounds for believing that he/she is currently committing, or is about to commit, an action which is likely to endanger your or their lives, or the life of any other person, and if there is no other way to prevent this. Firing without warning 6. You and your men may fire without warning if the giving of a warning or any delay in firing could lead to death or injury to you or them or any other person, or if the giving of a warning is clearly impracticable. Warning before firing 7. If the circumstances in paragraph 6 do not apply, a warning is necessary before firing. The warning is to be as clear as possible and is to include a direction to surrender and a clear warning that fire will be opened if the direction is not obeyed." 17. The operational order of the Commissioner, which was drawn up on 5 March 1988, stated that it was suspected that a terrorist attack was planned in Gibraltar and that the target was highly probably the band and guard of the First Battalion of the Royal Anglian Regiment during a ceremonial changing of the guard at Ince’s Hall on 8 March 1988. It stated that there were "indications that the method to be used is by means of explosives, probably using a car bomb". The intention of the operation was then stated to be "(a) to protect life; (b) to foil the attempt; (c) to arrest the offenders; (d) the securing and safe custody of the prisoners". 18. The methods to be employed were listed as police surveillance and having sufficient personnel suitably equipped to deal with any contingency. It was also stated that the suspects were to be arrested by using minimum force, that they were to be disarmed and that evidence was to be gathered for a court trial. Annexed to the order were, inter alia, lists of attribution of police personnel, firearms rules of engagement and a guide to firearms use by police (see paragraphs 136 and 137 below). 19. A plan for evacuation of the expected area of attack was drawn up on 5 March 1988 by Chief Inspector Lopez. It was to be put into effect on Monday or Tuesday (7-8 March). It included arrangements to evacuate and cordon off the area around Ince’s Hall to a radius of 200 m, identified the approach roads to be closed, detailed the necessary traffic diversions and listed the personnel to implement the plan. The plan was not, however, distributed to other officers. 20. The operation in Gibraltar to counter the expected terrorist attack was run from a joint operations room in the centre of Gibraltar. In the operations room there were three distinct groups - the army or military group (comprising the SAS and bomb-disposal personnel), a police group and the surveillance or security service group. Each had its own means of communication with personnel on the ground operated from a separate control station. The two principal means of communication in use were, however, the two radio-communication networks known as the surveillance net and the tactical or military net. There was a bomb-disposal net which was not busy and, while the police had a net, it was not considered secure and a telephone appears to have been used for necessary communications with the central police station. 21. On 4 March 1988, there was a reported sighting of the ASU in Malaga in Spain. As the Commissioner was not sure how or when they would come to Gibraltar surveillance was mounted. 22. At midnight between 5 and 6 March 1988, the Commissioner held a briefing which was attended by officers from the Security Services (including from the surveillance team Witnesses H, I, J, K, L, M and N), military personnel (including Soldiers A, B, C, D, E, F and G) and members of the Gibraltar police (Officers P, Q and R and Detective Chief Inspector Ullger, Head of Special Branch, and Detective Constable Viagas). The Commissioner conducted the police aspect of the briefing, the members of the Security Services briefed on the intelligence aspects of the operation, the head of the surveillance team covered the surveillance operation and Soldier E explained the role of the military if they were called on for assistance. It then appears that the briefing split into smaller groups, E continuing to brief the soldiers under his command but in the same location. The Commissioner also explained the rules of engagement and firearms procedures and expressed the importance to the police of gathering evidence for a subsequent trial of the terrorists. 23. The briefing by the representative of the Security Services included inter alia the following assessments: (a) the IRA intended to attack the changing of the guard ceremony in the assembly area outside Ince’s Hall on the morning of Tuesday 8 March 1988; (b) an ASU of three would be sent to carry out the attack, consisting of Daniel McCann, Sean Savage and a third member, later positively identified as Mairead Farrell. McCann had been previously convicted and sentenced to two years’ imprisonment for possession of explosives. Farrell had previously been convicted and sentenced to fourteen years’ imprisonment for causing explosions. She was known during her time in prison to have been the acknowledged leader of the IRA wing of prisoners. Savage was described as an expert bomb-maker. Photographs were shown of the three suspects; (c) the three individuals were believed to be dangerous terrorists who would almost certainly be armed and who, if confronted by security forces, would be likely to use their weapons; (d) the attack would be by way of a car bomb. It was believed that the bomb would be brought across the border in a vehicle and that it would remain hidden inside the vehicle; (e) the possibility that a "blocking" car - i.e. a car not containing a bomb but parked in the assembly area in order to reserve a space for the car containing the bomb - would be used had been considered, but was thought unlikely. This possibility was discounted, according to Senior Security Services Officer O in his evidence to the inquest, since (1) it would involve two trips; (2) it would be unnecessary since parking spaces would be available on the night before or on a Tuesday morning; (3) there was the possibility that the blocking car would itself get blocked by careless parking. The assessment was that the ASU would drive in at the last moment on Monday night or on Tuesday morning. On the other hand Chief Inspector Lopez, who was not present at the briefing, stated that he would not have brought in a bomb on Tuesday since it would be busy and difficult to find a parking place. 24. Various methods of detonation of the bomb were mentioned at the briefing: by timing device, by RCIED (radio-controlled improvised explosive device) and by command wire. This last option which required placing a bomb connected to a detonator by a wire was discounted as impracticable in the circumstances. The use of a timer was, according to O, considered highly unlikely in light of the recent IRA explosion of a bomb by timer device at Enniskillen which had resulted in a high number of civilian casualties. Use of a remote-control device was considered to be far more likely since it was safer from the point of view of the terrorist who could get away from the bomb before it exploded and was more controllable than a timer which once activated was virtually impossible to stop. 25. The recollection of the others present at the briefing differs on this point. The police witnesses remembered both a timer and a remote-control device being discussed. The Commissioner and his Deputy expected either type of device. Chief Inspector Ullger recalled specific mention of the remote-control device as being more likely. The surveillance officers also thought that an emphasis was placed on the use of a remote-control device. 26. The military witnesses in contrast appear to have been convinced that it would certainly be a remote-control device. Soldier F made no mention of a timer but stated that they were briefed that it was to be a "button job", that is, radio-controlled so that the bomb could be detonated at the press of a button. He believed that there had been an IRA directive not to repeat the carnage of a recent bomb in Enniskillen and to keep to a minimum the loss of life to innocent civilians. It was thought that the terrorists knew that if it rained the parade would be cancelled and in that event, if a timer was used, they would be left with a bomb that would go off indiscriminately. Soldier E also stated that at the briefing they were informed that the bomb would be initiated by a "button job". In answer to a question by a juror, he stated that there had been discussion with the soldiers that there was more chance that they would have to shoot to kill in view of the very short time factor which a "button job" would impose. 27. Soldiers A, B, C and D stated that they were told at the briefing that the device would be radio-controlled. Soldier C said that E stressed to them that it would be a "button job". 28. Soldier O stated that it was considered that, if the means of detonation was by radio control, it was possible that the suspects might, if confronted, seek to detonate the device. Soldier F also recalled that the assessment was that any one of the three could be carrying a device. In answer to a question pointing out the inconsistency of this proposition with the assessment that the IRA wished to minimise civilian casualties, F stated that the terrorists would detonate in order nonetheless to achieve some degree of propaganda success. He stated that the briefing by the intelligence people was that it was likely if the terrorists were cornered they would try to explode the bomb. Soldier E confirmed that they had been told that the three suspects were ruthless and if confronted would resort to whatever weapons or "button jobs" they carried. He had particularly emphasised to his soldiers that there was a strong likelihood that at least one of the suspects would be carrying a "button job". 29. This was recalled, in substance, by Soldiers C and D. Soldier B did not remember being told that they would attempt to detonate if arrested but was aware of that possibility in his own mind. They were warned that the suspects were highly dangerous, dedicated and fanatical. 30. It does not appear that there was any discussion at the briefing as to the likely size, mode of activation or range of a remote-control device that might be expected. The soldiers appear to have received information at their own briefings. Soldier F did not know the precise size a radio detonator might be, but had been told that the device would be small enough to conceal on the person. Soldier D was told that the device could come in a small size and that it could be detonated by the pressing of just one button. 31. As regards the range of the device, Soldier F said that the military were told that the equipment which the IRA had was capable of detonating a radio-controlled bomb over a distance of a mile and a half. 32. The operations room opened at 8.00 hours. The Commissioner was on duty there from 10.30 to 12.30 hours. When he left, Deputy Commissioner Colombo took his place. Members of the surveillance teams were on duty in the streets of Gibraltar as were Soldiers A, B, C and D and members of the police force involved in the operation. Soldiers A, B, C and D were in civilian clothing and were each armed with a 9mm Browning pistol which was carried in the rear waistband of their trousers. Each also carried a radio concealed on their person. They were working in pairs. In each pair, one was in radio communication on the tactical net and the other on the surveillance net. Police officers P, Q and R, who were on duty to support the soldiers in any arrest, were also in plain clothes and armed. 33. On 6 March 1988, at 8.00 hours, Detective Constable Huart went to the frontier to keep observation for the three suspects from the computer room at the Spanish immigration post. He was aware of the real names of the three suspects and had been shown photographs. The Spanish officers had photographs. The computer room was at some distance from the frontier crossing point itself. The Spanish officers at the immigration post showed him passports by means of a visual aid unit. It appears that they only showed him the passports of those cars containing two men and one woman. Several pictures were flashed up for him during the course of the day but he did not recognise them. At the inquest, under cross-examination, he at first did not recall that he had been given any of the aliases that the three suspects might be employing. Then, however, he thought that he remembered the name of Coyne being mentioned in relation to Savage and that at the time he must have known the aliases of all three, as must the Spanish officers. Chief Inspector Ullger, who had briefed Huart however, had no recollection of the name of Coyne being mentioned before 6 March and he only recalled the name of Reilly in respect of McCann. However, if Huart recalled it, he did not doubt that it was so. 34. On the Gibraltar side of the border, the customs officers and police normally on duty were not informed or involved in the surveillance on the basis that this would involve information being provided to an excessive number of people. No steps were taken to slow down the line of cars as they entered or to scrutinise all passports since it was felt that this might put the suspects on guard. There was, however, a separate surveillance team at the border and, in the area of the airfield nearby, an arrest group. Witness M who led a surveillance team at the frontier expressed disappointment at the apparent lack of co-operation between the various groups involved in Gibraltar but he understood that matters were arranged that way as a matter of security. 35. At the inquest, Chief Inspector Ullger stated, when pressed about the failure to take more scrupulous measures on the Gibraltar side, "In this particular case, we are talking about dangerous terrorists. We were talking about a very, very major and delicate operation - an operation that had to succeed. I think the only way it could have succeeded is to allow the terrorists to come in and for the terrorists to have been dealt with in the way they were dealt with as far as the surveillance is concerned." 36. While Soldiers E and F made reference to the preferred military option as being to intercept and arrest the suspects in the frontier area, it appears not to have been pursued with any conviction, on the assumption that identification would not be possible in light of the brief time available for identification to be made (10 to 15 seconds per car) and the lack of prior warning from the Spanish side. 37. Soldier F stated that the military option had been refined down to the preferred option of arresting the suspects when they were on foot in the assembly area, to disarm them and then to defuse the bomb. He referred also to four key indicators formulated by the Advisory Group with a view to guiding the Commissioner: 1. if a car was driven into Gibraltar and parked in the assembly area by an identified member of the active service unit; 2. if a car was driven into the assembly area by an ASU member without prior warning; 3. the presence in Gibraltar of the other members of the ASU; 4. if there was clear indication that terrorists having parked their car bomb intended to leave Gibraltar, that is to say, they were heading for the border. The plan was for an arrest to be carried out once all the members of the ASU were present and identified and they had parked a car which they intended to leave. Any earlier action was considered premature as likely to raise suspicion in any unapprehended members of the ASU with possible risk resulting and as leaving no evidence for the police to use in court. 38. Detective Constable Viagas was on surveillance duty in a bank which had a view over the area in which the car driven in by the terrorists was expected to be parked. At about 12.30 hours, he heard a report over the surveillance net that a car had parked in a parking space in the assembly area under observation. A member of the Security Service commented that the driver had taken time to get out and fiddled with something between the seats. DC Viagas saw the man lock the car door and walk away towards the Southport Gate. One of the Security Service officers present consulted a colleague as to possible identification but neither was sure. A field officer was requested to confirm the identity. DC Viagas could not himself identify the man from his position. 39. Witness N of the Security Service team on surveillance in the car-park in the assembly area recalled that at 12.45 hours a white Renault car drove up and parked, the driver getting out after two to three minutes and walking away. A young man resembling the suspect was spotted next at about 14.00 hours in the area. Witness H, who was sent to verify his identification, saw the suspect at about that time and recognised him as Savage without difficulty. Witness N also saw the suspect at the rear of John Mackintosh Hall and at 14.10 hours reported over the radio to the operations room that he identified him as Savage and also as the man who had earlier parked the car in the assembly area. Officer Q who was on duty on the street recalled hearing over the surveillance net at about 14.30 hours that Savage had been identified. 40. The Commissioner however did not recollect being notified about the identification of Savage until he arrived in the operations room at 15.00 hours. Colombo did not recall hearing anything about Savage either until it was reported that he had met up with two other suspects at about 14.50 hours. Soldiers E and F recalled however that a possible sighting of Savage was reported at about 14.30 hours. Soldier G also refers to the later sighting at 14.50 hours as the first identification of Savage. 41. There appears to have been a certain time-lag between information on the ground either being received in the operations room or being passed on. Soldiers E and F may have been more aware than the Commissioner of events since they were monitoring closely the information coming in over the nets, which apparently was not audible to the Commissioner where he sat at a table away from the control stations. 42. The suspect was followed for approximately an hour by Witness H who recalled that the suspect was using anti-surveillance techniques such as employing devious routes through the side streets. Witness N was also following him, for an estimated 45 minutes, and considered that he was alert and taking precautions, for example stopping round the corner at the end of alleyways to see who followed. 43. Witness M who was leading the surveillance at the border stated that two suspects passed the frontier at about 14.30 hours though apparently they were initially not clearly identified. They were on foot and reportedly taking counter-surveillance measures (Farrell looking back frequently). Their progress into Gibraltar was followed. 44. At 14.30 hours, Soldiers E and F recalled a message being received that there was a possible sighting of McCann and Farrell entering on foot. The Commissioner was immediately informed. 45. At about 14.50 hours, it was reported to the operations room that the suspects McCann and Farrell had met with a second man identified as the suspect Savage and that the three were looking at a white Renault car in the car-park in the assembly area. Witness H stated that the three suspects spent some considerable time staring across to where a car had been parked, as if, in his assessment, they were studying it to make sure it was absolutely right for the effect of the bomb. DC Viagas also witnessed the three suspects meeting in the area of the car-park, stating that all three turned and stared towards where the car was parked. He gave the time as about 14.55 hours. He stated that the Security Services made identification of all three at this moment. At this moment, the possibility of effecting an arrest was considered. There were different recollections. Mr Colombo stated that he was asked whether he would hand over control to the military for the arrest but that he asked whether the suspects had been positively identified; he was told that there was 80% identification. Almost immediately the three suspects moved away from the car through the Southport Gate. He recalled that the movement of the three suspects towards the south gave rise to some discussion as to whether this indicated that the three suspects were on reconnaissance and might return for the car. It was for this reason that the decision was taken not to arrest at this point. 46. At 15.00 hours, Mr Colombo rang the Commissioner to inform him that it was more and more likely to be McCann and Farrell. When the Commissioner arrived shortly afterwards, Mr Colombo informed him that the suspects McCann and Farrell had met up with a third person thought to be Savage and that an arrest had almost been made. 47. The Commissioner asked for positive identification of the three suspects. Identification was confirmed by 15.25 hours when it was reported to the operations room that the three suspects had returned to the assembly area and gone past looking at the car again. The three suspects continued north and away from the car. Soldiers E and F recalled that control was passed to the military but immediately taken back as the Commissioner requested further verification of the identities of the suspects. The confirmation of identity which the Commissioner had requested was received almost immediately. 48. After the three suspects’ identities had been confirmed and they had moved away from the assembly area, Soldier G examined the suspect car. He conducted an examination from the exterior without touching the car. He described it as a newish-looking white Renault. He detected nothing untoward inside the car or anything visibly out of place or concealed under the seats. He noted that the aerial of the car, which was rusty, was out of place with the age of the car. He was in the area for less than two minutes. He returned to the operations room and reported to the Commissioner that he regarded the car as a "suspect car bomb". At the inquest, he explained that this was a term of art for a car parked in suspicious circumstances where there is every reason to believe that it is a car bomb and that it could not be said that it was not a car bomb. 49. The Commissioner recalled that G had reported that it was a suspect car bomb since there was an old aerial situated centrally of a relatively new car. He stated that as a result they treated it as a "possible car bomb". 50. Soldier F referred to the aerial as rendering the car suspicious and stated that this information was passed on to all the parties on the ground. 51. Soldier E was more categorical and stated that as far as G could tell "from a cursory visual examination he was able to confirm our suspicion that they were dealing with a car bomb". 52. Soldier A stated that he believed 100 per cent that there was a bomb in the debussing area, that the suspects had remote-control devices and were probably armed. This was what he had been told over the radio. Soldier C recalled that it had been confirmed by Soldier E that there was a device in Ince’s Hall area which could be detonated by one of three suspects who was more likely to be Savage because he had been seen "fiddling" with something in the car earlier. He had also been told of the indication of an old aerial on a new car. Soldier D said that it had been confirmed to him by Soldier E that there was a bomb there. To his recollection, no one told them that there was a possibility that the three suspects might not be carrying the remote-control devices with them on the Sunday or that possibly they had not brought a bomb in. He had been told by Soldier E - whom he fully trusted - that there was a bomb in the car. 53. At the inquest Soldier G was described as being the bomb-disposal adviser. He had experience of dealing with car bombs in Northern Ireland but at the inquest he stated in reply to various questions that he was neither a radio-communications expert nor an explosives expert. He had not thought of de-activating the suspect bomb by unscrewing the aerial from the car. When it was put to him in cross-examination, he agreed that to have attempted to unscrew the aerial would have been potentially dangerous. 54. After receiving the report from Soldier G and in view of the fact that the three suspects were continuing northwards leaving the car behind, the Commissioner decided that the three suspects should be arrested on suspicion of conspiracy to murder. At 15.40 hours, he signed a form requesting the military to intercept and apprehend the suspects. The form, which had been provided in advance by the military, stated: "I, Joseph Luis Canepa, Commissioner of Police, having considered the terrorist situation in Gibraltar and having been fully briefed on the military plan with firearms, request that you proceed with the military option which may include the use of lethal force for the preservation of life." After the form was signed, Soldier F walked across to the tactical net and issued instructions that the military should intervene. Soldier E ascertained the positions of the soldiers by radio. Soldiers C and D had been visually monitoring the movement of the three suspects in Line Wall Road and Smith Dorrien Avenue. Soldiers A and B were making their way north through Casemates Square and into the Landport tunnel. The soldiers were informed that control had passed to them to make an arrest. 55. The evidence at the inquest given by the soldiers and Police Officer R and DC Ullger was that the soldiers had practised arrest procedures on several occasions with the police before 6 March 1988. According to these rehearsals, the soldiers were to approach the suspects to within a close distance, cover the suspects with their pistols and shout "Stop. Police. Hands up." or words to that effect. They would then make the suspects lie on the ground with their arms away from their bodies until the police moved in to carry out a formal arrest. Further, DC Ullger stated that special efforts had been made to identify a suitable place in Gibraltar for the terrorists to be held in custody following their arrest. 56. On reaching the junction of Smith Dorrien Avenue with Winston Churchill Avenue, the three suspects crossed the road and stopped on the other side talking. Officer R, observing, saw them appear to exchange newspapers. At this point, Soldiers C and D were approaching the junction from Smith Dorrien Avenue. Soldiers A and B emerging from Landport tunnel also saw the three suspects at the junction from their position where the pathway to the tunnel joined Corral Road. 57. As the soldiers converged on the junction, however, Savage split away from suspects McCann and Farrell turning south towards the Landport tunnel. McCann and Farrell continued north up the right-hand pavement of Winston Churchill Avenue. 58. Savage passed Soldiers A and B, brushing against the shoulder of B. Soldier B was about to turn to effect the arrest but A told him that they should continue towards suspects McCann and Farrell, knowing that C and D were in the area and that they would arrest Savage. Soldiers C and D, aware that A and B were following suspects McCann and Farrell, crossed over from Smith Dorrien Avenue and followed Savage. 59. The evidence of Soldiers A and B at the inquest was to the following effect. 60. Soldiers A and B continued north up Winston Churchill Avenue after McCann and Farrell, walking at a brisk pace to close the distance. McCann was walking on the right of Farrell on the inside of the pavement. He was wearing white trousers and a white shirt, without any jacket. Farrell was dressed in a skirt and jacket and was carrying a large handbag. 61. When Soldier A was approximately ten metres (though maybe closer) behind McCann on the inside of the pavement, McCann looked back over his left shoulder. McCann appeared to look directly at A and the smile left his face, as if he had a realisation of who A was and that he was a threat. Soldier A drew his pistol, intending to shout a warning to stop at the same time, though he was uncertain if the words actually came out. McCann’s hand moved suddenly and aggressively across the front of his body. A thought that he was going for the button to detonate the bomb and opened fire. He shot one round into McCann’s back from a distance of three metres (though maybe it may have been closer). Out of the corner of his eye, A saw a movement by Farrell. Farrell had been walking on the left of McCann on the side of the pavement next to the road. A saw her make a half turn to the right towards McCann, grabbing for her handbag which was under her left arm. A thought that she was also going for a button and shot one round into her back. He did not disagree when it was put to him that the forensic evidence suggested that he may have shot from a distance of three feet (see paragraph 111 below). Then A turned back to McCann and shot him once more in the body and twice in the head. A was not aware of B opening fire as this was happening. He fired a total of five shots. 62. Soldier B was approaching directly behind Farrell on the road side of the pavement. He was watching her. When they were three to four metres away and closing, he saw in his peripheral vision that McCann turned his head to look over his shoulder. He heard what he presumed was a shout from A which he thought was the start of the arrest process. At almost the same instant, there was firing to his right. Simultaneously, Farrell made a sharp movement to her right, drawing the bag which she had under her left arm across her body. He could not see her hands or the bag and feared that she was going for the button. He opened fire on Farrell. He deemed that McCann was in a threatening position and was unable to see his hands and switched fire to McCann. Then he turned back to Farrell and continued firing until he was certain that she was no longer a threat, namely, her hands away from her body. He fired a total of seven shots. 63. Both soldiers denied that Farrell or McCann made any attempt to surrender with their hands up in the air or that they fired at the two suspects when they were lying on the ground. At the inquest, Soldier A stated expressly that his intention had been to kill McCann "to stop him becoming a threat and detonating that bomb". 64. The shooting took place on the pavement in front of a Shell petrol station in Winston Churchill Avenue. After the shooting, the soldiers put on berets so they would be recognised by the police. They noticed a police car, with its siren going, coming south from the sundial down the far side of Winston Churchill Avenue. A number of policemen jumped out of the car and leapt the central barrier. Soldier A still had his pistol in his hand. He put his hands up in the air and shouted "Police". A recalled hearing shooting from behind as the police car was approaching. While neither of the soldiers was aware of the police car or siren until after the shooting, the majority of witnesses, including the police officers P, Q and R who were in the vicinity to support the soldiers in the arrest and a number of the surveillance team as well as civilian witnesses, recalled that the sound of the police siren preceded, if only by a very short time, the sound of the gunfire. Officers P and Q, who were watching from a relatively close distance, considered that Farrell and McCann reacted to the sound of the siren: Q was of the opinion that it was the siren that caused Farrell and McCann to stop and turn. 65. The arrival of the police car at the scene was an unintended occurrence. After the Commissioner had handed over control to the military at 15.40 hours, he instructed Mr Colombo to ensure that there was police transport available. Mr Colombo telephoned Chief Inspector Lopez at the Central Police Station, who in turn instructed the Controller Police Constable Goodman to recall the duty police car. The Controller recorded the call at 15.41 hours. He radioed the patrol car informing the officers that they were to return immediately. He did not know where the car was at the time or what the reason for the recall was. When Inspector Revagliatte who was in the car asked if it was urgent, the Controller told him it was a priority message and further instructions would be given on arrival. 66. At the time of the message, the police car was waiting in a queue of traffic in Smith Dorrien Avenue. Revagliatte told the driver to put on siren and beacons. The car pulled out into the opposite lane to overtake the queue of traffic. They cut back into the proper lane at the lights at the junction with Winston Churchill Avenue and continued north along Winston Churchill Avenue in the outer lane. As they passed the Shell garage, the four policemen in the car heard shots. Revagliatte instructed the driver to continue. When he looked back, he saw two persons lying on the pavement. The car went round the sundial roundabout and returned to stop on the other side of the road opposite the Shell garage. The police siren was on during this time. When the car stopped, the four policemen got out, three of them jumping the central barrier and Revagliatte walking round to arrive at the scene. 67. Officers P, Q and R were in the vicinity of the Shell petrol station and also arrived quickly on the scene of the McCann and Farrell shootings. Officers P and R placed their jackets over the bodies. Officer P dropped his gun while crouched and had to replace it in his holster. Officer Q and Revagliatte carried out a search of the bodies. 68. The shooting took place on a fine Sunday afternoon, when there were many people out on the streets and the roads were busy with traffic. The Shell garage was also overlooked by a number of apartment buildings. The shooting consequently was witnessed by a considerable number of people, including police officers involved in the operation, police officers who happened to pass the area on other duties, members of the surveillance team and a number of civilians and off-duty policemen. 69. Almost all the witnesses who gave evidence at the inquest recalled that Farrell had carried her bag under her right arm, not as stated by Soldiers A and B under her left arm. The Coroner commented in his summing-up to the jury that this might have had significance with regard to the alleged justification of the soldiers for opening fire, namely, the alleged movement of the bag across the front of her body. 70. More significantly, three witnesses, two of whom gave an interview on the controversial television documentary concerning the events "Death on the Rock", gave evidence which suggested that McCann and Farrell had been shot while lying on the ground. They stated that they had witnessed the shooting from apartment buildings overlooking the Shell petrol station (see paragraph 125 below). 71. Mrs Celecia saw a man lying on a pavement with another nearby with his hands outstretched: while she did not see a gun she heard shots which she thought came from that direction. After the noise, the man whom she had thought was shooting appeared to put something inside his jacket. When shown a photograph of the aftermath of the scene, Mrs Celecia failed to identify either Soldier A or B as the man whom she thought that she had seen shooting. 72. Mr Proetta saw a girl put her hands up though he thought it was more in shock than in surrender. After she had been shot and fallen to the ground, he heard another fusillade of shots. He assumed that the men nearby were continuing to fire but agreed that there was an echo in the area and that the sound could have come from the Landport tunnel area. Mrs Proetta saw a man and a woman raise their hands over their shoulders with open palms. They were shot, according to her recollection, by men who jumped the barrier. When the bodies were on the ground, she heard further shots and saw a gun in the hand of a man crouching nearby, though she did not see any smoke or cartridges ejecting from the gun. She assumed since she saw a gun that the shots came from it. It also appears that once the bodies fell they were obscured from her view by a low wall and all she saw was a man pointing in their direction. 73. Mr Bullock recalled seeing a man reeling backwards under fire with his hands thrown back. None of the other witnesses saw McCann or Farrell put their hands up or the soldiers shoot at the bodies on the ground. 74. Witness I, a member of the surveillance team, stated that he saw McCann and Farrell shot when they were almost on the ground, but not on the ground. 75. While the soldiers were not sure that any words of warning were uttered by Soldier A, four witnesses (Officers P and Q, Witness K and Police Constable Parody) had a clear recollection of hearing words "Police, Stop" or words to that effect. 76. Officer P, who was approaching from the north and had reached the perimeter wall of the Shell garage, states that he saw McCann make a move as if going for a gun and that Farrell made a move towards her handbag which made him think that she was going for a detonator. Officer Q, who was watching from the other side of the road, also saw Farrell make a move towards her handbag, as did Police Constable Parody, an off-duty policeman watching from an overlooking apartment. 77. At the inquest the evidence of Soldiers C and D was to the following effect. 78. After the three suspects had split up at the junction, Soldier D crossed the road and followed Savage who was heading towards the Landport tunnel. Savage was wearing jeans, shirt and a jacket. Soldier C was briefly held up on the other side of the road by traffic on the busy road but was catching up as D closed in on Savage. D intended to arrest by getting slightly closer, drawing his pistol and shouting "Stop. Police. Hands up". When D was about three metres away, he felt that he needed to get closer because there were too many people about and there was a lady directly in line. Before D could get closer however, he heard gunfire to the rear. At the same time, C shouted "Stop". Savage spun round and his arm went down towards his right hand hip area. D believed that Savage was going for a detonator. He used one hand to push the lady out of line and opened fire from about two to three metres away. D fired nine rounds at rapid rate, initially aiming into the centre of Savage’s body, with the last two at his head. Savage corkscrewed as he fell. D acknowledged that it was possible that Savage’s head was inches away from the ground as he finished firing. He kept firing until Savage was motionless on the ground and his hands were away from his body. 79. Soldier C recalled following after Savage, slightly behind D. Savage was about eight feet from the entrance to the tunnel but maybe more. C’s intention was to move forward to make arrest when he heard shots to his left rear from the direction in which Farrell and McCann had headed. Savage spun round. C shouted "Stop" and drew his pistol. Savage moved his right arm down to the area of his jacket pocket and adopted a threatening and aggressive stance. C opened fire since he feared Savage was about to detonate the bomb. He saw something bulky in Savage’s right hand pocket which he believed to be a detonator button. He was about five to six feet from Savage. He fired six times as Savage spiralled down, aiming at the mass of his body. One shot went into his neck and another into his head as he fell. C continued firing until he was sure that Savage had gone down and was no longer in a position to initiate a device. 80. At the inquest, both soldiers stated under cross-examination that once it became necessary to open fire they would continue shooting until the person was no longer a threat. C agreed that the best way to ensure this result was to kill. D stated that he was firing at Savage to kill him and that this was the way that all soldiers were trained. Both soldiers, however, denied that they had shot Savage while he was on the ground. Soldier E (the attack commander) stated that the intention at the moment of opening fire was to kill since this was the only way to remove the threat. He added that this was the standard followed by any soldier in the army who opens fire. 81. The soldiers put on berets after the incident to identify themselves to the police. 82. Witnesses H, I and J had been involved in surveillance of the three suspects in or about the Smith Dorrien/Winston Churchill area. 83. Witness H had observed Soldiers A and B moving after McCann and Farrell up Winston Churchill Avenue. He moved to follow Savage whom he noticed on the corner about to turn into the alleyway leading to the Landport tunnel. He indicated Savage to Soldiers C and D who were accompanying him at this point. While he was moving to follow Savage, H saw the McCann and Farrell shooting from a distance. He continued to follow after Savage, who had gone into the alleyway. He heard a siren, a shout of "Stop" and saw Savage spin round. The soldiers were five feet away from Savage. H then turned away and did not witness the shooting itself. 84. Witness I had met with Witness H and Soldier D and had confirmed that Savage had gone towards the Landport tunnel. Witness I entered the alleyway after the shooting had begun. He saw one or two shots being fired at Savage who was on the ground. He saw only one soldier firing from a distance of five, six or seven feet. He did not see the soldier put his foot on Savage’s chest while shooting. 85. Witness J had followed after Savage when he had separated from McCann and Farrell. When Savage was twenty feet into the alleyway near a large tree, she heard noise of gunfire from behind and at that same time a police siren in fairly close proximity. Savage spun round very quickly at the sound of gunfire, looking very stunned. J turned away and did not see the shooting. When she turned round again, she saw Savage on his back and a soldier standing over him saying, "Call the police". 86. Mr Robin Mordue witnessed part of the shooting but as he fell to the ground himself and later took cover behind a car he saw only part of the incident. He did not recall Savage running. When he saw the soldier standing over Savage, there were no more shots. 87. The evidence of Mr Kenneth Asquez was surrounded by the most controversy. A handwritten statement made by him appears to have been used by Thames Television in its documentary "Death on the Rock" (see paragraph 125 below). The draft of an affidavit, prepared by a lawyer acting for Thames Television who interviewed Mr Asquez, but not approved by him, was also used for the script of the programme. In them, he alleged that while in a friend’s car on the way to the frontier via Corral Road, he passed the Landport tunnel. He heard "crackers" and saw a man bleeding on the floor. He saw another man showing an ID card and wearing a black beret who had his foot on the dying man’s throat and was shouting, "Stop. It’s OK. It’s the police". At that instant, the man fired a further three to four shots. At the inquest, he stated that the part of the statement relating to the shooting was a lie that he had made up. He appeared considerably confused and contradicted himself frequently. When it was pointed out to him that until the inquest it had not become known that the soldiers wore berets (no newspaper report had mentioned the detail), he supposed that he must have heard it in the street. When asked at the inquest why he had made up the statement, he referred to previous illness, pressure at work and the desire to stop being telephoned by a person who was asking him to give an interview to the media. 88. Miss Treacy claimed that she was in the path leading from the tunnel and that she was between Savage and the first of the soldiers as the firing began, though not in the line of fire. She recalled that Savage was running and thought that he was shot in the back as he faced towards the tunnel. She did not see him shot on the ground. Her account contained a number of apparent discrepancies with the evidence of other witnesses; she said the soldier shot with his left hand whereas he was in fact right-handed; no one else described Savage as running; and she described the body as falling with feet towards the nearby tree rather than his head which was the way all the other witnesses on the scene described it. The Coroner in his summing-up thought that it might be possible to reconcile her account by the fact that Miss Treacy may have not been looking at Savage as he spun round to face the soldiers and that by the time she did look he was spinning round towards the tunnel in reaction to the firing. 89. Mr Bullock and his wife stated that a man pushed past them as they walked up Smith Dorrien Avenue to the junction and that they saw that he had a gun down the back of his trousers. They saw him meet up with another man, also with a gun in his trousers, on the corner of the alleyway to the Landport tunnel. The men were watching the shooting outside the Shell garage and, when the shooting stopped, they turned and ran out of sight. After that there was another long burst of shooting. 90. Another witness, Mr Jerome Cruz, however, who was in a car in the traffic queue in Smith Dorrien Avenue and who remembered seeing Mr Bullock dive for cover, cast doubts on his version. In particular, he stated that Mr Bullock was not near the end of Smith Dorrien Avenue but further away from the Shell garage (more than 100 yards away) and that he had dived for cover as soon as there was the sound of shooting. He agreed that he had also seen persons crouching looking from behind a wall at the entrance to the pathway leading to the tunnel. 91. At 15.47-15.48 hours, E received a message in the operations room that apprehension of the three suspects had taken place. It was not clear at that stage whether they had been arrested or shot. By 16.00 to 16.05 hours, the report was received in the operations room that the three suspects had been shot. 92. At 16.05-16.06 hours, Soldier F handed a form to the Commissioner returning control. According to the transcript of the evidence given by the Commissioner at the inquest, this form addressed to him by Soldier F stated that "at 16.06 hours on 6 March a military assault force was completed at the military option in respect of the terrorist bombing ASU in Gibraltar. Control is hereby handed back to the Civil Power". Deputy Commissioner Colombo telephoned to Central Station for the evacuation plans to be put into effect. Instructions were also given with a view to taking charge of the scenes of the incidents. Soldier G was also instructed to commence the clearance of the car. 93. After the shooting, the bodies of the three suspects and Farrell’s handbag were searched. No weapons or detonating devices were discovered. 94. At the Shell garage scene, the shell cases and cartridges were picked up without marking their location or otherwise recording their position. The positions of the bodies were not marked. 95. At the scene of the Savage shooting, only some of the cartridge positions were marked. No police photographs were taken of the bodies’ positions. Inspector Revagliatte had made a chalk outline of the position of Savage’s body. Within that outline, there were five strike marks, three in the area of the head. 96. Chief Inspector Lopez ordered a general recall of personnel and went directly to the assembly area to begin cordoning it off. The fire brigade also arrived at the assembly area. The bomb-disposal team opened the suspect white Renault car but found no explosive device or bomb. The area was declared safe between 19.00 and 20.00 hours. 97. Chief Inspector Correa was appointed in charge of the investigation. 98. Inside Farrell’s handbag was found a key ring with two keys and a tag bearing a registration number MA9317AF. This information was passed at about 17.00 hours to the Spanish police who commenced a search for the car on the suspicion that it might contain explosives. During the night of 6 to 7 March, the Spanish police found a red Ford Fiesta with that registration number in La Linea. Inside the car were found keys for another car, registration number MA2732AJ, with a rental agreement indicating that the car had been rented at 10.00 hours on 6 March by Katharine Smith, the name on the passport carried in Farrell’s handbag. 99. At about 18.00 hours on 8 March, a Ford Fiesta car with registration number MA2732AJ was discovered in a basement car-park in Marbella. It was opened by the Malaga bomb-disposal squad and found to contain an explosive device in the boot concealed in the spare-wheel compartment. The device consisted of five packages of Semtex explosive (altogether 64 kg) to which were attached four detonators and around which were packed 200 rounds of ammunition. There were two timers marked 10 hrs 45 mins and 11 hrs 15 mins respectively. The device was not primed or connected. 100. In the report compiled by the Spanish police on the device dated Madrid 27 March 1988, it was concluded that there was a double activating system to ensure explosion even if one of the timers failed; the explosive was hidden in the spare-wheel space to avoid detection on passing the Spanish/Gibraltarian customs; the quantity of explosive and use of cartridges as shrapnel indicated the terrorists were aiming for greatest effect; and that it was believed that the device was set to explode at the time of the military parade on 8 March 1988. 101. Chief Inspector Correa, who acted also as Coroner’s Officer, traced and interviewed witnesses of the shooting of the three suspects. Police officers visited residences in the area knocking on doors and returning a second time when persons were absent. The Attorney-General made two or three appeals to the public to come forward. At the inquest, Inspector Correa commented that the public appeared more than usually reluctant to come forward to give statements to the police. 102. A post-mortem was conducted in respect of the three deceased suspects on 7 March 1988. Professor Watson, a highly qualified pathologist from the United Kingdom, carried out the procedure. His report was provided to a pathologist, Professor Pounder, instructed by the applicants. Comment was later made at the inquest by both pathologists with regard to defects in the post-mortem procedures. In particular, the bodies had been stripped before Professor Watson saw them, depriving him of possible aid in establishing entry and exit wounds, there had been no X-ray facilities and Professor Watson had not later been provided either with a full set of photographs for reference, or the forensic and ballistics reports. 103. An inquest by the Gibraltar Coroner into the killings was opened on 6 September 1988. The families of the deceased (which included the applicants) were represented, as were the SAS soldiers and the United Kingdom Government. The inquest was presided over by the Coroner, who sat with a jury chosen from the local population. 104. Prior to the inquest, three certificates to the effect that certain information should not, in the public interest, be disclosed, were issued by the Secretary of State for the Home Department, the Secretary of State for Defence and the Deputy Governor of Gibraltar, dated respectively 26 August, 30 August and 2 September 1988. These stated that the public interest required that the following categories of information be protected from disclosure: 1. In the case of the seven military witnesses, the objection was to the disclosure of any information or documents which would reveal: (i) their identity; (ii) the identity, location, chains of command, method of operation and the capabilities of the units with which the soldiers were serving on 6 March 1988; (iii) the nature of their specialist training or equipment; (iv) the nature of any previous operational activities of the soldiers, or of any units with which any of them might at any time have served; (v) in the case of Soldier G (the ammunition technical officer), any defence intelligence information, activities or operations (and the sources of intelligence), including those on the basis of which his assessments were made and details of security forces counter-measures capabilities, including methods of operation, specialist training and equipment. 2. In the case of Security Service witnesses, the objection was to the disclosure of information which would reveal: (a) the identities of members of the Security Service, and details of their deployment, training and equipment; (b) all sources of intelligence information; (c) all details of the activities and operations of the Security Service. 105. As was, however, expressly made clear in the certificates, no objection was taken to the giving of evidence by either military or Security Service witnesses as to: (i) the nature of the information relating to the feared IRA plot, which was transmitted to the Commissioner of Police and others concerned (including general evidence as to the nature of a Provisional IRA active service unit); (ii) the assessments made by Soldier G as to the likelihood of, and the risks associated with, an explosive device and as to the protective measures which might have to be taken; (iii) the events leading up to the shootings on 6 March 1988 and the circumstances surrounding them, including evidence relating to the transfer of control to the military power. 106. The inquest lasted until 30 September and during the nineteen days it sat, evidence was heard from seventy-nine witnesses, including the soldiers, police officers and surveillance personnel involved in the operation. Evidence was also heard from pathologists, forensic scientists and experts in relation to the detonation of explosive devices. 107. Evidence was given by Professor Watson, the pathologist who had conducted the post-mortem on the deceased on 7 March 1988 and also by Professor Pounder called on behalf of the applicants (see paragraph 102 above). 108. Concerning Farrell, it was found that she had been shot three times in the back, from a distance of some three feet according to Professor Pounder. She had five wounds to the head and neck. The facial injuries suggested that either the entire body or at least the upper part of the body was turned towards the shooter. A reasonable scenario consistent with the wounds was that she received the shots to the face while facing the shooter, then fell away and received the shots to the back. Professor Watson agreed that the upward trajectory of the bullets that hit Farrell indicated that she was going down or was down when she received them. Altogether she had been shot eight times. 109. Concerning McCann, he had been shot in the back twice and had three wounds in the head. The wound on the top of the head suggested that the chest wounds came before the head wound and that he was down or very far down when it was inflicted. The shots to the body were at about a 45-degree angle. He had been hit by five bullets. 110. Concerning Savage, he had been hit by sixteen bullets. He had seven wounds to the head and neck, five on the front of the chest, five on the back of the chest, one on the top of each shoulder, three in the abdomen, two in the left leg, two in the right arm and two on the left hand. The position of the entry wounds suggested that some of the wounds were received facing the shooter. But the wounds in the chest had entered at the back of the chest. Professor Watson agreed that Savage was "riddled with bullets" and that "it was like a frenzied attack". He agreed that it would be reasonable to suppose from the strike marks on the pavement that bullets were fired into Savage’s head as he lay on the ground. Professor Pounder also agreed that the evidence from strike marks on the ground and the angle and state of wounds indicated that Savage was struck by bullets when lying on his back on the ground by a person shooting standing towards his feet. He insisted under examination by counsel for the soldiers that the three strike marks on the ground within the chalk outline corresponded with wounds to the head. In his view "those wounds must have been inflicted when either the head was on the ground or very close to the ground indeed" and when pressed "within inches of the ground". 2. Forensic evidence at the inquest 111. A forensic scientist specialising in firearms had examined the clothing of the three deceased for, inter alia, powder deposits which would indicate that shots had been fired at close range. He found signs of partly burnt propellant powder on the upper-right back of Farrell’s jacket and upper-left front of Savage’s shirt which suggested close-range firing. He conducted tests which indicated that such a result was only obtained with a Browning pistol at a range of up to six feet. The density on Farrell’s jacket indicated a muzzle-to-target range of three feet and on Savage’s shirt of four to six feet. 112. Issues arose at the inquest as to whether, even if the three suspects had been carrying remote-control devices, they would have been able to detonate the suspected bomb which was approximately 1.4 km from the place where they were shot. Also it was questioned whether the soldiers could reasonably have expected that the applicants could have concealed the devices on their persons without it being apparent and whether in fact the device could have been detonated by pressing only one button. 113. Mr Feraday gave evidence for the Crown. He was a forensic scientist employed at Explosives Forensic Laboratory at Royal Armament Research and Development Establishment, with thirty-three years experience of explosives. He produced an ICOM IC2 transmitter, as an example of a device used in Northern Ireland, which was the size of a standard commercial walkie-talkie. It was also produced in evidence by the Government to both the Commission and Court in the Strasbourg proceedings (see paragraph 130 below). While referring to the factors which could affect the range (for example, terrain, weather conditions) Mr Feraday stated that the equipment could, in optimum conditions, operate up to a thirty-mile range. In his opinion, the aerial on the suspect car could have received a signal though its efficiency would have been fairly poor as it was not the right length for the frequency. He considered that one would have to assume that from the distance of about a mile a bomb could be detonated by remote control using that aerial. 114. The applicants called Dr Scott, who held a masters degree and doctorate in engineering and was a licensed radio operator. He had been involved in two IRA trials in England. He had conducted tests with similar receivers along the route taken by the three suspects. He referred to the fact that there was rising ground between the sites of the shootings and the assembly area as well as a thick wall and a considerable number of buildings. The IRA used encoders and decoders on their devices to prevent spurious signals detonating their bombs: this required that a good clean signal be received. He also stated that the bomb could have been neutralised by removing the car aerial and that such a manoeuvre would not have destabilised the explosive device. 115. Dr Scott also explained how the transmitter would operate. Assuming the dial setting the frequency was already set, it would be necessary to activate the on/off power switch, followed by the on/off switch on the encoder and then a third button would have to be pressed in order to transmit. While it would be possible to set the device so that it would be necessary to press one button (the transmit button) in order to detonate a bomb, this would require leaving the power switches on for both the transmitter and the encoder with the risk that the batteries would run down. There would also be the risk that the device might be set off accidentally by being bumped in the street or being hit by a bullet or by a person falling awkwardly so as to hit the edge of a pavement or bench. 116. Captain Edwards was called by the lawyer representing the soldiers to rebut this evidence. He was a member of the Royal Corps of Signals and had experience in VHF/HF radio in combat net radio spectrum. He carried out tests to see if voice communications were possible on an ICOM-type radio in the area of or from the Shell garage to Ince’s Hall. The equipment used was not identical to that of Dr Scott. He stated that it was possible to receive both voice communication and a single audio tone at the site of the shootings from the assembly area. He did not however use an encoder and his equipment was matched and compatible. Mr Feraday was also recalled. He gave the opinion that if a weak voice communication could be received then the signal would be sufficient to set off a bomb. 117. It appears to have been accepted by all that the IRA have developed the use of high-frequency devices, which require shorter aerials and have a surer line-of-sight effect. These are stated to have the characteristics suitable for detonation when the operator of the device has line of sight of the bomb and carry with them less possibility of interference from other radio sources or countermeasures. No examples were known or at least given as to this type of remote-control detonation being used other than in line-of-sight conditions. 118. At the inquest, the representative of the applicants, Mr P.J. McGrory, questioned the witnesses and made submissions to the effect, inter alia, that either the decision to shoot to kill the suspects had been made by the United Kingdom Government prior to the incident and the soldiers were ordered to carry out the shootings, or that the operation was planned and implemented in such a way that the killing of the suspects by the soldiers was the inevitable result. In any event, in light of the circumstances, the use of lethal force by the soldiers was not necessary or, if it was necessary, the force used was excessive and therefore not justified. He maintained throughout, however, that he did not challenge that the Commissioner of Police and his officers had acted properly and in good faith. 119. Soldier F (the senior military commander) and Soldier E (the tactical commander) denied that there had been a plan, express or tacit, to execute the suspects. When it was put to Soldiers A, B, C and D, they also denied that they had been sent out either expressly or on the basis of "a nod or a wink" to kill the suspects. 120. At the conclusion of the inquest, the Coroner addressed the jury in respect of the applicable law, in particular, Article 2 of the Gibraltar Constitution (see paragraph 133 below). As inquest proceedings did not allow for the parties to make submissions to the jury, he summed up the respective propositions of the applicants’ representatives and the representatives of the soldiers and the Crown referring to the evidence. He concluded from the evidence given by the soldiers that when they opened fire they shot intending to kill and directed the jury as to the range of possible verdicts: "... If the soldiers set out that day with the express intent to kill that would be murder and it would be right to return a verdict of unlawfully killed. Example two: were you to find in the case of Savage (or any of the other two for that matter) that he was shot on the ground in the head after effectively being put out of action, that would be murder if you come to the conclusion that the soldiers continued to finish him off. In both cases they intended to kill not in self-defence or in the defence of others or in the course of arrest ... so it is murder and you will return a verdict of unlawfully killed. If in this second example you were to conclude that it is killing in pursuance of force used which was more than reasonably necessary, then the verdict should also be killed unlawfully but it would not have been murder. The third example I offer is precisely of that situation. If you accept the account that the soldiers’ intention was genuinely to arrest (in the sense that they were to apprehend the three suspects and hand them over live to the Gibraltar police force) and that the execution of the arrest went wrong and resulted in the three deaths because either (a) force was used when it was not necessary or (b) the force that was used was more than was reasonably necessary, then that would not be murder ... and the verdict would be, as I say, unlawfully killed. Example four: if you are satisfied that the soldiers were acting properly but nevertheless the operation was mounted to encompass the deaths of the three suspects to the ignorance of the soldiers, then you would also bring in a verdict of unlawfully killed. ...So there are only three verdicts reasonably open to you and these are: (a) Killed unlawfully, that is unlawful homicide. (b) Killed lawfully, that is justifiable, reasonable homicide. (c) Open verdict. Remembering that you must be satisfied beyond reasonable doubt where the verdict of unlawfully killed is concerned, there are two situations to consider. The first concerning the soldiers themselves, the second if they have been the unwitting tools of a plot to dispose of the three suspects. As to the first concerning the soldiers themselves, I must tell you that if you are not satisfied beyond a reasonable doubt that they have killed unlawfully, you have then to decide whether your verdict should be an open verdict or one of justifiable homicide. My direction to you is that you should bring in a verdict of justifiable homicide, i.e. killed lawfully, because in the nature of the circumstances of this incident that is what you will have resolved if you do not return a verdict of unlawful homicide in respect of the soldiers themselves. That is the logic of the situation. You may reach a situation in which you cannot resolve either way, in which case the only alternative is to bring in an open verdict, but I must urge you, in the exercise of your duty, to avoid this open verdict. As to the second situation where they are unwitting tools, the same applies ..." 121. The jury returned verdicts of lawful killing by a majority of nine to two. 122. The applicants were dissatisfied with these verdicts and commenced actions in the High Court of Justice in Northern Ireland against the Ministry of Defence for the loss and damage suffered by the estate of each deceased as a result of their death. The statements of claim were served on 1 March 1990. 123. On 15 March 1990 the Secretary of State for Foreign and Commonwealth Affairs issued certificates under section 40 (3) a of the Crown Proceedings Act 1947, as amended by the Crown Proceedings (Northern Ireland) Order 1981. Section 40 (2) b of the same Act excludes proceedings in Northern Ireland against the Crown in respect of liability arising otherwise than "in respect of Her Majesty’s Government in the United Kingdom". A similar exemption applies to the Crown in Northern Ireland pursuant to the 1981 Order. A certificate by the Secretary of State to that effect is conclusive. The certificates stated in this case that any alleged liability of the Crown arose neither in respect of Her Majesty’s Government in the United Kingdom, nor in respect of Her Majesty’s Government in Northern Ireland. 124. The Ministry of Defence then moved to have the actions struck out. The applicants challenged the legality of the certificates in judicial review proceedings. Leave to apply for judicial review was granted ex parte on 6 July 1990, but withdrawn on 31 May 1991, after a full hearing, on the basis that the application had no reasonable prospects of success. Senior Counsel advised that an appeal against this decision would be futile. The applicants’ High Court actions were struck off on 4 October 1991. 125. On 28 April 1988 Thames Television broadcast its documentary entitled "Death on the Rock" (see paragraph 70 above), during which a reconstruction was made of the alleged surveillance of the terrorists’ car by the Spanish police and witnesses to the shootings described what they had seen, including allegations that McCann and Farrell had been shot while on the ground. A statement by an anonymous witness was read out to the effect that Savage had been shot by a man who had his foot on his chest. The Independent Broadcasting Authority had rejected a request made by the Foreign and Commonwealth Secretary to postpone the programme until after the holding of the inquest into the deaths. 126. While an invitation had been made by the Gibraltar police for a Spanish police officer to attend the inquest to give evidence relating to the role of the Spanish police, he did not attend, apparently since he did not receive permission from his superiors. 127. The Government provided the Commission with a copy of a statement made by Chief Inspector Rayo Valenzuela, a police officer in Malaga, dated 8 August 1988. According to this statement, the United Kingdom police had at the beginning of March provided the Spanish police with photographs of the possible members of the ASU, named as Daniel McCann, Mairead Farrell and Sean Savage. The three individuals were observed arriving at Malaga Airport on 4 March 1988 but trace of them was lost as they left. There was then a search to locate the three suspects during 5 to 6 March 1988. This statement provided by the Government was not included in the evidence submitted at the inquest, as the Coroner declined to admit it following the objection by Mr P.J. McGrory who considered that it constituted hearsay in the absence of any police officer from Spain giving evidence in person. 128. This statement, dated 21 September 1988 and supplied on behalf of the applicants, was made by a journalist who acted as consultant to the makers of the Thames Television programme "Death on the Rock". He stated that the white Renault car used by the ASU was under surveillance by the Spanish authorities as it proceeded down the coast towards Gibraltar. Surveillance is alleged to have been conducted by four to five police cars which "leapfrogged" to avoid suspicion, by helicopter and by agents at fixed observation points. The details of the car’s movements were transmitted to the authorities in Gibraltar who were aware of the car’s arrival at the border. He refers to the source of this information as being Mr Augustín Valladolid, a spokesman for the Spanish Security Services in Madrid, with whom he and Mr Julian Manyon, a reporter for Thames Television, had an interview lasting from 18.00 to 19.20 hours on 21 March 1988. 129. The applicants intended submitting this statement as evidence before the inquest. The Coroner decided however that it should also be excluded as hearsay on the same basis as the statement relied upon by the Government (see paragraph 127 above). 130. An ICOM transmitter device was provided to the Commission and Court by the Government with an improvised encoder attached. The dimensions of the transmitter are 18 cm x 6.5 cm x 3.7 cm; the encoder (which is usually taped to the transmitter and which can be contained in a small flat Strepsil tin) is 8 cm x 9 cm x 3 cm. The aerial from the transmitter is 18 cm long. 131 The applicants also submitted a further opinion of Dr Scott, dated 22 October 1993, in which he reiterated his view that it would have been impossible for the three suspects to have detonated a bomb in the target area from the location where they were shot using an ICOM or any other conceivable concealable transmitter/aerial combination, which he maintains must have been well known to the authorities. He also drew attention to the fact that the strength of a hand-held transmitter is severely attenuated when held close to the human body; when transmitting it should be held well clear of the body with the aerial as high as possible. 132. In its report of 4 March 1994, the Commission made the following findings on questions of fact: - that the suspects were effectively allowed to enter Gibraltar to be picked up by the surveillance operatives in place in strategic locations for that purpose (at paragraph 213); - that there was no evidence to support the applicants’ contention of a premeditated design to kill Mr McCann, Ms Farrell and Mr Savage (at paragraph 216); - that there was no convincing support for any allegation that the soldiers shot Mr McCann and Ms Farrell when they were attempting to surrender or when they were lying on the ground. However the soldiers carried out the shooting from close proximity. The forensic evidence indicated a distance of as little as three feet in the case of Ms Farrell (at paragraphs 222 and 223); - Ms Farrell and Mr McCann were shot by Soldiers A and B at close range after the two suspects had made what appeared to the soldiers to be threatening movements. They were shot as they fell to the ground but not when they were lying on the ground (at paragraph 224); - it was probably either the sound of the police siren or the sound of the shooting of Mr McCann and Ms Farrell at the Shell garage, or indeed both, which caused Mr Savage to turn round to face the soldiers who were behind him. It was not likely that Soldiers C and D witnessed the shooting of Mr McCann and Ms Farrell before proceeding in pursuit of Savage (at paragraph 228); - there was insufficient material to rebut the version of the shooting given by Soldiers C and D. Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he hit the ground. This conclusion was supported by the pathologists’ evidence at the subsequent inquest (at paragraphs 229 and 230); - Soldiers A to D opened fire with the purpose of preventing the threat of detonation of a car bomb in the centre of Gibraltar by suspects who were known to them to be terrorists with a history of previous involvement with explosives (at paragraph 231); - a timer must in all probability have been mentioned at the Commissioner’s operational briefing. For whatever reason, however, it was not a factor which was taken into account in the soldiers’ view of the operation (at paragraph 241). 133. Article 2 of the Gibraltar Constitution provides: "1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. 2. A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable: (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; ... (d) in order to prevent the commission by that person of a criminal offence." 134. The relevant domestic case-law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest (see, for example, Lynch v. Ministry of Defence [1983] Northern Ireland Law Reports 216; R v. Gladstone Williams [1983] 78 Criminal Appeal Reports 276, at p. 281; and R v. Thain [1985] Northern Ireland Law Reports 457, at p. 462). 135. The test of whether the use of force is reasonable, whether in self-defence or to prevent crime or effect an arrest, is a strict one. It was described in the following terms in the report of the Royal Commission appointed to consider the law relating to indictable offences ([1879] 36 House of Lords Papers 117, at p. 167): "We take one great principle of the common law to be, that though it sanctions the defence of a man’s person, liberty and property against illegal violence, and permits the use of force to prevent crimes to preserve the public peace and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by or which might reasonably be anticipated from the force used is not disproportionate to the injury or mischief, which it is intended to prevent." Lord Justice McGonigal in Attorney General for Northern Ireland’s Reference ([1976] Northern Ireland Law Reports 169 (Court of Appeal)) stated his understanding of this approach as follows (at p. 187): "... it appears to me that, when one is considering whether force used in any particular circumstances was reasonable, the test of reasonableness should be determined in the manner set out in that paragraph. It raises two questions: (a) Could the mischief sought to be prevented have been prevented by less violent means? (b) Was the mischief done or which could reasonably be anticipated from the force used disproportionate to the injury or mischief which it was intended to prevent? These are questions to be determined objectively but based on the actions of reasonable men who act in the circumstances and in the light of the beliefs which the accused honestly believed existed and held. Force is not reasonable if (a) greater than that necessary, or (b) if the injury it causes is disproportionately greater than the evil to be prevented." 136. The document annexed to the operational order of the Commissioner of Police entitled "Firearms - rules of engagement" provided in so far as relevant: "General rules 1. Do not use more force than necessary to achieve your objective. 2. If you use firearms you should do so with care for the safety of persons in the vicinity. 3. Warning before firing (a) A warning should, if practicable, be given before opening fire. It should be as loud as possible and must include an order to stop attacking and a statement that fire will be opened if the orders are not obeyed. (b) You may fire without warning in circumstances where the giving of a warning or any delay in firing could lead to death or serious injury to a person whom it is your duty to protect, or to yourself, or to another member in your operation. 4. Opening fire You may open fire against a hostage taker (a) If he is using a firearm or any other weapon or exploding a device and there is a danger that you or any member involved in the operation, or a person whom it is your duty to protect, may be killed or seriously injured. (b) If he is about to use a firearm or any other weapon or about to explode an explosive device and his action is likely to endanger life or cause serious injury to you or another member involved in the operation, or any person whom it is your duty to protect ... 5. If he is in the course of placing an explosive charge in or near any vehicle, ship, building or installation which, if exploded, would endanger life or cause serious injury to you or another member involved in the operation or to any person whom it is your duty to protect and there is no other way to protect those in danger ..." 137. Also attached to the operational order was a guide to police officers in the use of firearms which read: "Firearms: Use by Police. The object of any police firearms operation is that the armed criminal is arrested with the least possible danger to all concerned. It is the first duty of the police to protect the general public, but the police should not endanger their lives or the lives of their colleagues for the sake of attempting to make an early arrest. The physical welfare of a criminal armed with a firearm should not be given greater consideration than that of a police officer, and unnecessary risks must not be taken by the police. In their full use of firearms, as in the use of any force, the police are controlled by the restrictions imposed by the law. The most important point which emerges from any study of the law on this subject is that the responsibility is an individual one. Any police officer who uses a firearm may be answerable to the courts or to a coroner’s inquest and, if his actions were unlawful (or improper), then he as an individual may be charged with murder, manslaughter or unlawful wounding. Similarly, if his use of a firearm was unlawful or negligent the individual could find himself defending a civil case in which substantial damages were being claimed against him. That a similar claim could be made against the Commissioner of Police will not relieve the individual of his liabilities. The fact that a police officer used his firearms under the orders of a superior does not, of itself, exempt him from criminal liability. When a police officer is issued with a firearm he is not thereby given any form of authority to use it otherwise than strictly in accordance with the law. Similarly, when an officer is briefed about an operation, information about a criminal may indicate that he is desperate and dangerous. Whilst this will be one of the factors to consider it does not of itself justify shooting at him. The final responsibility for his actions rests on the individual and therefore the final decision about whether a shot will or will not be fired at a particular moment can only be made by the individual. That decision must be made with a clear knowledge of the law on the subject and in the light of the conditions prevailing at the time." 138. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ("UN Force and Firearms Principles") were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 139. Article 9 of the UN Force and Firearms Principles provides, inter alia, that "intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life". Other relevant provisions provide as follows: "... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident." "... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control." "Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly." 140. Article 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by Economic and Social Council Resolution 1989/65, ("UN Principles on Extra-Legal Executions") provides, inter alia, that: "There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ..." Articles 9 to 17 contain a series of detailed requirements that should be observed by investigative procedures into such deaths. | 1 |
train | 001-94983 | ENG | TUR | CHAMBER | 2,009 | CASE OF FATMA TUNC v. TURKEY (No. 2) | 4 | Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant was born in 1980 and lives in Kocaeli. 5. On 10 October 2001 the applicant was arrested in Istanbul on suspicion of being a member of an illegal organisation. On 14 October 2001 the applicant was allowed to see her lawyer for a short period of time (five minutes) following the permission given by the public prosecutor. 6. On 14 October 2001 the applicant's statement was taken by the police in the absence of a lawyer. In her statement, the applicant accepted the charges against her and gave a detailed account of her connections in the illegal organisation. Subsequently, on 16 October 2001 the applicant was brought before the public prosecutor, and thereafter before the investigating judge of the Istanbul State Security Court. Before the public prosecutor, the applicant admitted that she was a member of the illegal organisation. When questioned by the investigating judge, the applicant denied the charges against her. After the interrogation, the investigating judge ordered that the applicant be detained on remand. 7. On 23 November 2001 the public prosecutor filed an indictment with the Istanbul State Security Court, accusing the applicant of being a member of an illegal armed organisation under Article 168 § 2 of the Criminal Code and Article 5 of the Anti-Terrorism Act. 8. On 4 March 2004, based on her police statement and other evidence before it, the Istanbul State Security Court convicted the applicant as charged and sentenced her to twelve years and six months' imprisonment. On 11 November 2004 the Court of Cassation rejected the applicant's appeal. 9. On 7 October 2005 the applicant was released from prison. | 1 |
train | 001-81734 | ENG | TUR | CHAMBER | 2,007 | CASE OF MEHMET AND SUNA YİĞİT v. TURKEY | 3 | Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six-month period);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | null | 3. The applicants were born in 1970 and 1969 respectively and live in the District of Ergani, in Diyarbakır. 4. On 27 June 1997 the applicants' daughter, Esra Yiğit, then aged seven months, underwent surgery at the Dicle University Medical Faculty Hospital for a congenital hip dislocation. During the operation, she had a cardiac arrest and lapsed into a coma. On 13 July 1997 Esra Yiğit came out of the coma, but she was unable to move her arms and legs. On 15 July 1997 she was admitted to the neurosurgery department and was diagnosed as suffering from “hypoxic brain syndrome”. On 21 July 1997 she was discharged from the hospital. 5. On 13 May 1998 the applicants filed a compensation claim with the Rectorate of the Dicle University for the pecuniary and non-pecuniary damage caused by the alleged negligence of the medical staff who performed the operation. No response was given to the applicants within the sixty day period prescribed in the Code of Administrative Procedure. 6. On 11 August 1998 the applicants filed an action with the Diyarbakır Administrative Court, requesting compensation. They also requested legal aid for the court fees. 7. On an unspecified date Mehmet Yiğit obtained a certificate from the office of the headman (muhtarlık) attesting to his indigence. 8. On 26 August 1998 Mehmet Yiğit further applied to the Office of the District Governor in Ergani, requesting an official certificate as to whether he owned property in Ergani. 9. On the same day, the Office of the District Governor, the Directorate of Land Registration and the Ergani Municipality drafted attestations stating that Mehmet Yiğit did not own any immovable property in Ergani. 10. On 27 August 1998 the Ergani Revenue Department informed the District Governor's Office that it had no records indicating that Mehmet Yiğit paid tax. 11. On an unspecified date the Diyarbakır Administrative Court dismissed the case on procedural grounds. The domestic court stated that the applicants could lodge a new case within one month following the rectification of the defects in their application. 12. On 19 October 1998 the applicants applied to the Diyarbakır Civil Court of General Jurisdiction, requesting exemption from paying the court fees. The court granted their request. 13. On 23 October 1998, after rectifying the procedural shortcomings in their first petition, the applicants lodged another case with the Diyarbakır Administrative Court. In their petition, they repeated their request for legal aid for the court fees. 14. On 17 November 1998 the Diyarbakır Administrative Court dismissed the applicants' request for legal aid. The court held that, since the applicants were represented by a lawyer, they could not be considered to be in need of legal aid. (The applicants had had a contingency fee arrangement with their lawyer.) In its decision, the court referred to the case-law of the Supreme Administrative Court and the provisions of the Civil Procedure Code. 15. On 1 December 1998 and 4 February 1999, the Diyarbakır Administrative Court notified the applicants that they were required to pay 180,000,000 Turkish liras (TRL) in respect of the court fees. 16. On 8 March 1999 the applicants lodged a petition with the administrative court requesting the annulment of the decision dated 17 November 1998. In their petition, they stated, inter alia, that they did not have sufficient means to pay the court fees and that the rejection of their request for legal aid was in violation of their right of access to a court. 17. On 16 April 1999 the Diyarbakır Administrative Court discontinued the proceedings because the applicants had not paid the necessary legal fees. 18. On 16 October 2001 the Supreme Administrative Court upheld the decision of 16 April 1999. 19. Article 31 of the Code of Administrative Procedure provides that when administrative court judges determine a legal aid request, they should apply the relevant provisions of the Code of Civil Procedure (Articles 465-472, below). 20. Article 465 states that a request for legal aid may only be granted if the claimant submits evidence in support of his/her request. 21. According to Article 468, in order to determine whether or not the person applying for legal aid has sufficient means, he/she shall be required to submit a certificate attesting to his/her indigence; another certificate indicating whether or not the individual owns any property and an attestation regarding how much, if any, tax he/she had paid. These certificates should be obtained from the appropriate domestic authorities. 22. Article 469 provides that decisions regarding legal aid are binding. 23. In November 1998, the minimum wage in force was 47,839,500 Turkish liras (approximately 158 US Dollars) a month. | 1 |
train | 001-22219 | ENG | DNK | ADMISSIBILITY | 2,002 | LAVRSEN v. DENMARK | 4 | Inadmissible | Christos Rozakis | The applicant is a Danish national, born in 1942, living in Piraeus, Greece. He is represented before the Court by Mr Jakob Skaarup Arrevad, a lawyer practising in Copenhagen, Denmark. The respondent Government are represented by its Agent Mr Hans Klingenberg, the Ministry of Justice, and its Co-Agent, Mrs Nina Holst-Christensen, the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. By indictment of 5 September 1991 the applicant, at that time a practising lawyer, jointly with one of his clients, henceforth called MA, was charged with aggravated breach of trust alleged to have been committed in their roles as manager and/or chairman of the board of two companies, owned by MA over a short period between July and September 1989, during which period, they had let the companies purchase three industrial properties from a company controlled by MA at a price substantially above market value, the amount including an agency commission to MA exceeding 4.6 million Danish kroner (DKK), whereby the acquiring companies suffered or risked suffering a corresponding financial loss. The companies went bankrupt on 26 September 1989. Moreover the applicant (and MA) was charged with fraud alleged to have been committed in the same period relating to the sale of two cars to a person henceforth called SP under the pretence that the cars were not in pawn. The applicant and MA pleaded not guilty on both counts. As regards the second count they claimed that SP acted in bad faith. Several hearings were held in the City Court. During these proceedings SP and 8 other witnesses were heard, including 3 witnesses henceforth called MWK, KAT and IK. The prosecution and the defence agreed not to hear 2 witnesses henceforth called THL and BA. By judgment of 8 December 1992 the City Court of Ballerup (Ballerup ret) convicted the applicant (and MA). The applicant was sentenced to 2 years’ imprisonment and deprived of his right to practise law. From the judgment it appears that in order to convict the applicant (and MA) of aggravated breach of trust the court relied partly on the testimonies given by MWK and KAT concerning the contents and aim of some particular transactions these witnesses had with MA. As regards the charge of fraud it appears that the court relied partly on the testimonies given by SP and IK concerning the sale of the 2 cars. The applicant (and MA) appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret). During these proceedings 11 witnesses were heard, including SP, MWK, KAT and IK. As regards these witnesses the applicant expressed doubts during the proceedings in the High Court as to their credibility and therefore requested the prosecution to provide information about their criminal records, and that counsel for the defence be allowed to ask questions, in writing, about any pending charges which might have been brought against them concerning financial crime. In accordance with section 185 of the Administration of Justice Act (Retsplejeloven) this was complied with. MWK and IK confirmed that charges were brought against them. SP had previously been convicted of fraud and fraudulent preference. On 21 December 1993 the High Court of Eastern Denmark upheld the judgment, but increased the sentence to 2 years and 6 months’ imprisonment. As regards the conviction for aggravated breach of trust the High Court referred to the reasoning given by the City Court. However, regarding the conviction for fraud the High Court relied, in addition to the reasoning given by the City Court, on testimony given by a witness who was not heard before the City Court. After the trial in the High Court and due to press coverage, the applicant and counsel for the defence, accidentally became aware that within the police a so-called Information Centre in January 1990 had composed a note called “Anti-Social Trade” (Samfundsskadelig Samhandel), henceforth called the note, illustrating a new pattern of crime, and outlining 23 named individuals suspected of being interrelated in a network of financial crimes in Denmark, mainly concerning fraudulent trading in connection with deliberate bankruptcy intentions, breaches of laws concerning bookkeeping and accounting in companies, customs and excise fraud committed in connection with car sales, and finally fraud related to the raising of credit secured on real property. Among the persons mentioned in the note were the applicant, MA, SP, MWK, KAT, IK, THL and BA. The note contained information about judgments, charges, dropped charges, and mere suspicions against each person in regard to the above criminality, and a statement of their assumed mutual business connections. According to the note it was ascertained that this limited circle, among others, systematically exploited those loopholes and ambiguities in the Danish legislation, which sometimes arise in connection with new legislation and/or reorganisation of administrative procedures. It appears from the introductory paragraphs of the note that the State Prosecutor for Financial Crime (Statsadvokaten for Særlig Økonomisk Kriminalitet) in 1989 decided that the Information Centre was to illustrate this new pattern of crime. The Information Centre was not supposed to go into depth as to bring forth evidence to prove that crimes had been committed, it was merely intended to outline the information available. If the result turned out as expected the purpose was to have a special group appointed from several different police units, as none could manage the task alone for resource reasons. This group was then to make concrete investigations with the targeted attempt to have proceedings instituted against the individuals in question. The note was distributed to the Prosecutor General (Rigsadvokaten), the State Prosecutors (Statsadvokaterne), the National Commissioner of Police (Rigspolitichefen) and the various police districts. The prosecution did not submit the note, either to the applicant, or to the court during the criminal proceedings against the applicant The applicant requested leave to appeal against the above judgment of the High Court to the Supreme Court (Højesteret). With a view to this counsel for the defence asked the prosecution, on 16 June 1994, to submit a copy of the above note. However, access to the note was refused by the State Prosecutor for Financial Crime on 22 July 1994, by the Prosecutor General on 2 November 1994 and by the Ministry of Justice (Justitsministeriet) on 12 April 1995. The applicant then brought legal proceedings before the High Court of Eastern Denmark against the Ministry of Justice requesting that counsel for the defence be given access to the note. Before the High Court as regard the nature of the note in general the Ministry of Justice referred to its reply of 30 May 1996 to a question from Parliament, according to which inter alia: “The note has been drafted by the Information Centre...mainly for use in deliberations on how to rank the cases in order of priority, on combinations of resources and on prosecution competence... On the basis of the note...concrete investigative steps were taken, and that was the primary purpose of the note...several of the individuals referred to in the note have been prosecuted and a number of them have been convicted. The note contains a compilation of a series of particulars and suspicions... concerning 23 named individuals. The note was thus a good foundation, in an investigating context, for the police and the prosecutors to ensure better co-ordination of the investigation and the commencement of prosecution in cases regarding financial crime...” The High Court of Eastern Denmark found for the Ministry on 7 November 1996. The applicant appealed against the judgment to the Supreme Court, before which the prosecutor in the applicant’s trial as a witness stated that he was given a copy of the note as general material like all other prosecutors working for the State Prosecutor for Financial Crime, but since the note did not form part of any specific case, he did not use it in connection with his work on the applicant’s case. The Supreme Court found for the applicant on 11 June 1998, stating as follows: “According to section 745, subsection 1 of the Administration of Justice Act the defence is entitled to have access to material produced by the police. As stated by the Prosecutor General in his notice No. 5 of 15 April 1992, to come within the scope of this provision, the material needs to have some connection with the relevant trial. However, it does not have to be of real importance to the investigation or to the possible continuation of the prosecution. From the Minister of Justice’s answer of 30 May 1996 to Parliament it appears, among other things, that as a result of the “Anti-Social Trade” note and in accordance with the main aim of the note, specific measures and investigation were initiated. The Ministry of Justice does not dispute that the applicant, the co-accused and some of the witnesses who were heard during the applicant’s trial figure in the note, including the mutual relationship among some of them. The investigations were initiated shortly after the note was composed, and both the persons in charge of the investigations and the prosecutor were in possession of the note. In these circumstances, the Supreme Court considers that the note has such a connection with the applicant’s trial that the defence is entitled to have access to it cf. section 745, subsection 1 of the Administration of Justice Act.” A copy of the note was hereafter sent to the applicant’s counsel on 23 June 1998. Subsequently, in support of his request for leave to appeal the applicant alleged that Article 6 § 1 of the Convention had been violated, notably as the principle of equality of arms had not been complied with. In this respect he referred to the content of the note, with which both the police and the prosecution were familiar, but which was not available to counsel for the defence during the criminal trial. On 12 October 1998 the Ministry of Justice refused the applicant’s request for leave to appeal to the Supreme Court for which reason the High Court judgment of 21 December 1993 became final. | 0 |
train | 001-4549 | ENG | AUT | ADMISSIBILITY | 1,999 | PEJCINOSKI v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The first applicant is an Austrian national, born in 1970. The second applicant is a Slovakian national, born in 1973. They are living in Vienna. They are represented before the Court by Mr. Johannes Hock, a lawyer practising in Vienna. On 27 October 1993 the second applicant filed a request for a residence permit, indicating that the first applicant and herself intended to get married. On 20 March 1994 the Vienna Regional Government (Landesregierung) dismissed this request. It noted that under S. 2 of the 1992 Residence Act (Aufenthaltsgesetz) a quota for issuing new residence permits was fixed every year. In administering the quota, priority had to be given, inter alia, to cases of family reunion under S. 3 of the said Act, in which marriage with an Austrian citizen had already existed for at least one year at the time of the request. However, the second applicant did not fulfil this requirement. On 5 April 1994 the applicants got married. It appears that they were already living together before their marriage. On 11 April 1994 the second applicant, represented by counsel, filed an appeal. She referred in particular to the marriage which she and the first applicant had meanwhile concluded. She further submitted that the first applicant had been living in Vienna since 1979. He was employed as a worker and was able to maintain his family. On 5 September 1994 the Federal Ministry for the Interior (Bundesministerium für Inneres) dismissed the appeal. It noted that the quota fixed under S. 2 of the 1992 Residence Act was already filled. According to S. 9 of the said Act, any requests which could not be based on a right to family reunion under S. 3 had to be dismissed. On 4 October 1994 the second applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof). She submitted in particular that she had a right to a residence permit under S. 3 of the 1992 Residence Act in view of her marriage to an Austrian national. On 5 October 1994 the second applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). She submitted that the decision refusing her a residence permit violated her right to respect for her private and family life. She argued in particular that S. 3 § 1 of the 1992 Residence Act granted non-national spouses of Austrian nationals the right to a residence permit. However, according to S. 3 § 2 the right was subject to the condition that the marriage had already lasted for a year at the time of lodging the request. Such a restriction of the right to a residence permit was contrary to Article 8 of the European Convention on Human Rights and was, therefore, unconstitutional. The impugned provision obliged an Austrian national and his foreign spouse to live separately for at least one year. It therefore interfered with their right to private and family life. It was not apparent that this interference served any of the legitimate aims set out in the second paragraph of Article 8 of the European Convention on Human Rights. Inasmuch as S. 3 § 2 of the 1992 Residence Act might serve to prevent fictitious marriages, the interference was disproportionate as it equally affected spouses truly wishing to lead a marital life. In her case, a separation from the first applicant would be particularly difficult as she was expecting a baby which would be born with a defect of the abdominal wall necessitating an operation immediately after its birth. Also on 5 October 1994 the applicants’ daughter was born in Vienna. On 6 October 1994 the first applicant requested the Constitutional Court to review the constitutionality of S. 3 § 2 of the 1992 Residence Act. He argued that the impugned provision had direct consequences for him. Adducing the same arguments as the first applicant he pleaded that the impugned provision was contrary to Article 8 of the European Convention on Human Rights. Further he argued that it also violated the principle of nondiscrimination as real marriages were treated in the same way as fictitious marriages. On 27 November 1995 the Constitutional Court refused to deal with the second applicant’s complaint for lack of prospects of success. Also on 27 November 1995 the Constitutional Court rejected the first applicant’s request. It found that S. 3 § 2 of the 1992 Residence Act was not addressed to or directed against the first applicant. That the impugned provision, being addressed to the second applicant as an alien, produced certain factual consequences for him did not suffice to entitle him to request the review of its constitutionality. On 15 December 1995 the Administrative Court dismissed the second applicant’s complaint. It noted that it was uncontested that she had filed her request for a residence permit on 27 October 1993 while her marriage with the first applicant had only been concluded on 5 April 1994. As S. 3 of the 1992 Residence Act only conferred a right to a residence permit on the foreign spouse if the marriage with an Austrian national had already existed for a year at the time of filing the request, the second applicant could not rely on this provision. This decision was served on the second applicant on 19 April 1996. | 0 |
train | 001-22413 | ENG | GBR | ADMISSIBILITY | 2,002 | DAVIES v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Phillip Davies, is a British national, born in 1975 and living in Hartlepool. He is represented before the Court by Silver Savory Smith, a firm of solicitors practising in Cambridge. The respondent Government are represented by their Agent, Mr. C. Whomersley of the Foreign and Commonwealth Office. At the time of the events in question the applicant was a soldier in the British Army, holding the rank of Craftsman in the 39th Engineer Regiment of the Royal Electrical and Mechanical Engineers. In September 1997 the applicant’s regiment were on a tour of duty in Northern Ireland. On the evening of 11 September 1997 an altercation took place in a transit accommodation block between the applicant and another soldier, witnessed by three others. Statements were taken from the witnesses, but these were subsequently destroyed in view of the fact that the regiment was shortly to return to England where the incident would be investigated by the military police. Following the investigation, the applicant was charged with assault occasioning actual bodily harm, contrary to section 70 of the Army Act 1955 (see below). He pleaded not guilty on grounds of self-defence. His case was heard before a district court martial held at Colchester between 29 September and 3 October 1997. The applicant was legally represented at, and subsequent to, the hearing. The court martial consisted of three military officers and an Assistant Judge Advocate General. The applicant was found guilty and, on 3 October 1997, he was sentenced to eleven months’ detention and ordered to undergo stoppages of pay until he had made good the sum of GBP 600 by way of compensation to the victim of the assault. A petition for review of the finding and sentence of 22 October 1997 was refused by the Defence Council on 4 December 1997. The applicant applied for leave to appeal against conviction to the Courts-Martial Appeal Court on 23 December 1997, on the grounds that the trial judge had been wrong to allow the trial to continue given the destruction of the witness statements, and that the conviction was therefore unsafe and unsatisfactory. Leave to appeal against conviction was granted by a single judge on 10 February 1998. The appeal was dismissed on 11 May 1998. Between his conviction and the hearing of his appeal, the applicant was detained in Colchester Military Corrective Training Centre. Under the Army Act 1955 as amended by the Armed Forces Act 1996 (which came into force on 1 April 1997), neither the district court martial nor the Defence Council nor the Courts-Martial Appeal Court had any power to grant the applicant bail pending the determination of his appeal. Section 70 of the Army Act 1955 (“the 1955 Act”) renders offences under ordinary criminal law committed by members of the armed services offences against military law. Offences against military law are tried by way of court martial. Section 113 of the 1955 Act (as amended by the armed Forces Act 1996) provides (as relevant): “113.(1) Where a court-martial has found the accused guilty of any offence, the accused may ... present a petition to the Defence Council against finding or sentence or both. (2) The reviewing authority shall ... review any finding of guilt made, and sentence passed, by a court martial. ... (5) For the purposes of this Act the reviewing authority is - (a) the Defence Council; or (b) any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.” Under section 120 of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may order that a sentence be suspended. Under section 118(2) of the Act, where a sentence has been suspended before committal to detention it shall not begin to run until the suspension is determined. Under section 120A of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may alternatively order that a sentence be postponed until the end of a period specified in the order. In the event of such an order, the sentence continues to run from the date on which it was pronounced, but does not have effect throughout the period of postponement. Section 19 of the Criminal Appeals Act 1968 provides the Court of Appeal with a power to grant bail to a civilian appellant in a criminal case pending the hearing of his appeal. | 0 |
train | 001-57601 | ENG | GBR | CHAMBER | 1,982 | CASE OF X. v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Notes agreement on Costs and expenses - Convention proceedings | null | 1. The case of X v. the United Kingdom was referred to the Court by the European Commission of Human Rights ("the Commission") in October 1980. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on 14 July 1974 by a United Kingdom citizen, referred to as X in this judgment in view of the wish expressed by his next of kin following his death in 1979. 2. The applicant had alleged violation of paragraphs 1, 2 and 4 of Article 5 (art. 5-1, art. 5-2, art. 5-4) of the Convention in relation to his compulsory confinement in a psychiatric hospital. By judgment of 5 November 1981, the Court held that there had been a breach of paragraph 4 (art. 5-4), but not of paragraph 1 (art. 5-1), of Article 5 and that it was not necessary also to examine the case under paragraph 2 (art. 5-2) (Series A no. 46, points 1, 2 and 3 of the operative provisions and paragraphs 36-66 of the reasons, pp. 17-28). The only outstanding matter to be settled in the present case is the question of the application of Article 50 (art. 50). Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 30 of the above-mentioned judgment (ibid., pp. 6-14). 3. At the public hearings held on 22 June 1981, counsel on behalf of the applicant had stated that, should the Court find a violation, they would be submitting a claim for just satisfaction under Article 50 (art. 50) to obtain both compensation for damage suffered and reform of the law. The Government of the United Kingdom ("the Government"), for their part, had not taken a stand on the matter. In its judgment of 5 November 1981, the Court reserved the whole of this question. The Commission was invited to submit to the Court, within the coming two months, written observations thereon and, in particular, to notify the Court of any friendly settlement at which the Government and the applicant’s next of kin might have arrived (see point 4 of the operative provisions and paragraph 67 of the reasons, ibid., pp. 29 and 28). 4. The President of the Chamber extended the above-mentioned time-limit twice, on the last occasion until 5 May 1982. On this date, the Secretary to the Commission, acting on the Delegate’s instructions, transmitted to the registry copies of correspondence giving details of the negotiations between the Government and the applicant’s representatives, together with the Delegate’s observations thereon. These documents revealed that although opinions on certain items were not widely diverse, no overall settlement had been reached. 5. By Order of 10 May 1982, the President of the Chamber directed that the Agent of the Government should have until 21 June to file any comments on the observations of the Commission’s Delegate. This time-limit was subsequently extended by five weeks. On 30 July, the Agent of the Government filed a memorial. 6. On 1 September, the Secretary to the Commission, in response to a request made on 30 August by the Registrar, supplied the latter with certain information, together with several supporting documents. 7. During the negotiations, claims for just satisfaction were put forward under three heads: (a) for reform of the domestic law to bring it into line with the requirements of the Convention; (b) for financial compensation for damage caused by the breach of Article 5 § 4 (art. 5-4); (c) for reimbursement of costs necessarily incurred. For ease of reference, further particulars of these claims are set out below in the section "As to the law". 8. Subsequent to and, according to the Government, as a direct result of the judgment of 5 November 1981, various amendments were inserted into the Mental Health (Amendment) Bill, which is still before Parliament. In brief, these amendments provide that from the coming into force of the Act (scheduled for September 1983), Mental Health Review Tribunals will be empowered to consider the substantive grounds for the continued detention of a restricted patient, and will be required to order discharge where appropriate. The Government have in addition given an undertaking to Parliament to provide legal representation at public expense for patients coming before Mental Health Review Tribunals whose own financial resources are insufficient. 9. Mr. Thór Vilhjálmsson, Mrs. D. Bindschedler-Robert and Mr. L. Liesch, substitute judges, took the place of Mr. M. Zekia, Mr. D. Evrigenis and Mr. B. Walsh, who were prevented from taking part in the further consideration of the case (Rules 22-1 and 24-1 of the Rules of Court). 10. The Chamber decided on 21 September 1982 that there was no call to hold oral hearings. | 0 |
train | 001-61701 | ENG | AUT | CHAMBER | 2,004 | CASE OF WEH v. AUSTRIA | 3 | No violation of Art. 6-1 | Peer Lorenzen | 10. The applicant, Mr W. Weh, was born in 1952 and lives in Bregenz. 11. On 21 March 1995 the Bregenz District Authority (Bezirkshaupt-mannschaft) served an anonymous order (Anonymverfügung) upon the applicant in the sum of 800 Austrian schillings (ATS). It stated that on 5 March 1995 the driver of the car, registered in the applicant's name, had exceeded the city area speed limit of 50 km/h by 21 km/h. 12. The applicant did not comply with the anonymous order. Consequently, the order became invalid (see paragraph 31, below). 13. Subsequently, the Bregenz District Authority opened criminal proceedings for exceeding the speed limit against unknown offenders and, on 27 April 1995, it ordered the applicant as the registered car owner, under section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), to disclose who had been driving his car. The applicant answered that “C.K.[first and family name in full]”, living in “USA/University of Texas” was the person who had used the car. 14. On 25 July 1995 the Bregenz District Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 900 (with 54 hours' imprisonment in default). It noted that he had submitted inaccurate information. 15. The applicant filed an objection (Einspruch) against this decision. On 22 August 1995 the Bregenz District Authority requested the applicant to submit his defence either in writing or to appear at an oral hearing. The applicant did not react to this request. 16. On 18 September 1995 the Bregenz District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the applicant to a fine of ATS 900 (with 24 hours' imprisonment in default). In addition it ordered him to pay ATS 90 by way of contribution to the costs of the proceedings. The District Authority found that the information supplied by the applicant had been inaccurate. 17. The applicant appealed to the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat). 18. On 15 April 1996 the Vorarlberg Independent Administrative Panel dismissed the applicant's appeal and ordered him to pay ATS 180 by way of contribution to the costs of the appeal proceedings. Prior to giving its decision, the Panel held a hearing in the presence of the applicant who stated that he considered the information submitted by him to be sufficiently accurate. 19. The Panel dismissed the applicant's defence, noting that section 103 § 2 of the Motor Vehicles Act required the registered car owner to disclose the name and address of the driver. Further, it referred to the Administrative Court's case-law according to which not only the failure to give any information at all but also the disclosure of inaccurate information amounted to a failure to comply with section 103 § 2. Finally, the Panel observed that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had indeed been inaccurate. 20. On 3 June 1996 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He raised various issues regarding the tribunal quality of the Independent Administrative Panel and the fairness of the proceedings. However, given that the relevant sentence of section 103 § 2 of the Motor Vehicles Act has the rank of constitutional law (see paragraph 25, below), he did not raise the issue of his right to remain silent and not to incriminate himself. 21. On 26 November 1996 the Constitutional Court refused to deal with the applicant's complaint for lack of prospects of success. 22. On 27 June 1997 the Administrative Court (Verwaltungsgerichtshof) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of the penalty did not exceed ATS 10,000, and no important legal problem was at stake. 23. The applicant was not prosecuted for exceeding the speed limit. 24. Section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), as amended in 1986, provides as follows: 25. The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985, quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself. 26. In its judgment of 29 September 1988 the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the Constitution, but had found that this was not the case. 27. Section 134 of the Motor Vehicles Act, in the version in force at the material time, provided for a fine of up to ATS 30,000 to be imposed on a person who violates the regulations of this Act. 28. The 1987 amendment of the Law on Administrative Offences (Verwaltungsstrafgesetz) introduced a possibility to issue and serve an anonymous order (Anonymverfügung) in case of minor administrative criminal offences. 29. According to section 49a of the Law on Administrative Offences, the competent authority may determine by decree minor offences for which it may serve an anonymous order. 30. If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve an anonymous order on the person who is supposed to know the offender. The fine imposed must not exceed ATS 1,000 and may not be converted into a prison term in default. 31. The anonymous order is not regarded as an act of prosecution. No remedy lies against it. If the fine imposed is not paid within four weeks, the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced. If the fine imposed is paid within four weeks, no prosecution is to take place. The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences. | 0 |
train | 001-114841 | ENG | CHE | CHAMBER | 2,012 | CASE OF JOOS v. SWITZERLAND | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) | András Sajó;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant was born in 1945 and lives in Samedan (canton of Graubünden). He practises as a lawyer in Switzerland. 6. The applicant is the owner of a house built in 1599 in the centre of Samedan which is subject to a number of measures aimed at the protection of the historical heritage. 7. On 21 March 2006, the company I.G.W. requested the Municipality of Samedan to issue a building permit for the construction of a “wellness centre” on the plot of land adjacent to the applicant’s house. The building plan envisaged, inter alia, the construction of a swimming pool on top of the building. The applicant objected to the issuing of the building permit. 8. On 23 May 2006 the Municipal Council of Samedan rejected the objection. The applicant lodged a motion with the administrative court of the canton of Graubünden which was rejected by judgment of 27 November 2006. The administrative court considered, inter alia, that the municipality did not have an obligation to hear expert submissions by the Federal Commission for the protection of historic buildings or by the Federal Commission on nature and homeland protection, because the instant case did not fall within the Federal State’s competencies. 9. On 15 January 2007 the applicant lodged an appeal under public law as well as an administrative appeal with the Federal Tribunal. He complained that the swimming pool would create emissions of steam and noise which exceeded the limits allowed under the regulations for the protection of the environment and that the presence of such an installation in the quarter was contrary to the rules for the protection of historic buildings, to which the applicant’s house belonged. He further alleged that the remainder of the planned building would not respect the pertinent legal regulations. Finally, he complained that the proceedings before the Samedan Municipal Council had been unfair. 10. By letter of 13 February 2007, the Federal Tribunal invited the Federal Department of Interior to submit comments on the applicant’s appeal. On 13 April 2007, the General Secretary of the Federal Department of Interior submitted two pages of comments to the tribunal. He considered, in particular, that the building permit did not violate the provisions of the Federal Law on Nature and Homeland protection, because the building project did not fall within the Federal State’s competence. In the 1960s, the Federal State had subsidised archaeological searches and restoration work on the Samedan church. However, these subsidies did not constitute Federal tasks and did not establish the Federal State’s competency. It followed that the Federal provisions necessitating further expert examination were not applicable in this case. Furthermore, the Federal Department considered that the building project did not have a relevant impact on the centre of Samedan. On 20 April 2007 the Federal Tribunal forwarded a copy of the comments to the applicant for information. The applicant received it on 23 April 2007. 11. By judgment of 16 May 2007 the Federal Tribunal rejected the applicant’s appeals as being admissible, but unfounded. With regard to the admissibility of the appeal under public law, it noted that the applicant contested the lawfulness of a building permit and that he complained, in particular, about the arbitrary application of the town planning law. Under the pertinent case-law, an appeal under public law was only admissible if the legal provisions relied upon also protected the applicant’s own interests. In view of the fact that the applicant’s building marked the historical centre of Samedan, the Tribunal concluded that the provisions serving the protection of the overall appearance of the locality also served the protection of the applicant’s building. With regard to the admissibility of the administrative appeal, the Tribunal considered that the applicant’s building was situated at a distance of only a few metres from the place where the impugned wellness centre was to be constructed, leading to the conclusion that the applicant had an “interest warranting protection”. The Federal Tribunal considered, however, that the appeals were unfounded because the pertinent legal provisions had not been breached in the instant case. With regard to the applicability of the Federal Law on Nature and Homeland protection, the Federal Tribunal considered that the fact that the church had been restored with the help of federal subsidies did not mean that all building projects in the church’s vicinity fell within the competency of the Federal State. 12. The relevant provisions of the Federal Law on Judicial Organisation (Organisationsgesetz) as applicable at the time of the instant proceedings read as follows: “1. If the tribunal orders an exchange of written submissions, it serves the appeal on the authority which had issued the impugned decision or act, on the adverse party and on other possible parties. It sets an adequate time-limit for submitting the case-file and comments. 2. If the reasons for the judgment or decision are contained for the first time in the authority’s submissions, the applicant may be granted a time-limit allowing him or her to submit supplementary observations. 3. A further exchange of submissions takes place only exceptionally.” “1. If the tribunal orders an exchange of written submissions, it serves the appeal on the previous court instance and possible other parties ... 2. At the same time, it sets a time-limit for submissions and orders the previous instance to submit the case-files within that same time-limit. 3. ... 4. A second exchange of submissions takes place only exceptionally.” 13. By judgment of 22 November 2005 (published in the official collection (BGE) 132 I 42, summarised in Schaller-Bossert v. Switzerland, no. 41718/05, § 20, 28 October 2010), the Federal Tribunal considered that, in proceedings which provided, as a rule, for a simple exchange of submissions, it was sufficient to send the respective submissions to the adverse party for information, without expressly inviting him or her to submit comments. That way, the party had the possibility to examine the need to comment on the new submissions. If, in such a case, the party did not react after having taken notice of the new submissions, the tribunal could assume that he or she had waived their right to comment. The Federal Tribunal considered that this approach was “a pragmatic way of implementing Article 6 § 1 of the Convention”. Referring to a previous judgment, the tribunal further considered that an applicant, who deemed it necessary to submit comments on submissions which had been served on him for information, was obliged, without undue delay, to submit his comments or to request leave to submit such comments. | 0 |
train | 001-110280 | ENG | GEO | CHAMBER | 2,012 | CASE OF BEKAURI v. GEORGIA | 3 | Preliminary objection allowed (Article 35-3 - Abuse of the right of petition) | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | ITMarkFactsComplaintsStart 6. The applicant was born in 1977 and is currently detained in Ksani prison no. 7. 7. On 2 May 2005 the Court communicated the application, asking the parties about the compatibility of the applicant’s life sentence, which had resulted from his conviction for murder of a police officer, with Article 3 of the Convention. 8. On 30 August 2005 the Government submitted their observations on the admissibility and merits of the case, which the Court transmitted to the applicant, who was represented by Ms Butkhuzi (“the applicant’s first representative”) at that time. The representative was invited to submit observations on behalf of her client by 24 November 2005 but failed to do so. The Court then extended of its own motion the relevant timelimit until 10 February 2006, but the representative still failed to submit any observations. 9. By a letter of 14 February 2006 the Court, noting her persistent failure to submit observations on behalf of the applicant, advised Ms Butkhuzi that it would proceed with the examination of the case as its file stood. 10. On 10 May 2006 the applicant’s first representative, claiming to have lost the case materials, requested the Court to provide her with a copy of the file. The Court granted that request on 16 May 2006. 11. On 3 July 2006 Ms Mukhashavria and Mr Vakhtangidze informed the Court of their designation as additional legal counsels for the applicant (“the new representatives”) and expressed their intention to submit observations on the admissibility and merits of the case in the near future. The Court replied on 10 July 2006, reminding the new representatives of the applicant’s unjustified failure to submit observations within the previously allotted and extended time-limits, in breach of the relevant procedural rules. The Court stated that no further extension of the relevant time-limit could be allowed at that stage and advised the new representatives to contact their colleague, Ms Butkhuzi, in order to obtain the necessary documents and additional information about the proceedings. 12. On 12 July 2006 the new representatives again requested the Court to give them another time-limit for the submission of observations. The Court rejected that reiterated request on 31 July 2006. 13. On 15 February 2007 the new representatives requested the Court to provide them with another copy of the case materials, explaining that the applicant’s first representative had not shared the materials with them. In reply, the Court, noting that the relevant materials had already been sent to the first representative, still granted, as an exception, the new representatives’ request on 6 March 2007 by providing them with another copy of the file. 14. On 7 May 2007 the applicant’s new representatives reiterated for the third time their readiness to submit observations on behalf of the applicant. 15. On 21 January 2010 the applicant’s father enquired with the Court about the state of the proceedings. He complained that he had been in a complete information vacuum as regards the development of the case and also requested to be provided with a copy of the case materials. 16. On 5 October 2010 the Government submitted, as part of their observations on the merits, a copy of the final and enforceable decision of 12 March 2007 of the Supreme Court of Georgia. 17. As disclosed by that decision, the Supreme Court, granting Ms Butkhuzi’s request of 28 April 2006, had commuted the applicant’s life sentence to the sixteen years’ imprisonment in the light of amendments to the Criminal Code mitigating criminal responsibility for the offence he had committed. Consequently, the applicant’s new prison term would expire and result in his release on 7 August 2014. 18. The applicant complained that the mode of the execution of his life sentence under Georgian law was incompatible with Article 3 of the Convention. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 19. In their observations on the merits of the applicant’s complaint under Article 3 of the Convention, the Government raised two preliminary objections. Firstly, referring to the fact of the commutation of his life sentence by the Supreme Court on 12 March 2007, they submitted that the applicant had lost victim status. Secondly, the Government stated that the applicant’s failure to inform the Court of such a focal development of his case amounted to an abuse of the right of individual petition, within the meaning of Article 35 § 3 of the Convention. 20. In reply, the applicant’s new representatives, apart from maintaining the complaint on the merits, briefly commented that they had first learnt of the commutation of their client’s life sentence during a meeting with him at the end of May 2010. They added that the applicant himself had learnt of the Supreme Court’s decision of 12 March 2007 only in November 2007. 21. The Court points out that, according to Rule 47 § 6 of the Rules of Court, applicants, acting in person or through their legal representatives, are under the continuous obligation to keep the Court informed of all important circumstances regarding their pending applications. It recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; and Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010; and Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009). Furthermore, the Court reiterates that it cannot be its task to deal with a succession of ill-founded and querulous complaints or with otherwise manifestly abusive conduct of applicants or their authorised representatives, which creates gratuitous work for the Court, incompatible with its real functions under the Convention (see Petrović v. Serbia (dec.), no. 56551/11, 18 October 2011; and The Georgian Labour Party v. Georgia (dec.), no. 9103/04, 22 May 2007). 22. Returning to the circumstances of the present case, the Court first finds that the conduct of the applicant’s first representative, Ms Butkhuzi, was deplorable. Apart from the fact that she had failed to submit observations on the admissibility and merits of the case despite the extension of the relevant time-limit, had lost the case materials twice, had failed to cooperate with the applicant’s other representatives and had apparently left the applicant’s family in ignorance as regards the developments of the case, which omissions naturally resulted in an additional, gratuitous administrative workload for the Court, her negligent attitude went as far as withholding from the Court the crucial information about the commutation of the applicant’s life sentence to the fixed prison term, which fact related to the very core of the subject matter of the present application. 23. As regards the applicant’s new representatives, the Court finds it unacceptable that they, legal professionals who had assumed responsibility for the case as early as on 3 July 2006, did not learn about the commutation of their client’s life sentence, which occurred in March 2007, until the end of May 2010. In any event, pursuant to their obligations under Rule 47 § 6 of the Rules of Court, both the applicant and his representatives should have informed the Court of that critical development of the case immediately upon its discovery, which important circumstance would then have been taken into consideration by the Court upon the examination of the admissibility of the application on 29 June 2010. Unfortunately, they failed to do so and did not even provide a justifiable explanation for that serious procedural omission. 24. The Court thus considers that the conduct of the applicant and of his representatives, in particular that of Ms Butkhuzi, was a “vexing manifestation of irresponsibility” (see The Georgian Labour Party, the decision cited above), incompatible with the purpose of the right of individual application as provided for in the Convention, and significantly impeded the proper functioning of the Court. In general, lawyers must understand that, having due regard to the Court’s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it from the introduction of unmeritorious complaints and, once proceedings have been instituted, then meticulously abide by all the relevant rules of the procedure and urge their clients to do the same. Otherwise, the wilful or negligent misuse of the Court’s resources may undermine the credibility of lawyers’ work in the eyes of the Court and even, if done systematically, may result in them being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see Petrović, the decision cited above). 25. In the light of the foregoing, the Court considers that the Government’s preliminary objection is well-founded and the present application is abusive within the meaning of Article 35 § 3 (a) in fine of the Convention. | 0 |
train | 001-4611 | ENG | ITA | ADMISSIBILITY | 1,999 | PASTORE v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant is an Italian national, born in 1945 and currently residing in Rome. He is represented before the Court by Mr Maurizio De Stefano, a lawyer practising in Rome. The applicant is a member of the Mutual Fund I. (“Cassa di previdenza e assistenza dei dipendenti della Intercontinentale assicurazioni S.p.A.”). On 23 March 1998 this fund was incorporated in the Mutual Fund W. (“Fondo pensione dei dipendenti del Gruppo Winterthur”). On 23 May 1998 the applicant introduced a claim before the Rome District Court. Assuming that the decision taken on 23 March 1998 was invalid, he requested the investigating judge to declare the stay of its execution. In an order of 17 July 1998 the Rome investigating judge accepted the applicant’s claim. On 31 July 1998 the Mutual Fund I. challenged this order before the Rome District Court. It alleged, inter alia, that as Rule 21 of the Fund’s internal Rules contained an arbitration clause, the matter fell outside the ordinary courts’ jurisdiction. The applicant contested the Fund’s action, alleging that the latter’s conclusion was contrary to Articles 2, 3 and 24 of the Italian Constitution - guaranteeing the individuals’ fundamental rights, the principle of equality between citizens and the right to defend oneself in trial - and to Article 6 § 1 of the Convention. In a decision of 25 August 1998 the District Court revoked the order of 17 July 1998. It recalled that a distinction should be drawn between “ordinary” and “extraordinary” arbitration clause (“clausola di arbitrato rituale o irrituale”). The first one was a substitute for the State’s jurisdiction, aimed at obtaining a decision replacing a judgment, while the latter was a private agreement by which the parties conferred to an arbitrator the power to settle a litigation between them. An interim measure, such as the stay of execution, could be adopted only when an “ordinary” arbitration clause was at issue. Having found that the clause contained in Rule 21 of the Fund’s internal Rules was an “extraordinary” one, the District Court declared that the action introduced by the applicant fell outside its jurisdiction ratione materiae. As the internal Rules had been freely accepted by the parties, the court considered that there was no appearance of a violation of the provisions invoked by the applicant. This decision was final and not subject to any appeal. However, the Mutual Fund I. decided to convene a members’ assembly in order to take a new decision on the incorporation. According to the applicant, this was tantamount to an implicit acceptance of his complaints concerning the lawfulness of the decision of 23 March 1998. | 0 |
train | 001-81612 | ENG | RUS | CHAMBER | 2,007 | CASE OF VEDERNIKOVA v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | null | 4. The applicant was born in 1940 and lives in Novosibirsk. She receives an old-age pension. 5. On 1 February 1998 the Law on Calculation and Adjustment of State Pensions (hereafter “the Pensions Act”) introduced a new method of calculation of retirement benefits based on what is known as the “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual's wages at the time of retirement and the national average wage. The IPC was meant to maintain a link between pensions and previous earnings. 6. The applicant considered that the Zayeltsovskiy District Division of the Pension Fund (hereafter “the Fund”) had incorrectly calculated her pension and in March 1999 she sued the Fund for an increase of her pension in accordance with the Pensions Act. 7. On 22 November 1999 the Zayeltsovskiy District Court of Novosibirsk found in the applicant's favour. The District Court held that the Fund had misconstrued the law and that the applicant's pensions should be recalculated and increased in line with an IPC of 0.7 starting from 1 February 1998. The District Court also awarded the applicant 3,004.08 Russian roubles (RUR) in pension arrears. On 25 January 2000 the Novosibirsk Regional Court upheld the judgment. 8. On 21 August 2000 the Fund requested the Zayeltsovskiy District Court to reopen the case owing to a newly-discovered circumstance. The Fund claimed that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Act. The Instruction clarified how the Pensions Act should be applied. The Fund further indicated that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. The Fund contended that since it had been unaware of the Supreme Court's decision of 24 April 2000 at the time of the judgment of 22 November 1999, the judgment would have to be reconsidered. 9. On 31 January 2001 the Zayeltsovskiy District Court granted the Fund's request, quashed the judgment of 22 November 1999 and reopened the proceedings. The District Court applied Article 333 of the RSFSR Code of Civil Procedure according to which judgments could be reconsidered in the event of discovery of significant circumstances which were not, and could not have been, known to the party concerned. The District Court found that the Instruction could serve as such a circumstance. The decision of 31 January 2001 was final and not amenable to appeal. 10. On 12 February 2001 the Zayeltsovskiy District Court, after the fresh examination of the case, dismissed the applicant's action in full. On 5 April 2001 the Novosibirsk Regional Court upheld the judgment. 11. Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority's decision which had served as a legal basis for the judgment in question. Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances. Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal. 12. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (CCrP). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the Code of Civil Procedure) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. | 1 |
train | 001-105196 | ENG | CZE | ADMISSIBILITY | 2,011 | PASTYŘÍK v. THE CZECH REPUBLIC | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | The applicant, Mr Vladimír Pastyřík, is a Czech national who was born in 1972 and lives in Plzeň. He was represented before the Court by Mr K. Hrádela, a lawyer practising in Prague. In 2003 the police started to investigate a scheme to influence the outcome of matches of the Czech national football league by means of bribery. The public was interested in this investigation on account of the popularity of the sport in the country, where matches of the national league are followed closely. The press reported on the investigation regularly. As part of the investigation, several telephones were tapped. On 19 February 2004 a judge at the Brno Municipal Court (městský soud) ordered that the telephone of a certain I.H., who was president of a football club, be tapped from 19 February to 19 May 2004. That club was at that time the last but one in the national league rankings and thus faced demotion to a lower division for the next season. I.M. was suspected of bribing referees to influence the outcome of matches played by his team. On 27 February 2004, while I.H.’s telephone was tapped, the police intercepted a call with the applicant, a football referee at that time. The conversation included the following exchange: “I.H.: “We are fucked, really, it couldn’t be worse, dude. We have one last chance to reverse it somehow. We will see, the guys on the field must of course, because we play like shit. I would like to ask you a favour, should it turn out, I do not know, you were here last year, weren’t you? Applicant: “Yes, I was there, I was there. I.H.: “1:0 with Zlín in the last minute, dude, I’ll take that. That would be great.” Applicant: “Sure.” I.H. “Keep your favour and I will of course arrange some stuff with Jarda, I mean, what it takes to keep the favour, and there will be three dimes in it for you. Applicant: “Sure, see you on Sunday!” I.H.: “O.K. bye. Applicant: “Bye!” In Czech: “I.H.: “Úplně v prdeli, fakt už to horší nemůže bejt vole, máme poslední šanci ještě to nějak zvrátit, uvidíme. Musejí samozřejmě kluci na hřišti hlavně, protože hrajeme hovno. Chci tě poprosit, kdyby to dopadlo, jako nevím, ty jsi tu byl nějak před rokem asi viď? Applicant: “No byl jsem tam, byl jsem tam. I.H.: “Se Zlínem jedna nula v poslední minutě, ty vole, tak to beru, to by bylo super.” Applicant: “Jasně.” I.H.: “Zachovej přízeň a já samozřejmě s Jardou domluvím některý věci, jako co je potřeba, ať se zachová přízeň a třicetník je tam pro tebe no” Applicant: “Jasně, uvidíme se v neděli.” I.H.: „Dobrý, ahoj!“ Applicant: „Ahoj!“ The match concerned was won by I.H.’s team 2:0. On 30 July 2004 the police charged the applicant with accepting a bribe. On 19 September 2005 the Prague 3 District Court (obvodní soud) found the applicant guilty as charged. It found it established that the applicant had accepted payment of 30,000 Czech korunas (CZK) (1,200 euros (EUR)) for being favourable to I.H.’s team and thus influencing the results of the match. The court sentenced him to eight months’ imprisonment suspended for two years. The recording of the telephone conversation, which was played at the hearing, was the main evidence against the applicant. Other testimonies were heard and other evidence, which was mostly suggested by the applicant, adduced. The court did not admit other additional evidence relating to the quality of the telephone signal at the applicant’s home, considering it unnecessary. The applicant appealed, arguing, inter alia, that the tapping had been illegal and thus could not be used as evidence, that “three dimes” had been meant literally and thus only the equivalent of approximately EUR 0.01 had been at stake, that by “jasně” in the conversation he had not meant “sure” but “clearly” as in “I can’t hear you clearly” and that none of that had constituted a crime. On 4 January 2006 the Prague Municipal Court upheld the first-instance judgment, finding that the telephone tapping had been legal and endorsing the conclusions of the District Court in other respects. The applicant appealed on points of law, reiterating his arguments. On 9 August 2006 the Supreme Court (Nejvyšší soud) dismissed his appeal as manifestly ill-founded. The applicant lodged a constitutional appeal (ústavní stížnost) in which he complained of violations of his right to a fair trial and right to respect for his private life. He complained, in particular, that the telephone tapping had been illegal and the recording should not have been admitted as evidence, that the courts’ judgments had been insufficiently reasoned that their findings had been wrong, that the act he had committed had not constituted a criminal offence and that the courts had refused to admit evidence suggested by him. On 2 March 2009 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal as manifestly ill-founded. Regarding his claim as to the illegality of the telephone tapping, it referred to its earlier decision in the case of another accused in the bribery scheme. In that case the court found that the telephone tapping had been legal, because, inter alia, the investigation had been conducted in the context of criminal proceedings in respect of an intentional crime which fell to be prosecuted under an international treaty, namely, the Council of Europe Civil Law Convention on Corruption. The judge at the Municipal Court who had ordered the tapping, who had not subsequently been in any way involved in the criminal proceedings brought against the applicant, testified as a witness at the trial of another accused in the bribery scheme, where he made a negative statement about the character of the accused. Article 88 regulated telephone tapping: (1) In the context of criminal proceedings for a particularly serious intentional crime or any other intentional crime that falls to be prosecuted under an international treaty, the presiding judge, and at the pre-trial stage a judge on a proposal of a prosecutor, may order the interception and recording of telecommunications traffic, if it can be reasonably assumed that it will reveal facts relevant to the criminal proceedings. The interception and recording of telecommunications traffic between the lawyer and the accused is impermissible. If the police, while intercepting and recording telecommunications traffic, discover that the accused is communicating with his lawyer, they must stop the interception immediately, destroy the recording and not use the information learned in this context in any way. (2) A warrant for the interception and recording of telecommunications traffic shall be issued in writing and shall be reasoned. It must also state the period during which the interception and recording will be carried out, which may not be longer than six months. A judge may extend this period for another six months. The judge shall send a copy of the warrant to a prosecutor without delay. The police shall undertake the interception and recording of telecommunications traffic for all the prosecuting authorities. ... (4) If a recording of telecommunications traffic is to be used as evidence, it is necessary to accompany it with a report, giving the place, time, manner and contents of the recording, as well as the person making the recording. ... the recording can be used as evidence in a criminal case other than the one for which the telecommunications traffic was intercepted and recorded only if that case also concerns a criminal offence of the nature specified in paragraph 1... (5) If the interception and recording has not revealed any facts relevant to the criminal proceedings, the recording must be destroyed in the prescribed manner. | 0 |
train | 001-97073 | ENG | DEU | ADMISSIBILITY | 2,010 | PAEFGEN v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Thomas Christian Paefgen, is a German national who was born in 1958. He has currently no fixed domicile. He was represented before the Court by Mr P. Carstensen, a lawyer practising in Schleswig. The applicant is the father of a daughter born in 1999. The parents, who had lived in Monaco, separated in January 2001. On 3 July 2003 the Monaco District Court (Tribunal de Première Instance) decreed the parents' divorce and transferred sole parental authority on the mother, who is a German national. With regard to contacts, that court ruled that the applicant should have extensive visiting rights which, in the absence of a more favourable agreement reached between the parties, should be exercised every second Sunday between 9.00 a. m. and 6.00 p. m. On 9 July 2004 the applicant, who was at the time residing in Switzerland, instituted contact proceedings before the District Court (Amtsgericht) in Husum, where mother and daughter were residing. He requested to be granted contact rights during the first week of each month from Saturday 10.00 a. m. until the following Saturday 7.00 p. m. The mother requested a suspension of contact rights. The applicant last saw his daughter on 24 September 2004 following a court hearing. On 29 October 2004 the Husum District Court, having heard both parents and the child in person, modified the contact regulations contained in the divorce decree and granted the applicant visiting rights on every second weekend on Saturdays from 3.00 p. m. to 6.00 p.m. and on Sundays from 10.00 a. m. to 2.00 p. m. It further ruled that contacts should take place in the presence of a person the child confided in. The District Court considered that the contact regulations had to be modified in the child's best interests. There was no reason completely to suspend contact rights. The court considered, however, that unaccompanied contacts would jeopardise the child's welfare. While the District Court did not consider that there was a risk of the applicant's abducting the child, as the applicant would not want to risk criminal prosecution in Switzerland, the child's considerable fears necessitated the presence of a trusted person. When personally heard by the court, the child had described her father as being evil and expressed the wish not to be left alone with him. The court further noted that the child had seen the applicant only twice within the two preceding years. Accordingly, she had to be given sufficient time to get to know her father before unaccompanied visits could be envisaged. The District Court considered that there were clear indications that the mother had influenced the child against her father. However, once the child's fears existed, they could not be ignored without jeopardising the child's welfare. The court further noted that it was not possible to make more precise provisions as to the person who should accompany the visits, as the mother intended to move to England and it was not possible to determine which person would be available. It followed that the choice of person had to be left to the parties or to a later court decision. The District Court finally considered that it had not been necessary to hear expert opinion by a children's psychologist, as the child had expressed her fears during the hearing and there was no need for further examination. The applicant lodged an appeal complaining, in particular, about the imposition of accompanied visits. He alleged that the persons proposed by the mother had been hostile towards him. He further complained that the granted contact time was too short. On 29 June 2005 the Schleswig Holstein Court of Appeal (Oberlandesgericht) scheduled a hearing for 28 September 2005 and ordered the parties to appear in person. At the beginning of the hearing the mother's representative submitted a message alleging that mother and child had been unable to appear before that court because of delays of their flights from the Bahamas. The applicant contested these submissions. On 19 October 2005 the Court of Appeal rejected the applicant's appeal. The court noted that mother and child had moved to England in October 2004, but returned to Germany in December 2004. From March to August 2005 they stayed in Monaco. Since September 2005 they were staying on the Bahamas. The Court of Appeal considered that the child's place of residence remained in Germany, as the mother, who appeared to be staying in a hotel, had not established a fixed place of residence on the Bahamas. The Court of Appeal considered that the limitation of the contacts and the presence of a third person had been and remained necessary in order to safeguard the child's welfare. The Court of Appeal confirmed that it was necessary to rebuild a relationship of trust between father and child before unaccompanied visits could be envisaged. The court further noted that the applicant, who had in the meantime given up his Swiss place of residence, had declared during the hearing that he was constantly travelling and currently could not make up his mind to establish a new place of residence. The court considered that such person could not be entrusted with unaccompanied contacts to a six-year old child nor with contacts extending over several days because the danger of his abducting the child was unacceptably high. On 3 November 2005 the applicant lodged an appeal on the ground that his submissions had not been sufficiently taken into account (Anhörungsrüge), which was rejected on 21 December 2005. On 19 January 2006 the applicant lodged a constitutional complaint and filed a request for an interim order. On 28 August 2006 the applicant informed the Federal Constitutional Court that the child's mother was currently of unknown residence. On 6 September 2006 the Federal Constitutional Court refused to admit the applicant's complaint and his joint request for an interim order for adjudication. This decision was served on the applicant's counsel on 20 September 2006. According to Article 1684 subsection 1 of the Civil Code, a child is entitled to have contact with its parents; each parent is obliged to have contact with, and is entitled to such contact with, the child. Pursuant to subsection 2, each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child. The family courts can restrict or suspend a parent's rights of contact if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child's welfare would be jeopardised (Article 1684 § 4). | 0 |
train | 001-72700 | ENG | RUS | CHAMBER | 2,006 | CASE OF MENESHEVA v. RUSSIA | 1 | Violations of Art. 3;Violation of Art. 13 (no remedy in respect of ill-treatment);Violations of Art. 5-1;Violation of Art. 6-1;No separate issues under Art. 5-4 and 13 (no right to appeal);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Snejana Botoucharova;Sverre Erik Jebens | 8. The applicant was born in 1979 and lives in Bataysk, Rostov Region. 9. On 11 February 1999 the police started an investigation into a murder case in which they identified L. as a suspect. It was believed that L. was the applicant's boyfriend. 10. On the same day the police decided they would search for L. at the applicant's home. 11. On 12 February 1999, about midnight, the police arrived at the applicant's flat, apparently to conduct a search, but since they failed to produce a warrant she would not let them in. 12. On the following day, 13 February 1999, at about 4.30 p.m., three policemen in plain clothes were waiting for the applicant at her door. One of them produced the identity card of a police major S. and demanded to enter the applicant's flat. As they still had no warrant, the applicant again refused to let them in. The policemen insisted and the applicant fell into a heated discussion with them during which both sides exchanged threats and insults. Ultimately, the major ordered the applicant's arrest. His subordinates, P. and B., seized the applicant, turned her upside down and, while continuing to intimidate her, threw her into a car with no police markings on it. In the struggle the applicant was pushed against the door and hurt her leg and her head; she also banged her head against the car when she was being pushed into it. On the way, the major S. threatened the applicant, saying that he would beat her family and loot her flat while searching it. 13. The applicant was taken to the Zheleznodorozhnyy district police station in Rostov-on-Don. She was not informed why she had been taken to the police station. According to the Government's subsequent accounts, it was to fill in the official report on her forceful resistance to the police. However, in the police report it was stated that she was brought in for questioning. 14. At the police station, the applicant was brought before the Deputy Head of the Criminal Investigation Department who questioned her about the whereabouts of “her husband”. The applicant told him that she had never been married, and after that he started strangling her with his hands and several other policemen started beating her. For about two hours they administered kicks and blows to her legs, threw her across the room, beat her with a baton and hit her head against the walls. While beating her they accused her of telling lies, insulted her and threatened her with rape and violence against her family. 15. The applicant requested that her relatives be informed about her detention; she also requested medical assistance and permission to contact a lawyer, but all her requests were refused. 16. At the end of the applicant's interrogation, the deputy prosecutor of the district of Zheleznodorozhnyy, D., happened to visit the police station and enter the room where the applicant had been beaten. The applicant seized this opportunity to complain about her arrest and the beating. He listened to her and suggested that she write him a complaint about her unlawful arrest, but he discouraged her from complaining about ill-treatment. The applicant claimed that she wrote her complaint on the spot and handed it to D. 17. After that, at about 7 p.m., the applicant was taken home because the police wanted to conduct a search of her flat. The applicant's neighbour Z., who was summoned as a witness, was told that they were looking for L., and she confirmed that L. did not live there. The police insisted on searching the flat, however it transpired that they still did not have a search warrant and the applicant again refused to let them in. After a short struggle the applicant was again seized and carried to the car upside down with her head banging on the walls and the staircase. She was taken back to the Zheleznodorozhnyy district police station where she was again beaten up, intimidated and accused of hiding L. She was then placed in a detention cell. 18. The applicant was kept in the detention cell until 2.30 p.m. on 14 February 1999. Although this fact has never been in dispute, no record concerning this period of the applicant's detention could be found. 19. On 14 February 1999 at about 2 p.m. the applicant was subjected to a personal search and the keys to her flat were seized. Later on the same day the prosecutor of the district of Zheleznodorozhnyy issued a warrant to search the applicant's flat and it was carried out. 20. On the same day the applicant was brought before an officer who, without introducing himself, said to her “five days”. Subsequently the applicant learned that it was Judge P. of the Zheleznodorozhnyy District Court of Rostov, and that “five days” meant a five-day sentence for the administrative offence of forceful resistance to the police. On the same day the applicant was taken to a special centre for administrative detention. 21. On 18 February 1999, when the applicant's release after the five-day detention was due, the police major S. who had arrested her checked her out of the detention centre, took her to the Zheleznodorozhnyy district police station and ordered her to wash the floor in the police station hallway. When she had finished doing so he released her. 22. On 19 February 1999 the applicant underwent a forensic examination by a medical expert who established that she had multiple bruises on the face and legs, abrasions on the face, jaw, neck and legs, and a traumatic oedema of the soft tissues of the head. 23. On 11 March 1999 the Human Rights Commissioner of the Rostov regional governor's office filed, on the applicant's behalf, a complaint with the Head of the Internal Affairs Department of the Rostov Region and another one with the prosecutor of the Rostov Region. They requested an investigation into the applicant's alleged ill-treatment by the police and her allegedly unlawful detention; they also enclosed the applicant's detailed account of the events and the forensic report of 19 February 1999. 24. On 15 March 1999 the applicant lodged a claim for damages with the Bataysk City Court of the Rostov Region, alleging ill-treatment by the police and challenging her arrest and the search of her flat. 25. On 30 March 1999 the Deputy Head of the Internal Affairs Department of the Rostov Region informed the applicant that an internal inquiry had been conducted in view of her complaint and that her allegations had been found to be unsubstantiated. The conclusions of the internal inquiry were forwarded to the prosecutor's office. However, she was also informed that some unspecified police officers had been charged with disciplinary offences. The Human Rights Commissioner received a similar reply. 26. On 12 April 1999 the applicant received a letter from the deputy prosecutor of the district of Zheleznodorozhnyy, D., whom she had met at the police station (see paragraph 16 above). He informed the applicant that her complaint against the police had been forwarded to him by the Rostov City prosecutor's office and that he had decided that no criminal investigation in respect of the accused police officers was to be opened. 27. On 7 May 1999 the prosecutor of the district of Zheleznodorozhnyy, Kh., informed the Bataysk City Court, apparently following their official inquiry, that no documents concerning the applicant's arrest and detention could be found. 28. On 9 June 1999 the deputy prosecutor of the Rostov City prosecutor's office confirmed that decision. 29. On 22 December 1999 the Bataysk City Court examined the applicant's claim and held that the search of the applicant's flat, the initial arrest and the five-day detention had been lawful. The court found that the police had acted lawfully, as authorised by the prosecutor, and that it was necessary for the investigation into the murder case. As to the allegations of ill-treatment, the court referred to the prosecutor's refusal to open a criminal investigation in respect of the police officers and to the conclusion of the internal police inquiry that no ill-treatment had been established. It dismissed the forensic report as irrelevant and held that the allegations of ill-treatment were unsubstantiated. 30. On 23 February 2000 the Rostov Regional Court examined the applicant's appeal and upheld the earlier findings. 31. On 15 March 1999 the applicant attempted to challenge her five-day detention before the Rostov Regional Court. She alleged that she was not informed of the name of the officer who took the decision to detain her and that he did not ask her any questions, did not inform her of any charge against her, did not explain the purpose of her appearance before him and did not give her a copy of his decision concerning her detention. 32. On 17 March 1999 the same judge who imposed the five-day detention informed the applicant that no ordinary appeal could be brought against that decision, and that it could only be challenged by the prosecutor's extraordinary appeal. 33. On 25 March 1999 the applicant filed a complaint with the Zheleznodorozhnyy District Court and the Rostov Regional Court. She challenged the refusal to consider her claim in civil proceedings. 34. On 26 May 1999 the President of the Rostov Regional Court replied to the applicant that, on the evidence of the file, her detention had been lawful as it had been imposed for the administrative offence in accordance with substantive and procedural law. 35. On 17 July 1999 the applicant filed another appeal with the Rostov Regional Court against the decision on her detention. 36. On 23 August 1999 the Acting President of the Rostov Regional Court replied that no appeal against a decision on administrative detention was provided for by law. 37. The applicant subsequently tried to challenge the above decisions, but none of her claims were accepted, the ground given being that the courts lacked jurisdiction over the subject matter. The last decision in this respect was taken on 1 December 1999 by the Rostov Regional Court. 38. On 15 January 2003 the prosecutor's office of the district of Zheleznodorozhnyy instituted a criminal investigation into the circumstances of the applicant's arrest and her overnight detention and into her allegations of ill-treatment. 39. On 28 February 2003 the prosecutor of the Rostov Region filed of his own motion a request with the President of the Rostov Regional Court to quash the decision of 14 February 1999 by which the applicant had been convicted of an administrative offence. He stated that the applicant's resistance to the police did not constitute an administrative offence because the police had acted unlawfully and that the detention was in any event a disproportionate punishment. 40. On 5 March 2003 the President of the Rostov Regional Court granted the request and quashed the decision on the grounds that the judge who had convicted the applicant whether she was guilty of any administrative offence. It was found that no forceful resistance had taken place, because the police were carrying out an investigation and not safeguarding public order when the applicant resisted. It was also held that the police had acted in violation of the procedural law. 41. On 25 August 2003 the prosecutor's office of the district of Zheleznodorozhnyy terminated the criminal investigation into the alleged ill-treatment and unlawful arrest and detention on the ground that the police officers had not committed any unlawful act. 42. On 3 March 2004 the Prosecutor General's Office quashed the termination order of 25 August 2003 and resumed the criminal investigation concerning the ill-treatment and the unlawful arrest. The prosecutor's office of the district of Zheleznodorozhnyy was given thirty days to complete the investigation under the supervision of the Prosecutor General. The relevant parts of this decision read as follows: “[The applicant] consistently maintained that she objected to the unlawful entry of the police into her flat and the unlawful search in the absence of a prosecutor's warrant, and had therefore been subjected to unlawful arrest and detention and beaten up ... The medical examination revealed numerous injuries caused by beating ... the time of origin and the cause of which corroborate [the applicant's] statements ... The investigation has not established the circumstances in which these injuries were caused. The reports on the administrative offence and on the applicant's arrest of 13 February 1999 ... contain fraudulent statements concerning the participation of the attesting witnesses ... These circumstances have not been fully investigated, although they served as a basis for the applicant's administrative arrest. The decision of 29 April 2003 dispensing with criminal proceedings against [the police officer who issued the reports] ... is unfounded.” 43. In their letter of 19 April 2004, the Government submitted that the investigation was still in progress. The parties have not provided any update concerning the criminal investigation thereafter. 44. The relevant provision of the Administrative Code (Кодекс об административных правонарушениях РСФСР), in force until 1 July 2002, read as follows: “Forceful resistance to a lawful order or demand by a police or a voluntary brigade serviceman, ... shall be punished by a fine of ten to fifteen times the minimum wage ... or by one to two years' corrective labour ... or if these measures are considered insufficient, by up to fifteen days' imprisonment.” 45. The relevant parts of the Code of Criminal Procedure in force at the material time provided as follows: “A witness shall be summoned for questioning by a written notice served on him personally, or in his absence to an adult member of his family ... The notice shall contain the name of the person called as a witness, indicate where, before whom, on what date and at what time he is due to appear and the consequences of a failure to appear. A witness may also be summoned by telephone or telegram.” “The questioning of a witness takes place at the place of investigation. An investigator may decide to question a witness at the witness's location.” 46. The relevant part of the Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides as follows: “1. Everyone has the right to liberty and personal security. 2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than forty-eight hours before the court decision is taken.” Chapter 19 of the Administrative Code (see paragraph 44 above) provided that the police could subject a person to an administrative arrest to prevent an administrative offence, to establish a person's identity, to issue a document certifying that an administrative offence had been committed, if it was necessary and could not be done on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. Article 242 provided, in particular, that the term of administrative arrest should not exceed three hours, except for certain categories of offenders, including those who forcefully resisted the lawful order of the police, who could be detained as long as necessary until their case was considered by a district (city) judge or a senior police officer. Article 240 set out the requirements for the arrest report. The Administrative Code did not provide for an appeal against the administrative arrest if imposed by a judge. The relevant provisions read as follows: “... The decision of a district (city) court or judge to impose an administrative sanction is final and not subject to appeal in the administrative proceedings ...” “The decision of a district (city) judge to impose an administrative sanction under [Article 165] may be changed or quashed by the same judge following a prosecutor's extraordinary appeal, or by a president of a superior court, of his own motion.” | 1 |
train | 001-115737 | ENG | RUS | ADMISSIBILITY | 2,012 | MAGOMADOVA AND OTHERS v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicants, Ms Mariyat Magomadova, Ms Bilkis Magomadova, Mr Andarbek Magomadov and Mr Abdul-Vagap Magomadov, are Russian nationals who were born in 1938, 1965, 1959 and 1957 respectively and live in Moscow. They were represented before the Court by lawyers of the NGO EHRAC/Memorial Human Rights Centre, based in London and Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation 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 (a mother, daughter and two sons) are former residents of Chechnya. Prior to 1994, the family lived in a flat and a house in Grozny. They submitted that the first applicant had owned a flat at 1-27 Vosmogo Marta Street. The second applicant (the first applicant’s daughter) had been the registered owner of a house situated at 40/21 Vozrozhdeniya/Fontannaya Street. In 1993 the first applicant had purchased two further houses adjacent to her daughter’s house (40/25 Volnaya/Fontannaya Street and 42 Volnaya Street). 4. On 15 February 1996 the Oktyabrskiy District Court of Grozny confirmed that the second applicant owned a share of the property situated at 40/21 Vozrozhdeniya/Fontannaya Street. On 29 February 1996 the court confirmed that the four applicants (and eight other individuals) had lived at the said property prior to 1994. 5. In July 2007 the Federal Registration Service (“BTI”) in Chechnya issued certificates of title to the first and second applicants relating to three land plots of the above-mentioned addresses. 6. In July 2009 the BTI informed the first applicant by letter that its archives had been destroyed. The register maintained by the BTI contained four relevant entries showing that the first applicant owned the properties at 42 Volnaya Street, 40/25 Volnaya/Fontannaya Street and 1-27 Vosmogo Marta Street. The second applicant owned the house at 40/21 Vozrozhdeniya/Fontannaya Street. No corresponding certificates of title were submitted to the Court by the applicants. 7. From 1994 to 1996 and in 1999 the Russian Government carried out counterterrorist operations in Chechnya. Fearing hostilities, the applicants moved to Moscow on an unspecified date. 8. The applicants submitted that during the two campaigns, missile strikes by the Russian air force in 1995 and 1999 had resulted in the destruction of their properties and all their possessions. They submitted a complaint about both incidents to the prosecutor’s office in August 2001. 9. On 24 December 2001 a prosecutor of military unit no. 20102 refused the applicants’ request to open a criminal investigation. The applicants were given the option to appeal, commence a civil claim for damages or to seek compensation under Government Decree no. 510 of 30 April 1997. 10. It appears that the applicants made a further application to the prosecutor’s office for a criminal investigation to be opened into the complaint relating to the 1999 attack; however, this was dismissed on 26 April 2002. The applicants were again given the option to appeal or to commence a civil claim for damages. 11. The applicants sued the Government, the Ministry of Finance and the Ministry of Defence, with a view to obtaining compensation for the destruction of their property and possessions as a result of the events of 1995 and 1999. 12. On 8 April 2003 the Basmannyy District Court of Moscow delivered its judgment. It held that under Article 1069 of the Civil Code, the State was only liable for damage caused by the unlawful conduct of its agents. The District Court noted that the military operation in Chechnya had been authorised by Presidential Decree no. 2166 dated 30 November 1994 and Government decree no. 1360 of 9 December 1994. Both decrees had been considered compatible with the Constitution by the Constitutional Court on 31 July 1995. The court thus found that no unlawful conduct by a State body had taken place which could justify payment of compensation. The court further dismissed the applicants’ claim that the damage had been caused by a particularly hazardous State-owned object, since the applicants had not submitted any conclusive evidence to substantiate their allegations about the manner in which their property had been destroyed. 13. On 2 October 2003 the Moscow City Court upheld the first-instance court’s judgment. | 0 |
train | 001-69418 | ENG | GBR | CHAMBER | 2,005 | CASE OF BLACKSTOCK v. THE UNITED KINGDOM | 3 | Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Josep Casadevall;Nicolas Bratza | 8. The applicant was born in 1954 and lives in Bedford. 9. On 5 June 1981 the applicant was convicted of wounding (the deliberate shooting of a police officer) with intent to resist arrest, for which he was sentenced to life imprisonment. He was also sentenced to concurrent terms of 15 years for attempted robbery and firearms offences. His tariff was set at 17 years. 10. On 8 June 1998, upon the expiry of his tariff, the applicant’s detention was reviewed by a “Discretionary Lifer Panel” (“DLP”) of the Parole Board. At the time of his review, the applicant was a “category B” prisoner (prisoners being given a security classification ranging from category A (most serious) to category D). Life prisoners are normally expected to pass through each of the categories prior to release. While he would therefore ordinarily have been expected to progress to a category C prison before being considered suitable for transfer to a category D (“open”) prison, the applicant applied to be transferred directly to an open prison. His legal representative at the review hearing made it clear that he was seeking a transfer only, not release on licence. 11. Among the material which the DLP had before it were two reports (from Mr Cochrane, the prison probation officer, and Dr Williams, a psychiatrist commissioned on behalf of the applicant) which recommended a transfer of the applicant to a category D prison. Those reports stated that the applicant needed to be tested with a view to preparing him and considering him for release on licence, and that such testing could not take place in a category C prison and needed to take place in category D conditions. They were of the view that the risk to the safety of the public of a transfer to category D was acceptable. The third report in front of the DLP from Dr Narayana, a visiting consultant psychiatrist, was unfavourable to the applicant and neither recommended transferring him to category D nor directing his release. Mr Cochrane and Dr Williams gave oral evidence to the DLP. Dr Narayana did not. The conclusions of the latter were criticised by Dr Williams as being unsupported by evidence or reasoning. 12. The DLP did not recommend that the applicant should be released. However, it recommended that he should be transferred from a category B to a category D prison. Were that recommendation not to be accepted by the Secretary of State, the DLP recommended an early review after 12 months (i.e. in June 1999). 13. The decision letter of the DLP to the applicant of 10 June 1998 stated, in relevant part: “1. The Crime (Sentences) Act 1997 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board who considered your case on 8 June 1998 were not so satisfied and therefore have not directed your release at this stage. This decision is binding upon the Secretary of State. ... 2. In reaching their decision that you are not yet suitable for release on licence, the panel took particular account of the contents of the reports which were before them, most of which did not recommend release and concluded that you remain a risk, at least until further work has been done on social skills and enhanced thinking. The panel noted the fact that your representative expressly stated that she did not ask for a recommendation for release at this stage. 3. The panel recommended to the Secretary of State that you should be transferred to a category D prison. They made this recommendation on the basis of the opinions expressed by Mr Cochrane and Dr Tegwyn Williams that while recognising the progress which you have made, and improved behaviour and attitude, further work remains to be done, but that this could more appropriately be carried out in open conditions, which would give an opportunity to test out your commitment in less structured conditions which are closer to the community. The panel concluded, on the basis of the opinions of these witnesses, that the risk of a transfer to category D conditions would be acceptable. 4. The panel preferred the evidence and report of Dr Tegwyn Williams to the report of Dr Narayana. The panel felt that Dr Narayana’s conclusions (upon which the Secretary of State relied) were not supported by evidence or by any reasoning which preceded them. 5. The panel made no recommendation to the Secretary of State with regard to an early review. However, in the event of the Secretary of State not accepting the panel’s recommendation for transfer to category D conditions, the panel would recommend an early review in 12 months time, and would hope that consideration would be given to a transfer to less secure conditions meanwhile. 6. The decision not [to] release you is binding upon the Secretary of State but it is for him to decide whether to accept the recommendation to transfer to category D conditions.” 14. On 29 September 1998 the Secretary of State rejected the Parole Board’s recommendation that the applicant should be transferred to a category D prison. He directed that the applicant should be moved to a category C prison. The reasons for his decision were set out as follows in a memorandum of 29 September 1998: “The Secretary of State has carefully considered all the papers which were prepared for your recent Parole Board review, including the reports from staff at both Full Sutton and Nottingham, your own and your solicitor’s representations and the recommendation of the Parole Board. He is not prepared to accept the Parole Board’s recommendation for your transfer to open conditions for the reasons set out below. The Secretary of State notes the recommendations made by the Board and by report writers, the majority of whom support a progressive move. He notes in particular, your willingness to co-operate with offence-related treatment work and the progress you have made as a result, your improved behaviour and the remorse you have shown. However, he is concerned by references to your tendency, on occasions, to be aggressive, unwilling or unable to consider fully the likely consequences of your actions or behaviour or see how others perceive your behaviour. In considering the Parole Board’s recommendation for your transfer to open conditions, which is generally a time of final testing in more normal conditions as a prelude to release, the Secretary of State needs to be satisfied that you have made sufficient progress towards tackling your behavioural problems so as to minimise the risk of your reoffending, or risk to the public while in open conditions or when release takes place. The Secretary of State notes that you have not been tested in category C conditions. Life sentenced prisoners are normally required to spend a period in the lower security conditions of a category C prison to enable them to adjust to, and experience, a less secure environment before eventually progressing to open conditions. He considers this to be all the more important in your case in view of the very long period you have spent in maximum security conditions, much of which has been spent in segregation units, and notes that you are still held in category B conditions. He also considers that, although you have attended offending behaviour courses, and appear to have benefited from them, that work needs to be reinforced and tested in the lower security environment of category C conditions before consideration is given to your transfer to open conditions. In particular, further offence-related work needs to be tackled, together with continuing work to develop more mature, reflective styles of thinking and behaving and enhanced interpersonal skills. You will therefore be transferred to a suitable category C establishment. However, in the light of the positive reports from staff at both Full Sutton and Nottingham, your next review will begin 12 months thereafter.” 15. On 7 October 1998, transfer instructions were issued for the applicant’s transfer to HMP Ranby, a Category C prison. This was endorsed as a "priority career move" in view of the need for a review of the applicant’s continued detention to commence twelve months after transfer. 16. On 14 October 1998, the applicant submitted a complaint/request form objecting to the transfer to HMP Ranby as inconvenient for social visits and stating his preferences for other category C prisons. 17. In December 1998, it was decided to move the applicant to HMP Wayland (category C) and the applicant was informed that the other prisons which he had listed were either unsuitable or had long waiting lists. At this time no place at Wayland was immediately available: he was fifth on the list. 18. On 1 April 1999, the applicant was moved to Wayland. 19. On 3 November 1999 the applicant’s application for judicial review of the Secretary of State’s decision not to reclassify him from a category B to a category D prisoner was dismissed by the High Court. This was on the basis that there had not been any procedural irregularity in the decision-making process. During the course of his judgment, Mr Justice Jowitt said the following: “It is clear that the decision which the Secretary of State had to make in this case was an important one. It was important because such a decision has a potential to affect the release date of a prisoner in that delay in transfer to category D has the potential to delay of release on parole.” 20. Mr Justice Jowitt also made, inter alia, the following observations: (a) there had not been any finding by the DLP that there would be a regression in the behaviour or the attitude of the applicant were he to be placed in a category C prison; (b) the DLP had taken “an unusual course” in recommending that the applicant should be transferred from a category B to a category D prison, as, ordinarily, a life prisoner would pass through the categories from which he had started, therefore going through category C into category D; (c) counsel for the applicant had not suggested that the decision of the Secretary of State not to accede to the recommendation of the DLP was open to attack other than on procedural grounds. 21. The applicant did not seek leave to appeal and was advised that he did not have any right of appeal against the judgment of the High Court. 22. The applicant’s subsequent review by the DLP took place at an oral hearing on 25 April 2000, over 12 months after his arrival in category C conditions and over 22 months after his previous review in June 1998. On that occasion, the DLP decided not to direct his release, but recommended that he should be transferred to open conditions. Its decision letter to the applicant of 2 May 2000 stated, inter alia, as follows: “5. Until your arrival at Wayland you had been in conditions of greater security. During your year at Wayland the panel accepts that you have continued to make progress and your behaviour has been good. You have done all that has been required by your sentence plan and you have made sufficient progress towards tackling your offending behaviour to justify your move to open conditions. So far as risk is concerned, however, you have experienced testing only in closed conditions. 6. Having regard to your serious offending, your behaviour in prison up to May 1994 and the fact that you have never been tested in open conditions, the panel considers that your risk is not as yet sufficiently reduced to justify your immediate release. 7. ... Most report writers recommended you for open conditions but not for release. Until you have been tested in open conditions the panel cannot be satisfied that your risk is sufficiently reduced for your release. 8. Furthermore your release plan was not realistic or reasonable ... 9. Your move to open conditions is needed primarily to test further your motivation to remain of good behaviour and your ability to cope with stress and frustration and to enable you to be gradually reintroduced to life in the community outside prison. ... In view of the fact that in June 1998 you were recommended as suitable for release and your progress since then, the panel recommended that you should move to open conditions at the earliest opportunity. Although several report writers recommended a review after 12 months from your arrival in open conditions the panel considered that this period was probably insufficient to enable you to complete the testing which you need and therefore made no recommendation for an early review.” 23. The recommendation that the applicant be moved to open conditions was accepted by the Secretary of State on 24 July 2000. 24. At the applicant’s subsequent review on 30 April 2002, the DLP was satisfied that it was no longer necessary for the protection of public that he be detained and therefore directed his release from prison. 25. A person convicted of certain serious offences may be sentenced to life imprisonment at the discretion of the trial judge. At the time of sentence, a “tariff” is imposed which represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. A life prisoner will not be released on licence until after the tariff period has been completed. 26. Pursuant to section 28 of the Crime (Sentences) Act 1997, after the tariff has expired, a discretionary life prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. 27. The Parole Board further has power, should it choose not to direct the release of a prisoner, to make recommendations to the Secretary of State concerning the detained person’s future progress. 28. Following a review, a discretionary life prisoner has a statutory right to have his case reviewed again by the Parole Board two years after the previous review. 29. If the Parole Board decides not to order release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an earlier review, he can make representations to the Secretary of State, whose decision may be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review. 30. The categorisation of prisoners is the function of the Secretary of State. There are four categories of classification of prisoners, namely: (i) category A prisoners, whose escape would be highly dangerous to the public or to the police or to the security of the nation; (ii) category B prisoners, for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult; (iii) category C prisoners, who cannot be trusted in open conditions, but who do not have the ability or the resources to make a determined escape attempt; (iv) category D prisoners, who can be trusted in open conditions. 31. On 7 December 1994 the Secretary of State stated: “In recent years, successive Secretaries of State have recognised that, for the majority of life sentenced prisoners, a period in open prison conditions is generally vital in terms of testing the prisoner’s suitability for release and in preparing him for a successful return to the community. It is, therefore, now normally the practice to require the prisoner to spend some time in open conditions before release and to arrange a further review while the prisoner is in an open prison for a formal assessment of his or her progress. I intend to continue with this practice and the first Parole Board review will therefore normally serve the purpose of assessing the prisoner for open conditions.” 32. On 9 July 1998 the Secretary of State stated: “... the first Parole Board review in the case of a life sentenced prisoner begins three years before the expiry of tariff. The purpose of this review is normally to enable the prisoner to be assessed for, and, where appropriate, transferred to, open conditions (category D) where he or she may be tested in conditions of lower security, fully assessed by staff and prepared for release. A further Parole Board review is then held to determine whether the level of risk is low enough to enable the prisoner to be safely released on life licence. Where the level of risk is considered to be acceptable, the objective is to release the prisoner on or very shortly after tariff expiry.” 33. A direction to the Parole Board from the Secretary of State under section 32(6) of the Criminal Justice Act 1991 (which preceded the Crime (Sentences) Act 1997) stated: “A period in open conditions is essential for most life sentence prisoners (“lifers”). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.” 34. On 2 October 2000, the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be invoked in domestic proceedings in the United Kingdom. | 1 |
train | 001-93882 | ENG | RUS | CHAMBER | 2,009 | CASE OF GLADYSHEV v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1943. He is currently serving a sentence in Kostroma OT-15/1 correctional colony. 6. On 9 May 2001 policeman S. stopped the applicant for allegedly driving under the influence of alcohol. Mr S. then drew up an administrative offence report, noting that the applicant had committed an offence under Article 117 of the RSFSR Code of Administrative Offences (alcohol-impaired driving). 7. On 10 May 2001, early in the morning, police officers came to the applicant's home and brought him to Manturovo police station. At the police station several police officers demanded that the applicant confess to killing policeman S. According to the applicant, when he refused to do so he was severely beaten several times. As a result of the beating the applicant wrote a confession statement. After that the applicant was questioned by a prosecutor in the presence of a lawyer P. appointed by the investigator. On 11 May 2001 the applicant repeated his confession statements during the reconstruction of events. 8. On 24 August 2001 the criminal case against the applicant was referred to the Kostroma Regional Court. 9. During the trial the applicant withdrew his self-incriminating statements made during the initial inquiry and pleaded not guilty. He stated that he had been forced to incriminate himself, and provided the court with his medical record. In the course of the proceedings the court requested the Regional Prosecutor to examine the applicant's complaints (see paragraph 22 below) and twice ordered forensic medical examinations of the applicant's injuries (see paragraphs 26 and 28 below). According to the last forensic medical report of 22 October 2002 (see paragraph 29 below), the applicant had a chest trauma with a fracture of the seventh, eighth and tenth ribs which could have occurred on 10 May 2001, the day of the applicant's arrest. These injuries were caused by the impact of a blunt hard object with a narrow surface, possibly by blows with fists or kicks with a booted foot. 10. On 27 December 2002 the court convicted the applicant of the murder of a law enforcement official and illegal manufacture and possession of weapons, and sentenced him to eighteen years' imprisonment. It was found that the applicant had requested Mr S. not to charge him with an administrative offence, and when the latter had refused to do so the applicant had killed him. The applicant's conviction for murder was based on his self-incriminating statements obtained on 10 May 2001, similar statements made by him during the reconstruction of events on 11 May 2001 and during further interrogations on 30 May and 6 August 2001, statements of witnesses to whom the victim had complained the previous day that the applicant had threatened him, and the presence of the applicant's pistol not far from the crime scene. While the court agreed that the applicant could have received a chest trauma with fractured ribs on 10 May 2001, with respect to the applicant's confession it found as follows: “...at the same time the court considers that the bodily injuries of the defendant are not linked to his confession statements during the preliminary investigation, since Gladyshev gave these statements under circumstances which excluded any physical or mental pressure on the part of police officers of the Manturovo police station”. The court considered the applicant's confession statements a mitigating circumstance. 11. The applicant and his lawyer challenged the judgment before the Supreme Court. They contested the admissibility of the evidence obtained as a result of ill-treatment and stated that the judgment was unsubstantiated as there had been no direct evidence of the applicant's guilt. They stressed that no expert examination confirmed that the victim had been killed by the pistol found at the crime scene and the court had failed to examine the applicant's allegation that this pistol had been taken from his home and had been planted at the crime scene. 12. On 26 June 2003 the Supreme Court dismissed the appeal and upheld the judgment of 27 December 2002. It rejected the applicant's inadmissibility plea having referred to the first instance court's finding that the use of force had not been established. 13. After being questioned on 10 May 2001 the applicant felt unwell and lost consciousness, and was taken for a medical examination. The forensic expert recorded various injuries to the applicant's body including a suspected chest trauma with fractured ribs. 14. On next day, 11 May 2001, the applicant was escorted to the Manturovo Central Hospital. An X-ray examination did not show fractured ribs. The expert however reported two bruises on the applicant's body which had been inflicted by blunt objects not more than a day before the examination. 15. On 14 May 2001 the applicant's mother requested the Manturovo District Prosecutor to institute criminal proceedings against the police officers for alleged torture and to conduct a medical examination of the applicant. She also complained that the applicant's lawyer could not have access to him. On 15 May 2001 a similar complaint was submitted by the applicant's wife. 16. On 17 May 2001 the applicant was transferred to the SIZO and placed in the SIZO's medical unit as he had hypertonic crisis (severely reduced muscle function) and paraplegia - the applicant was unable to move. 17. On 29 May 2001, the Assistant Prosecutor of Manturovo District issued a decree refusing to institute criminal proceedings against police officers, having found that the applicant's injuries had been caused prior to his arrest. He referred to the applicant's written submissions, his medical record and statements of the lawyer P. that the applicant had not complained of ill-treatment, and concluded that it was in the applicant's interests “to discredit the police officers in order to avoid criminal responsibility”. 18. On 1 June 2001 the forensic medical report indicated a bruise on the applicant's abdominal wall and several scratches, which had occurred more than ten days before the examination. 19. On 6 June 2001 the Deputy Kostroma Regional Prosecutor quashed the decision of 29 May 2001 and remitted the matter for further investigation. Questioned on 21 June 2001, the applicant explained that when he was arrested two police officers had severely kicked him. He complained that his mouth was taped and a gas mask put on him in order to shut him up. He also stated that he had written his confession statement in a break between the first and second beatings and suggested that the police officers had ill-treated him out of revenge for the murder of their colleague. 20. On 6 August 2001 investigator M. of the Kostroma Regional Prosecutor's Office, who had investigated the applicant's criminal case, again refused to institute criminal proceedings against police officers on the ground that there was no evidence that an offence had been committed. He questioned the applicant, who had alleged cruelty, and police officers O., T. and L., who had denied any violence, and decided that there was no ground to challenge the credibility of the latter's statements. 21. On 3 September 2001 an X-ray examination showed fractures of the applicant's tenth and eighth left ribs. 22. On 24 September 2001, during the criminal proceedings against the applicant, the Kostroma Regional Court requested the Kostroma Regional Prosecutor to verify the ill-treatment referred to by the applicant. The investigator then ordered an additional medical forensic expert examination. 23. On 15 October 2001 an additional medical forensic expert examination was conducted. It reported a bruise of 40 x 10 cm, which had been inflicted by blunt objects (it had appeared not earlier than two to three days before the applicant's examination of 18 May 2001); a fracture of the eighth rib (it had appeared not more than twelve weeks before the examination of 15 October 2001) and the tenth rib (it had appeared not more than sixteen weeks before the examination of 15 October 2001). The experts thus ruled out the above injuries occurring on 10 May 2001. 24. On 15 October 2001 investigator Ya. of the Kostroma Regional Prosecutor's Office refused to institute criminal proceedings against police officers O., N., L., P., B. and S.. In the course of his investigation, he has questioned the police officers, the applicant, and also the prosecutor who had opened the criminal proceedings against the applicant. The prosecutor confirmed that when he first saw the applicant after questioning on 10 May 2001 the latter could hardly move and had complained that he had been beaten by the policemen. The investigator however relied on the above expert examination to the effect that the injuries complained of could not have been inflicted on 10 May 2001. 25. The Government submitted that on 31 October 2001 the Manturovo District Court had found the decision of 15 October 2001 unlawful. A copy of this decision was not provided. 26. In a view of discrepancies between the experts' conclusions, on an unspecified day the Kostroma Regional Court ordered an additional comprehensive forensic medical examination to be conducted by the Kostroma Regional Bureau of Forensic Medical Examinations. This examination was conducted on 12-19 November 2001, and the relevant part of the report reads as follows: “Given an integral assessment of the character and degree of intensity of bruises in their dynamics, coincidence of areas of bruises and rib fractures, as well as particularities of consolidation of rib fractures, the forensic medical experts conclude that the above injuries occurred within a limited period of time, most likely on 10 May 2001. These injuries were caused by repeated impacts of a blunt firm object with a narrow surface... These injuries cumulatively led to a lengthy impairment of health for more than three weeks, and consequently caused bodily harm of medium gravity...” 27. Between 10 and 18 December 2001 one of the experts who conducted the above examination, Mr A., was questioned by the court. He confirmed that experts had concluded that the most probable date of the applicant's injuries was 10 May 2001. With respect to results of the previous examination of 15 October 2001 he expressed an opinion that the expert assessed only rib fractures and had not made a global assessment of all injuries. 28. Given that the above examination had not fully dealt with all discrepancies concerning the applicant's injuries, on 18 December 2001 the court ordered the Russian Centre of Forensic Medical Examinations at the Ministry of Health to give a conclusion on the applicant's injuries on the basis of the case materials. 29. On 22 October 2002 the Centre presented their report, according to which the applicant had a chest trauma with fractures of the seventh, eighth and tenth ribs which could have occurred on 10 May 2001, the day of the applicant's arrest. These injuries were caused by “at least two to three impacts of a blunt firm object with a narrow surface, possibly blows with fists or kicks with a booted foot”. The experts ruled out the injuries being the result of a fall. 30. On 22 May 2006 the Manturovo Town Court dismissed an appeal by the applicant against the Prosecutor's Office decision of 15 October 2001. 31. On 13 July 2006 the Kostroma Regional Court quashed this decision and remitted the case for a fresh examination. 32. On 25 July 2006 the Manturovo Town Court again dismissed an appeal by the applicant against the decision of 15 October 2001. 33. On 31 October 2006 the Manturovo Town Court allowed the applicant's complaint, recognised the decision of 15 October 2001 as illfounded and obliged the Prosecutor's Office to rectify shortcomings. 34. On 6 June 2007 the investigator of the Manturovo District Prosecutor's Office quashed the decision of 15 October 2001 and instituted criminal proceedings on the basis of alleged ill-treatment of the applicant on 10 May 2001. 35. On 1 April 2008 the applicant lodged a claim with the Sverdlovskiy District Court of Kostroma against the Kostroma Region Police Department, seeking compensation for non-pecuniary damage caused by alleged ill-treatment. On 3 June 2008 the proceedings were suspended following court orders sent to the Manturovo and Yaroslavl Courts. 36. On 5 August 2008 the preliminary investigation of the alleged illtreatment was suspended in accordance with Article 208 (1) § 1 of the Russian Code of Criminal Procedure (failure to identify the culprits). 37. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to a person shall be compensated in full by the tortfeasor. Pursuant to Article 1069, a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated at the expense of the federal or regional treasury. Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that non-pecuniary damage shall be compensated irrespective of any award for pecuniary damage. 38. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years' imprisonment. Pursuant to Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years' imprisonment. 39. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the CCrP), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual or obtaining information about the offence committed from other sources (Articles 140 and 146). Within three days of receipt of such a complaint the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). 40. Article 29 § 4 of the Code provides that if the trial of a criminal case reveals circumstances that facilitated the commission of an offence, or violations of citizens' rights and freedoms, the court may render a special ruling (частное определение) to draw the attention of appropriate organisations and officials to such circumstances or violations of the law, which require adequate measures to be taken. 41. Article 77 of the RSFSR Code of Criminal Procedure provided that a conviction cannot rest solely on the admission of the accused. | 1 |
train | 001-103625 | ENG | CZE | CHAMBER | 2,011 | CASE OF BENET PRAHA, SPOL. S R.O., v. THE CZECH REPUBLIC | 3 | Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert | 5. The applicant, BENet Praha, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. 6. Between 1994 and 1997 the applicant company dealt in ferrous alloys. 7. In April 2001 customs authorities initiated a set of administrative proceedings against the applicant company in order to check the accuracy of the customs debt (concerning customs plus VAT) the company had paid during the aforementioned period of time. 8. Simultaneously, criminal proceedings were instituted against a person, who was a manager (jednatel) of the applicant company during that period of time, on suspicion of tax evasion while he was managing the applicant company. According to the Government the damage caused to the State exceeded 200,000,000 Czech korunas (CZK; 7,770,000 euros (EUR)). 9. Within the framework of the criminal proceedings a search of the applicant company's premises was carried out on 24 April 2001. Cash in several currencies in the total amount of approximately CZK 20,000,000 (EUR 770,000) and several documents such as financial files, books of accounts and business documents were seized. According to the applicant company these documents and most of the cash have not yet been returned to it. 10. On 25 and 27 April 2001 the prosecuting authorities seized all of the applicant company's assets deposited on its five bank accounts on the suspicion that they constituted profits from the criminal activities of the former manager. The applicant company's bank accounts contained at that time funds equivalent to CZK 98,458,516 (EUR 3,786,866). The seizure orders, which were notified to the applicant company on 8 October 2001, did not specify what assets had been seized, nor to what amount. This was remedied on 28 November 2001 by the Prague High Prosecutor (vrchní státní zástupce) who amended the original decisions by writing in the sums to be seized. While doing so, he froze all assets deposited on the applicant company's accounts on that day, which included payments which had come in after 25 April 2001 and 27 April 2001 respectively. The applicant company's assets amounting to CZK 101,909,105 (EUR 3,919,580) were thus seized. 11. Simultaneously with the criminal investigation, the customs and tax administrative proceedings resulted in the delivery of numerous payment orders assessing duty payable by the applicant company. With all of its assets frozen, the applicant company requested the prosecuting authorities on a number of occasions to lift the seizure in order to discharge these duties, but only few of these requests were granted. Its appeals did not suspend the effect of those orders payable within thirty days of delivery. Consequently, the company had to take out a loan, among other measures adopted to overcome this situation, and avoid insolvency, as it was obliged to pay under these orders a sum totalling CZK 55,000,000 (EUR 2,115,385). 12. Between 2004 and 2005, upon the applicant company's appeals, all of the payment orders and other decisions adopted by tax and customs authorities imposing the duties on the applicant company were quashed as unlawful either by superior authorities or administrative courts. The tax proceedings were discontinued and sums paid by the applicant company upon the orders reimbursed accordingly. 13. The former manager has been prosecuted for acts committed in his capacity as the manager of the applicant company and in the context of its business activities. On 4 June 2009 the former manager was acquitted by Prague Municipal Court (městský soud) from some of the charges, and on 30 April 2010 Prague High Court (vrchní soud) upheld that judgment. The investigation concerning other charges is apparently still pending. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses, including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties, and requested legal assistance from the competent authorities of sixteen countries. 14. In December 2001 the Frýdek-Místek Customs Office (celní úřad) ordered the applicant company to pay customs duties in the amount of CZK 280,672 (EUR 9,955). 15. In May and June 2002 the Prague 4 Customs Office ordered the applicant company to pay customs duties of CZK 3,361,940 (EUR 119,242). 16. On 6 June 2002 the High Prosecutor granted the applicant company's request for the seizure to be lifted for the sum of CZK 280,672. 17. On 5, 17 and 21 June 2002 respectively, the applicant company requested the High Prosecutor to lift the seizure in order to enable it to pay the customs duties ordered in May and June 2002. 18. On 11 July 2002 the High Prosecutor dismissed its requests, finding that the orders had not yet become final. According to the prosecutor, it was premature to lift the seizure under these circumstances, as such a step might have been contrary to the interests pursued by the prosecuting authorities. 19. The applicant company appealed to the High Court, which dismissed its appeal on 27 August 2002. 20. On 18 November 2002 the applicant company lodged a constitutional appeal (ústavní stížnost) maintaining that the customs authorities, together with the prosecuting authorities, had misused the law to its detriment and consequently had violated Article 4 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) (hereinafter “the Charter”). 21. In December 2002 the Constitutional Court (Ústavní soud) invited the respondent parties to the proceedings, the High Court and the High Prosecutor, to submit written observations on the applicant's constitutional appeal pursuant to section 42(4) of the Constitutional Court Act. 22. The High Prosecutor did not submit any observations. The High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company. 23. The Constitutional Court also requested the Prague High State Prosecutor's Office to send it the criminal file in the context of which the seizure had been carried out. The Constitutional Court made copies of the relevant documents, which were included in the case file of the Constitutional Court. Subsequently the criminal file was returned to the Prosecutor's Office on 29 May 2003. 24. On 22 May 2003 the applicant company's acting manager consulted the case file at the Constitutional Court. The next day he sent a letter to the court with the following text: “On 22 May 2003, when consulting the case file, I found that it should also include nine files [covering the criminal proceedings] submitted by the Prague High Prosecutor ... [A]bout nine files annexed to the reply of the Prague High Prosecutor submitted upon the Constitutional Court's invitation of 5 December 2002 were dispatched on 8 January 2003 ... and delivered to the Constitutional Court on 9 January 2003. At the time of my study of the case file these nine files had been sent somewhere for consultation. ... I kindly ask you to set another date on which consultation of the case file including the aforesaid documentary evidence, will be possible.” 25. In a letter of 29 May 2003 from the Constitutional Court judge, the applicant company's acting manager was told to make a direct approach to the High Prosecutor's Office to which the file in question had been returned. The same letter also informed the representative of the applicant company that he was free to inspect the Constitutional Court's file after arranging a visit to do this with the court's registry. 26. In a letter of 5 June 2003 the applicant company's acting manager asked the Constitutional Court judge to remedy the situation and ensure the applicant company had access to those criminal files. The latter replied, on 1 July 2003, that pursuant to section 30(1) of the Constitutional Court Act, a party to the proceedings must be legally represented. He further stated that the criminal case file was not a Constitutional Court file, but subject to the Code of Criminal Procedure, in particular Article 65, which governs access to criminal files. On 11 March 2004 the Constitutional Court dismissed the applicant company's constitutional appeal (II. ÚS 708/02). It held in particular: “As it appears from the decision refusing to lift the seizure of the assets, in the High Prosecutor's view, to lift it could jeopardise the purpose of the criminal proceedings. ... [The High Court] shared his opinion ... In its written observations, it found that there was no ground justifying the conclusion that the seizure of the [applicant company's] assets ... was no longer necessary. In the present case, the Constitutional Court did not consider the conduct of the State authorities a misuse of law to the applicant company's detriment, contrary to the basic requirements of fairness and of Article 4 of the Charter. The mere fact that the applicant company was not successful in its request cannot be in itself considered as violating its right to a fair trial.” 27. On 18 March 2004 the Constitutional Court dismissed as manifestly ill-founded another applicant company's constitutional appeal regarding a decision of the High Court to reject another applicant company's request to partially lift the seizure. 28. In May and June 2002 the Prague II Customs Office ordered the applicant company to pay customs duties in the amount of CZK 16,527,646 (EUR 584,724). 29. On 20 August 2002 the High Prosecutor dismissed the applicant company's request of 23 July 2002 for the seizure to be partially lifted in order to enable it to pay this amount. 30. At the applicant company's request the Customs Office postponed the time-limit for payment of the company's customs duties until 28 February 2003. 31. On 20 September 2002 the applicant company again requested the High Prosecutor to lift the seizure in order to enable the company to pay the customs duties ordered in May and June 2002. Its request was, however, refused by the prosecutor on 23 October 2002. This decision was approved by the High Court on 11 December 2002. 32. On 10 December 2002 and 10 February 2003, the High Prosecutor partly lifted the seizure covering the sum of CZK 16,527,645. The applicant company then discharged its customs debt. However, as it had not done so in time, the Customs Office ordered it to pay a penalty of CZK 232,423 (EUR 8,223). 33. On 10 October 2002 the High Court dismissed the applicant company's appeal against the High Prosecutor's decision of 20 August 2002. 34. On 16 December 2002 the applicant company lodged a constitutional appeal against the High Court's dismissal. 35. At the invitation of the Constitutional Court the High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company. 36. The appeal was dismissed as manifestly ill-founded by the Constitutional Court on 24 August 2004 (I. ÚS 723/02). 37. On 4 November 2002 the Mladá Boleslav Customs Office ordered the applicant company to pay customs duties in the amount of CZK 14,371,989 (EUR 508,460). 38. On 12 and 29 November 2002 and 3 January 2003 respectively the Kladno Customs Office ordered the applicant company to pay customs duties amounting to CZK 1,219,922 (EUR 43,159). 39. On 12 November 2002 and 29 January 2003 the applicant company requested the High Prosecutor to lift the seizure in order to enable the company to pay its customs duties. 40. On 25 March 2003 the High Prosecutor decided not to grant the company's requests. 41. On 2 July 2003 the High Court dismissed an appeal by the applicant company of 2 April 2003 challenging the High Prosecutor's refusal to lift the seizure. 42. On 13 October 2003 the applicant company lodged a constitutional appeal alleging a violation of Article 4 of the Charter. 43. Upon the invitation of the Constitutional Court the High Court and the High Prosecutor submitted written observations. They expressed the view that the applicant's constitutional appeal should be dismissed. These submissions were not communicated to the applicant company. 44. On 15 December 2004 the Constitutional Court dismissed the applicant company's constitutional appeal as manifestly ill-founded (I. ÚS 538/03). 45. On 2 June 2003 the High Prosecutor decided not to grant the applicant company's request of 19 May 2003 to lift the seizure. 46. On 20 August 2003 the High Court, upon the applicant company's appeal of 9 June 2003, upheld the prosecutor's refusal. 47. On 11 November 2003 the applicant company introduced a constitutional appeal challenging the aforesaid decisions and alleging, inter alia, that its property rights continued to be limited contrary to the national law. 48. At the invitation of the Constitutional Court, the High Court submitted written observations, referring to the reasoning of its impugned decision. It expressed the view that the applicant's constitutional appeal should be dismissed. This submission was not communicated to the applicant company. 49. Its appeal was dismissed as unsubstantiated by the Constitutional Court on 9 February 2005 (IV. ÚS 585/03). 50. On 25 May 2004 the applicant company requested the High Prosecutor to lift the seizure of its assets, maintaining in particular that it had discharged all its customs duties. 51. On 16 December 2004 the prosecutor dismissed the request, holding that there was a reasonable suspicion that the assets represented profit from the criminal activities of the accused manager. 52. On 23 December 2004 the applicant company appealed to the High Court. 53. On 21 February 2005 the High Court accepted in principle that prolonged seizure of assets could constitute a disproportionate interference with property rights, but did not find such a disproportionality in the applicant company's case and thus rejected its appeal. 54. On 26 July 2005 the applicant company appealed to the Constitutional Court, complaining of excessive length of the seizure of its assets. 55. Upon the invitation of the Constitutional Court, the High Court and the High Prosecutor submitted its written observations. The High Court proposed that the applicant's constitutional appeal be dismissed. The High Prosecutor informed in detail on several aspects of the criminal proceedings. He also addressed the issue of the length of the seizure by stressing the extent and complexity of the investigation and the need for foreign cooperation. He also proposed to dismiss the appeal. These submissions were communicated to the applicant company in September 2005. The applicant company reacted by sending a letter it had received from the Ministry of Finance which contained an assurance that all money held by the customs authorities would be returned to the applicant company. The letter also contained an apology from the Ministry for problems arising in the complex case of the applicant company. 56. On 13 January 2006 the Constitutional Court again requested the High Prosecutor to inform it about the stage the investigation had reached and when it was expected to be finished. On 20 January 2006 the High Prosecutor submitted to the court a one-paragraph reply saying that almost all the sixteen States from whom assistance had been requested had responded and it was expected that they would send the required materials before April 2006. He further informed the court that he expected to conclude the investigation by mid-2006 and that it was highly likely that all the accused persons would be tried before a court. These submissions were not communicated to the applicant company. 57. On 9 February 2006 the Constitutional Court rejected the appeal as manifestly ill-founded (III. ÚS 394/05). It held that the seizure of the assets was still proportionate in view of the complexity of the investigation and in this context it considered important the assurance of the High Prosecutor that the investigation should be finished that year. 58. On 30 January 2008 the Constitutional Court found a violation of the right to property of a company, Benet Czech, spol. s r.o., which was in the same position as the applicant company. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. Consequently, the applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of the Constitutional Court. 59. On 6 March 2008 the High Prosecutor lifted the seizure of the applicant company's bank accounts, holding that the conclusions of the Constitutional Court also applied to the applicant company. 60. Section 30(1) provides that the applicant must be represented in the proceedings before the Constitutional Court by an attorney. 61. Section 32 provides that parties and joined parties are entitled to comment on a constitutional appeal, to make submissions to the Constitutional Court, to consult a case file (with the exception of records of voting), to make excerpts therefrom and copies thereof, to adduce any evidence, to take part in any oral hearing in the matter, and to assist at any taking of evidence. 62. Under section 48, the Constitutional Court must take all evidence necessary to establish the facts of the case. It decides what evidence submitted by parties should be accepted and may take evidence which has not been adduced by the parties. It may assign a judge to take evidence obtained otherwise than at an oral hearing, or request another court to take such evidence. At its request, courts, public administrative authorities and other State institutions must assist it in its decision-making by procuring documentary evidence. A record must be drawn up of all evidence taken outside an oral hearing, this record being signed by a judge, a clerk and other persons participating in that evidence session. The outcome of the taking of evidence must always be communicated at an oral hearing. 63. Section 49(1) provides that any means which may be instrumental to establish facts of a case may be used in evidence, in particular the testimony of witnesses, expert opinions, reports and statements of State authorities and legal persons, documents, outcomes of inquiries and the testimony of parties. 64. Pursuant to Article 9, prosecuting authorities shall assess preliminary issues arising in course of proceedings; should a final and binding decision on such an issue have already been adopted by a court or another state authority, prosecuting authorities shall be bound by it unless it concerns an issue of the guilt of the accused. 65. Article 42 provides for the rights of a concerned person. It states that anyone whose property has been seized or is liable to be seized following an application for seizure must be provided with an opportunity to comment on the given case, may attend a hearing, raise its own requests, consult the case file within the meaning of Article 65, and lodge appeals as provided for by this law. 66. Article 65 concerns access to files. The first paragraph provides, inter alia, that the accused, injured and intervening parties, their counsel and guardians shall have the right of access to files except for records and those sections of records containing personal data of anonymous witnesses, to make excerpts and notes therefrom, and to have duplicates of the files and the parts thereof made at their own expense. Other persons may do so with the authorisation of a president of a chamber and a prosecutor, or with police authority at the pre-trial stage of proceedings if it is necessary for the exercise of their rights. 67. Article 79a § 1 provides for a seizure of financial instruments deposited on a bank account. If the given facts indicate that the financial instruments on a bank account are intended for the commission of a crime, or have already been used for such a purpose, or constitute profits from criminal activities, a president of a chamber and a prosecutor, or the police authority at the pre-trial stage of criminal proceedings, are empowered to seize them. 68. Pursuant to Article 79a § 3, the State authority listed in paragraph 1 lifts or reduces the seizure if such a measure is no longer necessary, or it is not necessary to maintain it at the given amount. A decision within the meaning of the previous sentence by police is subject to prior approval by a prosecutor. 69. Under Article 79a § 4 the owner of a bank account whose assets are seized, has the right to request that the seizure be lifted or reduced. A prosecutor has to decide on such a request without delay. 70. Article 79a § 5 provides that decisions adopted pursuant to paragraphs 1, 3 and 4 may be appealed by a complaint. 71. According to Article 145 § 2 a complainant may rely on new facts and evidence. 72. Pursuant to Article 149 § 4, if a decision is erroneous due to the fact that a part of its operative section is missing, an appellate authority is empowered either to amend the impugned decision, remit the case to the authority of first instance whose decision is challenged, for it to decide on the missing part of the decision or to amend it. 73. Article 48 § 12 provides that an appeal shall not suspend the entry into force of a decision adopted in administrative proceedings on tax and other fees unless a special law provides otherwise. | 1 |
train | 001-57836 | ENG | GRC | CHAMBER | 1,993 | CASE OF PAPAMICHALOPOULOS AND OTHERS v. GREECE | 2 | Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction) | N. Valticos;R. Pekkanen | 6. The applicants, who are all of Greek nationality, are the owners or co-owners of land in the area of Agia Marina Loimikou, near Marathon, Attica. On 16 March 1963 the Greek Office of Tourism gave its consent for the construction of a hotel complex on the site. At the applicants’ request, an American firm of architects drew up plans. 7. By a Law of 20 August 1967 (anagastikos nomos no. 109 - "Law no. 109/1967"), which was passed some months after the dictatorship was established, the Greek State transferred an area of 1,165,000 sq. m near Agia Marina beach to the Navy Fund (Tamio Ethnikou Stolou). Ten of the applicants, who owned part of this land (approximately 165,000 sq. m), applied to State Counsel at the Athens Court of First Instance (Isageleas Protodikon), requesting him to take interim measures and "restore the original position". On 30 July 1968 State Counsel made three orders granting the applications, as the land in question was not public forest but consisted of agricultural land cultivated by the owners. One of the three orders, however, was revoked by State Counsel at the Athens Court of Appeal on the ground of "lack of urgency", following an application by the Navy Fund. On 12 April 1969 the Minister of Agriculture informed Navy headquarters that part of the land transferred was not available for disposal and that it was necessary to take steps to "restore the rightful position". 8. Far from restoring the land to its owners, however, the Navy proceeded to construct a naval base and a holiday resort for officers. A royal decree of 12 November 1969 (published in the Official Gazette of 15 December 1969) designated the entire Agia Marina Loimikou region as a "naval fortress". 9. After the fall of the dictatorship in 1974, Mr Petros Papamichalopoulos, the father of the applicants Ioannis and Pantelis Papamichalopoulos, commenced proceedings in the Athens Court of First Instance to establish his title to three parcels of land. In a judgment (no. 3031/1976) given on 28 February 1976 the court held that in 1964 the plaintiff had indeed acquired title to 2,500 sq. m of land by a notarially recorded deed; that the land in question was not public forest but consisted of parcels which had been cultivated and occupied bona fide by various individuals successively since 1890; and that the Navy Fund was therefore obliged to return it. 10. The Athens Court of Appeal upheld this decision on 31 December 1976 (in judgment no. 8011/1976). It considered that the State had not transferred ownership of the land in question in 1967 since it had no title and the presumption of ownership applied only to forests, not to agricultural land. 11. An appeal on points of law by the Navy Fund was dismissed by the Court of Cassation (Arios Pagos) on 14 June 1978 (in judgment no. 775/1978), on the ground that Mr Petros Papamichalopoulos’s ascendants had acquired title to their land by prescription and in accordance with the Romano-Byzantine law applicable at the time (1860). 12. On 17 July 1978 Mr Petros Papamichalopoulos sent a bailiff to serve the above-mentioned judgments on the Navy Fund with a view to their enforcement. On 28 September, accompanied by a bailiff, he went to the entrance of the naval base and sought enforcement of the court decisions, but the commanding officer of the base refused to admit them on the grounds that he had been ordered not to and that they required authorisation from Navy headquarters, which was refused. An application to State Counsel at the Court of Cassation was also unsuccessful. 13. In August 1977 Mr Karayannis and the other applicants brought two actions in the Athens Court of First Instance to establish their title to the land in issue. The State intervened in the proceedings in support of the Navy Fund. In two interlocutory decisions of 1979 (nos. 11903 and 11904/1979) the court ordered further inquiries into the facts. It also held it necessary to commission several experts to examine the title documents in the applicants’ and the Navy Fund’s possession and file an opinion within five months on whether the land belonged to the plaintiffs or was part of the public forest transferred by Law no. 109/1967. However, the proceedings remained pending. 14. On 22 July 1980 the Minister of Defence informed the applicants that the construction of the naval base prevented return of the land in question, but that proceedings were under way with a view to a grant of other plots of land to replace those occupied by the Navy Fund. 15. On 16 October 1980 the Minister of Agriculture requested the Prefect of East Attica to transfer to the applicants land of equal value situated in that region. He stated that even though the court decisions delivered so far related to only some of the private individuals who had been dispossessed in 1967, future or pending actions brought by other owners would certainly have the same outcome. Notwithstanding a decree of 19 June 1981 regulating building development within the "Ramnoudos" archaeological site in the Loimiko valley (in which the disputed land was situated), the Navy Fund carried on with the construction of a hotel complex within the perimeter of the naval base. 16. By a joint decision of 9 September 1981 the Minister for Economic Affairs and the Ministers of Agriculture and Defence set up a committee of experts to choose certain of the pieces of land offered in exchange by the Ministry of Agriculture and value them; among these was a plot at Dionysos in Attica (see paragraph 27 below). The committee expressed its findings in a report of 14 January 1982. 17. In section 10 (see paragraph 29 below) of Law no. 1341/1983, published in the Official Gazette of 30 March 1983, it was expressly acknowledged that private individuals who were claiming title to land occupied by the Navy Fund were entitled to apply for other land in exchange, using the procedure laid down in Article 263 of the Rural Code (see paragraph 30 below); for this purpose it provided for a procedure for verifying title to the land in accordance with Article 246 of that code. The explanatory memorandum on the Law contained the following: "[S]ection [10] provides for the possibility of settling the case of the properties included in the area ... transferred to the Navy Fund under Law no. 109/1967. This is an area of approximately 165,000 sq. m. It is claimed by a number of private individuals. Some of these have brought actions in the civil courts and obtained from the Court of Cassation a final decision in which they are acknowledged to be the owners. Having regard to the fact that the other [pending] cases are likely to have the same outcome and that paying compensation would be a solution disadvantageous to the authorities, an enactment must be passed enabling [the remaining private individuals] to replace their properties by others, which belong to the State and are available, subject to prior verification of the owners’ title. ..." 18. Under this Law the applicants applied to the Athens second Expropriation Board (Epitropi apallotrioseon), composed of the President of the Athens Court of First Instance and civil-service experts. In decision no. 17/1983 of 19 September 1983 the Board acknowledged their ownership of an area of 104,018 sq. m. It stated the following: "... it appears from the hearings, written submissions, oral statements and documents in the case file that the applicants ... occupied bona fide in continuous and regular fashion from time immemorial until 1967 an area of approximately [160,000 sq. m] situate at Agia Marina Loimikou ...; that the aforesaid area had for a long time been used for agriculture, as shown by several items of evidence ..." 19. On 8 December 1983 the Navy Fund appealed to the Athens Court of First Instance against this decision. The Greek State joined it by intervening in the proceedings on 25 January 1984. In a judgment of 31 May 1984 (no. 1890) the Court of First Instance declared the appeal inadmissible; in the court’s opinion, only the State and the parties concerned had standing to appeal against the decision in question, and not third parties such as the Navy Fund. 20. On 29 December 1986 the Athens Court of Appeal upheld this decision. 21. The Minister for Economic Affairs lodged an appeal on points of law, which was declared inadmissible by the Court of Cassation on 8 January 1988 (in judgment no. 5/1988) on the following grounds: "... Law no. 1341/1983 gave third parties ... who claim ownership of the tract contained within the larger area transferred to the Navy Fund the possibility of applying for the claimed land to be exchanged for another plot of equal value ... . Such exchanges will be effected in accordance with the procedure laid down in paragraphs 3, 4 and 5 of Article 263 of the Rural Code, that is to say by a decision of the Minister of Agriculture, after administrative proceedings before a tripartite board and in accordance with Article 263 of the Rural Code. ... In order to ensure that these exchanges are effected quickly and simply, the legislature has given interested parties the possibility of using the simple, quick procedure provided for in Article 246 of the Rural Code in order to have their [title] acknowledged. In adopting the aforementioned provision of section 10 of Law no. 1341/1983, it did not intend to provide, in accordance with Article 246 of the Rural Code, a solution for the dispute which might arise if the Navy Fund claimed against third parties the ownership of the area transferred by Law no. 109/1967. For that purpose the Navy Fund will have to use the procedure of ordinary law. This is apparent not only from the wording and the grammatical interpretation of the aforementioned provision ... but also from the purpose that the legislature sought to achieve ... ... In granting the right to have their title ... acknowledged only to the `private individuals’ (natural and legal persons) that own [these] areas of land ..., the legislature did not introduce any unjustified discrimination against the Navy Fund and did not deprive it of judicial protection, as it is still open to it, under ordinary-law procedure, to secure recognition of its title, which will not, however, enable it to receive other areas of land as this was not the legislature’s intention ..." On 24 June 1988 (in judgment no. 1149/1988) the Court of Cassation dismissed, on the same grounds, an appeal on points of law that had been brought by the Navy Fund. 22. On 25 July 1984 a further decree extended the geographical boundaries of the "naval fortress". Pursuant to section 10 of Law no. 1341/1983, the Prefect of East Attica informed the Minister of Agriculture and the applicants on 11 September 1985 that some of the parcels of land offered in exchange were subject to special rules of ownership, while others had already been developed, and others again were protected by the legislation on forests. In November 1987 the Minister of Agriculture suggested to the applicants that they should accept land in the prefecture of Pieria, 450 km from Agia Marina; it asked the Prefect of Pieria to look for land for this purpose. In view of the authorities’ silence, three Members of Parliament in November 1988 put questions in Parliament to the Ministers of Defence and Agriculture asking what action had been taken in the matter. In a letter of 25 October 1990 the Pieria Agricultural Department admitted that it had been unable to find suitable land. 23. On 2 December 1979 the applicants had brought two actions in the Athens Court of First Instance against the Navy Fund and the Greek State, represented by the Ministry of Finance, for damages for the loss of use of their property. In two judgments of 21 June 1985 the court adjourned the cases on the ground that verification of the applicants’ title to the land had not been completed except in the case of Mr Petros Papamichalopoulos. 24. Earlier, the Navy Fund had asked the Association of Court Experts to produce a valuation of the property in issue. The designated expert obtained from the third applicant, Mr Karayannis, the opinion of all the owners in question on the documents which the Navy Fund had communicated to him. On 20 June 1986 Mr Karayannis asked the Navy Fund for information about the nature of the documents made available to the expert. On 10 March 1987 the Fund refused to provide any on the ground that the matter was of the nature of an internal procedure and this ruled out any intervention by third parties. 25. Several other actions for damages brought over a period up to 1991 were adjourned by the Athens Court of First Instance or else have not yet been heard. 26. On 29 October 1991 the Ministry of Economic Affairs wrote to the State Lands Authority (Ktimatiki Etairia tou Demosiou) asking them to find land which might be used for the proposed exchange; it also drew their attention to the State’s obligation to pay the applicants exorbitant sums of money if the exchange did not take place. In its answer the State Lands Authority again stated that there was no land available. 27. By decision no. 131 of the Cabinet, published in the Official Gazette of 17 October 1991, the administrative board of the Defence Fund had transferred to the Ministry of Economic Affairs ownership of 470,000 sq. m of land belonging to the disused Dounis military camp at Dionysos, Attica, in the vicinity of the land in issue (see paragraph 16 above). This land, which was intended for sale, was included in the land register and given the name "Semeli estate". On 31 May 1992 the State Lands Authority placed advertisements in the press. On 21 July 1992 the applicants’ lawyer wrote to the State Lands Authority, asking whether it would be possible to allocate the new estate to his clients; on the following day he sent an identical letter to all the relevant ministers, the President of the Legal Council of State and the Director of the Navy Fund. The applicants have not yet received any response, apart from a copy of a letter from the Ministry of Economic Affairs department responsible for public property to the State Lands Authority asking the latter to take action under its powers and notify the writer and the other public authorities dealing with the case. 28. Under Article 17 of the Greek Constitution of 1952, which applied at the time the Law in issue was passed, "1. No one shall be deprived of his property unless it is for the public benefit, which must be duly proved, when and as specified by law and only after full compensation. Compensation shall in all cases be determined by the civil courts. In urgent cases it may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned, and the court may, at its discretion, require the latter to provide commensurate security, as provided by law. Until payment of the final or provisional compensation determined by the court, all rights of the owner shall be maintained intact and occupation of the property shall not be allowed. ... 4. Special status shall govern requisitioning to meet the needs of the armed forces in the event of war or mobilisation or to meet an immediate social need that is likely to jeopardise public order or public health." "1. Property shall be protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest. 2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, when and as specified by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which an application is made for immediate final determination of compensation, regard shall be had to the value at the time of the court hearing of the application. 3. Any change in the value of expropriated property occurring after publication of the expropriation decision and resulting exclusively from it shall not be taken into account. 4. Compensation shall in all cases be determined by the civil courts. It may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned, and the court may, at its discretion, require the latter to provide commensurate security before receiving the compensation, as provided by law. Until payment of the final or provisional compensation determined by the court, all rights of the owner shall be maintained intact and occupation of the property shall not be allowed. The compensation awarded must be paid within a year and a half at the latest from the date of publication of the decision provisionally determining the compensation payable; in the case of applications for immediate final determination of compensation, this must be paid within a year and a half at the latest from the date of publication of the court ruling, otherwise the expropriation shall automatically be revoked. The compensation as such shall be exempt from all taxes, deductions and rates. 5. The cases in which a compulsory indemnity shall be payable to the beneficiaries for loss of income from expropriated property until the time of payment of the compensation shall be laid down by law. 6. Where works of public benefit or of general importance to the economy of the country are being carried out, a law may allow the expropriation by the State of areas greater than that of the land needed for the execution of the works. The same law shall lay down the conditions and terms of such expropriation, as well as the arrangements for the disposal or use for public or public-utility purposes in general of expropriated areas not required for the execution of the proposed works. ..." 29. Under section 10 of Law no. 1341/1983, "Land of which third parties have claimed ownership and which forms part of the area at Agia Marina Loimikou in Attica which was transferred to the Navy Fund under Law no. 109/1967 ... may, on application by the persons concerned, be exchanged for land of equal value, dedicated for public use (koinokhristes) or available under the legislation on land use, in accordance with the procedure provided for in paragraphs 3, 4 and 5 of Article 263 of the Rural Code. In order to have their ownership of the said land acknowledged, the persons concerned may follow the procedure laid down in Article 246 of the Rural Code ..." 30. The relevant paragraphs of Articles 246 and 263 of the Rural Code provide: "Acknowledgment of title 1. Where an application is made to it by the parties concerned, the appropriate Expropriation Board shall determine title to the expropriated land in accordance with Law no. 4857 and Article 242 of the present code. Within not more than three months from the notification of the decision, the State and the parties concerned may challenge the decision in the Court of First Instance that has jurisdiction, which shall make a final ruling in accordance with the procedure laid down in the following Articles. 2. Against judgments given by the courts of first instance under Article 246 of the Rural Code before the present Law comes into force an appeal shall lie within not more than one year from the date of commencement of this Law to the Court of Appeal that has jurisdiction ... ..." "... 4. Persons acknowledged as owners of expropriated land shall be invited by the Minister of Agriculture ... to lodge a notarially recorded certificate in which they declare that they accept the exchange of land effected under the preceding paragraph and waive any claim for compensation. 5. The aforementioned allocation of land belonging to the State, to a municipality or to a cooperative shall take effect by decision of the Minister of Agriculture in lieu of a title deed, which shall be entered in the land register. ..." | 1 |
train | 001-87002 | ENG | CZE | ADMISSIBILITY | 2,008 | FOREJT (II) v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The applicant, Mr Miloslav Forejt, is a Czech national who was born in 1937 and lives in Plzeň. 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 14 May 1998 the applicant filed an action for damages against the State, represented by the Ministry of Justice, with the Plzeň-town District Court (okresní soud) under the State Liability Act. On 8 July 1998 the Plzeň Regional Court (krajský soud) decided to transfer the case to the Plzeň-South District Court. On 19 April 1999 the applicant supplemented his action. It seems that the proceedings are still pending at first instance. 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 | 001-57490 | ENG | CHE | CHAMBER | 1,987 | CASE OF F. v. SWITZERLAND | 2 | Violation of Art. 12;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;J.A. Carrillo Salcedo;N. Valticos | 8. The applicant, a Swiss national born in 1943, has married four times since 1963. The first three marriages were dissolved by divorce; the sole issue in the instant case is the temporary prohibition on remarriage imposed on him following the third divorce. 9. F married Miss G in 1963 and divorced her on 8 May 1964. On 12 August 1966, he was remarried to Mrs. B, a divorcee, who bore him a son on 26 November of the same year. The couple separated in December 1978, and F cohabited with another woman. Mrs. B obtained a divorce on 27 October 1981. The court prohibited the applicant from remarrying within a year, under Article 150 of the Swiss Civil Code (see paragraph 22 below). 10. The applicant advertised for a secretary. On 11 January 1983, Miss N appeared in response to his advertisement. Four days later they were living together and on 26 February the couple married. 11. On 11 March 1983, F began divorce proceedings in the Lausanne District Civil Court. At the beginning of April, his wife left the matrimonial home after he had taken up again with a former mistress. 12. After an attempt at conciliation had failed, the parties signed an agreement covering the ancillary effects of the divorce on 16 May 1983; in particular, the applicant undertook to pay his wife the sum of 17,000 Swiss francs (CHF) as compensation for non-pecuniary damage. 13. The Civil Court gave judgment on 21 October 1983. It dismissed F’s petition, allowed the wife’s cross-petition of 21 June and approved the agreement reached between them. It also imposed on the applicant a three-year prohibition on remarriage; in its opinion, the applicant’s unacceptable attitude rendered him solely responsible for the breakdown of the marriage. The divorce became final on 21 December 1983. 14. The applicant appealed to the Appellate Division of the Vaud Cantonal Court to discharge the order prohibiting remarriage. He denied that the statutory conditions were satisfied, namely that the fault committed was exceptionally serious and had played a decisive role in the breakdown. He also argued that the order complained of contravened Article 12 (art. 12) of the European Convention on Human Rights. 15. On 7 May 1984, the Appellate Division upheld the Civil Court’s judgment. The seriousness of the fault could not be disputed. F’s behaviour had so grossly disregarded the laws of marriage and the most elementary requirements of that status that a prohibition on remarriage was imperative. Article 12 (art. 12) of the Convention was not an obstacle to the application of Article 150 of the Civil Code. Furthermore, the reference to national legislation in Article 12 (art. 12) had the effect of incorporating into the Convention the national law governing the right to marry. 16. F appealed to the Federal Court on points of law (recours en réforme), arguing that the conditions for the application of Article 150 of the Civil Code were not satisfied and that the prohibition on remarriage violated Articles 12, 8 and 3 (art. 12, art. 8, art. 3) of the Convention. 17. The Federal Court gave judgment on 18 October 1984. It ruled that the appeal was inadmissible in relation to the alleged incompatibility of Article 150 with the Convention, on the ground that this plea should have been raised by way of a public-law appeal (recours de droit public) and not by way of an appeal on points of law. It said: "It is doubtful whether in an appeal on points of law (recours en réforme) the appellant can rely on the incompatibility of Article 150 of the CC [Swiss Civil Code] with the rights secured in the ECHR [European Convention on Human Rights]. Admittedly, under section 43(1), first sentence, of the OJ [Federal Judicature Act] an appeal on points of law is admissible for violations of federal law, including international treaties concluded by the Confederation. But by the second sentence of the above-cited provision, the right to enter a public-law appeal (recours de droit public) in respect of violations of citizens’ constitutional rights remains unaffected. According to the established case-law, the rights protected by the ECHR and which the latter requires Switzerland to guarantee to its own nationals and others, are in the nature of constitutional rights: this close relationship between constitutional rights and the rights protected by the ECHR makes it possible, from a procedural point of view, to treat violations of the Convention on the same footing as violations of a constitutional right within the meaning of section 84(1) of the OJ. At all events, under Article 113 para. 3 Cst. [the Federal Constitution] the Federal Court has a duty to apply the Acts passed by the Federal Assembly and the decrees of that Assembly which are of general application. It is thus under an obligation to follow this legislation without inquiring whether it is incompatible with the Constitution. The ECHR has made no change in this respect. It does not in any way alter the separation of powers between the legislature and the highest court as governed by domestic law, and accordingly does not confer on the Federal Court any jurisdiction other than the one it hitherto enjoyed under the Constitution and the Judicature Act (judgment of the 1st Public-Law Division, 14 June 1983, in Hofstetter v. Attorney-General of St. Gall, unreported). It follows that the question whether Article 150 CC is compatible with the ECHR lies outside the jurisdiction of the Federal Court; the appeal is therefore inadmissible on this point." For the rest, the Court dismissed the appeal in the following terms: "The cantonal court held that there was a causal relationship between the husband’s adultery and the breakdown of the marriage. This is a finding of fact binding on the Federal Court in an appeal on points of law (section 63(2) OJ). The appellant’s behaviour played ... a decisive role in the breakdown, of which it was the sole cause. The wife was bewildered when her husband expressed his intention to divorce: she protested and expressed her affection for him. She only left the matrimonial home after being worn down by all that F had done to force her to go. The appellant’s fault is of exceptional gravity. He pressed his mistress to marry him despite the shortness of their acquaintance and then only a few days after the ceremony said he wanted a divorce without giving any valid explanation. By this capricious attitude he showed that he was making a mockery of the institution of marriage. He was not only offhand, but contemptuous and cruel. When his wife tried to maintain the marriage bonds by showing him her affection, he used the most despicable means to frustrate her efforts. Regardless of the duties imposed by the laws of marriage, he treated his wife as an object and, seeking only to bring about a break, he went so far as to commit adultery and provoke scenes during which he was rude and odious. The respondent has suffered greatly from this broken marriage: the compensation which the court of first instance granted her by approving the agreement on the ancillary effects of the divorce, bears witness that her sufferings went beyond what a wife can humanly be expected to bear. In view of the above, the cantonal court could, without violating federal law, reasonably take the view that a prohibition on remarriage for three years was necessary." 18. In a statement dated 14 March 1986, F and the woman with whom he was living stated that they intended to get married as soon as possible. The woman in question, who was still a party to a previous marriage, had commenced proceedings for divorce. The decree of divorce was granted on 19 March 1986 and became absolute on 21 April 1986. On 22 May 1986, the president of the Lausanne court allowed her application to have the waiting time (délai de viduité - Article 103 of the Swiss Civil Code) reduced and gave her leave to remarry as from that date. 19. On 2 September 1986, the Head of the Department of Justice and Legislation refused to publish the banns before the prohibition on the applicant’s remarriage had expired. Two days later, F appealed to the Conseil d’Etat of the Canton of Vaud, which dismissed his appeal on 14 November 1986. It stated, inter alia: "... it cannot be right that the registrar of births, deaths and marriages should take any measure until all impediments to remarriage have been removed, both from considerations of public policy and for elementary reasons of legal certainty." 20. The banns were published as soon as the waiting period imposed on the applicant had expired, and he married Mrs. F on 23 January 1987. A child was born of this marriage on 23 February 1987. 21. By Article 54 of the Swiss Federal Constitution, "The right to marry shall enjoy the protection of the Confederation. No impediment to marriage may be based on denominational grounds, the poverty of either of the spouses, their conduct or any other grounds of administrative policy. Marriages entered into in a canton or abroad in accordance with local legislation, shall be recognised as valid throughout the Confederation. ...". 22. Although the Civil Code recognises the right to divorce, the right to remarry after divorce cannot be exercised in some cases until a certain time has elapsed. The Swiss Civil Code provides in Article 150, which came into force in 1912: "When granting a divorce the court shall fix a period of not less than one and not more than two years during which the party at fault shall not be entitled to remarry; where the divorce is granted on the ground of adultery, this period may be extended to three years. The period of judicial separation ordered by the court shall be included in this period." 23. The application of this provision has, however, been made more flexible by decisions of the courts. Thus, in the judgment of 16 December 1981 in X v. X, the Federal Court stated: "[The temporary prohibition of remarriage] is criticised by legal writers (cf. Bühler/Spühler, note 5 on Art. 150 CC and references), some of whom go so far as to suggest that the rule in Article 150 CC should be abandoned because its application gives rise to numerous inequalities and because it is easily evaded by marrying abroad (Deschenaux/Tercier, Le mariage et le divorce, 2nd ed., p. 110). As early as 1912, the Federal Court noted that the penalty of a waiting period entailed a considerable restriction of individual freedom and of the right to marry guaranteed in Article 54 para. 2 of the Constitution: it should not be imposed unless there had been a serious violation of essential conjugal duties and the courts should, therefore, exercise some restraint in applying Article 150 CC (ATF [Judgments of the Swiss Federal Court] 38 II 62; cf. ATF 68 II 149, point 2 of the reasons, and 69 II 353). The interpretation of this provision must be brought into line with the whole body of case-law on divorce, which shows that the courts are tending to depart from rigorous theory and seeking to avoid unduly severe sanctions by having regard to the circumstances of the particular case. Thus adultery is no longer an absolute ground for divorce (ATF 98 II 161, point 4 (b) of the reasons) and the notion of the innocent spouse, within the meaning of Articles 151 and 152 of the Civil Code, does not exclude all fault (ATF 103 II 169, point 2 of the reasons, and references). From this standpoint, even more restraint should be exercised in applying Article 150 of the Civil Code. Courts should not impose a prohibition on remarriage unless the fault committed is of exceptional gravity and has also played a decisive role in the breakdown of the marriage." (Judgments of the Swiss Federal Court, vol. 107, part II, p. 395) 24. On 28 June 1965, the Study Group on the partial reform of family law presented its report to the Federal Department of Justice and Police, which had appointed the Study Group. It advocated repeal of Article 150 of the Civil Code, relating to the waiting period: "For some years now a number of members of Parliament have been disturbed by the application (or more precisely, the non-application) of Article 150 (Petites questions Obrecht et Bourgknecht, interpellation Schaffer, REC [Revue de l’état civil] 31, 1963, 228; 32, 1964, 82-83). The issue has also been raised in the press (Beobachter of 15 June 1956, ‘Wer Geld hat, darf heiraten!’). What is the problem? Under Article 150 the court must prohibit a spouse found to be at fault from remarrying for a given period. But disregard of this prohibition does not in any way affect the validity of a marriage entered into in spite of it (Götz, notes 10 and 14 on Art. 104). Such a breach, however, can scarcely occur in Switzerland, where it would involve a serious dereliction of duty or even connivance on the part of the registrar of births, deaths and marriages. It can happen, on the other hand, that a spouse prohibited from remarrying goes abroad, preferably to England, to enter into a valid marriage there. On returning to Switzerland, he asks to have his marriage registered. In view of Articles 104 and 130, this cannot be refused. At most, cantonal provisions could render such conduct liable to a criminal sanction; this is the case in the cantons of Basle Urban and Basle Rural only. It is understandable that a person can, in good faith, come to the conclusion that money and a journey abroad are all that is needed in order to evade a prohibition on remarriage. A means must be found of remedying the offensive aspects of this situation. This certainly cannot be done by converting the prohibition on remarriage which is inherent in the waiting period into an impediment to marriage. In Articles 120 et seq. the legislation provides for nullity of marriage only in very exceptional cases. Article 54 para. 3 Cst. would also preclude this solution. Nor can one seriously contemplate a solution which would involve introducing serious criminal sanctions throughout Switzerland. If equality before the law is to be guaranteed, there is only one solution and that is to delete Article 150 CCS [Swiss Civil Code]. This is the solution proposed by Götz (REC 32, 1964, 84-88), who has given very convincing reasons. It was strongly supported by the Conference of cantonal authorities responsible for supervising civil status at its assembly on 15 October 1964 (see on this question the report by Heiz, REC 32, 1964, 401-404; 33, 1965, 4-8, 54-59, 92-98). The Study Group unanimously supports this suggestion. It must be expressly stated that this proposal by the Group is not intended to indicate any particular sympathy for behaviour contrary to the spirit of marriage. It is based on a recognition of the fact that Articles 104 and 150 ‘are not in accordance with the policy of the Constitution’ (Knapp in RDS [Revue de droit suisse] 71, 1952, I, 293). It is also clear that Article 150 will not have the effect of making spouses at fault think again and mend their ways (Grisel in JdT [Journal des tribunaux] 1943, I, 326; Picot in RDS 48, 1029, 62(a)). The Group also wishes to point out that the inequalities noted do not only appear in the case of a possible marriage. They may become apparent during divorce proceedings, because the case-law on the application of Article 150 varies from canton to canton; and in the case of divorce by consent, many spouses, even if at fault, agree to present their case in such a way that no waiting period is imposed (Stocker in RSJ [Revue suisse de jurisprudence] 47, 1951, 19)". 25. The same proposal was repeated by the Committee of Experts on Family Law Reform, which considered the reform of divorce from 1974 to 1976. After reform of the law on various subjects, the Committee concentrated its attention on the provisions relating to divorce. In 1988, it is due to adopt a Bill which will be submitted to interested organisations and groups for comment. The Federal Government will then draw up a Bill to be laid before Parliament. Parliament will not be able to debate the Bill before 1992, so that the new divorce law is not expected to come into force until 1995 at the earliest. | 1 |
train | 001-72749 | ENG | LVA | CHAMBER | 2,006 | CASE OF SVIPSTA v. LATVIA [Extracts] | 1 | Violation of Art. 5-1 (as regards the detention of the applicant between 18 May and 11 October 2001);Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;Non-pecuniary damage - finding of violations sufficient;Costs and expenses partial award - Convention proceedings | Alvina Gyulumyan;David Thór Björgvinsson;Ineta Ziemele;John Hedigan;Margarita Tsatsa-Nikolovska;Vladimiro Zagrebelsky | 8. On 17 February 2000 I.S., a head of division at the National Privatisation Agency, was murdered in front of the entrance to the building where she lived in Riga. The same day the specialised public prosecutor's office for organised crime and other offences (Organizētās noziedzības un citu nozaru specializētā prokuratūra) opened a preliminary investigation into the murder. 9. On 27 March 2000 the police arrested two men, V.S. and V.B., on the ground that they were suspects (aizdomās turētie) in the murder and took them into police custody. Shortly afterwards, they were charged and placed in detention on remand. On 18 April 2000 the Belarusian police, acting on a request from the Latvian authorities, arrested two other men, I.F. and I.Č., who had fled to Belarus in the meantime. On 28 April 2000 the men were extradited to Latvia. They too were charged with the murder of I.S. and were brought before the relevant judge, who remanded them in custody. 10. During the preliminary investigation, the four co-defendants gave statements to the public prosecutor to the effect that the applicant, who at the time had been the manager of a private company, had ordered and funded I.S.'s murder for reasons of personal revenge. According to I.F., the applicant had first given him 10,000 United States dollars (USD) as payment for carrying out the murder and later comparable sums to enable him to flee the country. On 20 April 2000 I.F.'s girlfriend, who was questioned as a witness, said that she had overheard a conversation between her boyfriend and I.Č. in which both men had referred to V.B. as having perpetrated the murder. 11. Accordingly, on 1 June 2000, the applicant was arrested on suspicion of being the principal organiser and instigator of the murder. On being taken into police custody and questioned, the applicant admitted having known the victim personally; however, she denied any financial links with her. The same day the police conducted two searches, one at the applicant's home and the other at her office. They seized a large number of documents and files, which were placed in forty cardboard boxes and taken away. 12. On the following day, 2 June 2000, the public prosecutor's office placed the applicant under investigation for murder. At the same time, V.S., V.B., I.F. and I.Č. were charged with committing the murder. 13. Also on 2 June 2000, the public prosecutor's office applied to the Riga City Kurzeme District Court seeking to have the applicant and the four suspected perpetrators of the crime remanded in custody for an initial period of two months. In court, the prosecution referred to the statements by the four men, which it considered to be credible, and stressed the need to detain the applicant “so that it [could] conduct a thorough preliminary investigation and establish the facts of the case in an objective manner”. According to the prosecution, “if A. Svipsta remain[ed] at liberty, there [was] a danger that she [would] hinder the determination of the truth [and] evade investigation and trial”. In an order issued on 2 June 2000 following inter partes proceedings attended by the applicant and her lawyer, the District Court granted the public prosecutor's request. The order stated that the applicant's detention was necessary in order to counter the risk of collusion and prevent her from obstructing the investigation. Further reasons given were the seriousness of the offence, the personality of the defendant and “other circumstances”. The applicant did not appeal against the detention order. 14. After being questioned on 6, 7 and 9 June 2000, the applicant eventually admitted that she had had financial links with I.S. She stated in particular that, in December 1998, when she had begun receiving income as an administrator of public undertakings which were being liquidated, I.S. had started to extort money from her. She also said, in contradiction of her earlier statements, that she knew I.F. and had told him about a row she had had with the murder victim on the subject of their financial links. 15. On 29 June 2000 the public prosecutor presented the applicant with full details of the charges against her. According to the facts as established by the prosecutor, the applicant and I.S. had concluded a secret agreement in 1996, under the terms of which I.S. had promised to appoint the applicant as administrator of the public undertakings whose liquidation she was overseeing. In return, the applicant had promised to pay her USD 500,000. By the time of I.S.'s murder, the applicant had already paid her almost half the sum agreed. 16. On 12 July 2000 the public prosecutor's office received a statement from a Latvian bank to the effect that the applicant and I.S. had gone to Switzerland together; during the trip, the applicant had paid all the expenses using her credit card. On 19 July 2000 the State telecommunications company sent the prosecutor's office records of mobile telephone conversations between the applicant and both I.S. and I.F. and between the four suspected perpetrators of the murder. 17. On 24 July 2000 the prosecutor in charge of the case requested the Kurzeme District Court to extend the applicant's detention on remand until 29 September 2000 on the ground that a number of investigative measures, specified by the prosecutor, still needed to be carried out. The measures involved preparing expert reports on the physical evidence gathered at the applicant's home and office and on her state of health, organising at least six confrontations with the defendants, questioning at least ten further witnesses and requesting relevant information from Interpol's National Central Bureau. The prosecutor also expressed the view that the applicant's guilt was “demonstrated by the statements of her co-defendants and witnesses, the reports [on the scene and the physical evidence], the expert opinions and the remaining evidence in the case file”. 18. In an order of 26 July 2000 issued in the presence of the applicant's lawyer, the relevant judge at the Kurzeme District Court granted the public prosecutor's request. The order read as follows: “Order extending detention on remand Riga, 26 July 2000 [L.B.], judge at the Riga City Kurzeme District Court, has examined the evidence in the criminal file ... concerning the aggravated murder of [I.S.], committed in the courtyard of 20 Valguma Street, Riga on 17 February 2000. The file was submitted by prosecutor [S.N.] of the specialised public prosecutor's office for organised crime and other offences, with a request for extension of the detention on remand of Astrīda Svipsta, who has been charged under Articles 20 § 2 and 117 ... of the Criminal Code. Having heard the observations of [S.N.] and the opinion of the lawyer/lawyers [A.D.], the Court having noted [the following]: The time allowed for preferring the indictment in this case has been extended until 29 September 2000. The crime of which A. Svipsta stands accused is particularly serious. Accordingly, if she remains at liberty, there is a danger that she will evade investigation and trial, commit further criminal offences and hinder the determination of the truth in the criminal case. [Consequently], without examining whether the defendant is guilty or innocent of the charges against her, I consider it appropriate to extend the period of detention in question. Having regard to the above and on the basis of Article 77 of the KPK [Latvijas Kriminālprocesa kodekss – Code of Criminal Procedure], I hereby decide: To extend the detention on remand of Astrīda Svipsta ... until 29 September 2000. This order is amenable to appeal before the Riga Regional Court, the appeal to be lodged with the Kurzeme District Court. Execution of the order shall not be stayed pending such appeal. Judge: [signature]” 19. The above order, which was one page long, had been typed on a computer and printed out. However, the fields for the date, the judge's name and the lawyer's name had been left blank, and the relevant information (given in italics above) had been added by hand. 20. The applicant appealed against the order before the Riga Regional Court. In her memorial she submitted that the first-instance judge had omitted to conduct a thorough examination of all the evidence in the file before issuing the order. The applicant further argued that the seriousness of the offence was not sufficient in itself to warrant extending her detention and that there was nothing in the case file to suggest that she intended to evade investigation or commit further offences. In that connection she stressed that she had left the country several times since the murder and had always returned to Latvia; this proved that she had no intention of absconding or obstructing the investigation. 21. By an order dated 15 August 2000, issued following a hearing attended by the applicant and her lawyer, the Riga Regional Court dismissed the appeal in the following terms: “... Having taken cognisance of the evidence in the case file and heard evidence from the parties, the Court concludes that there are plausible reasons to believe that, if A. Svipsta remains at liberty, there is a danger that she will evade investigation and trial and hinder the determination of the truth in this case. The Court further takes into consideration the seriousness of the charges against A. Svipsta; [it] considers that the order issued by the Kurzeme District Court ... on 26 July 2000 is in accordance with the law and is justified. ...” 22. In the meantime, on 6 August 2000, the applicant provided the public prosecutor's office with detailed information concerning the sums of money she had paid to I.S. since January 1998. On 17 August 2000 she sent further information to the Prosecutor General's Office, stating that I.S. had harassed her and extorted large sums of money from her; accordingly, she requested that a separate criminal investigation be opened into the alleged extortion and that she be acquitted. 23. On 18 September 2000 the public prosecutor's office requested the Kurzeme District Court to extend the applicant's detention on remand until 28 November 2000. In support of its request, it referred to the need to organise at least two further confrontations, question five further witnesses, study the new statements made by the applicant alleging that I.S had extorted funds from her, examine and analyse the evidence obtained from abroad as a result of international judicial cooperation, examine certain items of physical evidence and order a psychologist's expert report on the defendants I.F. and I.Č. 24. By an order dated 20 September 2000, the relevant judge granted the public prosecutor's request. The wording and layout (font, positioning of the text and line spacing) exactly matched those of the order of 26 July 2000. Only the date, the judge's name, his signature and the length of detention were different. The field for the lawyer's name, meanwhile, had been left blank. 25. The applicant appealed against this order before the Riga Regional Court which, in an order issued on 17 October 2000 following inter partes proceedings, dismissed the appeal on the grounds that the applicant “[was] accused of a particularly serious crime [and] ha[d] pleaded not guilty; that the crime in question [had been] committed by an organised group; that there [were] good grounds for suspecting that she might attempt to hinder the determination of the truth in the case”. 26. On 30 October 2000 the applicant lodged a complaint with the Prosecutor General's Office alleging that the public prosecutor “ha[d], without any justification, disregarded the comments and oral suggestions from the defence concerning the procedural aspects of the case”. According to the applicant, her lawyer had made oral requests for permission to consult the investigation file. The Prosecutor General's Office did not reply. 27. On 17 November 2000 the public prosecutor requested a further extension of the applicant's detention, this time until 30 January 2001. The reasons given were essentially the same as those cited in the request of 18 September 2000, the only differences were the number of witnesses to be questioned (twenty-seven), and a reference to the need to carry out biological tests, in particular DNA tests. 28. On 22 November 2000 the judge ordered the applicant's continued detention until 28 January 2001. This order was drawn up in the same manner as those of 26 July and 20 September, with the date and the lawyer's name having been added by hand. The judge's name had first been typed but had then been crossed out with a ballpoint pen, and the stamp of another judge had been added beside it; the order had been signed by the second judge. 29. The applicant then lodged a fresh appeal with the Riga Regional Court. In her memorial she submitted that the proceedings leading to adoption of the document in question had constituted a serious breach of the former Code of Criminal Procedure (Latvijas Kriminālprocesa kodekss – “the KPK”), which was in force at the time. In that connection the applicant observed that all the orders issued by the court of first instance, by three different judges, had been absolutely identical, even in the way they were worded. She inferred from this that the judges had merely signed the draft orders prepared in advance by the prosecutor. In the applicant's view, this theory was borne out by the fact that the most recent decision had been taken in camera in the judge's office; the judge had allowed the applicant's lawyer into the room only after he had spent approximately twenty minutes alone with the prosecutor. Consequently, the lawyer had not even been able to hear the prosecutor's observations, the defence having been present only when the judge had signed the draft decision, which had been prepared in advance. The applicant also reiterated her previous arguments against her continued detention. 30. By an order made on 5 December 2000 after inter partes proceedings, similar to the order of 17 October 2000, the Riga Regional Court dismissed the applicant's appeal and upheld the impugned order, observing that the murder in question had been committed by a group of persons and that the applicant had pleaded not guilty. In court, the applicant's lawyer was invited to speak first. However, despite repeated requests on his part, the judge did not permit him to reply to the prosecutor's observations. The Regional Court also did not reply to the applicant's arguments based on Article 5 of the Convention as interpreted by certain judgments of the European Court of Human Rights, declining to take cognisance of the copies of the relevant judgments or to add them to the case file. 31. On 10 December 2000 the applicant lodged a second complaint with the Prosecutor General's Office, alleging a series of procedural irregularities, in particular the refusal of the relevant prosecutor to grant defence counsel access to the file. In a letter dated 8 January 2001, the Prosecutor General's Office rejected this complaint on the ground that the requests supposedly made by the defence did not feature in any official record; the letter added that a copy of the entire file would be sent to the applicant once the investigation had been completed. 32. On 2 January 2001 the public prosecutor's office attempted to obtain information concerning the transfers of funds between the applicant and the murder victim. To that end it made enquiries of fifteen Latvian banks; none had accounts under the names in question. 33. On 16 January 2001 the public prosecutor's office applied for a further extension of the applicant's detention on the ground that she had made further statements in the meantime to the effect that I.F., one of the suspected perpetrators of the murder, had raped her and then subjected her to pressure. The prosecution further cited the need to carry out the same investigative measures referred to in its previous requests, the only difference being the number of witnesses to be questioned (six). 34. In an order of 25 January 2001, the Kurzeme District Court extended the applicant's detention until 30 March 2001. Again, the order was virtually identical to the previous orders issued by the same court, apart from a few details concerning the names of the judge, the prosecutors and the lawyer. This time the whole order had been typed and no additions or corrections had been made by hand. 35. On 31 January 2001 the applicant lodged an appeal with the Riga Regional Court, complaining in particular of the refusal of the public prosecutor's office and the court to allow her lawyer access to the documents in the investigation file on which her continued detention had been based. On 9 February 2001 the court dismissed her appeal in an order which was to all intents and purposes identical to those of 15 August and 17 October 2000. In addition to the seriousness of the crime, this order also cited as a reason the risk that the applicant might abscond or evade justice. 36. In the meantime, on 26 January 2001, V.S., one of the applicant's co-defendants, had been released and placed under police surveillance (nodošana policijas uzraudzībā). In addition, on 30 April 2001, the public prosecutor's office drew up a fresh charge against the applicant, charging her with commercial corruption within the meaning of Article 199 of the Criminal Code. 37. In two orders dated 29 March and 30 April 2001, the Kurzeme District Court extended the applicant's detention until 30 April and 18 May 2001 respectively. In both cases the court was ruling on requests from the public prosecutor's office based on the necessity of carrying out a number of additional investigative measures. As in its previous requests, the prosecutor's office cited the need to question further witnesses (four). However, it laid particular emphasis on the need to send the documents in the file to the applicant, her co-defendants and their lawyers, to prepare the final indictment and to prepare the case for trial. The layout of the two orders was again identical to all the previous orders given by the same court in the instant case. Although the order of 29 March 2001, having been typed entirely on a computer, differed in appearance from the other orders, it was identical to them in content. 38. On 30 March and 2 May 2001 the applicant lodged appeals with the Riga Regional Court, complaining in particular of the refusal by the public prosecutor's office and the court to allow her lawyer access to the documents in the investigation file on which her continued detention had been based. On 17 April and 11 May 2001 the Riga Regional Court dismissed the applicant's appeals and upheld the impugned orders. All the decisions of the Riga Regional Court were drafted in terms virtually identical to the orders of 15 August and 17 October 2000. Only the decision of 17 April 2001 specified that the applicant's continued detention was justified on account of her personality and that the first-instance court had had legitimate grounds to fear a risk of collusion, since the applicant had made the arrangements for her co-defendants to flee the country. 39. On 11 May 2001 the public prosecutor's office concluded the investigation and sent copies of the documents in the file to the applicant. On 14 May 2001 the applicant began studying the file, which comprised sixteen volumes. On 5 July and 1 August 2001 the applicant complained to the Prosecutor General's Office about the attitude of the prosecutor handling her case, who had sent her only a few documents at a time and at long intervals. In letters of 30 July and 7 August 2001, the Prosecutor General's Office rejected her complaints without giving any reasons. 40. Meanwhile, on 18 May 2001, the latest order for the applicant's detention expired. However, as she had begun studying the documents in the investigation file, her release was “suspended” in accordance with the fifth paragraph of Article 77 of the KPK (see paragraph 60 below). She therefore remained in detention. 41. On 18 July 2001 the applicant finished studying the documents in the file. On the same day she requested the public prosecutor's office to question a number of persons who had allegedly seen her in a Riga hotel the day after I.S.'s murder. The request was rejected for failure to give reasons; the prosecutor's office took the view that the defence had not made sufficiently clear how the evidence of the persons concerned could establish the applicant's innocence or contribute any new evidence to her file. 42. The applicant's co-defendants, V.S., I.F., V.B. and I.Č., finished studying the file on 2 August, 3 August, 2 October and 5 October 2001 respectively. On 5 October 2001 the prosecutor dealing with the case informed the applicant that all the parties had now taken cognisance of the file. 43. On 8 October 2001 the public prosecutor signed the final indictment (apsūdzības raksts) against the applicant and her four co-defendants. The file was subsequently sent to the trial court, in this case the Riga Regional Court. On 11 October 2001 the relevant judge of the Regional Court found that there was sufficient evidence in the file and decided to commit the applicant for trial (lēmums par apsūdzētās nodošanu tiesai). As to the preventive measure applied to the applicant, the judge decided to extend it, without, however, giving any reasons. 44. On 12 October 2001 the applicant wrote to the same judge requesting that she be released. She asked him to convene, if necessary, a preparatory hearing (rīcības sēde) to examine whether her detention was justified. In a letter of 19 October 2001, the judge rejected the request, reminding the applicant that she stood accused of a crime punishable by life imprisonment, and that the preventive measure reflected the seriousness of the offence and her personality. The judge further stated that there were “no grounds” for convening a preparatory hearing. Lastly, he observed that the applicant would have an opportunity to reiterate her request for release at the hearing on the merits of her case, and informed her that the hearing had been set down for 2003. 45. On 31 October 2001 the applicant requested the President of the Riga Regional Court to review the merits of her detention and to take steps to expedite the consideration of her case, arguing in particular that a prolonged term of detention was in breach of Article 5 §§ 1 and 3 of the Convention. In a letter of 9 November 2001, the President replied that the Regional Court did not have jurisdiction to review procedural decisions taken by the lower court in charge of a case. As to the timetable for consideration of the case, the President said that it was impossible to speed it up. He observed that “[c]riticism of, or requests made to, the court concerning its hearing of the case 'within a reasonable time' [were] of no relevance whatsoever, as the court work[ed] with the resources allocated to it by the State”. 46. Notwithstanding the date initially set for the first hearing, consideration of the merits of the case began on 26 June 2002. The applicant pleaded not guilty in court. On 14 August 2002 the prosecution addressed the court. On the following day, it was the turn of the defence. 47. In a judgment delivered on 13 September 2002, the Riga Regional Court found the applicant guilty of organising the murder. However, it considered that no intention to kill on the part of the applicant and two of her co-defendants had been established; accordingly, they were found guilty of manslaughter. V.B., meanwhile, was found guilty of murder and illegally possessing a knife. The court also found it established that, after V.B. and V.S. had been arrested, the applicant had paid the other two co-defendants substantial sums to enable them to flee the country. Finally, the court considered that the applicant's guilt on the charge of commercial corruption had been sufficiently established. Consequently, the Regional Court sentenced the applicant to twelve years' imprisonment. Her co-defendants also received long prison sentences: seventeen years in the case of V.B., twelve years in the case of I.F. and ten years in the case of I.Č. V.S. received a suspended sentence of four years' imprisonment. 48. The applicant and her co-defendants lodged an appeal against this judgment with the Criminal Division of the Supreme Court. In a judgment of 11 September 2003, the Criminal Division upheld the applicant's conviction for manslaughter. However, it acquitted her on the charge of commercial corruption and reduced her overall sentence to ten years' imprisonment. 49. The applicant then lodged an appeal on points of law with the Senate of the Supreme Court. In a final judgment of 6 February 2004, the Senate dismissed the applicant's appeal and those of her co-defendants. ... 52. The former Code of Criminal Procedure (KPK), a legacy of the Soviet era which was amended on numerous occasions, was applicable at the material time. It remained in force until 1 October 2005, when it was replaced by the new Criminal Procedure Act (Kriminālprocesa likums). 53. Under the terms of Article 68 of the KPK, a preventive measure could be applied where plausible reasons existed to suspect that the accused would seek to evade investigation or hinder the determination of the truth in the case. Eight types of preventive measure existed: an undertaking not to change one's residence, personal guarantees, financial guarantees, police surveillance, house arrest, detention in prison and two measures specifically applicable to minors and members of the armed forces. 54. Under Article 72 of the KPK, a preventive measure had to be chosen and implemented on the basis of the following criteria: the seriousness of the alleged offence; the personality of the accused; the likelihood that he or she would seek to evade investigation and hinder the determination of the truth in the case; and the accused's occupation, age, domestic circumstances and health and other relevant criteria. Any preventive measure had to be applied on the basis of an order giving sufficient reasons. 55. Under the terms of Article 76 of the KPK, a period of detention on remand could be ordered only by a judge and only in respect of a person accused of an offence punishable by imprisonment. The detention order was to be issued following adversarial examination of the evidence submitted by the prosecution service or the police; the presence of the accused was in principle compulsory. 56. At the material time, the principles governing the length of detention on remand and the system of appeal were fundamentally different for the preliminary investigation stage (pirmstiesas izmeklēšana) and the judicial stage (iztiesāšana) of the proceedings. 57. At the preliminary investigation stage (comprising the police investigation and preparation of the case file), the initial period of detention on remand could not exceed two months (Article 77 of the KPK). However, where it was not possible to complete the preliminary investigation and commit the accused for trial within that time, and where “there [were] no grounds for amending the preventive measure”, the prosecutor could request the judge to extend the term of detention. In such cases, evidence was heard from the accused and his or her lawyer “if necessary”. 58. The Law of 20 June 2001 (in force since 12 July 2001) amended the second paragraph of Article 77 by setting a two-month limit on each successive extension of the term of detention. The detained person could appeal against an order extending his or her detention by means of an appeal before a higher court, which had to consider the appeal within seven days of receiving it. After hearing evidence from the detained person and the public prosecutor's office, the higher court took a decision by means of a final order (Article 222-1 of the KPK). 59. At this stage in the proceedings, the total length of detention on remand could in no circumstances exceed eighteen months. If, after eighteen months had elapsed, the case had still not been sent for trial, the accused person had to be released. 60. The fifth paragraph of Article 77 of the KPK read as follows: “On completion of the investigation, and before the maximum statutory period has elapsed, the documents in the file must be sent immediately to the accused and his or her counsel so that they may familiarise themselves with it. The time spent by all the accused in familiarising themselves with the documents in the file shall not be taken into account in calculating the period of detention on remand ...” In practice, the prosecuting authorities and the courts interpreted the second sentence of this provision as authorising the continued detention of the accused person throughout the time during which he or she and any co-accused were studying the file, even if the validity of the last detention order given by the judge had expired. 61. After drawing up and signing the final indictment, the public prosecutor's office had to forward the file to the trial court (Articles 209-11 of the KPK). Within fourteen days of receiving the file, the trial court, without ruling on the accused's guilt, had to decide whether the file provided a sufficient basis for committing the accused for trial, or whether the case should be referred back for further information or no further action should be taken. As a rule, the order committing the accused for trial (lēmums par apsūdzētā nodošanu tiesai) was given by a single judge (Articles 223 and 226), who also had to rule on whether the preventive measure in place should be extended, amended or lifted. Where the judge considered that the preventive measure was justified, he confirmed it by means of a final decision. If, on the other hand, he had doubts as to the lawfulness of the measure or its justification, he convened a preparatory hearing (rīcības sēde) to examine the issue. The order given following the preparatory hearing was amenable to appeal before a higher court. 62. Under the terms of Article 241 of the KPK, “consideration of the case at a hearing [had to] begin not more than twenty days or, in exceptional cases, one month from the date on which the court receive[d] the file”. However, this provision, which was a legacy from the Soviet era and had never been amended, was very rarely complied with by the Latvian courts. 63. In principle, once the order for the accused person's continued detention had been given, the decision remained in force throughout the proceedings at first instance. In other words, before 1 November 2002, there was no limit on the length of detention on remand at this stage in the proceedings. The Law of 20 June 2002, which came into force on 1 November 2002 and amended Article 77 of the KPK, set a limit of one year and six months on the period of detention, which ran from the time the trial court received the investigation file until delivery of the judgment at first instance. Once this time-limit had been exceeded, the detained person had to be released immediately. Originally, however, if the case concerned “particularly serious crimes involving violence or the threat of violence”, the Senate of the Supreme Court could extend the term of detention beyond the maximum period. Following a Constitutional Court judgment of 27 June 2003 which found part of this provision to be in breach of the Constitution, Parliament amended it by means of a Law of 25 September 2003 which guaranteed the person concerned the right to submit his or her observations on an exceptional extension of this kind, and set out the individual's procedural rights. 64. In practice, although the legislation contained no express provision enabling accused persons to appeal against detention at this stage, the courts considered all applications for release made by detainees. The response generally took the form of a simple letter, against which no appeal was possible. However, in more complex cases the court gave its decision in the form of an order (see Lavents v. Latvia, no. 58442/00, § 45, 28 November 2002). 65. A Law amending Articles 237, 248 and 465 of the KPK, which came into force on 1 April 1999, introduced a right of appeal against orders imposing preventive measures at the judicial stage of the proceedings. However, the Law related only to the period after adversarial examination of the case had begun. Moreover, the right to appeal was subject to the condition that examination of the case had been adjourned for a minimum period of one month. The appeal had to be lodged within seven days of the order being served and the court was required to consider it within seven days of receiving it. 66. Finally, the third paragraph in fine of Article 226 stipulated that the accused could reiterate his or her request for release at the hearing on the merits. 67. The third paragraph of Article 97 of the KPK read as follows: “Defence counsel shall have the right to take cognisance of all the documents in the file and to copy out extracts from it by hand or using technical means: (1) in cases where the accused are persons covered by Article 98, points 1 and 2, of the present Code [minors or the physically or mentally disabled] – from the time when the person concerned is placed under investigation; (2) in all other cases – from the time the person concerned is placed under investigation, with the consent of the investigating authority or the prosecutor; (3) in all cases – in the circumstances referred to in Article 204 of the Code [on completion of the preliminary investigation and before the file is forwarded to the trial court].” 68. The seventh paragraph of the same Article prohibited the lawyer from disclosing information obtained during the proceedings. Article 130 of the KPK reinforced this duty of confidence, stating that information obtained during the preliminary investigation could be disclosed only with the permission of the head of the investigating authority or the prosecutor and only where the aforementioned authorities considered it practicable. If necessary, the prosecutor was required to remind the witnesses, victims, lawyers and other participants in the proceedings of the fact that failure to comply with this requirement rendered them criminally liable. | 1 |
train | 001-86654 | ENG | POL | ADMISSIBILITY | 2,008 | WALKUSKA v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza | The applicant owns a house situated on plot no. 191/2 in Piątnica, a suburb of Łomża, where there is dense development of family houses built on individual plots. Before 1994 the applicant’s neighbour, who owned a plot directly adjacent to the applicant’s house, had a small pigsty on her plot. Beginning in 1994 the neighbour started to develop substantially the running of a pig farm on her property. To that end, she applied for permission to renovate an old building located a few metres from the applicant’s house. On 21 May 2001 the Mayor of Piątnica (Wójt Piątnicy) granted the applicant’s neighbour initial approval for a development project to be carried out on her land (decyzja o warunkach zabudowy). The project provided for the overhaul and renovation of the building situated on the plot for the purposes of animal husbandry for up to 14 husbandry stalls. The Mayor fixed the conditions to be met by the project: inter alia the renovated building was not to exceed the borders of the owner’s land, it was to comply with the technical requirements set out in the applicable provisions of the relevant construction laws, in particular these applicable to buildings designated for animal husbandry purposes. The Mayor observed that the operation of the farm of the size concerned did not make the farm fall with the ambit of those projects which, under the Minister of Agriculture, could cause environmental harm and nuisance to the neighbouring properties and had therefore comply with specially stringent requirements. The applicant and eight other neighbours appealed, submitting that the operation of the pigsty would cause serious nuisance to the adjacent properties. The second-instance authority upheld the challenged decision, essentially reiterating the arguments relied on by the first-instance authority. Ultimately, on 18 December 2001 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision, finding that the initial construction permit was in compliance with the provisions of the local land development plan. The applicant’s neighbour obtained on 14 August 2001 a final construction permit (zezwolenie na budowę) from the Mayor. The permit covered the renovation of a building of 88 square metres and 360 cube metres, on the basis of a finding that the project submitted by the owner and providing for the operation of an animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. In particular, the project included such details which were specially designated to limit any nuisance which the operation of the farm could cause to the neighbours (installation of ventilating channels, new windows, concrete floor and foundations). The size of the building was not to be altered. Hence, the objections of the neighbours could not be allowed. The applicant and eight other neighbours filed an appeal against this decision, again arguing that the operation of the farm would be to the detriment of the quality of the environment and would deteriorate the conditions of their everyday life. On 22 December 2001 the Podlasie Governor dismissed their appeal. He observed that, following the applicant’s appeal, an additional inquiry had been instituted, including on-site inspection. Following this, certain amendments had been brought to the project in order to accommodate certain objections raised by the neighbours. It was reiterated that the project submitted by the owner and providing for the operation of the animal husbandry farm was compatible with the local land development plan and satisfied the applicable technical requirements. If implemented, the project would substantially ameliorate the technical condition of the building, in particular in making the animal husbandry cause less nuisance to the neighbouring properties. It was further stated that it had been prepared by persons having requisite professional qualifications. It was further stressed that, following the appeals brought by the neighbours, the examination of the case had been particularly meticulous and that their objections had been duly taken into consideration. It has not been shown that the planned reconstruction would deteriorate the conditions in which the owners of the neighbouring properties would exercise their ownership. Consequently, there were no grounds on which to refuse the permit under the relevant provisions of the Construction Law. The applicant and other neighbours appealed to the Supreme Administrative Court, submitting that the project, if implemented, would breach their right to the peaceful enjoyment of their possessions. On 15 October 2003 the Supreme Administrative Court dismissed the applicant’s and other neighbours’ appeal against the Governor’s decision. The court found that the decision under appeal was lawful in terms of substantive law and that the proceedings in which it had been given respected the applicable norms of administrative procedure. In particular, the administrative bodies had taken into account the technical requirements set out in the relevant ordinance. Moreover, the project was compatible with the local land development plan. On the whole, the reconstruction did not overstep the limits of the owner’s discretion in the exercise of her ownership. Under the provisions of land planning legislation as applicable at the relevant time, land development plans were adopted by organs of local government. A decision to prepare a new plan was taken by a local council. Subsequently, the local mayor prepared, with the assistance of the local administration, a draft land development plan. The public was informed of the decision to prepare a new plan and a draft plan was to be made available to the local public for a period not shorter than 21 days. All members of the public were entitled to submit objections and comments on the draft plan. A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered. | 0 |
train | 001-102784 | ENG | POL | ADMISSIBILITY | 2,010 | STEMPNIEWICZ v. POLAND | 4 | Inadmissible | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | The applicant, Mr Lucjan Stempniewicz, is a Polish national who was born in 1938 and is currently serving his sentence in Kłodzko Prison. He was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has been detained in Kłodzko Prison continuously since 24 March 2004. The applicant submitted that on an unspecified date he had been detained together with four other prisoners in a cell which measured 25 m². The cell in question was not ventilated and the furniture inside was shabby. The cell was overcrowded to the point that the applicant had to lie in his bed almost all day. He had only one hour of outdoor exercise per day and a shower once a week. The applicant also maintained that the quality of food served in prison was very bad, the bed linen was washed only infrequently and water cuts occurred frequently. In his recent letters to the Court, the applicant made general statements that living conditions and medical care in Kłodzko Prison were bad. He claimed that his cell was overcrowded and that he had no choice but to lie in bed all day long. The Government furnished the Court with a detailed record of the applicant’s detention in Kłodzko Prison. They submitted that the space per person in the applicant’s cells ranged from 2.2 to 2.9 m² over a total period of thirteen months, whereas for the remaining time, the applicant had more than 3 m² of space. More recently, the Government submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. Between 2004 and 2007 the applicant lodged several complaints with the penitentiary authorities regarding various aspects of his detention. He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention in Kłodzko Prison. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. | 0 |
train | 001-59522 | ENG | POL | CHAMBER | 2,001 | CASE OF ZWIERZYNSKI v. POLAND | 1 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Just satisfaction partially reserved;Costs and expenses partial award | Wilhelmina Thomassen | 7. In 1937 the applicant’s father purchased from S. a property located in Łomża. 8. In 1950 the Białystok Regional Office (Urząd Wojewódzki) asked the Land Registry Division of Łomża Municipal Court (Sąd Grodzki) to insert a notice in the register stating that an expropriation procedure had begun in respect of the property, the registered owner of which was Mr B. Zwierzyński, the applicant’s father. On 26 June 1950 the Municipal Court decided to file the application with the Land Registry Division and notify the interested parties. On 24 July 1952 the Białystok Regional Executive of the National Council (Prezydium Wojewódzkiej Rady Narodowej) expropriated B. Zwierzyński’s property in the public interest in accordance with the decree of 7 April 1948. Compensation was awarded to the former owner by a decision of 10 July 1961, upheld on 10 February 1962. The payment in compensation was credited to the State deposit account but neither the former owner nor his heirs claimed it. 9. On 2 December 1980 the Minister for Economic Affairs (Minister Gospodarki) dismissed an application by the applicant’s father for the expropriation decision to be set aside. 10. On 10 August 1990, after B. Zwierzyński’s death, the applicant’s mother lodged an application to set aside the decision of 2 December 1980. On 18 July 1991 the Minister for Economic Affairs declared the entirety of the proceedings since the 1952 expropriation decision null and void on account of a manifest mistake in law. In 1945 the owner had entered into a leasing contract with the State authorities and so it could not legitimately be stated that the land and the building had been occupied unilaterally by the administrative authorities. Consequently, the situation did not fall within the scope of the 1948 expropriation decree. 11. The Łomża regional police authority (Komenda Wojewódzka Policji), which currently occupies the premises, appealed against the Minister’s decision to the Supreme Administrative Court (Naczelny Sąd Administracyjny) in Warsaw. 12. On 19 December 1992 that court set aside the decision and remitted the case to the Minister for reconsideration. 13. In a decision of 24 July 1992, upheld by the Supreme Administrative Court on 23 November 1993, the Minister reiterated his finding that the proceedings since 1952 were null and void. 14. On 21 June 1994 the Olsztyn District Court decided that the applicant and his sister should each inherit half of their deceased parents’ estate. 15. The tax authorities asked the applicant to pay inheritance tax. The applicant asked for the deadline for payment to be extended because negotiations with a view to the sale or rent of the building were under way with the regional police authority, which was occupying the premises. On 4 November 1994, having received confirmation from the regional police authority that negotiations were indeed taking place, the Chairman of Olsztyn Municipal Council extended the deadline. On 20 June 1995 the Olsztyn Tax Office (Urząd Skarbowy) extended the deadline to a date which has not been specified. 16. On 12 September 1994 the Land Registry Division of the District Court (Sąd Rejonowy Wydział Ksiąg Wieczystych) entered the property in the Land Register, identifying the applicant and his sister as the owners. However, they have never obtained its return. 17. The negotiations on the sale of the property foundered and, moreover, the occupier never paid the rent fixed by the owners. Since 1995 the applicant has been paying property tax. 18. On 28 September 1992 the Treasury (Skarb Państwa), assisted by the Łomża District Office Director (Kierownik Urzędu Rejonowego), acting on behalf of the regional police authority (the current occupier), brought an action before the civil courts asserting acquisition of title to the property through adverse possession (stwierdzenie nabycia własności nieruchomosci przez zasiedzenie). On 25 November 1992 the Łomża District Court stayed the proceedings at the request of the Łomża District Office Director, taking the view that the outcome of the administrative proceedings pending before the Supreme Administrative Court on the application to set aside the 1952 expropriation decision would have a decisive impact on the action for acquisition of title to the property through adverse possession. On 18 January 1995 it lifted the stay at the Director’s request. 19. On 6 October 1995 the District Court granted the Treasury’s application, taking the view that the public authority had occupied the premises in good faith for the period of twenty years required under Article 172 of the Civil Code. The decision was upheld on 1 February 1996 by the Łomża Regional Court (Sąd Wojewódzki). 20. On 3 October 1996 the Minister of Justice lodged an appeal on points of law with the Supreme Court (Sąd Najwyższy) on the applicant’s behalf. He submitted that in the light of the Supreme Court’s case-law, there could be no possession in good faith where an expropriation decision had been set aside. Consequently, in view of the decision of 1993 setting aside the expropriation decision of 1952, the applicant had retrospectively recovered title to the property for the entire period during which the premises had been occupied by the State. 21. On 29 October 1996 the Supreme Court set aside the lower courts’ decisions and remitted the case to the District Court for reconsideration. It pointed out that it had had to rule on the same question on a number of occasions. It had consistently held that if the Treasury’s right to dispose of a property “like a property owner” was based on an administrative decision which was subsequently set aside with retrospective effect on account of a manifest mistake of law, the period of occupation could not be taken into account when calculating the period of possession giving title to property through adverse possession for the purposes of Article 172 of the Civil Code. 22. The case was remitted to the Łomża District Court. On 11 February 1997 the District Office Director, who is a representative of the State, applied for the proceedings to be stayed on the ground that the District Office had asked the Minister of Justice to lodge an appeal on points of law against the decision of 21 June 1994 in which the Olsztyn District Court had ruled that the applicant and his sister should each inherit half of their parents’ estate. 23. On 24 February 1997 the Land Registry Division of the Łomża District Court informed the applicant that the Treasury had been listed in the register as the owner of the property. It specified, however, that it had added of its own motion a notice referring to the proceedings brought for the acquisition of title to the property through adverse possession in order to protect the applicant’s and his sister’s claims. 24. On 2 April 1997 the Minister of Justice lodged the requested appeal with the Supreme Court and on 24 June 1997 the Łomża District Court stayed the proceedings. 25. On 9 September 1997 the Supreme Court granted the appeal on points of law, set aside the decision of 21 June 1994 and remitted the case to the District Court. It pointed out that the first issue to be decided was whether the heirs’ parents were indeed the owners of the property in question. When the property had been purchased by the applicant’s parents, the law had required that a notarial deed be drawn up for the purchase to be valid. In the absence of such a deed, and where no one had been in possession of the property long enough to acquire title to it by adverse possession, the assets of the estate were deemed to comprise only the possession (posiadanie) of the property, not the title to it. The Supreme Court also noted that the appeal had been lodged after the expiry of the time-limit (six months after the disputed decision) set by Article 421 § 2 of the Code of Civil Procedure, but considered that questions relating to property law required special protection and that it would have been detrimental to the Republic of Poland’s interests to dismiss the application for being out of time because to do so would have infringed a right which was actually vested in another person. 26. On 8 July 1998 the Olsztyn District Court, to which the case had been remitted, ruled that the applicant’s parents’ estate should be shared equally between the applicant and his sister. The assets of the estate comprised the disputed property. The decision was identical in substance to the one of 21 June 1994. 27. On 23 September 1998 the Łomża District Court lifted the stay ordered on 24 June 1997 on the proceedings for acquisition of title to the property through adverse possession. 28. On 17 September 1998 the applicant lodged an application with the Land Registry Division of the Łomża District Court to have the entry in the register rectified so that he was listed as the owner. The ground for his application was that on 8 July 1998 the Olsztyn District Court had named him and his sister as the inheritors of their parents’ property. On 6 November 1998 the District Court asked the applicant to produce a decision proving that the entry in the register was not consistent with the legal status of the property, failing which his application would be dismissed. On 14 January 1999 the applicant complained about that requirement to the Łomża Regional Court, but without success. On 3 February 1999 the Land Registry Division of the District Court rejected his application to have the entry in the register rectified. 29. In December 1998 the applicant was summoned to the Olsztyn District Court, which had decided the matter of the division of the estate. He was told that the heirs of S., who had sold the property in issue to the applicant’s father in 1937, had brought an action to have the proceedings concerning the division of the estate reopened. They said that they had been informed of the outcome of the proceedings by the regional police authority’s legal adviser and argued that they had rights over the property. On 14 December 1998 the District Court to which the Treasury had applied for acquisition of title to the property through adverse possession suspended its consideration of that case pending the outcome of the action to reopen the proceedings concerning the division of the estate. 30. After hearings held on 28 January, 9 March, 26 April and 13 May 1999, the Olsztyn District Court rejected the application by S.’s heirs. Its decision was upheld on appeal by the Olsztyn Regional Court on 27 October 1999. On 17 December 1999 S.’s heirs lodged an appeal on points of law with the Supreme Court. 31. On 17 October 2000 the Supreme Court allowed the appeal and remitted the case to the Olsztyn Regional Court for reconsideration. It observed that the Regional Court should have satisfied itself not only that the appellant had locus standi, which it had done, but also that the decision taken by the District Court on 8 July 1998 at the end of the proceedings which S. had applied to have reopened had related to his rights. 32. The case is still pending before the Olsztyn Regional Court. 33. Article 172 of the Civil Code provides: “§ 1. Everyone in possession of property although he is not the owner shall acquire title thereto if he has been in continuous and independent possession thereof for twenty years, save where he came into such possession in bad faith. § 2. After thirty years, persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith.” 34. According to the Supreme Court’s established case-law, if the Treasury’s right to dispose of a property “like a property owner” is based on an administrative decision which is subsequently set aside with retrospective effect on account of a manifest mistake of law, the period of occupation may not be taken into account when calculating the period of possession giving title to property through adverse possession for the purposes of Article 172 of the Civil Code (see, in particular, OSP 1993/7-8/153 and OSNCP 1994/3/49). 35. Article 156 of the Code of Administrative Procedure vests State administrative bodies with authority to set aside administrative decisions under certain conditions. Article 160 provides that anyone who suffers damage as a result of an administrative decision that may be set aside under Article 156 may bring an action in damages for actual harm done, directed, in principle, against the administrative body which took the decision. The procedure for compensation claims is set out in the Civil Code. | 1 |
train | 001-90225 | ENG | UKR | CHAMBER | 2,008 | CASE OF LOSHENKO v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant, Mr Mikhail Pavlovich Loshenko, was born in 1930 and lives in Kyiv. 5. In 1995 the applicant concluded a contract with A., a private bank (“the Bank”), by which it would invest the applicant’s funds in the construction of an apartment by JSC “K.” (“the Construction Company”), to be completed by 30 July 1996. Pursuant to the provisions of this contract, in the event of a delay in completion of the construction works, the applicant could claim late-payment penalties from the Bank. 6. As the Construction Company officially completed the works only on 29 August 1996, on 2 October 1996 the applicant instituted civil proceedings in the Pechersky District Court of Kyiv claiming payment from the Bank for delay in completion of the works. 7. On 2 December 1996 Judge V. held a hearing. Subsequently Judge Z., the President of the Pechersky Court at the material time, withheld the case from Judge V. for unspecified reasons. 8. On 27 October 1997 the Bank lodged a counterclaim, alleging that the promise to pay a penalty for the Construction Company’s failure to fulfil the work on time had been given by it ultra vires, and had to be annulled as incompatible with the applicable banking law. 9. On 19 November 1997 Judge Z. pronounced a judgment dismissing the applicant’s claim and allowing the Bank’s counterclaim. However, he did not sign this judgment. 10. On 27 November 1997 the applicant lodged a cassation appeal with the Kyiv City Court. 11. On 3 December 1997, pursuant to the requirements of the procedural law in place at the material time, the appeal was forwarded to Judge Z. to decide on its compliance with procedural formalities. 12. In June 2001 a new appeal procedure was introduced, and the Kyiv City Court was transformed into the Kyiv City Court of Appeal. 13. In July 2001 Judge Z. was dismissed on disciplinary grounds. 14. On 10 December 2001 the Kyiv City Department of Justice informed the applicant that it had investigated his complaint about the lengthy consideration of his cassation appeal and discovered that former Judge Z. had failed to register it and had withheld the case file from the court’s registry. The Department assured the applicant that the case would be promptly transferred to the Kyiv City Court of Appeal for consideration. 15. On 7 May 2002 the City Court quashed the judgment of 19 November 1997 as unsigned by the presiding judge and remitted the case for a fresh consideration. 16. On 10 October 2002 the Pechersky Court allowed the applicant’s claim and dismissed the Bank’s counterclaim. On 24 October 2002 the Bank appealed. 17. On 4 December 2002 the Kyiv Court of Appeal reversed the judgment, having annulled the clause concerning the Bank’s responsibility for the Construction Company’s delay as incompatible with the applicable law. 18. On 23 December 2002 the applicant appealed in cassation before the Supreme Court. 19. On 16 October 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 20. On 24 March 2004 Judge Z. was convicted of failure to perform official duties and sentenced to two years’ imprisonment, suspended. His criminal case included several episodes, none of which concerned the applicant’s civil case. 21. Subsequently the applicant unsuccessfully sought to reopen the proceedings, alleging that a similar complaint by another investor had been upheld in the investor’s favour. | 1 |
train | 001-58496 | ENG | GBR | GRANDCHAMBER | 2,000 | CASE OF ROWE AND DAVIS v. THE UNITED KINGDOM | 1 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Elisabeth Palm;John Laws;Nicolas Bratza;Paul Mahoney | 4. During the night of 15 to 16 December 1988, a series of offences occurred in Surrey, England. The first, which may have occurred sometime after 1.30 a.m., involved an attack on two men in a parked car in a field near a public house in Fickleshall. Just after the conclusion of sexual activities between the two men (Mr Ely and Mr Hurburgh), two masked men appeared. One carried a knife, the other a gun. Ely was pulled out of the car and 10 pounds sterling (GBP) was taken from him. On orders, he lay face down on the ground while the man with the knife kept guard over him. Ely became aware of a third masked man. The robbers wanted to take the car which belonged to Hurburgh, who objected and was attacked. Ely was made to crawl over to where Hurburgh was lying tied up. He was also tied up and gagged. Petrol was spread around both of them. Ely saw a lit cigarette and passed out. When he recovered consciousness, Hurburgh's Austin Princess car had gone and Hurburgh was dead. The attackers had abandoned a stolen Spitfire car in which they had arrived on the scene in the entrance to a field, about 500 metres away. 5. This offence was followed, at about 3.40 a.m., by three masked robbers arriving at the Napier household in Oxted. They entered by a back window. Two of them went into Timothy Napier's room; one had a knife, the other a gun. Meanwhile, Richard Napier (the father) was awakened by the third robber armed with a revolver. He was taken into Timothy's room. Both were told they would be shot if they did not cooperate. They attacked the robbers and forced them downstairs. In the struggle, Timothy Napier's arm was cut and an artery was severed. Richard Napier was forced back upstairs to the bedroom where his wife was waiting. A knife was pointed at her and she was told to remove her rings and jewellery or her fingers would be cut off. The other two robbers ransacked the room before all three fled taking Timothy's Toyota car. Timothy Napier was rushed to hospital. He was found to have a stab wound to his back that had punctured the pleural cavity and required the insertion of a chest drain. Hurburgh's car was found abandoned nearby. 6. At 5 a.m., at the home of Mrs Spicer in Fetcham, she and her partner (Mr Almond) awoke to find three masked men in their bedroom. They were asked for money, jewellery and car keys. They told the intruders where to find them. Spicer and Almond were bound and gagged and the house was ransacked. It was nearly an hour before the robbers left, taking a large amount of property and the couple's two cars, a Renault and a Cavalier. Timothy Napier's Toyota was found abandoned nearby. 7. There was considerable interest in the above events, including publication in the national media between 17 and 19 December 1988 of the offer of a reward of GBP 25,000 for information leading to the conviction of the offenders. On Sunday 18 December the police incident room received information that the persons responsible for the murder and other offences were living at 25 Lawrie Park Road, Sydenham, South London (“No. 25”). In addition, the caller said that a considerable quantity of property which had been stolen during the course of the robberies had been taken by other persons resident at No. 25 and stored at the flat of a female associate at 71 Queen Adelaide Court. 8. No. 25 was owned by Mr Smith, who occupied the ground floor and basement. The remainder of the house, consisting of the two upper floors, was divided into flats occupied by the applicants, Raphael Rowe and Michael Davis, amongst others. Randolph Johnson visited the house from time to time, most recently to help repair the wiring and various electrical appliances, and he was said to have been there on the night of 15 December 1988. Rowe, Davis and Johnson were black. 9. Three white men also lived at No. 25: Mark Jobbins, Norman Duncan and Shane Griffin (“the Jobbins Group”). They were then aged 29, 21 and 19 years respectively. Duncan and Griffin sniffed glue on a regular basis. All three had criminal records. 10. As a result of the information received by the police, search warrants were obtained for each of the two addresses and were executed simultaneously at 7.50 a.m. on 19 December 1988. In a search of No. 25 carried out sometime between 2.15 p.m. on 19 December and 5 a.m. on 20 December, the police found a brooch from the Spicer/Almond robbery in Rowe's wastepaper basket. Other Spicer/Almond items were found in a storeroom and, also in the storeroom, were some porcelain figurines (not connected with these offences) which bore Davis's fingerprints. Blood stains on a jacket found in Rowe's bedroom were analysed and found to be of a blood group shared by 8% of the population, including the murder victim, Hurburgh. Rowe, Davis, Jobbins and Griffin were arrested on suspicion of aggravated burglary. Duncan was arrested on 21 December. 11. Kate Williamson, a 16-year-old school student and girlfriend of Rowe, produced to the police a number of items from the Spicer/Almond robbery, including two eternity rings, a yellow metal watch strap and a lady's watch. She told them that she visited Rowe quite regularly and was there during the night of 15 December 1988. She said that she did not know Jobbins, Duncan or Griffin except by sight. 12. Joanne Cassar informed the police that she had stayed with another resident of No. 25, Jason Cooper, for a period in 1988. She knew Davis, Rowe, Jobbins, Duncan and Griffin. She had been at No. 25 during the night of 15 December 1988 and had stayed in Cooper's room. 13. The other search warrant was executed at 71 Queen Adelaide Court. It resulted in the arrest of the tenant, Bernadette Roberts, who was the girlfriend of Jobbins, and the recovery of a large amount of stolen property. 14. Johnson was arrested on 6 January 1989 after an extensive car chase by several police officers. At the time, he was carrying a revolver. In his statement he agreed that he had been to No. 25 on several occasions and, on the night in question, was probably there until late. He denied involvement in the offences and said in police interviews that he might have spent the night with a girlfriend. 15. The trial of the two applicants and Johnson took place at the Central Criminal Court in February 1990. 16. The prosecution case was that the three men had been involved in each incident. It was argued that there was evidence to link the offences: the Austin Princess stolen from Hurburgh was found at the scene of the Napier robbery; the Toyota stolen from the Napiers was found abandoned close to the Spicer/Almond household; and the vehicles stolen from the latter couple were connected to the occupants of No. 25. In addition, the witnesses to each of the robberies had described a team of three robbers, at least one of whom was carrying a gun and a second one a knife, dressed in black and wearing balaclavas. 17. The prosecution relied substantially upon the evidence of the Jobbins Group. The latter admitted having jointly stolen the Spitfire which had been found abandoned near the scene of the first robbery and murder, and having driven the Renault and Cavalier stolen at the last robbery to a field in Sidcup where they had set fire to them. They gave evidence, inter alia, that on the night of 15 to 16 December, Rowe had asked if he could use the Spitfire and that he, Davis and another black man had requested help in other ways, such as the loan of a balaclava and assistance in starting the Spitfire. The Jobbins Group also gave evidence relating to the events of the following morning (16 December), when Rowe had allegedly made a number of incriminating comments about his own involvement in the crimes and had requested them to dispose of the stolen Spicer/Almond cars and to store the stolen property elsewhere. 18. In addition, the prosecution relied on the evidence of Kate Williamson that Rowe had left her during the night of 15 to 16 December and had returned the following morning at 6.30 a.m.; that he gave her rings from the Napier robbery in order to have them valued; that he scratched his bedroom window with one of the diamond rings and that he told her about the stolen cars. The prosecution also relied on the evidence of Joanne Cassar, that she had been given a plant by Davis that, it was suggested, came from the boot of the car stolen from Almond. Finally, Martin Todd, an inmate at Her Majesty's Prison Brixton where Johnson had been held on remand, gave evidence of incriminating remarks allegedly made to him by Johnson. 19. All three of the accused denied any involvement in the offences. Their defence relied on the facts that Kate Williamson and others had given evidence that Rowe and Davis had been in their company at times during the night of 15 to 16 December which were inconsistent with a sighting of the Spitfire at a similar time close to the scene of the Hurburgh murder and that the victims of the offences, including Ely, the Napiers and Spicer, had described their attackers as white. On behalf of Johnson it was argued that there was no evidence of his involvement in the preparatory acts or subsequent disposals. 20. The defence submitted that many of the witnesses for the prosecution were unreliable. Thus, Ely's evidence included a number of inconsistencies, as did the testimony and statements of the Jobbins Group. It was argued that if anyone from No. 25 had been responsible for the crimes, it was the Jobbins Group, and that Jobbins, Duncan and Griffin had given a deliberately false account to the police in order to implicate the accused and thus exonerate themselves. Joanne Cassar may have been an accomplice because she knew Duncan and Griffin, and Kate Williamson's evidence may have been motivated by jealousy of Rowe's relationship with another girlfriend and was in any event inconsistent with a letter which she had sent to Rowe whilst he was in prison. The defence sought to impugn Todd's evidence on the grounds that he may have lied in order to obtain parole. In addition, the defence referred to the substantial reward which had been offered as a factor which may have motivated prosecution witnesses to give evidence. 21. Davis gave evidence, consistent with his statement to the police, that he had played no part in the offences and had had nothing to do with the Spitfire. He claimed to have spent the evening of 15 December at home, and agreed with Kate Williamson's account of going out and not returning until about 12.30 a.m. Rowe's evidence was also consistent with his statement to the police. He denied having played any part in the offences and said that after returning to No. 25 at 12.30 a.m., he had then slept with Kate Williamson throughout the night. Johnson did not give evidence. 22. On 26 February 1990 the jury returned unanimous verdicts convicting the applicants and Johnson of murder, assault occasioning grievous bodily harm, and three counts of robbery. They were each sentenced to concurrent terms of life, fifteen years' and twelve years' imprisonment. 23. The applicants and Johnson appealed on the grounds, inter alia, that their convictions were unsafe and unsatisfactory because of weaknesses and inconsistencies in the evidence against them. 24. On 20 October 1992, at the first hearing before the Court of Appeal, counsel for the prosecution handed to the court a document which was not shown to defence counsel. He sought the Court of Appeal's ruling on a matter of disclosure (see paragraphs 34-35 below), and informed the court that the matter was sensitive to a degree which would require the court to hear him either ex parte or, if inter partes, only on an undertaking by defence counsel not to disclose what took place to their solicitors or clients. Both defence counsel indicated that they could not conscientiously give such an undertaking and withdrew from the hearing, which proceeded ex parte. 25. On 14 and 15 January 1993 the issue of disclosure was re-canvassed before a differently constituted Court of Appeal (although the Lord Chief Justice, Lord Taylor, participated in both hearings), because defence counsel had reconsidered their position and had concluded that they had been incorrect in withdrawing voluntarily as they had done at the first hearing. It was argued by the defence that (i) defence counsel should have been permitted to hear the application by the Crown without giving an undertaking and (ii) counsel for the Crown should, at the least, have been obliged to disclose the category of material in question so that defence counsel could then have made submissions as to whether or not disclosure of material in that category should be ordered. The Court of Appeal, in its judgment, remarked that the procedure to be followed when the prosecution was in possession of material which it believed should not be disclosed to the defence had been changed by the judgment in R. v. Ward (see paragraph 37 below) in that it was now for the court, and not the prosecution, to decide whether disclosure should be made, and set out a series of procedural guidelines to be followed in such cases (see paragraphs 39-40 below). In conclusion, however, it refused to order disclosure. 26. On 22 June 1993, at the outset of the hearing of the substantive appeal before a differently constituted Court of Appeal, defence counsel invited the court to order the Crown to disclose the name of any person or persons to whom any reward money had been paid for information given to the police concerning the applicants, and sought access to the Police Complaints Authority Report concerning a complaint by Rowe. The prosecution showed the court documents relevant to the request for disclosure which were not shown to the defence. However, defence counsel were able to make submissions as to the factors weighing in favour of disclosure and the nature of the balancing exercise to be undertaken by the court. Having considered those submissions and having examined the relevant documents, the court refused to order disclosure. 27. On 29 July 1993 the Court of Appeal upheld the applicants' convictions and that of Johnson, concluding that there was no basis to say that there was even a lurking doubt about their safety. 28. The applicants applied to the Court of Appeal for leave to appeal to the House of Lords, but this application was refused on 30 September 1993. 29. By a letter of 27 November 1994 the first applicant's solicitor, with reference to R. v. Rasheed (see paragraph 42 below), asked the Crown Prosecution Service for disclosure of any reward claim made prior to the trial by any witness and, in particular, by one of the Jobbins Group, Williamson or Cassar. 30. On 22 November 1995 the Crown Prosecution Service replied: “Regarding the question raised in paragraph (1) of your letter of 27th October 1994, you will know that the topic of rewards was raised by [defence counsel] at the outset of the appeal in this matter. This resulted in an ex parte application which was heard in camera. This application was upheld and referred to by Watkins LJ in his final judgment in these terms: 'We upheld the claim and refused to order disclosure of any kind for reasons we gave on 22nd June and which are recorded'.” 31. In 1994 the applicants applied to the Home Office for a review of the safety of their convictions. In April 1997 the Criminal Cases Review Commission (“the CCRC”) was set up under the Criminal Appeal Act 1995 and the applicants' case was transferred to it. In August 1997 the CCRC appointed an officer from Greater Manchester Police to investigate the events surrounding the prosecution of the applicants and Johnson. The investigating officer's report was submitted in January 1999. 32. In its report of 7 April 1999 the CCRC found, inter alia, that Duncan was a long-standing police informant, who, on 18 December 1988 had approached a Sussex police officer and told him that the applicants were responsible for the crimes of 15 to 16 December 1988. As a result of his assistance to the police and the evidence which he gave at the applicants' trial, Duncan had received a reward of GBP 10,300, in addition to police protection between 18 and 22 December 1988 and immunity from prosecution in relation to his admitted participation as an accessory to the offences in question. It appeared from police records of the information supplied by Duncan that the latter had never identified Johnson as one of the offenders. These facts had not previously been disclosed to the defence on grounds of public interest immunity. The CCRC also found that “the police were not keen that the Jobbins Group should be prosecuted and there was a corresponding inertia on the part of the prosecuting authorities”, and commented that “if the jury had been aware of this then the credibility of the Jobbins Group might have been assessed in a more critical manner”. Moreover, Todd had retracted his statement concerning the incriminating comments allegedly made by Johnson. The CCRC concluded that, in the light of this new evidence, there was a real possibility that Johnson was not involved in the offences of 15 to 16 December 1988. Whilst there was evidence linking the two applicants to the robberies, if the prosecution case against one of the three, Johnson, might no longer be sustainable, in the CCRC's view the Court of Appeal ought at the same time to have the opportunity to consider whether the case could still be sustained against Rowe and Davis. It therefore referred the convictions of the applicants and Johnson back to the Court of Appeal, since it considered that there was a real possibility that these convictions would not be upheld if such a reference were made (Criminal Appeal Act 1995, section 13). 33. At the time of the adoption of the present judgment the applicants' case is pending before the Court of Appeal. 34. At common law, the prosecution has a duty to disclose any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial. The duty also extends to statements of any witnesses potentially favourable to the defence. 35. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common-law duty to disclose to the defence certain evidence of potential assistance to it ([1982] 74 Criminal Appeal Reports 302: “the Guidelines”). The Guidelines attempted to codify the rules of disclosure and to define the prosecution's power to withhold “unused material”. Under paragraph 1, “unused material” was defined as: “(i) All witness statements and documents which are not included in the committal bundle served on the defence; (ii) the statements of any witnesses who are to be called to give evidence at the committal and (if not in the bundle) any documents referred to therein; (iii) the unedited version(s) of any edited statements or composite statement included in the committal bundles.” 36. According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows: “... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.” According to paragraph 8, “in deciding whether or not statements containing sensitive material should be disclosed, a balance should be struck between the degree of sensitivity and the extent to which the information might assist the defence”. The decision as to whether or not the balance in a particular case required disclosure of sensitive material was one for the prosecution, although any doubt should be resolved in favour of disclosure. If either before or during the trial it became apparent that a duty to disclose had arisen, but that disclosure would not be in the public interest because of the sensitivity of the material, the prosecution would have to be abandoned. 37. Subsequent to the applicants' trial in 1990, but before the appeal proceedings in October 1992-July 1993, the Guidelines were superseded by the common law. In R. v. Ward ([1993] 1 Weekly Law Reports 619) the Court of Appeal dealt with the duties of the prosecution to disclose evidence to the defence and the proper procedure to be followed when the prosecution claimed public interest immunity. It stressed that the court and not the prosecution was to be the judge of where the proper balance lay in a particular case, because: “... [When] the prosecution acted as judge in their own cause on the issue of public interest immunity in this case they committed a significant number of errors which affected the fairness of the proceedings. Policy considerations therefore powerfully reinforce the view that it would be wrong to allow the prosecution to withhold material documents without giving any notice of that fact to the defence. If, in a wholly exceptional case, the prosecution are not prepared to have the issue of public interest immunity determined by a court, the result must inevitably be that the prosecution will have to be abandoned.” The Court of Appeal described the balancing exercise to be performed by the judge as follows: “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed.” 38. In R. v. Trevor Douglas K. ([1993] 97 Criminal Appeal Reports 342), the Court of Appeal emphasised that, in performing the balancing exercise referred to in Ward, the court must view the material itself: “In our judgment the exclusion of the evidence without an opportunity of testing its relevance and importance amounted to a material irregularity. When public interest immunity is claimed for a document, it is for the court to rule whether the claim should be upheld or not. To do that involves a balancing exercise. The exercise can only be performed by the judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind. Only then can he be in a position to balance the competing interests of public interest immunity and fairness to the party claiming disclosure.” This judgment also clarified that, where an accused appeals to the Court of Appeal on the ground that material has been wrongly withheld, the Court of Appeal will itself view the material ex parte. 39. In R. v. Davis, Johnson and Rowe ([1993] 1 Weekly Law Reports 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence then had the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. 40. The Court of Appeal observed that, although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. 41. Following the applicants' appeal, the English courts further clarified the principles and procedures relating to the issue of disclosure. In R. v. Keane ([1994] 1 Weekly Law Reports 747) the Court of Appeal emphasised that, since the ex parte procedure outlined in R. v. Davis, Johnson and Rowe was “contrary to the general principle of open justice in criminal trials”, it should be used only in exceptional cases. It would be an abdication of the prosecution's duty if, out of an abundance of caution, it were simply “to dump all its unused material in the court's lap and leave it to the judge to sort through it regardless of its materiality to the issues present or potential”. Thus, the prosecution should put before the court only those documents which it regarded as material but wished to withhold. “Material” evidence was that which could, on a sensible appraisal by the prosecution, be seen (i) to be relevant or possibly relevant to an issue in the case; (ii) to raise or possibly raise a new issue the existence of which was not apparent from the evidence the prosecution proposed to use; or (iii) to hold out a real (as opposed to fanciful) prospect of providing a lead of evidence going to (i) or (ii). Exceptionally, in case of doubt about the materiality of the documents or evidence, the court might be asked to rule on the issue. In order to assist the prosecution in deciding whether evidence in its possession was “material”, and the judge in performing the balancing exercise, it was open to the defence to indicate any defence or issue which they proposed to raise. 42. In R. v. Rasheed (The Times, 20 May 1994), the Court of Appeal held that a failure by the prosecution to disclose the fact that a prosecution witness whose evidence was challenged had applied for or received a reward for giving information was a material irregularity which justified overturning a conviction. 43. In R. v. Winston Brown ([1995] 1 Criminal Appeal Reports 191), the Court of Appeal reviewed the operation of the Guidelines. It stated: “The Attorney-General's objective was no doubt to improve the existing practice of disclosure by the Crown. That was a laudable objective. But the Attorney-General was not trying to make law and it was certainly beyond his power to do so ... The Guidelines are merely a set of instructions to Crown Prosecution Service lawyers and prosecuting counsel ... Judged simply as a set of instructions to prosecutors, the Guidelines would be unobjectionable if they exactly matched the contours of the common law duty of disclosure ... But if the Guidelines, judged by the standards of today, reduce the common law duties of the Crown and thus abridge the common law rights of a defendant, they must be pro tanto unlawful... [T]oday, the Guidelines do not conform to the requirements of the law of disclosure in a number of critically important respects. First, the judgment in Ward established that it is for the court, not prosecuting counsel, to decide on disputed questions as to discloseable materials, and on any asserted legal ground to withhold production of relevant material ... For present purposes the point of supreme importance is that there is no hint in the Guidelines of the primacy of the court in deciding on issues of disclosure ... Secondly, the Guidelines are not an exhaustive statement of the Crown's common law duty of disclosure: R. v. Ward at 25 and 681D. To that extent too the Guidelines are out of date. Thirdly, the Guidelines were drafted before major developments in the field of public interest immunity. [I]n paragraph 6 the Guidelines are cast in the form of a prosecutor's discretion ... Much of what is listed as 'sensitive material' is no doubt covered by public interest immunity. But not everything so listed is covered by public interest immunity ...” 44. In the case of R. v. Turner ([1995] 1 Weekly Law Reports 264), the Court of Appeal returned to the balancing exercise, stating, inter alia: “Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ... It is sufficient for us to say that in this case we are satisfied that the information concerning the informant showed a participation in the events concerning this crime which, coupled with the way in which the defence was raised from the very first moment by the defendant when he said that he was being set up, gave rise to the need for the defence to be aware of the identity of the informant and his role in this matter. We, therefore, conclude that if one applies the principle which has been quoted from R. v. Keane ... to the facts of the present case, there could only be one answer to the question as to whether the details concerning this informer were so important to the issues of interest to the defence, present and potential, that the balance which the judge had to strike came down firmly in favour of disclosure.” 45. In 1996 a new statutory scheme covering disclosure by the prosecution came into force in England and Wales. Under the 1996 Act, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court. 46. Following the judgments of the European Court of Human Rights in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996V) and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports 1998-IV) the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney-General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. 47. For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Special Immigration Appeals Act Commission (Procedure) Rules 1998 (Statutory Instrument no. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. It provides, inter alia: “7. ... (4) The function of the special advocate is to represent the interest of the appellant by - (a) making submissions to the Commission in any proceedings from which the appellant or his representative are excluded; (b) cross-examining witnesses at any such proceedings; and (c) making written submissions to the Commission. (5) Except in accordance with paragraphs (6) to (9) the special advocate may not communicate directly or indirectly with the appellant or his representative on any matter connected with proceedings before the Commission. (6) The special advocate may communicate with the appellant and his representative at any time before the Secretary of State makes the material available to him. (7) At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the Commission authorising him to seek information in connection with the proceedings from the appellant or his representative. (8) The Commission shall notify the Secretary of State of a request for direction under paragraph (7) and the Secretary of State must, within a period specified by the Commission, give the Commission notice of any objection which he has to the request for information being made or to the form in which it is proposed to be made. (9) Where the Secretary of State makes an objection under paragraph (8), Rule 11 shall apply as appropriate.” Rules 10 and 11, to which Rule 7 refers, provide: “10. (1) If the Secretary of State intends to oppose the appeal, he must, no later than 42 days after receiving a copy of the notice of appeal - (a) provide the Commission with a summary of the facts relating to the decision being appealed and the reasons for the decision; (b) inform the Commission of the grounds on which he opposes the appeal; and (c) provide the Commission with a statement of the evidence which he relies upon in support of those grounds. (2) Where the Secretary of State objects to material referred to in paragraph (1) being disclosed to the appellant or his representative, he must also - (a) state the reasons for the objection; and (b) if and to the extent it is possible to do so without disclosing information contrary to the public interest, provide a statement of that material in a form that can be shown to the appellant. (3) Where he makes an objection under paragraph (2), the Secretary of State must make available to the special advocate, as soon as it is practicable to do so, the material which he has provided to the Commission under paragraphs (1) and (2). 11. (1) Proceedings under this Rule shall take place in the absence of the appellant and his representative. (2) The Commission shall decide whether to uphold the Secretary of State's objection. (3) Before doing so it shall invite the special advocate to make written representations. (4) After considering representations made under paragraph (3) the Commission may - (a) invite the special advocate to make oral representations; or (b) uphold the Secretary of State's objections without requiring further representations from the special advocate. (5) Where the Commission is minded to overrule the Secretary of State's objection, or to require him to provide material in different form from that in which he has provided it under Rule 10(2)(b), the Commission must invite the Secretary of State and the special advocate to make oral representations. (6) Where - (a) the Commission overrules the Secretary of State's objection or requires him to provide material in different form from that in which he has provided it under Rule 10(2)(b), and (b) the Secretary of State wishes to oppose the appeal, he shall not be required to disclose any material which was the subject of the unsuccessful objection if he chooses not to rely upon it in opposing the appeal.” 48. In the context of fair employment proceedings in Northern Ireland, the scheme under sections 90 to 92 of the 1998 Act and the relevant Rules is identical to the mechanism adopted under the 1997 Act (above). 49. In addition, the government has recently placed before Parliament two bills which make provision for the appointment of “special counsel” (operating under the same conditions) in other circumstances. The Electronic Communications Bill 1999 provides for the appointment of a “special representative” in proceedings before an Electronic Communications Tribunal to be established for the purpose of examining complaints relating to the interception and interpretation of electronic communications. In the context of criminal proceedings, the Youth Justice and Criminal Evidence Bill 1999 makes provision for the appointment by the court of a special counsel in any case in which a trial judge prohibits an unrepresented defendant from cross-examining in person the complainant in a sexual offence. | 1 |
train | 001-102237 | ENG | RUS | CHAMBER | 2,010 | CASE OF KOZHOKAR v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domesic remedies);Remainder inadmissible;Violation of Art. 13;Violations of Art. 3 (substantive aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1980 and is currently serving a prison sentence in correctional colony no. 7 in the Tula Region. 6. In 2002 the applicant was convicted of drug trafficking and sentenced to seven years and three months' imprisonment. In 2005 he was granted an early release. 7. In the summer of 2006 the police received an anonymous complaint stating that the applicant and his friend Mr O. were making and selling drugs in their flats. The police questioned the applicant's neighbours, who confirmed unanimously that the applicant and Mr O. were drug dealers. 8. The police made a series of test purchases of drugs from the applicant and Mr O. In September and early October 2006 two persons code-named “Shadow” and “Yermak” asked the applicant and Mr O. to make drugs for them. They went on several occasions to Mr O.'s flat accompanied by their acquaintance Ms G. The applicant and Mr O. made opium from the ingredients bought by the applicant with Shadow's and Yermak's money. They then consumed the opium together. 9. On 18 October 2006 Yermak called the applicant, complained of withdrawal symptoms and asked him to procure him drugs. The applicant asked Ms G. to take 500 Russian roubles from Yermak and to change it in a nearby pharmacy. He then bought opium ingredients with that money and made opium in his flat. He met Yermak several hours later, handed a part of the opium over to him and left the remainder for himself. Yermak gave the opium received from the applicant to the police. 10. On the same day the applicant was arrested and charged with drug trafficking. 11. During the trial the Proletarskiy District Court of Tula heard numerous witnesses, including Shadow, Ms G., the applicant's neighbours and the police officers who had supervised the test purchases. Yermak's pre-trial depositions were read out as he had died before the start of the trial. The trial court also examined expert opinions and material evidence, such as the opium received by Shadow and Yermak from the applicant and Mr O. and utensils for making opium found in the applicant's and Mr O.'s flats. 12. On 19 September 2007 the Proletarskiy District Court of Tula acquitted the applicant of drug trafficking in respect of the episodes of September and early October, finding that on those occasions he had made drugs for personal consumption with his acquaintances rather than for sale. It further convicted the applicant of drug trafficking for selling drugs on 18 October 2006. The applicant was sentenced to seven years' imprisonment. 13. On 12 December 2007 the Tula Regional Court upheld the judgment on appeal. 14. From 20 October 2006 to 27 December 2007 the applicant was held in remand centre no. IZ-71/1 in Tula. 15. According to certificates of 23 October 2009 issued by the remand centre administration and submitted by the Government, from 20 October to 13 November 2006 the applicant was held in cell no. 77, which measured 80.4 sq. m and housed thirty-one to forty inmates. From 13 November 2006 to 31 January 2007 he was held in cell no. 76, which measured 37.4 sq. m and housed thirteen to twenty inmates. From 31 January to 26 September 2007 he was held in cell no. 17, measuring 76.9 sq. m and housing twenty-two to forty inmates. The Government also produced the plan of those cells confirming the cell measurements. 16. The same certificates state that the inmates were allowed to take a shower once a week for forty minutes and had an hour-long daily walk. It was not possible to establish the frequency of family visits or of the applicant's meetings with counsel. The applicant was also frequently taken out of the cell to see a doctor. Inmates suffering from infectious diseases, such as scabies, tuberculosis, HIV, hepatitis or sexually transmittable diseases, were held separately from other inmates. The applicant was never held together with anyone suffering from scabies or tuberculosis. 17. According to the applicant, he was held in cells nos. 77, 76, 17 and 117. Cell no. 77 measured 48 sq. m. It was equipped with fifty bunks and housed forty-four to forty-seven inmates. Cell no. 76 measured 24 sq. m, was equipped with twenty bunks and housed thirty to forty-seven inmates. Cell no. 17 measured 48 sq. m. It was equipped with forty-two bunks and housed twenty-seven to fifty-eight inmates. As the number of bunks was often insufficient, inmates had to take turns to sleep. Punishment cell no. 117, where the applicant was held alone from 2 to 17 February 2007, measured 2 sq. m. 18. All cells were insufficiently lit. There was only one 50-watt light bulb in each cell. The windows were small. Some of them were broken and inmates had to cover the holes with cloth. There was no forced ventilation and it was extremely hot in summer and very cold in winter. The cells were stuffy and smoky. 19. Each cell was equipped with a lavatory bowl which had no flush system. This was not separated from the living area and the person using the toilet was in view of the other inmates. The dining table was very close to the toilet. 20. The cells swarmed with rats, bugs, lice, spiders and cockroaches. The walls were covered with mould. Articles of hygiene were sparse. The bedding was dirty and ragged. All complaints to the detention facility administration about poor sanitary conditions went unanswered. 21. The applicant shared his cell with persons suffering from tuberculosis and scabies. He allegedly contracted scabies while in IZ-71/1. 22. Inmates were allowed to take a shower once a week. The entire cell population was taken to the shower hall for a total of twenty or thirty minutes. There were only four shower stands and the inmates had insufficient time to shower. 23. The food was insipid. There was neither fruit nor meat. Vegetables were rarely served. Fish was served in small quantities of no more than 40 grams per person per day. Although the applicant was prescribed a special diet by a doctor, no special food was provided. 24. The applicant submitted written statements by his co-detainees confirming his description of the conditions of detention. 25. The applicant attempted to lodge complaints about the appalling conditions with the prosecutor of the Tula region and the head of the penitentiary department of the Tula region. The remand centre administration did not dispatch his complaints. The warders threatened that he would suffer if he attempted to complain again. He was then put in a punishment cell for ten days. 26. It appears from the decision of 2 February 2007 issued by the acting head of remand centre no. IZ-71/1 that the applicant was put in a punishment cell for wrenching the tap off a drinking water tank and using it to make a hole in the wall through which he communicated with the inmates in the neighbouring cell. 27. The applicant also alleged that during the trial he had been regularly transported to the courthouse in inhuman conditions. 28. According to a certificate of 23 October 2009 issued by the remand centre administration and submitted by the Government, remand centre no. IZ-71/1 in Tula, where the applicant was held from 20 October 2006 to 27 December 2007, had a medical unit. The medical staff consisted of a general physician, a specialist in skin and venereal diseases, a surgeon, an otolaryngologist, a dentist, a radiologist, a tuberculosis specialist, physician assistants and nurses. The unit had all the necessary equipment and medication. 29. On 23 October 2006 the applicant was examined by a physician. He informed the doctor that he had been HIV-positive since 1999 and that he was also infected with hepatitis B and C viruses. On the same day he was examined by a psychiatrist who diagnosed him with drug withdrawal syndrome. An HIV antibody blood test confirmed that the applicant was indeed HIV-positive. A chest photofluorography was also performed. 30. On 13 November 2006 the applicant was examined by a drug addiction specialist from an HIV medical unit. He noted that the disease had attained clinical stage 3, but that the applicant's state of health was satisfactory. He prescribed a special diet. He further recommended that the applicant be held in a special cell for HIV-positive inmates and that general blood and urine tests and chest photofluorography be performed every six months. 31. On 23 January 2007 the applicant was examined by a psychiatrist. He complained of headache and liver pain. The doctor prescribed a pain reliever and liver pills. 32. On 7 March 2007 the applicant was examined by a nurse. He complained of liver pain. The nurse prescribed hepatoprotective herbal pills and antispasmodic pills. 33. On 23 March 2007 the applicant was examined by a surgeon. On 27 March 2007 a chest photofluorography was performed. 34. On 9 April 2007 general blood and urine tests were performed. 35. On 20 April 2007 a hepatitis C antibody blood test confirmed that the applicant was suffering from chronic hepatitis C. 36. On 22 April 2007 the applicant was examined by a psychiatrist. 37. On 25 April 2007 CD4, CD8 and viral load tests were made. The applicant's CD4 count was 0.462 x 109/l (equivalent to 462 cells/mm3), while his HIV RNA (viral load) was 9,215 copies/ml. 38. On 8 June 2007 a nurse explained to the applicant the results of the CD4 and viral load tests. 39. On 22 August 2007 the applicant was examined by a general physician. He complained of pain in his left shoulder joint. He was diagnosed with arthrosis and prescribed anti-inflammatory treatment. 40. On 26 September 2007 a chest photofluorography was performed. 41. On 24 October 2007 CD4 and viral load tests were made for the second time. The applicant's CD4 count was 0.231 x 109/l (equivalent to 231 cells/mm3), while his HIV RNA (viral load) was 5,282 copies/ml. 42. On 25 October 2007 the applicant was diagnosed with dermatitis and prescribed treatment for dermatitis and hepatoprotective pills. 43. On 30 October 2007 the applicant complained about insomnia and was prescribed sleeping pills. 44. At the end of 2007 a treatment schedule for 2008 was prepared. It was recommended that the applicant should be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography and abdominal ultrasound scans were to be performed twice a year and the applicant was to receive a special diet. 45. On 27 December 2007 the applicant was examined by a general physician before being transferred to the correctional colony. The examining doctor confirmed the previous diagnosis. On the same day the applicant was transferred to correctional colony no. 7 in the Tula region. 46. On 17 January 2008 general blood and urine tests were performed. 47. On 20 February 2008 the applicant was examined by the colony's physician assistant. He noted that the applicant's health was satisfactory, his skin was healthy and the lymph nodes were not enlarged. 48. On 22 February 2008 the applicant was admitted to the prison hospital of the Tula region (no. IK-2, hereafter “Tula prison hospital”). He was examined by a neuropathologist and an ophthalmologist and underwent an abdominal ultrasound scan and a general blood test. The doctors prescribed anti-inflammatory treatment for arthrosis, hepatoprotective pills and vitamins. 49. On 27 February 2008 CD4 and viral load tests were performed. The applicant's CD4 count was 0.447 x 109/l (equivalent to 447 cells/mm3), while his HIV RNA (viral load) was 3,377 copies/ml. 50. The applicant was discharged from hospital on 28 February 2008. 51. On 6 March 2008 the applicant was examined by the colony's physician assistant. He complained of an aching shoulder joint and liver pains. The physician's assistant noted that the applicant's health was satisfactory. 52. On the same day the applicant was examined by a psychiatrist who diagnosed him with heroin addiction in forced remission. 53. On 16 June 2008 the applicant complained of dizziness. He was examined by a nurse who diagnosed him with low blood pressure and prescribed vitamins. 54. On 15 September 2008 the applicant was again examined by the colony's physician assistant. The applicant again complained of liver pain and an aching shoulder joint. The physician assistant noted that the applicant's gall bladder was deformed but his health was otherwise satisfactory. 55. On 31 October 2008 the applicant again complained of an aching shoulder joint. He was prescribed pain relievers. 56. On 7 November 2008 the applicant was admitted to the surgery unit of Tula prison hospital. His shoulder joint was X-rayed and general blood and urine tests were made. He was diagnosed with arthrosis and prescribed pain relievers and physiotherapy. 57. On 14 November 2008 the applicant was discharged from hospital. 58. At the end of 2008 a treatment schedule for 2009 was prepared. It was noted that the applicant's HIV condition had attained clinical stage 3. It was recommended that the applicant be examined twice a year by a general physician, a tuberculosis specialist and an infectious disease specialist. He was also to undergo laboratory examinations twice a year, and chest photofluorography and abdominal ultrasound scans were to be performed twice a year. The applicant was also to receive a special diet. 59. On 12 February 2009 the applicant was granted disability status. 60. On 19 February 2009 the applicant was examined by the colony's physician assistant, who found that his health was satisfactory. 61. On 24 September 2009 the applicant was again examined by a physician assistant, who prescribed treatment for a respiratory infection and gum inflammation. 62. On 22 October 2009 the applicant was examined by a physician. He complained of fever, abdomen pains, cough, headache and heartburn. He was prescribed antibacterial pills. 63. On 23 October 2009 general blood and urine tests were made. 64. On 10 November 2009 the applicant was taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist and a general physician. He underwent general blood and urine tests, an ultrasound scan of the abdominal area and an electrocardiogram. He received vitamins and neuroleptic drugs. 65. On 11 November 2009 CD4 and viral load tests were performed. The applicant's CD4 count was 0.562 x 109/l (equivalent to 562 cells/mm3), while his HIV RNA (viral load) was 7,845 copies/ml. 66. On 20 November 2009 the applicant was discharged from hospital. 67. At the end of 2009 a treatment schedule for 2010 was prepared. It was recommended that the applicant be examined twice a year by a physician, a tuberculosis specialist and an infectious disease specialist. Chest photofluorography, abdominal ultrasound scans and gastro-duodenoscopy were to be performed twice a year and the applicant was to receive a special diet. 68. On 28 January 2010 the applicant was again taken to Tula prison hospital for examination. He was examined by an ophthalmologist, a surgeon, a neuropathologist, a dentist, a psychiatrist, a dermatologist and an otolaryngologist and underwent an ultrasound scan of the abdominal area and a chest photofluorography. General blood and urine tests were also made. He received vitamins and physiotherapy. He was discharged on 10 February 2010. The hospital doctors recommended treatment for arthritis and gall bladder deformation and regular supervision by a general physician and a psychiatrist. 69. On 25 February 2010 the applicant was examined by a physician assistant, who found that his condition was satisfactory. 70. On 10 March 2010 a hepatitis B antibody blood test was performed which established that the applicant did not have hepatitis B. 71. 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 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. 72. Russian law gives detailed guidelines for the provision of medical assistance to detained individuals. These guidelines, found in joint Decree no. 640/190 of the Ministry of Health and Social Development and the Ministry of Justice, on Organisation of Medical Assistance to Individuals Serving Sentences or Detained (“the Regulation”), enacted on 17 October 2005, are applicable to all detainees without exception. In particular, section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee. On arrival at a detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates. The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance. Particular attention must be paid to individuals suffering from contagious conditions. No later than three days after the detainee's arrival at the detention facility, he should receive an in-depth medical examination, including fluorography. During the in-depth examination a doctor should record the detainee's complaints, study his medical and personal history, record injuries if present, and recent tattoos, and schedule additional medical procedures if necessary. A doctor should also authorise laboratory analyses to identify sexually transmitted diseases, HIV, tuberculosis and other illnesses. 73. Subsequent medical examinations of detainees are performed at least twice a year or at the detainees' request. If a detainee's state of health has deteriorated, medical examinations and assistance should be provided by medical personnel of the detention facility. In such cases a medical examination should include a general medical check-up and additional methods of testing, if necessary, with the participation of particular medical specialists. The results of the examinations should be recorded in the detainee's medical history. The detainee should be fully informed of the results of the medical examinations. 74. Detainees take prescribed medicines in the presence of a doctor. In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a daily dose of medicines to the detainee for unobserved intake. 75. Section X of the Regulation regulates medical examinations, monitoring and treatment of detainees suffering from HIV. In particular, it provides that medical examinations, monitoring and treatment of detainees infected with HIV should be performed in accordance with the general standards of medical assistance to HIV-positive patients. All HIV-positive detainees should be registered and their condition should be monitored regularly to secure timely diagnosis and treatment of diseases that may accelerate the progression of the HIV infection, timely identification of symptoms of such progression and timely prescription of specific therapy. During the initial examination of an HIV-infected detainee a doctor must confirm his HIV status, identify the clinical stage of the disease, detect possible opportunistic infections and set up an adequate course of treatment. The frequency of subsequent medical examinations depends on the clinical stage of the disease and the detainee's CD4 count. A detainee in clinical stage 3 of the disease and with a CD4 count exceeding 500 cells/mm³ must be examined by a doctor every twenty-four weeks, while a detainee in clinical stage 3 of the disease with a CD4 count lower than 500 cells/mm³ must be examined by a doctor every twelve weeks. 76. Order no. 474, on Standard medical assistance to persons infected with HIV, issued by the Ministry of Health and Social Development on 9 July 2007, provides that a person infected with HIV must be subjected to the following tests and examinations in particular, irrespective of the clinical stage of the disease: - abdominal ultrasound scan twice a year; - electrocardiography twice a year; - chest photofluorography once or twice a year; - a general blood test three or four times a year; - a general urine test once a year; - psychology consultation six times a year; - HIV RNA (viral load) test twice a year; - CD4 test four times a year. 77. World Health Organization (“WHO”) guidelines of 2006 “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach” read as follows: “4.2. Immunological assessment of HIV-infected adults and adolescents The optimum time to commence ART [antiretroviral therapy] is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART. Table 3 summarizes the immunological criteria for the initiation of ART. Table 3. CD4 criteria for the initiation of ART in adults and adolescents ... The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/ mm3. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/mm3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation. The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered... For patients with clinical stage 1 or 2 disease, a CD4 count below 200 cells/mm3 is a clear indication for treatment. Although there are no randomized trial data on the CD4 cell count level at which to start therapy in asymptomatic persons, data from a number of cohorts have been consistent in demonstrating that disease progression is greater in persons who start antiretroviral therapy with CD4 counts below 200 cells/mm3 than in those starting therapy above this level. In general these studies have not been able to detect a difference in outcome between persons who start therapy at CD4 counts of 200−350 cells/mm3 and those who do so at CD4 counts above 350 cells/mm3. However, if the CD4 count is above 350 cells/mm3, ART should be delayed... Table 4. Recommendations for initiating ART in adults and adolescents in accordance with clinical stages and the availability of immunological markers ... 4.3. Virological assessment of HIV-infected adults and adolescents Plasma viral load measurement is not necessary before initiating ART. It rarely informs the clinical decision as to when ART should begin if both CD4 testing and the assessment of clinical staging are performed... 13. Considerations in hepatitis B or hepatitis C coinfection ... In the setting of HIV infection the course of HCV [hepatitis C]-associated liver disease is accelerated. Rates of progression of liver disease in HIV/HCV coinfection are greater. ... there is contradictory evidence on the effects of HCV on HIV disease progression. In the Swiss cohort study the presence of HCV was independently associated with an increased risk of progression to AIDS and death. However, the EuroSIDA cohort analysis found that the overall virological and immunological responses to ART were not affected by HCV serostatus... However, the risk of mortality related to liver disease was markedly increased in HCV-seropositive patients... Irrespective of whether a patient has HIV infection, the optimal treatment for hepatitis C virus infection is pegylated interferon alpha and ribavirin (RBV)... The initiation of ART in HIV/HCV-coinfected patients should follow the same principles and recommendations as for the initiation of ART in HIV-monoinfected patients. However, the patients should be followed up more closely because of the major risk of drug-related hepatotoxicity and for specific drug interactions of some ARVs with anti-HCV drugs... In patients with high CD4 cell counts it is preferable to treat HCV infection before HIV. While concurrent treatment of both infections is feasible, it may be complicated by pill burden ..., drug toxicities and drug interactions. In patients who need ART it may be preferable to initiate ART and delay HCV therapy in order to obtain better anti-HCV response rates after immune recovery... 15. Clinical and laboratory monitoring ... Clinical and laboratory monitoring of HIV-infected patients serves two purposes. Firstly, for patients under care who are not yet eligible for ART, regular monitoring is essential for the identification of the point at which they become eligible for ART or for prophylaxis against opportunistic infections... Well-designed monitoring protocols can facilitate the initiation of [opportunistic infections] prophylaxis and ART in the majority of HIV-infected patients before they develop advanced HIV infection. Secondly, once patients have been initiated on ART, regular monitoring is necessary to assess efficacy, manage side-effects and identify treatment failure... Because resources are limited, laboratory testing should generally be directed by signs and symptoms and should be done only when the results can be used to guide management decisions. Exceptions are the recommendations to obtain a CD4 cell count every six months... 15.2. Monitoring of patients who are not yet eligible for ART Patients who are not yet eligible for ART should be monitored for clinical progression and by CD4 count measurement every six months. Clinical evaluation should include the same parameters as are used in baseline evaluations, including weight gain or loss and development of clinical signs and symptoms of progressive HIV disease. These clinical parameters and the CD4 cell count should be used to update the WHO disease stage at each visit and to determine whether patients have become eligible for [opportunistic infections] prophylaxis or ART. Clinical evaluation and CD4 counts can be obtained more frequently as the clinical or immunological threshold for initiating ART approaches (Table 4)...” 78. On 30 November 2009 WHO published a document entitled “Rapid Advice: Antiretroviral Therapy for HIV Infection in Adults and Adolescents”. It revised the previous recommendations concerning the commencement of antiretroviral treatment contained in the 2006 guidelines. It strongly recommended that antiretroviral treatment be started in all patients with HIV who had a CD4 count lower than 350 cells per mm3 irrespective of clinical symptoms. It stressed the necessity of CD4 testing in identifying whether HIV-positive patients at WHO clinical stage 1 or 2 of the disease needed to start antiretroviral treatment. Furthermore, it strongly recommended that antiretroviral treatment be started in all patients with HIV at WHO clinical stage 3 or 4 irrespective of CD4 count. 79. The same recommendations are contained in the WHO's 2010 guidelines “Antiretroviral therapy for HIV infection in adults and adolescents: recommendations for a public health approach”. | 1 |
train | 001-66579 | ENG | FIN | ADMISSIBILITY | 2,004 | FASTA v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Eino Fasta, is a Finnish national, who was born in 1927 and lives in Helsinki. He is represented before the Court by Mr Pertti Virolainen, a lawyer practising in Helsinki. The facts of the case, as submitted by the applicant and as they appear from the documents, may be summarised as follows. The applicant’s company and another company (“T”) were business partners. Following an application by the applicant’s company to that effect, T’s assets were seized by the Helsinki District Registry’s (maistraatti, magistraten) decision in 1989. T appealed. The seizures were upheld by the Helsinki Court of Appeal’s (hovioikeus, hovrätten) decision of 12 April 1990. However, in separate civil proceedings, the District Court (käräjäoikeus, tingsrätten) of Helsinki, by its decision of 3 May 1990, lifted one of the seizures. By its judgment of 6 May 1991, the District Court ruled in favour of the applicant’s company, ordering T to pay compensation. On 27 May 1992 the Court of Appeal upheld the judgment and overturned the District Court’s decision of 3 May 1990, i.e. it ordered that T’s assets be seized. Subsequently, the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. The date of the decision is unspecified, but the decision was referred to in a judgment of 3 March 1997 by the District Court of Espoo. Following an application of 3 October 1989 by a company (“TM”), owned by the owner of T, winding-up proceedings were instituted against the applicant’s company before the District Court of Helsinki. As TM did not pursue its application, the case was removed from the docket on 17 October 1989. This data allegedly remained in the credit information index. The business of the applicant’s company dropped, allegedly due to the fact that winding-up proceedings had been instituted against it. Subsequently, on 15 February 1990, the applicant himself lodged an application with the District Court that his company be wound-up. On 15 June 1995 the applicant and others commenced an action for damages against two counsel, among others, who had represented T and TM in the above-mentioned proceedings. By its judgment of 3 March 1997 the District Court of Espoo, having held several hearings and heard witnesses, rejected the action. The applicant appealed. According to the Helsinki Court of Appeal’s judgment, he filed ten supplementary submissions during the period from 9 March 1998 to 28 June 1999. He also requested that the Court of Appeal hold an oral hearing. On 1 September 1999 the Court of Appeal, without an oral hearing, rejected the applicant’s appeal. On 20 April 2000 the Supreme Court refused the applicant leave to appeal. | 0 |
train | 001-22103 | ENG | GRC | ADMISSIBILITY | 2,001 | STOKAS v. GREECE | 4 | Inadmissible | Françoise Tulkens | The applicant, Konstantinos Stokas, is a Greek national, born in 1951 and lives in Grevena. He is represented before the Court by Mr N.Frangakis, a lawyer practising in Athens. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 October 1993 a car driven by the applicant’s brother, which also carried the latter’s wife and their two children, deviated from its course, entered abruptly into the opposite circulation lane and crashed into a truck coming from the opposite direction. The collision had as a result the death of all the passengers of the car. The site of the accident was inspected and it was found that the road surface at the collision point was slippery, due to the rain which had fallen. It was also established that the car’s speed was higher than the maximum permitted speed in that sector. An expert’s report concluded that because the load of the truck, its power and mass, it was impossible for it to maoeuvre and had caused the truck to drag the car backwards with only a small speed. A preliminary investigation (proanakrisi) was initiated ex officio immediately, pursuant to Article 243 of the Code of Criminal Procedure. On 19 December 1994 the case file was sent to the First Instance Criminal Court of Kozani. On 29 July 1994 the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons. He also notified the public prosecutor at the First Instance Criminal Court of Kozani that he wished to take part in the criminal proceedings as a civil party. He asked for 400 drachmas by way of compensation for non-pecuniary damage, expressly reserving his right to pursue the remainder of his claim before the civil courts. On 16 October1995 the applicant brought an action before the Single-Member First Instance Civil Court (Monomeles Protodikio) of Kozani against the driver of the truck and the insurance companies seeking compensation for non-pecuniary damage of an amount of 26 000 000 drachmas. The examination of the case was adjourned because the criminal proceedings were pending. The preliminary investigation lasted until November of 1995. A great number of witnesses was heard. On 18 December 1995 the file was sent to the public prosecutor at the Kozani criminal court. On the 18 December 1995 the applicant submitted an application to the public prosecutor at the Kozani criminal court, pursuant to Article 246 § 3 of the Code of Criminal Procedure, requesting that the preliminary investigation should be complemented by a full investigation (kyria anakrisi). Such an order was given on 21 February 1996. On 12 February 1997 the public prosecutor pressed charges for homicide by negligence against the driver of the truck and the representatives of the company that owned the vehicle. On 8 June 1997 the Indictments Division of the First Instance Criminal Court (Symvoulio Plimmeliodikon) of Kozani decided not to bring charges against the accused. It held that the steering system and brakes of the truck were functioning satisfactorily and that the truck driver could not be accused of reckless driving but had been unable to avoid the collision because of the negligent conduct of the applicant’s brother. The latter was imprudent, was driving at an excessive speed and violated the double separation line of the road. On 14 July 1997 the applicant filed an appeal against the above decision of the indictments division. He complained that the decision was not sufficiently reasoned and that the Indictments Division had applied the relevant legislation erroneously. On 14 January 1998 the applicant’s appeal was dismissed by the Indictments Division of the Court of Appeal (Symvoulio Efeton) of Western Macedonia (decision 21/1998). The Indictments Division confirmed the first instance decision and reiterated that the collision was due to the exclusive responsibility of the applicant’s brother. On 5 March 1998 the applicant’s civil action came for hearing before the Kozani civil court. The court heard a number of witnesses and examined the other evidence in the case. On 4 May 1998 the applicant appealed on points of law against the decision of 14 January 1998 of the Indictments Division of the Court of Appeal. On 8 May 1998 the civil court dismissed the applicants’ action on the merits (judgment 211/1998). It held that the applicant’s brother was entirely responsible for the accident and that the truck’s tyres and the fact that it was overloaded had no causal link to the accident and the fatal injury of the applicant’s brother and his family. On 6 August 1998 the Court of Cassation set aside the decision of the Indictments Division of the Court of Appeal on the ground that it did not contain sufficient reasons, in the sense that the court of appeal had only made a general reference to the evidence before it and it could not, therefore, be deduced whether it had taken it all into consideration. In order to be re-examined, the case was referred back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition. On 8 September 1998 the Indictments Division of the Court of Appeal of Western Macedonia ruled that there was no case for the accused to answer (decision 84/1998). On 14 September 1998 the applicant lodged an appeal with the Court of Cassation against the second decision of the Indictments Division of the Court of Appeal. He claimed that the decision did not set out with sufficient clarity the relevant circumstances and evidence on which it was based. On 14 October 1998 the Court of Cassation upheld the appeal on the ground that the impugned decision was lacking sufficient reasoning and referred the case back to the Indictments Division of the Court of Appeal of Western Macedonia, sitting with a different composition. In particular, the Court of Cassation found that the appealed decision’s reasoning did not elaborate fully and clearly on the evidence bearing on the co-responsibility of the accused for the accident. On 19 October 1998 the Indictments Division of the Court of Appeal decided for the third time not to press charges against the accused. It held that there were not sufficient indications pointing to the guilt of the defendant. For the third time, the Indictments Division held that the driver of the car had been driving at an excessive speed under the circumstances, as it transpired from the deposition of the driver of the car moving behind the applicant’s brother. No liability could be established for the defendant, having regard to the conclusions reached after the inspection of the site of the accident, the diagram which was drawn up. It transpired that the defendant was driving at 45 km/h, that is under the speed limit, was overloaded and circulating at the far right of his own traffic lane. The fact that the applicant’s brother’s car was dragged by the truck down the road was attributed to the slippery road and the defendant’s confusion at the time of the collision. On 22 October 1998 the applicant appealed on points of law to the Court of Cassation. On 26 January 1999 the Court of Cassation dismissed the appeal on the ground that the action had become statute-barred. In particular, the Court of Cassation held that the five-year period of limitation provided by the law for involuntary homicide had lapsed and thus the punishable character of the act allegedly committed by the defendant had disappeared. Under Article 111 § 2 of the Criminal Code misdemeanours (plimmelimata), such as the offence for which the driver and the representatives of the company would have been tried, are subject to a five-year prescription period, starting from the moment the offence takes place. According to Article 113 of the Criminal Code, the investigation and interlocutory proceedings (e.g. the proceedings before the indictments chambers) does not interrupt the running of the prescription period. | 0 |
train | 001-78381 | ENG | AUT | CHAMBER | 2,006 | CASE OF ÖSTERREICHISCHER RUNDFUNK v. AUSTRIA | 3 | Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant is the Austrian Broadcasting Corporation (ORF), a public law foundation (Stiftung öffentlichen Rechts) with its seat in Vienna. 5. On 13 July 1999 the applicant broadcast information on the evening news of its regional television channel about the release on parole of K., head of a neo-Nazi organisation called Extra-Parliamentary Opposition True to the People (Volkstreue Ausserparlamentarische Opposition – “VAPO”) who had been sentenced under the National Socialist Prohibition Act (Verbotsgesetz, “the Prohibition Act”). This news item also mentioned his deputy S., who had been convicted under the Prohibition Act in 1995 and had been released on parole five weeks earlier. Its text ran as follows: “For years G. K. [full name] was known as the head of the Austrian neo-Nazi scene. But it was only after the strengthening of the Prohibition Act in 1992 that he was charged and sentenced to eleven years' imprisonment. Many other members of the VAPO were put behind bars along with him, among them H.-J. S.[full name] – who has also recently been released. K.[family name], now aged 41, made the headlines even while in prison in Krems, for instance at the first letter bomb trial. His release today, however, took place without much ado. Waiting journalists saw nothing but his belongings packed in boxes.” 6. While the third sentence of this text was broadcast, a picture showing S. at his trial in 1995 was broadcast for a couple of seconds. 7. The news item was followed by a brief statement of the commentator. He stated that K. had served seven and a half years of his sentence. The Public Prosecutor had opposed his release on parole, but the Vienna Court of Appeal had granted K.'s request, having refused his first request for early release in 1997. 8. On 23 September 1999 S. brought proceedings under Section 78 of the Copyright Act (Urheberrechtsgesetz), requesting that the applicant be prohibited from publishing his picture without his consent accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or once he had been released on parole. In addition he requested a preliminary injunction to that effect. 9. In its submissions in reply (Klagebeantwortung) the applicant asserted that it had reported on true facts. As regards the publication of the applicant's picture the applicant referred to the Supreme Court's established case-law that Section 78 of the Copyright Act had to be interpreted in the light of Section 7a of the Media Act (see below). Given that S. was an adult who had been convicted of a crime, it followed from Section 7a (2) of the Media Act that the publication of his picture only violated his legitimate interests if it substantially prejudiced his economic advancement. Even if the claimant's legitimate interests were affected, they had to be weighed against the public interest in the publication. In the present case, the public interest was predominant, given that VAPO was an organisation which aimed at destroying the Austrian constitutional order and that two of its leading members, namely K. and the claimant, had been released from prison within a short period. Other media including two leading daily newspapers had also mentioned S.'s release in the context of reports on K.'s release. Finally, the applicant emphasised that under the relevant broadcasting laws it even had an obligation to impart information on political issues. 10. On 11 November 1999 the Vienna Commercial Court (Handelsgericht) granted the preliminary injunction. 11. The Commercial Court noted that the following facts were undisputed: The claimant, who had been convicted under the Prohibition Act in 1995 and had been sentenced to eight years' imprisonment, had been one of the leading members of VAPO which aimed at fighting against democratic order in Austria. He had participated in training camps organised by VAPO which were destined to train to kill. He had been released on 7 June and K. five weeks later on 13 July 1999. On the latter date the applicant had broadcast the report at issue. 12. As to the interpretation of Section 78 of the Copyright Act in conjunction with Section 7a of the Media Act, the Commercial Court agreed that the legitimate interests of an adult who had been convicted of a crime were only violated if the publication of his name or picture disproportionately prejudiced his economic advancement. 13. Applying this case-law to the facts of the present case, the Commercial Court noted that the report in the present case dealt mainly with K.'s release on parole. In its view there was an evident interest of S. not to have broadcast his picture taken in the course of criminal proceedings dating years back, even if the fact that he had meanwhile been released on parole was mentioned. S.'s picture had been widely broadcast at the time of the criminal proceedings against him. However, its broadcasting at the present stage did not add any relevant information to the report at issue, even if the criminal proceedings against him had been among the most important ones conducted under the Prohibition Act. 14. On 21 June 2000 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant's appeal. The Court of Appeal confirmed the Commercial Court's assessment that the publication of S.'s picture had violated his legitimate interests within the meaning of Section 78 of the Copyright Act read in conjunction with Section 7a of the Media Act. Like the Commercial Court it stressed in particular that S.'s picture had been broadcast in the context of a report on the release of another person, K., and found that S. had an evident interest not to have his picture published in that context even if his own release dating some weeks back had also been mentioned. Even taking into account that S. had a certain degree of notoriety, his advancement within the meaning of Section 7a of the Media Act had been hampered disproportionately by the new publication of a picture taken at his trial. 15. The Supreme Court (Oberster Gerichtshof) rejected the applicant's extraordinary appeal on points of law on 13 September 2000. In the subsequent main proceedings, the Vienna Commercial Court gave judgment on 31 December 2000. It ordered the applicant to refrain from publishing S.'s picture without his consent if it was accompanied by any text stating that he had been convicted under the Prohibition Act once the sentence had been executed or he had been released on parole. In its reasoning it repeated the arguments which had been developed in the preliminary injunction proceedings. 16. On 29 November 2001 the Vienna Court of Appeal dismissed the applicant's appeal. It repeated the arguments set out in its judgment of 21 June 2000. Moreover, it referred to the Supreme Court's judgment of 13 September 2000. 17. On 12 February 2002 the Supreme Court rejected the applicant's extraordinary appeal on points of law. 18. The decision was served on the applicant's counsel on 8 April 2002. 19. The general framework for broadcasting is set out in the Constitutional Act concerning the Safeguarding of the Independence of Broadcasting of 10 July 1974 (“the Constitutional Broadcasting Act”, BVG über die Sicherung der Unabhängigkeit des Rundfunks, Federal Law Gazette no. 396/1974). Article 1 of the Constitutional Broadcasting Act, as far as material, reads as follows: “2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.” 20. With effect of 31 December 2001 the ORF, which had been a public law corporation before, was transformed into a public law foundation, a legal entity without an owner by the Act on the Austrian Broadcasting (“the 2001 Act”, Bundesgesetz über den Österreichischen Rundfunk, Federal Law Gazette no. 83/2001). Those provisions of the law relating to the setting up of the ORF's organs entered into force on 1 August 2001, the law in its entirety came into force on 1 January 2002. 21. The foundation has to fulfil a public law mandate which comprises operating at least two national television programmes plus three national and nine regional radio programmes (Section 3 § 1). 22. In accordance with Section 4 § 1 the ORF has to provide comprehensive news coverage of major political, social, economic, cultural and sporting events. In its broadcasts it has to observe the requirements of objectivity and diversity of views and has to preserve its independence from the State, parties, other media or lobbying groups (Section 4 §§ 5 and 6). 23. Pursuant to Section 19 § 1 the ORF's bodies are the Foundation Council (Stifungsrat), the Director General (Generaldirektor), the Audience Council (Publikumsrat) and the Auditing Commission (Prüfungskommission). In the exercise of their functions, all members of these bodies are only subject to the law and are not bound by any instructions (Section 19 § 2). 24. Section 20 regulates the appointment of the Foundation Council. It consists of 35 members who are appointed as follows: six by the Federal Government upon proposals of the political parties represented in the National Assembly (Nationalrat), nine by the Länder, nine by the Federal Government, six by the Audience Council and five by the Central Works Council (Zentralbetriebsrat). Pursuant to Section 21 § 1, the Foundation Council is in charge of monitoring the management and of appointing the Director General. 25. The Director General is appointed for five years. The Foundation Council can only remove him from office with a two thirds majority (Section 22 §§ 1 and 5). The Director General runs the ORF's activitites. He is not bound by any instructions (Section 22 § 3). 26. The Audience Council is composed of 35 members representing different sectors of society. Its task is to represent the interests of the audience (Section 28). 27. The programme fees are fixed by the Foundation Council and are subject to approval by the Audience Council (Section 31 §§ 1 and 2). 28. Pursuant to Section 32 § 1 the ORF has to guarantee the independence of all editorial and journalistic members of its staff. To safeguard the latter's independence the ORF has to conclude an Editor's Statute (Redakteursstatut) with the staff representatives elected by secret ballot. 29. Section 35 provides that the Federal Communication Panel (Bundeskommunikationssenat) decides on alleged violations of the 2001 Act, unless the issue falls within the competence of the courts or administrative authorities. 30. The ORF does not have a broadcasting monopoly. Private broadcasters may obtain licences under the Private Radio Act (Regionalradiogesetz) and the Private Television Act (Privatfernsehgesetz). 31. The Federal Communication Panel, established by the Act on the Communication Authority Austria (Federal Law Gazette no. 32/2001) consists of five members, who are appointed for a term of six years. Three members have to be judges one of whom is elected by the Panel as its Chairperson. All members of the Panel are independent in the exercise of their functions and are not bound by any instructions. The Federal Communication Panel is competent to monitor the ORF's compliance with the 2001 Act (see paragraph 29 above) and to supervise the KommAustria, the authority competent for all matters of broadcasting regulation, including the granting of licences to private broadcasters and the supervision of private broadcasters' compliance with the provisions of the Private Radio Act and the Private Television Act. The decisions of the Federal Communication Panel are subject to an appeal to the Administrative Court. 32. Section 78 of the Copyright Act reads as follows: “(1) Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured...” 33. Starting with its judgment of 23 September 1997 (4 Ob 184/97, MR 1997, 302) the Supreme Court has consistently held that Section 78 of the Copyright Act has to be interpreted in the light of Section 7a of the Media Act. 34. Section 7a of the Media Act reads as follows: “(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who 1. has been the victim of an offence punishable by the courts, or 2. is suspected of having committed, or has been convicted of, a punishable offence, and where the legitimate interests of that person are thereby harmed and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. The award of damages shall not exceed 14,535 euros; additionally, Section 6(1), second sentence, shall apply. (2) The legitimate interests of the victim shall in any event be harmed if the publication 1. in the case of subsection (1)1, is such as to give rise to an interference with the victim's strictly private life or to his or her exposure, 2. in the case of subsection (1)2, relates to a juvenile or merely to a lesser indictable offence or may disproportionately prejudice the victim's advancement. | 1 |
train | 001-67796 | ENG | DEU | ADMISSIBILITY | 2,004 | AKBINGOL v. GERMANY | 4 | Inadmissible | null | The applicant, Mr Seraffedin Akbingöl, is a Turkish national, who was born in 1965 and lives in Plattling. He was represented before the Court by Mrs Angelica Lex, a lawyer practising in Munich. On 30 June 1997 the applicant was convicted by the Munich Regional Court (Landgericht München) of an offence under the Associations Act (Vereinsgesetz) and sentenced to six months imprisonment on probation. He was found guilty of having participated in Germany in activities of illegal Turkish organisations. On 31 October 1997 the Public Prosecutor at the Munich Regional Court served the applicant with a notice to pay the costs, including costs for the translation of his telephone conversations from Kurdish and Turkish into German. These conversations were taped in the course of the criminal investigation. The applicant unsuccessfully challenged the inclusion of the translation costs in this assessment of the costs. On 19 February 1999 his appeal was dismissed by the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) which held, inter alia, that the accused should bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction. The applicant's conviction was mainly based on the telephone tapping. Article 6 § 3 (e) of the Convention did not prevent translation costs being awarded against a convicted person. This provision had the purpose of ensuring that, irrespective of his financial situation, an accused who could not understand or speak the language used in court had the right to an effective defence and accordingly to a fair trial. The free assistance of an interpreter had therefore to cover all the issues which were relevant for the defence. There would be a breach of the principle of equality of arms between the prosecution and the defence where an accused was deprived of the opportunity to have knowledge of these issues. However, the situation found in the present case did not affect the applicant's rights under Article 6 § 3 (e). The translation of the applicant's telephone conversations was not necessary for his defence. It was required for the investigations to be carried out in a Kurdish or Turkish speaking environment. These costs were therefore excluded from the scope of Article 6 § 3 (e) of the Convention. This provision did not imply that a foreign accused was exempted from the payment of the costs of the investigations in so far as they resulted from the use of his mother tongue. On 14 April 1999 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint. | 0 |
train | 001-103605 | ENG | UKR | COMMITTEE | 2,011 | CASE OF KLIMENKO v. UKRAINE | 4 | Violation of Art. 6-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger | 4. The applicant was born in 1951 and lives in Sevastopol. 5. On 25 March 1998 the applicant was dismissed from her position of Head of Department at the State-owned bank, O. (“the bank”). 6. On 21 April 1998 she lodged a claim against the bank seeking the reinstatement and compensation for pecuniary and non-pecuniary damage. 7. On 14 December 1998 Gagarinsky District Court of Sevastopol (“the District Court”) fined the bank following its three consecutive failures to appear before the court. 8. On 13 January 1999 the District Court partly allowed the applicant’s claim. 9. On 13 April 1999 the Sevastopol City Court (“the Court of Appeal”, since June 2001, the Sevastopol Court of Appeal) quashed that judgment and sent the case back to the District Court which, on 17 February 2000 dismissed the applicant’s claim. This judgment was upheld by the Court of Appeal on 21 March 2000. 10. On 20 November 2002 the Supreme Court, dealing with the applicant’s appeal in cassation lodged under the Code of Civil Procedure (as amended by the Law of 21 June 2001), quashed the lower court’s decisions and remitted the case to the District Court which, in a judgment of 24 May 2004 partly granted the applicant’s claim awarding her UAH 114,837 (EUR 17,226) and UAH 50,000 (EUR 7,500) in compensation for pecuniary and non-pecuniary damage respectively. 11. On 6 August 2004, the Court of Appeal amended that judgment reducing the compensation for non-pecuniary damage to UAH 5,000 (EUR 750). This ruling was executed in February 2005. 12. On 9 November 2005 the Supreme Court reversed the lower courts’ decisions in respect of the non-pecuniary damages upholding the remainder of their decisions. 13. On 26 June 2006 the District Court, being bound by the Supreme Court’s decision, ordered the applicant to reimburse the defendant UAH 5,000. On 31 August 2006 the Court of Appeal quashed this decision. The parties did not appeal. 14. In the course of the proceedings, the applicant modified her claims three times, filed one procedural request and five appeals or supplements to appeals, which all met procedural requirements. 15. According to the Government, of the 37 hearings scheduled during the periods from 22 April 1998 to 21 March 2000 and from 20 November 2002 to 31 August 2006, seven hearing were adjourned due to the defendant’s failure to attend, three were adjourned due to the applicant’s failure to attend, and one hearing was adjourned due to the both parties’ failure to attend. 16. On 12 January 1999 the Nakhimovsky District Prosecutor of Sevastopol opened a criminal investigation against the applicant on suspicion of abuse of authority. Until 28 December 2001, the investigation was terminated and reopened three times. 17. On 31 May 2008 the investigation was reopened for the fourth time. This decision was quashed on 15 July 2008 by the Nakhimovsk District Court of Sevastopol. On 31 July 2008 the Court of Appeal upheld the District Court’s decision. The investigation was pending for about two years and two months overall. | 1 |
train | 001-58523 | ENG | TUR | CHAMBER | 2,000 | CASE OF MAHMUT KAYA v. TURKEY | 1 | Violation of Art. 2 in respect of failure to protect life;Violation of Art. 2 in respect of ineffective investigation;Violation of Art. 3;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 8. Dr Hasan Kaya, the applicant's brother, practised medicine in south-east Turkey. From November 1990 to May 1992, he had worked in Şırnak. He had treated demonstrators injured in clashes with the security forces during the Nevroz (Kurdish New Year) celebrations. Following this, he was transferred from Şırnak to Elazığ. He had told Fatma Can, the wife of his friend Metin Can, that he had been threatened in Şırnak and put under considerable pressure. 9. In Elazığ, Hasan Kaya worked in a health centre. He met often with his friend Metin Can, who was a lawyer and President of the Elazığ Human Rights Association (HRA). Metin Can had been representing persons suspected of being members of the PKK (Workers' Party of Kurdistan). He had told his wife Fatma Can that he had received threats and that an official had warned him that steps had been planned against him. According to Şerafettin Özcan, who worked at the HRA, Metin Can had also been subjected to threats because of the attempts he had made to improve conditions in Elazığ Prison. The police had carried out a search at the Elazığ HRA, as they had at other HRA offices in the south-east. 10. In December 1992 Bira Zordağ, who had lived in Elazığ until October 1992, was taken into detention by police officers in Adana and transferred to Elazığ, where he was interrogated to find out what he knew about the PKK. He was asked whether two doctors in Elazığ, one of whom was Hasan Kaya, had been treating wounded members of the PKK. A threat was made that Hasan Kaya would be punished. He was also asked about lawyers, particularly Metin Can. On his release, Bira Zordağ visited the Elaziğ HRA and told Şerafettin Özcan and Metin Can what had occurred. 11. At Christmas 1992 Hasan Kaya told the applicant that he felt that his life was in danger. He believed that the police were making reports on him and keeping him under surveillance. At around the same time, Metin Can told the applicant that his flat had been searched while he was out and that he thought he was under surveillance. 12. On or about 20 February 1993, two men came to the block of flats where Metin Can lived. They rang the doorbells of Süleyman Tursum and Ahmet Oygen, asking for Metin Can. When Metin and Fatma Can got home later that night, they received a telephone call. The callers said that they had been to the flat earlier and wanted to come and see Metin Can immediately. Metin Can told them to come to his office the next day. 13. On 21 February 1993, after receiving a phone call at his office, Metin Can met two men in a coffee house. Şerafettin Özcan was also present. The men said that there was a wounded member of the PKK hidden outside town. Metin Can took the men back to his flat and called Hasan Kaya on the telephone. Hasan Kaya arrived at the flat. It was arranged that the two men would take the wounded man to Yazıkonak, a village outside Elazığ, and that they would call when they were ready. The two men left. At about 7 p.m., there was a phone call. Metin Can left with Hasan Kaya, who was carrying his medical bag. Metin Can told his wife that they would not be long. They drove off in the car of Hasan Kaya's brother. 14. Metin Can and Hasan Kaya did not return that night. At about 12 noon or 1 p.m. on 22 February 1993, Fatma Can received a phone call. The speaker sounded like one of the men who had come to the flat. He said that Metin and his friend had been killed. Fatma Can and Şerafettin Özcan went to the Security Directorate to report that Metin Can and Hasan Kaya were missing. Neither told the police about the meeting of Metin Can with the two men or the details of events preceding the disappearance. Nor did Fatma Can mention those details when she made a statement to the public prosecutor that day. 15. By notification of 22 February 1993 the Elazığ governor informed all the other governors in the state of emergency region of the disappearance of Metin Can and Hasan Kaya, requesting that they and their car be located. 16. At about 6 p.m. on 22 February 1993 Hakkı Ozdemir noticed a car parked suspiciously opposite his office in Yazıkonak and reported it to the police. It was the car belonging to Hasan Kaya's brother. The police searched the car, fingerprinted and photographed it. That evening, police officers took statements from the neighbours in Metin Can's block of flats. 17. Further strange calls were made to the Metin Can flat. On 23 February 1993 Metin Can's nephew answered the phone. A person claimed that Metin Can and Hasan Kaya were still alive and that they would release the former. He said that Metin would not go to Europe and would continue the struggle. 18. On 23 February 1993 at about 10 p.m., a bag was found outside the SHP (People's Social Democratic Party) building in Elazığ. It contained two pairs of old shoes. On 24 February 1993 one pair of shoes was recognised by Tekin Can as belonging to his brother Metin Can. Hüseyin Kaya stated that the other pair did not belong to his brother, Hasan Kaya. On the same day the public prosecutor obtained an order from the Elazığ Magistrates' Court for the telephone at Metin Can's flat to be monitored in order to identify the persons making threatening calls. Ahmet Kaya lodged a petition with the Elazığ governor that day requesting that steps be taken to find his son Hasan Kaya. 19. On 22-23 February 1993 Fatma Can and Şerafettin Özcan travelled to Ankara, where they appealed to the Minister of the Interior for Metin Can to be found. Fatma Can returned to Elazığ on 27 February 1993. 20. At about 11.45 a.m. on 27 February 1993 it was reported that two bodies had been found under the Dinar bridge, about 12 km outside Tunceli. The bodies were identified as being those of Hasan Kaya and Metin Can. Two cartridges were found at the scene. The bodies did not have shoes on and there was not much blood on the ground. The applicant and other members of the family arrived at the location and saw the bodies. 21. An autopsy was carried out at about 4.25 p.m. on 27 February 1993 at the Tunceli State Hospital morgue. The autopsy report noted that both men had been shot in the head and had their hands tied. No trace of violence or blow was observed on Hasan Kaya's body. As for Metin Can, it was noted that his nose had haemorrhaged, there was a wound in his lip and some teeth were missing, there were bruises around his neck, on the knees and on the torso and abdomen. Maceration was observed on the feet. It was noted that there was no trace of violence or blow. An addendum was attached by the doctors who had carried out the examination to the effect that a bruise on the right eyebrow might have been caused by a blow. It was estimated that death had occurred fourteen to sixteen hours previously. 22. A second autopsy was carried out on 28 February 1993 at about 1.05 a.m. The applicant identified the body of his brother, Hasan Kaya. The report described the bullet entry and exit holes to the head. It stated that the right ear and adjacent area were marked with ecchymoses which could be explained by pressure on the body. There were ecchymoses around the nail bases on the left hand; circular marks around both wrists, which might have been caused by the hands being bound by wire; a 1 by 0.5 cm ecchymosis on the right knee; a 2 by 1 cm light yellow ecchymosis on the inner lower frontal region of the right knee; a 0.7 cm wide ecchymosis on the left ankle; 0.5 cm wide epidermal scratches on the left ankle; cyanosis in the toe bases on both feet and athlete's foot on both feet, especially on the soles and the left sides of the feet, probably caused by remaining in water and snow for lengthy periods. The torso of the body was free from any blow, wound, burn or firearm injury save those noted above. The cause of death was brain damage and haemorrhage of the brain tissues due to the bullet wound. A classical autopsy was not necessary. Hüseyin Can identified the body of his nephew Metin Can. The report described numerous marks and injuries to the body. These included bruises and scratches on the face and head, a tear in the lip, bruising around the neck, bone damage to the jaw and missing teeth, marks on the wrists indicative of being bound, bruises on the knees and cyanosis on both feet and toes. The bruises and scratches on the forehead, nose and under the right eye were thought to have been caused by blunt instruments (for example, a stone or a stick) and the lesions on the neck by string, rope or cable. This might have occurred immediately before death and from the application of force for short periods. These wounds would not have caused death. Death resulted from brain damage and brain haemorrhage. Death was estimated as having occurred within the previous twenty-four hours. 23. On 1 March 1993 the Tunceli province central gendarmerie commander sent the Tunceli public prosecutor an incident report dated 27 February 1993 and a sketch map of the location of the bodies. On 2 March 1993 the Tunceli public prosecutor sent the two cartridges found at the scene for ballistics examination. On 8 March 1993 the Elazığ public prosecutor took a further statement from Fatma Can concerning the disappearance of her husband. She mentioned that her husband had told her that he thought the police were following him and that their flat had been searched when they were out. She said that her husband had been invited to go to Germany. She had asked him to resign as President of the HRA many times and he had said that he would. 24. On 11 March 1993 the Elazığ public prosecutor issued a decision of non-jurisdiction, transferring the file to Tunceli where the bodies had been found. 25. On 18 March 1993 Ahmet Kaya sent a petition to the public prosecutor giving information which he had heard about the events. This stated that his son had been seen being taken into custody at Yazıkonak by police officers in civilian clothes carrying walkie-talkies. The car in which they travelled had stopped at a petrol station, where the officers had mentioned that they were taking the lawyer and doctor for interrogation. Further, during a conversation at Hozat involving a judge and a lawyer called İsmail, a police officer had said that Can and Kaya had been taken to the Tunceli Security Directorate. 26. In a petition dated 19 March 1993 to the Pertek public prosecutor, Ahmet Kaya recounted an incident which he had heard had occurred in a Pertek beer house on 15 March 1993. At about 8 p.m., during a television programme on contra-guerrillas, a man called Yusuf Geyik, nicknamed Bozo, had announced: “... We killed Hasan Kaya and the lawyer Metin Can.” When the people in the beer house attacked him, he had pulled out a gun. He had called for help on his walkie-talkie and gendarmes had come to take him away. 27. On 31 March 1993 the Tunceli public prosecutor issued a decision of non-jurisdiction concerning the killing of Hasan Kaya and Metin Can by unknown perpetrators. As he considered that the crime fell within the scope of the legislation on the state of emergency, he transferred the file to the Kayseri National Security Court prosecutor. 28. On 6 April 1993, following a request by the Pertek public prosecutor summoning Yusuf Geyik, the Pertek chief of police informed the prosecutor that there was no such person in their district. 29. On 12 April 1993 a statement was taken by the Hozat public prosecutor from the lawyer İsmail Keleş, who denied that he had heard any police officer give information about the murders of Kaya and Can. 30. On 13 April 1993 Ahmet Kaya submitted a further petition to the Tunceli public prosecutor. He stated that Can and Kaya had been seen taken by police officers at Yazıkonak and that the car had stopped at a petrol station where the petrol attendant had recognised and spoken to Can, who had said they were being taken somewhere by the officers. The petition pointed out that the two men had been taken 138 km through eight official checkpoints and the circumstances indicated that the State authorities were involved. It stated that a complaint was being lodged against the governor, the chief of police and the Minister of the Interior. 31. A report dated 14 April 1993 by the Hozat police informed the Hozat public prosecutor that Ahmet Kaya's allegation had been investigated. The investigation disclosed that no Hozat police officer had made a statement alleging that Can and Kaya had been held at Tunceli Security Directorate. 32. On 29 April 1993 the Pertek public prosecutor instructed the Pertek chief of police to summon the managers of the beer house and requested information from the Pertek district gendarmerie command concerning the allegation that a non-commissioned officer (NCO) had taken Yusuf Geyik from the beer house. 33. On 4 May 1993 the Pertek chief of police informed the public prosecutor that, while it was reported that Yusuf Geyik had been seen in the area and had stayed at the district gendarmerie headquarters, his whereabouts were unknown. In a statement taken by the public prosecutor on 4 May 1993 Hüseyin Kaykaç, who ran the Pertek beer house, stated that on 15 March a man he knew as Bozo claimed that he and others had killed Can and Kaya. He had talked on the radio and a NCO had come to pick him up. He had not seen the other people in the beer house attacking Bozo or Bozo drawing a gun. In a statement, also of 4 May 1993, Ali Kurt, a waiter at the beer house, agreed with the statement made by Hüseyin Kaykaç. By letter dated 5 May 1993, the Pertek district gendarmerie commander informed the public prosecutor that he was not aware of the incident at the beer house and that no assistance had been requested from a beer house. No NCO had been involved. 34. On 22 July 1993 the Kayseri National Security Court prosecutor issued a decision of non-jurisdiction, transferring the file to the Erzincan National Security Court prosecutor. 35. On 3 September 1993 Mehmet Gülmez, President of the Tunceli HRA, and Ali Demir, a lawyer, sent the Elazığ public prosecutor a copy of an article in the 26 August issue of the newspaper Aydınlık which stated that a special-operations officer had identified the killers, inter alia, of Hasan Kaya and Metin Can as being Ahmet Demir, known as “Sakallı” (“the Beard”), and Mehmet Yazıcıoğulları, who were contra-guerrillas paid by the State and responsible for most of the killings in the area. When summoned to give further explanations, Ali Demir, in a statement to the public prosecutor of 12 October 1993, said that he did not personally know “Ahmet Demir” but between 1988 and 1992 when he was Chairman of the SHP in Tunceli he had received complaints that “the Beard” was carrying out attacks and was associating with the security forces. 36. On 14 October 1993 the Tunceli public prosecutor, inter alia, instructed the police to locate and summon Mehmet Yazıcıoğulları. The police replied on 18 October 1993 that they could not find him. 37. Following an instruction by the Erzincan National Security Court prosecutor of 8 November 1993, the Pertek public prosecutor took a further statement from Ali Kurt on 17 November 1993 which confirmed that he had heard a man calling himself Bozo claim to have killed Can and Kaya. Bozo had spoken into a radio asking for the regiment commander, and three men had taken him away. He explained that Hüseyin Kaykaç had moved to Tunceli. On 6 April 1994 the Elazığ public prosecutor took a statement from Hüseyin Kaykaç which confirmed his earlier statement. It stated that Bozo had tried to contact the regiment commander on his radio and when he could not get through he had called the Pertek district gendarmerie headquarters asking for them to come and get him. He said two NCOs, Mehmet and Ali, had arrived with another NCO in civilian clothes, whose name he did not know. 38. On 11 November 1993 the Tunceli public prosecutor issued another instruction to the Tunceli police to bring Yazıcıoğulları and Ahmet Demir to his office. On 6 December 1993 the police reported that they had not found their addresses and that they were not known in their jurisdiction. 39. On 31 January 1994 Hale Soysu, the editor of Aydınlık, lodged a petition with the Istanbul public prosecutor, which was forwarded to the Tunceli public prosecutor. This identified Mahmut Yıldırım as one of the perpetrators of the murder of Hasan Kaya and Metin Can as well as other killings. It was based on information received from a Major Cem Ersever, which had been the basis of a series of articles in the newspaper from 19 to 30 January 1994. 40. On 2 February 1994 the Erzincan National Security Court prosecutor informed the Pertek public prosecutor that there were discrepancies in the information provided by the Pertek police and the Pertek gendarmerie and that since the gendarmes might be implicated, the public prosecutor should conduct an inquiry into the discrepancies himself. 41. On the same day the Erzincan National Security Court prosecutor requested that the tape and transcript of a television programme be obtained, during which an Aydınlık correspondent had talked about Major Cem Ersever. 42. In a petition dated 14 February 1994 to the Elazığ public prosecutor, Ahmet Kaya referred to Aydınlık, the television programme and Soner Yalçın's book The Confessions of Major Cem Ersever as disclosing that Mahmut Yıldırım was the planner and perpetrator of the Can and Kaya murders. He stated that Yıldırım had been a State employee for thirty years and came from Elazığ. In his statement to the public prosecutor that day, he said that he did not know Yıldırım personally but in the district he was talked about as having been involved in such incidents. 43. On 14 February 1994 the Elazığ public prosecutor requested the Elazığ police to investigate the allegations made concerning Mahmut Yıldırım. 44. By letter dated 17 February 1994, the Pertek public prosecutor informed the Erzincan public prosecutor that Yusuf Geyik was known to have been a member of a Marxist-Leninist organisation and had been identified as being involved in an armed attack on a van and a robbery. An arrest warrant had been issued against him on 28 March 1990, but withdrawn by the Erzincan National Security Court on 4 November 1991. 45. By a petition dated 21 February 1994 to the Elazığ public prosecutor, Anik Can, the father of Metin Can, filed a complaint against Mahmut Yıldırım, who was said in the press and in books to have killed his son. He stated that Yıldırım's home address was No. 13 Pancarlı Sokak and that he worked at Elazığ Ferrakrom. The police reported on 25 February 1994 that Mahmut Yıldırım had left his address fifteen to twenty days previously and that his present whereabouts were unknown. In a further report dated 11 April 1994, the police stated that he was still not to be found at his address. The public prosecutor was so informed. 46. On 11 May 1994 the Erzincan National Security Court prosecutor received the tape and transcript of the television programme which recounted Soner Yalçın's interviews with Major Cem Ersever and included that journalist's claim that Ahmet Demir, known as “Yeşil”, who was well known to the police and gendarmes, had killed Metin Can and Hasan Kaya. 47. On 25 May 1994 the Erzincan National Security Court prosecutor issued a decision of non-jurisdiction, transferring the file to the Malatya National Security Court following the reorganisation of jurisdiction for Elazığ and Tunceli. 48. On 13 March 1995 the Malatya National Security Court prosecutor sent instructions to the Bingöl, Diyarbakır, Elazığ and Tunceli prosecutors for the location and arrest of Mahmut Yıldırım, the location of Orhan Öztürk, İdris Ahmet and Mesut Mehmetoğlu, who had been named in newspaper articles as having been involved with “Yeşil” in contra-guerrilla murders, including those of Can and Kaya, and the location of Mehmet Yazıcıoğulları and Yusuf Geyik. 49. On 17 March 1995 the director of Diyarbakır E-Type Prison provided information about Orhan Öztürk, İdris Ahmet and Mesut Mehmetoğlu, who had been members of the PKK, had become confessors and had been detained at the prison for various periods. Orhan Öztürk had been released on 18 February 1993 and İdris Ahmet on 16 December 1992. Mesut Mehmetoğlu had been released on 8 January 1993 but redetained at the prison on 26 September 1994 on a charge of homicide related to an incident where Mehmet Şerif Avşar had allegedly been taken from his shop by a group of men purporting to take him into custody, and later found shot dead. 50. On 28 March 1993 a statement was taken from Mehmet Yazıcıoğulları, in which he denied that he had been involved in the killings of Metin Can and Hasan Kaya and that he did not know Mahmut Yıldırım, Orhan Öztürk, İdris Ahmet or Mesut Mehmetoğlu. 51. On 6 April 1995 Mesut Mehmetoğlu made a statement in prison to a public prosecutor. He complained that the press which supported the PKK were targeting him and publishing biased articles against him. Around 21 February 1993 he had been in Antalya and, on hearing that his grandfather had died, he had gone to Hazro for two months. 52. On 3 April 1995 the gendarmes reported that Yusuf Geyik was not to be found in his home village of Geyiksu. He had left eight to ten years previously. 53. In a report dated 7 April 1995 the police informed the Elazığ public prosecutor, in response to a request to apprehend Mahmut Yıldırım, that the address given for him, No. 13 Pancarlı Sokak, did not exist and the business address was not in their jurisdiction. In a report dated 28 April 1995, the gendarmes reported that they had investigated his address in their jurisdiction but that they had been unable to discover his whereabouts. 54. The contents of the investigation file were supplied to the Commission. 55. The applicant provided the Commission with a copy of the so-called “Susurluk report”, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 56. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 57. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The report made reference to a certain Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil”, detailing his involvement in unlawful acts in the south-east and his links with the MİT (the Turkish intelligence service): “... Whilst the character of Yeşil, and the fact that he along with the group of confessors he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnapping, etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MİT may use a lowly individual ... it is not an acceptable practice that MİT should have used Yeşil several times ... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MİT ... As a result of the State's silence the field is left open to the gangs ... [p. 26]. ... Yeşil was also associated with JİTEM, an organisation within the gendarmerie, which used large numbers of protectors and confessors [p. 27]. In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk[] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter[] had also been planned and carried out by A. Demir [p. 37]. ... All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[]). Other journalists have also been murdered [page 74][].” 58. The report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security force personnel implicated in illegal activities; limiting the use of confessors; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. 59. The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a Parliamentary Investigation Commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in the south-east region and referred to information that Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings. 60. The applicant provided the Commission with a copy of Soner Yalçın's book The Confessions of Major Cem Ersever (summarised in the Commission report, Appendix III) as well as articles from Aydınlık and other newspapers concerning contra-guerrillas (see paragraphs 154-63 of the Commission's report). 61. Evidence was heard from eleven witnesses by Commission delegates in two hearings held in Strasbourg and Ankara. These included the applicant, Fatma Can, the wife of Metin Can, Şerafettin Özcan, Bira Zordağ, Hüseyin Soner Yalçın, a journalist, Süleyman Tutal, the public prosecutor from Elaziğ, Hayati Eraslan, the public prosecutor from Tunceli, Judge Major Ahmet Bulut, prosecutor at the Malatya National Security Court, Mustafa Özkan, the Pertek chief of police, Bülent Ekren, the Pertek district gendarmerie commander and Mesut Mehmetoğlu, an ex-member of the PKK turned confessor. 62. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 63. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 64. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 65. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court. 66. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 65 above) also applies to members of the security forces who come under the governor's authority. 67. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 63 above) or with the offender's superior. 68. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 69. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 70. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 69), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 71. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations). | 1 |
train | 001-70241 | ENG | RUS | CHAMBER | 2,005 | CASE OF VASYAGIN v. RUSSIA | 4 | Violation of Art. 6-1;Violation of Art. 13 | Christos Rozakis | 4. The applicant was born in 1932 and lives in Moscow. He is retired. 5. On 5 October 1993 the applicant bought a motorbike, produced in Belarus. The motorbike was sold by a Russian dealer company under a service warranty. The next day the motorbike got out of order. The service centre, indicated by the dealer company, refused to repair the motorbike. 6. On 2 December 1993 the applicant brought an action against four defendants: the dealer company, the factory having produced the motorbike, based in Belarus, the service centre, and the Moscow Bureau of Technical Expertise. On 4 October 1994 the Meshchanskiy District Court of Moscow ordered the dealer company to pay damages to the applicant. The defendant appealed. On 28 March 1995 the Moscow City Court quashed the judgment and remitted the case to the first instance court. 7. In 1995-1997 hearings were adjourned on five occasions due to both parties’ failure to appear, on two occasions – due to the defendant’s failure to appear, and on six occasions – because of the judge having been busy with other cases. Finally, on 12 November 1997 the Meshchanskiy District Court severed the applicant’s claims against the service centre. At the same time the court dismissed the applicant’s claims against the dealer company. On 12 January 1998 the Moscow City Court upheld this judgment. The proceedings against the service centre continued. 8. In the proceedings against the service centre no hearings were held between 12 January 1998 and 12 April 1999. In the following months the examination of the case was adjourned on three occasions due to the defendant’s failure to appear. 9. By a default judgment of 20 December 1999 the Meshchanskiy District Court held against the service centre awarding the applicant damages in the amount of 261,690 Russian roubles (RUR). Since no appeal followed within the time-limits established by law, on 31 December 1999 the judgment became final. The court issued an execution warrant and opened the enforcement proceedings. 10. On 6 February 2000 the defendant lodged an appeal seeking, inter alia, to restore the time-limits allowed for the appeal. On 9 March 2003 the court decided to restore the time-limits and accepted the statement of appeal for examination on the merits. In the meantime RUR 30,267 were recovered from the service centre on the account of the amount due to the applicant under the judgment of 20 December 1999. 11. By the decision of 18 May 2000 the Moscow City Court quashed the judgment of 20 December 1999, stating that the first instance court had failed to properly notify the defendant about the hearings. The case was remitted to the first instance court for new examination. 12. By a judgment of 20 June 2000 the Meshchanskiy District Court dismissed the applicant’s action against the service centre. The court also ordered the applicant to reimburse the amount recovered from the service centre pursuant to the judgment of 20 December 1999. 13. On 26 July 2000 the Public Prosecutor of the Meshchanskiy District of Moscow lodged with the Moscow City Court an appeal on behalf of the applicant. On 12 September 2000 the Moscow City Court quashed the decision of 20 June 2000 and remitted the case to the first instance. 14. After the remittal of the case, the proceedings were stayed for a certain period of time. Within this period higher judicial authorities were examining the materials of the case-file for the purpose of bringing a supervisory review appeal against the decision of 12 September 2000. However, no supervisory review proceedings followed. 15. The first hearing on the merits was scheduled for 2 October 2001. However, on this date the court decided to adjourn the case for two months due to the plaintiff’s failure to appear. In the subsequent months the examination of the case was adjourned on six occasions due to the defendants’ failure to appear or the absence either of the presiding judge (adjourned from 27 November 2001 until 29 January 2002) or the lay judges (adjourned from 20 May 2002 until 26 June 2002). 16. In a letter of 7 February 2001, the Vice-President of the Moscow City Court informed the President of the Meshchanskiy District Court that the applicant’s claim against the producer factory remained unresolved since 1995. 17. On 3 October 2002 the first instance court, by a default judgment, satisfied the applicant’s claim against the producer factory and rejected his claim against the dealer company. 18. The producer factory appealed against this judgment. On 28 January 2003 the Moscow City Court quashed the judgment of 3 October 2002 and remitted the case to the first instance. 19. In the following months the case was adjourned several times. Thus, on 16 April 2003 the case was adjourned due to the defendant’s failure to appear. On 1 July 2003 the court adjourned the case, ordering the plaintiff (the applicant) to clarify his claims, in particular, to indicate the amounts of damages claimed from each defendant. On 4 August 2003 the case was adjourned because of the judge having been busy with another case. 20. In August 2003 the applicant complained about the length of proceedings to the Moscow City Court. In a reply letter of 30 September 2003 the Vice-President of the Moscow City Court acknowledged that since 1993 the dispute remained unresolved. The Vice-President reassured the applicant that the Moscow City Court would take charge of this case. 21. On 3 September 2003 the applicant requested the court to adjourn the next hearing because of his absence from Moscow at the relevant dates. On 29 September 2003 the case was adjourned until 31 October 2003. 22. On 31 October 2003 the first instance court dismissed the applicant’s complaints against the service centre and the producer factory. The court found that, although the name and address of the service centre had been indicated by the dealer company in the guarantee slip, there existed no contract imposing an obligation on the service centre to repair defective goods sold by the dealer company. As to the producer factory, based in Belarus, the court found that under the applicable Belarus law the producer could not have been held liable directly before the consumer of the goods. On 20 February 2004 the Moscow City Court upheld this decision. 23. Article 282 of the Code of Civil Procedure of 1964 (in force at the material time) provides that the first instance court decision on the merits of the case can be appealed against (обжалованы в кассационном порядке) by the parties or other participants of the proceedings. | 1 |
train | 001-104541 | ENG | BGR | CHAMBER | 2,011 | CASE OF BOZHKOV v. BULGARIA | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 6. The applicant, born in 1968, is a journalist by profession. At the relevant time he was employed by Sega, a national daily newspaper, working as a correspondent in his hometown of Burgas. 7. In the Bulgarian education system, after the seventh or eighth grade, when pupils complete their primary education, they can continue either in an ordinary or in a specialised secondary school. The ordinary secondary schools’ curriculum does not usually involve the intensive teaching of a special subject such as mathematics, foreign languages or engineering. Enrolment in them is on the basis of documents only and does not typically present a problem. The curriculum of the specialised secondary schools does include the teaching of such subjects, and pupils are admitted to them exclusively on the basis of competitive examinations, which take place in June (the school year in Bulgaria starts on 15 September). Under regulations issued by the Ministry of Education and Science, pupils with certain medical conditions can be admitted to specialised secondary schools without an examination, as an exceptional measure. 8. On 5 May 2000 the head of the Burgas education inspectorate, a territorial division of the Ministry of Education and Science, appointed a commission to select for admission to specialised secondary schools pupils with certain chronic medical conditions or special educational needs. The commission’s members were four employees of the inspectorate, Ms T.K., Ms A.M., Mr R.E. and Mr G.D., and a paediatrician, Dr N.P. 9. On 12 June 2000 fourteen parents of children who were sitting competitive examinations to gain admission to specialised secondary schools wrote a letter to the Ministry of Education and Science. They said that one hundred and fiftyseven children had been admitted to specialised secondary schools in Burgas on the basis of a medical condition and not following a competitive examination. Most of those were apparently the children of medical doctors, paramedical staff and teachers. The parents complained that whereas they were paying thousands of levs for private preparatory lessons, certain pupils had been bragging that they would be admitted to the English Secondary School in Burgas in exchange for paying 300 Bulgarian levs (BGN); indeed, only a month later this had become a fact. They cited several examples of perfectly healthy children who had been diagnosed as suffering from serious chronic illnesses. They said that they were not blaming the admissions commission, which had merely been taking note of the prior conclusions of medical doctors and allocating the pupils to schools depending on the nature of their purported health problems. They insisted that the Ministry should set up a special commission to investigate. A number of parents subsequently staged daily public protests in front of the building of the Burgas education inspectorate. 10. Following this complaint, on 7 July 2000 the Minister of Education and Science appointed three officials of the Ministry to inspect the work of the admissions commission. Having done so between 10 and 14 July 2000, the three officials produced a fivepage report on 18 July 2000. The report, which was not made public, found that the commission had committed a number of violations of the school admissions regulations, such as admitting pupils who did not have the requisite medical conditions, making findings on the basis of invalid medical documents and poorly documenting its activities. It also said that there were indications that Dr N.P. had been forging documents. The report’s proposals included “imposing disciplinary punishments on the commission’s members, commensurate with the violations found and in line with the Labour Code”. On 25 September 2000 the Minister imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. the disciplinary punishment of a “warning of dismissal”, citing a number of violations and omissions in the school admissions procedures. 11. Some time after that the Burgas regional prosecutor’s office opened an inquiry concerning Ms T.K., Ms A.M., Mr R.E. and Mr G.D. On 12 December 2002 it instituted a formal investigation against “the implicated officials of the education inspectorate” on suspicion of bribetaking. In the course of this investigation the authorities interviewed the four officials, some parents who had complained to the Ministry of Education and Science and parents alleged to have given bribes to have their children admitted to “specialised” schools. In 28 October 2003 the prosecutor’s office decided to discontinue the investigation without bringing charges. It said that while the officials had indeed breached their duty and had been given a disciplinary punishment as a result, there was no evidence that they had done so as a result of bribetaking. 12. The applicant learned about the story and decided to cover it in an article, which appeared on pages one and two of the 11 September 2000 issue of Sega under the headline “Bribes scandal in Burgas secondary schools”. It bore the subheadline “[The Ministry of Education and Science] sacks four experts for taking money from sick children” and the applicant’s byline, and read, in so far as relevant, as follows: “Four employees of the Burgas inspectorate will be punished because they took bribes in relation to the admission of sick children to elite secondary schools, Sega has learned. The Education Minister [D.D.] will decide their fate today. [Mr R.E.], [Mr G.D.], [Ms T.K.] and [Ms A.M.] were hired to compile a list of pupils with congenital or acquired diseases who will continue their education in elite secondary schools. An investigation by inspectors from Sofia which took place between 10 and 15 June found that the four officials, together with [Dr N.P.], placed 40 people in secondary schools and vocational secondary schools on the basis of forged medical certificates. Under [Ministry] regulations, children with more serious illnesses should be placed higher on the list. However, the inspection showed that these places had been taken by children in whose medical records non-existent complications had been deliberately inserted. The documents were provided by [Dr N.P.] and the commission did not check their accuracy. The affair was exposed after angry parents of children whose applications had been rejected sent a letter to the [Ministry of Education and Science]. The commission of representatives from the Education and Health ministries proposes that the four experts be sacked as a disciplinary measure and that [Dr N.P.] be banned from practising medicine. Those concerned have declined to comment to the media and [Dr N.P.] has been unavailable for two weeks.” 13. In an additional article published on 16 September 2000 under the headline “Blue MP promises to hush up false medical records scandal in Burgas”, the applicant again reported on the story, quoting comments made by Dr N.P. and mentioning that the Minister of Education and Science had been supposed to decide a few days earlier whether to impose disciplinary punishments on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. 14. On 7 December 2000 Ms T.K., Ms A.M., Mr R.E. and Mr G.D. lodged a criminal complaint against the applicant and Sega’s editorinchief with the Burgas District Court (Бургаски районен съд). They alleged that by respectively writing and publishing the 11 September 2000 article the applicant had disseminated, and the editor had allowed to be disseminated, injurious statements of fact about them and had imputed an offence to them. In their view, by so doing the applicant and the editor had committed libel, contrary to Articles 147 § 1 and 148 § 2 of the Criminal Code (see paragraphs 28 and 29 below). They sought compensation in the amount of BGN 30,000. 15. At some point during the proceedings the complainants dropped the charges against Sega’s editorinchief. 16. The Burgas District Court held hearings on 19 April and 18 May 2002. The judge examining the case was also in charge of another case which the four complainants had brought against another journalist in relation to an article covering the same events. After convicting the other journalist on 11 May 2002, the judge withdrew from the case, citing negative comments made by the applicant about her judgment in the other case. On 12 July 2002 all the judges of the Burgas District Court stated that they did not wish to take part in the examination of the case, citing public protests by journalists and the airing of allegations that they were all biased against the applicant. Accordingly, on 25 July 2002 the Supreme Court of Cassation ordered that the case be transferred to the Pomorie District Court (Поморийски районен съд). 17. The trial before the Pomorie District Court took place on 6 November and 18 December 2002 and on 29 January and 14 February 2003. The court heard evidence from the applicant, the complainants and a number of witnesses called by both parties, including the supervisor of the four complainants and the deputy regional governor of Burgas. 18. In a judgment of 14 February 2003 the Pomorie District Court found the applicant guilty of having, in the printed press, disseminated injurious statements of fact about Ms T.K., Ms A.M., Mr R.E. and Mr G.D., officials carrying out their duties, contrary to Article 148 §§ 1 (2) and (3) and 2 taken in conjunction with Article 147 § 1 of the Criminal Code. The court acquitted the applicant of the charges of having imputed offences to them and of having committed the offence in public, contrary to Article 148 §§ 1 (1) and 2 of the Code. It applied Article 78a of the Code (see paragraph 32 below) and replaced the applicant’s criminal liability with four administrative fines of BGN 500 each. The court further ordered the applicant to pay each of the complainants compensation for nonpecuniary damage amounting to BGN 100, plus interest from 11 September 2000 until settlement, and dismissed the remainder of their claims. Finally, it ordered the applicant to pay BGN 16 in court fees. The court described the facts set out above and continued as follows: “To gather the information necessary for his article, [the applicant] had conversations with parents protesting in front of the [Burgas education inspectorate]... From them he learned about the alert which had triggered the appointment of the [inspection commission]. He talked to the head of [the inspectorate], [Ms P.], and [other journalists] from Sofia (whose names he did not disclose), from whom he learned that the inspection had revealed a number of violations and that it was expected that there would be a proposal to the Minister to impose stiff disciplinary punishments on the complainants. [The applicant] asserts that he [also] talked to the deputy regional governor in charge of education, [Mr G.S.]. [However], at trial [Mr G.S.] testified that his conversation with the applicant had taken place after, not before, the article’s publication. Another witness, ... a colleague of the complainants, [testified that] the article’s publication had had a severe negative impact on [them], leaving them very depressed, worried and unable to do their work with their usual confidence. On the basis of these findings of fact the court makes the following findings of law: According to Article 147 § 1 of the [Criminal Code], the offence of defamation consists in disseminating injurious statements of fact about someone or imputing an offence to him or her. ... The complainants accuse [the applicant] of committing both forms of the offence – disseminating untrue injurious statements of fact and imputing an offence to them. The complainants and their counsel maintain that the imputed offence was the taking of bribes from children, [contrary to] Article 301 [of the Criminal Code]. Having read the article carefully, the court finds that [the applicant] did not impute an offence to the complainants. The article does not contain any allegation that the complainants took bribes. Its first part (including the headings) stated that the complainants would be punished with disciplinary dismissal for having taken bribes. [The applicant] did not comment on the appropriateness of the purportedly impending punishment, and in the second part of the article described in a relatively detailed manner what he considered to be the facts of the matter, which would form the grounds for the punishments. These facts did not include bribetaking. It is averred that the unlawful admission of pupils was made possible by Dr [N.P.]’s fabrication of false medical documents and that the complainants relied on these documents without checking their accuracy. Taken together these parts of the article lead to the conclusion that [the applicant] did not allege that the complainants had taken bribes. The court accordingly finds [him] not guilty of the charge of imputing an offence. It is therefore not necessary to discuss the evidence and the facts suggesting the commission of such an offence, or [the applicant’s] certainty ... that it had taken place. [The applicant] did, however, commit the other form of [defamation]. In his article [he] disseminated an injurious statement of fact, namely that the complainants would be punished with disciplinary dismissal for having taken bribes for having children admitted to elite secondary schools in Burgas. The injurious character of this statement is a metalegal characteristic. The law does not spell out the content of this notion. For this reason, whether or not a circumstance is injurious must be determined on the basis of [public opinion]. The dismissal of an individual from an official post for taking bribes is generally seen as a sign of that individual’s poor morals. The court accordingly accepts that the disseminated statement is injurious. According to Article 147 § 2 [of the Criminal Code], [those making allegedly defamatory assertions] are not to be punished if the assertions are found to be true. This means that defamation has been committed only if the injurious statements disseminated are untrue. In the instant case this is so. It has been established that the complainants were not dismissed but [only] warned that they could face dismissal and that this did not happen on 11 September 2000. It is, however, rather more important to point out that the grounds for the disciplinary punishments were not the taking of bribes but the violations described in the report of the inspecting commission and in the reasons for the orders imposing disciplinary punishments. The untrue injurious statement was disseminated through the publication of the article in Sega. It is well known and not disputed [by the parties] that this newspaper is circulated on the territory of [the entire country]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (2) and 2 [of the Criminal Code] is present. The untrue injurious statement disseminated was connected with the performance of the complainants’ duties. As members of the admissions commission for pupils with chronic medical conditions and special educational needs they were ‘public officials’ within the meaning [of the Criminal Code]. The court therefore accepts that the aggravating element of Article 148 §§ 1 (3) and 2 [of the Code] is [also] present. The untrue injurious statement was not disseminated in public. The fact that the offence was characterised [as having been committed through the printed press makes it impossible for it to have been committed in public]. An injurious statement is considered to have been disseminated in public if this was done in the presence of several persons, whereas the dissemination of information in the printed press ... involves no direct contact between the person imparting the information and those receiving it. The court therefore finds [the applicant] not guilty of [disseminating the injurious statement in public] contrary to Article 148 §§ 1 (1) and 2 in conjunction with Article 147 § 1 [of the Criminal Code]. The defence disputes the existence of mens rea. It asserts that [the applicant] was not aware that the statements he made were untrue. What is more, according to the defence [the applicant] believed that the complainants had been taking bribes in performing their duties as members of the commission. This belief was based on objective facts. These arguments are inapposite and should not be addressed by the court, as in the impugned article [the applicant] did not allege that the complainants had been taking bribes. Seen from this perspective, whether or not [the applicant] believed that bribes had been taken is irrelevant. What matters is whether [the applicant] was aware of the untruthfulness of [the assertion] that on the day of publication of the article the Minister of Education and Science ... would impose on the complainants the disciplinary punishment of ‘dismissal’ on the grounds that they had taken bribes from sick children. This is so because, [according to the Supreme Court of Cassation’s caselaw,] ‘when [a journalist] has properly verified the truthfulness of the information in line with established journalistic practice [and] the internal nonbinding rules of the relevant newspaper or publishing house’, by using the sources available in practice, [he or she can be said to have acted] in a professional manner and in good faith, which excludes criminal and civil liability for defamation ([citation]). It has not been established that [the applicant acted] in a professional manner and in good faith. None of the sources used by [him] provided information to that effect. The information which [he] received from the head of the inspectorate, [Ms P.], and [other journalists] from Sofia indicated that at the close of the inspection the commission appointed by the Minister was to propose that the complainants be subjected to stiff disciplinary punishments (on unspecified grounds). Before the publication of the article [the applicant] did not talk to the deputy regional governor, [Mr G.S.]. The conversations conducted with parents of children [not admitted] could not give [the applicant] reliable information either about the internal control measures envisaged by the Minister or about the grounds for taking them. At the time of publication there was not a single source indicating to [the applicant] that the complainants would be dismissed as a disciplinary measure or that the grounds given by the Minister for that would be bribetaking. The court therefore finds that [the applicant] realised the untruthfulness of the injurious statements he disseminated and that the offence was therefore intentional. [The offence of defamation] does not require the defamed persons to sustain damage. The antisocial consequences of such an act arise simply from the dissemination of the injurious statements. By publishing his article [the applicant] intended just that – to bring the untrue injurious statements to the knowledge of an unlimited number of people. The offence was committed with direct intent because [the applicant] was aware of the antisocial character of his act and wished its adverse consequences to occur... In sum, the court finds that [the applicant] has committed with respect to each of the complainants an offence under Article 148 §§ 1 (2) and (3) and 2 in conjunction with Article 147 § 1 [of the Criminal Code]. (The four offences were committed [in a single act].) The penalty for such an offence is a fine ranging from five to fifteen thousand levs and public reprimand. [The applicant] has not been convicted of a publicly prosecutable offence ... and the offences have not engendered pecuniary damage. [The case thus comes under] Article 78a [of the Code], and [the applicant]’s criminal liability should be replaced with an administrative fine of BGN 500 to BGN 1,000. To determine the amount of the fine, the court ... took into account the mitigating and aggravating circumstances. [The applicant] was not found to have committed other transgressions, i.e. he does not exhibit criminal tendencies and the level of risk he presents to society is low. Despite the existence of two additional qualifying elements (which is of itself an aggravating factor), the nonpecuniary damage sustained by the complainants as a result of the offence is negligible (see below for more on this point). [The applicant] denies any wrongdoing, which is his right, but at the same time has provided detailed explanations about the case and practical cooperation in ascertaining the truth. For these reasons, the court finds that there is a preponderance of mitigating circumstances, and fixes the punishment for each offence at the minimum amount, namely BGN 500. The complainants’ claims for damages are wellfounded, because in all cases the dissemination of untrue injurious statements tarnishes the good name of the persons associated with the alleged facts. Under sections 45 and 52 [of the 1951 Obligations and Contracts Act] the compensation [for nonpecuniary damage] must be determined by the court in equity. The court finds that the sum of BGN 5,000 claimed by each of [the complainants] would amount to just compensation for the nonpecuniary damage suffered by them as a result of the slur on their reputations. However, [the applicant] is not liable to pay the entirety of that sum. Apart from the untrue injurious statements, in his article [he] also reported true injurious facts, in respect of which he does not bear any criminal or civil liability. The article points out that the complainants committed violations which led to the unlawful admission of children to the abovementioned secondary schools. These facts were true. Their publication by [the applicant] was legal, because in publishing them he was exercising his constitutional right to seek and impart information, and helping other citizens to exercise their constitutional right to receive information (Article 41 § 1 ... of the Constitution). The evidence gathered in the case leads to the conclusion that the reputations of [the complainants] have suffered chiefly as a result of the true injurious facts reported by [the applicant]. [The relevant regulations] lay down a procedure whereby the State [in line with its constitutional obligations] encourages education, creating conditions for the vocational training of children with special needs or medical conditions. Since this activity is a constitutional obligation of the State, its performance in strict compliance with the relevant rules is of paramount importance. Seen from a different perspective, when the performance of this activity has been marred by a series of serious violations and this has led to the unlawful admission of pupils to the detriment of other pupils who have recognised medical conditions or needs, these violations inevitably lead to the loss of the good names of the officials concerned. For these reasons, the court finds that the reputations of [the complainants] suffered as a result of their own illicit behaviour. When imparting information about this [the applicant] went too far – alongside the true injurious statement he made an untrue statement about the impending punishments and the grounds for them. As a result, [the complainants’] reputations suffered additionally, but not materially, because even if [the applicant] had not said what punishments would be imposed by the Minister, [the complainants’] reputations would have been greatly impaired anyway. [The applicant] is liable only for the nonpecuniary damage arising out of the dissemination of the untrue injurious statements. In view of the foregoing, the court finds that the equitable amount of compensation is BGN 100 for each of [the complainants]. The remainder of the civil claims are groundless and are to be dismissed.” 19. In a decision of 13 March 2003 the Pomorie District Court ordered the applicant to pay the complainants’ costs, amounting to BGN 300. 20. Both the applicant and the complainants appealed. The applicant argued, among other things, that the institution of criminal proceedings against the complainants on charges of bribery meant that there were grounds to suspect that they had committed such offences and that he had been justified in mentioning that fact in the article. 21. The Burgas Regional Court (Бургаски окръжен съд) heard the appeal on 4 July 2003. 22. In a final judgment of 23 July 2003 it upheld the applicant’s conviction and sentence, but increased the award of damages, ordering the applicant to pay BGN 1,000 to each of the complainants. The Regional Court also upheld the lower court’s ancillary costs order. It held, in so far as relevant, as follows: “... Concerning the arguments ... that the [lower court’s] judgment is illfounded and in breach of substantive law: The appeal states that criminal proceedings were instituted against the complainants on charges of bribery in breach of Article 302 § 1 [of the Criminal Code], and that for this reason [the applicant] cannot be deemed to have intentionally made untrue and injurious assertions. It can however be seen from the reasoning of [the lower court] that [the applicant] was acquitted of the charge of imputing to the complainants the offence of bribery. The [lower court’s] reasoning on that point is fully shared by this court and, accordingly, the objections that the [lower court’s] judgment was unfounded or in breach of substantive law do not call for further discussion. The court finds that the punishments imposed on [the applicant] were properly fixed. [The lower court] correctly replaced [the applicant’s] criminal liability [under] Article 78a of [the Criminal Code] with fines in the minimum amount allowed by the law, namely BGN 500 for each of the offences, taking into account [the applicant’s] lack of a criminal record or other antisocial acts, [the] lower level of risk [he poses] to society, [and] his detailed explanations about the facts of the case. In its reasoning the court said that the nonpecuniary damage sustained by the complainants was not significant. That view cannot be shared by [this court]. Unlike pecuniary damage, the non-pecuniary damage caused through a criminal act should not be taken into account for the purpose of fixing the punishment. The nonpecuniary damage suffered by the victims of crime is strictly individual and should be taken into account solely for the purpose of fixing the amount of compensation, not the quantum and type of the punishment. Nevertheless, [this court] considers that the minimum penalties imposed on [the applicant] will [be sufficient to] further the aims of the punishment, as envisaged by [the Criminal Code]. The court therefore finds that this part of the [lower court’s judgment] should be upheld. As regards the civil claims for compensation for nonpecuniary damage: The court finds unfounded the complainants’ requests to increase the amount of compensation to BGN 5,000 for each of them. It is true that the complainants sustained non-pecuniary damage – a blemish on their reputations, concerned as they are about their professional standing and good names – as a result of the offences against them. [The lower court], however, correctly stated in its reasoning that [the applicant’s] article had reported injurious facts which were true, namely that the complainants had committed violations in their work, which led to the unlawful admission of children to secondary schools, and which were more significant than the fact that the complainants would be dismissed. For this reason, the court considers that [the lower court] was right not to allow the civil claims in full. However, in [this court’s] view, the awards [it] made are too small. The amount of BGN 100 for each of [the complainants] cannot make good their suffering resulting from the affront to their dignity. Regard being had to the way in which the offence was committed – circulation of the injurious assertions in a publication which is sold nationwide, thus bringing them to the attention of large number of people –, [as well as] the negative impact this had on the complainants’ mental state, health and capacity for work ..., this court finds that it would be just to award the complainants BGN 1,000 each. This part of [the lower court’s] judgment should therefore be modified, by increasing the amount which [the applicant] has to pay to the complainants to BGN 1,000 for each of them in respect of nonpecuniary damage. Concerning the costs of the proceedings: In a decision of 13 March 2003 [the lower court] ordered [the applicant] to pay the complainants the amount of BGN 300 for costs. [The applicant] was found not guilty of the charge of imputing an offence and of the charge under Article 148 §[§] 1 (1) [and 2] of [the Criminal Code]. Under [the relevant provisions of the Code of Criminal Procedure], he must accordingly bear the full cost related to the charges of which he was found guilty... However, in this court’s view, [the lower court] correctly ordered the applicant to pay the entirety of the costs in the case, because the complainants are also a private prosecuting party and it is the court’s practice in such cases to award the costs in full. ...” 23. In 2003 the authorities issued enforcement proceedings against the applicant to recover the fine. Those proceedings were closed on 2 April 2008 following the payment of the fine, plus interest, in its entirety. The total amount paid by the applicant was BGN 2,229.71. 24. In 2003 the four complainants also issued enforcement proceedings against the applicant to recover the damages and the costs awarded to them. The amounts due were paid by Sega between February 2004 and April 2005. The newspaper recovered the sums paid by deducting them from the applicant’s salary. The total amount paid in this way was BGN 7,621.04. 25. On 3 April 2001 a member of Parliament officially questioned the Minister of Education and Science about the affair. On 9 April 2001 the Minister replied, saying, inter alia, that the officials found guilty of committing violations of the admissions procedure had been disciplined and that the Ministry did not have competence to institute criminal proceedings, which was a matter for the prosecuting authorities. 26. On 3 July 2002 another journalist who had covered the story, Ms K. Kasabova, together with three officials of the Ministry of Education and Science, testified about the “sick children” affair before the National Assembly’s Standing Committee on Complaints and Petitions. At the end of the hearing the Committee unanimously resolved to send the material to the Burgas prosecuting authorities with a view to the possible initiation of criminal proceedings against Ms T.K., Ms A.M., Mr R.E. and Mr G.D., asking the Minister of Health whether the medical doctors responsible had been punished, and asking the Minister of Education and Science whether penalties had been imposed on Ms T.K., Ms A.M., Mr R.E. and Mr G.D. and whether the penalties had corresponded to the posts they occupied. 27. The relevant provisions of the 1991 Constitution read as follows: “The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference in their private or family life and against infringements of their honour, dignity and reputation.” “1. Everyone is entitled to express an opinion or to publicise it through words, whether written or oral, sounds or images, or in any other way. 2. This right shall not be exercised to the detriment of the rights and reputation of others, or for incitement to forcible change of the constitutionally established order, perpetration of a crime or enmity or violence against anyone.” “The press and the other mass media shall be free and not subject to censorship.” “1. Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals. 2. Citizens shall have the right to information from State bodies or agencies on any matter of legitimate interest to them, unless the information is a State secret or a secret protected by law or it affects the rights of others.” “Rights shall not be abused, nor shall they be exercised to the detriment of the rights or the legitimate interests of others.” 28. Article 147 of the 1968 Criminal Code, as in force since March 2000, provides as follows: “1. Any person who disseminates an injurious statement of fact about another or imputes an offence to him or her shall be punished for defamation by a fine ranging from three to seven thousand levs, as well as by public reprimand. 2. The perpetrator shall not be punished if he or she proves the truth of the said statement or imputation.” 29. If the defamation is committed through the printed press, or if the defamed parties are public officials carrying out their duties, it is punishable by a fine ranging from BGN 5,000 to BGN 15,000, as well as by public reprimand (Article 148 §§ 1 (2) and (3) and 2, as in force since March 2000). Since March 2000 all instances of defamation are privately prosecutable offences (Article 161, as in force since March 2000). In 1998 Article 148 survived a challenge of unconstitutionality, with the Constitutional Court ruling that increased penalties where the defamed parties were public officials did not disproportionately restrict freedom of expression (реш. № 20 от 14 юли 1998 г. по к. д. № 16 от 1998 г., обн., ДВ, бр. 83 от 21 юли 1998 г.). 30. The mens rea for the offence of defamation can only be direct intent or oblique intent (recklessness), not negligence (Article 11(4)). Mens rea, in the form of intent or negligence, is an essential element of any criminal offence (Article 9 § 1 and Article 11 §§ 1, 2 and 3). 31. In a judgment of 26 May 2000 (реш. № 111 от 26 май 2000 г. по н. д. № 23/2000 г., ВКС, II н. о.) the Supreme Court of Cassation held that provided that, prior to publication, journalists checked their information in line with the practice established in the profession or with the internal rules of the relevant medium, by using the sources available in practice, they could not be held to have acted wilfully or even negligently and were not guilty of defamation. It went on to say that, owing to the accessory nature of a civilparty claim, the general rule of tort law that fault was presumed was not applicable to the examination of tort claims in criminal defamation proceedings. In such proceedings, the rules governing fault as an element of the tort of defamation were those of the criminal law. The court also held that under Bulgarian law strict liability could not be applied in respect of defamation, and referred to the constitutional principle that public officials were subject to wider limits of acceptable criticism than private individuals. 32. Article 78a § 1, as in force at the relevant time, mandated the courts to replace convicted persons’ criminal liability with an administrative punishment – a fine ranging from 500 to 1,000 levs – if (i) the offence of which they had been convicted was punishable by up to two years’ imprisonment or a lesser penalty, in respect of an intentional offence, (ii) they had not previously been convicted of a publicly prosecutable offence and their criminal liability had not previously been replaced by an administrative punishment, and (iii) the pecuniary damage caused by the criminal act had been made good. The administrative fine could not be higher than the criminal fine envisaged for the offence (Article 78a § 5). Along with the fine the court could impose occupational disqualification of up to three years, if such a punishment was envisaged for the offence (Article 78a § 4). 33. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it called on the Member States to, inter alia, guarantee that there is no misuse of criminal prosecutions for defamation (point 17.2); remove from their defamation legislation any increased protection for public figures (point 17.6); ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves, in particular means based on establishing the truth of their assertions and on the general interest (point 17.7); set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk (point 17.8); and provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury (point 17.9). | 1 |
train | 001-88520 | ENG | UKR | ADMISSIBILITY | 2,008 | ZAKHAROV v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Mr Yevgeniy Yukhymovych Zakharov, is a Ukrainian national who was born in 1952 and lives in Kharkiv. He is a co-chairman of the Kharkiv Human Rights Group (a human rights NGO registered in Kharkiv), and an Editor-in-Chief of a “Human Rights Bulletin” (human rights magazine). On 31 August 2001 the applicant, in his capacity as the Editor-in-Chief of “Human Rights Bulletin”, the co-Chairman of the Kharkiv Human Rights Group and referring to Articles 34 and 35 of the Information Act, requested the Prosecutor General to provide this non-governmental organisation with statistical data as to a number of judges and/or law enforcement officers convicted of bribery, ill-treatment of private persons and defamation in 1998 – 2000 and the first semester of 2001. He further requested the Prosecutor General to confirm or to deny information disseminated in the 2000 US State Department Report on Ukraine. This report referred to statistical information disseminated by the Ministry of Justice of Ukraine in 1997. On 13 September 2001 the First Deputy Prosecutor General replied that such data was not available at the General Prosecutor’s Office (hereafterGPO) and recommended the applicant to request it from the Ministry of Justice that was dealing with the judicial statistics. On 4 December 2001 the applicant, again acting in his official capacity as the Editor-in-Chief and the co-chairman of the Human Rights Group, requested the Prosecutor General to ensure that the regional prosecutor’s offices provided responses to similar to the above requests that were sent to these offices. In particular, he mentioned that the Volyn, Zakarpattia, Mykolayiv, Poltava, Rivne and Chernigiv regional prosecutor’s offices had replied to his requests. However, others did not reply or refused to provide such information. On 24 December 2001 the First Deputy Prosecutor General informed the applicant, as Editor-in-Chief of the “Human Rights Bulletin”, that such statistical data was given not only by the regional prosecutor’s offices, but by the Ministry of the Interior and the Ministry of Justice, which transfer it to the State Committee on Statistics. He recommended the applicant to request this information from that committee on the grounds specified in the Statistics Act (Articles 8 and 9), which presumed that the applicant’s organisation had to pay for this information, on the basis of the tariffs approved by the Cabinet of Ministers. On 14 January 2002 the applicant, acting in his official capacity, requested the State Statistics Committee to provide him with information of interest to the “Human Rights Bulletin”. In reply, on 18 January 2002 the Deputy Head of the State Statistics Committee stated that such information, which was provided to the Committee by the law enforcement authorities, was not processed and regrouped in accordance with the previous employment of a convicted person at a law enforcement authority or prosecution service. As to the number of sentenced persons, the Deputy Head mentioned that this information was exclusively available from the Ministry of Justice. On 24 January 2002 the applicant, acting as a representative of the “Human Rights Bulletin” and a co-chairman of the Kharkiv Human Rights Group, again requested the Prosecutor General to provide their mass media source with information he initially requested on 31 August 2001. He referred to Article 40 of the Constitution and Article 21 of the Information Act. He maintained that this information should be available from the General Prosecutor’s Office as its function, under Article 121 of the Constitution, was to supervise lawfulness of functioning of the inquiry and pre-trial investigation bodies. On 8 February 2002 the First Deputy Prosecutor General refused to provide information requested by the applicant as it was not available from the prosecution bodies, but could be requested from the State Statistics Committee, under Articles 8 and 9 of the State Statistics Act. He also stated that therefore there were no grounds for instituting disciplinary proceedings against the officials of the regional prosecutor’s offices who refused to provide this information. On 15 January and 9 February 2004, the applicant received information from four regional prosecutor’s offices, which were unable to satisfy the applicant’s information requests in full (because the information was unavailable, or not accessible as requested, or because the regional prosecutor’s offices were not responsible for such matters). Only the Rivne Regional Prosecutor’s Office previously informed the applicant, on 25 October 2001, about measures taken by them with regard to the investigation and prosecution of the crimes referred to in the request. On 27 March 2002 the applicant, as a private person, represented by an advocate and acting under Articles 248-1 and 248-3 of the Code of Civil Procedure, lodged an administrative complaint with the Pechersky District Court of Kyiv seeking to declare the failure of the GPO to provide him with information on convictions (mentioned above) unlawful. He also sought court orders compelling the GPO to provide him with this information on his request. He maintained that his right to receive information from the GPO had been violated. On 4 April 2002 the Pechersky Court refused to examine the applicant’s claim as it was not substantiated by relevant evidence (Article 137 of the Code of Civil Procedure). Furthermore, the applicant was asked to provide relevant legal substantiation for his administrative action. In particular, the court asked the applicant to state how his rights and freedoms had been infringed by the refusal of the GPO to reply to information request. The applicant was allowed time to rectify these shortcomings and re-lodged his administrative complaint with the assistance of his legal representative. However, on 19 April 2002 the Pechersky Court rejected his complaint as it found inter alia that the applicant failed to establish a link between infringement of his rights and the refusal of the prosecution authorities to provide information to the human rights magazine. The applicant appealed to the Kyiv City Court of Appeal, which on 27 June 2002 rejected the appeal as unsubstantiated. In particular, the Court of Appeal held that the applicant should indicate specifically, in his complaints, which public official or administrative body had infringed his personal rights. He had also failed to mention which of his rights and freedoms were violated. The court also referred to the judicial practice recommendation contained in the Resolution no. 13 of the Plenary Supreme Court of 3 December 1997 (sees domestic law and practice below). The applicant appealed in cassation, but on 11 October 2002 the Pechersky Court refused the applicant leave to appeal in cassation as the cassation appeal did not comply with the requirements envisaged by Articles 322 and 323 of the Code of Civil Procedure. The applicant was invited to rectify these shortcomings. He lodged his appeal in cassation anew and on 23 October 2002 the Pechersky Court refused leave to appeal in cassation as the applicant again failed to comply with the court’s previous ruling. The applicant lodged a cassation appeal for the third time and on 23 March 2003 the Pechersky Court rejected it for failure to comply with the requirements of the law. The cassation appeal was re-lodged, examined and rejected by the Supreme Court on 12 March 2004. In particular, the Supreme Court found no infringements of the domestic substantive and procedural law, which would allow it to institute cassation proceedings in the case. “Human and citizens’ rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...” “...The jurisdiction of the courts extends to all legal relations that arise within the State. ... Pursuant to Article 137 of the Code of Civil Procedure, any claim lodged with the court should be lodged in writing and should contain inter alia the exact name of the claimant and the respondent, merits of the claim, the circumstances underlying and proving the claim, evidence that supports the claim. Article 139 of the Code provided that the judge should grant a time-limit to rectify any shortcomings in a claim. In accordance with Article 248-1 of the Code citizens had a right to apply to a court with a complaint, if he/she considered that a State body, legal person or official had infringed by its decision, act or omission his/her rights or freedoms. Complaints could be made against executive bodies and their officials, who exercise organisational and managerial functions, administrative and commercial functions and functions specially accorded to them by law. Under Article 248-3 of the Code the courts’ jurisdiction does not extend to the acts or omissions of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints has been established. In accordance with Article 322 of the Code, a cassation appeal should contain inter alia the reference to the judicial decision or ruling that is being appealed against and the limits for an appeal in cassation, substantiation of the appeal in cassation, including the name of the law that was allegedly violated by an unlawful judgment or ruling and the references to incorrect application of that law or its infringement, the purpose of the appeal in cassation. Under Article 323 of the Code, an appeal in cassation should be lodged with the first instance court, where the case-file shall be archived. Rules of Article 139 applied to appeals in cassation that failed to meet the requirements of Article 322 of this Code. In accordance with Articles 34 and 35 of the Information Act, persons (this list includes private persons, legal entities and State bodies, as provided by the Article 9 of the Act) who were refused access to official documents should receive a written reply formulating reasons for such a refusal or explaining delaying in providing requested information. They should be allowed to appeal against this reply to a higher administrative authority or to a court. The court, to enable it to rule on the request, should be allowed to request additional documents from the parties. Articles 48 and 49 of the Information Act establish a right to complain about unlawful acts or omissions of the State bodies to the higher administrative authorities and then to a court. This includes requests for compensation. Articles 8 and 9 of the State Statistics Act provide that State bodies responsible for storage and updating of the statistical date should be allowed to provide paid services on the basis of the Regulation on the conduct statistical research and services provided by the bodies of State statistics approved by the Cabinet of Ministers. In its decision of 23 May 2001 concerning the constitutionality of Article 248-3 §§ 3, 4 and 5 of the Code of Civil Procedure the Constitutional Court decided: “To declare Article 248-3 § 4 of the Code of Civil Procedure as not in compliance with the Constitution of Ukraine (unconstitutional), concerning the lack of jurisdiction of the courts as regards – ... the actions or acts of an official of a body of inquiry, preliminary investigation, prosecution or court with regard to which a non-judicial procedure for considering complaints has been established...” In accordance with paragraph 4 of the Resolution, only private persons, who consider that their own rights and freedoms were infringed, should have the right to lodged complaints with the courts based on Article 55 of the Constitution and Article 248-1 of the Code of Civil Procedure. Under paragraph 10 of the Resolution complaints against acts or omissions of the entities against which they are directed should be lodged with the courts at the place of these entities registration. They should correspond to the requirements of Articles 137 and 138 of the Code of Civil Procedure. Taking into account specific issues arising out of examination of these cases, provided by the Articles 248-1 – 248-4, the claimants should indicate which particular decisions, acts or omissions he/she wishes to complain about and which specific rights and freedoms had been violated. These complaints should be legally substantiated and proposals for restoring allegedly the infringed rights should be given. It should be also indicated whether a similar complaint had been lodged with the hierarchically superior administrative body or a public official and what kind of response had been received. The courts should apply rules of Article 139 of the Code of Civil Procedure to the complaints not corresponding to these criteria. | 0 |
train | 001-102282 | ENG | RUS | CHAMBER | 2,010 | CASE OF TREPASHKIN v. RUSSIA (NO. 2) | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-b - Adequate time;Preparation of defence;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant is a former officer of the Federal Security Service of the Russian Federation (FSB). In 1998 he participated in a much publicised press conference together with three other FSB officers. Some time after the press conference the applicant remained in the country but was dismissed from the FSB. From 1998 to 2002 he served in the tax police and he later became a practising lawyer and a member of the bar association. 8. On an unspecified date the Chief Military Prosecutor's Office initiated an inquiry relating to the period of the applicant's service in the FSB. The inquiry concerned the alleged disclosure of certain classified material by the applicant. 9. On 22 January 2002 the prosecution carried out a search of the applicant's home and discovered certain documents allegedly containing classified information. Assorted cartridges for various types of weapons were also found in a cardboard box on a shelf above the applicant's writing table. The applicant alleged that the cartridges did not belong to him and had been planted by an FSB agent, posing as a plumber, shortly before the search. 10. During the search the prosecution also seized a video recording made by the applicant on 3 May 1999 in a forest near Bryansk. It showed the applicant and his friend Mr S. shooting for fun from the applicant's service weapon. The applicant explained that for the shooting he had used a gun cartridge he had received from Mr S. 11. On 28 January 2002 the prosecution charged the applicant with disclosure of State secrets and abuse of his official powers (“criminal case no. 1”) and unlawful possession of firearms (the ammunition found in his flat and the gun cartridge he had used to shoot in the forest). 12. From 24 March 2003 the applicant was under an obligation not to leave Moscow without authorisation from an investigator, a prosecutor or the court. On 18 April 2003 the investigation was completed and the prosecution handed the case file to the applicant and his lawyers for examination. The defence had the file at their disposal until 21 June 2003. On 24 June 2003 the case file was sent to the court. The date of the first hearing was set. 13. Pending the investigation in case no. 1, the applicant continued his professional activities as a lawyer. On the evening of 22 October 2003 his car was stopped by traffic police. The car was searched and a handgun was discovered on the back seat of the applicant's car. On 24 October the Dmitrov Town Court remanded the applicant in custody on the ground that he was suspected of committing a criminal offence punishable under Article 222 of the Criminal Code (unlawful possession of firearms and ammunition). The detention order was confirmed on 5 November 2003 by the Dmitrov Town Court, and, on 13 November 2003, by the Moscow Regional Court. The applicant was eventually acquitted of the charges against him in criminal case no. 2 (for more details see Trepashkin v. Russia (no. 1), no. 36898/03, 19 July 2007). 14. In November 2003 the file in criminal case no. 1 and the bill of indictment were forwarded to the Military Court of the Moscow Circuit. The Military Court, referring to certain classified information contained in the file, decided to examine case no. 1 in camera. 15. On 1 December 2003 the Military Court of the Moscow Circuit held a preparatory hearing in the applicant's case no. 1. The judge heard evidence from the parties and made certain procedural arrangements for the forthcoming trial. Most of the applications lodged by the defence were rejected; however, the applicant was granted additional time to examine the case file. Given that the file contained classified information, the applicant could have access to it only on the court's premises. 16. In the same ruling the judge ordered that the applicant be kept in custody. The judge observed that on 22 October 2003 the applicant had been arrested by the police on suspicion of committing another crime. The applicant had thus breached his undertaking not to leave his permanent place of residence. The judge also stated that the evidence in the case file included an invitation to visit the United Kingdom, which, in the court's view, indicated that the applicant intended to leave Russia. 17. On 3 December 2003 the applicant lodged an appeal against the detention order. He argued that the criminal cases against him had been fabricated by the authorities, and that there had been no evidence that he would flee or tamper with evidence or commit crimes. In addition, the applicant complained that the prosecution and the court had violated various provisions of domestic criminal procedural law in ordering his arrest. 18. On 19 December 2003 the judge of the Dmitrov Town Court decided not to extend the applicant's detention for the purposes of the proceedings in case no. 2. However, the applicant remained in the remand prison on the basis of the detention order of 1 December 2003, issued by the Military Court of the Moscow Circuit. 19. On an unspecified date in December the applicant requested the Military Court of the Moscow Circuit to release him. On 22 December 2003 the Military Court confirmed that the grounds for his detention, as set out in its earlier decision of 1 December 2003, were still valid. 20. On 10 February 2004 the Supreme Court examined an appeal by the applicant and dismissed it. The hearing took place in the absence of the applicant. The appellate court acknowledged that there had been minor irregularities in the detention order of 1 December 2003. Nevertheless, they were not such as to require the applicant's release. As to the substance of the case, the court upheld the reasoning of the first-instance court. 21. According to the Government, the first grounds of appeal lodged by the applicant (on 3 December 2003) were addressed to the Supreme Court of the Russian Federation. On 4 December 2003 the grounds of appeal were dispatched by the prison administration to the Supreme Court. On 19 December 2003 the applicant filed supplementary grounds of appeal. They were also addressed to the Supreme Court of the Russian Federation. From the Supreme Court those grounds were transmitted to the Military Court of the Moscow Circuit. 22. Furthermore, on 10 and 16 December 2003 the applicant's lawyers (Ms Yulina and Mr Glushenkov) filed their own grounds of appeal against the detention order of 1 December 2003. Those grounds were addressed to the Military Court of the Moscow District. They were sent to the prosecutor's office for comment. On 23 December 2003 the Military Court of the Moscow District obtained written submissions from the prosecutor's office in reply to the grounds of appeal filed by the applicant's lawyers. 23. On 23 December 2003 and 6 January 2004 the applicant's original and supplementary grounds of appeal were received by the Military Court of the Moscow Circuit. The Military Court sent them to the prosecutor's office for comments. On 12 and 15 January 2004 the prosecutor's office replied in writing to the grounds of appeal. On the next day the complete case file was dispatched to the Supreme Court of the Russian Federation. 24. On 19 January 2004 the appeal against the detention order of 1 December 2003 arrived at the Supreme Court of the Russian Federation. The hearing took place on 10 February 2004. The applicant was able to participate in the hearing via video link. The applicant's two lawyers (Mr Glushenkov and Mr Gorokhov) were present and made submissions. As indicated above (see paragraph 20) the Supreme Court dismissed the applicant's appeal and considered that the applicant should remain detained on remand for the period of the trial. 25. The applicant alleged that conditions in the meeting room where he had been allowed to talk to his lawyers and work on the case had been inappropriate. He explained that the room where the detainees met their lawyers was partitioned into six small booths for two people, with detainees being separated from their lawyers by a grille. This made it impossible to study documents, and detainees had to speak quite loudly to be heard. As a result, other detainees, and the warder walking along the line of booths, could hear conversations between the applicant and his lawyer. It was impossible to pass any document through the grille, even newspapers with the texts of newly enacted legislation. The applicant was unable to meet both of his lawyers at the same time, since the booth had room for only two persons. 26. On 18 March 2004 the applicant wrote a letter to the Director of the Execution Department of the Ministry of the Interior. In this letter the applicant submitted that he was unable to meet his lawyer out of the hearing of the prison warders and other detainees. 27. On the days when the applicant was transported to the courthouse to study the case file, he was so cold and exhausted that, when brought into the court building, he was unable to read the material in the file or prepare his defence: his only concern was to get warm. Moreover, in the courthouse he was kept handcuffed to a table leg or a chair, so that it was very difficult for him to read the case file or take notes. This position also caused severe pain in his back. 28. During the trial the applicant asked the court to lessen the frequency of the hearings, which were held almost every day. However, his request was refused. In such conditions, and having regard to the poor conditions of his detention and his transfers to the court building, he was unable to prepare properly for the hearings. The applicant claimed that the case file contained objections lodged by him to that end. 29. The Government described the meeting rooms as follows. In remand prison no. IZ-77/1 there had been fifty rooms “for investigative activities”. The average size of the room had been 15 square metres. According to the Government, while in remand prison no. IZ 77/1 the applicant had met his lawyers ninety-six times. His defence team had included seven persons. The meetings had lasted about two hours on average. The applicant and his lawyers had been able to exchange documents and handwritten notes during those meetings. Each room had been equipped with a table, three chairs, a coat-hanger, an alarm button and a peephole. The meeting rooms had never been shared by several prisoners at once. There had been no glass partition or grille in the meeting rooms separating the defendant from his lawyers. The Government produced photos of a meeting room which corresponded to that description. During meetings between a detainee and his lawyers, the prison staff had been unable to hear them, but they had been able to observe the room through a peephole. 30. The Government denied that the applicant had been handcuffed in the court building while he studied the case file. In the courtroom during the hearings the applicant had been sitting one metre away from his lawyers, so it had been possible for them to talk in private. The trial had started on 15 December 2003. On 18 December 2003 the court had allowed the applicant to consult his lawyer in private before the start of each hearing, as well as during the breaks, in a special meeting room. The Government, referring to the verbatim record of the hearings, maintained that during the trial the applicant had had forty-six meetings with his lawyers in the meeting room in the court building. On 15 January 2004 the applicant had requested the court to allow him to have those meetings directly in the courtroom. That request had been granted by the court. On 5 March 2004 the applicant had asked the court to give him extra time to talk to his lawyers during the hearings. On 11 March 2004 the presiding judge had ruled that the applicant should be allowed to talk to his lawyers during the breaks. 31. The trial in case no. 1 was held behind closed doors. The applicant was represented by three lawyers: Mr Glushenkov, Mr Gorokhov and Ms Yulina. 32. The defence maintained that the cartridges had been planted by FSB agents. Since the much publicised press conference in 1998, FSB senior officials had wanted to settle old scores with him. The applicant asked the court to admit the videotape of the press conference in evidence. 33. The applicant further supposed that the gun cartridges found in his flat could have been planted by FSB agents who had visited him shortly before the search, disguised as plumbers. The defence asked the court to summon these “plumbers”. 34. As to the allegedly “classified” documents discovered by the prosecution among his papers, the applicant did not deny that he had kept them. However, these files related to the period of his service in the KGB (the predecessor of the FSB) from 1984 to 1987. In his submissions, the documents were not secret. 35. The court examined Mr Sh., who had allegedly received the classified information from the applicant. The court also examined documents and other evidence discovered in the applicant's flat during the search of 22 January 2002, documents relating to the period of his service in the KGB, and the reports on the expert examination of the documents allegedly disclosed by the applicant, which concluded that these documents contained secret information. The court also called and questioned one of the participants in the 1998 press conference, Mr G., who denied the existence of any plan to eliminate the applicant. The court also examined the video record of the 1998 press conference. 36. The court further examined the record of the seizure of 22 January 2002, during which the police had discovered cartridges in the applicant's flat. The court also examined several witnesses who had visited the applicant's flat before the search. All of them denied having seen the ammunition in the applicant's flat, but they had not looked in the cardboard box where the cartridges had been discovered. The court called and questioned three persons working in the housing maintenance service. They confirmed that on several occasions between 2000 and 2002, plumbers on duty had visited the applicant's flat. 37. The court also examined several relatives of Mr S. They testified about the events of 3 May 1999, when the applicant and Mr S. had gone shooting for fun in a forest near Bryansk. The court also examined the video which showed Mr S. firing a shot with the applicant's gun. 38. On 19 May 2004 the Military Court of the Moscow Circuit gave judgment in criminal case no. 1. The applicant was found guilty on two charges and was sentenced to four years' imprisonment, to be served in a “colony-settlement”. 39. First, the court convicted the applicant of unlawful possession of the assorted gun cartridges found in his flat during the search (Article 222 of the Criminal Code). Further, the court referred to a videotape seized by the prosecution from the applicant's flat. The recording was made by the applicant on 3 May 1999 in a forest near Bryansk; it showed the applicant and his friend Mr S. shooting for fun from the applicant's service weapon. The court established that the cartridge used by Mr S. to shoot had been unlawfully acquired by the applicant from him. 40. Second, the applicant was convicted of disclosure of State secrets. The court established that in the 1980s the applicant had served in the Soviet secret service, and had had access to certain classified documents. He had kept at his home a number of case files containing information about KGB informers. In July and August 2001 the applicant had shown these documents to his former colleague. Further, in February 2002 the applicant had handed the same person (his former colleague) four files containing information about the FSB's investigative activities in the mid-1990s. At the relevant time the applicant's former colleague had not been serving in the FSB; therefore, he had not had the necessary security clearance to have access to such documents. The court qualified the documents shown and given to the former colleague as “secret”. Thus, the applicant's acts amounted to the “disclosure of State secrets”. 41. The defence appealed. They alleged, in particular, that they had been placed in a disadvantageous position vis-à-vis the prosecution, and that the applicant had not had enough time and facilities to prepare his defence. 42. On 13 September 2004 the Military Division of the Supreme Court of the Russian Federation upheld the judgment of 19 May 2004. The Supreme Court did not find any major irregularity in the investigative proceedings and rejected the argument that the defence had not had sufficient time and facilities during the trial. The Supreme Court noted that the pace of the trial (seven to ten court hearings per month, each lasting about three to five hours) had been adequate and had not precluded the applicant from meeting his lawyers and preparing his defence. The Supreme Court noted that the applicant had not complained of any breaches of confidentiality during the meetings with his lawyers. 43. On 1 December 2003 the applicant was placed in remand prison no. IZ-77/1 in Moscow following the decision of the Military Court of the Moscow Circuit in connection with criminal case no. 1. 44. The applicant arrived at remand prison no. IZ-77/1 very late and spent the night in a cell measuring 1.5 by 1.8 square metres, which had no windows or ventilation, was filthy and smoky and was full of lice. Only on the morning of 2 December 2003 did he receive dried cereal. 45. From 2 December 2003 the applicant was detained in cell no. 274 of remand prison no. IZ-77/1. According to the applicant, the cell was unventilated, although most of his cellmates were heavy smokers. Moreover, some of the other detainees were convicted criminals. The cell was also overcrowded: there were fourteen detainees for eight sleeping places. As a result, the detainees had to sleep in turns. The applicant was unable to sleep more than two hours a day, and the rest of the time he had to stand, because all the beds were occupied by his sleeping cellmates, and there were no seats in the cell. The applicant shared his sleeping place with four other detainees, including one suffering from psoriasis; consequently, their shared sleeping place was constantly covered with this individual's scabs. The cell was not equipped with radio and the administration provided no newspapers. Although prison regulations provided for a shower once a week, the applicant was unable to wash himself for almost four weeks, despite his numerous complaints about that fact. 46. The applicant produced a written statement signed by Mr N., his cellmate in remand prison no. IZ-77/1, in which the latter confirmed that the applicant had had no individual sleeping place in the cell. Mr N. also testified that the applicant had often had no possibility of sleeping before going to the court in the mornings, and had not received adequate medical treatment. Depositions to the same effect were signed by the applicant's cellmates Mr Y., Mr Pt. and Mr Gb. 47. The applicant was detained in that cell until 30 December 2003. 48. The Government maintained that between December 2003 and October 2004 the overall number of prisoners in remand prison no. IZ 77/1 had varied from 2,461 (October 2004) to 3,654 (in February 2004), with an average of 3,162. The overall number of sleeping places in remand prison no. IZ 77/1 was 2,686. Only on one occasion (in February 2004) had the number of sleeping places exceeded the number of inmates. 49. The Government further maintained that the applicant's description of conditions in cell no. 274 was inaccurate. They contended that the cell had a combined supply-and-exhaust ventilation system. The toilet and the water tap were separated from the residential area; the cell had a table, several benches, cupboards for the detainees' personal belongings, a wall cupboard for food, a mirror, a television set, a refrigerator and cold and hot water. The cell had a surface area of 12.27 square metres, had eight sleeping places and housed eleven detainees, including the applicant. 50. On 24 December 2003 the applicant was summoned by the deputy chief administrator of the remand prison. The latter enquired about the applicant's complaints to the European Court of Human Rights concerning the conditions of his detention and threatened him with various disciplinary measures, in particular, placement in a strict isolation cell. The applicant immediately informed his lawyer of the conversation. 51. On 30 December 2003 the applicant signed a declaration in which he stated that he had no complaints about the conditions of detention. He was then transferred to cell no. 605 in building no. 6 of the remand prison. The conditions in that cell were better than in his previous one. It contained only five people and a hot shower was available twice a week for the detainees in that cell. However, the room was not ventilated and the other detainees smoked constantly. Moreover, the unit had no appropriate courtyard for outdoor exercise. Instead, the detainees were taken to a dusty and covered cubicle, made out of concrete, measuring 3.5 by 4.5 metres, under a roof. Walking in this room in clouds of concrete dust aggravated the applicant's asthma and various other health problems. 52. The applicant's lawyers complained to the prison authorities. As a result the applicant was examined by a general practitioner; the doctor diagnosed asthma and cardiological problems and prescribed glasses. At the same time, the doctor concluded that the applicant's state of health had not deteriorated during his detention in the remand prison. 53. On 5 January 2004 the applicant withdrew the declaration made on 30 December 2003. He explained to his lawyer that he had been given an opportunity to sign the declaration in return for his transfer to a cell where he would have an individual sleeping place and access to a hot shower. 54. On an unspecified date the applicant's counsel wrote to the Ministry of Justice complaining about the conditions of her client's detention. 55. In its reply of 29 January 2004 the Ministry confirmed that, on arrival at remand prison no. IZ 77/1, the applicant had been placed in a cubicle because no appropriate cells had been available. He had spent no more than two hours there. From 1 a.m. to 9 a.m. he had undergone, among other things, a medical examination, fingerprinting, photographing and a personal search. At 9 a.m. he had received a “bag meal” and had been conveyed to the court. On his return to the remand prison the applicant had been placed in a cell for eight people, although at that time twelve people had been detained there. 56. The Ministry explained that at the relevant time the population of the remand prison had exceeded its planned maximum capacity by 75%. The cell was not equipped with seats because it was too small. 57. As to the timing of the applicant's transfers to the court, detainees were usually woken up at 5.30 a.m. and were taken out of their cells at 6 a.m. Every day about 150 to 200 persons were conveyed from the remand prison to the courts. Convoy officers were always informed about detainees' illnesses or other special conditions. 58. According to the Ministry, time for visits by relatives was limited to forty minutes because of the lack of appropriate meeting rooms; as regards meetings with defence counsel, the applicant had experienced no restrictions in this respect. Thus, in December 2003 the applicant had had four meetings with his lawyers (on 3, 16, 15 and 20 December 2003) which had lasted nine hours on aggregate. The applicant had been unable to take a shower for four weeks because the “sanitary treatment” (washing) of detainees had taken place on the dates when the applicant had been in court. 59. On 19 May 2004 the Ministry of the Interior informed the applicant that his complaints about the delays in transporting detainees to and from the court had proved to be accurate, at least in part. The applicant was assured that the necessary measures would be taken to improve the situation in future. 60. On 22 June 2004 the applicant complained to the prison administration about the conditions in the room for physical exercise (or rather, the “walking room”). On 1 October 2004 he repeated his complaints, stressing that he suffered from asthma of allergic origin and could not breathe normally in the walking room, because of the clouds of concrete dust and the lack of fresh air arriving from outside. He also complained that patients from the prison hospital who suffered from infectious diseases, such as hepatitis, aseptic meningitis, dysentery, syphilis and Aids, were taken to the same room for exercise. They often had diarrhoea and vomited in this very room, but nobody cleaned up after them. In the letters he listed a total of seven cellmates who were willing to confirm the accuracy of his account. He did not receive a reply to his letters. 61. The Government maintained that on 30 December 2003 the conditions of the applicant's detention had improved after he had been transferred to cell no. 605. On 13 May 2004 the applicant had been transferred to cell no. 603. Those cells had recently been renovated; his transfer was justified by the fact that he was a former law-enforcement official and suffered from chronic diseases. The surface area of the cells was 18.13 square metres each; they had five sleeping places for four inmates. According to the documents submitted by the Government, in remand prison no. IZ-77/1 it was impossible to detain smoking prisoners separately from non-smokers. There was one window in the cell measuring 70 cm by 150 cm, which had a ventilation pane that could be opened from inside the cell. Both cells (nos. 605 and 603) had shower cubicles. The Government further maintained that at least once a week the detainees were given an opportunity to take a fifteen-minute shower. 62. Every day the detainees were taken out for a one-hour walk in a walking yard, normally during the daytime. Wing no. 2 of the remand prison had fifteen walking yards, measuring 426 square metres on aggregate, each ranging from 15.44 square metres to 39.91 square metres. The height of the walls of the walking yards was 2.8 metres. 63. Wing no. 6 of the remand prison had twelve walking yards, measuring 17.28 square metres each and 207.3 square metres on aggregate, with the walls 3 metres high. 64. The Government explained that the inmates detained together in the same cell were taken for a walk to the corresponding walking yard. All walking yards had benches and rain shelters. The top of the walking yards was covered by a metallic grille. Further, the Decree of the Ministry of Justice of 9 October 2003 (no. 254) provided that each detainee should have 2.5 to 3 metres of personal space in a walking yard. The Government produced photocopied photographs of some of the walking yards. 65. The Government produced a letter, signed by the head of the prison administration, dated 26 February 2009, which stated that on the days of the hearings the applicant had been entitled to a daily walk in accordance with the applicable rules during the daytime. 66. The Government further enumerated the measures taken by the authorities to improve conditions of detention in Russian remand prisons. They described the conditions in the meeting rooms, where detainees could study the case files, communicate with their lawyers, and so on. Each detainee was entitled to a private visit of at least forty minutes every day. 67. On 6 September 2004 the judge of the Dmitrov Town Court of Moscow Region ordered the applicant's transfer from the remand prison in Moscow to a remand prison in Volokolamsk (no. IZ 50/2), in order to secure his appearance at the trial before the Dmitrov Town Court in connection with case no. 2. The applicant appealed against that decision, but to no avail: on 7 December 2004 it was upheld by the Moscow Regional Court. 68. On 8 October 2004 the applicant was transferred to remand prison no. IZ 50/2 in Volokolamsk. He was examined by a commission of doctors, who concluded that he was suffering from bronchial asthma and chronic bronchitis. 69. The applicant submitted that he had first been placed in cell no. 66, measuring 15 square metres, with eight other people; some of them were heavy smokers. He had no individual sleeping place, the table was very small and inmates received no toilet paper. The drinking water tank was broken. On 12 October 2004 the applicant complained about the conditions of his detention to the administration of the remand prison. As a result, he was transferred to cell no. 123, where the conditions of detention were somewhat better. 70. Over the following months the applicant was detained in a number of other cells, which were always overcrowded and infested with lice and bugs. In December 2004 he was detained in a cell measuring 12 square metres with seven other detainees. His daily physical activity was limited to a walk of less than one hour in the prison courtyard, under the supervision of guards with Rottweiler dogs. 71. The applicant produced written statements by his cellmates, who submitted that he had been detained in cells nos. 66, 101 and 123 in the Volokolamsk remand prison in November 2003 (shortly after his arrest), and from 8 October 2004 until 27 October 2004 (after his definite transfer from the Moscow remand prison IZ 77/1). All of them confirmed that the cells were infested with lice and bugs and that the prison administration had done nothing to get rid of them. They also stated that the cell had been overcrowded: thus, in cell no. 66 the applicant had not had an individual sleeping place and there had been only three or four seats for nine or eleven inmates. Though the applicant was sick, he had not received the necessary medicines and had not been examined by a doctor. Their account was confirmed by four other inmates who had been detained with the applicant at the relevant time. 72. On several occasions, between November 2004 and 29 April 2005, the applicant was transferred to the Dmitrov Town detention centre in order to participate in the hearings in the Dmitrov Town Court. The conditions of detention in the Dmitrov detention centre were even worse than in the Volokolamsk remand prison. Thus, there was no opportunity for any physical exercise, the cells were always overcrowded and badly ventilated, there were no washtubs or seats and the lighting was poor. On each occasion when the applicant was transferred from the remand prison to the detention centre, he had to carry all his personal belongings and documents and travel in smelly, dark and unheated metallic compartments in the prison vans. On one occasion the applicant was placed in a cell with repeat offenders and “ordinary” criminals. He did not receive proper medical aid and his state of health deteriorated. 73. On 7 June 2005 the applicant was transferred from the remand prison in Volokolamsk to a remand prison in Moscow (no. IZ 77/7). On 23 July 2005 the applicant was transferred to a “colony-settlement” in Nizhniy Tagil, to serve the sentence imposed by the judgment of 19 May 2004. 74. The Government submitted that the applicant had been detained in cell no. 66 only once, on the day of his arrival at remand prison no. IZ 50/2 (on 8 October 2004). The Government maintained that cell no. 66 was equipped with a water tank which contained boiled water. In addition, the tap water in the cell was drinkable. The cell measured 12.6 square metres and had nine sleeping places. 75. According to the Government, remand prison no. IZ 50/2 had about 875 sleeping places (the exact number varied slightly during 2004 and 2005). The number of inmates had not exceeded the number of sleeping places, except for three days in January 2005. 76. In the following months the applicant was detained in cells nos. 101 (18.91 square metres, eight sleeping places), 122 (12.22 square metres, six sleeping places), 123 (21.62 square metres, fifteen sleeping places), and then in cell no. 101 again (in April 2005 the number of that cell was changed to 321). The number of sleeping places in those cells was reduced after 2006. 77. The Government produced an official record indicating the number of persons detained in each cell together with the applicant. According to them, the number of inmates was always equal to or lower than the number of sleeping places. The applicant had spent most of the time in cells nos. 122 (from 12 October 2004 to 31 January 2004), and 101 (or 321, from 4 February 1005 until 7 June 2005). During the period under consideration the applicant was detained in cell no. 122 with five other people for fortyfive days, and with four other people for twenty days. During the remaining time the applicant was detained with three other people or fewer. As to cell no. 101, the applicant was detained for one day with seven other people, fourteen days with six other people, one day with five other people, ten days with four other people, and the remaining time with three other people or fewer. From 4 March 2005 the number of the applicant's fellow detainees in cell no. 101 (321) did not exceed four. 78. The detainees in the remand prison were entitled to a shower once a week for a duration of fifteen minutes. The prison had twelve shower hoses for the detainees. 79. As to the daily walks, the Government produced a description of the walking yards. In addition, they produced two letters from the governor of the remand prison. In the first letter he had informed the Court that persons detained in the same cell were taken for a walk together. Consequently, the number of people in the same walking yard always corresponded to the number of people detained in a cell. In the second letter the governor of the remand prison certified that detainees who were conveyed to the courts or to other places were given the possibility of a walk in the morning, before being transferred. 80. According to the Government, on thirteen occasions the applicant was transferred to the Dmitrov detention centre to take part in the proceedings before the Dmitrov Town Court (criminal case no. 2), and from there back to remand prison no. IZ 50/2. In total, he spent eighty-two days in the Dmitrov detention centre. His stays there varied from four to fifteen days; the last stay there was between 25 and 29 April 2005. 81. The Dmitrov detention centre was built in 1983. It was situated in a semi-basement under the Dmitrov police station. The Government admitted that at the relevant time the detention centre had had no walking yards, which were under construction. The applicant was detained in a single-occupancy cell measuring 6.6 square metres. The Government produced photos of that cell (cell no. 7). The cell was “equipped with a window opening” measuring 88 cm by 65 cm. The bed was a wooden deck, 50 cm from the floor. The cell was also equipped with a toilet with a combined “sink and toilet plumbing system”. The toilet was separated from the other parts of the cell by a partition. Heating in the cell was provided by the town's central heating system. The cell was lit by a 150 Watt halogen lamp installed in the wall above the entrance. The cell had a cold-water supply; in addition, hot water was available in the shower room and in the “room for warming up food”. The detainees were given the opportunity to use the shower. The cells were ventilated naturally and through a “forced exhaust ventilation” system. The applicant was given bedding. On arrival every detainee received soap and toilet paper. 82. On 2 December 2003 the cell was examined by the detention centre's administration. The examination did not reveal any problems with the sanitary conditions in the cell, which were described as “satisfactory”. The administration noted that the cells had been cleaned with disinfectants. 83. While in detention, the applicant always received the necessary medical aid. Thus, during his stay in remand prison no. IZ 77/1 in Moscow the applicant was supervised by a doctor in connection with his bronchial asthma and received “supportive treatment”. In April-May 2005 the applicant was examined by the doctors in remand prison no. IZ 50/2 in Volokolamsk. They concluded that the applicant was suffering from “vegetovascular dystonia” (autonomic neuropathy). The applicant received all the necessary treatment in connection with his diseases. 84. From December 2003 the applicant was regularly taken from the remand prison to the court to attend hearings and examine the case file. The transfers usually started at 5 a.m. However, in order to be able to wash himself or to go to the toilets, the applicant had to get up earlier, and wait his turn in a queue. 85. Between 5 and 9 a.m. the applicant, together with other detainees, waited for a prison van in a small, seatless and smoky cell in the remand prison. Whilst being transported, the applicant and other detainees were kept in the closed metal rear section of an unheated prison van. The van was so overcrowded that the detainees, some of them with active tuberculosis, had to stand face to face during the transfer. Although, in principle, a prison van should carry no more than six to eight detainees, in fact the applicant's van carried twenty people on average, convicted criminals as well as suspects. 86. The van arrived at the courthouse shortly after noon and the applicant had two to three hours to examine the case file. In the courthouse he was kept in a “convoy room”, which was also overcrowded, unheated and smoke-filled. At about 3 p.m. the convoy officers collected the detainees from different courts and transported them in a van to a central collection point. There the detainees waited for several hours in the vans to be dispatched to their respective detention facilities. As a result, the applicant often arrived at his detention facility after 11 p.m., although a convoy officer recorded an earlier time in the register of detainees. According to the applicant, he spent an average of about fifteen hours in total per day in the van, convoy room and collection point. On several occasions, in particular on 4, 18 and 19 December 2003, he was left without food and water for the whole day. 87. On 5 December 2003, five days after his arrival at remand prison no. IZ 77/1, the applicant wrote a letter to the court in which he described the conditions of his detention in and transfers to and from the courthouse. He submitted that in these circumstances he was unable to examine the case file and prepare his defence properly. He also indicated that the convoy officers had refused to accept any written complaints from him. He sought permission to read the case file in the detention centre. By letters of 9 and 15 December 2003 the court explained that it had no control over the prison administration and convoy services and that all such complaints should be addressed directly to them. The court further stated that the case file had to be kept in the courthouse, since it contained classified documents and information. 88. On 10 December 2003 the applicant wrote a new letter to the court, asking it to provide him with additional time to read the case file. He repeated his complaints about the conditions of his detention and the transfers. He asked the court to order the guards not to handcuff him during the reading of the file. 89. On 26 December 2003, on his way back from the court to the collection point, the applicant was placed in the metal-clad compartment of a prison van with another detainee, a mentally disturbed person. The latter was on his way from the Serbskiy Institute of Psychiatry to the prison hospital. The compartment was so small that the applicant had to stand on one leg and then the other. After three hours of this very uncomfortable posture, the applicant asked the convoy officers to put him in a different compartment, but they refused. He then knocked on the door of the compartment, repeating his demand. In reply the convoy officers opened the door and hit him with a rubber stick. 90. Because of the conditions in which he was transported, the applicant had a constant cold, from which he would never have recovered without the medicines sent to him by his relatives. He stated that it was very hard to obtain an appointment with a prison doctor and that the quality of medical aid available in the detention facility was very poor. 91. The Government specified the days on which the applicant had been in court. In December 2003 he had been taken to the court from the remand prison eighteen times. In January 2004 he had been taken to the court twelve times, in February 2004 nine times, in March fourteen times, and in April twelve times. In the following months he had no more than four visits to the courts per month. After his transfer to remand prison no. IZ 50/2 he was taken to various courts eighteen times. 92. Under the prison rules the applicant was woken up at 6 a.m. Most of the time he was supposed to arrive at the court by 10 or 11 a.m. The time of his return to the remand prison was not specified, since it varied depending on the circumstances. However, the applicant was always back in the remand prison before 10 p.m. (the “last post” hour). 93. Detainees were conveyed from and back to the prisons in prison vans measuring 3.8 by 2.35 by 1.6 (height) metres or 4.7 by 2.4 by 1.64 (height) metres. The prison vans were designed to hold twenty-five and thirty-six people respectively. They had two “shared” compartments for twelve (or seventeen) detainees each, one (or two, depending on the model) single-occupancy compartment(s), and a compartment for four (or three, depending on the model) prison warders. 94. The Government maintained that the detainees conveyed from the remand prison to the court were provided with an “individual daily ration of food”, in accordance with the rules in force. The Government referred to a certificate issued by the governor of the remand prison. 95. Detainees were transported in a separated compartment of the prison vans. According to reports by the two chief officers of the unit responsible for transfers, dated 5 and 14 March 2007, the number of detainees in the prison vans always corresponded to the rules then in force. The Government referred to photographs of prison vans and plans showing how the detainees were seated inside the vans. The vans corresponded to domestic standards in the field of transporting detainees. During the cold season they were kept overnight in a heated garage. Furthermore, the vans were heated with a heating system using the warmth of the engine. The temperature in the prison vans corresponded to the local regulations; in this connection, the Government referred to a document issued by the officers in charge. The inside of the vans was washed every day; furthermore, the vans were disinfected every week (the Government referred to a report of 6 March 2007). 96. During his detention in remand prison no. IZ 77/1 the applicant was taken to the court seventy-five times (on the whole, during the period of his detention in different remand prisons the applicant was taken to the court ninety-three times). The average duration of the transfer between remand prison no. IZ 77/1 and the court was thirty to fifty minutes (for a journey of 8 km). However, sometimes the convoy used an alternative route which was 15 km long. 97. Cells for the detainees in the court building were “of standard [dimensions]”, and “suited different categories of detainees”. The applicant was detained separately from other detainees. Handcuffs were applied only during embarkation of and disembarkation from the prison van. The detainees in the court cells were provided with boiled water. 98. In the remand prison there were thirteen “transition cells” for those being dispatched to other prisons, courts, and so on. Their overall size was 143 square metres. 99. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955 and approved by the Economic and Social Council in its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. ... 45. ... (2) The transport of prisoners in conveyances with inadequate ventilation or light, or in any way which would subject them to unnecessary physical hardship, shall be prohibited ...” 100. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) state: “46. Overcrowding is an issue of direct relevance to the CPT's mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners... Prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners. 51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations...” “13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ...” “28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports ... 29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions. 30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... Even when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy ...” 101. Under paragraph 11 of Article 108 of the 2002 Code of Criminal Procedure of the Russian Federation, a judge's ruling remanding a person in custody (detention order) may be appealed against to a higher court within three days from the date on which the ruling was given. A judge of the appellate court (кассационная инстанция) must give a decision on any such complaint or representation within three days of the date of its receipt. 102. Appellate procedure in general is governed by Articles 354-389 of the Code of Criminal Procedure. Pursuant to Article 355 of that Code, all appeals must be lodged with the court which delivered the decision at issue. Under Article 356, that court keeps the case file until the expiry of the timelimits for the appeal. Under Article 358, after having received an appeal, the court must send a copy of it to the other parties, invite them to submit written replies and set the time-limits for any replies, where appropriate. Article 374 provides that the overall length of the examination of the appeal may not exceed one month from the date when the case file is received by the court of appeal. | 1 |
train | 001-66813 | ENG | POL | CHAMBER | 2,004 | CASE OF FALECKA v. POLAND | 4 | Violation of Art. 6-1;Inadmissible under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Nicolas Bratza | 4. The applicant was born in 1937 and lives in Cracow, Poland. 5. On 5 February 1987 the applicant lodged a claim for division of her matrimonial property with the Cracow District Court (Sąd Rejonowy). 6. The court held the first hearing on 15 July 1987. 7. Between 1987 and 1991 the court held 14 hearings (6 in 1987, 1 in 1988, 4 in 1989, 2 in 1990 and 1 in 1991). 8. On 16 November 1993 and 23 September 1994 the court held hearings. 9. On 5 June 1995 the court ordered that expert evidence be obtained. The expert opinion was delivered to the court on 11 January 1996. 10. On 25 August 1995, 17 April, 24 June and 23 September 1997 the court held hearings. 11. On an unspecified date in May 1998 the court decided to obtain fresh expert evidence. The expert submitted his report to the court on 26 June 1998. 12. On 31 August 1998 the court held a hearing. 13. On 29 December 1998 the court gave judgment. 14. During the proceedings the composition of the court changed 9 times. 15. The applicant several times complained to the President of the Cracow Regional Court about the slow conduct of the proceedings. In reply, the President admitted that the proceedings were indeed too long and informed the applicant that he would supervise their further conduct. 16. On an unspecified date in 1999 the applicant’s husband lodged an appeal against the first-instance judgment with the Cracow Regional Court (Sąd Okręgowy). 17. On 15 February 2000 the court dismissed the appeal. | 1 |
train | 001-110961 | ENG | TUR | COMMITTEE | 2,012 | CASE OF HASDEMİR v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre | 5. The applicant was born in 1961 and is currently detained in İzmit Ftype prison. 6. On 6 May 2000 the applicant was arrested and taken into police custody on suspicion of membership of a criminal profit-making organisation and carrying out illegal activities on its behalf. 7. On 8 May 2000 the investigating judge at the İstanbul State Security Court ordered the applicant’s pre-trial detention. 8. On 19 June 2000 a bill of indictment was filed against the applicant and four other persons with the İstanbul State Security Court, accusing them of forming a criminal profit-making organisation and of being involved in incidents of murder, extortion and fraud. 9. On 30 January 2003 the first-instance court acquitted the applicant and the other accused of the former charge on the ground that the mental elements of the crime had not been established on their parts. It followed that it lacked jurisdiction to examine the other charges brought against them and transferred the proceedings to the Kartal Assize Court. 10. On 20 December 2004 the Court of Cassation quashed the judgment of the first-instance court, noting that the latter had erroneously acquitted the applicant and his co-accused of the charge concerned. In its decision, the court held that all components of forming a criminal profit-making organisation had been sufficiently established against the accused. 11. Subsequently, the case was remitted to the first-instance court. 12. Following the abolition of the State Security Courts by Law no. 5190, the İstanbul Assize Court resumed the criminal proceedings. 13. During the proceedings, the İstanbul Assize Court reviewed the lawfulness of the applicant’s continued detention regularly at the end of each hearing or, at the latest, every thirty days, of its own motion, without holding any oral hearing. 14. At the hearing on 3 March 2010 the İstanbul Assize Court decided, once more, to extend the applicant’s continued detention on account of the reasonable grounds of suspicion that he had committed the offences with which he was charged, and the state of the evidence in the case file. 15. On 5 January 2011 having regard to the period he had spent in detention, the İstanbul Assize Court released the applicant. 16. On the basis of the range of evidence in the case file, on 6 December 2011 the İstanbul Assize Court convicted the applicant of a number of crimes; including forming a criminal profit-making organisation, murder, abduction and extortion. Subsequently, the court sentenced the applicant to life imprisonment. 17. According to the information in the case file, the applicant lodged an appeal with the Court of Cassation, before which the proceedings are currently pending. 18. The relevant sections of the Turkish Code of Criminal Procedure (Law no.5271) can be found in the judgment of Araz v. Turkey (no. 44319/04, §§ 15-16, 20 May 2010). | 1 |
train | 001-68206 | ENG | ALB | ADMISSIBILITY | 2,005 | NAUMOV v. ALBANIA | 3 | Inadmissible | Nicolas Bratza | The applicant, Mr Stefan Naumov, is an Albanian citizen, who was born in 1945 and lives in Tirana (Albania). The applicant, a Bulgarian national, was the Bulgarian Ambassador to the Republic of Albania from 1990 to 1997. In 1996 the Ministry of Foreign Affairs of Bulgaria initiated legal proceedings against the applicant as a consequence of which he was suspended from office by a ministerial order. On 10 February 1997 the Supreme Court of Bulgaria annulled the ministerial order suspending the applicant from office. On an unspecified date the applicant withdrew from politics. In 1997 the applicant and his family applied to the President of the Republic of Albania for Albanian citizenship. On 17 April 1997 the President of the Republic granted them Albanian citizenship. On 20 September 2001 the newly elected President of the Republic ex officio declared null and void the president's decree of 17 April 1997, thereby revoking the applicant's Albanian citizenship as having been obtained through forged documents. According to the decree the applicant had filed forged documents indicating that no criminal proceedings were pending against him in Bulgaria. On 2 October 2001 at about 9 a.m. several police officers, some of them armed, took the applicant and his wife to a police station in Tirana for official notification of the decree. After some hours of waiting, a copy of the president's decree of 20 September 2001 was served on the applicant, revoking his Albanian citizenship. Moreover, the Deputy Chief of the Tirana Police Department verbally ordered the applicant to leave Albanian territory by 5 October 2001 (that is to say, within three days) pursuant to a deportation order dated 29 September 2001 or face forcible exile. On 2 October 2001 the Ministry of Internal Affairs issued a press release to the effect that the applicant had been ordered to leave the territory by 5 October 2001 as his Albanian citizenship, obtained through forged documents, had been revoked. On 4 October 2001 the police, without apparent reason, prohibited the applicant and his family from leaving the apartment. The situation was resolved by the intervention of a Member of Parliament. On 5 October 2001 the applicant received a letter from the Police Department reminding him to leave Albanian territory by midnight that day. On 2 October 2001 the applicant lodged an action with the Tirana District Court claiming that the president's decree of 20 September 2001 should be annulled as unconstitutional. Moreover, he requested, by way of an interim measure, that execution of the deportation order be stayed. On 4 October 2001 the District Court declined jurisdiction to deal with the applicant's claim and indicated the Constitutional Court as the competent authority. On 31 October 2001, following the applicant's complaint, the Constitutional Court decided to dismiss his appeal as being outside its jurisdiction. On 20 December 2001 the Supreme Court (Civil Chamber) quashed the District Court's decision of 4 October 2001 and sent the case for a retrial before the District Court as the authority competent to deal with the applicant's complaint. On 23 December 2002, after one year of inactivity, the District Court, in retrial proceedings, decided to annul the president's decree of 20 September 2001 as unsubstantiated, thereby confirming the applicant's Albanian citizenship. On 5 October 2001 the applicant lodged an action with the Tirana District Court claiming that the deportation order of 29 September 2001 and the police order of 5 October 2001 were null and void. According to the applicant's submissions, the first-instance court proceedings had lasted two years and six months, and fourteen hearings had been fixed. The court's hearings had been adjourned on several occasions as a result of the unjustified absence of the Police Department and Ministry of Internal Affairs' legal advisers. The latter had been absent from thirteen consecutive court hearings without giving any reasons. On 25 March 2002 the District Court suspended its examination of the applicant's complaint since the courts had decided on the validity of the president's decree. On 7 February 2003 the court resumed the proceedings. In one year it fixed four hearings and, in the absence of the authorities' representatives, continued the proceedings in the applicant's presence alone. On 20 March 2003, in the absence of the authorities' representatives, the District Court declared null and void the deportation order and the police order of 5 October 2001 as incompatible with the legal criteria. 1. Article 92 of the Albanian Constitution provides that the President of the Republic has the power to grant and revoke Albanian citizenship in accordance with the law. 2. The relevant part of Law no. 8389 of 5 August 1998 on the acquisition and revocation of Albanian citizenship reads as follows: Section 9 Acquisition of citizenship by naturalization “A foreigner who has submitted an application for acquisition of Albanian citizenship by naturalization shall acquire it if he fulfils the following requirements: He has reached the age of eighteen; he has lawfully resided in the territory of the Republic of Albania for not less than five consecutive years; he has a dwelling and sufficient income; he has never been sentenced in his state or in the Republic of Albania or in any third state for a criminal offence for which the law provides for a prison sentence of not less than three years. Exemption from this rule is made only if it is proved that the sentence was given for political reasons; he has at least elementary knowledge of the Albanian language; and his acceptance as an Albanian citizen does not affect the security and defence of the Republic of Albania...” Section 13 Revocation of decision granting citizenship “The decision granting Albanian citizenship may be revoked if it is proved that the alien or stateless person has intentionally supported his application for acquisition of Albanian citizenship with incorrect data or falsified documents...” | 0 |
train | 001-108690 | ENG | BGR | GRANDCHAMBER | 2,012 | CASE OF STANEV v. BULGARIA | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 6 - Right to a fair trial (Article 6-1 - Access to court;Civil rights and obligations);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award | Angelika Nußberger;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vincent A. De Gaetano;Zdravka Kalaydjieva | 9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account. 10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court (Окръжен съд) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. 11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal (Апелативен съд) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian. 12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002. 13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled. 14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement. 15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this. 16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time. 17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian. 18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question. 19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away. 20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission. 21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed. 22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them. 23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically. 24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions. 25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant. 26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management. 27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation. 28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home. 29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available. 30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him. 31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist. 32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years. 33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end. 34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” (социална оценка) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10). 35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society. 36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions. 37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home. 38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation. 39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live. 40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final. 41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused. 42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship (настойничество), whereas those who are partially incapacitated are placed under partial guardianship (попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid. 43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173). 44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian. 45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.). 46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her. 47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests. 48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian. 49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so. 50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative. 51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows: “The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed. Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).” 52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.). 53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void. 54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008). 55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken. 56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed. 57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)). 58. By virtue of the implementing regulations for the Social Assistance Act 1998 (Правилник за прилагане на Закона за социално подпомагане), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty. 59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services (Наредба № 4 за условията и реда за извършване на социални услуги), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances. 60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973. 61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008). 62. The State and Municipalities Responsibility for Damage Act 1988 (Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis. 63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. 64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.). 65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes. 66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.). 67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.). 68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)). 69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)). 70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves. 71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending. 72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests. 5. Subject to the provisions of this Article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” 73. The relevant parts of this Recommendation read as follows. “1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal response to be made to different degrees of incapacity and various situations. ... 4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.” “1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned. 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...” “1. Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned. 2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention.” “The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.” “1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ... 3. There should be adequate rights of appeal.” 74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home. 75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon. 76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated. 77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated. 78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available. 79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets. 80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses. 81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. 82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions. 83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report). 84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report). 85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report). 86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report). 87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010. 88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure. 89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian. 90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland. 91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge. 92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems. 93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent. 94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement. 95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will. | 1 |
train | 001-69091 | ENG | TUR | CHAMBER | 2,005 | CASE OF TURHAN v. TURKEY | 3 | Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | David Thór Björgvinsson | 4. The applicant was born in 1924 and lives in Istanbul. He is the author of a book titled “Extraordinary War, Terror and Contra Guerrilla” (“Özel Savaş Terör ve Kontragerilla”). 5. On 6 January 1993 Orhan Sefa Kilercioğlu, the then Minister of State brought a civil action for compensation against the applicant, before the Ankara First Instance Court in Civil Matters. He claimed that the alleged defamatory remarks in the applicant’s book constituted an attack on his reputation and requested that the court award him compensation of 100,000,000 Turkish liras (TRL) for non-pecuniary damage. 6. During the proceedings the court evaluated the following passages: “In an interview I gave in Antalya I commented on the “1 May 1977” massacre and the possibility of a coup d’état during that period. It seems that a magazine carried out research following these assertions and reached some interesting conclusions. According to the magazine, the Minister of State, Orhan Kilercioğlu, had established contacts with the Special War Department (Özel Harp Dairesi). He had been involved in the coup that was co-ordinated by General Namık Kemal Ersun together with Generals Recai Engin, Musa Öğün and Rüştü Naipoğlu. The names of these generals had appeared in several foreign and domestic newspapers where they were presented as the authors of the massacre carried out on 1st of May and of other provocative acts. The magazine interviewed Mr Orhan Kilercioğlu. He said the following: – Some newspapers and magazines have been presenting you as the author or even the perpetrator of the “1st of May” massacre until last year. You have never commented on those allegations for almost 12 years. Kilercioğlu: I never thought of replying. The State has everything. It has mechanisms. [Those allegations] have never bothered me. – Comments regarding your involvement in the “1st of May” massacre were made with reference to an American newspaper. A periodical commented on your involvement in the contra guerrilla [activities]. Kilercioğlu: The State has laws, it has courts. Under such conditions, would they have kept silent until now? Everything has been done. – Did you exercise your right to reply? Kilercioğlu: I do not remember. As one can easily see, Mr Kilercioğlu is disregarding the questions and making a big fuss. By not having exercised his right to reply and not having lodged a complaint with the judicial organs, he must have been aware of the fact that he was implicitly acknowledging these allegations against him. Especially, someone like him: an ex-general and a Minister of State. Mr Kilercioğlu answered another question: “I am the purest and the most innocent person that you could ever meet in life,” he says. If a person is identifying himself like this, let’s just leave the verdict to a doctor! In an interview he gave after his retirement in 1989 he said: “As you know, there are groups in the army. They fight among themselves. We fought and lost.” He is probably admitting to having belonged to the junta by identifying himself as a member of the “group”. One can conclude from his statement that he had been a member of the junta. One can also presume that the junta of General Namık Kemal Ersun had had plans to overthrow Demirel’s government. Then the question arises: How could Demirel appoint a minister who was involved in a junta against him? Maybe Mr Kilercioğlu is one of Mr Demirel’s sins? ... Let’s go back to Kilercioğlu. Although he admitted to having belonged to a “group of fighters”, a number of newspapers, some business circles and TRT (Turkish Radio and Television) stood as protectors of Kilercioğlu after his retirement. Undoubtedly, this was not due to his “pure” personality. It was more due to his presence in the fascist wing, which dedicated itself to protecting the interests of business circles. After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair?” 7. The applicant argued before the court that the passages concerning Mr Kilercioğlu were quoted from an interview published by a magazine. He drew the court’s attention to the fact that Mr Kilercioğlu had never exercised his right of reply; nor had he contested the publication of his statements in that magazine. The applicant claimed that he was exercising his right to freedom of expression in making those remarks. 8. On 2 February 1994 the first instance court rejected Mr Kilercioğlu’s claims. It decided that the passages in question were merely the applicant’s criticisms of Mr Kilercioğlu’s statements, in the light of his political beliefs, and they did not constitute an attack on the plaintiff’s reputation. 9. Mr Kilercioğlu appealed. On 1 December 1994 the Court of Cassation quashed the decision of the first instance court. It considered that the following extracts from the book went beyond the limits of acceptable criticism. It held that they were based on hearsay alone and they therefore amounted to an attack on the reputation of the plaintiff: “... he is admitting to having belonged to the junta...”, “...his presence in the fascist wing, which dedicated itself to protecting the interests of business circles.”, “After his retirement he was ready to serve those business circles. I wonder: how will he be able to fight against corruption and illegal trade after having flown from the Yaşar Holding to the ministerial chair? ... ” 10. The Court of Cassation concluded that the plaintiff should be awarded compensation for non-pecuniary damage under Article 49 of the Code of Obligations. 11. On 5 June 1995 the Court of Cassation rejected the applicant’s request for rectification of the judgment. 12. On 14 September 1995, after having considered the Court of Cassation’s decision, the Ankara First Instance Court in Civil Matters decided to award Mr Kilercioğlu the sum of TRL 100,000,000 as compensation for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992. 13. The applicant appealed. On 11 April 1996 the Court of Cassation quashed the decision of 14 September 1995 on the ground that the amount of compensation awarded was disproportionate to the damage suffered by the plaintiff. 14. On 19 July 1996 the Ankara First Instance Court in Civil Matters considered that its decision of 14 September 1995 was in accordance with the law and that the amount of compensation awarded was proportionate to the damage suffered by the plaintiff. It decided not to follow the decision of the Court of Cassation. 15. Mr Kilercioğlu lodged an appeal with the Joint Civil Chambers of the Court of Cassation, which quashed the decision of the Ankara First Instance Court in Civil Matters on 26 March 1997. 16. On 8 October 1997 the Ankara First Instance Court in Civil Matters awarded Mr Kilercioğlu compensation in the amount of TRL 60,000,000 for non-pecuniary damage, together with interest rate of 30% per annum running from 4 December 1992. Upon Mr Kilercioğlu’s request, the court also ordered the publication of its decision in a newspaper. 17. The applicant appealed. On 19 March 1998 the Court of Cassation upheld in part the judgment dated 8 October 1997. It considered that the amount of compensation awarded to the plaintiff was in accordance with law. However, the plaintiff’s request to the first instance court asking for publication of its decision was not raised before the Court of Cassation. It therefore quashed that part of the decision. 18. On 30 September 1998 the Ankara First Instance Court in Civil Matters followed the Court of Cassation’s decision of 19 March 1998. The applicant was notified of this decision on 23 January 1999. 19. On 19 February 1999 the applicant paid TRL 231,500,000 to the plaintiff as compensation. 20. Article 49 of the Code of Obligations provides as follows: “Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage. The judge shall take into account the parties’ socio-economic situation, their occupation and social status when determining the amount of compensation. The judge may also decide on a form of redress other than compensation or may restrict himself to condemning the violation. He may also order the publication of the decision.” | 1 |
train | 001-58910 | ENG | GBR | GRANDCHAMBER | 1,999 | CASE OF MATTHEWS v. THE UNITED KINGDOM | 1 | Violation of P1-3;Not necessary to examine Art. 14+P1-3;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson;John Freeland;Luzius Wildhaber;Nicolas Bratza | 7. On 12 April 1994 the applicant applied to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament. The Electoral Registration Officer replied on 25 April 1994: “The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.” 8. Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely. 9. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them. 10. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly. The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation. 11. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972. 12. Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar. 13. Relevant EC legislation becomes part of Gibraltar law in the same way as in other parts of the Union: regulations are directly applicable, and directives and other legal acts of the EC which call for domestic legislation are transposed by domestic primary or secondary legislation. 14. Although Gibraltar is not part of the United Kingdom in domestic terms, by virtue of a declaration made by the United Kingdom government at the time of the entry into force of the British Nationality Act 1981, the term “nationals” and derivatives used in the EC Treaty are to be understood as referring, inter alia, to British citizens and to British Dependent Territories citizens who acquire their citizenship from a connection with Gibraltar. 15. The powers of the European Community are divided amongst the institutions set up by the EC Treaty, including the European Parliament, the Council, the Commission (“the European Commission”) and the Court of Justice. 16. Before 1 November 1993, the date of the entry into force of the Maastricht Treaty on European Union of 7 February 1992 (“the Maastricht Treaty”), Article 137 of the EEC Treaty referred to the “advisory and supervisory powers” of the European Parliament. Since 1 November 1993, the words “advisory and supervisory powers” have been removed and the role of the European Parliament has been expressed by Article 137 to be to “exercise the powers conferred upon it by [the] Treaty”. The principal powers of the European Parliament under the EC Treaty may now be summarised as follows: Article 138b provides that the European Parliament shall “participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 189b and 189c and by giving its assent or delivering advisory opinions”. Further, the second paragraph of Article 138b empowers the European Parliament to request the European Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing the Treaty. The reference in the first paragraph of Article 138b to “assent” refers to a procedure whereby the EC Treaty (for example, in Articles 8a(2) and 130d) provides for adoption of provisions by the Council on a proposal from the European Commission and after obtaining the assent of the European Parliament. The procedure is called the “assent procedure”. Article 144 provides for a motion of censure by the European Parliament over the European Commission whereby if a motion is carried by a two-thirds majority, representing a majority of the members, the members of the European Commission are required to resign as a body. Article 158 provides that the European Parliament is to be consulted before the President of the European Commission is nominated, and the members of the European Commission, once nominated, are subject as a body to a vote of approval by the European Parliament. The first paragraph of Article 189 provides: “In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.” Article 189b provides: “1. Where reference is made in the Treaty to this Article for the adoption of an act, the following procedure[] shall apply. 2. The Commission shall submit a proposal to the European Parliament and the Council. The Council, acting by a qualified majority after obtaining the opinion of the European Parliament, shall adopt a common position. The common position shall be communicated to the European Parliament. The Council shall inform the European Parliament fully of the reasons which led it to adopt its common position. The Commission shall inform the European Parliament fully of its position. If, within three months of such communication, the European Parliament: (a) approves the common position, the Council shall definitively adopt the act in question in accordance with that common position; (b) has not taken a decision, the Council shall adopt the act in question in accordance with its common position; (c) indicates, by an absolute majority of its component Members, that it intends to reject the common position, it shall immediately inform the Council. The Council may convene a meeting of the Conciliation Committee referred to in paragraph 4 to explain further its position. The European Parliament shall thereafter either confirm, by an absolute majority of its component Members, its rejection of the common position, in which event the proposed act shall be deemed not to have been adopted, or propose amendments in accordance with subparagraph (d) of this paragraph; (d) proposes amendments to the common position by an absolute majority of its component Members, the amended text shall be forwarded to the Council and to the Commission which shall deliver an opinion on those amendments. 3. If, within three months of the matter being referred to it, the Council, acting by a qualified majority, approves all the amendments of the European Parliament, it shall amend its common position accordingly and adopt the act in question; however, the Council shall act unanimously on the amendments on which the Commission has delivered a negative opinion. If the Council does not approve the act in question, the President of the Council, in agreement with the President of the European Parliament, shall forthwith convene a meeting of the Conciliation Committee. 4. The Conciliation Committee, which shall be composed of the members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. 5. If, within six weeks of its being convened, the Conciliation Committee approves a joint text, the European Parliament, acting by an absolute majority of the votes cast, and the Council, acting by a qualified majority, shall have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. If one of the two institutions fails to approve the proposed act, it shall be deemed not to have been adopted. 6. Where the Conciliation Committee does not approve a joint text, the proposed act shall be deemed not to have been adopted unless the Council, acting by a qualified majority within six weeks of expiry of the period granted to the Conciliation Committee, confirms the common position to which it agreed before the conciliation procedure was initiated, possibly with amendments proposed by the European Parliament. In this case, the act in question shall be finally adopted unless the European Parliament, within six weeks of the date of confirmation by the Council, rejects the text by an absolute majority of its component Members, in which case the proposed act shall be deemed not to have been adopted. 7. The periods of three months and six weeks referred to in this Article may be extended by a maximum of one month and two weeks respectively by common accord of the European Parliament and the Council. The period of three months referred to in paragraph 2 shall be automatically extended by two months where paragraph 2(c) applies. 8. The scope of the procedure under this Article may be widened, in accordance with the procedure provided for in Article N(2) of the Treaty on European Union, on the basis of a report to be submitted to the Council by the Commission by 1996 at the latest.” Article 189c provides: “Where reference is made in this Treaty to this Article for the adoption of an act, the following procedure[]shall apply: (a) The Council, acting by a qualified majority on a proposal from the Commission and after obtaining the opinion of the European Parliament, shall adopt a common position. (b) The Council’s common position shall be communicated to the European Parliament. The Council and the Commission shall inform the European Parliament fully of the reasons which led the Council to adopt its common position and also of the Commission’s position. If, within three months of such communication, the European Parliament approves this common position or has not taken a decision within that period, the Council shall definitively adopt the act in question in accordance with the common position. (c) The European Parliament may, within the period of three months referred to in point (b), by an absolute majority of its component Members, propose amendments to the Council’s common position. The European Parliament may also, by the same majority, reject the Council's common position. The result of the proceedings shall be transmitted to the Council and the Commission. If the European Parliament has rejected the Council’s common position, unanimity shall be required for the Council to act on a second reading. (d) The Commission shall, within a period of one month, re-examine the proposal on the basis of which the Council adopted its common position, by taking into account the amendments proposed by the European Parliament. The Commission shall forward to the Council, at the same time as its re-examined proposal, the amendments of the European Parliament which it has not accepted, and shall express its opinion on them. The Council may adopt these amendments unanimously. (e) The Council, acting by a qualified majority, shall adopt the proposal as re-examined by the Commission. Unanimity shall be required for the Council to amend the proposal as re-examined by the Commission. (f) In the cases referred to in points (c), (d) and (e), the Council shall be required to act within a period of three months. If no decision is taken within this period, the Commission proposal shall be deemed not to have been adopted. (g) The periods referred to in points (b) and (f) may be extended by a maximum of one month by common accord between the Council and the European Parliament.” Article 203 makes provision for the budget of the Community. In particular, after the procedure for making modifications and amendments to the draft budget, it is open to the European Parliament to reject the draft budget and to ask for a new budget to be submitted (Article 203(8)). Article 206 provides for parliamentary involvement in the process of discharging the European Commission in respect of the implementation of the budget. In particular, the European Parliament may ask to hear the European Commission give evidence on the execution of expenditure, and the European Commission is required to submit information to the European Parliament if so requested. Further, the European Commission is required to take all appropriate steps to act on the observations of the European Parliament in this connection. 17. Article 138(3) of the EEC Treaty provided, in 1976, that the European Parliament was to draw up proposals for elections. The Council was required to “lay down the appropriate provisions, which it [was to] recommend to Member States for adoption in accordance with their respective constitutional requirements”. Identical provision was made in the European Coal and Steel Community Treaty and the European Atomic Energy Community Treaty. 18. In accordance with Article 138(3), Council Decision 76/787 (“the Council Decision”), signed by the President of the Council of the European Communities and the then member States’ foreign ministers, laid down such provisions. The specific provisions were set out in an Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 20 September 1976 (“the 1976 Act”), signed by the respective foreign ministers, which was attached to the Council Decision. Article 15 of the 1976 Act provides that “Annexes I to III shall form an integral part of this Act”. Annex II to the 1976 Act states that “The United Kingdom will apply the provisions of this Act only in respect of the United Kingdom”. 19. By a declaration dated 23 October 1953, the United Kingdom, pursuant to former Article 63 of the Convention, extended the Convention to Gibraltar. Protocol No. 1 applies to Gibraltar by virtue of a declaration made under Article 4 of Protocol No. 1 on 25 February 1988. | 0 |
train | 001-111410 | ENG | SVK | CHAMBER | 2,012 | CASE OF KOKY AND OTHERS v. SLOVAKIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 7. The following incidents occurred on 28 February 2002. The detailed accounts of events by the parties and those involved are at variance at times. In this section, therefore, the incidents are described only briefly. Differing details, if any, are pointed out in the subsequent sections. 8. In the evening of 28 February 2002, at around 7.30 p.m., an argument started in a bar in the village of Gánovce-Filice, when a non-Romani waitress, I.S., refused to serve a drink to a person of Roma ethnic origin, M.K. 9. The argument developed with the tipping of a drink over M.K., in response to which he slapped or attempted to slap Ms I.S. in the face, accidentally knocking glasses over, which fell and broke. 10. Subsequently I.S. telephoned one of her three sons, P.S., who came to the bar soon afterwards. After he had left, another of her sons, M.S., who was the owner of the bar, came to the bar and remained there, assisting I.S. in serving customers, until closing time. Around that time, the girlfriend of P.S., E.N., also came to the bar and then accompanied I.S. home. 11. Later that evening, at around 9.45 p.m., a group of at least twelve people went into the Roma settlement in the village where the applicants lived. Some of them were wearing balaclavas and they were armed with baseball bats and iron bars. 12. Allegedly shouting racist language, they forcibly entered houses nos. 61, 67 and 69, damaging the interior and breaking the windows. 13. On entering house no. 67, the attackers physically assaulted applicant Mr Ján Koky. Some of the other applicants and another person, who were also present at the house during the attack, witnessed the attack but managed to avoid it by hiding (see paragraph 16 below). 14. Once the attackers understood that the police had been called, they made their escape. When they had gone approximately 200 metres from the settlement, they met applicants Mr Martin Kočko and Mr Rastislav Koky and physically assaulted them, causing them the injuries described below. Racist language is alleged to have been used during this part of the attack too. 15. House 61 was inhabited by applicant Ms Renáta Čonková and her partner, Z.K. They were both at home during the attack. 16. House 67 was inhabited by applicants Mr Ján Koky, Ms Žaneta Kokyová, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová and Mr Ján Koky Jr and by a certain J.K. Apart from applicant Rastislav Koky, they were all present at the house during the incident, and so were applicants Mr Milan Baláž and a certain H.B. 17. When the attack took place in his house, applicant Mr Ján Koky sustained no physical injuries. 18. House 69 was owned and inhabited by applicant Ms Justína Lacková. 19. The overall damage to the applicants’ property was estimated at the equivalent of at least 310 euros (EUR). 20. The parties are not united over the extent of the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky (see paragraph 14 above). 21. The applicants claim that Mr Rastislav Koky suffered a skull fracture, a cut to the left side of the back of the head, a crushed left arm, a pressure injury to the left side of the back and bruises to the left knee, which required him to stay in hospital for ten to fourteen days. 22. As regards Mr Martin Kočko, the applicants claim that he had sustained a scraped elbow and a crushed arm, which required a recovery time of seven to ten days. In that respect the applicants relied on the decisions of 26 April and 22 May 2002 (see paragraphs 73 and 81 below). 23. In contrast, the Government submit that Mr Martin Kočko’s injuries necessitated no stay in hospital, while those of Mr Rastislav Koky only required him to stay in hospital for four days. 24. After I.S. had come home from her shift, an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard. 25. It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement, both in terms of time and of cause. 26. It appears that those present during the attack at I.S.’s house included I.S., P.S., E.N., her brother: M.N., and a certain M.L. 27. The police arrived at the Roma settlement about half an hour after the incident. That night and in the early hours of the following day, that is to say 1 March 2002, the police carried out inspections and interviews, as summarised below on the basis of official records. 28. Between 10.30 and 11 p.m. house no. 67 was inspected in connection with a suspected offence, which was referred to as “damage to family house”. Applicant Mr Ján Koky, who lived in the house, was present. Broken windows were found in various parts of the house, and two biological traces were identified (bloodstains on a door and on a baseball bat) and sent for further analysis. 29. Between 0.15 and 1.00 a.m. house no. 61 was inspected in connection with a suspected offence, which was referred to as “damage to windows and door of a house”. Z.K., whose house it was, was present. Damage to the latch and casing of the front door were identified, as well as broken panes in two of the windows. Inside the house, on the floor in the kitchen and a room where the windows had been broken, two stones of 8 and 20 cm diameter were found. 30. Between 1 a.m. and 1.30 a.m. the following day house no 69 was inspected in connection with a suspected offence, which was referred to as “damage to a window pane of a house”. Applicant Ms Justína Lacková, whose house it was, was present. Broken panes in three windows were identified, and one biological trace was sampled for further analysis. 31. Applicant Mr Ján Koky, Z.K. and applicant Ms Justína Lacková were interviewed: the interviews started at 2.25 a.m., 3.45 a.m. and 4.30 a.m. respectively. 32. Mr Ján Koky submitted, inter alia, that earlier that evening a group of approximately five attackers had entered his house, no. 67. They had been armed with batons and had tried to hit him. He managed to fend them off and other occupants of his house had managed to hide, so the attackers had mainly been hitting the kitchen furnishings. Four of the attackers were wearing balaclavas to conceal their faces. The remaining one, whom he did not know, had no balaclava. They had not uttered a word. 33. Z.K. described how the attackers had broken windows in his house, no. 61, had forcibly entered and had made their escape after learning that the police were on their way. According to the transcript, the interview ended at 4.20 a.m. Z.K. then added that when they entered his house the attackers were shouting: “Gypsies, we’re going to strike you down today”. 34. Ms Justína Lacková submitted that she had been at home with her three minor children during the attack and that her husband had not been there. She had witnessed the turmoil outside her house through a window. Two of her house windows had subsequently been broken, probably with sticks, because no stones or other foreign objects had been found inside. In her submission, the attackers had pounded at her entrance door but had not succeeded in getting in. Ms Lacková assessed the damage to her house and submitted a claim for compensation to the proceedings. The interview was concluded at 5.15 a.m. and then reopened to pose a direct question to the applicant, in response to which she retorted that, on the part of the attackers, she had only heard indistinct shouting. The interview was finally concluded at 5.30 a.m. 35. On 1 March 2002 the Poprad District Police Investigator (“the DPI”) initiated a criminal investigation into the offences of causing bodily harm, violating the privacy of a home and criminal damage within the meaning of Articles 221 § 1, 238 §§ 1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time) respectively. 36. It was suspected that a group of at least twelve individuals had unlawfully entered houses nos. 61, 67 and 69, and that they had damaged these houses, as well as house no. 69. It was also suspected that while at his house the attackers had tried to hit applicant Mr Ján Koky with baseball bats and that while making their escape from the scene of crime, they had assaulted applicants Mr Martin Kočko and Mr Rastislav Koky by hitting them with baseball bats and kicking them, thus causing them bodily injuries on account of which, according to a preliminary estimate, they would need recovery time and would be unfit for work for seven to ten days and ten to fourteen days respectively. 37. The injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky were also assessed in an expert medical report procured by the DPI, in which their recovery time was assessed at four weeks and thirteen days respectively. 38. On 1 and 4 March 2002 respectively, an official note was made in the investigation file summarising the applicants’ submissions and a document was included in it outlining the investigation strategy. 39. On 5 March 2002 at 10.00 and 10.50 a.m. respectively, the DPI interviewed I.S. and P.S. They described their involvement in the incident at the pub and the subsequent attack which took place at I.S.’s house and on his car. I.S. submitted, inter alia, that she had closed the bar and had gone home at around 9.50 p.m. P.S. submitted that the closing time of the bar was 10 p.m. and that his mother had arrived home after that time. 40. On 7 March 2002 the DPI reported to the Ministry of the Interior on the status of the investigation. It was mentioned, inter alia, that the applicants’ legal representative had been obstructing the investigation, in that he had instructed the applicants not to accept summonses to interviews if handed to them in person, and not to take part in any interviews unless he was present. The qualification of the representative to appear on the applicants’ behalf in criminal proceedings in Slovakia was also called into question. 41. In the morning of 12 March 2002, the DPI interviewed applicant Mr Rastislav Koky, T.K. and M.K. and applicants Mr Ján Koky Jr. and Mr Martin Kočko. These interviews started at 8.20, 9.15, 9.45, 10.10 and 10.40 respectively. 42. Mr Rastislav Koky described the pub incident between I.S. and M.K. According to him, following the altercation I.S. had called P.S., who had arrived within five minutes, and who had warned Mr Koky that another son of I.S. would come round and there would be trouble. He also submitted that, later that evening, about thirty men had caught and beaten him, that he had subsequently had to be taken to hospital by ambulance, that he had been hospitalised for three to four days and that due to his injuries he was still unfit for work. In response to a direct question, Mr Rastislav Koky submitted that “during the attack, none of the attackers uttered a word”. 43. T.K. and M.K. submitted that on the evening of the incident they had seen I.S. with a group of forty to fifty men approaching the Roma settlement. 44. Mr Ján Koky Jr. described the pub incident, including the remark that P.S. had told him and others to go away because his brother would come and there would be trouble. Mr Ján Koky Jr. also submitted that, after he had seen his brother, applicant Mr Rastislav Koky, and his injuries, he had been convinced that P.S. was responsible. He had therefore gone to I.S.’s house, where he had had a verbal exchange with E.N. and M.N. However, he had gone away after the latter had produced a handgun and threatened to shoot him. 45. Mr Martin Kočko described the pub incident, the arrival of P.S. in the pub, the departure of about forty-five men and the assault on him by four individuals wearing balaclavas to conceal their faces and two without, accompanied with a cry “Negroes, gypsies, we’re going to kill you”. After receiving medical care in hospital, he had gone home and had not been hospitalised. 46. During the morning of 13 March 2002 the DPI interviewed applicants Mr Milan Baláž, Ms Žaneta Kokyová, Ružena Kokyová and Mr Ján Koky. They also interviewed H.B., the respective interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at 10.55. 47. Mr Milan Baláž submitted his account of the assault at house no. 67, where he had been present at the relevant time, visiting his girlfriend. In his submission, the assault had been accompanied by a shout of “Gypsies get out, we’re going to kill you!” 48. Ms Žaneta Kokyová, who lived in house no. 67, gave an account of the assault at their house and settlement, submitting that it had been accompanied by shouts of “Get out!”, “[religious expletive], gypsy whores, gypsy gang, get out, or else we are going to kill you all!” and “Gypsy whores, today you are dead, you are going to get a kicking today!”. 49. Ms Ružena Kokyová gave an account of the attack at her house, no. 67, submitting that it had been accompanied by a male voice shouting “Gypsies, black muzzles, today you are going to get killed, get out!”. 50. Mr Ján Koky gave an account of the attack at house no. 67, where he lived, submitting that it had been accompanied by shouts of “Gypsies, today you are going to be burned”. 51. H.B., who was in house no. 67 during the attack, gave an account of it and submitted that it had been accompanied by shouts of “Gypsies, black muzzles, get out!” 52. On 13 March 2002 the DPI initiated a criminal investigation into a further offence, namely that of violence against an individual or a group of individuals within the meaning of Article 196 §§ 1 and 2 of the Criminal Code. 53. The decision was based on the suspicion that, in the incident described above, several unidentified individuals had entered the Roma settlement shouting “Gypsies, come out or we will kill you”, while some of them had gone into houses 61 and 67 shouting “Gypsies, come out or we will kill you”. 54. The decision refers to the charges of 1 March 2002 and to subsequent statements from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Kokyová and Mr Ján Koky Jr. 55. The decision also refers to the assault on applicant Mr Martin Kočko being accompanied by shouts of “Negroes, gypsies, we will kill you!”. 56. The series of interviews started at 8 a.m. with P.J., continued at 8.35 a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S.: M.S. 57. P.J. said that he could see that I.S. was distressed when he arrived at the bar. E.N. described her arrival at the bar and what happened while she was there, that she went with I.S. to her house, and the subsequent incident there. The deposition of M.S. was fully in line with those of his family members. 58. In the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta Čonková, J.K. and applicant Ms Renáta Kokyová, whose interviews began at 9.10, 9.45 and 10 a.m. respectively. 59. Ms Renáta Čonková gave an account of the attack at the house of applicant Ján Koky, which she had observed through the window of her own house. In her submission, the attack at the house of the applicant Ján Koky was accompanied by a shout of “Black whores, today we’re going to kill you!”. As to Ms Čonková’s own house, five windows had been broken by thrown stones which were found inside. The attackers had only got as far as a corridor in the house before they made their escape. 60. J.K. gave an account of the attack at house no. 67, in which she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today you will kick the bucket”. 61. Ms Renáta Kokyová gave an account of the attack at house no 67, where she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today we’re going to kill you”. 62. The morning of 27 March 2002 saw a long series of short interviews, starting at 8 with applicant Mr Ján Koky, at 8.10 with applicant Ms Ružena Kokyová, at 9 with H.B., at 9.30 with J,K,, at 9.35 with applicant Mr Rastislav Koky, at 9.40 with applicant Ms Renáta Kokyová, at 9.45 with applicant Mr Milan Baláž, at 9.50 with applicant Ms Žaneta Kokyová, at 9.55 with Z.K., at 10.05 with applicant Ms Renata Čonková, at 10.10 with applicant Ms Justína Lacková, and at 10.25 with applicant Mr Martin Kočko. 63. Mr Ján Koky, Z.K. and J.K. completed their respective depositions of 1 and 20 March 2002 in so far as the extent of the material damage they had sustained was concerned, and added a claim for compensation to the proceedings. 64. Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation. 65. Ms Ružena Kokyová, HB, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová and Ms Renáta Čonková completed their respective depositions of 13 and 20 March 2002 and declared that they had no compensation claim to join to the proceedings, as they themselves had not sustained any material damage. Ms Renáta Kokyová added that compensation for any damage sustained by their family would be claimed by her husband. 66. Mr Rastislav Koky and Mr Martin Kočko completed their respective depositions of 12 March 2002 in that they specified that, as a result of the injuries sustained in the attack, Mr Rastislav Koky had been incapable of work for fourteen days, from 28 February to 14 March 2002, and Mr Martin Kočko was still unable to work. 67. At 8 a.m. on 10 April 2002 the DPI started interviewing applicant Mr Ján Koky Jr, who completed his depositions of 1 March 2002 in so far as the extent of the material damage he had sustained was concerned, and added a claim for compensation to the proceedings. 68. Without providing any details the Government submitted that “[the authorities] had requested records of incoming and outgoing communication to and from mobile phones of [I.S.], [M.S.], [P.S.] and [E.N.]”. 69. On 10 April 2002 the DPI held an identity exercise, in the course of which the participants were to identify presumed perpetrators from photographs in albums. It produced the following results: - applicant Mr Ján Koky identified one person, with a subjectively perceived probability of seventy to eighty percent, as one of the people who had been attacking him in his house; - applicant Mr Martin Kočko recognised one individual, who had been present at the pub during the argument, but had not been among those who had beaten him. He also identified one individual who had been among those who had beaten him, of which he was sixty percent sure. - applicant Ms Žaneta Kokyová identified one individual, with a subjectively perceived probability of fifteen to twenty percent, as an intruder in their house and an attacker of her father; - applicant Mr Rastislav Koky recognised two individuals who had been present at the pub during the argument but had not been among those who had beaten him. He also identified one individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him; and - applicants Mr Milan Baláž, Ms Renáta Kokyová and Mr Ján Koky Jr. did not identify anyone. 70. In what may appear to be a follow-up to the identity exercise, on 19 April 2002, the DPI requested the Police Institute of Forensic Analysis to examine buccal mucus samples of three individuals, B.B., V.P. and E.K. and to compare biological material thus obtained with other biological evidence taken from the scene of crime. 71. On 26 April 2002 the DPI suspended the above-mentioned criminal investigations. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of 28 February 2002. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person. 72. The decision of 26 April 2002 also stated that it was established that the incident at the Roma settlement “had been preceded by an assault on a waitress, I.S., by a Roma, M.K., and subsequent damage to the property of the family of I.S. by a hitherto unidentified Roma and so the actions of the unidentified perpetrators [could] not be considered or qualified as a criminal offence with a racial motive, because it [had come] down only to an act of retribution”. 73. As to the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko, the decision refers to the decision of 1 March 2002 and its contents (see paragraph 36 above). 74. On 3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal (sťažnosť) against the decision to suspend the investigation. Referring to the facts of the case, they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned. Citing, inter alia, Articles 5 and 13 of the Convention, they sought resumption of the investigation. 75. On the same day, namely 3 May 2002, the Poprad District Prosecutor (Okresná prokuratúra) (“the District Prosecutor”) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive. 76. Still on 3 May 2002, the DPI took a decision to resume the investigation. That decision contains a summary of the previous procedural developments, followed by a plain statement, without further elucidation, that “during further investigation it [had been] established that a racially motivated criminal offence [was] implicated and therefore it [was] necessary to take further investigative steps and resume the investigation ...”. 77. On 14 May 2002 the Police Forensic Analysis Institute filed a report with the DPI concluding that, having examined the biological material of B.B., V.P. and E.K. (see paragraph 70 above) and having compared it with the material taken from the crime scene, no link could be established. 78. In the morning of 20 May 2002, at 8.40, 8.50, 9 and 9.15 respectively, the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N. They completed their respective submissions of 14 March, 19 March, 17 April and 3 May 2002 and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene. 79. On 21 May 2002 at 8 am the DPI commenced interviewing M.L., who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of I.S. He stated that he had not been at the Roma settlement. 80. The following day the DPI again requested the Police Forensic Analysis Institute to analyse and compare biological material obtained from the three sons of I.S., M.N. and M.L. with the material taken from the scene of crime. 81. On 22 May 2002 the District Prosecutor declared the interlocutory appeal of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002 (see paragraph 74 above) inadmissible, replying on Articles 43, 124 § 1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question. 82. In its concluding part, which under the applicable procedural rules (see paragraph 125 below) contains information concerning available remedies, the decision provided that: “An interlocutory appeal against this decision is not permissible.” 83. However, in a letter of the same date, namely 22 May 2002, the District Prosecutor informed the applicants that she had reviewed the matter on her own authority, that on 3 May 2002 (see paragraph 75 above) she had quashed the decision, and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators. 84. At 8 a.m. on 23 May 2002 the DPI commenced interviewing E.K. During the morning of 4 June 2002 they interviewed R.S. (at 8.30), I.K. (8.45), J.H. (9.00) and M.K. (9.10). On 6, 7 and 18 June 2002 respectively the DPI interviewed J.K. (at 10 a.m.), P.P. (at 10 a.m.) and B.P. (before 9 a.m.). 85. They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime. 86. In addition, E.K. submitted that he had not been at the Roma settlement and that he had no explanation of how he could have been identified as someone involved in the attack. 87. R.S. acknowledged having been at the bar with B.P. and J.K. (see paragraphs 91 and 93 below) during the incident, which however he had not seen, and he had no information concerning the event investigated. 88. I.K. stated that he had no knowledge of the incident, of which he had learned from the media, and that he had not been at the Roma settlement. 89. J.H. had been away on a skiing trip from 28 February until 1 March 2002. 90. M.K. had been away on business in the week in question and had only returned on 1 March 2002. 91. J.K. had been at the bar during the incident, but had not witnessed it directly. He had not been at the Roma settlement and had no knowledge of who had been there. 92. P.P. acknowledged knowing M.S. However, he had not been at the Roma settlement, remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house. 93. B.P. acknowledged having been at the bar with R.S. and J.K. (see paragraphs 87 above and 91 above), but he had not directly witnessed the incident. He had not been at the Roma settlement, nor did he have any knowledge of anyone who had been there. 94. On 18 June 2002 the Police Forensic Analysis Institute reported to the DPI that, having examined the biological samples taken from F.S., P.S., M.S., M.N. and M.L. (see paragraph 80 above) and having compared it with the material taken from the scene of crime, no link could be established. 95. On 26 June 2002 the DPI again suspended the investigation, relying on Article 173 § 1 (e) of the CCP, and referring to similar considerations to those in the decision of 26 April 2002. It summarised previous procedural developments and observed that, despite additional information taken from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Koky and Mr Ján Koky Jr., it had not been possible to establish any evidence allowing charges to be brought against any specific person. However, it was considered established that the attack at the Roma settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I.S. 96. On 3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal against the decision of 26 June 2002, requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case. 97. The appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution and referred to the results of the identity exercise on 10 April 2002. In particular, they emphasised that, on that occasion, applicant Mr Martin Kočko had recognised one person; applicant Mr Rastislav Koky had recognised F.S. and submitted that the organisation of the attack had had a connection with the family of I.S.; and applicants Mr Ján Koky and Ms Žaneta Kokyová had recognised one person each. 98. On 11 July 2002 the applicants’ representative wrote to the Prosecutor General to inform him that they had lodged an interlocutory appeal against the decision of 26 June 2002 with the District Prosecutor and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault. He requested that the applicants be informed of the Prosecutor General’s office’s actions in the matter. 99. The applicants have not received any answer to their letter of 11 July 2002, and it appears that it has not given rise to any specific action or decision. According to an official statement of the Office of the Prosecutor General the letter is not a part of their case file. 100. On 17 July 2002 the District Prosecutor declared the interlocutory appeal inadmissible on similar grounds to those in the decision of 22 May 2002, relying on Articles 43, 142 § 1 a 173 of the CCP. 101. The decision contains information as to the available remedies, to the effect that: “An interlocutory appeal against this decision is not permissible.” 102. Nevertheless, the District Prosecutor reviewed the decision on her own initiative and, by a letter of the same day, namely 17 July 2002, informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution. 103. According to the letter, it was true that applicant Mr Rastislav Koky had recognised P.S., F.S. and M.N., but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him. Applicant Mr Ján Koky had recognised F.S. and had submitted that it was the latter who had beaten him in his house. This submission however contradicted a previous submission by applicant Mr Ján Koky (see paragraph 32 above) to the effect that, of the five attackers in his house, four were wearing balaclavas and one, whom he did not know, was not. It was also observed that Ms Žaneta Kokyová had not recognised any of the attackers. 104. The letter further states that additional action had been taken with a view to identifying those responsible, such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects, but the available evidence did not permit the bringing of charges against any particular person. 105. Meanwhile, on 11 July 2002 and again on 19 August and 8 November 2002, the DPI interviewed seven other individuals. These interviews however produced no useful new information. 106. On an unspecified date, in response to a request of 20 August 2002, the Police Institute of Forensic Analysis reported to the DPI that, having examined buccal mucus samples from P.G., M.S. and M.A. and compared it with the biological material taken from the scene of crime, no link could be established. 107. On 13 January 2003, in response to a request, the DPI reported to the District Prosecutor that hitherto “no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan”. 108. No information has been made available in respect of any further investigative actions and their outcome. 109. On 17 September 2002 all ten applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. Represented by a lawyer, they contended that the events of 28 February 2002 had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished. In particular, they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators, as obtained from the identity exercise of 10 April 2002. In addition, the authorities should have taken and assessed further evidence, such as records of mobile telephone communications between those involved, but had not done so. The applicants also contended that the assault had not been motivated by revenge but was racially motivated, to which the authorities had failed to pay adequate attention. 110. In the text of their complaint the applicants made reference to Article 1 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), in conjunction with a principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court’s judgment in the case of Aksoy v. Turkey (18 December 1996, Reports of Judgments and Decisions 1996VI). 111. In the standardised prescribed form containing a summary of their claim, the applicants applied for a ruling declaring a violation of their right to an effective remedy under Article 13 of the Convention and to judicial and other legal protection under Article 46 § 1 of the Constitution by actions of the DPI in the investigation referred to above. 112. On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended). 113. In particular, the Constitutional Court held that it had been open to the applicants to ask the Public Prosecution Service (“the PPS”), under Articles 167 and 174 § 2 (a) and (c) of the CCP, to instruct the DPI to proceed with the case. Had such a request been dismissed, the applicants could have used further remedies available to them under sections 31 et seq. of the PPS Act. No appeal against the decision of the Constitutional Court was available. 114. Article 1 § 2 provides that: “The Slovak Republic acknowledges and adheres to general rules of international law, international treaties by which it is bound, and its other international obligations.” 115. In so far as relevant, Article 15 stipulates that: “1. Everyone has the right to life. [...] 2. No one shall be deprived of life. ... 3. No infringement of rights according to this Article shall occur if a person has been deprived of life in connection with an action not defined as unlawful under the law.” 116. Article 21 § 1 provides that: “The home shall be inviolable. Entry without the consent of the person living there is not permitted.” 117. Article 46 § 1 of the Constitution reads as follows: “Everyone may claim his or her right by procedures laid down by an act of parliament before an independent and impartial court of law or, in cases provided for by an act of parliament, before another organ of the Slovak Republic.” 118. Pursuant to Article 127: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act, and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.” 119. Article 31a reads as follows: “Unless this Act provides otherwise or it is excluded by the nature of the matter, the proceedings before the Constitutional Court shall be subject to application mutatis mutandis of the provisions of the Code of Civil Procedure and the Code of Criminal Procedure.” 120. Under the relevant part of section 53(1) and (2): “1. A[n] [individual] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means, which a statute effectively provides to [the complainant] with a view to protecting [the complainant’s] fundamental rights or freedoms, and which the complainant is entitled to use under special statute [such as the Civil Procedure Code and the Administrative Procedure Code]. 2. The Constitutional Court shall not declare a[n] [individual] complaint inadmissible even if the condition under paragraph 1 has not been fulfilled, if the complainant establishes that [the complainant] has not fulfilled this condition due to reasons worthy of particular consideration.” 121. The purpose of the CCP is defined in its Article 1 § 1 as follows: “The purpose of the [CCP] is to regulate actions of the agencies involved in criminal proceedings with a view to establishing properly whether criminal offences have been committed and to punishing perpetrators lawfully and justly. The proceedings must work for reinforcement of compliance with the law, for prevention and obstruction of crime, [and] for the education of citizens in the spirit of consistent compliance with the law and rules of civic coexistence, as well as honest fulfilment of duties towards the State and the society.” 122. The fundamental principles of criminal proceedings are laid down in Article 2, the relevant parts of paragraphs 3 and 5 of which provide: “3. The prosecutor is duty bound to prosecute all criminal offences of which [he or she] has been apprised; any exception is permissible only under statue or a promulgated international treaty. 5. The agencies involved in criminal proceedings shall proceed so that the facts of the matter are duly established, to the extent which is absolutely necessary for their decision. With equal care, they shall elucidate circumstances both against and in favour of the charged person and, in both respects, they shall take and examine evidence without awaiting the parties’ proposals....” 123. The role of victims of crimes in criminal proceedings is defined in section (Oddiel) five of chapter (Hlava) two in part (Časť) one. The relevant part of its Article 43 § 1 provides as follows: “1. A victim is a person upon whom a criminal offence has inflicted health damage, property damage, non-pecuniary damage or other damage or it has violated or jeopardised [his or her] rights or freedoms protected by law. A victim has... the right to lodge [in the proceedings] [his or her] claim for damages; to propose that evidence be taken, examined and completed; to take part in the hearing,...; to comment on the evidence taken and examined...; and to make use of legal remedies to the extent defined by the CCP... 2. A victim who has a lawful claim against a person facing charges for compensation in respect of damage inflicted [on the victim] by a criminal offence, shall be entitled to propose that, in a judgment leading to conviction, the court should impose a duty on the accused to compensate for that damage. The proposal shall be made at the latest during the main court hearing before the presentation of evidence. The proposal has to be clear as to the ground and the amount of damages claimed.” 124. Section 3 of Chapter 3 in Part 1 contains rules concerning the making of and dealing with applications, the relevant part of its Article 59 § 1 providing that: “An application shall be assessed according to its content, irrespective of whether it is incorrectly named.” 125. Section 2 of Chapter 6 in Part 1 lays down rules concerning decisions (uznesenie), paragraph 134, the relevant part of which is cited below, defining the attributes, structure and content of a decision: “1. A decision must contain... e) information about available remedies.” 126. Chapter 7 in Part 1 regulates interlocutory appeals against decisions, their admissibility being defined in Article 141, the relevant part of which provides: “1. A remedy in respect of decisions consists of an interlocutory appeal. 2. An interlocutory appeal shall be available against any decision of an investigator or a police authority except for a decision on the opening of a criminal prosecution (Article 160). A decision by a court or by a prosecutor may be challenged by an interlocutory appeal only in those instances where the statute expressly so provides and if [a matter] is being decided on at first instance.” 127. Article 142 contains locus standi for such appeals, as follows: “1. Unless provided for otherwise by a statute, an interlocutory appeal may be lodged by a person who is directly affected by the [impugned] decision or who has prompted the decision by a request which [the appellant] was entitled to make by law....” 128. Section 2 of Chapter 10 in Part 2 regulates investigations, Article 167 providing for the possibility of having an investigator’s actions reviewed, in the following terms: “The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ensure] that delays in the investigation or shortcomings on the part of the investigator be eliminated. The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand.” 129. Section 4 of Chapter 10 in Part 2 deals with decisions at the preliminary stage of the proceedings, the relevant part of Article 173 providing that: “1. An investigator shall suspend criminal proceedings... (e) if it has been impossible to identify evidence allowing for the prosecution of a particular person... 3. Prior to suspending criminal proceedings everything needs to be done which is necessary for securing a successful completion of a criminal prosecution. Should there no longer be any reason for the suspension, the criminal proceedings shall be resumed.” 130. Section 5 of Chapter 10 in Part 2 regulates the prosecutor’s supervision of adherence to lawfulness in pre-trial proceedings, the relevant part of Article 174 providing that: “1. Supervision of lawfulness in pre-trial proceedings shall be carried out by the prosecutor. 2. While carrying out this supervision, the prosecutor shall have the power: (a) to give binding instructions for the investigation of criminal offences... (c) to take part in activities carried out by an investigator or a police authority or directly to take a particular action, to carry out the entire investigation and to take a decision on any matter whereby the provisions of [the CCP] normally applicable to an investigator shall apply to the prosecutor mutatis mutandis and, as a decision of an investigator, the decision by the prosecutor shall be challengeable by an interlocutory appeal.” 131. The Act entered into force on 1 May 2001, replacing previous legislation (Law no. 314/1996 Coll., as amended). The object of the Act is defined in its section 1, which reads as follows: “1. This Act determines the status and jurisdiction of the Public Prosecution Service, the status and jurisdiction of the Prosecutor General, the status of other prosecutors, organisation and administration of the Public Prosecution Service. 2. The status of prosecutors; their rights and obligations; the establishment, modification and termination of [their] service relationship and the claims ensuing from it; the relationships of responsibility; disciplinary proceedings and selfgovernance of prosecutors shall be subject to a special statute.” 132. Petitions to the PPS are regulated by Part (Časť) four of the Act. Pursuant to the relevant part of its section 31: “1. A prosecutor may examine the lawfulness of actions and decisions of bodies of public administration, prosecutors, investigators, police authorities and courts in so far as a statute so provides, including upon a petition, and is entitled to take measures to rectify established violations, provided [such measures] do not fall under a special statute within the exclusive jurisdiction of other bodies. 2. A petition is understood as a written or oral demand, proposal or other submission by an individual or a legal entity, which is aimed at a prosecutor taking a measure within [the prosecutor’s] jurisdiction, in particular lodging an application for proceedings to commence before a court, or submitting a remedy, joining existing proceedings, or taking other measures for rectification of a violation of the law, which fall within [the prosecutor’s] jurisdiction.” 133. The relevant part of section 33 provides that: “1. A prosecutor is duty bound to process a petition within two months of its introduction... 2. A prosecutor shall notify a petitioner within the period specified in subsection 1 of the manner in which the petition has been resolved. [...]” 134. Section 34 deals with repeated petitions and further repeated petitions. Its relevant part reads as follows: “1. A petitioner may demand a review of the lawfulness of how the petition has been resolved by means of a repeated petition, which shall be dealt with by a prosecutor at a higher level. 2. A further repeated petition shall be dealt with by a prosecutor at a higher level only if it contains new information. A further repeated petition is understood to be a third and any further consecutive petition, in which the petitioner expresses discontent with the manner in which [his or her] petitions in the same matter have been resolved.” 135. Under the relevant part of section 35: “1. In dealing with a petition, a prosecutor is duty bound to examine all circumstances decisive for the assessment of whether there has been a violation of the law; whether the conditions are fulfilled for lodging an application for proceedings before a court to commence or for submitting a remedy; or whether [the prosecutor] may join existing proceedings before a court or take other measures which [the prosecutor] is entitled to take under [the Public Prosecution Service Act].” 2. The prosecutor assesses the petition according to its content... 3. If the prosecutor establishes that a petition is well founded, [he or she] shall take measures for rectification of the violation of law pursuant to [the Public Prosecution Service Act] or a special statute.” 136. In a decision of 13 December 2001 (in case no. III. ÚS 123/01) the Constitutional Court declared inadmissible a submission, in which an individual had complained that criminal proceedings against him had been too lengthy and that they, as well as a warrant for his arrest, had been unjustified. In rejecting the claim, the Constitutional Court held that, in respect of the criminal proceedings as such, it was for the applicant first to seek redress from the investigator or the supervising prosecutor by the means available under the CCP and, as the case might be, also from a higher level of the PPS by means available under the PPS Act. As to the arrest warrant, it was for the applicant to assert his rights before the ordinary courts. 137. In a decision of 20 November 2002 (in case no. I. ÚS 143/02) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested the way the PPS had handled his complaint concerning interference with his correspondence by prison authorities. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a repeated petition under section 34(1) of the Public Prosecution Service Act. 138. In a decision of 2 July 2003 (in case no. III. ÚS 155/03) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution in which an individual had contested a decision of the PPS quashing a previous decision of an investigator to restore to the applicant cash and objects retained in the context of criminal proceedings against him. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek it from a higher level of the PPS by means of a petition under section 31 of the PPS Act, irrespective of the fact that the decision was not subject to appeal under the CCP. 139. In a decision of 28 April 2004 (in case no. III. ÚS 127/04) the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution, in which an individual had contested a decision by the PPS to reject an interlocutory appeal by the complainant against a decision of a lower level of the PPS to discontinue proceedings in the complainant’s criminal complaint concerning an alleged violation of the privacy of a home. In that case, the interlocutory appeal had been rejected because, being in the procedural position of a victim, the complainant had no standing to appeal. In rejecting the complaint, the Constitutional Court held that, by virtue of the rule of exhaustion of remedies, it was for the complainant, prior to claiming protection from the Constitutional Court, first to seek a review of the decision at the highest level of the PPS, that is to say the Prosecutor General, under sections 31 to 36 of the PPS Act. At the same time, the Constitutional Court observed that no grounds had been established for exempting the complainant from the obligation to use that remedy. 140. The principles stemming from the Constitutional Court’s decisions mentioned above were applied mutatis mutandis in the Constitutional Court’s subsequent decisions of 26 May 2004 (in case no. IV. ÚS 179/04) and 24 May 2007 (in case no. IV. ÚS 126/07). 141. Meanwhile, on 7 July 2006 (in case no. II. ÚS 223/06), the Constitutional Court declared inadmissible a complaint under Article 127 of the Constitution of 14 June 2006, in which a group of individuals had contested the outcome of the proceedings concerning their criminal complaint of an alleged abuse of official authority in connection with the termination of their service in the police. The Constitutional Court observed that the complainants’ criminal complaint had been rejected on 21 July 2005 and that their interlocutory appeal to the PPS had been dismissed on 29 September 2005. The Constitutional Court found that, as the constitutional complaint had been lodged on 14 July 2006, it had clearly been lodged outside the statutory two-month time-limit for lodging such a complaint. The Constitutional Court held that the position had not been altered by the subsequent decisions at a higher level of the PPS to dismiss the complainants’ petition and repeated petition for reexamination of the lawfulness of the decision of 29 September 2005. In reaching that conclusion, the Constitutional Court observed that the complainants’ petition and repeated petition had been aimed at having a complaint in the interest of law (sťažnosť pre porušenie zákona) lodged by the Prosecutor General on their behalf, which was however an extraordinary remedy, and a negative decision: accordingly it did not restart the running of the two-month time-limit. 142. The offence of violence against a group of citizens and against an individual is defined in Article 196, the relevant part of which reads as follows: “1. He who threatens a group of citizens with killing, causing bodily harm or causing damage on a large scale (škoda veľkého rozsahu) shall be punished by imprisonment for up to one year. 2. He who perpetrates violence against a group of citizens or an individual or threatens them with death, causing bodily harm or causing damage on a large scale on account of political belief, nationality, race, affiliation to an ethnic group, religion or because they are without religion, shall be punished by imprisonment for up to two years.” 143. The offence of causing bodily harm is defined in Article 221, the relevant part of which provides that: “1. He who intentionally causes bodily harm to another’s health shall be punished by imprisonment for up to two years or by a financial penalty.” 144. Article 238 defines the offence of violating the privacy of a home, its relevant part reading as follows: “1. He who enters a house or a flat of another without authority to do so or remains there unauthorised shall be punished by imprisonment for up to two years or by a financial penalty... 3. The perpetrator who, in committing the act referred to in section 1, applies violence or a threat of immediate violence and commits such an act with a weapon or with at least two others shall be punished by imprisonment for between one year and five years. 145. The offence of criminal damage is defined in Article 257, the relevant part of which provides that: “1. He who destroys, damages or makes unusable something belonging to someone else and thereby causes a non-negligible damage (škoda nie nepatrná) to someone else’s property shall be punished by imprisonment for up to one year or interdiction of an activity or a financial penalty or forfeiture of an item of property.” 146. The communication was considered by the Committee in an Opinion adopted at its meeting on 8 August 2000. 147. The case concerned difficulties that the petitioner and several other families, being of Roma ethnic origin, had been experiencing with settling down and establishing a home and, in particular, two municipal resolutions forbidding the families in question from settling in the villages concerned and threatening them with expulsion. The petitioner unsuccessfully complained about the municipal resolutions before the Constitutional Court and a criminal investigation into the matter was suspended, by a decision of the PPS. 148. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to contest the decision to suspend the investigation under the PPS Act of 1996 (see paragraph 131 above) and to assert her rights by way of an action for protection of her personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.4 and 4.6 of the Opinion). 149. The Committee, however, “did not share the State party’s view that domestic remedies had not been exhausted and considered that neither a new petition to the Constitutional Court nor a civil action would be 150. The communication was considered by the Committee in an Opinion adopted at its meeting on 9 August 2001. 151. The case concerned a Slovak national, who had been refused service in a restaurant and was told to leave on account of his Roma ethnic origin, and an alleged failure by the State party to sanction or remedy this treatment. Following investigation upon the petitioner’s criminal complaint in that respect, the police found that there was no evidence that any criminal offence had been committed. Upon the petitioner’s appeal to the PPS, the decision was upheld. 152. In defending the case, the State party concerned argued, inter alia, that the petitioner had the opportunity to seek a review of the lawfulness of the position taken by the public prosecution service at a higher level in that body under the PPS Act of 1996 (see paragraph 131 above) and of asserting his rights by way of an action for protection of his personal integrity under Articles 11 et seq. of the Civil Code (see paragraphs 4.1 and 4.2 of the Opinion). 153. In response, the Committee observed that Article 14 § 7 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the Committee is not to consider any communication unless it has ascertained that all available domestic remedies have been exhausted and that it has held in its previous jurisprudence that a petitioner is only required to exhaust remedies that are effective in the circumstances of the particular case (see paragraph 6.2 of the Opinion). 154. Furthermore, the Committee noted that “the decision of the [PPS] was a final decision as far as the criminal procedure was concerned. The State party [had] failed to demonstrate that a petition for review, which would be a remedy against the legality of the decision, could in the present case [have] [led] to a new examination of the complaint”. Furthermore, the Committee found that “the facts of the claim were of such a nature that only criminal remedies could constitute an adequate avenue of redress. The objectives pursued through a criminal investigation could not be achieved by means of civil or administrative remedies of the kind proposed by the State party”. Therefore, the Committee found that “no other effective remedies were available to the petitioner” (see paragraph 6.3 of the Opinion). 155. The communication was considered by the Committee at its meeting on 2 May 1995. Among the views it adopted, in the relevant part of their paragraph 6.1, dealing with the requirement of exhaustion of domestic remedies, the Committee: “considered that, even if these attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to [the alleged victim’s] wish to have the allegations investigated. The Committee concluded that, in the circumstances, it was not barred from considering the communication.” | 1 |
train | 001-58024 | ENG | AUT | CHAMBER | 1,997 | CASE OF MAUER v. AUSTRIA | 3 | Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Not necessary to examine Art. 6-3-d;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | R. Pekkanen | 9. The applicant is an Austrian national born in 1953 and resident in Vienna. He has a taxi business. 10. On 4 March 1988 a car identified as belonging to the applicant was seen to drive through a red traffic-light. 11. On 15 May 1988 the Federal Police Authority (Bundespolizeidirektion) in Vienna sent the applicant a letter ordering him to disclose the identity of the driver. 12. On 20 May 1988 the Vienna Federal Police Authority imposed a fine of 800 Austrian schillings (ATS) with forty-eight hours’ imprisonment (Arrest) in default on the applicant by way of a provisional penal order (Strafverfügung) for having failed to comply with his obligation as registered owner (Zulassungsbesitzer) of a car to disclose the identity of the driver at a particular time, contrary to section 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz) 1967 (see paragraph 22 below). 13. The applicant states that he tried to submit a written appeal at a police station, or in the alternative to declare his objections orally, but the officers at the police station refused to cooperate. 14. When the Federal Police Authority proceeded to the enforcement of the provisional order, the applicant referred to this refusal. The authority thereupon instituted ordinary penal administrative proceedings which - after a hearing of the applicant - led to a penal order (Straferkenntnis) on 21 April 1989 imposing a fine of ATS 800 (again with forty-eight hours’ imprisonment in default) and ordering the applicant to pay costs to an amount of ATS 80. 15. The applicant appealed to the Vienna regional government (Amt der Landesregierung), which on 12 June 1989 quashed this penal order as being null and void on the ground that the applicant had not effectively raised objections against the initial provisional penal order. The latter order accordingly remained valid. 16. The applicant lodged a complaint regarding this decision with the Administrative Court (Verwaltungsgerichtshof), which on 18 October 1989 dismissed the appeal without a hearing (section 35 (1) of the Administrative Court Act) and confirmed the decision of the regional government. It found that the refusal of the police to accept his written appeal had not deprived the applicant of the possibility to lodge it; he could still have dropped it into the letter-box or sent it by post. 17. On 6 August 1987 officers of the Vienna police found that a tyre on one of the applicant’s taxis had too low a tread. They drew up a report and confiscated the car’s number plates and logbook. 18. On 20 September 1988 the Vienna Federal Police Authority, having heard the applicant, fined him ATS 500 for failure to comply with his duties as the registered owner of a motor vehicle (see paragraph 21 below), with thirty hours’ imprisonment in default. 19. The applicant appealed to the Vienna regional government, which confirmed the decision of the Federal Police Authority on 21 April 1989. 20. The applicant filed a further appeal to the Administrative Court on 9 June 1989, complaining, inter alia, that the regional government had refused to hear the evidence of witnesses whom he had sought to bring forward. The Administrative Court dismissed this appeal on 13 December 1989 without a hearing and ordered the applicant to pay ATS 2,760 costs. Its reasoning reflected the finding that the further evidence which the applicant had wished to put forward was in any event irrelevant. 21. Under section 103 (1), first sub-paragraph, of the Motor Vehicles Act 1967, the registered owner of a motor vehicle is responsible for maintaining the vehicle in such a way as to comply with the Act or delegated legislation. Section 7 (1) of the Act requires motor vehicles to be equipped with appropriate tyres for the type of vehicle. Regulation 4 (4) of the Motor Vehicle (Implementation) Regulations (Kraftfahrzeuggesetz-Durchführungsverordnung) requires the tyres of the type of vehicle at issue in the present case to have a tread at least 1.6mm high over their entire surface. 22. Section 103 (2) of the Act entitles the competent authority, inter alia, to require the registered owner to communicate the name and address of the person who has used the vehicle at a specific time. 23. Under section 134 (1), first sub-paragraph, it is an administrative offence (Verwaltungsübertretung) not to comply with the above-mentioned provisions, punishable by a fine of up to ATS 30,000 or up to six weeks’ imprisonment in default. 24. For a description of the relevant domestic procedure, reference is made to the Umlauft v. Austria judgment of 23 October 1995 (Series A no. 328-B, pp. 34-36, paras. 14-23). | 1 |
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