partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
train | 001-76906 | ENG | RUS | ADMISSIBILITY | 2,006 | INOZEMTSEV v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Valeriy Vladimirovich Inozemtsev, is a Russian national, who was born in 1961 and lives in the village of Listvyanka of the Ryazan Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a retired serviceman. On unspecified dates in the past, he had taken part in peace-keeping operations in former Yugoslavia and Tajikistan. On unspecified dates, the applicant instituted two sets of proceedings against military unit no. 03611, seeking to recover the unpaid daily allowances owed to him for his participation in the above operations. In the proceedings before the Military Court of the Ryazan Garrison (Рязанский гарнизонный военный суд) the representative of the military unit fully accepted both the applicant’s claims. He submitted that it was impossible to pay the sums owed to the applicant, since there was no mechanism developed for payment of daily allowances to servicemen who had been commissioned abroad. Furthermore, no funds were available for this purpose. On 11 December 2001 the Military Court of the Ryazan Garrison granted the applicant’s first claim and ordered the defendant to pay him 379,632.12 Russian roubles (“RUR”, approximately 14,170 euros at the material time). The court found that the applicant could not be deprived of the right to receive the sums owed to him because of the absence of an appropriate mechanism of payment. No appeal was lodged and this judgment became final on 24 December 2001. On 20 December 2001 the Military Court of the Ryazan Garrison granted the applicant’s second claim and ordered the defendant to pay him RUR 182,587.80 (approximately 6,683 euros at the material time). The court came to the same finding as above. No appeal was lodged and this judgment became final on 3 January 2002. On 5 February 2002 the Military Court issued two execution writs. On an unspecified date, the applicant submitted the execution writs to the Ryazan Regional Branch of the Federal Treasury. He was advised to apply to the Ministry of Finance for the latter to recover the amount due from the Ministry of Defence. On 22 April 2002 the applicant forwarded the execution writs to the Ministry of Finance. According to the Government, the Ministry acted under the procedure set out in Decree No. 143 and notified the Ministry of Defence about the applicant’s claims, requesting it to pay. By payment order no. 262 of 23 April 2003 the applicant received the outstanding amount of RUR 562,219.92 in full. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that a coercive action will follow, should the defendant fail to comply with the time-limit. Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff. Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget, adopted by the Federal Government on 22 February 2001 (Decree No. 143, as in force at the relevant time), a creditor is to apply to a relevant branch of the Federal Treasury holding debtor’s accounts or, in certain cases, to the Ministry of Finance (Sections 1 to 4). Within the next five days the branch examines the application and notifies the debtor of the writ, compelling the latter to abide by the respective court decisions (Sections 7 to 12). In case of the debtor’s failure to comply within two months, the branch may temporarily freeze the debtor’s accounts (see Section 13). | 0 |
train | 001-114652 | ENG | GEO | CHAMBER | 2,012 | CASE OF GOLOSHVILI v. GEORGIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1988 and is currently serving a prison sentence in Geguti no. 8 Prison. 7. On 8 March 2006 the applicant was arrested in connection with a robbery. 8. On 16 October 2006 the Kaspi District Court convicted him and three others of conspiracy to commit robbery. The conviction was based on various evidence, including the statements of the victim, who had identified the applicant and the other accused as the perpetrators during the trial. The applicant was sentenced to six years in prison. 9. As disclosed by the transcript of the trial, the victim, a person of Azerbaijani origin who had difficulty in speaking Georgian, was assisted by an interpreter. The lawyers of the accused, including that of the applicant, extensively examined the victim and other witnesses for the prosecution. 10. On 8 November 2006 the applicant appealed against the conviction of 16 October 2006, calling into question the lower court’s assessment of the evidence and accusing the investigating authority of procedural omissions. He stated, in particular, that the victim’s incriminating statements lacked credibility, in so far as the victim had been examined at the investigation stage without the assistance of an interpreter. 11. On 25 May 2007 the Tbilisi Court of Appeal, replying to all his major arguments, dismissed the applicant’s appeal of 8 November 2006. As regards the complaint concerning the victim’s statements, the court noted that the conviction had been based on the statements given during the trial, rather than on those obtained at the investigation stage. Having reviewed those statements, the appellate court confirmed their credibility. 12. The decision of 25 May 2007 dismissing the applicant’s appeal was finally upheld by the Supreme Court of Georgia on 17 January 2008. 13. According to the case file, prior to the initiation of the criminal proceedings against the applicant and his consequent detention, he had had no major medical problems and was in good health. Notably, he had been a member of a wrestling club in Gori and, as his coach confirmed, had been in excellent physical condition and been considered a promising sportsman at that time. 14. The case file also contains a document dated 4 November 2008 from the Gori tuberculosis hospital, stating that the applicant had never been registered as a patient there. 15. Subsequent to his arrest on 8 March 2006, the applicant was placed in Tbilisi no. 5 Prison, where he allegedly shared a cell with prisoners infected with pulmonary tuberculosis (“TB”). 16. On 29 February 2008, the applicant was transferred to Geguti no. 8 Prison, where his state of health began to deteriorate from late May 2008. His symptoms were fever and a cough. 17. On 18 June 2008, pursuant to a complaint of 17 June 2008 from the applicant’s mother, a medical expert examined the applicant, diagnosing him with TB. On the same day he was transferred to Ksani Prison, where prisoners with TB were housed. 18Ksani TB Prison issued an opinion which confirmed that the applicant’s right lung had been affected by TB, with a positive sputum culture, and that the disease was at the stage of disaggregation; the applicant was occasionally coughing up blood. The opinion further disclosed that the applicant had started receiving anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for detection and cure of TB recommended by the World Health Organisation) on 26 June 2008. Notably, he had been prescribed with daily dosages of such conventional antibiotics as isoniazid (300 mg), ethambutol (1,100 mg), rifampicin, pyrazinamide (1,600 mg) and streptomycin (1 gr). 19. On 2 July 2008 the prison authorities arranged for the applicant’s sputum culture and sensibility to be tested by the National Centre for Tubercular and Lung Diseases. The results of those tests, issued on 2 September 2008, showed that the sputum culture was already negative. It was also established that the applicant’s TB bacterium maintained sensitivity with respect to the administered antibiotic drugs, which confirmed the suitability of the ongoing treatment. 20. On 19 September 2008 the prison authority arranged for another round of specific bacteriological tests (smear, culture and susceptibility), the results of which, issued on 22 September 2008, disclosed that the applicant’s treatment was continuing to show promising results. 21. On 26 February 2009 the applicant’s treatment was completed, and on the following day he was transferred from Ksani TB Prison to Geguti no. 8 Prison. The termination of the treatment was based on the opinion of the doctor who had been monitoring the applicant since 26 June 2008, as well as on the results of laboratory tests of the applicant’s sputum, dated 18 February 2008, which confirmed that TB bacilli were no longer present in the applicant’s lungs. 22. The applicant’s medical file further discloses that during the whole period of his treatment, from 26 June 2008 until 26 February 2009, his intake of antibiotics had been closely monitored by medical personnel with the appropriate training. 23. On 19 April 2010 the prison authorities arranged for an X-ray examination of the applicant’s thorax, the results of which confirmed that there were no new tubercular signs in the applicant’s lungs, thus excluding the risk of relapse. 24. Article 207 of the General Administrative Code stated that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code. 25. Article 413 of the Civil Code entitled an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health. | 0 |
train | 001-86586 | ENG | BGR | ADMISSIBILITY | 2,008 | IVANOVA-SOKOLOVA v. BULGARIA (II) | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | The applicant, Ms Yulia Kostadinova IvanovaSokolova, is a Bulgarian national who was born in 1954 and is presently serving a prison sentence in Sliven Prison. She was represented before the Court by Ms A. Mircheva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. The applicant had two previous applications with the Court (nos. 46587/99 and 77117/01), in both of which she complained, inter alia, about her conditions of detention between 1993 and 2001 and the medical care she received in custody (see below). In application no. 46587/99 the applicant also raised a complaint in respect of the fairness of the 199396 criminal proceedings against her (see below). These applications were declared inadmissible by committees of three judges, acting under Article 28 of the Convention, on 27 April 1999 and 8 November 2002 respectively. The facts of the case, as submitted by the parties, may be summarised as follows. Between 1971 and 1987 the applicant was convicted six times of various offences and sentenced to several terms of imprisonment, which she served before 1990. Between 1991 and 1993 the applicant committed a number of offences of fraud in Sofia. She was arrested on 1 July 1993. Later she was charged and prosecuted. On 6 June 1996 the Sofia District Court found her guilty and sentenced her to ten years’ imprisonment. Her conviction and sentence were upheld by the Supreme Court on 11 December 1996. On 11 July 1997 the Sliven District Court convicted the applicant of insulting a prison officer and sentenced her to six months’ imprisonment. On 17 December 1999 the Sofia District Court convicted the applicant of falsely accusing two investigators and another official of bribery, and sentenced her to three years’ imprisonment. In a decision of 7 December 2000 the Sofia District Court joined the three punishments and imposed a global term of imprisonment of thirteen years. In a decree of 16 July 2001 the President of the Republic partially pardoned the applicant. According to the medical documents in the file and the applicant’s submissions in her observations, she suffers from the following medical conditions: (i) chronic bronchitis, diagnosed in 1997, but having first developed a few years earlier; (ii) bronchial asthma, diagnosed in 1998 as a complication of the chronic bronchitis; (iii) arterial hypertonia, diagnosed for the first time in 1998; (iv) chronic hydronephrosis of the right kidney, diagnosed in 1998, but which had first occurred earlier; (v) a cyst on the left ovary; (vi) polyallergy to contrast media; (vii) reactive depression; and (viii) neurosis. The applicant started serving her sentence in the Sliven Prison for female offenders on 6 January 1994. On 15 April 1998 her sentence was interrupted until 8 June 1998 for medical reasons. As she did not return to prison, she was put on the national list of wanted persons and on 15 August 1998 was arrested and sent back to Sliven Prison. The applicant’s sentence was interrupted again on 7 November 1998 until 8 January 1999. As she failed to return once more, she was arrested on 14 January 1999 and sent to Sliven Prison on 1 February 1999. A further interruption was granted on 19 May 1999, until 15 November 1999. As she again did not return to prison, she was arrested on 27 April 2000 and sent there. Another interruption was granted between 5 April 2001 and 23 June 2001. The applicant returned to prison on 25 June 2001. It seems that each time the applicant was arrested and returned to prison, she did not produce any documents showing that she had used the interruption of her sentence for medical treatment and provided no specifics of the medical examinations of treatments she had undergone while at liberty. On one occasion, in 1999, she claimed that she had consulted three doctors from the hospital of the Ministry of Internal Affairs. When contacted by the prison authorities, the doctors denied ever having met the applicant. The latest interruption of the applicant’s sentence for medical reasons was granted on 13 December 2001, until 10 June 2002. She did not return to prison. While in prison, the applicant underwent many medical examinations and tests. On a number of occasions she refused to submit to tests. On 18 February 2004 the applicant was arrested by the Pirdop police on suspicion that she had used a forged identity card to pass herself off as another person. She was charged with knowingly using false documents. On 20 February 2004 the Pirdop District Court decided to place the applicant in pretrial detention. She was sent to an investigation detention facility in Pirdop. On admission she was medically examined. The facility was situated on the premises of the Pirdop police department in the town centre. According to the description provided by the Bulgarian Helsinki Committee on the basis of a visit carried out in 2004, it had three cells, each measuring approximately three by two metres, with high ceilings. Each cell had a twolevel metal bed with mattresses, two blankets and pillows, as well as a small table and two small chairs. Additional blankets and bed sheets were provided upon request. The mattresses and blankets were clean but worn out. The cells did not have sanitary facilities. They did not have windows, but only openings in the doors, and were equipped with not very bright luminescent light bulbs, with the result that the lighting in them was dim, especially when the windows in the corridor, which were painted brown, were closed. The cell walls were frequently repainted and were in a satisfactory condition. While no outdoor exercise was available, the detainees were taken out of the cells for meals and the toilet for about thirty minutes three times a day; during this time the cell doors and the windows in the corridor were left open for ventilation. Meals were served in a separate room with a table, chairs, a sink and metal lockers for the detainees’ personal belongings. Adjacent to this room were the bathroom and the toilet. The toilet, which was of the Asian type, was quite dilapidated. The bathroom had a boiler, which made possible a shower twice a week. No timelimits were placed on showering. The detainees were not forced to use buckets to relieve themselves in the cells. The facility did not have a medical unit or resident medical staff. On arrest detainees were taken to the Pirdop local emergency service for examination. Whenever a detainee needed a doctor or a dentist, he or she was transported in a police car to the local hospital or an outside doctor was called. There were eleven officers on the staff, none of them female. When necessary, a female police officer was called from the local police station. The facility was closed at the end of 2006 as part of a programme for the improvement of pretrial detention facilities in the country in the runup to its accession to the European Union. During her stay in the facility the applicant was apparently not banned from accessing the toilet every time she needed to do so. However, each time she had to notify the guards, who were all male. On 28 March and 8 April 2004 the applicant was medically examined. On both occasions she complained of pain in the chest and the lumbar area; the doctors’ conclusions were that her state of health did not require hospitalisation and that she could remain in the facility. The applicant’s stay in the facility was interrupted several times by transfers to another investigation detention facility in Sofia, where she had to appear for court hearings. These transfers took place between 25 February and 5 March, between 16 and 23 March, and between 9 and 15 April 2004. This facility provided better conditions; there was abundant access to natural light during the day and proper lighting at night, sanitary facilities in the cells and good ventilation. On being admitted to the investigation detention facility in Sofia on 16 March 2004, the applicant informed the resident doctor that she suffered from hydronephrosis. She was then taken for an examination at the Sofia Prison hospital, where she was prescribed medication. According to the doctor servicing the medical centre of the Sofia detention facility, the applicant had not mentioned other conditions or symptoms and had not exhibited external signs of illness during the routine admission checkups. On 9 April 2004 the applicant, represented by an ex officio counsel, entered into a plea agreement with the prosecution in respect of the charges of using false documents. The agreement was upheld by the Pirdop District Court at a public hearing held on 20 April 2004. The applicant was sentenced to six months’ imprisonment, which she was to serve after the expiry of her initial thirteenyear sentence. On 21 April 2004 the Pirdop District Prosecutor’s Office sent a copy of the plea agreement to the Ministry of Justice, advising it that the applicant was to be transferred to Sliven Prison within three days. However, due to a lack of suitable transport she remained in Pirdop. On 26 April 2004 the applicant complained to the prosecution authorities about not being transferred to Sliven Prison. After conducting an inquiry, in a decision of 16 June 2004 the Sofia Regional Military Prosecutor’s Office refused to open a criminal investigation against the officials allegedly responsible for the delay. The applicant did not appeal against this decision. In the meantime, on 3 May 2004, the applicant was transported to Sliven Prison. On admission to Sliven Prison the applicant underwent a medical checkup. It was found that she was suffering from a viral infection and she was treated with antibiotics. As the applicant apparently made a number of complaints relating to her state of health, in June 2004 the prison administration arranged for her to be transferred to the Sofia Prison hospital for tests. On 21 June 2004 the applicant was offered the opportunity to go to that hospital but refused. However, some time later, on 1 July 2004, the applicant was admitted to the Sofia Prison hospital. She remained there until 20 July 2004. On 12 July 2004 a medical committee from the hospital informed the warden of Sliven Prison and the Sliven Regional Court that the applicant’s main ailment was a chronic hydronephrosis of the right kidney and that none of her other conditions required hospital treatment. They further noted that the applicant had refused to undergo tests which she had been offered in an outside hospital. Their conclusion was that the applicant’s conditions were not in an acute phase and did not require an urgent interruption of her sentence on medical grounds. On 8 September 2004 the Sliven Regional Prosecutor’s Office turned down a request by the applicant for an interruption of her sentence. On 16 November 2004 the applicant was examined by a urologist in a hospital in Sliven. He was of the opinion that surgery might be necessary if her kidney problems worsened. On 23 November 2004 the applicant had a consultation with a psychiatrist. In a decision of 24 November 2004 the Sliven Regional Prosecutor’s Office rejected another request by the applicant for an interruption of her sentence on medical grounds. The office stated, after having obtained the observations of the warden of Sliven Prison and a medical certificate, that the medical treatment required could be dispensed in the Sofia Prison hospital. It was thus unnecessary to release the applicant from custody. On 28 January 2005 the applicant was transferred to a detention facility in Sofia, so as to be able to attend a hearing listed before the Sofia District Court. She remained in that facility until 9 February 2005. On admission she underwent a medical checkup. She informed the medical staff that she was suffering from bronchial asthma, arterial hypertonia, a valvular defect and hydronephrosis. She accordingly underwent three further checkups and was monitored throughout her stay in the facility. In view of the applicant’s stable condition the facility medical staff saw no need to refer her to an outside hospital. On 22 February 2005 the applicant was sent for tests to a hospital in Sliven where she was allegedly given an injection. It seems that on 23 February 2005 the applicant was admitted to the Sofia Prison hospital for treatment for an unspecified amount of time. On 14 March 2005 the applicant was examined by a special medical committee for pulmonary diseases for the purpose of establishing the degree of her disability for pension purposes. The committee found that the applicant was suffering from asthma and chronic hydronephrosis, and concluded that she was 44% disabled. On 23 June 2005 the applicant was again examined by the central special medical committee for pulmonary diseases. In a decision of 30 June 2005 the commission reversed the other medical commission’s finding and established that the applicant was suffering from light to intermediate persistent bronchial asthma, a cyst on the left kidney, a cyst on the left ovary and a dissociative personality disorder, and concluded that she was 36% disabled. The commission recommended that the applicant refrain from hard physical labour and avoid damp or dusty spaces, as well as cold environments. On 11 June 2005 the applicant and four other inmates, who were, like her, in group 7 (see below, paragraph 84 of the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from their visit in Bulgaria in 2006), were not allowed to attend a play staged by a theatre company from Sofia for the inmates. The warden had based this decision on security considerations, after an incident which had taken place in the prison cinema a few days earlier, on 8 June 2005, and because the maximum number of persons who could attend the play was 220, whereas the total number of prisoners was 321. On 26 July 2005 the applicant was examined by a cardiologist and prescribed medication. On 7 October 2005 the Sliven Regional Military Prosecutor’s Office, after conducting an inquiry, rejected the applicant’s request to open a criminal investigation against members of the prison staff who had allegedly breached the law by not allowing her to attend the theatre play. On 5 October 2005 the applicant asked to be admitted to the Sofia Prison hospital. This happened on 21 October 2005. On admission she complained of breathing difficulties and pain in the right lumbar area. She remained there until 26 October 2005 and was diagnosed with chronic nonobstructive bronchitis, bronchial asthma, high blood pressure, hydronephrosis, and neurosis with mood swings. She underwent urine and blood tests and several medical examinations. The conclusion of the doctors was that her overall state of health was satisfactory and that she could return to Sliven Prison as she had requested. They expressed the view that the real cause of her admission to hospital had to do with “nonmedical” issues and her behaviour was actuated by “her neurosis with mood swings”. According to Government, during her stay at the hospital the applicant had been rude to the medical staff and had refused to submit to certain medical tests. According to the applicant, there was no need for her to remain in the hospital any longer, as the doctors had refused to subject her to certain tests which she had considered important. On 4 November 2005 the applicant was examined by a surgeon in Sliven who found that she had a verruca on her left thigh. He proposed removing it on the spot, but the applicant refused. On 28 November 2005 the applicant was examined by a urologist. He apparently recommended that she undergo kidney surgery. He also suggested that she undergo a scintigraphy and an isotope nephrogram and noted that she had a polyallergy to contrasting matters. The Sliven Prison medical staff informed the applicant that the prescribed tests could be administered at the Sofia Prison hospital, but she refused to undergo such tests. On an unspecified date in November or December 2005 the applicant requested an interruption of her sentence, citing the need to undergo kidney surgery and to have a mole removed. By a decision of 12 December 2005 the Sliven Regional Prosecutor’s Office refused the request, noting that, according to the opinion of the medical committee at Sliven Prison, the applicant could be treated in the Sofia Prison hospital, which obviated the need for such an interruption. On 5 January 2006 the Sliven Regional Prosecutor’s Office turned down a further request for an interruption of the applicant’s sentence on medical grounds. It reasoned that the applicant had on numerous occasions been treated at prison hospitals in Sliven and in Sofia and that the necessary medical tests and treatment could be carried out at the Sofia Prison hospital. According to the opinion of the medical committee at Sliven Prison, there was no need to interrupt her sentence on medical grounds. On 18 January 2006 the applicant was taken out of prison to be examined by a cardiologist in Sliven and undergo a electrocardiogram. The doctor who examined the applicant was of the opinion that she had to remain as an inpatient because of a worsening of her bronchitis. A hospital bed was made available, but the applicant refused to submit to treatment. However, she underwent an X-ray and laboratory tests. On 2 March 2006 the Sliven Regional Military Prosecutor’s Office, after interviewing the applicant and taking note of a number of relevant medical documents, refused to open criminal proceedings pursuant to her allegations that the warden and medical staff of Sliven Prison were not doing what was necessary to preserve her health while she was in custody, and were understating her health problems in their letters to the competent prosecutor’s offices. On 30 June 2006 the applicant was taken out of prison and examined by a cardiologist. She underwent a cardiogram and an echocardiography. It was found that she was suffering from arterial hypertonia. She was prescribed drug treatment whose costs were borne by the prison’s medical centre. On 1 August 2006 the applicant was examined by a pulmonologist, as she had had a bronchial attack. She was prescribed medication, but refused to take it. On 13 August 2006 a medical committee of the Sofia Prison hospital expressed the opinion that the applicant’s conditions were all chronic and could be treated with medication. None of them required urgent admission to a hospital. In particular, the problem with her right kidney had been stable for five years and there was no obvious need to remove the kidney. The commission further noted that on previous occasions the applicant had abused the interruptions of her sentence, and recommended that her request for a further interruption be turned down. She could be treated in the Sofia Prison hospital or as an outpatient in Sliven Prison. In reply to a request for an interruption of the applicant’s sentence on medical grounds, on 25 September 2006 the head of the medical centre of the Sliven Prison expressed the opinion that it was possible to treat her in the prison hospital system or in the Sliven Regional hospital, if she expressed such a wish. Between 15 December 2006 and 1 January 2007 the applicant was granted an interruption of her sentence for the purpose of medical treatment. It is unclear whether she in fact submitted to such treatment. On 29 November 2007 the applicant was apparently examined by three urologists. On 22 and 30 January 2008 the applicant was seen by a doctor in Sliven. He examined her lungs, found that she suffered from asthma, with attendant chronic obstructive pulmonary disease, and prescribed treatment with pills and inhalers. It seems that during most of her stay in Sliven Prison after 2004, the applicant visited its medical centre at least once a week. The journal of the centre recorded fiftyfour such visits in 2005. During 2004 and 2005 the applicant received disciplinary measures eight times and was cautioned more than twenty times, most often for rude and aggressive behaviour towards other inmates and prison staff. Throughout the years the prosecution authorities opened a number of inquiries pursuant to complaints by the applicant against prison guards and other officials. However, each time they decided not to open criminal proceedings. Apparently the applicant did not appeal against these decisions. From 2004 to 2006 the applicant apparently made several requests to have the 199396 criminal proceedings against her reopened, which were all turned down. Under Article 425 § 3 of the 1974 Code of Criminal Procedure, a prison sentence can be interrupted if the inmate is suffering from a serious medical condition, until recovery. There is no reported caselaw clarifying what may be considered a “serious medical condition”. Under Article 426 § 1 of the Code, in force until 1 January 2000, the authority competent to interrupt a sentence in all cases was the regional prosecutor. From that date until the end of April 2001 the regional prosecutor could only order an interruption of up to seven days. If the interruption was for a longer period, it could be ordered by the chairperson or a specifically authorised deputy chairperson of the appropriate regional court (Article 426 § 1 of the Code, as in force between 1 January 2000 and the end of April 2001). In April 2001 the Code was amended to provide that interruptions for periods longer than seven days could only be ordered by a panel of the appropriate regional court (Article 426 § 1 of the Code, as amended in April 2001). In May 2003 competence to order an interruption was again vested in the regional prosecutor, irrespective of the period of the interruption. Under Article 447 § 3 of the 2005 Code of Criminal Procedure, which entered into force on 29 April 2006, a prison sentence may likewise be interrupted if the inmate is suffering from a serious medical condition, until he or she recovers. The authority competent to interrupt a sentence is the regional prosecutor (Article 448 § 1 of the Code). This Code makes no provision for appeal to a court, which means that the prosecutor’s decision is subject to appeal before the higher prosecutor, whose decision is not subject to further appeal (Article 200 of the Code). Under section 22(1) of this Act, as amended in 2002, medical treatment for inmates is provided, as a rule, by medical establishments attached to the Ministry of Justice (that is, the prison hospitals). Section 22(2) of the Act provides that if these medical establishments are not suitably equipped to provide certain kinds of treatment, prisoners are to be sent to other hospitals, but are to remain under the same regime, isolation or escort. Recommendation No. R (98) 71 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant: “A. Access to a doctor 1. When entering prison and later on while in custody, prisoners should be able at any time to have access to a doctor or a fully qualified nurse, irrespective of their detention regime and without undue delay, if required by their state of health. All detainees should benefit from appropriate medical examinations on admission. ... 2. In order to satisfy the health requirements of the inmates, doctors and qualified nurses should be available on a full-time basis in the large penal institutions, depending on the number and the turnover of inmates and their average state of health. 3. A prison’s health care service should at least be able to provide out-patient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison. 4. Prisoners should have access to a doctor, when necessary, at any time during the day and the night. Someone competent to provide first aid should always be present on the prison premises. In case of serious emergencies, the doctor, a member of the nursing staff and the prison management should be warned; active participation and commitment of the custodial staff is essential. ... 8. Where appropriate, specific services should be provided to female prisoners. ... ... B. Equivalence of care 10. Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it. 11. The prison health care service should have a sufficient number of qualified medical, nursing and technical staff, as well as appropriate premises, installations and equipment of a quality comparable, if not identical, to those which exist in the outside environment. ... C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis 50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined. ... E. Refusal of treatment, hunger strike 60. In the case of refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. ...” In this report (CPT/Inf (2004) 21) the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) described in detail their findings from visits carried out by them in a number of detention facilities, including the facility where the applicant was brought on three occasions in February, March and April 2004.. The CPT’s findings in respect of this facility were as follows: “...50. Material conditions at the investigation detention facility at “Major Vekilski” Street in Sofia were distinctly superior to those found elsewhere, and in many respects could serve as a model for the rest of the country. With an official capacity of 112, the facility was holding 82 detained persons (including 3 women). There were twenty-eight cells (measuring some 16 m²) designed to hold up to 4 persons each. Access to natural light, artificial lighting and ventilation were adequate. The cells were furnished with beds with full bedding and personal cupboards, and were neat and clean. All cells were equipped with a sanitary annexe (toilet and sink), screened by a waist-high wall. The corridor areas were monitored by closed circuit television cameras. ...” In this report (CPT/Inf (2008) 11) the CPT described in detail their findings from visits carried out by them in a number of penitentiary establishments, including Sliven Prison and the Sofia Prison hospital, in September 2006. The CPT’s findings in respect of them, in so far as relevant, were as follows: “... 83. Sliven Prison is the only penitentiary establishment for women in Bulgaria. It comprises a closed prison, set up in 1962 on the outskirts on the town of Sliven, a reformatory hostel for girls and a transitory-type prison hostel at the same location, and an open-type prison hostel “Ramanusha” some 10 km from Sliven (not visited by the delegation). With an official capacity of 320, on the first day of the visit the establishment was holding 373 prisoners, of whom 69 were women on remand, 243 were sentenced women held in the closed prison and the transitory facility, 48 were sentenced women accommodated in the opentype hostel, and 13 were sentenced men employed on maintenance jobs in the closed prison. The female prisoner population included 7 juveniles, 3 life-sentenced prisoners and 6 foreign prisoners. 84. Prisoners were distributed into 10 groups [including Group 7: lifers and other prisoners under special regime] in accordance with their legal status and regime. Prisoner accommodation was provided in the original three-storey building to which two wings had been added over the years, holding, inter alia, the reformatory hostel for girls (...) and the transitory-type hostel (...). Due to ongoing refurbishment works on one of the floors of the main building, there had been some reshuffling of prisoners which had resulted in overcrowding in certain of the cells. For example, in Group 4, five women were being held in a cell of some 14 m², and eight women in a cell of 19 m². In the unit for remand prisoners (Group 2), all the cells were overcrowded (e.g. cells of some 16 m² were accommodating five or six women). In Group 6, cells measuring some 7.5 m² were holding two prisoners each. Access to natural light and ventilation were not a problem, due to the fact that all cells had large, unscreened windows. Artificial lighting was also adequate; however, the electricity supply was reportedly intermittent. The cell equipment (single beds and/or bunks, individual lockers, a table and stools) was generally in a good state, and the cells had a personal touch (curtains, small carpets on the wooden floors, plants, some decoration on the walls). Further, general hygiene was very good. However, the top floor of the main building (Groups 5 and 6) showed signs of disrepair (because of a leaking roof, there was mould on the walls). 85. There was no integral sanitation in any of the cells. During the day, prisoners could circulate around their units and access to a toilet was not a problem (each unit had a common sanitary facility). However, at night, low staffing levels resulted in delays or failure to provide access to toilets, and prisoners relied on buckets inside their cells. This is not acceptable; as already stressed (...), all prisoners should have access to toilets at all times. Given the special needs of women for ready access to sanitation during menstrual periods, this situation must be addressed as a matter of urgency. 86. As regards possibilities to maintain personal hygiene, the unit sanitary facilities (with showers, sinks and floor-level toilets) were somewhat dilapidated but clean. Some complaints were heard about the fact that all prisoners in a group had to use the washing facilities during the same limited period of time in the morning and evening, which resulted in conflicts. Hot water was provided for some 20 minutes in the evenings, during which time prisoners also washed their clothes and bed linen. Further, there was hot water for showering for one hour at the weekend. The lack of supply of personal hygiene products was reportedly a problem for some inmates (only the most destitute prisoners received help from donations); apparently, only washing powder and basic materials for women’s monthly needs were provided by the prison. ... 89. The food appeared to be well prepared and very few complaints were heard about it. Meals were eaten in two dining rooms, with large windows providing a sense of space and light. The delegation was told of plans to refurbish the dining rooms in 2007. The kitchen was scrupulously clean and well organised, despite the ageing equipment. Quantity, quality and hygiene control appeared to be functioning well. 90. The CPT recommends that steps be taken at Sliven Prison to: – reduce cell occupancy rates to an acceptable level (a minimum of 4 m² per prisoner); cells measuring 7 m² should not accommodate more than one prisoner (save in exceptional circumstances when it would be inadvisable for a prisoner to be left alone); – provide sufficient staffing levels at night to enable all prisoners to have ready access to a toilet around the clock; – provide all inmates with basic hygiene products and seek ways to increase the time during which prisoners have access to hot water during the week; – pursue the refurbishment programme, in particular on the top floor of the main prison building. ... 92. Outdoor exercise of one hour per day was provided in various yards in the grounds of the prison. The large central garden and courtyard around which the main prisoner accommodation and educational facilities were situated provided generous space for exercise and recreation, although it appeared to lack shelter from inclement weather. The yard for juveniles and women from the transitory-type hostel had benches, trees and plants. However, the delegation observed that the time taken to escort prisoners to and from the workshops was counted as part of the outdoor exercise time. Whereas the escort time was undoubtedly spent in the open air, this should not be counted as part of the daily hour of exercise. 93. Some 45% of inmates in the closed prison had work at the time of the visit. Jobs were provided in a sewing workshop (49 prisoners), a workshop for cleaning household goods (34 prisoners) and a workshop for machine parts (21 prisoners), as well as on various tasks related to the upkeep of the prison (23 female prisoners and 13 male prisoners). Complaints regarding work mainly centred on the difficulty of filling the production quota; if the required total was not completed, the day did not count towards reduction of time served or there was a reduction in pay. 94. The prison had a wellequipped school with a good range of educational facilities and courses. This was important given the estimated need for education, including the 40% illiteracy of the female sentenced population. 82 prisoners were enrolled at the beginning of the new school year. The school also had a computer room and offered vocational training classes as preparation for work in the sewing workshop. Additional vocational training courses (for hairdressers, chefs, pastry-cooks, beekeepers) were organised periodically, when there were sponsors. The prerelease programme included a job club providing individual and group preparation for life after release, using outside trainers. 95. As regards other activities, the prison had a library with some 16,000 books. The selection of books appeared to be varied; each group had a day for visiting the library for about one hour and prisoners could take out as many books as they wanted. Further, there was a large multi-functional hall where concerts and cinema projections took place, a video club, and a room on each unit where prisoners could watch TV in the evenings. An attractive chapel had been set up, using profits from the prison production and donations, and a part-time post for a priest was being funded from the Ministry of Justice budget. The gym appeared to be the least used facility. It was sufficiently large for basketball games, but was in need of repair. The delegation was told that adult prisoners had access to the gym for one hour per week; however, this was not confirmed by many prisoners with whom the delegation spoke. ... 97. To sum up, the management team was making strenuous efforts to involve as many prisoners as possible in a variety of activities. The CPT welcomes these efforts and encourages the management of Sliven Prison to continue its efforts to engage more prisoners in work and other purposeful activities. The Committee also invites the prison management to increase the use of the gym and to provide the exercise yards with shelters from inclement weather. ... At the time of the visit, health care at Sliven Prison was provided by a feldsher, a dentist and a parttime gynaecologist; further, a paediatrician periodically visited the creche. The post of director of the prison’s medical centre had been vacant for several months, following the retirement of the GP who used to fill that post. The delegation was informed that the recruitment of a new medical director was being blocked pending the adoption of legislative amendments. There was also a psychiatrist’s post which had been vacant since 2004; as a result, psychiatric care was provided by outside specialists. No qualified healthcare staff were present at night and during weekends. 107. The above-mentioned staff resources were clearly insufficient and had resulted in major failings in the health-care provision at both prisons. Health-care staff were overburdened and failed to provide the requisite food and general hygiene control. Further, the absence of nursing staff led to unacceptable situations, such as the use of prison officers or prisoners working as orderlies for the distribution of medication. At Sliven Prison in particular, the lack of a doctor placed an overwhelming burden on the feldsher (who was doing her best in very difficult circumstances) and resulted, inter alia, in an increased number of referrals to outside consultations. As mentioned in paragraph 7, at the end of the visit the delegation made an immediate observation under Article 8, paragraph 5, of the Convention, requesting the Bulgarian authorities to take urgent action to ensure that a doctor was employed full time at Sliven Prison. In their letter of 13 December 2006, the Bulgarian authorities indicated that the procedure for the selection of candidates for the vacant post was ongoing. The CPT recommends that urgent steps be taken to reinforce the health-care resources at Sofia and Sliven Prisons, and in particular to: – immediately fill the post of doctor at Sliven Prison; – fill the post of psychiatrist at Sliven Prison; – appoint one more general practitioner as well as a psychiatrist at Sofia Prison; – ensure that both establishments have a sufficient number of nursing staff - as a first measure, immediate action is required to appoint at least two full-time qualified nurses at Sofia Prison and at least one at Sliven Prison; – ensure that someone qualified to provide first aid, preferably with a recognised nursing qualification, is always present on the premises on Sliven Prison, including at night and weekends; ... 108. There appeared to be delays as regards transferring inmates for treatment to hospital facilities and access to medical specialists outside the penitentiary system. The procedure for transferring inmates from prisons other than Sofia and Lovech to the two prison hospitals involved a recommendation by the prison doctor which had to be approved first by the prison director and then by the medical division of the General Directorate for the Execution of Sentences, following which the prison had to organise transportation. A random examination of medical files revealed that this chain of administrative decisions could take quite a long time (up to 3 months). The CPT would like to receive the comments of the Bulgarian authorities on this question. ... 109. Medical examination on admission generally took place on the day of arrival or the following day, but there were a few isolated cases of delays of several days, undoubtedly a reflection of the meagre staff resources. Further, during the month spent in the reception unit, newly arrived prisoners underwent a number of examinations (including of suicidal risk). As regards screening for transmissible diseases, it varied from one prison to another. At Sliven Prison, newly arrived prisoners were screened on admission for syphilis and HIV; the delegation was told that prisoners verbally gave consent to HIV testing. At Sofia Prison, screening for HIV was carried out by an NGO on a voluntary basis. As regards screening for tuberculosis, a mobile X-ray unit visited the prisons once a year and all prisoners were screened. There was no screening for hepatitis at either prison. The CPT recommends that measures be taken to ensure that all newly arrived prisoners are seen by a healthcare staff member within 24 hours of their arrival. The medical examination on admission should be comprehensive, including appropriate screening for transmissible diseases. Further, prisoners should be provided with counselling before (and, in the case of a positive result, after) any screening test as well as with information concerning the prevention of transmissible diseases. ... 111. The CPT remains concerned about the handling of medical data. All inmates had individual medical files; however, the delegation observed that the medical information contained in them was far from being comprehensive. Further, the confidentiality of medical examinations was not always observed, nonmedical prison staff often being present during such examinations. The CPT recommends that steps be taken to ensure that: – prisoners’ individual medical files are properly kept and prisoners are entitled to receive copies of medical documents; – all medical examinations are conducted out of the hearing and – unless the doctor concerned expressly requests otherwise in a particular case – out of the sight of non-medical prison staff and law enforcement officials; ... 113. More generally, it would appear that the difficulties in recruiting medical specialists to work in prisons and the other related failings referred to above are part of the wider problem that prison health care is not integrated into the national health-care system. This results in a failure to comply with the principle of “equivalence of care”, according to which prisoners should benefit from the same level of medical care as persons living in the community at large. During the visit, the delegation received a copy of a draft Ordinance on prison healthcare prepared by a joint working group from the Ministries of Justice and Health, which addresses many of the problematic areas mentioned above. In particular, it establishes the principles of equivalence of care and doctors’ professional independence. Other provisions concern the supply of free-of-charge medication to prisoners and the Ministry of Health’s responsibility for providing methodological guidance to and control of health care in prisons. As regards screening for HIV, the WHO recommendations concerning confidentiality, informed consent and pre- and post-test counselling are to be observed. The Ordinance also stipulates that whenever signs of violence are observed, health-care staff should immediately notify the prison director and issue a medical certificate; however, as regards the contents of the latter, reference is only made to a detailed description of the injuries observed (in this context, see the recommendations [made earlier in the report]). Pursuant to Section 7 of the Ordinance, prisoners with medical training who have not been deprived of the right to practise can be employed in their speciality under the supervision of a medical member of staff. The CPT has already expressed in the past its concern about the employment of inmates as orderlies (see paragraph 102 of CPT/Inf (2004) 21); the same goes for the employment of prisoners on other health-care related jobs. As a matter of principle, prisoners should not be put in a position to exercise control over other prisoners. The CPT recommends that the Bulgarian authorities take into consideration the comments and recommendations made in this report in the new regulations on the provision of health care to prisoners. More generally, the Committee invites the Bulgarian authorities to review their strategy for implementing healthcare policy in prisons with a view to ensuring harmonisation with the national health-care system and respect of the principles of equivalence of care and professional independence. 114. The prison hospital at Sofia Prison had three wards: surgery, internal medicine and neuropsychiatry; in addition, there was a section for female prisoners and an area for infectious diseases. At the time of the visit, 40 prisoners were being treated at the hospital; the delegation was informed that, on average, 60 to 70 prisoners were hospitalised on any given day. The hospital also performed outpatient consultations of prisoners from Sofia Prison. 115. Living space in the patients’ rooms was satisfactory (e.g. five prisoners in a room measuring some 30 m², including a sanitary annexe). The rooms had good access to natural light, artificial lighting and ventilation; however, they were in a rather poor state of repair and cleanliness. As for the medical equipment, it was antiquated. The hospital urgently needed new equipment, in particular for Xrays, Doppler ultrasound scans and endoscopy, as well as surgical instruments. The CPT recommends that steps be taken at Sofia Prison Hospital to: – substantially upgrade the medical equipment; – improve the state of repair and the level of hygiene in patients’ rooms. 116. Although there were practically no unfilled posts, the delegation was informed that the hospital needed an additional 6 nurses, 4 GPs and an urologist; however, there was no budget for hiring more staff. The CPT would like to receive the comments on the Bulgarian authorities on this issue. ...” | 0 |
train | 001-61805 | ENG | TUR | CHAMBER | 2,004 | CASE OF BATI AND OTHERS v. TURKEY [Extracts] | 1 | Preliminary objection rejected (non-exhaustion of domestic remedies, six month period);Violation of Art. 3;Violation of Art. 13;Violation of Art. 5-3 with regard to the length of the custody;Violation of Art. 5-3 with regard to the length of pre-trial detention;Non-pecuniary damage - financial award;Costs and expenses partial award | Christos Rozakis | 9. Mr Ulaş Batı was born in 1979, Mr Bülent Gedik in 1974, Mr Müştak Erhan İl in 1971, Mr Özgür Öktem in 1976, Mr Sinan Kaya in 1978, Mr İsmail Altun in 1974, Mr İzzet Tokur in 1973, Mr Okan Kablan in 1980, Mr Cemal Bozkurt in 1973, Mrs Devrim Öktem in 1975, Miss Sevgi Kaya in 1980, Miss Arzu Kemanoğlu in 1972, Miss Zülcihan Şahin in 1977, Miss Ebru Karahancı in 1978 and Miss Zühal Sürücü in 1979. All are Turkish nationals and live in Istanbul. 10. In February and March 1996, as part of a police operation against an illegal Marxist organisation, the TKEP/L (Communist Labour Party of Turkey/Leninist), the Istanbul police arrested the applicants and held them for questioning at the headquarters of the anti-terrorist branch of the Istanbul security police (“Security Headquarters”) for questioning. 11. The facts in each individual case may be summarised as follows: 12. Mr Batı was arrested on 8 February 1996. 13. On 19 February 1996 he informed the public prosecutor during an interview that he had been ill-treated by the police while in custody. He was later brought before a judge of the Istanbul National Security Court (“the judge”), to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial. 14. Mr Batı says that his ill-treatment at Security Headquarters took various forms: he was beaten, forced to remain standing, deprived of sleep, and threatened with death, rape and sexual assault with a truncheon. 15. He was given only one medical examination. In his report of 19 February 1996, the forensic doctor, a member of the Istanbul Institute of Forensic Medicine, found partly healed bruising measuring 0.5 cm by 0.5 cm in the sternal region. He noted that Mr Batı had complained of pain in his shoulders and certified him unfit for work for one day. 16. Mr Gedik was arrested on 6 February 1996. 17. On 19 February 1996 he informed the public prosecutor during an interview that he had been coerced into making a statement which he had signed without reading. He subsequently repeated this account to the judge, who ordered his detention pending trial. 18. Mr Gedik says his ill-treatment in custody included suspension by the arms, death threats and electric shocks. 19. He was given three medical examinations: (a) In a report of 19 February 1996, a forensic doctor noted scab-covered lesions measuring 3 cm by 3 cm to the rear of the thighs and an old bruise measuring 3 cm by 3 cm in the upper scapular region. He certified Mr Gedik unfit for work for three days. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found bruising with scabs to the left arm and a leg. He noted that Mr Gedik complained of pain in various parts of the body and referred him to a forensic doctor for a final report. (c) Mr Gedik was re-examined by a forensic doctor on 7 March 1996. The doctor recorded his complaints of pain in the left shoulder in the medical certificate. However, he considered that a final report could only be drawn up once Mr Gedik had been examined by a hospital neurology service. It appears from the case file, however, that the additional examination was never carried out. 20. Mr Erhan İl was arrested on 6 February 1996. 21. On 19 February 1996 he was interviewed by the public prosecutor, before whom he denied all the offences he was alleged to have committed. Subsequently he was brought before the judge, to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial. 22. Mr Erhan İl says that he was subjected to various forms of ill-treatment while in custody at Security Headquarters: suspension by the arms, blows, threats and insults. 23. He was given three medical examinations: (a After examining Mr Erhan İl, a forensic doctor drew up a medical report in which he noted reduced extension and impaired supination and pronation in both arms. He said that a final report could be drawn up once Mr Erhan İl had been examined by a hospital neurology service. (b) In his report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Erhan İl had complained of pain in his shoulders, thorax, back and respiratory tract, and numbness in both arms and hands. He referred him to a forensic doctor for a final report. (c) On 6 March 1996, in the light of the medical certificate issued on 19 February 1996, the forensic doctor ordered Mr Erhan İl's transfer to hospital for neurological examination. It appears from the case file, however, that no such additional examination was ever carried out. 24. Mr Öktem was arrested on 8 February 1996. 25. On 19 February 1996, after being interviewed by the public prosecutor, he was brought before the judge to whom he complained of ill-treatment by police officers while in custody. The judge ordered his detention pending trial. 26. Mr Öktem says that he was subjected to various forms of ill-treatment while in custody, including suspension by the arms and beating of the soles of the feet (falaka). 27. He was given three medical examinations: (a) According to a medical certificate issued on 19 February 1996, the forensic doctor initially did not find any marks of violence on Mr Öktem's body. He noted that Mr Öktem had complained of pain in his thigh, labial mucosa and internal or lateral walls of his mouth. He certified him unfit for work for three days. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted that Mr Öktem had a tear to the mouth that had been caused by the use of force, pain in various parts of the body and difficulty breathing. He referred him to a forensic doctor for a final report. (c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the reports of 19 and 27 February 1996. 28. Mr Kaya was arrested on 8 February 1996. 29. On 19 February 1996 he was brought before the judge after being interviewed by the public prosecutor. He complained to the judge of ill-treatment by police officers while in custody. The judge ordered his detention pending trial. 30. Mr Kaya says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows, threats and insults. 31. He was given three medical examinations: (a) The first was performed by a forensic doctor on 19 February 1996, who found that Mr Kaya presented scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm to the side of the right armpit, bruising measuring 2 cm by 2 cm to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor found loss of movement in the arms, cramps in the shoulders, breathing difficulties and cuts and bruising to the right foot. He referred him to a forensic doctor for a final report. (c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 1 cm by 1.5 cm and 1 cm by 1 cm on the side of the right armpit, bruising and grazing to the mastoid, and pain in the shoulders and arms. He certified him unfit for work for five days. 32. Miss Kaya (who is Sinan Kaya's sister) was arrested on 8 February 1996. 33. On 19 February 1996 she was brought before the judge after being interviewed by the public prosecutor and complained of ill-treatment by police officers while in custody. The judge ordered her detention pending trial. 34. Miss Kaya says that while in custody she was subjected to falaka, sprayed with water, threatened with rape and undressed. 35. She was given three medical examinations: (a) In a report dated 19 February 1996, a forensic doctor found old bruising to the soles of the feet measuring 5 cm by 4 cm that was in the process of healing, bruising to both palms and pain in the shoulders and arms. He certified her unfit for work for seven days. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted bruising, swelling and tenderness to the sole of the left foot, and loss of movement and deformity to the little finger of the right hand. He referred her to a forensic doctor for a final report. (c) In a report of 7 March 1996, the forensic doctor noted scab-covered lesions measuring 5 cm by 4 cm to the soles of both feet, bruising to both palms and pain in the shoulders and arms. He certified Miss Kaya unfit for work for seven days. 36. Mr Altun was arrested on 8 February 1996. 37. He was interviewed by the public prosecutor on 16 February 1996 and complained of ill-treatment by police officers while in custody. He was subsequently brought before the judge, to whom he repeated the statement he had made to the public prosecutor. The judge ordered his detention pending trial. 38. Mr Altun says that he was subjected to various forms of ill-treatment: he was suspended by his arms (which were tied together), beaten, sprayed with cold water and deprived of sleep. He further complains that he was blindfolded and his testicles were wrung. 39. He was given three medical examinations: (a) In a report of 16 February 1996, a forensic doctor noted that Mr Altun was suffering from headaches and pain in his arms. (b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted bruising below the eyes, scab-covered lesions measuring 0.5 cm by 0.5 cm on the upper right ear, pain running from the neck to the anus, restricted movement of the thumb of the right hand, scab-covered lesions on the back of the left foot, grazing on the back of the right foot, bruising measuring 5 cm by 2 cm to the anterior left leg (tibia) and pain in the chest and respiratory tract. (c) In a report of 6 March 1996, the forensic doctor confirmed the findings set out in the report of 16 February 1996. 40. Mrs Öktem (who is Bülent Gedik's wife) was arrested on 6 February 1996. 41. On 19 February 1996, after being interviewed by the public prosecutor, she was brought before the judge, who ordered her detention pending trial. 42. Mrs Öktem says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, undressed and sprayed with water. She also alleges that she suffered a miscarriage as a result of the ill-treatment. 43. She was given seven medical examinations: (a) In a report of 19 February 1996, a forensic doctor said that he had found no marks on Mrs Öktem's body that were consistent with assault. Noting that she alleged that she had miscarried as a result of ill-treatment in police custody, he said that a final report could be drawn up once she had been examined by a hospital obstetrics service. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise measuring 1 cm by 1 cm on Mrs Öktem's left leg, and pain in the soles of her feet and kidneys. He referred her to a forensic doctor for a final report. (c) In a report of 6 March 1996, in the light of the information contained in the aforementioned medical certificates, the forensic doctor ordered her transfer to a hospital obstetrics service. (d) In a report of 6 March 1996, a gynaecologist from the Haseki General Hospital noted bleeding and particles in the region of the uterus and diagnosed post-abortive endometritis. (e) In a report of 18 April 1996, the Bayrampaşa Prison doctor noted a 0.5 cm by 1 cm swelling to the occipital region and pain in the back. He referred her to a forensic doctor for a final report. (f) On 31 May 1996 a gynaecologist from the Istanbul General Hospital informed the Istanbul Assize Court that the hospital register showed that Mrs Öktem had been examined on 20 February 1996 and that no genital pathology in the region of the uterus had been found. However, in view of her allegation that she had suffered a miscarriage, she had been given appropriate treatment. (g) Mrs Öktem's medical file was examined by a team of seven gynaecologists, who, in a report of 19 February 1997, concluded that she had suffered a miscarriage while in police custody. However, since there were no marks on her body consistent with assault and she had not had a full medical examination, they said that it was impossible to confirm a causal link between the miscarriage and the alleged ill-treatment. 44. Miss Kemanoğlu was arrested on 6 February 1996. 45. On 19 February 1996 she was interviewed by the public prosecutor. She complained of ill-treatment by police officers while in custody and denied all the offences she was alleged to have committed. She was subsequently brought before the judge, who ordered her detention pending trial. 46. Miss Kemanoğlu was given three medical examinations: (a) On 19 February 1996 a forensic doctor noted that there were no marks on her body consistent with assault. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a 3 cm by 3 cm bruise on her leg, and bruising to the neck, shoulders and rib cage. He referred her to a forensic doctor for a final report. (c) On 6 March 1996, in the light of the aforementioned medical reports, the forensic doctor made an order for her to be examined by the Institute of Forensic Medicine Special Office. However, the file shows that that examination did not take place. 47. Miss Şahin was arrested on 7 February 1996. 48. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial. 49. Miss Şahin was given three medical examinations: (a) In a report of 19 February 1996, a forensic doctor noted two old bruises measuring 0.5 cm by 1 cm and 0.5 cm by 2 cm on the anterior left arm and an old bruise measuring 1 cm by 1.5 cm on the same arm. He did not certify her unfit for work. (b) In a report of 22 February 1996, the Bayrampaşa Prison doctor noted a 2 cm by 2 cm bruise on the neck and cuts to the shoulders. (c) In a report of 7 March 1996, the forensic doctor confirmed the findings in the report of 22 February 1996 and certified Miss Şahin unfit for work for three days. 50. Miss Karahancı was arrested on 8 February 1996. 51. On 19 February 1996 she stated before the public prosecutor and the judge that she had been ill-treated by police officers while in custody. The judge ordered her detention pending trial. 52. Miss Karahancı says that she was subjected to various forms of ill-treatment while in custody: she was beaten, suspended by the arms, sprayed with water and deprived of sleep for three days. 53. She was given three medical examinations: (a) In a report of 19 February 1996, a forensic doctor noted that she complained of pain in the back and arms. He found a 2 cm by 3 cm bruise in the middle of the outer left leg, and an old bruise measuring 0.5 cm by 0.5 cm on the lower leg. He certified her unfit for work for five days. (b) In a report of 27 February 1996, the Bayrampaşa Prison doctor noted a bruise on the left ankle and pain in different parts of the body. He considered an examination by a forensic doctor necessary. (c) In a report of 6 March 1996, the forensic doctor confirmed the findings in the report of 19 February 1996. 54. Mr Tokur was arrested on 8 February 1996. 55. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial. 56. Mr Tokur says that while in police custody he was beaten approximately twenty to twenty-five times, threatened with death, sprayed with water and deprived of sleep for four days. 57. On 19 February 1996 a forensic doctor found no visible marks on Mr Tokur's body on examination that were consistent with assault. He noted, however, that Mr Tokur complained of pain in his shoulders and certified him unfit for work for one day. 58. Mr Kablan was arrested on 6 February 1996. 59. On 19 February 1996 he stated before the public prosecutor and the judge that he had been ill-treated by police officers while in custody. The judge ordered his detention pending trial. 60. Mr Kablan says that he was subjected to various forms of ill-treatment while in custody: suspension by the arms, blows and sleep deprivation. 61. He was examined three times: (a) In a report of 19 February 1996, a forensic doctor noted old bruises measuring 2 cm by 3 cm on his right leg. He certified Mr Kablan unfit for work for one day. (b) In a report of 28 February 1996, the Bayrampaşa Prison doctor noted a bruise on the right leg, bruising to the axillary region, reduced movement in both arms and pain in various parts of the body. He referred Mr Kablan to a forensic doctor for a final report. (c) In a report of 7 May 1996, the forensic doctor noted that Mr Kablan was suffering from a problem with his ears entailing unfitness for work for fifteen days. 62. Miss Sürücü was arrested on 14 March 1996. 63. She was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. She was then brought before the judge, who ordered her detention pending trial. 64. Mr Bozkurt was arrested on 14 March 1996. 65. He was interviewed by the public prosecutor on 25 March 1996, following a medical examination which did not disclose any marks consistent with assault. He was then brought before the judge, who ordered his detention pending trial. 66. On 10 April 1996 the public prosecutor instituted criminal proceedings against twenty people, including the applicants, under both Article 146 of the Criminal Code, which makes it an offence to attempt to change or modify the Constitution of the Republic of Turkey in whole or in part, to attempt a coup d'état against the National Assembly or to use force to prevent the National Assembly from carrying out its functions, and Article 168 § 2 of the Criminal Code, which makes it an offence to be a member of an armed group. The applicants were accused of various acts of violence, including voluntary homicide, attempted homicide, throwing explosive devices, taking part in an illegal and violent demonstration and armed robbery. ... 72. The case is still pending in the domestic courts. 73. On 5 March 1996 ten of the applicants, Bülent Gedik, Zülcihan Şahin, Sinan Kaya, Sevgi Kaya, Devrim Öktem, Okan Kablan, Arzu Kemanoğlu, Müştak Erhan İl, İzzet Tokur and Ulaş Batı, lodged a complaint of ill-treatment against the police officers who had been on duty while they were in custody. 74. They also lodged a complaint against O.T. (the Istanbul police commissioner) and R.A. (the deputy director of the Istanbul anti-terrorist branch). They argued that these two senior police officers were the hierarchical superiors of the police officers who had subjected them to torture. This complaint was dismissed on 24 February 1998 for lack of sufficient evidence. That decision was upheld by the President of the Beyoğlu Assize Court on 23 September 1998. 75. On 12 April 1996 the public prosecutor questioned four police officers (Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) in connection with the complaint that had been lodged on 5 March 1996. All four officers had been on duty while the applicants were in custody. They denied having ill-treated the applicants concerned. 76. Meanwhile, on a date that has not been specified by the parties, a complaint was lodged by Ebru Karahancı, Özgür Öktem and ĺsmail Altun. They alleged, inter alia, that six police officers (Mustafa Sara, Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar, Ahmet Bereket and Yakup Doğan) had ill-treated them while they were in custody. On 21 February 1997 the Istanbul public prosecutor's office decided not to take any action on the complaint. However, the applicants say that on 5 December 1997 the President of the Beyoğlu Assize Court set aside that decision following an appeal by the applicants' representative. 77. By an indictment that was lodged on 4 March 1997, the public prosecutor instituted criminal proceedings in the Istanbul Assize Court against five police officers (Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan) for an offence under Article 243 of the Criminal Code (see paragraph 96 below). 78. The first hearing in the case took place on 26 May 1997 in the Istanbul Assize Court, in the absence of the five police officers. The Assize Court heard the applicants, who complained in particular of the decision not to prosecute Mustafa Sara. In addition, Mrs Öktem testified that she had suffered a miscarriage after being assaulted and subjected to repeated blows to the abdomen while in custody. With the exception of İzzet Tokur, Ebru Karahancı, Özgür Öktem and ĺsmail Altun, the applicants applied to be joined to the criminal proceedings as civil parties under Article 365 of the Code of Criminal Procedure (see paragraph 98 below). That application was granted. 79. On 7 July 1997 a brawl broke out between the applicants and members of the security forces as nine of the applicants (Zülcihan Şahin, Sinan Kaya, İsmail Altun, Müştak Erhan İl, Arzu Kemanoğlu, Okan Kablan, Devrim Öktem, Özgür Öktem and Bülent Gedik) were being taken to the hearing room in the Istanbul court-house. The Istanbul Assize Court proceeded with the hearing, which it began by hearing evidence from the four defendant police officers who were present, namely Mustafa Taner Paylaşan, Fatih Berkup, Mehmet A. Çavdar and Yakup Doğan. 80. At the hearing the applicants formally identified those police officers. The Assize Court decided that it was unnecessary to remand the accused in custody and adjourned the question of whether Mustafa Sara should be prosecuted to a later date. 81. At a hearing on 20 October 1997, Mr Öktem (the father of Mrs Öktem and Mr Öktem) and Miss Karahancı gave evidence. The latter said that she was unable to identify anyone, as she had been kept blindfolded throughout her time in police custody. 82. The testimony of one of the accused, Ahmet Bereket, was obtained on commission and placed in the case file of the Assize Court on 29 July 1997. 83. At a hearing on 25 December 1997, the Assize Court sought to establish the addresses of two of the victims, A. Kılıç and Ay. Kılıç, so that their testimony, which was not on the case file, could be obtained. 84. At a hearing on 11 March 1998, Mr A. Tunga gave evidence. 85. On 7 January 1998 a supplementary indictment was lodged by the public prosecutor, accusing police officer Mustafa Sara of ill-treatment with a view to extracting confessions. 86. On 14 April 1998 evidence was taken from Mustafa Sara on commission and placed in the case file. 87. Between 21 May 1998 and 25 December 2002 the Assize Court held approximately thirty hearings, at which it sought, inter alia, to establish the addresses of a witness and of a victim with a view to serving them with witness summonses. Although the applicants' representatives urged the Assize Court on 24 June 1999, 20 November 2001 and 23 December 2001 to dispense with the evidence of the two people concerned, it did not accede to their request until 13 February 2002. 88. At a hearing on 17 July 2002, the representative acting for Mustafa Taner Paylaşan, Fatih Berkup and Yakup Doğan informed the Assize Court that he was withdrawing from the case. The court was also informed that Mehmet A. Çavdar had died. 89. On 1 October 2002 the applicants' representatives asked the Assize Court to expedite the proceedings, as there was a danger that the prosecution of the offences would become statute-barred. 90. At a hearing on 20 November 2002, Yakup Doğan sought an adjournment to enable him to obtain legal representation. Mustafa Sara lodged a medical certificate excusing his absence. The Assize Court granted the defendants an extension of time. From the case file it would seem that Mustafa Sara never in fact appeared before the Assize Court. 91. At a hearing on 25 December 2002, the public prosecutor made his submissions. He sought an order dismissing the criminal proceedings against Mehmet A. Çavdar, who had died, and against Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan under the statute of limitations. As regards Mustafa Sara, he sought a conviction only on the count of torturing Bülent Gedik. He submitted that Mustafa Sara should be acquitted on the other charges. 92. In a judgment of 5 February 2003, the Assize Court decided to discontinue the proceedings against the defendants Mustafa Taner Paylaşan, Ahmet Bereket, Fatih Berkup and Yakup Doğan by virtue of the statute of limitations and against Mehmet A. Çavdar on the ground of intervening death. It found Mustafa Sara guilty of torturing Mr Gedik and Mrs Öktem and sentenced him to two years' imprisonment. It also made an order prohibiting him from holding public office for a period of six months. However, it acquitted him on the other charges. ... 94. The case is currently pending before the Court of Cassation. 95. At the material time section 16 of Law no. 2845 on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days, not including the time needed to convey the detainee to the judge. 96. Under the Turkish Criminal Code, it is an offence for a public official to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). 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 and the security forces as well as to the public prosecutor's office. Complaints may be made orally or in writing. If a complaint is made orally, the authority must keep a record (Article 151). 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 course of his duties is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to 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). 97. 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. 98. Article 365 of the Code of Criminal Procedure also contains a provision allowing victims of crime to join the proceedings as “intervening parties” alongside the prosecution. As a direct victim, an intervening party may also claim reparation for any loss sustained as a result of the offence provided that he or she has not previously brought an action in the civil courts. The admissibility of applications to join the proceedings as an intervening party is determined by the judge, after hearing representations from the public prosecutor's office (Article 366 of the Code of Criminal Procedure). A person who has been given leave to intervene in proceedings may, like the public prosecutor, appeal to the Court of Cassation against the verdict (Article 371 of the Code Criminal Procedure). 99. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages for pecuniary loss (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by 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 course of an official's duties under public law may, in principle, only bring an action against the authority for whom the official concerned works and not directly against the official (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). This is not an absolute rule, however. 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). 100. The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) was submitted to the United Nations High Commissioner for Human Rights on 9 August 1999. The “Istanbul Principles” subsequently received the support of the United Nations through resolutions of the United Nations Commission on Human Rights and the General Assembly. It is the first set of guidelines to have been produced for the investigation of torture. The Protocol contains full practical instructions for assessing persons who claim to have been the victims of torture or ill-treatment, for investigating suspected cases of torture and for reporting the investigation's findings to the relevant authorities. The principles applicable to the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment are to be found in Annex 1 of the Manual, the relevant parts of which read as follows: “The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment (hereafter referred to as torture or other ill-treatment) include the following: clarification of the facts and establishment and acknowledgment of individual and State responsibility for victims and their families, identification of measures needed to prevent recurrence and facilitation of prosecution or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation. States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated. Even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission, investigations by impartial medical or other experts. ... The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry. ... Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation. Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to, any hearing as well as to all information relevant to the investigation and shall be entitled to present other evidence. ... A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. On completion, this report shall be made public. It shall also describe in detail specific events that were found to have occurred and the evidence upon which such findings were based, and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation, and, as appropriate, indicate steps to be taken in response. Medical experts involved in the investigation of torture or ill-treatment should behave at all times in conformity with the highest ethical standards and in particular shall obtain informed consent before any examination is undertaken. The examination must follow established standards of medical practice. In particular, examinations shall be conducted in private under the control of the medical expert and outside the presence of security agents and other government officials. The medical expert should promptly prepare an accurate written report. This report should include at least the following: (a) The name of the subject and the name and affiliation of those present at the examination; the exact time and date, location, nature and address of the institution (including, where appropriate, the room) where the examination is being conducted (e.g. detention centre, clinic, house); and the circumstances of the subject at the time of the examination (e.g. nature of any restraints on arrival or during the examination, presence of security forces during the examination, demeanour of those accompanying the prisoner, threatening statements to the examiner) and any other relevant factors; (b) A detailed record of the subject's story as given during the interview, including alleged methods of torture or ill-treatment, the time when torture or ill-treatment is alleged to have occurred and all complaints of physical and psychological symptoms; (c) A record of all physical and psychological findings on clinical examination, including appropriate diagnostic tests and, where possible, colour photographs of all injuries; (d) An interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. A recommendation for any necessary medical and psychological treatment and further examination should be given; (e) The report should clearly identify those carrying out the examination and should be signed. ...” | 1 |
train | 001-86871 | ENG | SRB | CHAMBER | 2,008 | CASE OF CVETKOVIC v. SERBIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13+6;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria | 5. The applicant was born in 1934 and lives in Leskovac, Serbia. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 6 December 1988 the applicant, a labour inspector (inspektor rada), was declared redundant by the Municipality of Leskovac, which decision entered into force on 29 December 1990. 8. On 22 February 1991 the applicant therefore filed a claim with the Labour Court (Osnovni sud udruženog rada) in Vranje, seeking reinstatement or severance pay as provided for in the relevant domestic legislation. 9. Following a remittal, on 3 September 1991 this court relinquished jurisdiction in favour of the Municipal Court (Opštinski sud) in Leskovac. 10. Between 2 June 1992 and 5 January 1998 a total of fourteen separate decisions were adopted by the Municipal Court, at first instance, the District Court (Okružni sud) in Leskovac, on appeal, and the Supreme Court (Vrhovni sud Srbije) at third instance. 11. Following a remittal, on 16 March 1998 the Municipal Court again ruled in favour of the applicant. 12. On 5 June 1998 the District Court upheld this judgment on appeal and it thereby became final. 13. On 18 March 1999 the Municipal Court issued a separate decision, ordering the enforcement of this judgment. 14. On 21 November 2000, however, the same court accepted the respondent’s request for the re-opening of the labour dispute. 15. On 21 February 2001 and 23 May 2002 the District Court and the Supreme Court, respectively, upheld this decision. 16. On 21 November 2002 the Municipal Court therefore re-opened the proceedings in question. 17. The hearing scheduled for 21 April 2004 was adjourned because of the presiding judge’s illness. 18. On 3 March 2005 the President of the Municipal Court appointed another presiding judge to deal with the case, the reason being that the applicant had, in the meantime, filed a criminal complaint against the former. 19. On 18 April 2005 and 18 May 2005 two separate hearing were held. 20. On 24 May 2005 the Municipal Court appointed a financial expert and ordered him to calculate the amount of salary arrears sought by the applicant. 21. On 5 April 2006 the Municipal Court appointed another financial expert to carry out this order. 22. On 19 July 2006 the Municipal Court ruled partly in favour of the applicant. It awarded him most of the salary arrears and severance pay requested, but refused his claim for reinstatement since he had reached retirement age in the meantime. 23. On 1 December 2006 the District Court quashed this judgment on appeal and remitted the case to the Municipal Court. 24. On 24 January 2007 the Municipal Court again ruled partly in favour of the applicant. 25. On 26 April 2007, however, the District Court rejected the applicant’s claims in their entirety. 26. On an unspecified date thereafter the applicant filed an appeal on points of law. According to the information made available to the Court by the parties to date, the case is apparently still pending before the Supreme Court. 27. It would appear that throughout the above proceedings the applicant had represented himself. 28. The relevant provisions of the Constitution read as follows: “Everyone shall have the right to ... [a hearing before a] ... tribunal ... within a reasonable time ... [in the determination] ... of his [or her] rights and obligations ...” “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” “The Constitutional Court shall have fifteen judges who shall be elected or appointed for a period of nine years. Five judges of the Constitutional Court shall be elected by the National Assembly, another five shall be appointed by the President of the Republic, and another five shall be appointed at the general session of the Supreme Court of Cassation ... The National Assembly shall elect five judges of the Constitutional Court from among ten candidates proposed by the President of the Republic, the President of the Republic shall appoint five judges of the Constitutional Court from among ten candidates proposed by the National Assembly, and the general session of the Supreme Court of Cassation shall appoint five judges from among ten candidates proposed at the general session by the High Judicial Council and the State Prosecutors’ Council.” “The Constitutional Court shall adjudicate by the majority of votes cast by all judges of the Constitutional Court.” 29. In accordance with Article 9 § 3 the Constitutional Court shall be deemed constituted when two thirds of the total number of judges have been elected or appointed. 30. The relevant provision of this Act read as follows: “The decisions of the Constitutional Court shall be final, enforceable and binding.” “The Constitutional Court shall have its Rules of Procedure ... which shall regulate, in greater detail, the organisation ... [and the functioning of the Constitutional Court] ... as well as the proceedings ... [before it] ...” “ ... [T]he Constitutional Court shall have a Registry. The organisation, the tasks, and the functioning of the Registry shall be regulated, in greater detail, by ... the Constitutional Court.” “A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law. A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.” “A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.” “A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...” “When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time. The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.” “... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ... If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought. The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.” “The Constitutional Court shall, within ninety days as of the date of entry into force of this Act, adopt its Rules of Procedure and ... [further regulate the organisation and functioning of its Registry] ...” The Minister of Justice shall, within ninety days as of the date of entry into force of this Act ... [regulate the composition and the operation of the Commission for Compensation] ...” 31. Articles 72 and 73 provide additional details as regards the processing of the appeals lodged with the Constitutional Court. 32. The new Constitution of the Republic of Serbia, as well as the Constitutional Act on its implementation, entered into force in November 2006. 33. The Constitutional Court Act entered into force in December 2007. 34. The Rules of Procedure of the Constitutional Court entered into force in March 2008. | 1 |
train | 001-67584 | ENG | RUS | CHAMBER | 2,004 | CASE OF KLYAKHIN v. RUSSIA | 3 | Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violation of Art. 13+6;Violation of Art. 8;No violation of Art. 13+8;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 9. The applicant, Konstantin Vladimirovich Klyakhin, is a Russian national, who was born in 1966 and lives in Armavir, Krasnodar Region, in Russia. The facts of the case, as submitted by the parties, may be summarised as follows. 10. On 13 August 1997 the applicant was detained and intimidated by a group of people, allegedly because they wanted him to testify against his relative K., an official in the Armavir Town Prosecutor's office. 11. On 26 August 1997 the applicant was arrested on suspicion of involvement in a robbery, together with K. and a third person, U. The accusations against the applicant were made by the people who had allegedly intimidated him. 12. From 26 to 29 August 1997 the applicant was interviewed several times by an investigator from the prosecution service, sometimes in the presence of the Armavir Town Prosecutor. A lawyer was appointed, but the applicant refused to accept his services as he did not trust him. 13. On 29 August 1997 the Armavir Town Prosecutor authorised the applicant's detention on suspicion of theft. On 5 September 1997 the applicant was officially charged with involvement in a robbery. 14. The applicant appealed against the decision to detain him on 11 September 1997. On 6 October 1997 the Armavir Town Court rejected his complaint without giving any reasons. 15. The investigation was completed on 24 January 1998 and the applicant was given access to the case file between 24 and 27 January 1998. A lawyer, whom the applicant later dismissed, was present at this stage. The indictment was sent to the Armavir Town Court on 27 or 28 January 1998. 16. On 26 January 1998 the case file was transferred to the Armavir Town Court. After that date all complaints and requests submitted by the applicant to other authorities were forwarded to that court, in accordance with Section 217 of the Code of Criminal Procedure (CCP). 17. On 16 February 1998 the Armavir Town Court scheduled the first hearing for 4 March 1998. The judge ordered the continued detention of the applicant and two other co-accused, K. and U., without giving reasons. 18. On 4 March 1998 a judge of the Town Court adjourned the case because the applicant had not had sufficient access to the case file. Between 19 February and 27 March 1998 the applicant was allowed additional access to the case file and was officially served with the indictment. The applicant submits that he was allowed only short periods over several days to review about 600 pages of documentation in the case file. He also submits that he was handcuffed while accessing it, and had difficulties copying the relevant documents. 19. The scheduled court hearing on 20 April 1998 did not take place, due to the absence of the victims and one of the representatives. On 22 April 1998 the judge ordered a psychiatric report on U. and adjourned the hearing. 20. It appears that further hearings were scheduled, but were adjourned or cancelled on 31 August 1998, 30 September 1998, 5 January 1999 and 20 January 1999. 21. The European Convention on Human Rights entered into force in respect of Russia on 5 May 1998. 22. On 30 September 1998 the Armavir Town Court rejected requests by the applicant and his co-accused K. for release from detention, and stated that “at this stage of proceedings their release could influence further trial hearings”. On 11 November 1998 the Krasnodar Regional Court rejected an appeal by K. against this order. 23. On 21 January 1999 the case was adjourned due to the illness of U. By the same decision, the applicant's further detention on remand was confirmed. On 25 January 1999 the applicant complained to the Armavir Town Prosecutor about his continued detention on remand. On 5 March 1999 he was informed that his detention was lawful and that he could challenge it before the Town Court. 24. The trial resumed on 29 March 1999 and on 6 April 1999 the Armavir Town Court returned the case to the prosecutor's office for an additional investigation. 25. On 8 and 16 April 1999 the applicant lodged complaints with the President of the Armavir Town Court in respect of his detention on remand. No response was received to those complaints. 26. On 27 April 1999 the Armavir Town Prosecutor appealed against the order of 5 March 1999, by which the case had been sent for additional investigation. On 16 June 1999 the Krasnodar Regional Court quashed that order and instructed the Town Court to consider the case on the merits. The Regional Court also ordered the continued detention of the applicant and his co-accused, K. and U., without giving reasons. 27. On 4 August 1999 the hearings resumed, and on 16 August 1999 the applicant was convicted of robbery and sentenced by the Armavir Town Court to five years' imprisonment. He was represented by a lawyer. The applicant appealed, and on 20 October 1999 the Krasnodar Regional Court upheld the Town Court's judgment. The applicant was not present at the appeal hearing and was informed of its outcome on 12 November 1999. The conviction of 16 August 1999 subsequently entered into force and the applicant was sent to a detention centre to serve his sentence. 28. On 2 December 1999 the Presidium of the Krasnodar Regional Court, acting by way of supervisory review of a request lodged by the Chairman of the Krasnodar Regional Court, quashed the conviction of 16 August 1999 (as confirmed on 20 October 1999) for procedural irregularities and remitted the case to the first instance court. 29. The case file was returned to the Armavir Town Court on 20 December 1999. On 30 December 1999 the applicant was returned to the Armavir town detention centre (СИЗО 18/2). A judge was appointed to hear the case on 23 March 2000. 30. On 17 April 2000 the hearing opened, and on 18 April the Armavir Town Court ordered a medical examination of the applicant in a psychiatric hospital. The report was required because of the applicant's “strange behaviour which raised doubts about his mental health”. The behaviour manifested itself in an “inadequate reaction to questions, [and] the constant submission of fictitious and ill-founded requests”. The applicant was not given a copy of that order for several months. He appealed against that decision and his continued detention on remand to the Armavir Town Court on 19, 24 and 25 April 2000, as well as on 12, 23 and 25 May 2000, but received no reply. He also appealed to the Armavir Town Prosecutor on 25 April 2000 and to the Krasnodar Regional Prosecutor's Office on 21 April 2000. Both replied that his complaints had been forwarded to the Armavir Town Court. The Government submitted that these complaints concerned the actions of the trial court judge and did not raise issues concerning the lawfulness of detention. 31. The case file was transferred to the Krasnodar psychiatric hospital on 3 May 2000. On 28 June 2000 the file was returned to the Town Court, no report having been prepared. On 20 July 2000 the judge of the Town Court adjourned the case pending another report on an out-patient basis. The applicant announced in the court room that he would begin a hunger strike, which apparently lasted until 30 July 2000. He alleged that the judge presiding in the case was not impartial, and that he had made threats against the applicant's relatives. 32. The applicant appealed against the order for a psychiatric report to the Armavir Town and Krasnodar Regional Prosecutors, to the Regional Court, to the Krasnodar Qualification Board of Judges and other administrative bodies. On 9 and 24 August 2000 the Qualification Board forwarded the applicant's complaints to the Armavir Town Court. On 28 September 2000 the Regional Court informed the applicant that his complaint had been forwarded to the Town Court, which was to forward the case file for an appeal hearing before the Regional Court. No hearing took place. 33. On 29 September 2000 the Chairman of the Armavir Town Court replied to the applicant and to the Krasnodar Qualification Board that no violations of the domestic law had been committed in the handling of the case. He dismissed the applicant's allegations that the presiding judge had threatened his relatives as “fictitious and ill-founded”. The letter concluded that there were no reasons to question the impartiality and qualifications of the presiding judge. 34. On 9 October 2000 a medical commission examined the applicant in the detention centre and found him to be of sound mind. 35. Between February and December 2000, the applicant submitted nine requests to the Armavir Town Court for additional access to the case file. His request was granted for a period from 8 to 15 December 2000, when he was allowed to have access to and make hand-written copies of relevant documents. The applicant submits that he was allowed about one and a half hours to consider the case file of some 500 pages. 36. On 18 December 2000 the case was adjourned. On 21 December 2000 the applicant appealed against the adjournment to the Krasnodar Regional Court, but his appeal was not examined. 37. On 23 January 2001 the hearing in the Armavir Town Court resumed and on 9 February 2001 the applicant was convicted of attempted robbery and sentenced to four years' imprisonment. The applicant did not appeal against the conviction, which entered into force ten days later. The applicant was released from detention on 9 February 2001, as he had by that time spent three years, five months and 13 days in detention and was granted an amnesty. The two co-accused, K. and U., were also sentenced to prison terms, but did not have to serve their sentences as they also benefited from an amnesty. 38. The applicant claimed that in June 1998 the administration of SIZO - 18/2, where he had been detained on remand, refused to forward his application to the Court. The applicant forwarded the letter through his relatives, who posted it on 24 July 1998. 39. The explanatory notice attached to the Court Registry's letter of 14 August 1998 was not given to the applicant. 40. The applicant further claims that on 25 March 1999 he forwarded a letter, with enclosures, to the Court, and that this letter never arrived. On 10 June 1999 the applicant sent the letter again via his mother. 41. A letter from the applicant to the Court dated 8 June 2000 was posted on 20 October 2000. The applicant lists a number of enclosures to that letter, none of which arrived. The applicant sent them again on 29 December 2000 through his relatives. 42. The applicant was not permitted by the prison administration to retain the correspondence from the Court, which was given to him for a day and then taken away. 43. The Government submitted that the applicant sent two letters addressed to the European Court while in prison - on 8 June 2000 and on 5 January 2001. Both were posted promptly by the prison authorities, and proof of posting exists. The applicant received three letters from the Court in response, dated 8 September 1998, 9 August 1999 and 11 January 2000, all of which were transmitted to him immediately in their entirety upon receipt. As proof, the Government submitted a copy of the correspondence log maintained by the prison authorities which confirmed the applicant's receipt of the Court's three letters. 44. According to the Government, in December 2003 the national legislation was amended to end censorship of correspondence with the European Court of Human Rights in detention centres. 45. It also appears that in December 2000 the applicant attempted to sue the postal service for failure to deliver his letter of 8 June 2000 to the European Court. On 16 January 2001 the Armavir Town Court refused to consider the merits of his claim for pecuniary and non-pecuniary damages against the Armavir postal service. On 15 March 2001 the Krasnodar Regional Court quashed and remitted the decision of 16 January 2001. It further appears that on 11 May 2001 the Armavir Town Court rejected the applicant's claim on the merits, and the applicant did not appeal against that judgment. 46. The Code of Criminal Procedure (CCP), in force at the relevant time, provided in Article 96 that custody could be imposed as a measure of restraint for offences punishable by imprisonment of more than one year. 47. The CCP provided in Article 217 that, after the investigation had been completed, the prosecutor should approve the bill of indictment and forward the case to the court. Thereafter, all complaints and requests should be forwarded directly to the trial court. 48. Under Articles 220-1 and 220-2 of the CCP, an appeal against an order extending a period of detention lay with a court. 49. Articles 223-1 and 230 of the CCP provided that, when the accused was in detention, the judge should set the date for the first hearing within 15 days of receiving the case file from the prosecutor. At the same time, the judge should also decide whether the accused should be remanded in custody. 50. Article 331 of the CCP excluded appeals against certain orders (определения и постановления) of the trial court, such as setting dates for the hearing, forwarding the case for additional investigation, or requesting an in-patient psychiatric report. This Section was found unconstitutional by the Constitutional Court on 2 July 1998, to the extent that it prevented persons in detention from appealing against court orders which had the effect of extending their detention. 51. Articles 17 and 21 of the Federal Law of 15 July 1995 No. 103-FZ “On pre-trial detention” provides that detainees have an unlimited right to submit complaints and letters to governmental and non-governmental bodies. Complaints addressed to the prosecutor, courts and other authorities charged with supervising the legality of detention are not subject to censorship and should be forwarded to the addressee in a sealed envelope. Other letters and complaints are subject to censorship by the administration and are to be forwarded by it within three days of their submission. Any decision by the administration of a detention centre may be appealed in the hierarchical order to a prosecutor and a court. Similar provisions are contained in Section 9 of the Internal Rules of pre-trial detention centres, dated 1995 and 2000 (Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства внутренних дел Российской Федерации, утв. приказом МВД РФ от 20 декабря 1995 г. N 486; Правила внутреннего распорядка следственных изоляторов уголовно-исполнительной системы Министерства юстиции Российской Федерации, утв. приказом Минюста РФ от 12 мая 2000 г. N 148, с изменениями от 21 февраля 2002 г.). | 1 |
train | 001-57583 | ENG | GBR | CHAMBER | 1,980 | CASE OF THE SUNDAY TIMES v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Costs and expenses award - Convention proceedings | null | 1. The Sunday Times case was referred to the Court by the European Commission of Human Rights ("the Commission") in July 1977. The case originated in an application against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1974 by Times Newspapers Limited, the publisher of the British weekly newspaper The Sunday Times, by Mr. Harold Evans, the latter’s editor, and by The Sunday Times as a group of journalists, composed of Mr. Evans himself, Mr. Bruce Page, Mr. Philip Knightley and Ms. Elaine Potter. The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. 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 37 of the Court’s judgment of 26 April 1979 (Series A no. 30, pp. 8-27). 2. By that judgment, the Court held, inter alia, that there had been a breach of Article 10 (art. 10) by reason of an injunction granted against Times Newspapers Limited in accordance with the English law of contempt of court but no breach of Article 14 (art. 14) (points 1 and 2 of the operative provisions and paragraphs 42-73 of the reasons, ibid., pp. 45 and 28-43). During the proceedings on the merits, the applicants, without quantifying their claim, had requested the Court to declare, in application of Article 50 (art. 50), that the Government of the United Kingdom ("the Government") should pay to them a sum equivalent to the costs and expenses which they, the applicants, had incurred in connection with the contempt litigation in the English courts and the proceedings before the Commission and the Court. The Court reserved the whole of the question of the application of Article 50 (art. 50). Those appearing before the Court were invited to notify it, within three months from the delivery of the judgment, of any settlement at which the Government and the applicants might have arrived (point 4 of the operative provisions and paragraphs 76-78 of the reasons, ibid., pp. 44-45). 3. By letters of 18 and 31 July 1979, the Deputy Agent of the Government and the Deputy Secretary to the Commission advised the Registrar that no settlement had been arrived at. 4. In accordance with Orders of the President (3 August, 11 October and 17 December 1979) and a decision of the Court (27 February 1980), the following documents were filed with the registry: - on 10 October 1979, observations of the applicants, transmitted by the Commission’s Delegates; - on 14 December 1979, memorial of the Government; - on 21 February 1980, observations of the Delegates, together with the applicants’ observations on the Government’s memorial; - on 18 April 1980, supplementary memorial of the Government. 5. Having consulted, through the Registrar, the Deputy Agent of the Government and the delegates of the Commission, the Court decided on 29 April 1980 that there was no call to hold oral hearings. On 30 May 1980, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the registry some comments by the applicants on the Government’s supplementary memorial which they had sent to him on their own initiative. On 3 June, the Court decided, on the ground that the case was already ready for decision, not to take this document into account and, accordingly, not to communicate it to the Government. 6. The applicants’ claim may be summarised as follows: (a) for the litigation in the English courts ("the English costs"): 15,809.36 pounds; (b) for the proceedings before the Commission and the Court ("the Strasbourg costs"): - 24,760.53 pounds up to the delivery of the judgment of 26 April 1979; - an additional amount in respect of the Article 50 (art. 50) proceedings; (c) interest at 10% per annum on the sums awarded. There was appended to the applicants’ observations of 10 October 1979 a schedule with particulars of the quantified items, incurred since October 1972. For ease of reference, relevant details are included below in the section "As to the law". 7. The costs of the litigation in England had been the subject of certain "without prejudice" correspondence. On 8 June 1973 the Legal Adviser to Times Newspapers Limited had written to the Treasury Solicitor as follows: "... I am writing to you now to see whether the matter of costs could be dealt with by agreement, thus avoiding any argument at the resumed hearing, when judgment is given. I do not think you will be surprised to hear that we expect the House of Lords to find in favour of the Attorney-general ... In normal circumstances it would be difficult to resist the argument that costs should follow the event, but I venture to suggest that there are a number of features about the present case which would justify a departure from the normal rule ..." There followed a list of circumstances surrounding the litigation in the English courts, together with an assertion that The Sunday Times had acted "with great restraint and responsibility" and had "frequently subordinated its private interest to the more general public interest". The letter concluded: "... we ... base our suggestion that it should be agreed that, in the event of a judgment by the House of Lords in favour of the Attorney-General, there should be an agreed Order that each side pay their own costs, both in the House of Lords and in the courts below, on the ... grounds which I have outlined above." The Deputy Treasury Solicitor had replied on 15 June 1973: "I have obtained the instructions of the Attorney-General on your letter of the 8th June. He considers that each party should bear their own costs of all the proceedings, whatever the outcome of the appeal to the House of Lords." 8. On 25 July 1973, that is one week after giving judgment on the merits in favour of the Attorney-General, the House of Lords ordered: "That, by consent, each party do bear and pay their own costs here and below." Counsel for the Attorney-General had pointed out that "in the ordinary way the Attorney-General would have asked for costs" but that, in the circumstances, it had "been agreed that each party should pay their own costs"; no observations had been added on behalf of Times Newspapers Limited. 9. In English law, a litigant must bear his own costs unless the court otherwise orders. An award of costs lies within the discretion of the court but, as a general rule and in the absence of special factors, "costs follow the event": the unsuccessful party will be ordered to pay to his opponent the latter’s costs, although the actual amount recoverable will be assessed by the court and will very rarely cover the full expenditure. There is jurisdiction to award costs against a successful party but it is exercisable only in the most exceptional circumstances (see Knight v. Clifton [1971] 2 All England Law Reports 378). 10. An order by consent made by an English court is not a contract, but it is sufficient evidence of the contract upon which it is based. Such an order, like the contract which it evidences, is not necessarily to be read literally but is to be construed in the light of any admissible evidence of surrounding circumstances, including evidence as to the nature of the dispute compromised by the order (per Mr. Justice Plowman and, on appeal, per Lord Justice Donovan in General Accident Fire and Life Assurance Corporation v. Inland Revenue Commissioners [1963] All England Law Reports, vol. 1 at 627 and vol. 3 at 261). | 0 |
train | 001-87190 | ENG | DEU | ADMISSIBILITY | 2,008 | STEEG v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The first applicant, Ms Caterina Steeg, is a German national who was born in 1970 and lives in Würzburg. The second applicant, Mr Ekkehard Wenger, is a German national who was born in 1952 and lives in Stuttgart. s, may be summarised as follows. The second applicant is Professor of Economics at the University of Würzburg. He is a founding member of the Association for the Promotion of Shareholder Democracy (Verein zur Förderung der Aktionärs-demokratie) which is committed to protecting the rights of minority shareholders in joint stock companies. The first applicant worked as a student assistant for his department. On 30 July 1999 the first applicant, represented by A., a scientific assistant to the second applicant, bought six shares in the M. company. Between 14 July 1999 and 3 August 1999 the second applicant bought more than 200 shares in that same company. They paid some 930 German marks (DEM) per share. On 4 August 1999 the management of the B. company, which was to take over the M. company, offered to pay ordinary shareholders of the M. company an indemnity of DEM 1,300 per share in order to avoid actions instituted by them. The first applicant accepted that offer and made a profit amounting to more than DEM 2,000. The second applicant accepted the offer for part of his shares. On 4 July 2001 the Würzburg District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure (see Relevant domestic law below) to search the first applicant’s home in Höchberg (her principal residence), her parent’s home in Duisburg (her secondary residence) and herself. It further issued another warrant to search the second applicant’s home in Stuttgart, his office at the University of Würzburg and himself. Both applicants were suspected of prohibited insider trading. The District Court ordered the search and seizure of all documents and electronic storage media concerning the purchase of shares in the M. company between July 1999 and August 1999. In the second applicant’s case, it further ordered the search and seizure of documents concerning telephone conversations with members of the B. company, and in the first applicant’s case documents concerning information given to her either by the second applicant or by his scientific assistant A. in respect of the purchase of the shares. The District Court observed that in a shareholders’ meeting on 16 July 1999 the M. company decided to merge with a company affiliated to the B. company. The Association for the Promotion of Shareholder Democracy, which was founded by the second applicant and was represented during the meeting by his scientific assistant A., objected to the decision and threatened to institute proceedings in court to set it aside, as no offer for a takeover of ordinary shares (as opposed to preference shares) was to be made to the shareholders of the M. company. Following negotiations with the holding company B., the latter publicly announced on 4 August 1999 a takeover offer of DEM 1,300 per share also to those holding ordinary shares in the M. company. The District Court found that both the fact that negotiations were being conducted concerning a takeover offer and the content of those negotiations were insider information which was likely to lead to a higher stock rate when made public. The first applicant, who had not previously held any stocks in the M. company, had bought six shares in that company on 30 July 1999. As she had been a scientific assistant to the second applicant, there was a suspicion that this insider information had been disclosed to her either by the second applicant or by A., with whom she had been working in another company, and that she had used that information when buying the shares in the M. company. The second applicant, who had not previously held any shares in the M. company, had bought a total of 243 shares between 16 July and 2 August 1999. As he had spoken to the managing directors of the B. company on the telephone during that period, there was a suspicion that he had obtained knowledge of the planned offer to shareholders and had used that information when buying shares in the M. company. The search warrants were subsequently executed. The first applicant’s home in Höchberg was searched in her presence, and her parents’ home was broken into and searched in their absence and a number of objects and documents seized. The police also searched the second applicant’s office and his home, the latter in the presence of his then 84-year-old father with whom he was living, and seized several documents and his laptop. On 10 and 11 July 2001 the second and the first applicant respectively lodged an appeal against the search warrant and the seizures with the Würzburg Regional Court. They claimed that these measures had been unlawful. They had not had knowledge of the takeover offer made to ordinary shareholders in the M. company before that offer had been made public. This had already been confirmed by the B. company on the request of the Federal Office for the Surveillance of Trading in Securities (Bundesaufsichtsamt für den Wertpapierhandel) prior to the issuing of the search warrants. On 26 July 2001 the Würzburg Regional Court dismissed the first and second applicants’ appeal against the search and seizure orders as ill-founded. It found that the District Court had rightly considered that there had been a suspicion of prohibited insider trading and had sufficiently specified the persons and rooms to be searched and the evidence to be searched for. The orders had not been disproportionate. Search and seizure had been appropriate and necessary measures. Awaiting the collection of further evidence, such as witness testimonies, would have entailed the risk that the evidence searched for could no longer be secured; nor had issuing a search warrant against the first applicant been disproportionate, as the criminal investigations concerned a wider serious offence and had been instituted against several suspects who could have colluded, which made it necessary to coordinate the investigation measures taken. The Regional Court further found that the seizure of the objects and documents in question had been lawful as they were possibly relevant for the criminal proceedings. On 3 September 2001 the first and the second applicant each lodged a complaint with the Federal Constitutional Court against the decisions taken by the Würzburg District and Regional Courts. Relying notably on Article 13 of the Basic Law (see Relevant domestic law below), they complained about the searches and seizures, which they considered to breach their right to respect for their home and to be arbitrary. In two decisions adopted on 9 September 2004 the Federal Constitutional Court declined to consider the first applicant’s (file no. 2 BvR 1542/01) and the second applicant’s (file no. 2 BvR 1541/01) constitutional complaints as they were ill-founded. The Federal Constitutional Court found that the criminal courts had not breached the applicants’ right to respect for their home as protected by Article 13 § 1 of the Basic Law. The criminal courts’ finding that there had been a suspicion of prohibited insider trading had not been arbitrary. After the shareholders’ meeting on 16 July 1999 it had not been certain whether or not a takeover offer would be made to ordinary shareholders. Nonetheless, the applicants had bought shares in the M. company after this meeting and shortly before the public announcement of the takeover offer. The first applicant had bought the shares in cooperation with an assistant of the second applicant. In his capacity as a member of the Association for the Promotion of Shareholder Democracy, the second applicant had voiced his support for a takeover offer to be made to the ordinary shareholders as well and had been in contact by telephone with the management of the companies concerned. The Federal Constitutional Court further found that it had not been arbitrary for the criminal courts to consider the searches as proportionate. The evidence to be searched for in accordance with the warrants was suitable to establish the circumstances in which the shares had been bought. The possibility that evidence proving knowledge of insider information would be found could not be excluded. Having regard to comparable cases, it had also not been arbitrary to consider the search ordered against the first applicant as proportionate despite the fact that she had only bought six shares. The possible damage caused amounted to more than DEM 2,000 and there had been a suspicion against several persons who could have colluded. The decisions were served on the applicants on 20 September 2004. They are at issue in application no. 9676/05 lodged with this Court by the first applicant and application no. 10744/05 brought by the second applicant. On 11 January 2002 the Würzburg Public Prosecutor’s Office discontinued the investigation proceedings against the applicants. It found that the evidence collected was insufficient to secure their conviction of insider trading. On 8 June 2004 the Stuttgart District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure for the search of the second applicant’s home and cars in Stuttgart, of his office at the University of Würzburg and of himself on suspicion of prohibited insider trading. It ordered the search and seizure of all documents and electronic storage media concerning the purchase and sale of shares in the A. company by the second applicant and further co-defendants in July 2002. The District Court found that the A. company had informed its shareholders on 10 July 2002 that the A.B. limited liability company wanted to take over the shares of the minority shareholders of the A. company and was offering them an indemnity of some EUR 35 per share. On 21 August 2002 an increased offer of an indemnity of EUR 56 per share was made public. The second applicant had purchased 547 shares of the A. company for some EUR 35 on 20 August 2002. He was suspected of having obtained knowledge of the A.B. company’s intention to offer an indemnity in the higher amount from a third person (S.), who had negotiated with him with a view to obtaining his agreement to sell the shares he already had, and to have used that knowledge when purchasing the shares on 20 August 2002. His profit amounted to some EUR 10,600. The search warrant was executed on 6 October 2004, at the same time as warrants that had been issued against several other persons. No suspicious objects or documents were found or seized. On 5 November 2005 the second applicant appealed against the search warrant. He claimed that there had not been a reasonable suspicion of insider trading against him at the time the warrant had been issued, as S. had already told the investigation authorities that he had not informed him of the planned increased offer of an indemnity. He had bought the shares as he had previously received the public report of the A. company concerning the planned takeover of the shares of the minority shareholders and thus considered the purchase of shares to yield profits. On 18 November 2005 the Stuttgart Regional Court dismissed the second applicant’s appeal against the search warrant as ill-founded. Referring to the exhaustive report and the documents submitted by the Federal Office for the Surveillance of Financial Services (Bundesanstalt für Finanzdienst-leistungsaufsicht) to the Public Prosecutor’s Office, it found that there had been a sufficient factual basis for a suspicion of insider trading when the District Court issued the search warrant. In particular, the fact that S. had proposed to others to persuade the second applicant to accept an offer of indemnity and that the latter had bought further shares only one day before the higher offer of indemnity was made public was sufficient to ground the suspicion of insider trading. Moreover, the documents to be seized had been described in sufficient detail in the search warrant. In view of the gravity of the offence the second applicant was suspected of, the search order had also not been disproportionate. The decision was served on the second applicant on 26 November 2005. On 25 December 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained about the renewed search and argued that this measure had violated his right to respect for his home and had been arbitrary. On 9 March 2006 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 104/06). It found that the second applicant had failed sufficiently to substantiate his complaint, which was therefore inadmissible. It argued that the second applicant had not informed the court of the contents of the report drawn up by the Federal Office for the Surveillance of Financial Services to which the criminal courts had referred in their decisions ordering the search. He should have done so as he had contested that there had been a sufficient suspicion of insider trading. Apart from this, the second applicant had also informed the court only selectively about the evidence on which the criminal courts had founded their suspicion against him. The Federal Constitutional Court was thus not in a position to review the criminal courts’ assessment. Moreover, the second applicant had failed to explain why it should have been obvious to the criminal courts that he could have had knowledge of the facts relevant for the trend in the share price from other sources. He does not appear to have informed the criminal courts that he had received the report of the A. company. In view of this, it could be left open whether the decisions of the criminal courts had violated the second applicant’s fundamental rights. The decision was served on the second applicant on 20 March 2006. It is at issue in application no. 41349/06 lodged by him with this Court. On 4 November 2005 the Stuttgart Public Prosecutor’s Office discontinued the investigation proceedings against the second applicant. It found that, even though it was likely that the second applicant had been informed of the increased takeover offer which was to be made either by S. or by one of his co-defendants and had bought the shares by using that knowledge, the investigations, including the search of the second applicant’s home, had not yielded any evidence to prove that he was guilty of insider trading. On 29 October 2004 the Stuttgart District Court issued a further warrant to search the home, cars and person of the first applicant and of K., both qualified as witnesses, on suspicion of prohibited insider trading by the second applicant and others in respect of shares in the A. company. The search order was executed on 30 November 2004 without any evidence being found. On 18 November 2005 the Stuttgart Regional Court granted an appeal by K. against the search warrant issued against him. It found that the warrant had been unlawful as the searches conducted on 6 October 2004 of, inter alia, the second applicant’s and S.’s homes had not produced any results confirming the suspicion against them. Moreover, S., heard as a witness on that day, had denied having informed the second applicant of the intention to offer minority shareholders a higher indemnity. It was therefore unclear which relevant evidence should have been found when searching K.’s home after that date. On the contrary, on 27 December 2005 the Stuttgart Regional Court dismissed as ill-founded the appeal lodged by the first applicant against the search warrant issued against her. On 3 July 2006 the Federal Constitutional Court, allowing the first applicant’s constitutional complaint, quashed the decisions of the Stuttgart District and Regional Courts. It found that these decisions violated the first applicant’s right to respect for her home. The search warrant issued by the Stuttgart District Court was not sufficiently reasoned in that it did not explain why evidence against the suspects could be found in her home. Moreover, the search warrant against the first applicant, who was not suspected of an offence, was disproportionate as, at the time the warrant was issued, there was no longer a strong suspicion against the suspects and it was not likely that evidence would be found in the first applicant’s home. Article 13 § 1 of the Basic Law stipulates that the home is inviolable. In accordance with paragraph 2 of that Article, searches may be authorized only by a judge or, when time is of the essence, by other authorities designated by law, and may be carried out only in the manner prescribed therein. Article 102 of the Code of Criminal Procedure, on searches in respect of the suspect, provides that a search of the home and other premises and of the person and the belongings of the suspect of a criminal offence may be made for the purpose of his apprehension or if it may be presumed that the search will lead to the discovery of evidence. Pursuant to Article 105 § 1 of the Code of Criminal Procedure, searches may only be ordered by a judge or, in case of urgency (Gefahr im Verzug), also by the public prosecutor’s office and the officials assisting it. Pursuant to section 14(1)(1) of the Securities Trading Act (Wertpapierhandelsgesetz) insiders shall be prohibited from taking advantage of their knowledge of insider information to acquire or dispose of insider securities for their own account or for the account or on behalf of a third party. Likewise, a third party who has knowledge of inside information shall be prohibited from taking advantage of that knowledge to acquire or dispose of insider securities for his own account or for the account or on behalf of others (section 14(2) of the Securities Trading Act). Pursuant to section 38(1)(1) of the Securities Trading Act, any person who acquires or disposes of an insider security in contravention of a prohibition under section 14(1)(1) or 14(1)(2) shall be liable to up to five years’ imprisonment or to a fine. | 0 |
train | 001-85867 | ENG | GBR | ADMISSIBILITY | 2,008 | MAUDSLEY v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Norman Maudsley, is a British national who was born in 1946 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 6 August 2000. On 26 July 2001 the applicant made a claim for widows’ benefits. On 4 October 2001 he was informed that his claim had been disallowed as he was not a woman. On 5 October 2001 the applicant made a request for reconsideration. On 15 October 2001 the previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-75243 | ENG | SVN | CHAMBER | 2,006 | CASE OF GASHI v. SLOVENIA | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | David Thór Björgvinsson;John Hedigan | 5. The applicant was born in 1943 and lives in Celje. 6. On 9 May 1996 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZT. 7. On 6 May 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 5,150,000 tolars (approximately 21,400 euros) for the injuries sustained. Between 29 May 1997 and 11 May 2005 the applicant lodged thirteen preliminary written submissions and/or adduced evidence. Between 20 November 1997 and 6 March 2002 he made five requests that a date be set for a hearing. Of the eight hearings held between 15 October 1999 and 5 December 2003 none was adjourned at the request of the applicant. During the proceedings the court appointed three medical experts. The court also sought an additional opinion from two of the appointed experts. The proceedings are still pending. | 1 |
train | 001-68713 | ENG | HUN;ROU | CHAMBER | 2,005 | CASE OF MONORY v. ROMANIA AND HUNGARY | 3 | Violation of Art. 8 by Romania;Not necessary to examine whether Art. 13 violated by Romania;Violation of Art. 6-1 by Hungary;Non-pecuniary damage - financial awards (for Romania);Non-pecuniary damage - financial awards (for Hungary);Costs and expenses partial award - domestic proceedings | null | 8. The applicant was born in 1946 and lives in Nagymaros, Hungary. 9. In 1994 the applicant married Ms C.M., who is a national of both Romania and Hungary. On 16 February 1995 their daughter V. was born. The parents had joint custody in respect of the child, according to Hungarian law. They lived in Nagymaros. 10. In December 1998 they visited the wife’s family in Romania. The applicant returned to Hungary, while C.M. stayed in Romania with V. and promised to return by 30 January 1999. 11. On 4 January 1999 C.M. filed for divorce, custody of V. and maintenance before the Satu Mare District Court in Romania. On 17 January 1999, she informed the applicant by telephone that she had decided to live in Romania and would not allow him to take V. to Hungary, despite him still being her husband and having joint custody of their daughter. 12. In a decision of 8 October 2003, the Satu Mare District Court established the residence of the child with her mother, pending the outcome of the divorce proceedings and required the applicant to pay alimony for his daughter. It also granted the applicant visiting rights to his child. On 19 February 2004 the decision became final. 13. In the meantime, on 20 January 1999 the applicant submitted a request for the return of his daughter to Hungary under Article 3 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). The request was submitted through the Hungarian Ministry of Justice (“the Hungarian Ministry”) to the Romanian Ministry of Justice (“the Romanian Ministry”). He argued that V. was the victim of international kidnapping and had been retained in Romania unlawfully within the meaning of Article 72 § 1 of the Hungarian Code on Family Law. 14. The Romanian Ministry, acting as the Central Authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Satu Mare District Court. On 8 June 1999 the District Court found no violation of the relevant Articles of the Hague Convention and refused the applicant’s request. It considered that the retention of the child was not unlawful in so far as the applicant did not have exclusive custody rights in respect of his daughter and, thus, Article 3 of the Hague Convention was not applicable. The court considered that, in any case, the return of the child would constitute a great risk for her since she was already integrated into the new environment created by the mother during her stay in Romania. 15. On 5 October 1999 the Hungarian Nagymaros Guardianship Authority, at the applicant’s request, declared that C.M. had not instituted the correct administrative proceedings, as required by the Hungarian Code on Family Law, with respect to their daughter’s lawful removal to, and retention in Romania. It proposed that the child’s residence be established with her father. 16. On 22 October 1999 the Satu Mare County Court dismissed the applicant’s appeal against the decision of 8 June 1999. It recalled that the applicant did not have exclusive custody rights with respect to his daughter. It further considered that the return of the child would deprive the mother of the exercise of her parental rights. Lastly, the county court stated that, as long as the marriage of the parents was still valid, they should have the custody matters resolved by a competent court. 17. The Romanian Ministry appealed on points of law against this decision, alleging that the county court had incorrectly interpreted the applicable law and the facts of the case. They recalled that, according to the Hague Convention, the court should have applied Hungarian law, by which the retention of the child across the border by her mother without the father’s consent was illegal. 18. On 2 February 2000 the Oradea Court of Appeal dismissed the appeal. It recalled that under Hungarian law the parents exercised parental rights jointly. However, due to the concrete family situation, it was normal that the parent living abroad would have to make more effort in order to exercise these rights. Furthermore, it considered that the child had already become integrated into the new environment. It held therefore that it was in the best interests of the child that she remain with her mother. 19. In parallel, on 28 April 1999 the applicant filed for the custody of V. before the Vác District Court in Hungary. On 17 May 1999 the applicant requested the court to proceed with the case as a matter of urgency and to hear witnesses. 20. On 21 May 1999 the District Court, via the Ministry of Justice, notified the defendant in Romania of the action. 21. On 30 August 1999 the applicant requested, by way of an interim measure, that V. be temporarily placed in his care and that the mother’s custody rights be terminated. 22. On 8 September 1999 the District Court held a hearing, dismissed the applicant’s request for interim measures and suspended the case until the proceedings on the Hague Convention issues had been finalised. The District Court noted that the divorce proceedings before the Romanian Satu Mare District Court had also been suspended on an earlier date for the same reason. The applicant appealed against this decision on 16 September 1999. 23. On 21 September 1999 the Pest County Public Prosecutor’s Office interceded in the proceedings for the applicant and endorsed his appeal of 16 September filed against the decision of the Vác District Court. On 30 September 1999 both the applicant’s and the public prosecutor’s appeals were served on the defendant, who received them on 28 December 1999. 24. On 29 October 1999 the applicant requested the District Court to grant him, by way of an interim measure, custody of the child, to terminate the mother’s parental rights and to proceed with the case urgently. 25. On 31 January 2000 the applicant renewed his request for custody of the child. He also filed a motion for bias against the District Court and the presiding judges. He renewed this motion on 21 February 2000. 26. On 29 February 2000 the Pest County Regional Court upheld the dismissal of the applicant’s request for interim measures but instructed the District Court to resume its proceedings. This decision, notified via the Hungarian Ministry, reached the defendant on 29 May 2000. 27. On 19 May 2000 the District Court ordered that a study be made in the homes of both parties in order to ascertain their living conditions. A study was carried out in the applicant’s home on 8 June 2000. The order was served on the defendant on 10 July 2000 and the relevant documents forwarded on 23 January 2001 to the Ministry of Justice with a view to carrying out a similar study in the defendant’s home in Romania. 28. The applicant’s repeated motions for bias were dismissed on 27 September, 26 and 30 October and 11 December 2000. 29. On 5 January 2001 the District Court joined to the proceedings the applicant’s further claim for divorce which had been filed on 3 July 2000. The defendant was notified of this step on 1 March 2001. 30. On 21 and 30 January 2001 respectively, the applicant submitted further documents and requested the court to summon other witnesses. 31. The applicant’s renewed request of 31 January 2001 for an interim measure was dismissed by the District Court on 15 February 2001. 32. On 6 June 2001 the District Court held a hearing and heard four witnesses. The defendant failed to appear. The court therefore requested her to submit her observations on the minutes of the hearing within 15 days and ordered her to submit a written response to the applicant’s claim for custody of the child. 33. On 8 June 2001 a lawyer practising in Hungary informed the court that the defendant had authorised him to represent her in the case. On 2 July 2001 the defendant submitted her counter-claim and motions for evidence. 34. On 5 July and 30 October 2001 the Hungarian Ministry made an enquiry with its Romanian counterpart as to whether the envisaged study of the defendant’s home could be carried out. In their reply of 10 December 2001, the Romanian Ministry stated that the relevant documents had been lost. 35. A hearing was held on 7 November 2001 at which the District Court heard a witness. The defendant’s representative informed the court that the request to carry out a study of the defendant’s living conditions had been served on the defendant by mistake. Consequently, the District Court asked the Hungarian Ministry to send the request again to the Satu Mare District Court. 36. On 8 November 2001 the District Court refused to regulate the applicant’s access rights by way of an interim measure. 37. On 22 and 29 November 2001 the District Court invited the applicant to update the addresses of two of his witnesses who could not be summoned. On the previous day the applicant had appealed against the order of 8 November 2001. 38. On 19 December 2001 the District Court held a hearing and heard witnesses. It also set a statutory three-month time-limit for the parties to reconsider or confirm the continuation of the divorce proceedings. 39. Meanwhile, on 14 November 2001 the witness requested by the Vác District Court was heard by the Satu Mare District Court. The minutes were forwarded to the Hungarian Ministry and their translation was completed on 3 December 2001 and 27 February 2002, respectively. 40. On the applicant’s appeal, the Pest County Regional Court quashed the order of 8 November 2001 and requested the District Court to take a new decision. 41. After the Hungarian Ministry had replaced the lost documents, on 13 February 2002 the Romanian Satu Mare District Court carried out the requested home study. The translation of the resultant documents reached the Hungarian Vác District Court on 21 May 2002. 42. Meanwhile, on 15 February 2002 the District Court regulated the applicant’s access rights. This order was amended by the Regional Court on 2 April 2002. 43. On 26 March 2002 the Pest County Regional Court rejected the applicant’s renewed motion for bias against the Vác District Court and fined him 15,000 Hungarian forints (HUF) for having repeatedly challenged judges without substantiating the requests. 44. On 27 May 2002 the District Court appointed an expert in child psychology. The expert’s examination of V., scheduled for 2 July 2002, was cancelled as the defendant was unwilling to attend because she was unable to meet the travel costs. 45. On 16 July 2002 the District Court dismissed the applicant’s request for an interim measure of 4 July 2002 to order that V. spend her summer vacation in Hungary. 46. The defendant failed to appear with the child at examinations scheduled for 2 July and 11 November 2002, 13 January and 26 February 2003. On 4 December 2002 the District Court imposed a fine of HUF 20,000 on the defendant. On 22 January 2003 the court warned the defendant that she was obliged to appear at the examinations. At a later date, the court amended the instructions for the expert and ordered her to assess who was the most suitable parent to raise the child. The defendant was examined on 14 May 2003. 47. On 26 June 2003 the expert submitted her opinion, finding the mother more suitable to raise V. 48. On 4 July 2003 the District Court, as an interim measure, regulated the applicant’s access rights for the summer of 2003. 49. The District Court held hearings on 12 September and 29 October 2003. In a judgment delivered on the latter date, the court declared the couple’s divorce and divided the matrimonial property. It also granted the defendant custody of V. and ordered the applicant to pay her maintenance of HUF 10,000 per month. 50. On 5 January 2004 the applicant appealed against the judgment. He withdrew the appeal 15 days later. Consequently, on 21 January 2004 the judgment became final. “The removal or the retention of a child is to be considered wrongful where a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention...” “For the purposes of this Convention – a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;...” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures - a) to discover the whereabouts of a child who has been wrongfully removed or retained; b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d) to exchange, where desirable, information relating to the social background of the child; e) to provide information of a general character as to the law of their State in connection with the application of the Convention; f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i) to keep other each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child...” “The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” 52. Paragraph 68 of the Explanatory Report on the 1980 Hague Child Abduction Convention drafted by Elisa Pérez-Vera in 1980, interprets Article 3 of the Convention as follows: “The first source referred to in Article 3 is law, where it is stated that custody ‘may arise ... by operation of law’. That leads us to stress one of the characteristics of this Convention, namely its application to the protection of custody rights which were exercised prior to any decision thereon. This is important, since one cannot forget that, in terms of statistics, the number of cases in which a child is removed prior to a decision on its custody are quite frequent. Moreover, the possibility of the dispossessed parent being able to recover the child in such circumstances, except within the Convention’s framework, is practically non-existent, unless he in his turn resorts to force, a course of action which is always harmful to the child.” The same Report, in its paragraph 84, comments on Article 5 in the following terms: “...although nothing is said in this article about the possibility of custody rights being exercised singly or jointly, such a possibility is clearly envisaged... the whole tenor of Article 3 leaves no room for doubt that the Convention seeks to protect joint custody as well. As for knowing when joint custody exists, that is a question which must be decided in each particular case, and in the light of the law of the child’s habitual residence.” “(1) A court shall - in accordance with Section 1 - enforce the parties’ right to have their disputes determined in fair proceedings and within a reasonable length of time.” “(1) The task of a law court is to endeavour to find out the truth in accordance with the aim of the present Act. The court shall, therefore, see in its line of duties that the parties exercise their rights properly throughout the procedure and meet the obligations they are bound to meet in the lawsuit. The court is obliged to provide the necessary information to a party who has no counsel and to remind him of his rights and obligations. The court shall consider pleas and declarations submitted by a party not by their formal designation but according to their contents. (2) The court shall see, in its line of duties, that cases be tried thoroughly and within a reasonable length of time.” | 1 |
train | 001-91796 | ENG | POL | CHAMBER | 2,009 | CASE OF MOJSIEJEW v. POLAND | 2 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1951 and lives in Bojszowy, Poland. 6. On 28 August 1999 the applicant’s elder son, Hubert Mojsiejew, died at the age of twenty-five in the Tychy SoberingUp Centre (Izba Wytrzeźwień), where he had been detained at 4.50 a.m. that day. 7. On the same day the Tychy District Prosecutor and a forensic expert examined Hubert Mojsiejew’s body. The prosecutor ordered an autopsy to be carried out by experts from the Śląska Medical Academy. 8. After an autopsy had been carried out on 30 August 1999 an opinion was submitted to the prosecutor on 3 September 1999. The expert established that a possible cause of death was asphyxiation resulting from pressure on the victim’s neck and that Mr Mojsiejew had a blood alcohol level of 1.70 per mille. 9. The death certificate (karta zgonu) signed by Dr J.S., a forensic expert from the Śląska Medical Academy in Katowice, gave the following cause for Hubert Mojsiejew’s death: “Numerous effusions of blood in the soft tissue of the neck.” 10. On 30 August 1999 the Tychy District Prosecutor opened an investigation in order to establish whether an offence prohibited by Article 155 of the Criminal Code (unintentional homicide) had been committed. The prosecutor interviewed several witnesses and ordered an examination of blood and other samples and the preparation of an expert opinion. 11. On 30 December 1999 the Tychy District Prosecutor discontinued the investigation. The prosecutor observed that Hubert Mojsiejew had been examined by a doctor at the time of his admission to the soberingup centre. The examination showed that he had been intoxicated and that he had no injuries to his body. As Hubert Mojsiejew had uttered threats and had been aggressive, he had been tied up to a bed with belts. The room in which he had been detained had been inspected by an employee of the soberingup centre at 7 a.m. and 7.45 a.m. When the same employee had come to the room at 8.45 a.m. he had noticed spots on Hubert Mojsiejew’s skin and had called the doctor on duty. The doctor had examined Hubert Mojsiejew and had called an ambulance. The doctor who had arrived in the ambulance had examined Hubert Mojsiejew and had declared him dead. Furthermore, the prosecutor referred to an expert opinion prepared by the Śląska Medical Academy, which stated that Hubert Mojsiejew had died of asphyxiation. The prosecutor concluded that the evidence collected in the course of the investigation did not show that third persons had caused the death of Hubert Mojsiejew. 12. On 18 January 2000 the applicant lodged an appeal with the Tychy District Prosecutor against the decision to discontinue the investigation. She also requested that the prosecution service carry out a reconstruction of the crime scene, with the assistance of a medical expert. On 20 January 2000 the Tychy District Prosecutor informed the applicant that her request had been granted. 13. On 14 March 2000 a medical expert opinion was prepared by the Silesian Medical Academy in Katowice. The expert established that the possible cause of Hubert Mojsiejew’s death had been asphyxiation due to immobilisation of his chest by belts which might have obstructed his breathing. However, the expert was unable to establish the origin of the injuries to Hubert Mojsiejew’s neck. 14. On 14 March 2000 the Tychy District Prosecutor allowed the applicant’s appeal of 18 January 2000 and resumed the investigation. 15. In May 2000 the prosecutor charged Z.K., an employee of the Centre, with the unintentional homicide of Hubert Mojsiejew. Three other employees of the centre were charged by the prosecutor in July 2000. On 14 July 2000 Z.K. was suspended from his duties at the Tychy Sobering-Up Centre. 16. On 28 September 2000 the prosecutor ordered the preparation of another expert medical opinion by the Śląska Medical Academy in Katowice. The opinion was inconclusive and did not rule out either the exertion of pressure on Hubert Mojsiejew’s neck or his incorrect immobilisation by belts as possible causes of his death. The expert was also unable to establish precisely the time of his death. 17. In a supplementary expert opinion prepared in November 2000 the expert established that Mr Mojsiejew should have been released from the belts after an hour since he had ceased to be aggressive. Moreover, the staff had failed to supervise his state of health. The expert concluded that the death could have been caused by strong pressure on his chest and his lack of direct supervision for many hours. 18. On 11 December 2000 the Tychy District Prosecutor indicted four employees of the sobering-up centre before the Tychy District Court. They were indicted under Article 155 of the Criminal Code for the unintentional homicide of Hubert Mojsiejew. In particular, Mr Z.K. was accused of having incorrectly immobilised Hubert Mojsiejew on the bed and, in doing so, having exerted pressure on his neck. In consequence the respiratory movements of his chest had been limited to a large extent, which had led to his death by asphyxiation. Three other employees of the sobering-up centre were charged with unintentional homicide by failing in their duty to care for and supervise Mr Mojsiejew. 19. The applicant requested to join the proceedings as an auxiliary prosecutor. 20. The hearing scheduled for 24 July 2001 was adjourned as the parties had not been properly summoned to it. Afterwards, the trial could not start as on three occasions new reporting judges had to be assigned to the case. In consequence, the Tychy District Court held the first hearing on 17 April 2003. Subsequently, two hearings were scheduled for 9 June 2003 and 24 February 2004 but they were adjourned. 21. The trial court held a hearing on 10 May 2004, at which it examined the accused. Some hearings scheduled afterwards were adjourned for various procedural reasons. On 16 August 2004 an attempt by the applicant to challenge judges trying the case was dismissed. 22. The Tychy District Court held its next hearing on 10 December 2004 and examined some witnesses. 23. In 2005 the trial court held eleven hearings in total and scheduled them at regular intervals. 24. In 2006 the court held only two hearings, on 23 January and 4 April. On 28 April 2006 the court requested a new expert medical opinion from the Wrocław Medical Academy. The experts submitted their opinon on 15 November 2006. The opinion reads as follows: “The above observations [from photographs and an inspection of the room in which Hubert Mojsiejew died] lead to a conclusion that the injuries to the deceased’s neck most probably did not occur prior to his arrival at the sobering-up centre, or as a result of his being tied to the bed by belts. In consequence, another means by which these injuries occurred needed to be examined. The absence of external skin injuries and the presence of extensive internal injuries in the soft tissue of the neck indicate that a large amount of direct pressure had been applied with a blunt object of a substantial surface area. Such an object could have been, for example, an arm, or alternatively the elbow area between the forearm and arm, if somebody had applied the immobilisation technique called a headlock (krawat). In this hold the person applying it normally stands behind the person to be immobilised and forcefully puts his arm around the neck [... simultaneously pushing the head with the other hand ...]. This hold blocks breathing and hinders the access of blood to the brain, which in a short time leads to fainting. At the same time, if [the headlock] lasts long enough it may lead to death by strangulation or cardiac arrest. ... Cardiac arrest or respiratory failure occurs either immediately after [the headlock] has been applied or it can occur some time afterwards if the hold was applied for a long enough time to cause brain damage ... It appears from medical and forensic practice that the [headlock] is sometimes used on intoxicated and aggressive patients at sobering-up centres. Such actions, where they do not cause death, expose the person to a direct danger of loss of life or serious bodily injury within the meaning of Article 160 of the Criminal Code. The absence of any external signs of injuries on the chest which could indicate that strong pressure had been applied by narrow belts limiting the respiratory movements of the chest ..., taking into account the above considerations, makes it very doubtful that the immobilisation of the chest was the cause of [Hubert Mojsiejew’s] death. While the cause of death advanced by the Śląska Medical Academy cannot be totally ruled out, it is much more probable that the cause of the sudden death of [Hubert Mojsiejew] was strangulation (uduszenie przez zadławienie) by applying strong pressure with a blunt object to the neck, in the manner and circumstances described above. It should be added that such extensive injuries to the front side of his neck could not have happened if [Hubert Mojsiejew] was trying to free himself from the belts while lying on his stomach. It is also impossible that such injuries occurred during convulsions... A forensic examination of the body (obdukcja sądowo-lekarska), in the place in which it had been found, was not conducted, which makes it impossible to establish the exact time of death. Analysing livor mortis (plamy pośmiertne) [and other factors], one can only advance the hypothesis that about one to two hours had elapsed between his death and the time at which his body was found.” 25. The Tychy District Court held a hearing on 23 January 2007 and on 30 January 2007 it gave its judgment. The court changed the classification of the offence and found all the accused guilty of having exposed Hubert Mojsiejew to an immediate danger of loss of life within the meaning of Article 160 § 2 of the Criminal Code. They were sentenced to two years’ imprisonment, suspended for a probationary period of three years. 26. As regards the course of the events of 28 August 1999, the court established that during his arrest by the police, his transfer to the soberingup centre and his stay in the centre, Hubert Mojsiejew had been calm and had not shown aggression. In the sobering-up centre, however, he refused to undress and became verbally abusive, which led the centre’s staff to decide to put him in the special room with immobilising belts. At 4.55 a.m. Hubert Mojsiejew was put on the bed, on his stomach, and Z.K. tied his hands, legs and chest with the belts. During this, Mr Mojsiejew was calm and did not put up a struggle; he was mumbling incomprehensibly. After having been tied to the bed and examined by a doctor, Hubert Mojsiejew was left in his room. He was examined 20 minutes later but afterwards no employee from the shift that finished at 7 a.m., or from the following shift, came into the room in which Mr Mojsiejew had been immobilised and examined him. The employees occasionally observed him, looking mostly through a spy-hole in the door without entering the room, and were able to see his sides moving, from which they had concluded that he was still breathing. At 8.45 a.m. one employee of the centre noticed through the glass in the door that the skin on Hubert Mojsiejew’s hands was of an unnatural colour. He called a doctor on duty and together they came into the room. They untied Mr Mojsiejew. At 9.06 an ambulance came and the doctor established that Hubert Mojsiejew was dead. 27. As regards the cause of his death, the court noted that all medical opinions had found that Hubert Mojsiejew had died of asphyxiation. The court considered that the experts from the Śląska Medical Academy had avoided answering the question of the origin of the injuries to Mr Mojsiejew’s neck. Thus, the court accepted the conclusions reached by the experts from the Wrocław Medical Academy, who dismissed as highly improbable the hypothesis that the belts had been tied too tight and had obstructed the movement of his chest, since Mr Mojsiejew had not had any marks on his body indicating that pressure had been exerted by the chest belt. The court thus concluded that his death had been caused by strangulation (zadławienie) as pressure had been applied to Hubert Mojsiejew’s neck. It had most probably happened when someone had put Mr Mojsiejew in a headlock. This immobilisation technique, if applied for a longer time, could lead directly to death, but if applied for a shorter period of time could cause brain damage, which affected breathing and after a certain time could also lead to death. 28. The court also considered that the failure to conduct a forensic examination of the body narrowed the evidence concerning the state of the body, its temperature and the state of livor mortis. Thus, the precise time of death could not be established. 29. Although the court was unable to establish beyond doubt who had applied the headlock on the applicant’s son, it considered that all the accused had failed in their duty of care for Hubert Mojsiejew by having exposed him to an immediate danger of loss of life. In particular, the employees of the centre had been obliged to carry out constant supervision of the rooms in which intoxicated persons were detained. Under domestic law, patients immobilised by belts should be examined and checked every 15 minutes. If patients stayed calm and there were no other indications for the use of belts, they should be released; it should also be ensured that the patient did not need to use the toilet. However, Hubert Mojsiejew had not been examined every 15 minutes. He had been properly examined only once, about 20 minutes after he had been immobilised by the belts. Moreover, immobilisation by belts should not have been applied to him in the first place. The accused had thus deliberately failed in their obligation to protect Hubert Mojsiejew’s life. Moreover, they had been completely unaware of the rules governing the manner in which care was to be provided to immobilised patients. In particular one of the accused, who was a doctor, had believed that a patient could be kept immobilised for 24 hours without being released. 30. The accused and the applicant appealed against the judgment. 31. On 13 November 2007 the Katowice Regional Court quashed the judgment and remitted the case to the lower court. The court considered premature the first-instance court’s conclusions relating to the manner in which Mr Mojsiejew’s death had occurred. It found that the accused had been correct in submitting that the exact time of the events and Mr Mojsiejew’s death should have been specified since the accused had been responsible for providing care to him at different times. It also indicated that other evidence needed to be taken, in particular from the expert witnesses from the Wrocław Medical Academy who had prepared the most recent opinion. 32. The case was transferred to the Tychy District Court which held a first hearing on 10 December 2007. In May 2008 the case was still pending before that court. 33. The relevant provisions of the Criminal Code provide as follows: Article 155 “Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.” Article 160 “1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years. 2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.” 34. Section 16 of the Ordinance of the Minister for Health and Social Welfare of 23 October 1996 on the procedure for dealing with intoxicated persons, the organisation of sobering-up centres and the scope of health care and rules on assessing the fees connected with admittance to and stays in sobering-up centres (Rozporządzenie Ministra Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób w stanie nietrzeźwości organizacji izb wytrzeźwień i zakresu opiekli zdrowotnej oraz zasad ustalania opłat związanych z doprowadzeniem i pobytem w izbie wytrzeźwień) states that direct coercion may be applied in accordance with the rules laid down in section 18 of the 1994 Protection of Mental Health Act, which provides in particular that direct coercion can consist of immobilisation, among other methods. Section 16 of the above-mentioned Act further refers to the Ordinance of the Minister for Health and Social Welfare of 23 August 1995 on the form of application of direct coercion (w sprawie sposobu stosowania przymusu bezpośredniego), which determines the manner in which direct coercion may be applied. The latter ordinance provides, in so far as relevant: “9 (2) A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours. 13 A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient’s] card without delay.” | 1 |
train | 001-58403 | ENG | FRA | CHAMBER | 1,999 | CASE OF DEMIRTEPE v. FRANCE | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Nicolas Bratza | 6. On 5 April 1993 the applicant, who was then in Villeneuve-lès-Maguelonne Prison serving an eighteen-year sentence for murder imposed by the Assize Court of the Hérault département, lodged a criminal complaint with the senior investigating judge at the Montpellier tribunal de grande instance against the prison mail officer for breach of the secrecy of correspondence. He also lodged a concomitant application for leave to join the criminal proceedings as a civil party. 7. The applicant alleged in his complaint that since being imprisoned in Villeneuve-lès-Maguelonne Prison he had received a number of letters from his lawyers, the judiciary, the prison social services and the prison chaplain that had already been opened, in breach of Articles D. 69, D. 262, D. 438 and D. 469 of the Code of Criminal Procedure and Article 8 of the Convention. 8. In an order of 24 October 1994 the investigating judge of the Montpellier tribunal de grande instance ruled that there was no ground for bringing criminal proceedings for breach of the secrecy of correspondence because there was “insufficient evidence that anyone had committed the offence of breaching the secrecy of correspondence referred to in the complaint”. 9. The applicant appealed against that decision to the Indictment Division of the Montpellier Court of Appeal. In a judgment of 6 April 1995 the Court of Appeal upheld the decision and dismissed the appeal. As to whether the actus reus of the offence had been made out, the Court of Appeal held that it had for the following reasons: “It should be pointed out in the instant case that while there is general provision for interference by the prison authorities with prisoners’ mail, such interference is formally prohibited by Articles D. 69, D. 262, D. 438 and D. 469 of the Code of Criminal Procedure in respect of letters to prisoners from their defence lawyers, from administrative and judicial authorities, from prison chaplains and from social workers belonging to one of the departments of the Ministry of Justice. The evidence shows that letters falling into the categories referred to above, addressed to Demirtepe, were opened by the prison staff and that the administrative departments of Villeneuve-lès-Maguelonne Prison admitted opening them since the staff employed in the mail department mentioned opening letters in error owing to the volume of mail received and the use of an electric machine. Furthermore, among the documents filed in evidence were a number of envelopes which had clearly been marked so as not to be censored but had evidently been opened by a machine. Lastly, there is also a letter from the deputy governor of the prison accompanying a letter which had, according to him, been opened in error. ...” 10. The Court of Appeal found, however, that although the actus reus of the offence complained of by the applicant had been established, that is to say that letters had been opened, the prison mail department could not be held collectively liable, nor could the officer in charge of it be held individually liable. It upheld the decision that no prosecution should be brought. 11. The applicant lodged an appeal on points of law against that judgment. The Court of Cassation dismissed his appeal in a judgment of 14 May 1996, which was served on him on 20 August 1996. 12. The relevant Articles of the Code of Criminal Procedure provide: “Sealed letters sent from remand prisoners to their defence lawyers and from defence lawyers to remand prisoners are not subject to the censorship referred to in Article D. 416 if it can be unequivocally ascertained that such letters are genuinely intended for the defence lawyer or have been sent by him.” “All prisoners shall be entitled to submit an application or a complaint to the governor of the prison, who shall grant him a hearing if the ground on which he relies is sufficient. Any prisoner may request a hearing by the judges and officials responsible for inspecting or visiting the prison, without any member of the prison staff being present.” “A prisoner or party adversely affected by an administrative decision can apply for it to be referred to the regional director if the decision was made by a prison governor, or to the Minister if it was made by a regional director. However, any decision taken pursuant to powers conferred by law, regulations or a ministerial circular shall be immediately enforceable notwithstanding recourse to the remedy provided for above.” “Prisoners may at any time send letters to the French administrative or judicial authorities, a list of which is drawn up by the Minister of Justice. Such letters may be sent sealed and are accordingly not subject to any censorship; they must be dispatched without delay. Any prisoner who takes advantage of the above provision to make insulting remarks, threats or defamatory allegations or to repeat unjustified complaints which have already been dismissed shall be liable to a disciplinary penalty, without prejudice to any criminal penalties.” “Letters to and from prisoners must not be encoded and must not contain any coded sign or character. They shall be stopped if they contain specific threats to the security of persons or of prisons.” “… all prisoners’ incoming and outgoing mail may be read for the purposes of censorship. Letters to and from remand prisoners shall also be sent to the judge in charge of the investigation as and when that judge requires. Letters which do not comply with the legal requirements may be stopped.” “Prisoners may always correspond freely in sealed envelopes with the prison chaplain. That right cannot be withdrawn as part of any disciplinary penalty.” “Correspondence between prisoners and social workers belonging to one of the departments of the Ministry of Justice may be undertaken freely in sealed envelopes.” 13. Article 29, third paragraph, of Circular no. AP 86.29.G1 of 19 December 1986 provides: “If there is doubt as to the source of a sealed letter, it may be opened in the presence of the prisoner if he consents, or, failing that, in the presence of the Chairman of the Bar or of his representative.” | 1 |
train | 001-69374 | ENG | DEU | CHAMBER | 2,005 | CASE OF STORCK v. GERMANY | 1 | Preliminary objection rejected (res iudicata);Violation of Art. 5-1 (placement in private clinic from 1977 to 1979);No separate issue under Art. 5-4 and 5-5;No violation of Art. 5 (stay in private clinic in 1981);Violation of Art. 8 (placement in private clinic from 1977 to 1979);No violation of Art. 8 (stay in private clinic in 1981 and treatment in university clinic);No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Ireneu Cabral Barreto | 10. The applicant was born on 30 August 1958 and lives in Niederselters (Germany). 11. The case concerns the applicant’s repeated placement in a psychiatric institution, her stay in a hospital, her medical treatment and her various compensation claims. 12. The applicant is currently 100% disabled and receives an invalidity pension. She claims to be constantly suffering from significant pain, especially in her arms and legs and her vertebral column. She has spent almost twenty years of her life in different psychiatric institutions and other hospitals. 13. From January 1974 to May 1974 (at which time the applicant was 15 years old), and from October 1974 to January 1975 (when she was 16 years old), the applicant was placed in the children and young people’s psychiatric department at Frankfurt am Main University Clinic for seven months at her father’s request. 14. From 29 July 1977 (when she was 18 years old) to 5 April 1979, she was placed in a locked ward (geschlossene Station) at a private psychiatric institution, the clinic of Dr Heines in Bremen, at her father’s request. There had been serious conflicts between the applicant and her parents, following which her father believed her to be suffering from a psychosis. The applicant’s mother had suffered from a paranoid-hallucinatory psychosis. 15. The applicant – who by that time had attained the age of majority – had not been placed under guardianship, had never signed a declaration that she had consented to her placement in the institution, and there had been no judicial decision authorising her detention in a psychiatric hospital. The private clinic of Dr Heines was not entitled to detain patients who were to be kept in accordance with the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). On 4 March 1979 the police brought the applicant back to the clinic by force after she had attempted to escape. 16. During her forced stay at that clinic, the applicant was unable to maintain regular social contact with persons outside the clinic. When she was three years old, she had fallen ill with poliomyelitis, and following her medical treatment at the clinic she developed post-poliomyelitis syndrome. 17. From 5 April 1979 to 21 May 1980, the applicant was placed in a psychiatric hospital in Gießen. She claimed that she had by chance been saved from having to stay there any longer by a patient in the hospital who had given her accommodation. 18. From 21 January to 20 April 1981, she again received medical treatment at Dr Heines’s clinic, having at that time lost her ability to speak and, according to the doctors, showing signs of autism. 19. On 7 May 1991 the applicant received medical treatment at Dr Horst Schmidt’s clinic for neurology and psychiatry. 20. From 3 September 1991 to 28 July 1992, the applicant received medical treatment (stationäre Behandlung) at Mainz University Clinic for Psychosomatic Medicine and Psychotherapy, a public-law institution, where she regained her ability to speak. 21. From 22 October to 21 December 1992, the applicant was treated in the orthopaedic department of a clinic in Frankfurt am Main and, from 4 February to 18 March 1993, she was treated in the orthopaedic department of a clinic in Isny. 22. On 18 April 1994 Dr Lempp, a professor of paedopsychiatry at Tübingen University and a member of the federal government’s investigating committee, prepared an expert report at the applicant’s request. He indicated that the applicant had “at no point in time suffered from a schizophrenia-type psychosis” (“zu keinem Zeitpunkt lag eine Psychose aus dem schizophrenen Formenkreis vor”) and that her intemperate behaviour had resulted from conflicts with her family. 23. On 6 October 1999 Dr Köttgen, a psychiatrist, submitted a second expert opinion, again at the applicant’s request. Confirming the findings of Dr Lempp, she considered that the applicant had never suffered from an early onset of schizophrenia, but that she had been in the midst of a puberty-related identity crisis (Pubertätskrise) at the relevant time. Because of the wrong diagnosis given at that time, she had for many years received medication already known to have adverse side effects. As the applicant had had poliomyelitis, she would have had to be treated with the utmost caution. In that connection, the situation at Dr Heines’s clinic seemed to have been particularly serious: deprivation of liberty without a judicial decision, absence of a legal basis for the detention, excessive dosage of medication in order to question the applicant, and methods belonging to “black pedagogy” (schwarze Pädagogik). 24. On 12 February 1997 the applicant, on the basis of the expert report by Dr Lempp, lodged an application for legal aid and an action for damages against Dr Heines’s clinic in the Bremen Regional Court. She claimed, firstly, that her detention from 29 July 1977 to 5 April 1979 and from 21 January 1981 to 20 April 1981 had been illegal under German law. Furthermore, the medical treatment she had received had been contraindicated because of her poliomyelitis. She argued that her forcible detention and the medical treatment she had received had ruined both her physical and mental health. 25. It was only at that time, on 24 February 1997, that the applicant was given access to her medical file from Dr Heines’s clinic, despite her previous and repeated requests. 26. On 9 July 1998 the Bremen Regional Court, after a hearing, allowed the applicant’s action for damages, as her detention had been illegal under German law. 27. The Regional Court found that the applicant, who had attained the age of majority, had not been placed under guardianship, and her detention had not been ordered by a district court as provided by the Act of 16 October 1962 of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts (see paragraphs 51-58 below). 28. According to the Regional Court, such a detention would only have been legal if the applicant had given her consent, which had not been the case. Firstly, she had not signed the admission form filled in on the day of her initial admission to the clinic. Secondly, she had not given her implicit consent (konkludente Einwilligung) to her placement and treatment at the clinic. The mere fact that on the day of her initial admission she had come to the clinic, accompanied by her father, did not suffice to establish valid consent (wirksame Einwilligung). According to the private clinic’s submissions, it could not be ruled out that, at that time, the applicant had not been in a position to realise the importance and the consequences of her detention (“es ist ... vielmehr nicht auszuschließen, daß die Klägerin zum damaligen Zeitpunkt die Bedeutung und Tragweite der Unterbringung nicht erkennen konnte”). This was due, in particular, to the fact that the applicant had been given very strong medication from the time of her arrival. 29. On that point, the Regional Court concluded as follows: “Even assuming the claimant’s initial consent, it would have lapsed as a result of her undisputed attempts to escape and the need to shackle her. From these times at the latest, which have not been specified any further by the defendant, it would have been necessary to obtain a court order.” (“selbst wenn man doch von einer anfänglichen Einwilligung der Klägerin ausgehen wollte, wäre diese durch die unstreitig erfolgten Ausbruchsversuche der Klägerin und die erforderlich gewordenen Fesselungen hinfällig geworden. Spätestens zu diesen, von der Beklagten nicht näher vorgetragenen Zeitpunkten, wäre die Einholung einer gerichtlichen Anordnung erforderlich gewesen.”) 30. The Regional Court found that, for the second period in which the applicant was placed in the psychiatric hospital (from 21 January to 20 April 1981), she had likewise not consented to her confinement, as she had shown signs of autism and had suffered from temporary loss of speech. Therefore, a court order would also have been necessary for this period. 31. As the applicant was therefore entitled to damages in any event, the Regional Court did not examine the question whether her medical treatment had been adequate or not. 32. The Regional Court also found that the applicant’s compensation claim was not time-barred. Under Article 852 § 1 of the Civil Code (see paragraph 63 below), the limitation period of three years for tort claims (unerlaubte Handlung) started running only when the victim had knowledge of the damage and of the person responsible for it. The court observed that a victim could only be perceived to have that knowledge when he was in a position to bring an action for damages that had sufficient prospects of success. Only from then on could he reasonably be expected to bring that action (“daß ihm die Klage zuzumuten ist”), regard being had in addition to his state of health. The court referred to the case-law of the Federal Court of Justice (Bundesgerichtshof) on the subject. 33. Even if the applicant might already have been conscious of the fact that she had been placed in the clinic against her will, it was established that during her long stays in the psychiatric hospital she had been forced to take very strong medication. When she had been released from the clinic, she had still received medical treatment, and she had always been regarded as mentally ill. The applicant had also suffered from serious physical disorders (schwere körperliche Ausfallerscheinungen) and had, in particular, subsequently lost the ability to speak for more than eleven years (from 1980 to 1991/92). It was not until the end of this medical treatment and after the submission of Dr Lempp’s expert report on 18 April 1994 – in which it had been concluded for the first time that she had never suffered from schizophrenia – that she had become sufficiently aware of her situation, of her possible right to damages, and of the possibility of bringing an action in court. Her application for legal aid, lodged on 12 February 1997, had interrupted the three-year limitation period. Her claim was therefore not time-barred. 34. On 22 December 2000 the Bremen Court of Appeal, following an appeal by the clinic, quashed the judgment of the Bremen Regional Court and dismissed the applicant’s action. 35. The Court of Appeal disagreed with the Bremen Regional Court’s finding that the applicant had illegally been deprived of her liberty during her stay and treatment at the clinic. It noted that the Regional Court had not taken evidence on the issue in dispute. It found that the applicant had conceded in the appeal proceedings that she had to a certain extent voluntarily (“bedingt freiwillig”) consented to her stay in the clinic in 1981. 36. The Court of Appeal left open the question whether the applicant had a compensation claim in tort (Schadensersatzanspruch aus unerlaubter Handlung) on account of her unlawful deprivation of liberty or the damage caused to her body by her medical treatment. In any event, such a claim would be time-barred under Article 852 § 1 of the Civil Code, which provided for a three-year time-limit. The Court of Appeal considered that the applicant had always been conscious of the fact that she had purportedly been detained against her will, independently of the expert opinion submitted by Dr Lempp. She had also been aware that she had allegedly been forced to take antipsychotic medication. Therefore, she had also been in a position to bring an action in court, despite her physical problems. According to the case-law of the Federal Court of Justice, it sufficed to be aware of having suffered damage, without knowledge of the entirety of the damage being necessary. 37. Furthermore, the Court of Appeal found that the applicant was likewise not entitled to bring a compensation claim on a contractual basis (Schadensersatzansprüche aus Vertrag) following her medical treatment. According to the Court of Appeal, the applicant had not sufficiently proved that she had expressly objected to her stay in the psychiatric hospital. Moreover, a contract between the applicant and the clinic concerning the applicant’s medical treatment could also have been concluded implicitly (konkludenter Vertrag). It could not be assumed that this contract had been terminated by each of the applicant’s attempts to escape, which were attributable to her illness (“Es kann nicht angenommen werden, daß dieser konkludent geschlossene Vertrag durch jeden krankheitsbedingten Fluchtversuch beendet worden ist”). In fact, when the clinic prevented the applicant from escaping, it had complied with its duty of care (Fürsorgepflicht). According to the expert opinion of Dr Rudolf, a psychiatrist appointed by the Court of Appeal, the applicant had been seriously ill at that time and in need of medical treatment. 38. Irrespective of this, the Court of Appeal pointed out that the clinic had disputed the applicant’s assertion that she had been detained against her will, so that it remained uncertain whether this assertion was true (“so daß offenbleibt, ob dieser Vortrag überhaupt zutrifft”). 39. Even if a contract concluded between the clinic and the applicant, who had at that time attained the age of majority, could not be presumed, there was in any event a contract between the clinic and the applicant’s father, concluded implicitly for the applicant’s benefit. This contract had run at least from 29 July 1977 to January 1978, when attempts had been made to place her in a different psychiatric institution. 40. Furthermore, the Court of Appeal did not consider that the applicant’s treatment had been erroneous, or that the dosage of her medication had been too high. It relied in this connection on the conclusive expert report by Dr Rudolf. In assessing the opinion expressed by the expert, who had submitted his report both in writing and orally during the hearing, the court thoroughly considered the partly different conclusions reached in the expert reports by Dr Lempp and Dr Köttgen, which had been prepared at the applicant’s request. 41. The applicant also brought an action for damages in the Mainz Regional Court against the doctors who had treated her at Mainz University Clinic and against the clinic itself. She claimed that she had been treated for psychosomatic symptoms, although she had in fact been suffering from post-poliomyelitis syndrome. As the applicant’s medical file concerning her treatment at the clinic had temporarily disappeared, the clinic compiled a substitute file (Notakte) of some 100 pages, to which the applicant’s lawyer was subsequently granted access. 42. In a judgment delivered on 5 May 2000, the Mainz Regional Court dismissed the applicant’s claim. It found that, according to the expert report by Dr Ludolph, chief physician of the neurology clinic at Ulm University, there had not been sufficient evidence that her post-poliomyelitis syndrome and her contemporaneous mental ailments had not been treated correctly. 43. During the appeal proceedings subsequently brought by the applicant in the Koblenz Court of Appeal, the original of the applicant’s medical file was found, and the applicant’s lawyer was granted access to it. 44. In a judgment delivered on 30 October 2001, the Koblenz Court of Appeal confirmed its own judgment by default of 15 May 2001, given on account of the applicant’s failure to attend the hearing (Versäumnisurteil). It upheld the judgment of the Mainz Regional Court. Relying on the expert report by Dr Ludolph and another two reports submitted by orthopaedic experts, the court found in particular that the applicant had neither intentionally nor negligently been given the wrong medical treatment. It stated that the fact that one of the expert reports had been drawn up with the aid of doctors assisting the court-appointed expert did not preclude its use in court. The court-appointed expert had taken full responsibility for the report and had been examined in person in court. Moreover, even assuming that there had been an error in treatment, the applicant, on whom the burden of proof fell in the matter, had not shown that there was a causal link between the error in treatment and the damage to her health. In particular, as there had not in any event been a serious error in treatment, it was not necessary, in accordance with the settled case-law of the Federal Court of Justice, to apply a less strict rule on the burden of proof (Beweiserleichterungen). 45. The applicant lodged an appeal on points of law with the Federal Court of Justice against the Bremen Court of Appeal’s judgment of 22 December 2000 and against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001. 46. On 15 January 2002 the Federal Court of Justice refused to admit the applicant’s appeal against the judgment of the Bremen Court of Appeal. 47. On 5 February 2002 the five judges of the Federal Court of Justice with jurisdiction to adjudicate on the applicant’s case refused to grant her legal aid for her appeal on points of law against the judgments of the Mainz and Koblenz courts. They argued that her appeal did not have sufficient prospects of success. On 25 March 2002 the same five judges of the Federal Court of Justice dismissed the applicant’s appeal against the judgments of the Mainz and Koblenz courts as inadmissible, the applicant not having submitted grounds for her appeal within the statutory time-limit. 48. On 2 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Bremen Court of Appeal on 22 December 2000 and the Federal Court of Justice on 15 January 2002. Quoting the relevant provisions of the Basic Law, she claimed that her rights to liberty and human dignity and to a fair trial had been violated. She argued that her physical integrity had been infringed. She set out in detail the conditions of her stay in the various psychiatric institutions, the hearings in and the judgments delivered by the Bremen courts and explained why she considered that her rights had not been respected. 49. On 19 February 2002 the applicant lodged a constitutional complaint against the judgments delivered by the Mainz Regional Court on 5 May 2000 and the Koblenz Court of Appeal on 30 October 2001, and against the Federal Court of Justice’s decision of 5 February 2002 not to grant her legal aid. She claimed that her right to a fair trial had been violated and argued that she had been given the wrong medical treatment. She set out in detail how she had been treated at Mainz University Clinic, how the proceedings in the Mainz and Koblenz courts had progressed and why she considered that her constitutional rights had thereby been violated. 50. On 6 March 2002 the Federal Constitutional Court refused to allow the applicant’s constitutional complaints. The court argued that the complaints were not of fundamental importance (“keine grundsätzliche Bedeutung”), as the questions raised by them had already been resolved in its case-law. Furthermore, it was not the function of the Constitutional Court to deal with errors of law allegedly committed by the competent civil courts. The applicant’s complaints did not disclose a violation of her constitutional rights. 51. At the time of the applicant’s first placement in the clinic in Bremen, the rules governing the detention of individuals in a psychiatric hospital were notably laid down in the Act of the Land of Bremen of 16 October 1962 on the detention of mentally insane persons, mentally deficient persons and drug addicts (Gesetz über die Unterbringung von Geisteskranken, Geistesschwachen und Süchtigen). 52. Section 1(2) of the Act provided that it covered cases where confinement took place against the will or without the consent of the person concerned. 53. By section 2 of the Act, a detention was legal if the person concerned, by his conduct towards himself or others, posed a serious threat to public safety or order that could not be otherwise averted. 54. Under the terms of section 3 of the Act, the detention had to be ordered by the district court (Amtsgericht) on a written application by the competent administrative authority. 55. Section 7 of the Act provided that an application for the detention of an individual had to be accompanied by an expert report on the mental illness of the person concerned, submitted by the competent public health officer (Amtsarzt) or a specialist in mental illnesses. This report had to set out whether and to what extent the individual, by his conduct towards himself or others, posed a serious threat to public safety or order. 56. By section 8 of the Act, the district court was obliged to assign counsel to the person concerned if this was necessary for the protection of his interests. 57. Under section 9 of the Act, the court, in principle, had to question the person concerned before reaching its decision. A hearing in person was exceptionally considered unnecessary if it was likely to have negative effects on the state of health of the person concerned or if communication with him was not possible. In such cases, the court had to assign him a guardian ad litem (Verfahrenspfleger), if he had not already been placed under guardianship. 58. An appeal (sofortige Beschwerde) lay against the district court’s decision ordering the detention (section 10 of the Act). After a period of in principle one year, the district court had to decide whether the detention was to be continued. The continuation of the detention could only be ordered on the basis of a new medical expert report (sections 15 and 16 of the Act). 59. On 9 July 1979 a new Act of the Land of Bremen on measures of aid and protection in cases of mental disorders (Gesetz über Hilfen und Schutzmaßnahmen bei psychischen Krankheiten) came into force. It replaced the provisions of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts of 1962 with a view to securing patients’ rights. 60. Section 34 of the Act, among other things, established a Board of Visitors for Psychiatric Hospitals. Without prior notice and at least once a year, it visits psychiatric hospitals in which persons are detained following a court order in accordance with section 17 of the Act. The task of the Board of Visitors is, in particular, to check whether the rights of the persons so detained are respected, and to give patients the opportunity to raise complaints. Several years after the Act came into force, the Board of Visitors extended its visits to all psychiatric hospitals, whether or not the hospitals detained patients pursuant to a court order. These visits, which went beyond the strict wording of section 34 of the said Act, were carried out with the consent of the institutions concerned. 61. Under the terms of section 30 of the Conduct of Trade Act (Gewerbeordnung), in its version in force since 16 February 1979, private hospitals and private psychiatric institutions needed a licence issued by the competent State authority. The licence could notably be refused if there were facts raising doubts as to the reliability of the institution’s management. 62. By Article 239 § 1 of the Criminal Code, a person who deprives another person of his liberty is to be punished by up to five years’ imprisonment or a fine. Paragraph 3 of the same Article provides that a person who deprives another person of his liberty for more than one week or causes serious damage to the health of the victim by the detention itself or by an act committed during that detention is to be punished with a prison sentence of between one and ten years. Under Articles 223 to 226 of the Criminal Code, assault is punishable by up to ten years’ imprisonment or a fine. A person who unlawfully compels another through force to commit, acquiesce in or omit to carry out an act is punishable by up to three years’ imprisonment or a fine (Article 240 § 1 of the Criminal Code). 63. Compensation claims in tort are governed by Article 823 of the Civil Code, paragraph 1 of which provides that a person who intentionally or negligently causes bodily injury to, or damage to the health of, another person or deprives that person of his liberty, is liable to compensate the victim for the damage so caused. By Article 823 § 2 of the Civil Code, the same obligation to compensate the victim rests with a person who intentionally or negligently violates a legal provision designed for the protection of others, such as Articles 223 to 226, 239 and 240 of the Criminal Code. Under Article 847 § 1 of the Civil Code (in the version in force until 31 July 2002 and applicable to damage caused before that date), damages for pain and suffering can be claimed in the event of injury to the body or damage to health, or in the event of deprivation of liberty. According to Article 852 of the Civil Code, in the version in force at the relevant time, compensation claims in tort are time-barred three years after the date on which the victim learned of the damage and of the person liable to compensate him. 64. At the relevant time, there were no explicit provisions on contractual compensation claims in the Civil Code in cases involving the defective performance of a contract (positive Vertragsverletzung) concluded by a doctor and his patient. However, in accordance with the well-established case-law of the civil courts, a person could claim damages if his contract with another person had deliberately or negligently been performed defectively by that other person and if this had caused damage to him. | 1 |
train | 001-94257 | ENG | NLD | ADMISSIBILITY | 2,009 | HARUTIOENYAN v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicants, Mr Haroutioun Harutioenyan, Mr Khachig Harutioenyan and Ms Haikoesjik Harutioenyan are Armenian nationals who were born in 1954, 1981 and 1982 respectively. The first applicant is the father of the second and third applicants. They live in Musselkanaal and are represented before the Court by Ms P. Scholtes, a lawyer practising in The Hague. 2. , may be summarised as follows. 3. In May 1999, the applicants fled from Armenia to Russia. Allegedly unable to register formally with the authorities there, they managed through bribery of local policemen to reside illegally in Russia until 19 April 2002 when – after the first and second applicant had been briefly held in March 2002 in a police station in Krasnodar (Russia), where they had been illtreated by policemen – the three applicants travelled to the Netherlands, where they arrived on 23 April 2002 and applied for asylum. 4. The first applicant stated that he had been an active member of an Armenian opposition political party. In the campaign for the Armenian presidential elections in May 1998, the first applicant had actively campaigned for an opposition candidate. After having started these activities in March 1998, he had received an anonymous telephone call in which he and his family were threatened if he did not cease his activities. About five days after this call, he had been attacked in the street by two unknown men. He had not filed a criminal complaint with the police, but had mentioned it to persons in the party office. 5. In the subsequent campaign for the Armenian parliamentary elections in May 1999, the first applicant had been one of the campaign leaders of an opposition candidate, due to which activity the first applicant had received fresh anonymous telephone threats. Furthermore, on an unspecified date at the end of April 1999, the first applicant’s car had been vandalised by two unknown persons who had fled in a white car without licence plates. The first applicant had filed a criminal complaint about this incident at the Shahumian neighbourhood police station in Yerevan. The first applicant had continued with his political activities. On 4 or 5 May 1999, the first applicant had again received anonymous threats by telephone. 6. On 7 May 1999 at around 11.00 or 11.30 p.m., after the first applicant had come home from a political meeting where he had given a speech, the applicants’ spouse/mother had gone to the upstairs bedroom where she had been shot and killed by a single shot fired through the bedroom window. The first applicant, who had been downstairs when the shot had been fired, and the second applicant had called an ambulance. The ambulance staff had alerted the police. Two days after his wife’s funeral on 9 May 1999, the first applicant had received an anonymous telephone call. He had understood from that conversation that the perpetrator(s) had sought to kill him and not his wife and that he risked being killed if he continued with his political activities. 7. On 11 May 1999, in order to obtain information about the police inquiry into his wife’ death, the first applicant had gone to a local police inspector who had treated him with indifference. He had then gone to the Ministry of the Interior where he had been refused entry but at the door had spoken with an official who had been called. When the applicant had started to relate what had happened to him, this official had reacted in a very offhand manner. 8. In the course of a political meeting held on 15 May 1999, the applicant had seized the microphone and in a poignant manner had informed the audience about what had happened to his wife. After he had been accompanied home by the second applicant and a friend, the phone had rung. When the first applicant had picked up the phone, no one had answered. Later that night, after the second and third applicant had gone to sleep, the first applicant had heard the sound of breaking glass. When he had checked the cause, he had discovered that fire had broken out in his own bedroom and a guestroom. He and his children had fled outside and after about 20-30 minutes the fire brigade had arrived. The fire brigade had alerted the police, who had questioned the applicants about the origins of the fire and drawn up an official report on the fire. The first applicant was asked to sign a statement drawn up by the police. After having stayed for a couple of days with a friend, the applicants had left for Russia. Their identity and other official documents had gone missing in the fire in their home. 9. The asylum request filed by the second and third applicant was based on their father’s account. 10. After an initial negative decision given on 2 May 2002 by the Deputy Minister of Justice (Staatssecretaris van Justitie) had been withdrawn on 29 May 2002, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; the successor of the Deputy Minister) rejected the applicants’ asylum request in three new, separate decisions given on 13 January 2003. The applicants filed an appeal with the Regional Court (rechtbank) of The Hague. A hearing was scheduled for 21 July 2004. 11. On 2 July 2004, the applicants were informed that the Minister had withdrawn her impugned decisions of 13 January 2003. Consequently, the applicants withdrew their appeal pending before the Regional Court of The Hague on 6 July 2004. 12. On 2 December 2004, the Minister requested the Medical Advice Bureau of the Ministry of Justice to examine the three applicants in order to see whether their state of health militated against expulsion. On 5 April 2005, the Medical Advice Bureau drew up and transmitted its advice in respect of each of the applicants to the Minister. It found that all three were suffering from mental health problems for which treatment was available in Armenia. 13. On 23 June 2005 the Minister informed the applicants of her intention (voornemen) to reject their respective asylum requests. On 21 July 2005 June 2003 the applicants’ lawyer submitted written comments (zienswijze) on this intended rejection. 14. In three separate decisions of 5 October 2005, the Minister rejected the applicants’ asylum requests. As regards the first applicant, the Minister considered inter alia that – apart from the fact that his identity, nationality, and travel itinerary had not been substantiated with documents, which detracted from the credibility of his asylum account – it had not been established that the first applicant had attracted the negative attention of the Armenian authorities or persons in authority or that the events related in the first applicant’s account could be linked to such authorities or persons. This allegation was solely based on personal assumptions and suspicions which did not tally with information set out in official country assessment reports (ambtsberichten) on Armenia drawn up on 15 August 2001 and 21 July 2004 by the Netherlands Ministry of Foreign Affairs, according to which HHS supporters did not encounter any obstacles in Armenia. The Minister therefore found that the first applicant’s account lacked positive persuasiveness and credibility. The Minister further considered that the medical care in Armenia could not be considered to be of such a low standard that, for this reason, the first applicant’s expulsion should be seen as entailing a real risk of a violation of Article 3 of the Convention. The Minister lastly found no reasons of a compelling humanitarian nature that would warrant the issuance of a residence permit. As the asylum requests of the other two applicants depended on their father’s account, their asylum requests were also rejected by the Minister, who did not find that their removal to Armenia would entail a real risk of a violation of their rights under Article 3 of the Convention on account of their state of health. 15. On 31 October 2005 the applicants filed an appeal which was heard on 20 October 2006 before the Regional Court of The Hague sitting in Rotterdam. 16. In its judgment of 1 December 2006, the Regional Court of The Hague rejected the applicants’ appeal. Although it accepted that the first applicant’s account was coherent and detailed, the Regional Court was not convinced of the alleged impossibility for the applicants to obtain replacement identity documents during their three years’ stay in Russia. It concluded that the applicants had not demonstrated that they – if expelled to Armenia – would be exposed to a real and personal risk of being subjected to treatment proscribed by Article 3 of the Convention. If need be, they could seek the protection of the Armenian authorities. 17. The Regional Court further found no compelling reasons of a humanitarian nature warranting the issuance of a residence permit to the applicants. 18. The applicants’ subsequent appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) was dismissed on 29 May 2007. It upheld the impugned judgment of 1 December 2006. No further appeal lay against this ruling. 19. On 20 August 2009 the applicants requested the Court under Rule 39 of the Rules of Court to indicate to the Government not to expel them pending the proceedings before the Court. On 24 August 2009 the President of the Section decided not to issue the interim measure sought by the applicants. | 0 |
train | 001-85873 | ENG | GBR | ADMISSIBILITY | 2,008 | DIXON v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Gordon Dixon, is a British national who was born in 1939 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 6 March 1999. On 24 January 2002, the applicant made a claim for widows’ benefits. On the same date the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-83417 | ENG | UKR | CHAMBER | 2,007 | CASE OF ZAICHENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1 | Peer Lorenzen | 4. The applicant was born in 1956 and lives in Dnipropetrovsk. 5. On 22 September 1998 criminal proceedings, instituted against the applicant on suspicion of tax evasion, were discontinued on exonerative grounds. 6. In December 1998 the applicant instituted proceedings in the Krasnogvardiysky District Court of Dnipropetrovsk (“the Krasnogvardiysky Court,” Красногвардійський районний суд м. Дніпропетровська), seeking compensation from the State budget for moral damage inflicted by the allegedly unlawful actions of the investigating authorities. 7. On 10 September 1999 the Krasnogvardiysky Court rejected the applicant's claims as unsubstantiated. On 1 November 1999 the Dnipropetrovsk Regional Court (“the Regional Court,” Дніпропетровський обласний суд) quashed this judgment and remitted the case for a fresh consideration. 8. On 2 February 2000 the Krasnogvardiysky Court awarded the applicant 3,000 hryvnyas (UAH) in moral damage without specifying the debtor. This judgment was upheld by the Regional Court on 21 February 2000 and became final. The applicant unsuccessfully attempted to obtain a supervisory review of the two rulings, seeking a higher amount of compensation. 9. On 16 March 2000 the Dnipropetrovsk Regional Treasury (Управління державного казначейства у Дніпропетровській області) transferred the judgment of 2 February 2000 to the State Treasury (Державне казначейство України) for enforcement. The State Treasury did not pay the debt and requested the Prosecutors' Office to lodge a supervisory review request (a protest) against the court rulings of 2 and 21 February 2000. On 14 September 2000 the Deputy Regional Prosecutor (Заступник прокурора Дніпропетровської області) lodged a protest with the Regional Court alleging that no compensation should have been awarded. 10. On 18 October 2000 the Presidium of the Regional Court dismissed the protest and upheld the previous two rulings. The Deputy Prosecutor General lodged a protest with the Supreme Court against all three court rulings. 11. In its final decision of 16 May 2001, the Supreme Court upheld the rulings at issue and amended the judgment of 2 February 2000 to specify that the debt was to be paid by the Zhovtnevy District Treasury of Dnipropetrovsk (“the Zhovtnevy Treasury,” Відділення Державного казначейства у Жовтневому районі м. Дніпропетровська). The applicant unsuccessfully attempted to lodge a cassation appeal against this final decision, seeking a higher amount of compensation. 12. On 12 July 2001 the Zhovtnevy District Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Жовтневого районного управління юстиції в м. Дніпропетровську) initiated the enforcement proceedings in respect of the amended judgment of 2 February 2000. 13. On 5 October 2001 the Bailiffs imposed a fine on Ms G., the Head of the Zhovtnevy Treasury, for her failure to ensure the enforcement of the judgment in due time. Ms G. appealed to the Zhovtnevy District Court of Dnipropetrovsk (“the Zhovtnevy Court,” Жовтневий районний суд м. Дніпропетровська). 14. On 11 December 2001 the Zhovtnevy Court allowed Ms G.'s appeal, having found that the judgment had not been enforced on account of a failure in the statutory mechanism and the lack of budgetary allocations. The applicant's appeal against this judgment was returned as “not lodged” in view of his failure to rectify its procedural shortcomings. 15. On 1 April 2002 the Bailiffs discontinued the enforcement proceedings on the ground that the collection of the debt was not possible. The applicant unsuccessfully attempted to institute criminal investigation into the non-enforcement. 16. The judgment of 2 February 2000 remains unenforced to the present day. 17. The relevant domestic law is summarised in the judgment of Volosyuk v. Ukraine (no. 60712/00, §§ 20-24, 29 June 2006). | 1 |
train | 001-23532 | ENG | GBR | ADMISSIBILITY | 2,003 | TOMIC v. THE UNITED KINGDOM | 2 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Milovan Tomic, is a Croatian national, who was born in 1962 and, at the time of lodging the application, was detained in Bedford police station. He was represented before the Court by Ms Savic, a solicitor practising in London. The applicant is an ethnic Serb from Croatia, brought up in Vinkovci in the region of Eastern Slavonia which was at the time in the Federal Republic of Yugoslavia. In 1990, the applicant was beaten up by Croatian police because of his Serb origin and was unable to walk for two weeks. In April 1991, the applicant joined the Territorial Defence Unit set up by Serbs when it became clear that war was imminent. On 25 June 1991, Croatia declared independence. Hostilities followed with the Yugoslav Republic and the Serb minority living in Croatia. In October 1991, the Serb Autonomous Regions, which included Eastern Slavonia, were set up in Croatia. After the conflicts escalated, the applicant joined a special forces unit called “the Scorpions” where he became commander of a unit with the rank of lieutenant. He participated in the heaviest battles of the war in Croatia and Bosnia. In January 1992, the applicant married. He claims that his wife was killed by Croats on 25 August 1992. In May 1995, the Croatian Army entered the region of Western Slavonia where the applicant was based. In November 1995, Croatia and the Federal Republic of Yugoslavia signed the Erdut-Zagreb Agreement which sanctioned the setting up of an interim United Nations Transitional Administrative Area in Eastern Slavonia before the transfer of the region to Croatia on 15 January 1998. On 12 December 1997, the applicant moved to Serbia as he feared imprisonment by the Croatian authorities because of his involvement with the Scorpions. In 1999, the applicant claims that his brother-in-law, Milovan Jeremic, died following a beating by Croat. The applicant’s sister went to live in Ireland. On 29 March 2001, the applicant left Serbia as he had no legal status or rights there. He claimed asylum in Ireland but this was refused. On 14 December 2001, the applicant entered the United Kingdom illegally and applied for asylum on 14 January 2002. By letter dated 25 February 2002, the Secretary of State rejected his claim on the basis that there was no longer any real risk in the applicant returning to Croatia. He referred to the amnesty introduced in March 1998 for those who had participated in the 1991-1995 conflict and the recognition of the interests of ethnic Serbs introduced in changes to the Croatian Constitution. On 19 August 2002, the Adjudicator heard, and granted, the applicant’s appeal. She accepted that the applicant had never been involved in war crimes but that he was reasonably likely to be arrested on such charges if returned to Croatia, particularly due to his position as commander of one of the special units. There was a reasonable likelihood that he would face lengthy incarceration without receiving a fair trial on political motives. She also found that the level of discrimination that he would face as an ethnic Serb on a general level would cumulatively amount to persecution, which was either state-sponsored or in respect of which there was an insufficiency of protection by the State. The Secretary of State appealed to the Immigration Appeal Tribunal. While the appeal was pending, the Immigration Appeal Tribunal issued its decision in a case concerning claims of ethnic Serbs who claimed that the general situation in Croatia placed them at risk of persecution and severe discrimination. In its decision, SK and others [UKIAT] 0563, issued on 17 December 2002, it concluded that “unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either Convention”. On 20 December 2002, the Immigration Appeal Tribunal heard the applicant’s appeal. In its decision of 26 February 2003, it relied on its findings in SK about the general situation in Croatia and found that the applicant’s rank as a special unit officer, the death of his wife in 1992 and his brother-in-law some time later did not amount to special circumstances. The Court of Appeal refused leave to appeal to the applicants in the SK case on 20 May 2003. In its decision issued on 17 December 2002 in Secretary for the Home Department and S.K., the Immigration Appeal Tribunal quashed the decision of the Adjudicator who had upheld the appeals against the refusal of asylum to ethnic Serbs on the ground that they would face persecution in Croatia. It also found that the applicants were not at risk of treatment contrary to Articles 3, 8 or 14. Materials before it included reports from the Home Office, UNHCR, OSCE, Human Rights Watch, Amnesty, the U.S. State Department, ECRI, the European Union and statements of three experts (Dr Milivojevic, Dr Gow and Mr Glenny). “... we turn to our assessment of the situation. The claimants recognise that unfair war crimes trials are of less significance in these cases (with the exception of MM) and that there is no sufficient evidence to suggest that in general there is a real risk that returning Serbs will face unfair war crimes trials. There must be some special factor to bring that concern into play. ... The essential complaints common to all are: - 1. Discriminatory loss of homes and livelihood. 2. Discriminatory denial of social and economic rights in the areas to which return is envisaged. No special efforts are being made to redress the wrongs suffered and help return to society. 3. Discriminatory denial of judicial assistance in reclaiming homes occupied by Croats. 4. Loss of stability and security because of the prospect of a marginalised and ostracised existence in a largely ethnically cleansed country. Only a small fraction of Serbs who used to live in Croatia now remain and the majority are the elderly who have returned to die in their homeland. ...” It proceeded to examine the situation in Croatia, noting that there had been considerable improvements since the end of the Tudjman regime in 1999, with the Government making real efforts to overcome the legacy of hatred and taking positive steps to remove the obstacles to the return of refugees and discrimination against ethnic minorities. It noted that concerns had remained that the good intentions of the central government were being frustrated by local officials and by incompetence of, or unwillingness to apply the laws in favour of Serbs by, the judiciary. By May 2002, in the OSCE status report, it was found that property repossession remained at the core of the return process. An action plan had been drawn up by the Government to return some 19,000 properties by the end of 2002 and steps were being taken to address the tenancy problems. The tribunal reviewed other sources and noted that real difficulties and discrimination undoubtedly faced returning Serbs but that the Government was undoubtedly taking steps to improve the situation, for example undertaking to assist returnees in re-integration by providing basic assistance depending on monthly income for a six month period. It noted that the UNHCR directly supported the Government’s return programme and was satisfied that it would not be encouraging returns if persuaded that there would be persecution, or treatment, contrary to Article 3 of the Convention. It noted as regarded war crimes prosecutions: “War crimes prosecutions we can deal with relatively briefly having regard to the concession that unless there is a particular reason to believe an individual will be prosecuted or (as in the case of MM) has been prosecuted, they cannot be relied on as a barrier to return. ... The OSCE and UNHCR closely monitor prosecutions and in particular if a returnee is arrested, the UNHCR will ‘very closely and thoroughly monitor’ the situation. It notes that ‘we found the trials have been very fair and correct in their procedure’. The numbers do not suggest there are widespread prosecutions let alone an implementation of the lists to which we have been referred... In November 2001, we find OSCE noting:– ‘... a positive trend in ... decisions by County Prosecutors and judges to reject war crimes and genocide charges against groups of Serbs due to the lack of evidence of individual crimes.’ Despite this, there remain some problems where trials in absentia have been held. MM is an example, he having been sentenced to 4 years imprisonment on the basis of charges which ... cannot properly be said to amount to conduct which can be reasonably regarded as constituting a war crime. He manned a barricade and was... offensive and threatening in a racist manner to Croats. An accelerated procedure has been put into effect to ensure a reconsideration and if necessary retrial of anyone convicted in absentia. But there may be a remand in custody of usually no more than one or two months while the matter is reconsidered. If it is clear that the case is too weak ..., release may be effected after a couple of days ... we find it impossible to say that there would be persecution or a breach of human rights if the question whether there should be a re-trial is investigated properly even if there may be a relatively short period of remand in custody while that is being done. The tribunal concluded: “... the material before us does not persuade us on the low standard required that there is a real risk that in general Serbs if returned to Croatia will suffer persecution or a breach of any Article of the European Convention on Human Rights. We recognise that the situation is far from pleasant and the deprivation and misery that will be faced. That stems from the war and the destruction caused by it. But that by itself cannot mean that surrogate protection is needed or that there will be a breach of human rights. We regard the steps taken by the Croatian government, despite difficulties at local level and the obstacles that still undoubtedly exist, as sufficient to provide the necessary protection. ... Even though there is discrimination coupled with the difficulties particularly of housing, employment and convalidation to which we have referred, we are satisfied that the threshold of Article 3, in particular of degrading treatment, has not been crossed. Equally, although we recognise that the Article 8 threshold is lower, we are not persuaded that it has been crossed. But even if it has, we are satisfied that removal is justified by proper control of immigration. ... unless the situation deteriorates to a significant extent or special circumstances can be shown in an individual case, no ethnic Serb should be able to establish a claim under either Convention.” In Resolution 1223 (2000) on the Honouring of obligations and commitments by Croatia, the Parliamentary Assembly on 26 September 2000 adopted its recommendation closing the monitoring procedure concerning Croatia. It welcomed the significant progress that Croatia had made towards its commitments and obligations as a member state since its accession to the Council of Europe on 6 November 1996 and in particular, since the parliamentary and presidential elections held at the beginning of 2000. A post-monitoring dialogue with the Croatian authorities has continued through the Assembly’s Monitoring Committee. Arrests of returnees on war crimes: 1999 (9); 2000 (16); 2001 (28); 2002 (16). Suspects released: 1999 (7); 2000 (11); 2001 (26); 2002 (9). Conviction on war crimes: 1999 (1); 2000 (3); 2001 (0); 2002 (1). “The Government generally respected the human rights of its citizens; however, although there were some improvements, serious problems remained. There were instances of arbitrary arrest and lengthy pre-trial detention. The Government continued to arrest and charge persons for war crimes committed during the 1991-1995 conflicts in Bosnia and Croatia. Domestic courts continued to adjudicate war crimes cases, taking steps to depoliticize cases against ethnic Serbs and opening or reopening investigations of members of Croatian military forces. However, ethnic Serbs remained incarcerated after being convicted in non-transparent politicized trials in past years. Reforms in the courts and prosecutors’ offices resulted in some improvements in the judiciary; however, the courts convicted persons in mass trials and in absentia, particularly in Eastern Slavonia. The court continued to be subject to some political influence and suffered from bureaucratic inefficiency, insufficient funding and a severe backlog of cases. At times the Government infringed on privacy rights; restitution of property to refugees (mostly ethnic Serb) returning to the country remained slow and problematic. ... Ethnic minorities, particularly Serbs and Roma, faced serious discrimination, including occasional violence. While some progress was made, ethnic tensions in the war-affected areas remained high, and abuses, including ethnically motivated harassment and assaults continued to occur... a. Arbitrary or unlawful deprivation of life There were no reports of arbitrary or unlawful deprivation of life by the Government or its agents. ... Domestic courts continued to adjudicate cases arising from the 1991-1995 conflicts in Croatia and Bosnia. Courts opened and reopened several war crimes cases involving Croatian forces, but despite their increased number, questions remained about the criminal justice system’s ability to conduct fair and transparent trials in these complex and emotionally charged cases. Observers blamed inadequate training, shortcomings in the legal code, chronic witness intimidation, and an often hostile local public as hampering the war crimes process. ... During the year, the Government took some steps to depoliticize cases against ethnic Serbs. The OSCE reported that at the year’s end it was monitoring 59 ongoing war crimes cases against ethnic Serbs. In October Zadar County Court sentenced Zorana Banic, an ethnic Serb accused of war crimes against civilians in Skabrnja in 1991, to 13 years in prison. In a previous in absentia trial she had been given a maximum 20 year sentence. The indictment included participation in the murder of 34 civilians. International monitors considered it a fair trial. Courts continued the practice of convicting persons in mass trials. For example, in March 2001 mass trials in the ‘Tompojevci group’ case resulted in absentia convictions on war crimes charges for 15 defendants, and in June the Supreme Court confirmed 9 of these convictions. ... d. Arbitrary Arrest, Detention or Exile The Constitution prohibits arbitrary arrest and detention; however, the Government did not always respect this right in practice. ... The Government granted amnesty under the 1996 Amnesty Law (which amnestied acts of rebellion by ethnic Serbs) to several individuals during the law, particularly returning ethnic Serb refugees. In July the State Prosecutor directed local prosecutors to review old war crimes cases to determine whether sufficient evidence existed to proceed with the prosecution. Arrest of ethnic Serbs for war crimes continued but decreased throughout the year. During the years, 34 Serbs and 3 Croats were arrested on war crimes charges and 21 Serbs and 13 Croats were released. In some cases of arrest on war crimes charges, the subject was released a few days after charges were dropped; however, in other cases, the persons were detained for long periods. The inability of judges to issue written verdicts was the leading cause of detention beyond the legal 6 month limit. ... Over the last few years, several ethnic Serb defendants convicted in absentia or at nontransparent trials continued to be held in detention for extended periods while their appeals progressed slowly through the overburdened judicial system. ... Observers reported a decline in the practice of police summoning ethnic Serbs to police stations for ‘voluntary informative talks’ which amounted to brief, warrantless detentions intended to harass Serb citizens. e. Denial of Fair Public Trial Although the Constitution provided for the right to a fair trial and a variety of due process rights in the courts, at times citizens were denied these rights. Excessive delays, particularly in civil trials, remained a problem. Courts tried and convicted persons in absentia for war crimes. Courts convicted persons in mass trials and in trials with weak supporting evidence, particularly in Eastern Slavonia. In March 2001, mass trials in the ‘Tompojevci group’ case resulted in the in absentia convictions of nine ethnic Serbs... In May the Osijek County Court convicted and sentenced in absentia 12 Serbs in the ‘Branjina’ case. In June and July the Vukovar County Court continued in absentia trials against 6 Serbs in the ‘Vukovar Group I’ and against 11 Serbs in a retrial in the ‘Bapska’ case. Activities that should have qualified for amnesty under the 1996 Law ... were classified mistakenly and prosecuted as common crimes or war crimes, although this practice declined and was under review by the Public Prosecutor. For those who had previously exhausted their appeal procedures, there was no mechanism to review their cases. Nevertheless, the courts continued to adjudicate war crimes cases arising from the 1991-1995 conflicts in Bosnia and Croatia, initiated investigations into several allegations involving Croatian forces and took steps to depoliticize cases against ethnic Serbs. For example, the chief State Prosecutor initiated a case-by-case review of war crimes cases and sought to limit sharply the use of in absentia proceedings. County prosecutors were under instructions not to initiate criminal proceedings or in absentia proceedings without consultation with the State Prosecutor. ... At year’s end, approximately 21 individuals remained incarcerated on war crimes or related charges based on politicized or nontransparent trials held under the previous regime. ... Section 5. Discrimination Based on Race, Sex, Disability, Language or Social Status ... National /Racial/Ethnic Minorities Ethnic minorities enjoy the same constitutional protections as other self-identified ethnic and religious groups; however, in practice a pattern of open and sometimes severe discrimination continued against ethnic Serbs in several areas, including in the administration of justice, employment, housing and freedom of movement. Ethnic Serbs in war-affected regions continued to be subject to harassment, intimidation, and occasional violence. In December after extensive discussion with minority groups and political parties, Parliament passed a Constitutional Law on National Minorities with broad political support. The OSCE generally assessed the new law positively. The law assures minority representation in local government bodies, creates minority councils from the local to national level to advise elected officials on minority rights, promotes the use of minority languages and symbols, and provides for the election of up to eight minority representatives in the next Parliament. ... Societal intimidation and violence against Serbs continued in war-affected areas... Weapons left over from the war, including firearms and explosives, were readily available and used in incidents of harassment during the year. Incidents largely occurred in the areas of return in central Dalmatia. In February Serb returnee Jovan Bosta was beaten to death in Benkovac near Knin; contradictory police reports were published and no arrests were made. Also in February two grenades were thrown into the yard of a house owned by a Serb family in the Dnris area. Police responded appropriately and an investigation was ongoing. In April a returnee’s house in the Benkovac area and a local school were burned. In Glina a Serb returnee’s shop was attacked after the screening of a war-related film in which the perpetrators allegedly recognised the owner as a former soldier. Returnee Serbs in the village of Donji Karin reported continuous destruction of crops and vineyards by a Bosnian Croat settler; despite repeated reports to the local police, no action was taken against the suspect. Ethnic Serbs in the area received verbal death threats and one family was pelted repeatedly by stones while working their fields... An ongoing impediment to the return and reintegration of ethnic Serb refugees is the failure of the Government to recognize or ‘convalidate’ their legal and administrative documents from the period of the 1991-1995 conflict. Implementation of the 1997 convalidation law to allow the recognition of documents issued by the rebel Serb para-state was undermined by Ministry of Labour and Social Welfare instructions that seriously limited eligibility. While the law itself did not include a deadline for filing applications, a decree issued by the previous regime established an April 1999 deadline. Since more than half of the 71,000 Serbs who have returned to Croatia returned after April 1999, the filing deadline effectively excludes most of those who otherwise would be beneficiaries. Even persons who filed before this deadline experienced arbitrary delays and obstructions. Without the recognition conferred by law, citizens (almost exclusively ethnic Serbs) remained unable to resolve a wide range of problems including pensions, disability insurance, and ability to establish work experience. Most requests came from elderly persons and related to pension and employment histories from occupied territories during the conflict. ...” | 0 |
train | 001-115485 | ENG | CYP | ADMISSIBILITY | 2,012 | KEMAL (AKA BALCI) v. CYPRUS | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano | The applicant, born in 1941, is a Cypriot citizen of Turkish-Cypriot descent, resident in Nicosia. A charitable trust arrangement of the type known as “vakf” was set up in the early twentieth-century by Hatice and Siddika Hanimlar concerning 20 immovable properties was set up to administer 23% of the income for charitable purposes, 15% for the families who had worked for the Hanimlar family and 62% for the Hanimlar descendants in perpetuity. The applicant claims to be a beneficiary of the said trust as heir of her father who died in 1985. Her father had received income from the trust until 1974 when the Turkish forces invaded Cyprus. Her mother had been the last “mutevelli” or administrator of the trust until her death in 1968, after which the High Council of Evkaf (the administrative body supervising vakf property) took over the administration of the trust. On 30 May 2005, the applicant requested the Attorney-General’s permission to commence legal proceedings against the Evkaf for breach of trust in that no income had been paid to beneficiaries and to have herself appointed as the mutevelli of the trust, and for the property to be vested in her name as the mutevelli. On 21 September 2005, the Attorney-General refused to give consent. On 14 April 2006, the applicant instituted proceedings in the Supreme Court without consent from the Attorney-General, claiming appointment as mutevelli and vesting of the properties in her name and naming Evakf as defendant. The Attorney-General filed opposition, raising issues as to the jurisdiction of the court in the absence of his consent. He also disputed that the applicant had any right to be appointed mutevelli, there being other beneficiaries who could make that claim also. A hearing was held on 20 December 2007. On 17 January 2008, the Supreme Court rejected the applicant’s claims, principally because of the lack of consent given by the Attorney-General. It noted that vakf property was now vested in the Custodian of Turkish-Cypriot properties pursuant to Law 139/1991 and that the Custodian had possession of all properties where the Turkish-Cypriot owners did not live in the Republic. The applicant’s lawyer had raised allegations during the hearing claiming that the Custodian if now regarded as the effective administrator of the trust property should be replaced due to bad administration but this allegation did not fall to be examined as no grounds seeking remedies on this basis had been properly lodged. On 27 February 2008, the applicant served notice of appeal against the judgment. After a hearing on 12 February 2010, the Supreme Court rejected the appeal in a judgment dated 18 May 2010, upholding the reasoning of the previous decision. The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247/08 et al, §§ 34-100, decision of 6 March 2012). | 0 |
train | 001-69915 | ENG | TUR | CHAMBER | 2,005 | CASE OF SIMSEK AND OTHERS v. TURKEY | 3 | Violation of Art. 2 (substantive and procedural);Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 17;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 11. The facts as submitted by the parties may be summarised as follows. 12. All of the applicants reside in Istanbul. 13. The applicants Ali Şimşek, Şaziment Simşek, Dilay Şimşek, Erkan Şimşek, Gökhan Şimşek and Şenay Şimşek are relatives of Dilek Şimşek Sevinç, who died during the Gazi incident. 14. The following applicants are all relatives of persons who also died during the Gazi incident: – Hakkı Yılmaz is the father of Dinçer Yılmaz (deceased); – Hüseyin Kopal is the father of Reis Kopal (deceased); – Cemal Poyraz is the father of Zeynep Poyraz, (deceased); – Mustafa Tunç is the father of Fevzi Tunç (deceased); – Mahmut Engin is the father of Sezgin Engin (deceased); – Arslan Bingöl is the husband of Fadime Bingöl (deceased); – Veli Kaya is the father of Mümtaz Kaya (deceased); – Mehmet Gürgen is the father of Hasan Gürgen (deceased); – Çiçek Yıldırım is the mother of Ali Yıldırım (deceased); – Hüseyin Sel is the father of Hasan Sel (deceased); and – Mukaddes Gündüz is the wife of Mehmet Gündüz (deceased). The remaining applicants are relatives of persons who died during the Ümraniye incident: – Hacer Baltacı is the wife of İsmail Baltacı (deceased); – Sabri Puyan is the brother of Hasan Puyan (deceased); – Zeynel Abit Çabuk is the father of Hakan Çabuk (deceased); – Aynur Demir is the wife of Genco Demir (deceased); and – Aligül Yüksel is the son of İsmihan Yüksel (deceased). 15. Gazi is a neighbourhood located within the Gaziosmanpaşa district of Istanbul. A majority of residents living in the Gazi neighbourhood belongs to the Alevi sect. 16. At around 9 p.m. on 12 March 1995, a group of unidentified persons opened fire from a taxi on five cafés situated in the Gazi neighbourhood. The shooting continued for approximately five minutes. An elderly person, Halil Kaya, was killed and twenty-five persons were wounded. Many shops were badly damaged during the shooting. The perpetrators of the attack killed the driver of the taxi and fled. 17. Following this incident, residents of the neighbourhood gathered on the street outside the cafés and in front of the Cemevi to protest against the indifference displayed by police officers after the shooting. People also gathered outside the hospitals, where injured people were being treated. At about midnight, the group started marching towards the local police station. The police set up barricades with panzers and subsequently attacked the group with their truncheons and the butts of their weapons. 18. At 4 a.m. on 13 March 1995, the Istanbul governor and the chief of police went to the Gaziosmanpaşa governor’s office and held a meeting with the community leaders to stop the incidents. The demonstrators began to calm down. 19. At that moment two panzers approached the demonstrators and began firing at them. As a result, Mehmet Gündüz was killed on the spot and ten persons were injured. 20. In the morning of 13 March 1995 thousands of people from the surrounding neighbourhoods joined the demonstrators. According to the applicants, there was no provocation by any terrorist organisation. Some of the demonstrators started throwing stones and coins at the police barricades. 21. At 11 a.m. police began firing from behind their barricades. Snipers were positioned on nearby buildings, targeting the protesters. During the firing, Fadime Bingöl and Sezgin Engin were killed and a number of others were injured. 22. The killing of these two persons raised the tension and the demonstrators began advancing towards the police barricades at 2 p.m. Uniformed and plainclothes police officers, who had positioned themselves behind the barricades, on the side streets and on some of the buildings, fired intensively. For about twenty minutes, the police officers chased a number of demonstrators who were trying to run away from the scene and shot them. Zeynep Poyraz, Dilek Şimşek Sevinç, Ali Yıldırım, Reis Kopal, Mümtaz Kaya, Fevzi Tunç, Hasan Sel, Hasan Gürgen, Dinçer Yılmaz and Hasan Ersürer were shot and killed. More than a hundred persons were injured. The police prevented the demonstrators from taking the wounded persons to hospital. 23. At 3.15 p.m. the same day the police attacked the crowd who were attending the funerals of Halil Kaya and Mehmet Gündüz. Military reinforcements were called to the area. The applicants state that the group did not protest against the soldiers. 24. At 4 p.m. a curfew was imposed in the area. 25. In total, fifteen people, including a person in the café, Halil Kaya, and the taxi driver were killed, and 276 people were injured during these events. 26. The events in the Gazi neighbourhood sparked widespread outrage throughout the country and a number of demonstrations were held in different parts of Turkey during which the actions of the police were condemned. 27. On 15 March 1995 a large crowd gathered in the Mustafa Kemal neighbourhood, located within the Ümraniye district of Istanbul. The group began marching towards the funerals of those who had been killed during the Gazi incident. 28. At 2.30 p.m. the same day, the crowd came across barricades which had been set up by the police in a square outside a primary school. A number of demonstrators started throwing stones towards the barricades, upon which, without any warning, uniformed and plainclothes police officers began firing at the crowd. No one in the group returned fire. None of the police officers were killed or injured. Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk were killed during the shooting. More than twenty people were injured. 29. Upon receipt of information that five cafés in the Gazi neighbourhood were under fire, police officers were sent to the scene of the incident. When the police officers arrived in front of the cafés, they saw a crowd of forty people who were shouting slogans against the police. The crowd attacked the police vehicles and the police officers were unable to conduct an investigation. Therefore they called for reinforcements. Following the arrival of additional security forces, the police conducted an investigation and wounded persons were sent to hospital. At the same time, some people from the neighbourhood joined the protesting group. Together, they started shouting slogans, and throwing coins and stones at the police. Some of the protesters had fire bombs in their hands. With the participation of other people from the neighbourhood, the crowd became larger and they started to march towards the Gazi Police Station. Many shops and vehicles were set on fire. Some masked men in the crowd threw fire bombs towards the police officers. In order to prevent the crowd from going further, the police officers built barricades. Security forces verbally warned people to stop. They then used pressurised water and batons to disperse the crowd. When they were not able to disperse them, they fired warning shots in the air. However, the crowd continued to walk towards the security forces and attacked the panzers with fire bombs. The riot in the Gazi neighbourhood lasted for two days. At the end of the second day, a curfew was imposed in the area. During the riot, 13 people died and 195 persons (152 residents, 36 police officers and 7 soldiers) were wounded. 30. Following the incidents that took place on 12 March 1995, the security forces received intelligence reports about further possible riots in the Ümraniye area. In order to prevent any untoward occurrences, a meeting was organised on 14 March 1995 at the Ümraniye district security directorate building. The district director of security, the mayor of the neighbourhood and the president of the Pir Sultan Abdal Association participated in the meeting, which was presided over by the district governor. During the meeting, the situation was discussed and residents were requested not to be influenced by provocation. In the morning of 15 March 1995, upon threats from a terrorist organisation, all the shops in the neighbourhood closed down as a sign of protest. A second meeting was held to discuss the situation. At about 1 p.m. the same day, a group of 1,500 people gathered in front of the Pir Sultan Abdal Association in the Mustafa Kemal neighbourhood and started to march towards the Örnek neighbourhood. The security forces announced that the march was illegal and requested the participants to disperse. The group started shouting slogans and continued to march. The number of people increased to thousands. Some of the protesters were wearing red berets and scarves. Some people from the crowd threw stones and coins at the security forces. As the tension increased, the group started attacking the security forces with bricks and stones. The security forces took precautions and established a security line. After some time, armed men, who were amongst the group, started shooting towards the security forces and the crowd. The security forces fired warning shots in the air and the attack stopped. The wounded persons were taken immediately to hospital. While the wounded were being evacuated, the crowd continued shouting slogans and throwing stones from behind the shelters. Traffic was also halted by burning tyres. Military forces arrived at the scene, a curfew was established and the entrance to the neighbourhood was placed under strict control. 31. Following the incidents, the domestic authorities immediately commenced investigating the events. Several witness statements were taken, autopsies were conducted and the bullets recovered from the bodies of the wounded and dead persons were sent for ballistic examination. Seven ballistic reports were prepared by the Istanbul Forensic Medicine Institute on 26 and 31 July, 11 September and 15 November 1995, 27 October 1997 and 12 October 1999, respectively. According to these reports, none of the bullets that had been recovered from the bodies of the victims matched the weapons of the security forces who were on duty during the two incidents. 32. In accordance with Article 22 of Law No. 3713 on the Prevention of Terrorism, in April 1995 the families of the deceased persons were paid 150,000,000 Turkish Liras (TRL), the equivalent of 2,800 euros (EUR), by way of compensation from the Social Collaboration and Solidarity Encouragement Fund (Sosyal Yardımlaşma ve Dayanışmayı Teşvik Fonu). 33. On 11 April 1995 Arslan Bingöl, Celal Sevinç, Çiçek Yıldırım, Mukaddes Gündüz, Sabahat Engin and Cemal Poyraz filed a criminal complaint with the Gaziosmanpaşa public prosecutor against the Ministry of the Interior, the Governor of Istanbul, the Director of the Istanbul Police and the police officers who were involved in the incidents of 12-13 May 1995 in the Gaziosmanpaşa district. They maintained that their relatives had been killed by police officers who had used more force than was absolutely necessary. They further alleged that the crowd which protested against the police had not used firearms and that the police had opened fire at the crowd without any warning. They maintained that the police should have first used pressurised water, tear gas or plastic bullets to disperse the demonstrators. According to the complainants, the police deliberately used firearms against the demonstrators who were residents of the Gazi district and who belonged to the Alevi sect. 34. Following this criminal complaint, the Public Prosecutor commenced an investigation into the events. On 19 April 1995 he issued a decision of non-jurisdiction to examine the complaint against Hayri Kozakçıoğlu, the Governor of Istanbul. The prosecutor accordingly sent the file to the Ministry of the Interior for further investigation. 35. On 4 July 1995 the public prosecutor issued a decision of non-prosecution against Necdet Menzir, the Head of the Istanbul Security Department. 36. On 5 July 1995 the prosecutor decided that no criminal prosecution could be initiated against Nahit Menteşe, the Minister of the Interior. He held that, in his capacity as the Minister, Mr Menteşe did not have legal responsibility concerning the alleged events. 37. On the same day, the public prosecutor also decided to separate the investigation concerning the death of Dinçer Yılmaz, Sezgin Engin, Mümtaz Kaya, Hasan Gürgen, Hasan Sel and Hasan Ersürer from the other killings. This file was accordingly registered under file no. 1995/6570. 38. On 10 July 1995 the public prosecutor filed an indictment with the Eyüp Assize Court against twenty police officers who had been on duty during the demonstrations between 12 and 13 May 1995. The indictment involved the death of Dilek Şimşek Sevinç, Reis Kopal, Zeynep Poyraz, Fevzi Tunç, Fadime Bingöl, Ali Yıldırım and Mehmet Gündüz. In his indictment, the prosecutor relied on witness statements, medical reports, police reports, autopsy reports, video footage and newspaper clippings. He stated that, following the attack on the cafés located in the Gazi district and upon provocation from an illegal organisation, the residents of the neighbourhood had started protesting against the police. The crowd marched towards the local police station, chanting slogans, and throwing stones and fire bombs. Some people among the group fired at the police officers. The crowd was shouting slogans to incite hatred between the Alevis and Sunnis. The prosecutor further maintained that the police panzers had opened fire at the crowd to disperse the demonstrators and, as a result, Mehmet Gündüz was shot and killed. A police officer, identified as Adem Albayrak, had further shot and killed Ali Yıldırım, Dilek Şimşek Sevinç and Fadime Bingöl. Another police officer, whose identity could not be established, shot and killed Reis Kopal. Adem Albayrak, together with Officer Mehmet Gündoğan, killed Zeynep Poyraz. The prosecutor alleged that the officers in the panzer, together with Officer Gündoğan, had shot and killed Fevzi Tunç. The prosecutor therefore requested the court to prosecute these officers for intentional homicide under Article 448 of the Criminal Code. 39. Mukaddes Gündüz (wife of Mehmet Gündüz), Mustafa Tunç (father of Fevzi Tunç), Çiçek Yıldırım (mother of Ali Yıldırım), Cemal Poyraz (father of Zeynep Poyraz), Celal Sevinç (husband of Dilek Şimşek Sevinç), Ali Şimşek (father of Dilek Şimşek Sevinç), Hüseyin Kopal (father of Reis Kopal) and Aslan Bingöl (husband of Fadime Bingöl) intervened in the proceedings. 40. On 13 July 1995 the Eyüp Assize Court decided to transfer the case to another city for security reasons as its location was very close to the vicinity where the incident had taken place. 41. On 15 August 1995 the Court of Cassation upheld the decision of the Eyüp Assize Court and decided to transfer the case to the Trabzon Assize Court, approximately 1000 kilometres away from Istanbul. 42. On 11 September 1995 the Trabzon Assize Court held a preliminary hearing. It decided to send letters rogatory to a number of courts to take statements from fifty eye-witnesses. It also decided that taking oral evidence from another 250 witnesses would be considered at a later stage. It finally requested the public prosecutor to find the current addresses of the twenty accused police officers who, since the incident, had been posted elsewhere in the country. It adjourned the examination of the case until 15 November 1995. 43. On 15 November 1995 the Trabzon Assize Court stayed the trial on the ground that the indictment lacked the prior authorisation of the Istanbul Provincial Administrative Council to initiate criminal proceedings against the police officers. It therefore sent the case-file to the governor’s office in Istanbul, in accordance with the Law on the Prosecution of Civil Servants. The applicants filed an objection against this decision with the Court of Cassation. 44. On 8 October 1996 the Court of Cassation decided that the decision of the Trabzon Assize Court to stay the proceedings was not a final decision and, as such, the Court of Cassation did not have jurisdiction to examine this appeal. On 15 October 1996 the prosecutor at the Court of Cassation appealed against this decision. 45. On 17 December 1996 the Joint Criminal Chambers of the Court of Cassation confirmed that the Court of Cassation was not the competent forum to examine the appeal request. Accordingly, the case file was transferred to the Rize Assize Court. 46. On 3 March 1997 the Rize Assize Court found in line with the applicants’ objection and decided to quash the decision of the Trabzon Assize Court dated 15 November 1995. It held that a prior authorisation from the Istanbul Provincial Administrative Council was not necessary to commence the prosecution of the accused police officers. 47. On 28 March 1997 the Trabzon Assize Court insisted that its decision of 15 November 1995 was valid and that the authorisation of the Istanbul Provincial Administrative Council was required to try the defendants. It decided to send the file to the Ministry of Justice to obtain a written order instructing the public prosecutor at the Court of Cassation to refer the case to the Court of Cassation. The Trabzon public prosecutor was requested to forward the file to the Ministry of Justice. 48. On 31 March 1997 the Trabzon public prosecutor sent the file to the Ministry of Justice together with his observations, in which he stated that the issue had already been examined by the Joint Criminal Chambers of the Court of Cassation and that, in his opinion, it was not necessary for the Ministry of Justice to issue a written order. 49. On 13 May 1997 the Ministry of Justice returned the file to the Trabzon Assize Court, rejecting its request for a written order. 50. On 23 May 1997 the president of the Trabzon Assize Court submitted a two-page letter informing the court about his decision to abstain from sitting as a member of the court during the prosecution of the police officers. In his letter, the president stated that it was impossible for him to remain impartial and independent during the trial of the police officers when his own life was being protected by members of the security forces. He also stated that, in his opinion, the police officers were not guilty and the Gazi district incident was a premeditated riot against the security forces. 51. On 13 June 1997 the Trabzon Assize Court resumed the trial and held a preliminary hearing. The president of the court, who had abstained from hearing the case, was replaced by another judge. 52. On 16 September 1997 the Trabzon Assize Court held the first hearing in the case. The defendants did not attend the hearing but were represented by their lawyers. During the hearing, the court heard testimonies from the interveners, namely Mustafa Tunç, Çiçek Yıldırım, Ali Şimşek, Cemal Poyraz and Aslan Bingöl. All interveners complained that the police had used excessive force against the demonstrators, which had led to the killing of their relatives. As none of them were eye-witnesses to the events, they were unable to give precise details about the incident. However they asked the court to punish those who were responsible for the killings. The same day, the court heard evidence from two people who had been injured during the Gazi Incident. In their statements, both witnesses stated that they had been severely beaten by the police. They also identified the accused officer Adem Albayrak as the officer who had beaten them. At the end of the hearing, the court ordered the detention on remand of eight of the defendants. It also summoned the remainder of the defendants to the next hearing. 53. In its hearing held on 17 November 1997, the court took statements from fifteen accused police officers. Before the court, the defendants stated the following: “At that time, I was a working at the Gaziosmanpaşa District Security Directorate Investigation Unit. Following the attack on the cafés, I was called to the scene with other police officers. I was in command of one of the units. During the incident, I was in civilian clothes, equipped with a handgun. I did not have a rifle or other firearms. When I arrived at the scene, I saw that a huge crowd had already gathered in front of the police station. Some of the demonstrators were throwing stones and fire bombs at the police officers. There were terrorists amongst the demonstrators. They set fire to a white car and a gas container was thrown at this car from a nearby building. The demonstrations continued for about 4 hours. With the help of two panzers, the police officers were trying to disperse the crowd. At some point, the demonstrators marched back but I did not follow them. I stayed near the police station the whole time. Some civilians fired at the police officers from the roofs of the buildings. I did not fire at the crowd. I deny the charges brought against me.” “When I arrived in the Gazi district, there was a huge gathering. The demonstrators were carrying banners. The officers warned them and fired in the air. Some of the demonstrators fired at the police. I was equipped with a handgun; I did not have a rifle. I admit that I am the person in the photograph holding a stick with my right hand and a gun with my left hand. However the security of the gun was locked. I did not fire at the demonstrators.” 54. The same day, the court heard the statements of thirteen other defendants who had been on duty in the panzers at the time of the incident. All of the accused officers denied firing at the crowd. They stated that there were three panzers at the scene on 13 March 1995. The panzers had acted as protective shields for the police officers who were trying to disperse the crowd. According to the accused officers, the crowd was not peaceful; the demonstrators were chanting slogans, and throwing stones and fire bombs at the police. The three panzers had been ordered to drive towards the demonstrators to force them to disperse. All the police officers acknowledged that they had had handguns but denied having had rifles. 55. On 15 December 1997 the court heard the statements of two other accused police officers, who maintained that the crowd was not peaceful, but was chanting slogans, and throwing stones and fire bombs at the police. They denied firing at the crowd and stated that some people in the group had fired at the police. The same day, the court took statements from Hüseyin Kopal, who had intervened in the proceedings, and six more eye-witnesses. Their accounts may be summarised as follows: “I am Reis Kopal’s brother. When Reis did not come home on the day of the incident, I was worried about him. I therefore went to the Gazi district looking for him. It was very crowded. There was a clash. The demonstrators were throwing stones at the police. I saw three dead bodies near a wall. I later learned that these belonged to Fevzi Tunç, Ali Yıldırım and Sezgin Engin. Uniformed and plainclothes police officers were firing at the crowd. I saw the accused officer, Adem Albayrak, shooting at the crowd with a M5 type rifle. I continued looking for my brother. A few minutes later, I witnessed the killing of Mümtaz Kaya. He was shot by a police officer near the high school. I was not able to find my brother and I returned home. Later that night, as I was watching the events from the TV, I recognised my brother. He was amongst the demonstrators, throwing stones at the police. We were later informed that he was shot dead during the incidents.” “On 13 March 1995 I went to the Gazi district. When I arrived near the police station, a clash broke out. Police officers targeted the demonstrators and fired at them. I saw the accused police officer Adem Albayrak firing at Fevzi Tunç. Adem Albayrak was in civilian clothes, equipped with a rifle.” “At the time of the incident, I was working at the Cemevi. Following the attack on the cafés, we tried to convince the residents to calm down. At about 4 a.m. a panzer drove towards our building and projected a light. Thereafter I heard gunshots. Mehmet Gündüz was shot and killed during the shooting. Because of the light, I was unable to see whether the firing came from the panzer or somewhere else.” “I am the brother of Dilek Sevinç who died during the Gazi incident. Following the attack on the cafés, together with Dilek and my younger sister Dilay we approached the police station to see what was going on. One plainclothes police officer, namely Mehmet Gündoğan, started beating me. Then some other police officers started firing at the crowd. Dilek was shot as a result of the shooting. She was shot by a plainclothes police officer who was wearing jeans and holding a rifle. I later learned from the press that his name was Adem Albayrak.” “I am the neighbour of Fadime Bingöl who was shot dead during the Gazi incident. On the day of the incident, Fadime was worried about her daughter who had gone to school. When she saw that other students were returning to their houses, she wanted to go out and find her daughter. I accompanied her. Together, we went towards the crowd. When we were in front of the pharmacy, Fadime climbed on a ladder in order to be able to see her daughter in the crowd. Suddenly there was shooting, and I saw Fadime fall down. She was shot by a police officer who was standing on the opposite side of the road. I cannot identify the officer as he was wearing a helmet.” “Fadime Bingöl is my relative. On the day of the incident, we went out to search for Fadime’s daughter who had gone to school in the morning. Fadime climbed on a ladder in front of the pharmacy, looking for her daughter. She was shot in the face by police officers standing on the opposite side of the building.” “On 13 March 1995 at about 10 a.m. together with my sister-in-law Fadime Bingöl, we went out looking for Fadime’s daughter. We first went to the Cemevi, then continued walking. Fadime saw a ladder and climbed on it to find her daughter in the crowd. At that time plainclothes and uniformed police officers started firing at the crowd. Fadime was shot in the face. I could not see who shot her. I just saw police officers shooting at the crowd.” 56. On 28 January 1998 the court held its fourth hearing and took the statement of an accused police officer, Sedat Özdemir. Mr Özdemir maintained that he had been on duty in one of the panzers during the Gazi incident. He explained that the panzers had been used as shields to protect the police officers from the crowd. He stated that all of the officers in the panzer were equipped with handguns. 57. The same day, the court further heard oral evidence from two witnesses, namely Sadık Bakır and Hıdır Elmas. Both witnesses had been working at the Cemevi at the time of the incidents. They maintained that, following the attack on the cafés on 12 March 1995, people started gathering in front of the Cemevi. While they were waiting peacefully in front of the building, at about 4 a.m. a panzer approached and projected its lights towards the Cemevi. The witnesses recalled hearing gun shots and maintained that Mehmet Gündüz had been shot and killed and several people wounded as a result of this shooting. 58. On 27 February 1998 the court heard witness statements, which may be summarised as follows: “I am a police officer. On the day of the incident, we were called to the Gazi district as reinforcement. We waited in front of the local police station for a long time. We were confronted with a large gathering. They were shouting slogans. In the morning, military forces arrived at the scene. The crowd was attacking the police barricade with stones and bricks. Fire bombs were thrown at the police. As I was behind, I could not see clearly what was going on near the barricades, but at some point the crowd started marching back. Some officers followed them. I heard screams and gunshots but I never left the police station. I saw that some of the police officers from the anti-terrorism branch were equipped with MP5 rifles and Kalashnikovs. They were wearing bullet proof vests.” “I was waiting in the Cemevi on the night of the incident. At about 4 a.m., I saw a panzer which projected its lights onto the building. Then from behind the panzer, I heard gun shots. Many people were hit during the firing. We tried to take the wounded persons to hospital. One of the wounded persons died on the spot. I later learned that his name was Mehmet Gündüz.” “I am a journalist. I work for one of the weekly magazines. On Sunday when I heard about the Gazi incident, I went to the district at about 11 p.m. When I was in front of the police station, I heard an explosion. Then I saw the panzers. They were trying to extinguish a taxi that was on fire. On the left side, I saw police officers shooting in the air with their hand guns. From their clothes, I understood that they were from Rapid Intervention Force. I saw that many of the police officers acted in panic. A commander shouted, “Stop or you will shoot each other”. Someone from a nearby building threw a gas container at the burning taxi. The car exploded. Children were attacking the shops by throwing stones. I saw some people with fire bombs; their faces were covered. I assumed they were members of an illegal organisation. They were throwing these fire bombs at the panzers. An announcement was made from the Cemevi, asking the residents to go home. The crowd started calming down. I went to a nearby café to wait. After some time, someone rushed into the café and shouted, “They’ve started attacking”. When we went to the Cemevi, I saw that a panzer was projecting lights on the crowd, and guns were fired from behind the panzers. Many people were wounded. Mehmet Gündüz died on the spot.” “I am the director of the Cemevi. I was watching TV when I heard about the attack on the cafés. Immediately, I went to the Cemevi. A group of 200-300 persons had gathered in front of our building. The mayor of the district talked to the group and told them to go home. While we were trying to organise the funeral of Halil Kaya, at about 4 a.m. two panzers approached our building. One of them projected its lights onto the building. At first, I heard two gun shots. Then the shooting continued. A person who was waiting in front of the Cemevi was shot and killed.” “Fevzi Tunç, who was killed during the Gazi incident, was my colleague. On the day of the incident, I was at Fevzi’s apartment in Gazi district. Together we were watching a football game. While we were watching TV, we heard about the attack on the cafés. We did not go out that night. The following morning at about 10 a.m. we went out. When we approached the Cemevi, we came across a huge crowd. Our aim was to catch the bus. However, at that moment we heard gun fire. We saw someone fall down. Fevzi went to help him. I then saw two police officers pointing their guns at us. One of them was wearing a uniform; the other was in civilian clothes. The police officer who was dressed in civilian clothes was holding a M5 rifle. They both fired at us. Fevzi was shot from a distance of 60-70 metres.” 59. On 2 April 1998 the court heard the statements of three interveners, Menevşe Poyraz, Haydar Kopal and Şaziment Şimşek, none of whom had been eye-witnesses to the incident. They all requested the court to punish those responsible for the killing of their relatives. The same day, the court heard evidence from Özlem Tunç and Mahmut Yağız. In her statement Özlem Tunç submitted that she was living in the Gazi district at the time of the incident. On the day of the incident, she was at home when she heard the attacks on the cafés. She went out with her mother to see what was going on. She witnessed police officers attacking the crowd. She was severely beaten by the police. She saw the dead body of Fevzi Tunç and witnessed the death of Fadime Bingöl. She stated that Fadime was standing right in front of her when she had been shot in the face. However, the witness had not been able to see who had fired the shot. 60. When asked about his recollection of the incident, the second witness Mahmut Yağız explained that on 13 May 1995 at about 10 a.m. he had gone out to see the events. The streets had been extremely crowded. He recalled hearing gun shots and seeing a group of demonstrators throwing stones at the police. He also remembered seeing two police officers, in civilian clothes, firing with rifles from behind a car. He explained that, as a result of the firing, four persons had been shot and killed. He subsequently learned that amongst the dead were Fevzi Tunç, Reis Kopal and Sezgin Engin. The witness maintained that the killing of these persons had raised the tension and the crowd had started throwing stones at the police. He recalled seeing two uniformed police officers fire at the crowd, targeting the demonstrators. 61. While the proceedings before the Trabzon Assize Court were under way, on 5 March 1998 the Gaziosmanpaşa public prosecutor filed another indictment with the Eyüp Assize Court against the two police officers Adem Albayrak and Mehmet Gündögan for the killing of Sezgin Engin and Mümtaz Kaya during the Gazi incident. On 10 March 1998 the Eyüp Assize Court decided to join these proceedings to those already pending before the Trabzon Assize Court. At its hearing on 2 April 1998, the Trabzon Assize Court endorsed this decision. The applicants Veli Kaya and Mahmut Engin intervened in those proceedings. At its hearing held on 7 May 1998, the court took their statements. Both Mr Kaya and Mr Engin asked the court to find the police officers who had shot and killed their sons. 62. On 7 May 1998 the court heard the testimony of Sevgili Kaya, the mother of Mümtaz Kaya. She gave the following account: “On 13 March 1995 I went to the Gazi district together with my son to visit a friend. On the way, we saw a large group of people. Suddenly, the group started running away. My son panicked and tried to escape. Police officers in civilian clothes fired at the people who were running away. My son was shot. I saw the officer who shot Mümtaz. He was in civilian clothes wearing a coat. I also saw the same officer shoot Zeynep Poyraz.” 63. When asked to identify the officer who had shot her son, Sevgili Kaya identified Mehmet Gündoğan amongst the defendants. She also stated that it was the same police officer who had shot Zeynep Poyraz. 64. The same day the court heard the statement of Nuriye Yıldız. She stated: “I was in the Gazi district to visit a relative. I stayed there on Sunday and on Monday morning I went out to go back to my house. Near the school, which is close to the Cemevi, I met Mümtaz Kaya and his mother. Suddenly a clash broke out and Mümtaz was shot by a police officer. The officer, who shot Mümtaz from 15 metres away, was in civilian clothes, holding a truncheon with one hand and a gun with the other. People were chased by the police. I also saw panzers.” 65. When the witness was asked to identify the police officer who had shot Mümtaz, she pointed out Mehmet Gündoğan and confirmed before the court that it was Mehmet Gündoğan who had shot Mümtaz. 66. At its ninth hearing on 12 June 1998, the court took evidence from two eye-witnesses. Their accounts may be summarised as follows: “I was in the Gazi district when the incidents took place. I first saw the panzers and the officers who had been positioned behind the panzers. There was a group of people waiting in front of the panzers. Suddenly the panzers started driving towards the gathering. People started running away. I saw Zeynep Poyraz being shot and she fell down. She was shot from a distance of 50-60 metres. I did not see who shot her. Zeynep was not attacking the officers and she was not a member of an illegal group; she was just trying to run away from the police.” “I was in the Gazi district at that time. There was a large group of people out on the streets. Amongst the group, I recognised Reis Kopal, who is a relative. Reis was throwing stones at the police. The police started firing at the group and Reis fell down. I saw two police officers equipped with rifles. One of them was wearing a uniform, the other one was in civilian clothes.” 67. When the witness was asked by the court to identify the police officer who had shot Reis Kopal, he pointed out Adem Albayrak amongst the defendants. 68. The Trabzon Assize Court further held 21 hearings until 3 March 2000 and heard testimonies from six more witnesses, mainly journalists who had reported the incidents. The defendant police officers Mehmet Gündoğan and Adem Albayrak were released from detention on 6 November 1998 and 3 March 2000 respectively pending trial. 69. On 3 March 2000 the court delivered its judgment. Basing itself on autopsy reports, ballistics reports, incident reports, testimonies, photographs and video footage of the incident, the court found it established that police officer Adem Albayrak had shot and killed Dilek Şimşek Sevinç, Reis Kopal, Fevzi Tunç and Sezgin Engin. It accordingly sentenced him to six years and eight months’ imprisonment, pursuant to Article 448 of the Criminal Code, and barred him from public service for four months and twenty-eight days. The court also found police officer Mehmet Gündoğan guilty of killing Mümtaz Kaya and Zeynep Poyraz and sentenced him to three years and four months’ imprisonment, and barred him from public service for two months and fourteen days, pursuant to Article 448 of the Criminal Code. The remaining eighteen police officers were acquitted of the charges against them. 70. On 5 April 2001 the Court of Cassation upheld the judgment of the Trabzon Assize Court in respect of the acquitted police officers. However it quashed the first-instance court’s judgment in respect of the convictions of Adem Albayrak and Mehmet Gündoğan. It held that the first instance court had failed to establish the facts of the case. Holding that the assize court’s evaluation of evidence was insufficient, the Court of Cassation quashed this part of the judgment. 71. On 4 June 2001 the Trabzon Assize Court resumed the proceedings. It held four hearings and re-examined the case file. 72. On 5 November 2001 the court applied the decision of the Court of Cassation and rectified its former judgment. Accordingly, the Assize Court found Adem Albayrak guilty of killing Fevzi Tunç, Reis Kopal and Dilek Sevinç and sentenced him to five years’ imprisonment. Adem Albayrak was further barred from public service for three months. The court acquitted him of the remaining charges against him, namely the killing of Sezgin Engin. 73. The court found that Mehmet Gündoğan was guilty of killing Mümtaz Kaya, contrary to Article 448 of the Criminal Code. It accordingly sentenced him to one year and eight months’ imprisonment, and barred him from public service for three months. It acquitted Mehmet Gündoğan of the remaining charges against him, namely the killing of Zeynep Poyraz. Finally, pursuant to Section 6 of the Execution of Sentences Act (Law no. 647), the court decided to suspend the sentence of Mehmet Gündoğan, considering that the accused did not have a tendency to break the law again. 74. On 11 June 2002 the Court of Cassation upheld the judgment of the first instance court. 75. The investigation which had been commenced in April 1995 concerning the killing of Dinçer Yılmaz, Hasan Gürgen, Hasan Sel and Hasan Ersürer is still pending before the Gaziosmanpaşa Public Prosecutor under file no. 1995/6570 (see paragraph 37 above). During the investigation, the public prosecutor took oral evidence from witnesses, and examined the autopsy reports, the photographs taken during the demonstration and the video footage of the event. He further requested the list of police officers who had been on duty during the Gazi incidents and ordered a ballistic examination of their guns. As the bullet which killed Dinçer Yılmaz could not be found, no ballistic examination could be performed. According to the Government, the authorities are still searching the perpetrators. 76. On 11 April 1995 a criminal complaint was filed with the Üsküdar public prosecutor’s office against the Ministry of Interior, the Governor of Istanbul, the Director of the Istanbul Security Department and the police officers who were involved in the incidents of 15 March 1995 in the Ümraniye district. It was submitted that, as a result of the disproportionate use of firearms by the police, five persons, namely Hasan Puyan, İsmihan Yüksel, İsmail Baltacı, Genco Demir and Hakan Çabuk, were killed and twenty others were injured. It was argued that the Ministry of Interior, the governor of Istanbul and the director of the Istanbul police headquarters had been negligent in failing to control the actions of the police. The relatives of the deceased persons further argued that the police officers had even followed those running away from the scene and fired at them. They contended that the demonstrators had not fired at the police and, in support of this allegation, they maintained that no police officers had been injured or killed during the Ümraniye incident. 77. On 15 April 1997 the Üsküdar prosecutor’s office decided not to prosecute the 238 police officers who had been on duty during the Ümraniye incident. He stated that police officers had fired warning shots in the air to disperse the demonstrators and concluded that the deceased persons had not been killed by fire opened by members of the Rapid Intervention Force. It had not been possible to establish the accuracy of the claims that a number of civilians who opened fire on the crowd were plainclothes police officers. In reaching this conclusion, the Üsküdar public prosecutor’s office had regard to the eye-witness accounts of a number of persons, including the relatives of the deceased persons. A number of police officers working at the Ümraniye police headquarters had also been questioned. Eight bullets which had been removed from the bodies of the deceased and the injured persons had been compared with those obtained from the weapons of the 238 defendants. As a result, it was established that these eight bullets had not been fired from any of the weapons owned by the defendants. Video recordings and a number of pictures of the scene were obtained by the prosecutor’s office but they turned out to relate to events which had taken place after the killing of the applicants’ relatives. It was concluded that it had not been possible to identify the demonstrators who had opened fire at the crowd. The prosecutor further held that the firing in the air by police officers did not constitute a criminal offence. Finally, the prosecutor noted that, as the ballistic examinations of the weapons belonging to seven other police officers had not yet been concluded, a decision as to whether to prosecute these officers would be taken at a later date. 78. The applicants Sabri Puyan, Hacer Baltacı, Aynur Demir and Aligül Yüksel appealed against the decision. 79. On 13 November 1998 the appeal was dismissed by the Kadıköy Assize Court. 80. On 10 November 1998 the Üsküdar prosecutor’s office decided not to prosecute the remaining seven police officers for the same reasons it had relied on in its decision of 15 April 1997. 81. On 30 November 1998 the applicants appealed against the decision of 10 November 1998 not to prosecute. Their appeal was rejected. 82. Article 125 of the Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 83. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 84. The Criminal Code makes it a criminal offence to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 85. For all these offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Criminal Procedure Code, with the public prosecutor or local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Criminal Procedure Code. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 86. The relevant provisions of Law No. 2559 on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Kanunu), enacted in 1934, read as follows: The police may use firearms in the event of: (a) Self defence, ... (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.” 87. Section 17 of the Regulation on the Duties and Powers of the Police (Polis Vazife ve Selahiyet Nizamnamesi) provides: “Pursuant to Article 16 of the Law on the Duties and Powers of the police, police officers are entitled to use firearms. However recourse to firearms arms should be limited to cases when all other means remain ineffective. In this connection, it should be recalled that the police should not aim to kill but to capture the accused person(s) with minimum physical injury, and should try to avoid using firearms in crowded areas.” 88. According to Part A paragraph 13 of Resolution 690 on the Declaration on the Police adopted by the Parliamentary Assembly of the Council of Europe in 1979, “police officers shall receive clear and precise instructions as to the manner and circumstances in which they may make use of arms”. 89. Article 6 § 1 of the International Covenant on Civil and Political Rights provides: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” 90. In this connection, the Human Rights Committee noted the following (see General Comment no. 6, Article 6, 16th Session (1982), § 3): “The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.” 91. 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. Paragraph 1 of the Principles states that Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review. Pursuant to paragraph 2, the Governments undertake to develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of the means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defence equipment such as shields, helmets, bullet-proof vests and bullet-proof transport, in order to decrease the need to use weapons of any kind. Paragraph 5 of the Principles provides, inter alia, that law enforcement officials shall “act in proportion to the seriousness of the offence and the legitimate objective to be achieved”. In accordance with paragraph 7, “governments shall ensure that the arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law”. Paragraph 9 foresees that “law enforcement officers shall not use firearms against persons except in self-defence or the defence of others against the imminent threat of death or serious injury... In any event, the intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. Paragraph 11 (b) states that national rules and regulations on the use of firearms should “ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm”. In paragraphs 13 and 14 the following Principles are adopted for policing unlawful assemblies: “In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.” “In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in Principle 9.” 92. Furthermore, Article 3 of the United Nations Code of Conduct for Law Enforcement Officials, adopted by the General Assembly resolution on 17 December 1979, reads: “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. 93. In December 1998, Amnesty International further adopted ten basic human rights standards for law enforcement officials. The relevant standards read as follows: “Do not use force except when strictly necessary and to the minimum extent required under the circumstances.” “Avoid using force when policing unlawful but non-violent assemblies. When dispersing violent assemblies, use force only to the minimum extent necessary. ” “Lethal force should not be used except when strictly unavoidable in order to protect your life and others.” | 1 |
train | 001-4827 | ENG | POL | ADMISSIBILITY | 1,999 | KAWKA v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant is a Polish citizen born in 1965 and residing in Łódź. On 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day remanded him in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and an axe. . On 25 March 1994 the Łódź Regional Court (Sąd Wojewódzki) granted the Prosecutor’s request for prolongation of the applicant’s detention until 4 July 1994 in view of the need to obtain further expert opinions. On 5 April 1994 the Łódź Regional Court dismissed the applicant’s request for release. On 26 April 1994 the Łódź Court of Appeal (Sąd Apelacyjny) complied with the applicant’s request to amend the decision of 25 March 1994 and shortened the period for which the applicant’s detention was authorised to 30 June 1994. On 25 May 1994 the applicant requested his release. The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request. On 15 June 1994 the applicant again requested to be released. On 17 June 1994 he underwent a psychiatric examination. On 28 June 1994 the Łódź Regional Court, acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant’s detention from 30 June until 30 September 1994. The Court considered that the reasons for which the detention had been ordered had not ceased to exist. There was sufficient suspicion that the applicant had committed the criminal offence at issue, supported by the evidence gathered in the course of the investigations. The applicant had to undergo a further time-consuming psychiatric examination. Further investigatory measures had to be taken and evidence had to be obtained. On 15 July 1994 an additional psychiatric opinion was submitted. On 19 July 1994 the Łódź Court of Appeal upheld the decision of 28 June 1994. The Court considered that the applicant’s continued detention was necessary in order to ensure the proper conduct of the proceedings in view of the fact that the applicant’s psychiatric examination had not been completed. On 11 and 28 August 1994 the applicant requested to be released. His requests were subsequently dismissed by the Łódź Regional Court. On 1 September 1994 the applicant requested his release. On 5 September 1994 the applicant was informed that the charges against him had been in part modified and he was allowed access to the case-file. On 21 September 1994 the applicant was served with a bill of indictment. On the same day the Public Prosecutor submitted the indictment to the Łódź Regional Court. On 4 October 1994 the Łódź Regional Court dismissed the applicant’s request for release of 1 September 1994. The Court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia, by the two victims. The reasons for which the detention had been ordered continued to exist. The applicant had failed to indicate in his request any new circumstances which could justify his release. On 6 October 1994 the applicant’s father appealed against the decision. He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention. On 10 October 1994 the applicant’s lawyer appealed against the same decision. He submitted that the Court’s conclusions as to the reasonableness of the suspicion were based on insufficient evidence as only the evidence given by the victims supported the suspicion that the applicant was guilty. The applicant’s detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date. No further decision relating to the prolongation of the detention had been issued. On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994. The court first considered that the applicant’s arguments as to whether the suspicion against him was reasonable were ill-founded. The court further considered that the applicant’s suggestion that his detention since 30 September 1994 lacked any legal basis was entirely erroneous. The court stated that the applicant’s lawyer must apparently have overlooked the fact that the bill of indictment had been submitted to the court on 21 September 1994. Therefore the time-limits for detention on remand provided for by Article 222 of the Code of Criminal Procedure had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings On an unspecified later date the applicant challenged all the judges of the Łódź Regional Court, alleging that they were biased against him. On 23 November 1994 the Łódź Regional Court decided that judge J.R. should step down, considering that he had declared, in reply to the applicant’s challenge, that he had known the victims of the offence for many years and that this could make it difficult for him to remain impartial. The court dismissed the applicant’s challenge of the remaining judges, finding that the statutory requirements for them to step down were not satisfied. The court fixed the date of the first hearing to be held in the case for 27 January 1995. On 23 January 1995 the applicant’s lawyer requested that the hearing be adjourned as he was ill. He further requested the court to obtain a medical expert opinion in order to establish whether in the light of the injuries sustained by the victims the course of the material events could possibly correspond to events as presented in the bill of indictment. He further requested the court to order a reconstruction of the crime, which would allow it to make findings of facts relevant to the determination of the applicant’s criminal responsibility. Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail as the Łódź Regional Court dismissed all his requests. In April 1995 the applicant complained to the prison medical services that, following pains which he had had in his right eye, he had begun to lose his eyesight. On 5 June 1995 the Łódź Regional Court convicted the applicant of attempted manslaughter and sentenced him to five years’ imprisonment. On 6 July 1995 the court informed the applicant that the written grounds of the judgment would be prepared by 10 September 1995. In June 1995 the Regional Court, supervising the enforcement of sentences ordered that the applicant should be examined by an ophthalmologist. Apparently, this specialist had not found any pathology as regards the applicant’s eyesight, but indicated that a neurological examination was called for. In July the applicant was examined by a neurologist who recommended that he should undergo a comprehensive neurological examination in a specialised hospital. Subsequently the applicant was transferred to Strzelce Opolskie prison. At the end of July 1995 he was transferred to Wrocław prison. In a letter of 18 August 1995 the Ombudsman informed the applicant, in reply to his earlier complaints about the allegedly inadequate medical care which he had received in prison, that his allegations had been investigated and that they had proved unfounded. The Ombudsman referred to the fact that upon his admission to the Łódź prison the applicant had only stated that he was short sighted. On 17 January 1995, after the applicant complained that he had had a short loss of consciousness, he had been examined by a neurologist and had undergone a tomography of brain which had not shown any pathological changes. On 1 March 1995 he had been examined by an ophthalmologist, who had stated that his eyesight had not deteriorated since his admission to the prison. It was further stated in the letter that since 1 March 1995 the applicant had not reported any health problems to the prison health services, either after his transfer to the Strzelce Opolskie or after his subsequent transfer to the Wrocław prison. On 3 July 1995 he had only complained of headache. On an unspecified date in October 1995 the applicant was transferred to another ward of Wrocław prison, to a cell for six inmates. On 19 October 1995 the applicant, following his complaints about his asthma, back pains and problems with his eyesight, was admitted to a hospital in Wrocław prison. On 27 October 1995 the applicant was served with the written grounds of the judgment of 5 June 1995. Subsequently the applicant’s lawyers lodged two appeals against this judgment, submitting that the Regional Court had committed errors of law in that it had erroneously applied substantive law and wrongly qualified the offence concerned as attempted manslaughter, whereas it should have been qualified as assault. It was further argued that the court had erroneously assessed the evidence, had disregarded the discrepancies between the testimony of various witnesses and, as a result, had made wrongful findings of fact. The court should have questioned D.W. who, as not having any family links with either the applicant or the victims, would be an impartial and credible witness. His testimony would in particular confirm that the applicant had not acted with an intention to kill. On 6 November 1995 the applicant requested the Łódź Court of Appeal to expedite the appellate proceedings in his case. On an unspecified date in November 1995 the doctors of the Wrocław prison hospital found that the applicant suffered from certain degenerative ailment of spine. On 5 December 1995 the Łódź Court of Appeal informed the applicant that the case-file had not been submitted to that court. On an unspecified date at the beginning of 1996 the applicant underwent a medical consultation in a public hospital in Wrocław. On 29 February 1996 the Łódź Court of Appeal partly amended the judgment in that, in the determination of the applicant’s sentence, it relied on different provisions of the Criminal Code as applicable at the material time, and upheld it in its remainder. The court observed that whereas it was true that there had been certain discrepancies between the testimony of the three members of the L. family, the victims of the crime, on the other hand they had been quite concordant in respect of the essential elements of the material circumstances. These discrepancies could be explained by the lapse of time between their first questioning, made in the investigations, and the subsequent ones, made before the trial court. On the whole, the discrepancies were not of such a nature as to diminish the credibility of these witnesses, in particular as regards the weapons used by the applicant and the fact that he had used both of them, i.e. a knife and a kitchen axe. The court further noted that the lower court had summoned witness D.W. for the hearing on 3 June 1995, but as he had failed to attend the hearing, the court had read out his testimony deposed during the investigations, having first requested the parties to state whether they had insisted that this witness be questioned. At this stage the applicant’s lawyers had agreed that this testimony be read out in the court. Thus, the applicant had accepted that it had not been necessary for the court to hear this witness. The court further considered that, in any event, this testimony was in part concordant with the testimony of the other two witnesses, A.S. and D. D. There were no grounds on which to accept that the testimony in question would have entirely exonerated the applicant. On 5 April 1996 the applicant’s lawyer lodged a cassation appeal against this judgment with the Supreme Court. It was argued that the courts had committed a serious error of law in that the applicant’s offence had erroneously been qualified as attempted manslaughter whereas it should have been qualified as assault. It was further submitted that in the assessment of the evidence the principle in dubio pro reo had not been respected. The Regional Court had committed a procedural error in that it had failed to question witness D.W. and had limited itself to reading out during the trial his testimony submitted during the investigations. It was finally argued that the court had failed to establish certain circumstances relevant for the assessment of the applicant criminal responsibility, in particular as it had failed to order a reconstruction of the circumstances of the crime which would show that the course of the material events could not possibly have been such as established by the court. On 4 June 1996 the applicant was examined by a medical panel, with a view to establishing whether he was fit for further detention. On 25 June 1996 the Wrocław Regional Court stayed the enforcement of the applicant’s sentence, having regard to his bad health. The court had regard to a medical certificate of 14 June 1996 and considered that his further staying in prison would be detrimental to his health. On 27 June 1996 the applicant was discharged from the Surgery Department of the Wrocław prison hospital. A medical certificate issued at his discharge stated that he had been diagnosed as suffering from hernia of the nucleus pulposus. He had been examined by an orthopaedist, a neurologist, and a specialist in neurosurgery. A tomography of the spine had been effected and he had been receiving various medicines to ease his back pain. It was further stated that the applicant’s further serving the sentence could entail a serious danger to his health and that he should be operated on in connection with his spine problems. On an unspecified later date the applicant was released. From 15 January 1997 to 5 March 1997 the applicant underwent medical treatment in the Neurosurgery Department of the Medical Academy in Bydgoszcz. A medical certificate of 5 March 1997 stated that he suffered from discopathy and painful pressure on spinal cord. A surgical intervention was indispensable, but it could not be envisaged in the applicant’s depressive state and was, accordingly, postponed. However, the postponing of the surgery would ultimately entail very serious risks to the applicant’s health and even life. He was referred to a psychiatric department for further treatment. The date of his next admission to the hospital for neurological treatment was set for 21 July 1997. From 18 to 26 March 1997 the applicant was treated in the Psychiatry Department of the same hospital. It was established that he suffered from depression. In May 1997 the applicant apparently started anew to serve his sentence. On 10 June 1997 the Wrocław Court of Enforcement of Sentences refused to grant the applicant’s request for a conditional release. On an unspecified date before 10 October 1997 the applicant’s request to have the execution of his sentence stayed was granted in order for him to undergo the operation of the spine. | 0 |
train | 001-101064 | ENG | FIN | ADMISSIBILITY | 2,010 | SYDANMAKI v. FINLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Esko Ilmari Sydänmäki, is a Finnish national who was born in 1948 and lives in Helsinki. He was represented before the Court by Mr Kari Uoti, 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. In October 1974 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement. On 17 June 1998 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) amended the pension rules of the Bank so that men who had entered into the service of the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.80% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had entered the service of the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual. Prior to his retirement the applicant applied for a preliminary ruling on how his pension would be calculated. His application was rejected by the Bank's Directorate (johtokunta, direktionen) on 22 September 2004 as giving such a decision was not considered particularly important to the applicant. On 28 December 2004 the applicant was granted a pension, which was reduced by 15.84% for the 231 months prior to 1 January 1994 on the ground that he had retired at the age of 56. The pension so calculated amounted to 2,529 euros (EUR) per month. On 26 January 2005 the applicant petitioned the Bank's Directorate, requesting rectification so that no reduction should apply when his pension was calculated. He also requested that the decision of 17 June 1998 be overturned as it had been taken by a body which was not competent and was contrary to Article 119 (now 141) of the EC Treaty. He underlined that his petition was not to be interpreted as an appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen) against the decision to grant him a pension. On 3 June 2005 the Bank's Directorate dismissed the applicant's petition without examining the merits since it had no competence to review the lawfulness of the impugned decision and the issue could not be rectified. It appears that the applicant did not appeal to the Insurance Court against any of the decisions of 28 December 2004 and 3 June 2005. However, he lodged an appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the decision of 3 June 2005. On 23 August 2006 the Supreme Administrative Court rejected the appeal. It found that the decision by the Trustees of the Bank in 1998 was not a decision that could be rectified. Therefore, and as there was no indication of partiality and as the European aspects relied on by the applicant were irrelevant for the outcome of the case, it found that there were no reasons to alter the finding of the Bank's Directorate. Having received the decision, the applicant requested a copy, inter alia, of the referendary's written proposal to the judges. On 28 August 2006 the referendary sent copies of the requested documents, save for the confidential parts of her proposal which under Chapter 1, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) formed part of the deliberations of the court. On 30 August 2006 the applicant maintained that he had a right to receive a complete copy of the latter document and demanded that his request be transferred to the chancellery's session for decision. On 8 November 2006 the applicant's request was rejected in the chancellery's session as he had not shown that he needed the said part of the document which formed part of the court's deliberations and which could therefore be produced only exceptionally. On 15 March 2007 the Supreme Administrative Court dismissed the applicant's request of January 2007 for the said document to be sent directly to the European Court of Human Rights as such an application for documents fell outside the scope of the Act on the Openness of Government Activities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet). The applicant's subsequent request for copies of the proposals underlying these decisions was rejected as no written proposals had been drawn up. On 4 April 2007 the applicant requested a fresh decision, arguing that the previous one was poorly reasoned. He also alleged partiality. The Supreme Administrative Court interpreted his petition as an extraordinary appeal, which it rejected on 1 July 2008 as ill-founded. The applicant's request for a copy of the proposal underlying the decision was granted on 8 July 2008 save for those parts of the court's deliberations which were to be kept secret under the Publicity of Administrative Court Proceedings Act (laki oikeudenkäynnin julkisuudesta hallintotuomioistuimissa, lagen om offentlighet vid rättegång i förvaltningsdomstolar; Act no. 381/2007). On 11 July 2008 the applicant renewed his request, arguing that the contents might affect the proceedings before the European Court of Human Rights. On 26 August 2008 the Supreme Administrative Court rejected his request under the said Act. The applicant was granted a separate old age pension as of 1 January 2005 at the age of 56, amounting to EUR 181 per month, from the State Treasury (Valtiokonttori, Statskontoret) due to his service in the Central Statistical Office during the period 1970 to 1974. No reduction for the accrual prior to 1 January 1994 was applied. The applicant petitioned the Chancellor of Justice (oikeuskansleri, justitiekanslern) and the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 31 January 2007 and 21 November 2007 the Deputy Chancellor of Justice and the Deputy Parliamentary Ombudsman respectively found no reason to take measures. On 17 December 2007 the Deputy Parliamentary Ombudsman found no reason to re-examine the case. On 4 September 2008 the applicant was informed by the Office of the Parliamentary Ombudsman that his case would not be re-examined in the absence of new facts relevant to the case. In spring 2008 the applicant petitioned the Bank of Finland in order to obtain information for the proceedings before the European Court of Human Rights. The Bank produced certain information such as the names of employees affected by the 1998 amendment. However, it refused to produce information about their retirement age, their addresses, telephone numbers, bank account details and so on. It is not known whether the applicant appealed to the Supreme Administrative Court. Meanwhile, on 25 June 2003 the Bank of Finland granted Mr K.H. a pension and applied, in accordance with its practice, the early retirement reduction as described above. On 26 October 2004 the Supreme Administrative Court dismissed the applicant's appeal against the Bank's decision in the case of Mr K.H. without considering its merits as the decision did not directly affect him. In any event, an appeal against a pension decision lay with the Insurance Court, not the Supreme Administrative Court. On 25 October 2005 the Insurance Court (decision no. 7215/2003/3801) rejected Mr K.H.'s arguments that the early retirement reduction was discriminatory and in breach of Article 141 of the EC Treaty and the Finnish Constitution. However, it amended the pension decision by granting Mr K.H. a pension right amounting to 60% on the ground that he fulfilled the so-called pension guarantee requirement as he had completed 30 years of service. The Insurance Court has ruled in a similar case also on 2 March 2010 in the case of Mr P.K. Meanwhile, following the judgment of 12 September 2002 by the European Court of Justice in the case of Pirkko Niemi C-351/00 in which it was found that the fact that the applicant's pensionable age was set higher than that of men doing the same work was in breach of the principle of equal pay laid down by Article 141 of the EC Treaty, the Insurance Court reached the same conclusion in its decision concerning P.N. on 25 February 2003. The person concerned was a former employee of the Finnish military service. Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that: “No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.” Article 15 of the Constitution provides that the property of everyone is protected. Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3 of the same Act provides that: “An employer's conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer's service.” Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that: “The Trustees of the Bank shall confirm the Bank of Finland's Pension and Survivors' Pension Regulations and issue regulations concerning the management of the Bank's pension liability, upon proposal of the Directorate.” The Act does not provide any means to appeal against the decisions of the Trustees of the Bank. Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following: “The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases. The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.” Section 33, subsections 1-3, of the same Act provide the following: “An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974). Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court. Decisions of the Board concerning pension can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply. Section 58, subsection 1, of the same Act provides that “[t]he right of an employee of the Bank of Finland to a pension paid from the Bank's funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors' pensions and other benefits which are payable from the state's funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors' pensions are granted by the Directorate of the Bank.” More detailed provisions on the payment of pensions and survivors' pensions and pension cover in other respects are contained in the Bank's Pension and Survivors' Pension Regulations (Suomen pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank's proposals. Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows: "Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.” The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of Section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age of women was raised from 55 to 60 years but the retirement age of men remained unchanged, that is, 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter. For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner: "However, as of 1 January 1994, the earlier provision is applicable both to women who have entered service in the Bank prior to 3 May 1977 and to men who have entered service in the Bank before that date. The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement." | 0 |
train | 001-108352 | ENG | LVA | ADMISSIBILITY | 2,011 | SULCS v. LATVIA AND OTHER APPLICATIONS | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 1. The applicants are Latvian nationals, except the applicant Aleksandrs Ļebedevs (application no. 52525/10) who is a non-citizen of the Republic of Latvia. Their names, dates of birth, places of residence and the dates of introduction of applications are listed in the appendix to this decision. 2. According to the amendments to the Law on Maternity and Sickness Insurance (“Par maternitātes un slimības apdrošināšanu”), from 1 January 2008 the parental benefit (vecāku pabalsts) was allocated to socially insured persons (to one of the parents or a guardian) who either did not gain income because s/he was on parental leave or, on the contrary, did not use the parental leave and continued working. The benefit was paid until the child reached the age of one. 3. The applicants’ children were born in the period between December 2008 and June 2009, except three applicants whose children were born shortly afterwards (see the appended list). 4. By virtue of a decision of the State Social Insurance Agency (“VSAA”) the applicants, whose children were born before June 2009, were entitled to a parental benefit in the amount of 70% of the average salary calculated for the purposes of social insurance deductions. Until June 2009 the applicants received the parental benefit in full amount and continued working. 5. On 16 June 2009 the Parliament of Latvia introduced changes to the Law on Maternity and Sickness Insurance which came into force on 1 July 2009 and deleted, inter alia, the provision according to which the parental benefit could be allocated to a parent or a guardian who was not on a parental leave but continued working. Section 5 of the Law on Payment of State Pensions and Benefits during the Period from 2009 to 2012 (thereinafter – Law on Payments) (Par valsts pensiju un valsts pabalstu izmaksu laika periodā no. 2009. gada līdz 2012. gadam), which was adopted on the same day, provided for a transitional period of the aforementioned amendments. In particular, it provided that starting from 1 July 2009 to 2 May 2010 the parents (guardians) who gained income during the maternity period should receive 50% of the parental benefit allocated to them. 6. Each applicant submitted a constitutional complaint seeking the Constitutional Court to find that provision 5 of the Law on Payments run contrary to Articles 1, 91 and 110 of the Constitution. They argued that by virtue of the decision of the VSAA they were entitled to a parental benefit, and that, therefore, the legislative changes infringed their legitimate expectations to receive the parental benefit in full amount until the child reached the age of one. The applicants whose children were born after June 2009 argued that they had the same legitimate expectations arising from the law in force at the time when they planned their family. 7. The Constitutional Court on 15 March 2010 found that the contested provision was constitutional. Firstly, it concluded that the employed and unemployed parents were not in a comparable situation, therefore differentiated benefit rates did not lead to unequal treatment. Secondly, the Constitutional Court recognised that even if the parents had had legitimate expectation to receive the parental benefit in full amount, the contested measure in the particular economic situation in Latvia had a legitimate aim and it did strike a fair balance between the general interests and the applicants’ rights: “9.7 ... [The amendments to the social insurance benefits in force as from 1 January 2008] caused a situation that families could choose to attribute parental benefit to the parent who received higher remuneration before the birth of a child. For instance, in a family where one of the parents was unemployed before the birth of a child, whilst the other parent was employed, the benefit was allocated to the one who was employed and received a wage ... rather than the one who was not employed and was on a parental leave. However, in cases when both parents were employed before the birth of the child, the family asked to allocate the parental benefit to the one who received a higher salary, even thought de fact it was the other parent who was on the parental leave.... . Such application of the parental benefit was in conflict with the conclusions made in the judgment no. 2006-07-01 by the Constitutional Court regarding the effective social insurance system of the State because in the result of this a group of persons was formed who were not socially insured during the childcare period. For instance, if parental benefit was allocated to an employed parent who had a higher wage, social insurance payments were made from the wage of this particular person. However, the other parent who was on childcare leave and did not receive parental benefit, was not socially insured since he or she received neither benefit, nor wage. Therefore persons could not receive any other social insurance services because they have not made social insurance payments for almost a year. Moreover, the newly established type of insurance, i.e. parental insurance did not provide for an additional social insurance payment rate, therefore it deteriorated the situation in the State social insurance budget. One of the reasons of such a huge deficit in the social insurance budget was inconsiderate definition of parenting benefit as a type of social insurance. In 2008, approximately 66.7 million lats were spent for the disbursement of this benefit (when introducing this benefit, it was planned to use about 26 million lats), and already 43 million lats were used for this purpose in the first half of 2009 before the contested provision was adopted. (...) 20. The contested provision was adopted during economic recession in Latvia .... In the second quarter of 2009, Latvia underwent the most rapid reduction of economic activities in the entire European Union. ... During this period, the financial deficit of the state consolidated budget reached 449.9 million lats or approximately 3.5 percent from the Gross Domestic Product, and it was estimated that the deficit may reach 1.3 milliard lats or approximately 9.5 percent from the Gross Domestic Product by the end of 2009. As a result, both the functioning of the State and economic growth in the foreseeable future would be endangered... (...) 24. If amendment of legal regulatory framework serves for the benefit of the society, then restriction of the legal trust of persons is permitted. The contested norm has been adopted with the purpose to balance revenues and expenses of the State special budget of social insurance. Economic recession denied the possibility for the State to guarantee such amount of social security that was established during the period of economic growth of the State. If no measures were taken to solve the situation, this would have influenced the possibility of the State to ensure the right of persons to social security and to guarantee sustainability of social security system. This would not comply with the principle of a socially responsible State. Consequently, restriction of the right of employed parents to receive parental benefit at full extent during the transitional period has been established with a view to ensure substantial interests of the society. In the result of this, a fair balance between restriction of legal security of a person and the right of the society to a sustainable State social insurance system and balanced State budget was ensured”. 8. Finally, the court recognised that the reduced amount of the benefit to employed parents in the transitional period was a proportional measure in that the employed parents still continued to receive both the salary and 50% of the reduced parental benefit. Consequently, their family income increased in comparison to the unemployed parents who received only the benefit. 9. The dissenting opinion to the aforementioned judgment of the Constitutional Court stated: “It has been concluded in the Judgment that a transitional period of 306 days has been observed, which guarantees protection of legitimate expectations, whilst the amount of benefit to be disbursed has only been reduced (see: Para 19 – 23 of the Judgment). I do not share this point of view. Even based on the strictest criteria for assessing legitimate expectations, the above mentioned transitional period could only be applied to those persons who have not been calculated and allocated the benefit before coming into force of the Contested Norm. It would be more appropriate for a socially responsible State not to change the amount of the benefit regarding all children who were incepted before coming into force of the Contested Norm. However, the amount of benefit for persons, to whom it has already been granted, was reduced in half within the term of two weeks (the contested norm was adopted on 16 June 2009 and came into force on 1 July of the same year). In that short time, no one could change their life. For instance, those person who decided to take a child care leave because of the amendments to the legal regulatory framework, could not implement their intention because, pursuant to Section 156 (2) of the Labour Law, an employee has a duty to notify the employer in writing one month in advance of the beginning and the length of the parental leave or parts thereof”. 10. Pursuant to Article 91 of the Constitution (Satversme), all human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind. 11. Article 110 provides that the State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence. 12. The law defines the state social benefit as a State monetary support, such as, for instance, child-care benefit, to individuals belonging to certain categories in situations when they bear additional expenditures or when those individuals do not gain income, and the compensation is not provided from State social insurance scheme. It is paid from the State budget. 13. Section 10 provided that parental benefits were allocated to socially insured persons (to one of the parent or a guardian) who either did not gain income because s/he was on parental leave or, did not use the parental leave and continued working. The benefit was paid until the child reached the age of one. 14. The travaux préparatoires to the Law on State Social Insurance, which introduced the aforementioned amendments of 1 January 2008 (see paragraph 12, above) highlighted certain threats to the sustainability of the proposed model (as cited by the Constitutional Court in the judgment of 15 March 2010): “.... [With the amendment] it was planned to disburse parental benefit to employed persons without restrictions and at full extent, these persons also receiving labour incomes; however this does not comply with the essence of social insurance. Second, introduction of parental benefit would be ensured in the frameworks of the present social insurance payment rate; therefore this would negatively influence social insurance special budget in the long term. Consequently, according to the prognosis of the social insurance budget model, the reserve accumulated in the social insurance special budget would be used 10 years earlier, i.e. already in 2032 after introduction of parental benefit and disbursing it from the state social insurance budget in the frameworks of the actual social insurance payment rate”. 15. Paragraph 1 of section 5 provides that an employed or a self-employed person who was granted a parental benefit with respect to a child born until 2 May 2010 shall receive the parental benefit in the amount of 50% of the amount of the benefit granted. 16. The travaux préparatoires to the aforementioned law provided that it shall ensure functioning of the fundamental principle of state social insurance. Namely, the State social insurance substitutes certain income in a situation when a person loses earning from labour. If a person takes care for a child aged up to one year and at the same time continues working, s/he does not lose the income from labour. Moreover, persons who receive both a wage and a parental benefit enjoy better circumstances when compared to those parents who are on a childcare leave and receive parental benefit only. 17. The ILO Maternity Protection Convention (revised) of 15 June 2000 (ratified by Latvia on 14 April 2006 and came into force on 9 February 2009) with respect to maternity benefits provides: Article 6 1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5. 2. Cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living. 3. Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 4 are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the woman’s previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits. 4. Where, under national law or practice, other methods are used to determine the cash benefits paid with respect to leave referred to in Article 4, the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph. 5. Each Member shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of the women to whom this Convention applies. 6. Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or in any other manner consistent with national practice, she shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance. 7. Medical benefits shall be provided for the woman and her child in accordance with national laws and regulations or in any other manner consistent with national practice. Medical benefits shall include prenatal, childbirth and postnatal care, as well as hospitalization care when necessary. 8. In order to protect the situation of women in the labour market, benefits in respect of the leave referred to in Articles 4 and 5 shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice... | 0 |
train | 001-76135 | ENG | HRV | CHAMBER | 2,006 | CASE OF BOZIC v. CROATIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Christos Rozakis | 4. The applicant, Mrs Dragica Božić, is a Croatian national, who was born in 1943 and currently lives in Sotin, Croatia. 5. On 27 September 1991 the Croatian Pension Fund, Sisak Office (Republički fond mirovinskog i invalidskog osiguranja, Područna služba u Sisku – the Sisak Office) issued a decision granting the applicant the right to a widow’s (family) pension as of 6 August 1991. However, no payments were made until 1 August 1997. 6. On 18 September 1997 the applicant instituted administrative proceedings in order to recover the pension instalments due. 7. On 14 June 1999 the Sisak Office dismissed her request. It found that the payment of her pension was stopped between 6 August 1991 and 31 July 1997 since during that period the applicant had resided in the occupied areas of Croatia and her address had been unknown. On 9 July 1999 the applicant appealed against that decision. 8. On 19 June 2000 the Croatian Pension Fund, Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba – the Central Office) quashed the first-instance decision for factual errors and remitted the case. 9. In the resumed proceedings, the Sisak Office dismissed the applicant’s request on 9 October 2000. The applicant appealed. 10. On 9 April 2001 the Central Office again quashed the first-instance decision and remitted the case. 11. On 22 August 2001 the Sisak Office for the third time dismissed the applicant’s request. The applicant appealed. 12. On 15 November 2001 the Central Office for the third time quashed the first-instance decision for factual shortcomings and remitted the case. It instructed the Sisak Office to enquire whether the applicant had received a pension from the authorities that had exercised control over the occupied territory. 13. In the subsequent proceedings, on 16 May 2002 the applicant lodged an appeal for failure to respond under the Administrative Procedure Act (see paragraph 21 below) since the Sisak Office did not render a decision within the statutory time-limit of two months. Given that the Central Office also failed to decide on this appeal within the statutory time-limit of two months, on 17 December 2002 the applicant brought an action for failure to respond (see paragraph 22 below) in the Administrative Court (Upravni sud Republike Hrvatske). The applicant subsequently withdrew this action since in January 2003 the first-instance decision had been rendered. 14. On 29 January 2003 the Sisak Office accepted the applicant’s request in part. It awarded her the pension instalments as of 1 October 1994 and dismissed her request for the instalments due prior to that date. The applicant appealed. 15. On 20 May 2003 the Central Office dismissed the applicant’s appeal. 16. On 1 July 2003 the applicant brought an administrative action in the Administrative Court challenging that decision. 17. On 27 January 2005 the Administrative Court gave judgment dismissing the applicant’s claim. 18. On 7 March 2005 the applicant lodged a constitutional complaint with the Constitutional Court against that judgment. The proceedings are currently pending before that court. 19. Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” 20. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske) as amended on 15 March 2002, Official Gazette nos. 29/02 of 22 March 2002 and. 49/02 (consolidated text) – “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” 21. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) provide as follows: Section 218(1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months. Section 218(2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed. Section 247(1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal. Section 246(1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case-file. Section 246(2) provides that if the case-file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final. 22. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows: Section 26(1) provides that if the appellate authority fails to give a decision on a party’s appeal against the first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed. Section 26(2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court. Section 26(3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party’s application within sixty days, the party may submit his or her application to the appellate administrative authority. Against the latter authority’s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision, the party may bring an administrative action under the conditions set out in paragraph 1. Section 42(5) provides that when the Administrative Court, following the action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64). Section 64(1) provides that, in the execution of the judgment rendered under section 42(5), the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court. Section 64(2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority. 23. In case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional Court was seized under Section 63 of the Constitutional Court Act to examine the length of administrative proceedings instituted in July 1996 when the complainant had brought an action in the Administrative Court for the Ministry of Defence’s failure to give a decision in his case. In October 1998 the Administrative Court ordered the Ministry to give a decision within 30 days. The Ministry gave a negative decision in July 1999. The complainant then brought a second administrative action, challenging that decision. In September 2000 the Administrative Court quashed the impugned decision and remitted the case. The Ministry again gave a negative decision and served it on the complainant in January 2004. On 18 February 2004 the complainant had brought a third administrative action, which was dismissed by the Administrative Court in June 2004. Meanwhile, on 25 February 2004 he lodged his constitutional complaint arguing that the Constitutional Court should, like the European Court of Human Rights, take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time. Following its previous practice (decisions no. U-III-2467/2001 of 27 February 2002, and U-IIIA/3638/2003 of 18 February 2004), the Constitutional Court held that only the inactivity of the judicial authorities was relevant for a breach of Article 29 § 1 of the Constitution. In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time-limits (see paragraphs 21 and 22 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third administrative action and lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days. | 1 |
train | 001-58281 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF SÜREK v. TURKEY (No. 3) | 2 | No violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | John Freeland;Luzius Wildhaber;Paul Mahoney | 8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul. 9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul. 10. In issue No. 42 of the review, dated 9 January 1993, a news commentary entitled “In Botan the poor peasants are expropriating the landlords!” was published. The relevant parts of this news commentary read: “... ‘The waves of the earthquake centred on Botan have reached all of Kurdistan. The national liberation struggle, growing like the ripples caused by a stone cast into a pool of water, has already gone past Botan in waves, currently embracing 50 districts in 8 provinces in the active front of armed struggle.’ PKK [Kurdistan Workers’ Party ] sources briefly describe the extent of the national struggle in Kurdistan as follows: the said 8 provinces (together with their districts) are Hakkari, Şırnak, Siirt, Mardin, Batman, Urfa and Diyarbakır; while the provinces of Van, Malatya, Bitlis, Muş and Gaziantep and their districts are described as being partially involved in the war. The popular movements in the Botan area, where approximately 4.5 to 5 million Kurds live, which have developed with the rise of the national liberation movement, have made rapid strides in the years 1990-92. The political point reached in the area is that the State has almost become inoperative. ... The domain vacated by the State in the political sense has since been occupied by the PKK in the rural areas and H.E.P. organisations in the cities. ... Land cannot be redistributed before it is transferred to the free will of the Kurdish people, because it is inconceivable to distribute land that bears the seal of the Republic of Turkey. ... Today, our struggle is an external war directed against the forces of the Republic of Turkey. ... We want to wage a total liberation struggle. ...” 11. On 10 January 1993 the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) ordered the seizure of this edition of the review on the ground that, allegedly, it disseminated propaganda against the indivisibility of the State. 12. In an indictment dated 28 January 1993, the Public Prosecutor at the Istanbul National Security Court charged the applicant, being the owner of the review, with disseminating propaganda against the indivisibility of the State. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (-“the 1991 Act”; see paragraph 16 below) on account of the publication of the above news commentary, which concerned, inter alia, the activities of the PKK. 13. In the proceedings before the National Security Court, the applicant denied the charges. He pleaded that the commentary on which the charges were based in fact criticised the activities of the PKK. He invoked Article 10 of the Convention and referred to the case-law of the Commission and the Court. He stated that pluralism of opinions, including those opinions which shock or offend, is essential in a democratic society. He argued that the provisions of section 8 of the 1991 Act restrict the right to freedom of expression in contravention of the Turkish Constitution and the criteria laid down by the case-law of the Commission and the Court. 14. In a judgment dated 27 September 1993, the National Security Court found the applicant guilty of making propaganda against the indivisibility of the State. The applicant was first sentenced to a fine of 100,000,000 Turkish liras (TRL). Thereupon the Court, considering the good conduct of the applicant during the trial, reduced the fine to TRL 83,333,333. The National Security Court, considering those parts of the news commentary cited at paragraph 10 above in the light of the article as a whole, observed that it referred to certain parts of Turkey as “Kurdistan”. Moreover, in the words of the Court, it described the acts of the “PKK terrorist organisation” as a national liberation struggle, which amounted to propaganda aimed at undermining the indivisibility of the State. 15. The applicant appealed. He, inter alia, reiterated the defence he had relied on before the National Security Court. On 18 February 1994 the Court of Cassation dismissed the appeal, upholding the cogency of the National Security Court’s assessment of evidence. 16. The relevant provisions of the Press Act 1950 read as follows: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” 17. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: (before amendment by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” (as amended by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras… …” (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” 18. The relevant provisions of domestic law governing the organisation and procedure of the National Security Court are quoted in paragraphs 3236 of the Sürek v. Turkey (no. 1) judgment, which is being delivered on the same date as the present judgment. | 1 |
train | 001-68772 | ENG | FRA | ADMISSIBILITY | 2,004 | EUROFINACOM v. FRANCE | 1 | Inadmissible | null | The applicant, Eurofinacom, is a company formed under French law whose registered office is in Paris. It was represented before the Court by Mr P. de Fontbressin, a member of the Paris Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Justice. The applicant company provided a data-communications service that was accessible by a dedicated terminal (Minitel), under an agreement with France Télécom. The service could be accessed by typing in the code “36-15 ALINE”. It provided messaging and a mailbox system enabling online users to communicate with one another; users would choose a pseudonym (referred to as a “pseudo”) and could also supply a brief description of themselves (“CV”) for consultation by others. The public prosecutor's office suspected that the service was being used by prostitutes to contact potential clients and ordered a preliminary investigation. The police reported on 30 December 1996 that in the course of their inquiries officers had accessed 36-15 ALINE using the pseudo “AAA”. After consulting the CVs of “Lola massage”, “Claire 37 years old”, “Katy”, “Spanker”, “Bunny rabbit” , “Helena 38 years old”, “YW black s[eeks]”, “Almond eyes”, “Student”, “Katy the First”, “Elodye” and “Male slave” (the report did not state whether the CVs related to prostitution) they sent the following message to some of the correspondents: “terms”. “Lola massage” replied: “My rate is 1,000 francs for a RDV with sublime massage of the entire body Paris 16 Foch for further info your tel? thank you or write to me at Mbx Lola massage”. “Spanker” replied: “1,000”. “Helena 38 years old” replied: “1,200”. In response to a second message enquiring “How much?” “YW black s[eeks]”, replied: “tel dst 1,500”. On 17 April 1997 the Principal Public Prosecutor's Office lodged an application with the President of the Paris tribunal de grande instance for the appointment of a representative ad litem (mandataire de justice) to represent the company in criminal proceedings (Article 706-43 of the Code of Criminal Procedure). The application was worded as follows: “The Principal Public Prosecutor ... informs the court of the following: Eurofinacom S.A.R.L. ... operates a data-communications service called '36-15 ALINE'. Inquiries into this data-communications service have revealed that it acts as an intermediary between persons engaged in prostitution and their potential clients. This constitutes the offence of living on immoral earnings with the aggravating circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o) and 225-7 (3o) of the Criminal Code. Mr Valéry Sourieau, the manager of Eurofinacom S.A.R.L. has therefore been summoned by the public prosecutor's office under the direct committal procedure. Eurofinacom ... has for the past eighteen months achieved a monthly turnover of approximately 1,720,000 francs from '36-15 ALINE' alone. It would therefore appear that the offence of living on immoral earnings of which Mr Valéry Sourieau stands accused in his capacity as the de jure representative was committed on behalf of Eurofinacom. Criminal proceedings may therefore be brought against the company Eurofinacom in accordance with Article 121-2 of the Criminal Code. However, since the company's de jure representative is himself charged with the same offence, a representative ad litem will need to be appointed to represent Eurofinacom. For this reason, the President of the Paris tribunal de grande instance is asked to make an order under Articles 121-2 and 225-12 of the Criminal Code and Article 706-43 of the Code of Criminal Procedure appointing a representative ad litem to represent the Eurofinacom company in criminal proceedings in which it will be charged with: Having in Paris and on the national territory in 1995, 1996 and 1997, in particular on 30 December 1996, and 2, 3 and 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service called '36-15 ALINE' which it provided, with the [aggravating] circumstance that it was committed against several people, contrary to Articles 225-5, 225-6 (1o), 225-7 (3o) and 225-12 of the Criminal Code.” By an order of 17 April 1997, the President of the Paris tribunal de grande instance appointed Ms “Hélène Da Camara, judicial administrator, to represent Eurofinacom S.A.R.L. in criminal proceedings instituted on a summons by the public prosecutor's office under the direct committal procedure.” On 28 April and 12 May 1997 the public prosecutor's office summoned the applicant company and its manager, Mr Sourieau, to appear under the direct committal procedure at a hearing before the Criminal Division of the Paris tribunal de grande instance (“the Paris Criminal Court”) on 26 June 1997. They were accused of having, from 1995 to 7 January 1997, acted as an intermediary between two people, one of whom provided services as a prostitute used or paid for by the other, by making available to those concerned a data-communications service 36-15 ALINE which it provided with the [aggravating] circumstance that it was committed against several people. On 20 May 1997 the applicant company's shareholders resolved at an ordinary general meeting convened on special notice to appoint Mr Jean-Claude Rossignol to represent it in the proceedings and to instruct a lawyer. Mr Rossignol informed the Principal Public Prosecutor of this in a letter of 12 June 1997. At the hearing on 26 June 1997 counsel for the applicant company informed the Paris Criminal Court that, pursuant to Article 706-43 of the Code of Criminal Procedure, the company had appointed Mr Rossignol to represent it and had duly informed the court. He submitted that the appointment of a representative ad litem to represent the company was “superfluous” and invited the court to accept Mr Rossignol as the sole representative. Noting that the representative ad litem's appointment under Article 706-43 of the Code of Criminal Procedure was “prior in time and valid”, the Paris Criminal Court found that the company was lawfully represented by Ms Da Camara and that it was Mr Rossignol's appointment that was superfluous. The applicant company was represented in court by a lawyer chosen by Ms Da Camara. In a judgment of 9 October 1997 the Paris Criminal Court found Mr Sourieau and the applicant company guilty of the following offences: “living on immoral earnings: acting as an intermediary between a person engaged in prostitution and the person employing him or her” and “living on immoral earnings aggravated by the fact that the offence was committed against several people”. It imposed a fine of 300,000 French francs (FRF) on Mr Sourieau and FRF 5,000,000 on the applicant company and ordered them jointly to pay damages of FRF 200,000 to an association that had joined the proceedings as a civil party. It stated in its judgment: “... The investigation and in particular the photographs of the connection to the Minitel server 36-15 ALINE and the pages that followed show that, although it is stated that 'pseudos and CVs that are accessible to all users are constantly monitored and those containing a telephone number or messages relating to pornography, prostitution or the incitement of minors to immorality or illegal practices will be immediately disconnected', prostitutes are nevertheless put directly in touch with anyone wishing to reply to the messages. The subscribers with the telephone numbers which appeared on the 36-15 ALINE server were traced and interviewed by police officers. [E.S.] stated that she had been engaged in prostitution for more than two years under the pseudonym 'EVA 93' through the intermediary of 36-15 ALINE and posted the message: 'Pretty blonde 38 years old, naughty underwear, 1m 65 – 57 kg – 95 bust'. She said that she had never been disconnected from the server and had noticed that pseudos such as 'WHORE' were not disconnected either. [C.L.], whose pseudonym is COCO, stated that she posted the same type of message with a view to prostitution and that while she was not permitted to say in her CV that she received customers, 'this was nevertheless understood, as people are not stupid'. [N.B.], whose pseudonym is LINDA, was working as a prostitute in avenue Victor Hugo when she was told of the Minitel by prostitute friends who said that it could help her to find clients from the comfort of her home. She stated that she had then learnt how to go online, to engage in conversation on 36-15 ALINE and to provide a description of herself: 'brunette, 1m 70, long hair, bust 95 B, 38 waist and 55 kg'. She said that it was 'more comfortable than being on the game in the street'. [M.B.] (alias CHRISTINA or LYDIA), [N.K.] (alias MATHILDE or ORNELLA), [L.G.], [J.D.] (alias VANESSA, CELIA or JOY) referred to their financial difficulties and their desire to earn money by meeting men through the server. They said that they engaged in occasional prostitution. Police officers from the Vice Squad discovered a number of wholly unambiguous messages on 36-15 ALINE: 'CV of Lola massage': rate 1,000 francs; 'CV of Bunny rabbit': brunette – long hair, 170 cm, 55 kg, 85 bust, 30 years old, cuddly, mischievous, for moments of togetherness; 'CV of Spanker': exquisite and arousing, spanking for Mr Motivated, 115E bust, tall, brunette, 40 years old, Parisian; 'CV of HELENA' very pretty Italian redhead 38 years old, shaven, sensual and refined, very sexy; 'CV of male slave': 40 year old genuine male slave trained by mistresses and CPL very good practice of submission either alone or with other male or female submissives for an evening or for sessions; genuine, not fantasist PARIS or Paris area. All these connections indicate that the CVs and messages are manifestly prostitution-related. Persons wishing to offer their services as prostitutes use a pseudonym, post a CV on the 36-15 ALINE network, open a data-communications mail account in which they receive messages to which they respond with a rate and telephone number and arrange meetings with interested clients. Evidence of this modus operandi exists in the form of photographs taken by police officers. Further, a review of previous cases handled by the Vice Squad has revealed that both male and female prostitutes have said that they used the 36-15 ALINE server to offer their services as prostitutes. In sum, there is ample proof that the 36-15 ALINE server was used in connection with prostitution. At the hearing Valéry Sourieau did not dispute that he was responsible for monitoring the messaging service to ensure the proper functioning of the service; he said that he supervised the teams of monitors and the pseudos registered on the server and had no hesitation in disconnecting non-compliant CVs. He said in the course of the investigation that he was no fool and was aware that many of the exchanges that took place on 36-15 ALINE involved men and women offering services as prostitutes. The defendants point to precautionary measures that had been taken, essentially monitoring, as evidence of their good faith and of the lack of mens rea to commit the offence charged. However, that argument does not stand up to examination when the facts uncovered by the investigation are considered. No warning was issued or account disconnected in response to the simultaneous posting of numerous and, for the most part, wholly unambiguous pseudos, to the detailed CVs indicating measurements and the services on offer, or to the replies to messages setting out rates and telephone numbers. On the contrary, these facilities enabled clients to find and speak to prostitutes, who in this instance were women. The second argument advanced by the defendants is that it was impossible for them to intervene directly in the private sphere, the online discussions, without infringing the right to freedom to communicate in private. ... Eurofinacom S.A.R.L., the service provider, undertook to ensure constant monitoring of the service in accordance with Article 5-2 and Appendices 1 and 2 [of its] agreement. Appendix 1 contains a reminder of the main legislative provisions applicable to data communications including those concerning living on immoral earnings. The interactive data-communications service 36-15 ALINE is governed by Law no. 861067 of 30 September 1986, section 43 of which requires prior notice to be given to the Principal Public Prosecutor's Office of an intention to provide audiovisual-communication services. The circular issued on 17 February 1988 pursuant to the said section 43 adopts the definition of the notion of audiovisual-communication service. Thus, audiovisual communication means a message intended for either the public generally or sections of the public, that is to say a group of undifferentiated people whose membership does not depend on considerations based on personal attributes. Private correspondence means a message solely intended for one or more specific, identifiable individuals or legal entities. The court notes that in the present case prostitutes use the 36-15 ALINE service to make non-exclusive offers open to anyone wishing to respond who is then given a rate which is uniform at this stage of the exchange. The exchange or discussion on the server does not acquire the character of private correspondence, owing to the fact that the advertisements and rates are available to all users of the service. On the other hand, the finalisation of the agreement leads to a private telephone conversation between specific individuals which is covered by the rules of confidentiality. In these circumstances, it is established that Valéry Sourieau and Eurofinacom S.A.R.L. allowed advertisements to be published without any proper supervision. A prostitution service involving a number of people developed through the intermediary of the 36-15 ALINE service. It follows that all the constituent elements of the offence of living on immoral earnings with aggravating circumstances are present and that the charges against the defendants have been made out. ...” Following a request dated 2 June 1998 by the person the applicant company had named as its representative, the President of the Paris Criminal Court directed on 9 June 1998 that Ms Da Camara's appointment under the order of 17 April 1997 would cease, as “Eurofinacom is now duly represented in the criminal proceedings by Mr Jean-Claude Rossignol”. The judgment of 9 October 1997 was upheld in its entirety by the Paris Court of Appeal in a judgment of 24 September 1998. The applicant company was represented in the Court of Appeal by a lawyer instructed by Mr Rossignol. The Court of Appeal dismissed an initial objection by the applicant company that the proceedings were a nullity owing to Mr Rossignol's exclusion from the proceedings in the Criminal Court. The Court of Appeal found that, since the Criminal Court had duly heard the submissions and arguments of counsel chosen by the judicial administrator, the applicant company had been properly represented and had had a fair trial at first instance. An objection by Mr Sourieau that the interception of private communications by the investigators was null and void was dismissed on the grounds that it had not been raised at first instance and could not be raised for the first time on appeal. On the merits, the Court of Appeal held, inter alia: “... Mr Sourieau's and Eurofinacom's guilt ... is established by the fact that the relevant messages related to prostitution ... and by the evidence of several female prostitutes who confirmed that they frequently used the '36-15 ALINE' server, as it was a well-known and habitual part of the prostitution network. They even said that it enabled them to avoid soliciting on the street and to select clients more easily. Mr Sourieau's affirmation that a team working twenty-four hours a day and seven days a week was assigned to monitor messages in order to eliminate those which were contra bonos mores is not accepted. Such affirmations are in total contradiction with the results of the investigation. Inquiries made by the police services who accessed the server on 12 December 1996, and 2, 3 and 7 January 1997 confirmed that none of the large number of prostitution-related messages were removed. Similarly, none of the prostitutes who used the server said in evidence that they had been 'disconnected' after posting their advertisements and some ... even categorically stated that they had not been. Accordingly, Mr Sourieau has not established good faith on this point. Likewise, it is not possible to accept Mr Sourieau's argument that he was prevented from directly intervening in online discussions because they were private communications. Referring to the impugned judgment, the Court of Appeal finds, like the court below, that the '36-15 ALINE' server did not constitute a messaging service intended for one or more specific, identifiable persons but a means of audiovisual communication offered to a non-specific and unidentifiable public. The server was accordingly governed by the Law of 30 September 1986, and in particular the provisions relating to the dignity of the human being and the preservation of law and order. In particular, it was established that the police accessed the server by following the standard procedure available to the public at large and that the connection ended when the two correspondents decided to transform the non-specific audiovisual communication into a personalised exchange on a private telephone line. Accordingly, despite the defendant's denials, it is established that Mr Sourieau knowingly supported an extensive prostitution network from which he made considerable profit. There is also no doubt that there was a community of interest between Mr Sourieau, Eurofinacom's manager, and the company he ran, as the investigation revealed that Eurofinacom's activity was in fact the alleged criminal activity and that it achieved an estimated turnover between July 1995 and December 1996 of 30,941,878 francs. ...” The applicant company and Mr Sourieau appealed to the Court of Cassation. They submitted, firstly, that there had been a violation of Article 6 of the Convention in that the trial court had ruled that the applicant company was represented in the proceedings by the representative ad litem appointed by the President of the Paris Criminal Court instead of the person it had appointed to that end. Relying, inter alia, on the same provision, they argued, secondly, that the alleged offence had been “the result of provocation and subterfuge”. Thirdly, they submitted that the offence of living on immoral earnings with aggravating circumstances had not, in the absence of a positive act, been made out in law, as a failure to act or acquiescence did not suffice. The Court of Cassation (Criminal Division) dismissed the appeal in a judgment of 12 January 2000. With regard to the first ground of appeal, it held: “... In dismissing Eurofinacom's application to set aside the proceedings at first instance on the grounds that it should not have been represented by Hélène Da Camara, the Court of Appeal noted that Article 706-43 of the Code of Criminal Procedure had been complied with and that the lawyer chosen by the company's representative had been able to present his observations and arguments at the hearing. In so doing, the Court of Appeal, which found that the company had been properly represented and assisted in the Criminal Court, applied the law correctly, notwithstanding the superfluous reasoning criticised in the second limb of the ground of appeal. The first subparagraph of Article 706-43 of the Code of Criminal Procedure provides that when criminal proceedings are brought against a legal entity and its de jure representative is also prosecuted for the same or a related offence, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings in accordance with the final subparagraph of that Article. ...” The second ground of appeal was dismissed for the following reasons: “According to the judgment of the Court of Appeal and the judgment of the court below which it upheld, the investigation essentially took the form of questions to persons engaged in prostitution who used the Eurofinacom Minitel server to find clients and the retrieval by the police officers themselves of information from the data communications network. The Court of Appeal declared Valéry Sourieau's objection that evidence obtained by the police through the interception of data communications should be excluded under Articles 100 et seq. of the Code of Criminal Procedure on the grounds that that provision had not been pleaded in the Criminal Court. In so doing, the Court of Appeal correctly applied the final subparagraph of Article 385 of the Code of Criminal Procedure. ...” Lastly, the Criminal Division dismissed the third ground of appeal, holding that that it merely contestedthat had been the subject of adversarial argument, all of which were within the unfettered discretion of the courts below. Article 121-2 of the Criminal Code lays down that legal entities may be held criminally liable for offences committed on their behalf by their organs or representatives. Such a finding will not preclude criminal liability on the part of individuals who commit the offence or act as accomplices. As regards the representation of a legal entity that is a defendant in criminal proceedings, Article 706-43 of the Code of Criminal Procedure provides: “The criminal proceedings shall be instituted against the legal entity acting through its de jure representative at the time the prosecution was brought. The de jure representative shall represent the legal entity at all stages of the proceedings. However, when criminal proceedings are brought against the de jure representative for the same or related offences, he or she may make an application to the president of the tribunal de grande instance for the appointment of a representative ad litem to represent the legal entity. The legal entity may also be represented by any person who, in accordance with law or the memorandum and articles of association, holds a delegated power to that end. A person who has been assigned the task of representing the legal entity under the second subparagraph shall inform the court before which the proceedings are pending of his or her identity by registered letter with recorded delivery. The same rule shall also apply if there is a change of de jure representative while the proceedings are pending. If there is no one qualified to represent the legal entity in accordance with the conditions set out in this Article, the president of the tribunal de grande instance shall, on an application by the public prosecutor's office, the investigating judge or the civil party, appoint a representative ad litem to represent it.” In a judgment of 9 December 1997 (Bulletin criminel no. 420), the Criminal Division of the Court of Cassation held: “By virtue of the first subparagraph of Article 706-43 of the Code of Criminal Procedure, if criminal proceedings have been instituted against a legal entity and its de jure representative or the person to whom power has been delegated under subparagraph 2 of the aforementioned provision has also been prosecuted for the same or related offences, a representative ad litem must be appointed to represent the legal entity in the criminal proceedings, in accordance with the procedure set out in the final subparagraph”. Article 225-5 of the Criminal Code provides: “Living on immoral earnings shall mean using any means whatsoever: 1º To aid or assist another to engage in prostitution or to protect a person so engaged; 2º To profit from or share the proceeds of another's engagement in prostitution, or to receive an allowance from a person who habitually engages in prostitution; 3º To recruit or procure a person for prostitution, to lead a person into prostitution or to exert pressure to make a person engage in prostitution or continue to do so. Anyone living on immoral earnings shall be liable to seven years' imprisonment and a fine of 150,000 euros.” Article 225-6, subparagraph 1o, of the Criminal Code lays down that “anyone who by any means whatsoever ... acts as an intermediary between two persons, one of whom engages in prostitution and the other of whom uses or pays for his or her services” shall be assimilated to a person living on immoral earnings and liable to the penalties laid down by Article 225-5. Article 225-7, subparagraph 3o, of the Criminal Code adds that the maximum sentence shall be ten years' imprisonment and a fine of 1,500,000 euros for anyone living on the immoral earnings where the offence is committed against several people. Law no. 98-468 of 17 June 1998 (published in the Official Gazette of 18 June 1998) inserted a tenth subparagraph which provides that the same maximum sentence shall apply when the offence of living on immoral earnings has been committed “with the help of a telecommunications network to disseminate messages to a non-specific public”. | 0 |
train | 001-89034 | ENG | RUS | CHAMBER | 2,008 | CASE OF YERKIMBAYEV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1962 and lives in Moscow. 5. The applicant and his wife obtained an occupation certificate for a municipal flat where another family, (“Family X”), lived at the material time. Family X had, in turn, received an occupation certificate for another flat. As the flat offered to Family X did not meet their expectations, the family refused to move out of the old flat. 6. On 15 October 1998 the applicant instituted proceedings in the Lyublinskiy District Court of Moscow seeking the eviction of Family X. 7. On 12 November 1998 the Municipal Housing Department of Moscow, who owned the flat at the material time, also lodged a claim for the eviction of Family X. 8. On 22 December 1998 the Lyublinskiy District Court in the absence of the defendants passed judgment in default, granting the applicant’s request and ordering the eviction of Family X. However, the latter appealed against the above judgment which was annulled as a result on 8 February 1999. 9. On 10 March 1999 the defendants lodged a counter claim, requesting, inter alia, that the applicant’s occupation certificate be declared void. 10. Meanwhile, in April 1999 the applicant and his wife privatised the flat in dispute and registered their property right in the State’s Register. 11. As regards the twelve hearings fixed between 18 May 1999 and 26 May 2000, two were adjourned following requests by the defendants and four were adjourned because the representative of the Municipal Housing Department of Moscow failed to attend. The remaining six hearings were adjourned in view of the non-attendance of the Ministry of Finance, which was responsible for the allocation of municipal housing to the defendants and whose attendance was required to verify the issue of the lawfulness of the provision to the defendants’ family of new housing and the taking away of the flat in dispute. It was not until the District Court imposed a fine on the Ministry amounting to 3,000 Russian roubles for non-attendance at the hearings that a representative of the Ministry finally appeared before the court. 12. On 26 May 2000 the Lyublinskiy District Court of Moscow granted the applicant’s claim and dismissed that of the defendant. 13. On 26 October 2000 the judgment was upheld on appeal by the Moscow City Court and entered into force. 14. On 14 December 2000 the bailiffs opened enforcement proceedings. 15. On 20 December 2000 and 15 May 2001 the enforcement proceedings were suspended until 9 April 2001 and 13 July 2001 respectively, pending the examination of the request filed by the defendants for supervisory review of the judgment of 26 May 2000, as upheld on appeal on 26 October 2000. 16. On 17 August 2001 the enforcement proceedings were again suspended following the subsequent request from the defendants for supervisory review of the above judgment. 17. On 19 April 2002 the Deputy President of the Supreme Court of Russia brought an application for supervisory review of the judgment to the Presidium of the Moscow City Court. 18. On 13 June 2002 the Presidium of the Moscow City Court quashed the judgment by way of supervisory review and remitted the case for fresh examination by a differently composed bench. 19. On 4 November 2002 the Lyublinskiy District Court granted the defendants’ counter claim and declared the occupation certificate issued to the applicant void. The court further obliged the Municipal Housing Department of Moscow to provide the applicant and his family with another flat. 20. Following the appeal lodged against the above judgment by the Municipal Housing Department of Moscow, on 18 March 2003 the Moscow City Court quashed the above judgment on appeal and remitted the case for fresh examination. 21. As regards the six hearings fixed between 14 May 2003 and 8 October 2003, one was adjourned because the judge was involved in another case, two were adjourned because of the non-attendance of the defendants and on their request, and three were adjourned because of the non-attendance of the Municipal Housing Department of Moscow. 22. On 8 October 2003 the Lyublinskiy District Court granted the applicant’s claim and dismissed that of the defendants. 23. On 26 February 2004 the Moscow City Court upheld the judgment on appeal. 24. On 23 March 2004 the bailiffs opened the enforcement proceedings. 25. On 29 June 2004 the defendants were evicted. The applicant and his family moved into the flat. | 1 |
train | 001-60924 | ENG | TUR | CHAMBER | 2,003 | CASE OF MAMATKULOV AND ABDURASULOVIC v. TURKEY | 2 | No violation of Art. 3;No violation of Art. 6 as regard the extradition proceedings;No separate issue under Art. 6 as regard the other complaints;Violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Elisabeth Palm;Gaukur Jörundsson | 12. The applicants were born in 1959 and 1971 and are currently in custody in the Republic of Uzbekistan. They are members of the Erk (“Freedom”) Democratic Party of Uzbekistan (O'zbekiston Erk Demokratik Partiyasi), an opposition party in the Republic of Uzbekistan. 13. On 3 March 1999 the applicant arrived in Istanbul from Alma-Ata (Kazakhstan), on a tourist visa. He was arrested by Turkish police at Atatürk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 14. The Republic of Uzbekistan requested the applicant's extradition under a bilateral treaty with Turkey. 15. On 5 March 1999 the Bakırköy Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. The applicant, who was assisted by his lawyer, was brought before the judge the same day and remanded in custody for forty-five days, in accordance with the European Convention on Mutual Assistance in Criminal Matters, which was opened for signature on 20 April 1959. 16. On 11 March 1999 the first applicant was interviewed by the judge of the Bakırköy Criminal Court. In an order made on the same day under the expedited-applications procedure the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but “ordinary criminal” offences. The judge also made an order remanding the first applicant in custody pending his extradition. The applicant, who was assisted by his lawyer and an interpreter, denied the charges and protested his innocence. 17. In written pleadings that were lodged at a hearing on 11 March 1999, the first applicant's representative argued that the applicant was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the first applicant had been in Kazakhstan at the material time and had asked the Turkish authorities for political asylum as his life was at risk. He argued that his client had been prosecuted for an offence of a political nature and, relying on Article 9 of the Turkish Criminal Code, asked the Criminal Court to refuse the Republic of Uzbekistan's request for extradition. 18. On 15 March 1999 the applicant appealed to the Bakırköy Assize Court against the order made under the expedited-applications procedure on 11 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 19 March 1999. 19. The applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, acting on a request for his extradition by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries to others by the explosion of a bomb in the Republic of Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 20. On 7 March 1999 the Bakırköy Public Prosecutor made an application to the investigating judge for the applicant to be remanded in custody. On the same day the applicant was brought before a judge, who remanded him in custody. 21. In a letter of 12 March 1999 the Fatih Public Prosecutor applied to the Fatih Criminal Court for a determination of the applicant's nationality and of the nature of the alleged offence. 22. In a decision of 15 March 1999, after hearing the applicant, the Criminal Court determined his nationality and the nature of the offence pursuant to Article 9 of the Turkish Criminal Code. It held that the offences with which he had been charged were not political or military in nature but “ordinary criminal” offences. It also made an order remanding the applicant in custody pending his extradition. 23. At a hearing on 11 March 1999 the applicant's representative submitted that the offence with which the applicant had been charged was political in nature and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the applicant had been in Turkey at the material time on a false passport. 24. On 18 March 1999 the applicant appealed to the Istanbul Assize Court against the judgment of 15 March 1999. The Assize Court examined the file that had been produced to it and dismissed the applicant's appeal on 26 March 1999. 25. On 18 March 1999 the President of the Chamber decided to “indicate to the Government, pursuant to Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to the Republic of Uzbekistan until the Court has had an opportunity to examine the application further at its forthcoming session on 23 March 1999”. 26. On 19 March 1999 the Turkish Cabinet issued a decree for the applicants' extradition. 27. On 23 March 1999 the Chamber decided to extend the interim measure indicated pursuant to Rule 39 until further notice. 28. On 27 March 1999 the applicants were handed over to the Uzbek authorities. 29. In a letter of 19 April 1999 the Government informed the Court that it had received the following assurances about the two applicants from the Uzbek authorities: (i) On 9 March and 10 April 1999 the Ambassador of the Republic of Uzbekistan transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor, stating: “The applicants' property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment”; (ii) The Uzbek authorities added “The Republic of Uzbekistan is a party to the United Nation's Convention against Torture and accepts and reaffirms its obligations to comply with the requirements of the provisions of that Convention both as regards Turkey and the international community as a whole”. 30. On 11 June 1999 the Government transmitted to the Court a diplomatic note dated 8 June 1999 from the Ministry of Foreign Affairs of the Republic of Uzbekistan setting out the following points: “It appears from investigations conducted by the Uzbek judicial authorities that Mamatkulov and Abdurasulovic have played an active role in planning and organising terrorist acts against the leaders of the Republic of Uzbekistan and its people since May 1997, as members of a criminal organisation led by C.H. and T.Y., who are notorious religious extremists. It appears from information obtained through cooperation with the intelligence services of foreign countries that Mamatkulov and Abdurasulovic have committed offences in Kazakhstan and Kyrgyzstan. Their indictment, which was drawn up on the basis of previously obtained evidence, contains a number of counts: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power by the use of force or by the overthrow of the constitutional order, arson, uttering forged documents and voluntary homicide. All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained. The assurances given by the Public Prosecutor of the Republic of Uzbekistan concerning Mamatkulov and Abdurasulovic comply with Uzbekistan's obligations under the United Nation's Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to the Supreme Court has been served on them. Arrangements for the accused's security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked. The defendant's trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representative of human-rights organisations also attend the hearings. Officials from the Embassy of the Republic of Turkey may also attend.” 31. In a letter of 8 July 1999, the Government informed the Court that by a judgment of 28 June 1999 the Supreme Court of the Republic of Uzbekistan had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment. 32. In a letter of 15 September 1999, the applicants' representatives said that they were unable to contact the applicants. They said that conditions in Uzbek prisons were bad and that prisoners were subjected to torture. They noted, inter alia: “... The applicants did not have a fair trial in the Republic of Uzbekistan. The rule requiring trials to be held in public was not complied with. Our only information about the applicants' trial comes from the Uzbek authorities. We wrote to the Uzbek Embassy in Ankara on 25 June 1999 requesting permission to attend the trial as observers in our capacity as lawyers, but have received no reply. As to the allegation that the applicants' trial was followed by 'national and international journalists and representatives from human-rights organisations', the only non-governmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial. Since the applicants' extradition, we have been unable to contact them either by letter or by telephone. We still have no means of contacting them. This state of affairs serves to reinforce our suspicions that the applicants are not being held in proper prison conditions. According to the letter sent by the Court [ECHR] on 9 July 1999 and information published in the press, the applicant Rustam Mamatkulov has been sentenced to twenty-years' imprisonment. That is the heaviest sentence that can be handed down under the Uzbek Criminal Code. Furthermore, if account is taken of the conditions of detention in Uzbek prisons, and in particular of the use of torture, it is very difficult for prisoners to serve their sentences in the prisons in proper conditions. Moreover, it is generally believed that certain prisoners, in particular those convicted for offences pertaining to freedom of expression, are given additional sentences.” 33. On 15 October 2001 the Ministry of Foreign Affairs for the Republic of Uzbekistan forwarded the following information to the Turkish Embassy: “On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the charges listed below and sentenced them to twenty-years' and eleven-years' imprisonment respectively: R. MAMATKULOV (a) Eighteen-years' imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely: (i) murder of two or more people, (ii) murder of a person on official duty or of a close relative of such a person, (iii) use of means endangering the lives of others, (iv) use of cruel means, (v) offence committed in the defendant's own interests, (vi) offence committed on the basis of religious beliefs, (vii) offence committed with the aim of concealing another offence or of facilitating its commission, (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation, (ix) repeat offence); (b) Eighteen-years' imprisonment pursuant to Article 155 § 3 (a) and (b) of the Criminal Code (terrorist offence); (c) Ten-years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Eighteen-years' imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Eighteen-years' imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Fifteen-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Twelve-years' imprisonment pursuant to Article 168 § 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception, by or in the interests of a group of individuals); (h) Ten-years' imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two-years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Eighteen-years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to twenty-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict-regime' penal institutions. R. Mamatkulov is currently serving his sentence in Zarafşan Prison, which is under the authority of the Office for Internal Affairs of the Province of Navoi. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001. Z. Abdurasuloviç ASKAROV (a) Ten-years' imprisonment pursuant to Article 28 and 97 of the Criminal Code (aggravated with aggravating circumstances, namely: (i) murder of two or more people, (ii) murder of a person on official duty or of a close relative of such a person, (iii) use of means endangering the lives of others, (iv) use of cruel means, (v) offence committed in the defendant's own interests, (vi) offence committed on the basis of religious beliefs, (vii) offence committed with the aim of concealing another offence or of facilitating its commission, (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation, (ix) repeat offence); (b) Ten-years' imprisonment pursuant to Article 155 § 2 (a) and (b) of the Criminal Code (terrorist offence, causing another's death); (c) Ten-years' imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Nine-years' imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Nine-years' imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Nine-years' imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples' health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Nine-years' imprisonment pursuant to Article 173 § 3 (b) (destruction of or intentional damage to property belonging to others by or in the interests of a group of individuals); (h) Ten-years' imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two-years' community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Ten-years' imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to eleven-years' imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in 'strict regime' penal institutions. Z. Askarov is currently serving his sentence in Şayhali Prison, which is under the authority of the Office for Internal Affairs of the Province of Kaşkadarya. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the 'Amnesty Decree' of 22 August 2001. 34. At the hearing on 23 October 2001, the Government informed the Court that on 19 October 2001, two officials from the Turkish Embassy had visited the applicants in Zarafşan Prison and Şayhali Prison, which are respectively 750 and 560 kilometres from Tashkent. According to the Embassy officials, the applicants were in good health and had not complained about their prison conditions either before or after trial. 35. On 3 December 2001 the Uzbek authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held. The doctors made the following findings: “... Mr Mamatkulov was imprisoned on 9 December 2000. He did not present any health problems on arrival. Examinations on 14 February 2000 and 2 April 2001 did not reveal any symptoms of pathology. On 19 November 2001 the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing. ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ...” ... Mr Abdurasulovic Askarov was imprisoned on 21 July 2001. He did not complain of any health problems on arrival. Examinations conducted on 25 July, 30 August and 23 October 2001 did not reveal any symptoms of pathology...” 36. To date, the applicants' representatives have been unable to contact the applicants. 37. Article 9 of the Turkish Criminal Code reads as follows: “The Turkish State shall not accede to a request for the extradition of an alien by a foreign country for offences that are political in nature or related thereto. When called upon to deal with a request by a foreign State for the extradition of an alien, the criminal court with jurisdiction for the place in which the person concerned is located shall determine that person's nationality and the nature of the offence. No request for extradition may be granted if the criminal court finds that the person concerned is a Turkish national or that the offence is political or military in nature or related to such an offence. If the criminal court finds that the person whose extradition is requested is an alien and that the offence is an ordinary criminal offence the request for extradition may be granted by the Government...” 38. Extradition between Turkey and the Republic of Uzbekistan is governed by the “Agreement for Mutual Assistance in Civil, Commercial and Criminal Matters between Turkey and the Republic of Uzbekistan”, which entered into force on 18 December 1997. Under the relevant provisions of that agreement, “each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions set out in this agreement, anyone found in its territory who is accused or has been found guilty of an offence committed within the jurisdiction of the other Party”. 39. Rule 86 of the Rules of Procedure provides: “The Committee may, prior to forwarding its views on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication.” 40. Rule 108 § 9 of the Rules of Procedure of the Committee against Torture enables interim measures to be adopted in proceedings brought by individuals alleging a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It reads as follows: “In the course of the consideration of the question of the admissibility of a communication, the Committee or the working group or a special rapporteur designated under rule 106, paragraph 3, may request the State party to take steps to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. Such a request addressed to the State party does not imply that any decision has been reached on the question of the admissibility of the communication.” 41. Article 41 provides: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” 42 Article 63 § 2 of the Convention states: “In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.” 43. Rule 25 provides: “1. At any stage of the proceedings involving cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court may, at the request of a party or on its own motion, order such provisional measures as it deems pertinent, pursuant to Article 63(2) of the Convention. 2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission. 3. The request may be made to the President, to any judge of the Court, or to the Secretariat, by any means of communication. In every case, the recipient of the request shall immediately bring it to the President's attention. 4. If the Court is not sitting, the President, in consultation with the Permanent Commission and, if possible, with the other judges, shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session. 5. The Court, or its President if the Court is not sitting, may convoke the parties to a public hearing on provisional measures. 6. In its Annual Report to the General Assembly, the Court shall include a statement concerning the provisional measures ordered during the period covered by the report. If those measures have not been duly implemented, the Court shall make such recommendations as it deems appropriate.” 44. Rule 25 provides: 1. In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons. 2. If the Commission is not in session, the President, or, in his or her absence, one of the Vice-Presidents, shall consult with the other members, through the Executive Secretariat, on the application of the provision in the previous paragraph. If it is not possible to consult within a reasonable period of time under the circumstances, the President or, where appropriate, one of the Vice-Presidents shall take the decision on behalf of the Commission and shall so inform its members. 3. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures. 4. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.” 45. In its decision of 26 July 1994 (Glen Ashby v. Trinidad and Tobago), the Committee dealt with the first case of a refusal by a State to comply with interim measures requesting it to stay execution of the death penalty. It pointed out that by ratifying the Optional Protocol, the State Party had undertaken to cooperate with the Committee in proceedings under the Protocol, and that it had not discharged its obligations under the Optional Protocol and the Covenant (Report of the Human Rights Committee, Volume I). 46. In its decision of 19 October 2000 (Piandiong et al v. The Philippines, Communication No. 869/1999 (15 June 1999), U.N. Doc. CCPR/C/70/D/869/1999), the Committee said: “5.1 By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Human Rights Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit in a State's adherence to the Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (Article 5 (1), (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views. 5.2 Quite apart, then, from any violation of the Covenant charged to a State party in a communication, a State party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views nugatory and futile... 5.4 Interim measures pursuant to rule 86 of the Committee's rules adopted in conformity with article 39 of the Covenant, are essential to the Committee's role under the Protocol. Flouting of the Rule, especially by irreversible measures such as the execution of the alleged victim or his/her deportation from the country, undermines the protection of Covenant rights through the Optional Protocol.” 47. In the case of a Peruvian citizen resident in Venezuela who was extradited to Peru despite the fact that interim measures had been indicated requesting a stay of extradition (Cecilia Rosana Núñez Chipana v. Venezuela, 10 November 1998, Committee against Torture, Communication No. 110/1998, § 8), the Committee against Torture expressed the view that the State had failed to “comply with the spirit of the Convention”. It noted: “... the State party, in ratifying the Convention and voluntarily accepting the Committee's competence under article 22, undertook to cooperate with it in good faith in applying the procedure. Compliance with the provisional measures called for by the Committee in cases it considers reasonable is essential in order to protect the person in question from irreparable harm, which could, moreover, nullify the end result of the proceedings before the Committee.” 48. In another decision that concerned the extradition to India of an Indian National resident in Canada (decision of 16 May 2000, T.P.S. v. Canada, Communication No. 99/1997) despite the indication of interim measures requesting Canada to stay the extradition, the Committee against Torture reiterated that failure to comply with the requested interim measures “... could ... nullify the end result of the proceedings before the Committee” (§ 15.6). 49. Provision is made for provisional measures to be ordered under the judicial settlement procedure in cases in which the Inter-American Court of Human Rights has jurisdiction and for precautionary measures under the procedure of individual petition to the Inter-American Commission of Human Rights. The Inter-American Court's power to order provisional measures is derived from the American Convention on Human Rights and the Commission's power to adopt precautionary measures from its Rules of Procedure (see paragraphs 42-43 above). The Inter-American Court has stated on several occasions that compliance with provisional measures is necessary to ensure the effectiveness of its decisions on the merits (see, among other authorities, the following orders: 1 August 1991, Chumină v. Peru; 2 July 1996, 13 September 1996, 11 November 1997, 3 February 2001, Loayza Tamayo v. Peru ; 25 May and 25 September 1999, 16 August and 24 November 2000, 3 September 2002, James and Others v. Trinidad and Tobago; 7 and 18 August 2000, 26 May 2001, Haitians and Dominican nationals of Haitian Origin in the Dominican Republic v. Dominican Republic; 10 August 2000, 12 November 2000, 30 May 2001, Alvarez et al v. Colombia; judgment of 21 June 2002, Hilaire, Constantine, Benjamin and Others v. Trinidad and Tobago). As regards the scope of its precautionary measures, the Inter-American Commission on Human Rights is bound by the recommendations it has adopted on individual petition. In its judgment of 17 September 1997 in the case of Loayza Tamayo v. Peru, (Inter-Am. Ct. H.R. (Ser. C) No. 33 (1997)) the Inter-American Court of Human Rights considered that the State “ha[d] the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which [was], indeed, one of the principal organs of the Organization of American States, whose function [was] 'to promote the observance and defense of human rights'...”. In two orders requiring provisional measures, the Inter-American Court of Human Rights ruled that the States Parties to the American Convention on Human Rights “must fully comply in good faith (pacta sunt servanda) with all of the provisions of the Convention, including those relative to the operation of the two supervisory organs of the American Convention [the Court and the Commission]; and, that in view of the Convention's fundamental objective of guaranteeing the effective protection of human rights (Articles 1(1), 2, 51 and 63(2)), States Parties must refrain from taking actions that may frustrate the restitutio in integrum of the rights of the alleged victims” (see the Orders of 25 May and 25 September 1999, in the case of James et al. v. Trinidad and Tobago). 50. Article 41 the Statute of the International Court of Justice provides for the adoption of provisional measures (see paragraph 41 above). The International Court of Justice has pointed out in a number of cases that the purpose of provisional measures is to preserve the respective rights of the parties to the dispute (see, among other authorities, the judgment of 27 June 1986, in the case of Nicaragua v. United States of America). In an order of 13 September 1993 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the International Court of Justice said (§ 35) that the power of the Court to indicate provisional measures: “... has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and ... the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent.” 51. In its judgment of 27 June 2001 in the LaGrand case (Germany v. United States of America), the International Court of Justice noted: “102. ... The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. 103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of 'the principle universally accepted by international tribunals and likewise laid down in many conventions ... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute' (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199). 52. Article 31 of the Vienna Convention of 1969, which is headed “General rule of interpretation”, provides: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” 53. In a briefing for the United Nations Committee against Torture that was made public in October 1999, Amnesty International stated: “... Amnesty International remains concerned that Uzbekistan has failed to implement its treaty obligations fully despite numerous, wide-ranging and officially endorsed national initiatives in the fields of human rights education and democratization and judicial and legislative reforms aimed at bringing national legislation into line with international standards. Since December 1997, when several murders of law enforcement officials in the Namangan region sparked a wave of mass detentions and arrests , the organization has received a growing number of reports of ill-treatment and torture by law enforcement officials of people perceived to be members of independent Islamic congregations or followers of independent imams (Islamic leaders). Hundreds of these so-called 'Wahhabists' were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards. The organization's concern was heightened in February 1999 when hundreds of people, men and women, were detained following a reported six bomb explosions in the capital Tashkent. This time the list of those reported to have been arrested, ill-treated and tortured included suspected supporters of the banned political opposition parties and movements Erk and Birlik, including family members and independent human rights monitors, as well as alleged supporters of banned Islamic opposition parties and movements, such as Hizb-ut-Tahrir. In the majority of these cases, if not all, that have come to the attention of Amnesty International, those detained were denied prompt access to a lawyer of their choice, to their families and to medical assistance. The responsible authorities, from procurators to courts at all levels and the parliamentary ombudsman, persistently failed to launch timely, full and independent investigations into widespread allegations of torture and ill-treatment. According to independent and credible sources, self-incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by Amnesty International as the basis for a guilty verdict. Amnesty International was disturbed by public statements by Uzbek officials, including the President of Uzbekistan, in the wake of both the Namangan murders and the Tashkent bombings, which, if not directly sanctioning the use of violence by state agents against certain sections of the population, could be perceived at the very least to condone the use of unlawful methods such as torture and ill-treatment. In April 1999, for example, President Karimov, portrayed as the guarantor of democracy and human rights, stated publicly that he was prepared to tear off the heads of two hundred people in order to protect Uzbekistan's freedom and stability... Amnesty International is concerned that such statements together with the authorities' persistent failure to initiate impartial and thorough investigations into allegations of torture and ill-treatment, may create an impression that torture and ill-treatment by law enforcement officials is acceptable, and even necessary conduct, and that they can engage in such conduct with impunity. This briefing does not attempt to be a comprehensive study of torture and ill-treatment in Uzbekistan. Instead it concentrates on those articles of the Convention which are most relevant to Amnesty International's current and most pressing concerns. Failure to ensure that all acts of torture are offences under the criminal law (Article 4) Uzbekistan fails to fully meet the requirements under Article 4 of the Convention to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature. Neither the constitution nor the criminal code, although respectively prohibiting and punishing acts of torture, contain a definition of torture as set out in Article 1 of the Convention. Article 26 of the Uzbek Constitution guarantees under point 2 that no one may be subject to torture, force, or other treatment which is cruel or demeaning to the dignity of the person. Article 235 of the criminal code criminalizes obtaining a confession by coercion. Although explicit in its description of prohibited methods of coercion (beatings, inflicting grievous or less grievous bodily harm, torture) and specific in naming the perpetrators (investigating and interrogating officers, procurators) the article is still far more narrow in its definition of torture than Article 1 of the Convention. The maximum penalty prescribed under this article is five to eight years' imprisonment. Other articles, including Article 110 of the Uzbek Criminal Code, punish various assaults but do not relate specifically to agents of the state... The Uzbek press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects. However, to Amnesty International's knowledge, in the period under review, none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organization has taken up has been charged under the above articles of the criminal code... Time and again Amnesty International has received credible reports that suspects were denied access to a lawyer of their choice. Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for several days, which is when the risk of torture or ill-treatment is the greatest. In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession. Meetings between lawyers and clients, when they are granted, are generally infrequent, because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain. Defence lawyers are rarely allowed to be present at all stages of the investigation... Article 17 of the Code of Criminal Procedure explicitly prohibits the use of torture and obliges judges, procurators, investigators and interrogators to respect a person's honour and dignity at every stage of legal proceedings. Nevertheless, Amnesty International has received countless reports from different sources – former prisoners, relatives of prisoners, defence lawyers, human rights monitors, international human rights organizations, diplomats, copies of court documents – that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel, inhuman or degrading treatment. ... Prison conditions Conditions under which detainees are held pre-trial are reportedly so poor as to amount to cruel, inhuman and degrading treatment. In 1997 the Uzbek authorities admitted that conditions of detention fall far short of the UN basic minimum standards for the treatment of prisoners. Overcrowding is the norm, with at least two inmates to a bunk bed, sleeping in turns. Inadequate sanitation, shortages of food and basic medication exacerbate the risk of disease, such as tuberculosis. Former prisoners have described punishment cells as underground 'holes', one square metre with standing room only near the door. The rest of the cell is said to be only 1.5 metres in height, allowing the prisoner only to crouch or sit. Cells are also said to be overrun with vermin. As with the conditions on death row, these allegations are difficult to verify independently given the Uzbek authorities' refusal to allow access to independent monitors.” 54. In its Annual Report of 28 May 2002, Amnesty International noted with respect to the Republic of Uzbekistan: “Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, such as Hizb-ut-Tahrir, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-state activities. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, particularly prison camps. Several prisoners, among them a prominent human rights defender, died in custody, allegedly as a result of torture. There were at least 22 death sentences, reportedly imposed after unfair trials, and at least four executions were carried out. ... In November Muhammad Salih, the exiled leader of the banned opposition Erk Democratic Party, was detained by Czech police at Prague airport, Czech Republic. He was remanded in custody while an extradition request from Uzbekistan was being examined. In December he was released and returned to Norway, where he had received refugee status in 1999, after Prague City Court ruled against extradition to Uzbekistan. In September President Karimov publicly stated that around 100 people were executed each year. In October the number of offences punishable by death was reduced to four. Allegations of torture and ill-treatment Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, including women, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-state activities. The courts were reported to have systematically failed to investigate or take into account the defendants' allegations of torture. Defendants accused of non-political criminal activities were also reported to have been tortured and ill-treated in detention in attempts to coerce confessions. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, especially in strict regime prison camps... ... In June, 73 ethnic Tajik mountain villagers were found guilty of collaborating with the IMU during their incursion into Uzbekistan in August 2000 and sentenced to between three and 18 years' imprisonment in four separate closed trials. This was despite earlier government assurances to the UN Human Rights Committee that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers. The group trials, which opened simultaneously and without prior notice at the end of May in Tashkent, were held in separate court buildings cordoned off by armed police. Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city. Only one foreign observer, representing the non-governmental organization Human Rights Watch, obtained access to one of the trials. All others, including foreign diplomats, local human rights monitors and the media, were barred. According to the Human Rights Watch observer, the prosecution failed to provide any substantive evidence to prove the defendants' guilt. All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice. In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges. They alleged that they had been forced to memorize and recite prepared confessions on film. Some of the men showed the court marks on their bodies allegedly caused by torture. The court, however, failed to take any of these allegations into consideration. ...” 55. Rule 39 of the Rules of Court empowers a Chamber or, where appropriate, its President, to indicate interim measures which it considers should be adopted. Past practice shows that in principle requests for interim measures under Rule 39 are made in cases in which there is an imminent danger to the applicant's life or of torture, or inhuman or degrading treatment or punishment. Such requests generally refer to Articles 2 and 3 of the Convention and concern a person's deportation, extradition or repatriation to his or her country of origin (whether it be the Contracting Party or another State) by the State against which the complaint has been lodged. 56. Rule 36 of the European Commission of Human Rights Rules of Procedure provided: “The Commission, or when it is not in session, the President may indicate to the parties any interim measure the adoption of which seems desirable in the interest of the parties or the proper conduct of the proceedings before it.” | 1 |
train | 001-106204 | ENG | POL | CHAMBER | 2,011 | CASE OF WERSEL v. POLAND | 4 | Violation of Art. 6-1+6-3-c | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | 5. The applicant, Mr Krzysztof Wersel, is a Polish national who was born in 1970 and is currently serving a prison sentence in Brzeg Prison. 6. The applicant has been in continuous detention from an unspecified date in September 2000 until the present day. 7. He was initially committed to Mysłowice Remand Centre. 8. In November 2000 he was transferred to Zabrze Remand Centre, where, as he submitted, he had been detained together with two or three other detainees in cells measuring 6 or 10 square metres. 9. In July 2001 the applicant was transferred back to Mysłowice Remand Centre, where he had been detained in overcrowded cells. In addition, the applicant, who was a non-smoker, had been exposed to cigarette smoke because smoking inside the cell was allowed. 10. From 31 December 2003 until an unspecified date in July 2005 the applicant was detained in Gliwice Remand Centre. He was assigned to a cell measuring 6 square metres which he had shared with two other detainees. 11. On an unspecified date in July 2005 the applicant was committed to Zabrze Remand Centre. He submitted that, initially, the conditions of his detention had been satisfactory. In his letter of 19 June 2006, however, he claimed that the establishment had become overcrowded just like all the other detention facilities. 12. The Government submitted that as of 26 November 2009 the applicant had been detained in Brzeg Prison, in a cell in which the statutory minimum space of 3 square metres per person had been respected. 13. On 7 October 2004 the applicant complained to the remand centre’s administration about overcrowding and bad living conditions. He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention. Moreover, the applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights. 14. On 27 October 2003 the Katowice District Court (Sąd Rejonowy) convicted the applicant of three counts of armed robbery and sentenced him to a prison term of three and a half years. During the first-instance proceedings the applicant was represented by a legal aid lawyer. 15. On 23 April 2004 the Katowice Regional Court (Sąd Rejonowy) upheld the above-mentioned judgment on appeal. During the secondinstance proceedings the applicant was also represented by a legal aid lawyer. To that effect the appellate court held that the applicant be exempted from all costs of the appellate proceedings, including legal assistance. 16. On 25 May 2004 the reasoned judgment was served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run. 17. On 26 May 2004 the lawyer instructed the applicant that her mandate had expired when the appellate proceedings had come to an end. If the applicant wished to have a cassation appeal lodged with the Supreme Court, he should make a new request for legal aid. 18. On 30 May 2004 the applicant prepared an application for legal aid and deposited it as out-going mail with the authorities of the Gliwice Remand Centre. His legal aid application was received by the Katowice Regional Court on 3 June 2004. 19. By an official letter of 22 June 2004 the registry of the Katowice Regional Court notified the applicant that his appeal for legal aid had been rejected. The court’s decision was not accompanied by any reasoned opinion. 20. On 24 June 2004 the applicant drafted his own cassation appeal and filed it with the Katowice Regional Court. 21. On 1 July 2004 the Katowice Regional Court requested the applicant to complete the procedural requirements by having his cassation appeal prepared and signed by a lawyer within 7 days. That request was served on the applicant on 5 July 2004. 22. On 6 July 2004 the applicant informed the Regional Court that he was unable to comply with the above-mentioned instruction because he had not been granted legal-aid. The applicant, once more, asked the court to grant him legal aid for the purpose of his cassation appeal proceedings. 23. On 16 July 2004 the registry of the Katowice Regional Court informed the applicant that his application for legal aid had been rejected. No formal decision was served on the applicant to that effect. 24. On 6 August 2004 the President of the Criminal Law Section of the Katowice Regional Court decided that the applicant’s cassation appeal was not to be entertained (odmówił przyjęcia kasacji) for non-compliance with procedural requirements. 25. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate is set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 4588 respectively). More recent developments are described in the Court’s decision in the cases of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see §§ 25-54) and Łomiński v. Poland (no. 33502/09) adopted on 12 October 2010 (see §§ 17-49). 26. Under the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The cassation appeal has to be lodged and signed by an advocate, on pain of being declared inadmissible. The relevant part of Article 523 § 1 of the Code provides: “A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).” 27. Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party has been represented, on his or her lawyer. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code. 28. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides: “A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.” 29. Under Article 528 of the Code an interlocutory appeal (zażalenie) is not available against a refusal of legal aid for cassation appeal proceedings. Article 530 § 2 of the Code provides that the president of the court which had given the decision appealed against is competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal is not filed and signed by an advocate, it must be rejected on formal grounds. If such an appeal complies with the formal requirements, the case is referred to the Supreme Court. | 1 |
train | 001-81797 | ENG | RUS | CHAMBER | 2,007 | CASE OF BAKHAREV v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Peer Lorenzen | 4. The applicant was born in 1954 and lives in Barnaul, the Altay Region. 5. On an unspecified date in 2002 the applicant, acting as a participant of rescue operation on the site of the Chernobyl nuclear disaster in the 1980s, applied to a local council, requesting them to grant him a flat. 6. Having faced a refusal, the applicant filed a suit in court. 7. By judgment of the Industrialnyy District Court of Barnaul of 14 October 2002 the local authorities were ordered to grant the applicant a flat of at least 18 square metres. It became final on 27 November 2002. 8. On 16 December 2002 the writ of execution was issued and sent to the bailiffs. 9. It appears that on 13 January 2005 the local authorities, acting in agreement with the applicant and with his financial participation, purchased a three-room flat of 28 square metres for the applicant. 10. The contract has been registered on 14 January 2005. 11. Four days later, on 18 January 2005, the local authorities transferred the money for the flat to the seller's account. 12. According to the Government, the judgment of 14 October 2002 should be considered as fully enforced on the latter date. | 1 |
train | 001-78219 | ENG | UKR | CHAMBER | 2,006 | CASE OF KRASNOSHAPKA v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 4. The applicant was born in 1963 and lives in the town of Lokhvitsya, Poltava region, Ukraine. 5. The applicant worked as a saleswoman in the “Kram” shop at the State-owned “Lokhvitskiy Spirtkombinat” distillery. 6. In July 1998, in accordance with the findings of an inspection, which revealed the shortage of goods, the applicant was dismissed from her position. 7. On 21 August 1998 the applicant instituted proceedings in the Lokhvytskiy District Court against her former employer challenging her dismissal. 8. On 10 November 1998 the court found the case ready for examination and scheduled the hearing for 27 November 1998. 9. On 21 November 1998, following the results of the inspection, a criminal case was instituted. 10. On 27 November 1998 the civil proceedings in the applicant's case were suspended until the investigation of the criminal case was completed. 11. On 25 March 1999 the criminal proceedings were terminated due to the lack of corpus delicti in the applicant's actions. 12. On 14 December 2001 the hearing was adjourned upon the applicant's request. 13. On 17 December 2001 the court requested the Lokhvitsky District Prosecutor's Office to provide information about the results of the investigation. 14. On 20 December 2001 the court was informed that the criminal proceedings against the applicant had been terminated. 15. On 14 June 2002 the court heard the merits of the case and adjourned the hearing. 16. On 14 June 2002 the applicant modified her claim. 17. On 23 July 2002 the court heard the merits of the case and adjourned the hearing in order to allow the defendant to study the new documents submitted by the applicant. 18. On 2 October 2002 the court postponed the hearing due to the failure of the defendant's representative to appear. 19. On 22 November 2002 the hearing was adjourned due to illness of the defendant's representative. 20. On 12 August 2003 the court found in part for the applicant and ordered her reinstatement in the position of a saleswoman. It also awarded the applicant UAH 16,500 in salary arrears and UAH 1,000 in compensation for non-pecuniary damage. 21. On 18 August 2003 the Poltava Regional Court of Appeal left the defendant's appeal against the above decision without a course and gave him the time to rectify the procedural shortcomings. 22. On 18 December 2003 the Court of Appeal quashed this judgment and remitted the case for a fresh consideration. 23. On 1 June 2005 the Supreme Court of Ukraine quashed the decision of the court of appeal and remitted the case for a fresh consideration. The Supreme Court held that the Poltava Regional Court of Appeal was itself competent to consider the merits of the case. 24. On 27 July 2005 the Poltava Regional Court of Appeal partly changed the decision of 12 August 2003. It rejected the applicant's claim for non-pecuniary damage but upheld the remainder of that decision. 25. On 14 November 2005 the Supreme Court upheld this judgment. 26. In April 2006 the applicant informed the Court that the judgment in her favour remained unenforced. 27. Article 221-4 of the Code of Civil Procedure of Ukraine envisages that a court must suspend proceedings if it is impossible to examine the case until determination of another case which is examined in civil, criminal or administrative procedure. According to Article 224-1, in such a situation the proceedings are suspended until the decision, on which the proceedings depend, became final. | 1 |
train | 001-109927 | ENG | MDA | ADMISSIBILITY | 2,012 | CASE OF INTERDNESTRCOM v. MOLDOVA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 1. The applicant is a company from the breakaway Transdniestrian region of Moldova in the telecommunications field. It was represented before the Court by Mr V. Griţco, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. On 12 June 2003 the Government of Moldova adopted decision No. 712, under which private businesses from the breakaway Transdniestrian region of Moldova could obtain temporary registration with the Moldovan Registration Chamber to facilitate their export operations by using Moldovan customs stamps. 3. On 8 July 2004 the Government of Moldova adopted decision No. 782-37, making it possible for the applicant company to obtain a licence in the telecommunications field after obtaining temporary registration. This decision was taken in private, however, it appeared later from the decision of the Constitutional Court of 2 September 2004 (see below) that the purpose of the decision was to unify the telecommunications systems of the two banks of the Dniester River and to re-establish telephone communications with the breakaway province. 4. On 13 July 2004 the applicant company obtained temporary registration under Moldovan law in accordance with Government decision no. 712 and was issued with a State registration number and a registration certificate by the State Registration Chamber. 5. On 15 July 2004 the applicant company obtained, in accordance with Government decision no. 782-37, two licences from the National Regulatory Agency for Telecommunications and Informatics (“ANRTI”) to provide mobile and fixed telephony services, for which it paid one million United States dollars (“USD”) to the Moldovan Ministry of Finance. 6. On 21 July 2004 the Supreme Security Council of the State decided against allowing the applicant company a presence in the Moldovan telecommunications market, and on 27 July 2004 the President of Moldova challenged Government decision no. 782-37 before the Constitutional Court. The grounds for challenging the decision were, inter alia, that the price paid by the applicant company had been considerably lower than that paid by other similar companies present on the market and that the rules of fair competition had thus been infringed. 7. On 30 July 2004 ANRTI decided to suspend the applicant company’s licences. 8. On 31 July 2004 the Government suspended decision no. 712. 9. On 2 September 2004 Government decision no. 782-37 was declared unconstitutional by the Constitutional Court. 10. On 29 October 2004 ANRTI informed the applicant company that on 21 October 2004 its licences had been withdrawn in view of the fact that its registration as a legal entity under Moldovan law had been terminated and in accordance with the Constitutional Court decision of 2 September 2004. The letter made reference to the provisions of section 21 (1) (b) of the Licensing Act (see below). 11. It does not appear from the materials of the case that upon learning the above the applicant company challenged the State Registration Chamber’s decision to terminate its registration or ANRTI’s decision to withdraw its licences. Instead, the applicant company requested on several occasions that the Government refund the money paid for the licences. Since the Government refused to refund the money, on 1 December 2005 the applicant company initiated proceedings before the Economic Court claiming USD 1,000,000 and default interest from the Government. 12. During the proceedings the Economic Court requested information from the State Registration Chamber concerning the applicant company. The State Registration Chamber informed the court that no company named Interdniestrcom was registered in Moldova. 13. On 13 April 2006 the Economic Court struck the applicant company’s application off the list of cases, on the ground that it did not have standing to initiate a civil action because it was not registered as a legal entity in Moldova or in any other country. The court ordered the Ministry of Finance to return to the applicant company the court fees paid by it. The court fees were paid by the Ministry of Finance to the applicant company’s account. 14. The applicant company appealed and argued, inter alia, that it had followed the rules instituted by the Government when it had obtained a temporary registration and had paid the money for the licences. It also argued that its registration under Moldovan law had never been formally cancelled. 15. On 15 June 2006 the Supreme Court of Justice dismissed the applicant company’s appeal and upheld the first-instance court’s decision. It reached the same conclusion as the first-instance court, that the applicant company lacked capacity to plead before courts as it was legally nonexistent. 16. On 3 August 2006 the applicant company wrote to the State Registration Chamber and inquired whether it was still registered as a legal entity in Moldova. In a letter dated 8 August 2006 the State Registration Chamber explained to the applicant that its registration had automatically became null when decision no. 712 was suspended on 31 July 2004. 17. On 10 November 2006 the applicant company wrote again to the Ministry of Finance and requested the refund of the money paid for the licences. In a letter dated 27 December 2006 the Minister of Finance informed the applicant company that its request had been examined and asked the applicant company to provide details of its bank account. The applicant company complied, but no payment followed. 18. According to sections 14 and 27-29 of Law No. 1265 of 5 October 2000 on the State registration of legal entities (“the Legal Entities (State Registration) Act 2000”), the termination of registration of a legal entity can be carried out only on the basis of a request by the legal entity in question or on the basis of a court decision. 19. According to section 21 (1) (b) of Law No. 451 of 30 July 2001 on licensing (“the Licensing Act 2001”), a licence can be withdrawn, inter alia, as a result of adoption of a decision terminating the state registration of the company. According to Section 21 (5) of the same act, if a licence is withdrawn for any reason the licence fee shall not be refunded by the State. 20. Article 267 (b) of the Code of Civil Procedure provides that a court shall strike out applications lodged by incapable persons. According to Article 60 of the Civil Code a legal entity acquires capacity (dobândeşte capacitatea de folosinţă) on registration by the State Registration Chamber, and loses capacity (pierde capacitatea de folosinţă) on removal from the registry of the State Registration Chamber. | 0 |
train | 001-102209 | ENG | SVK | ADMISSIBILITY | 2,010 | M.v. v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Ms M.V., is a Slovak national of Romani ethnic origin. She was born in 1975 and lives in Ruskov. She was represented before the Court by Ms V. Durbáková and Ms B. Bukovská, attorneys, who act in cooperation with Poradňa pre občianske a ľudské práva, a nongovernmental organisation with its registered office in Košice. On 25 March 1999, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the University Hospital of L. Pasteur in Košice, a public hospital under the administration of the Ministry of Health. Prior to her sterilisation the applicant had not given her informed consent to the intervention and it had not been approved by a sterilisation commission. As a result of the intervention the applicant has suffered serious medical and psychological consequences, including medical side effects and problems with her husband. On 9 May 2005 the applicant lodged an action for protection of her personal rights with the Košice II District Court. Her claim was rejected on 9 April 2008. On 4 March 2009 the Košice Regional Court upheld the first instance judgment. The courts found that the applicant had been sterilised following her request. No shortcomings in the procedure had been established. On 5 June 2009 the applicant lodged a constitutional complaint. She relied, inter alia, on Articles 3, 6 § 1, 8, 13 and 14 of the Convention. On 3 June 2010 the Constitutional Court found that the Regional Court had breached the applicant’s rights under Article 6 § 1 of the Convention, in conjunction with Articles 3 and 8. It quashed the Regional Court’s judgment and instructed that court to re-examine the case. The Constitutional Court further awarded 1,500 euros (EUR) to the applicant as just satisfaction and ordered the Regional Court to reimburse the applicant’s costs. The Constitutional Court dismissed the remainder of the applicant’s complaint. The judgment stated that the Regional Court had failed to consider in an appropriate manner the facts of the case in the light of the applicant’s arguments including those under the Convention and other international instruments. The Constitutional Court instructed the Regional Court to take further evidence with a view to establishing whether, and if so, when and in which circumstances the applicant (i) had requested sterilisation, (ii) had been informed about the consequences of such intervention, and (iii) had given informed consent to it. It expressly instructed the Regional Court to examine the applicant’s arguments from the viewpoint of her rights under Articles 3 and 8 of the Convention. As to the alleged discrimination of the applicant, the Constitutional Court held that it did not consider it necessary to examine the applicant’s complaint under, inter alia, Article 14 of the Convention as it considered primordial the alleged breach of Article 6 § 1. Following its above decision the Regional Court was obliged to take a position as to the alleged breach of the applicant’s rights under international instruments. Finally, the Constitutional Court expressed the view that Article 14 of the Convention implied Contracting States’ positive obligation to incorporate antidiscrimination principles and measures in their law. As such, it was not directly applicable by public authorities in individual cases. The relevant domestic law, practice and international materials are set out in V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009, and I.G., M.K. and R.H. v. Slovakia (dec.), no. 15966/04, 22 September 2009. | 0 |
train | 001-72704 | ENG | HRV | CHAMBER | 2,006 | CASE OF CENBAUER v. CROATIA | 1 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Non-pecuniary damage - financial award | Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Peer Lorenzen;Sverre Erik Jebens | 9. The applicant was born in 1971 and lives in Viljevo, Croatia. 10. On 15 December 1993 the applicant was found guilty of several criminal offences, including murder, and sentenced to twelve years' imprisonment. He started serving his prison sentence on 4 January 1995 at Lepoglava State Prison (Kazneni zavod Lepoglava – “LSP”). 11. LSP is a building comprising five wings: A, B, C, D and E. All the wings have now been renovated. B wing was the last to be renovated, its renovation being completed in December 2003. 12. The applicant remained at LSP until 27 September 1995, when he was transferred to another prison. He was admitted to LSP for a second time on 30 December 1998. 13. On 4 October 1999 the applicant was transferred to Glina Penitentiary where he remained until 5 April 2000. Then he was transferred to Požega Penitentiary. During his stay in that institution, the applicant was granted various privileges, including the right to short periods of leave. After committing criminal offences (burglary and theft) while on leave, the applicant was again transferred to LSP on 21 September 2000. On 3 January 2001 he was placed in B wing. 14. On 8 April 2003 the applicant was transferred to a cell in the renovated part of B wing. 15. On 22 August 2003 the applicant was released as he had served his time in prison. 16. The applicant gave the following account of the detention conditions in B wing of LSP. 17. The cell he was placed in was small and there were neither sanitary facilities nor running water. There was no heating and the cell walls were damp and mouldy. The cell was dirty and the bed sheets were not changed for very long periods of time. In order to urinate at night and at other times when he was confined to his cell, the applicant had to use a four-litre plastic container in the shape of a bottle, because the guards refused to unlock his cell and let him use the toilet. Toiletries and other personal hygiene products were provided only every four to five months. The food served to the inmates was of insufficient quantity and poor quality; the inmates were served only carbohydrates, without any vegetables and hardly any meat. In general, the prison was overcrowded. The prison buildings, built about two hundred years ago, were in a very poor state of repair. As the prison guards did not wear badges with their number or name, the inmates did not know their identities. The prisoners were made to line up as many as ten times a day, even when it rained. They also had to take outdoor exercise daily in slippers, even when it rained or snowed. 18. The Government provided the following account of the applicant's detention conditions at LSP. 19. The applicant's cell was a double-occupancy cell. Most of the time the applicant shared it with another inmate and only for a period of about two months was he alone in the cell. The cell was 3.5 m long, 1.6 m wide (5.6 m2) and 3.05 m high. It had a 0.8 x 0.8 m (0.64 m2) window and one artificial light. There was no toilet in the cell although the applicant had permanent access to communal sanitary facilities and could use a shower. Inmates were provided with toothpaste, soap, shaving cream, disposable razors, shampoo and toilet paper on a monthly basis. The food served to the inmates was of the prescribed calorific value and in general the inmates had no complaints in that respect. The inmates were lined up several times a day before meals. The inmates who worked were also lined up when going to and coming from work and before and after their break. Inmates were lined up outdoors when the weather permitted and they were dressed appropriately. In bad weather inmates were lined up inside the prison building. The inmates were afforded a large outdoor exercise area and were able to attend film shows on Sundays. 20. The Government submitted that the renovation of B wing had been completed on 5 December 2003. It had been freshly painted and every cell had been provided with a toilet and washbasin. The cells now have parquet flooring, new furniture and radiators, new electric sockets and new ceiling lights. There are now four showers used by 35 to 40 inmates. 21. The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to LSP were as follows (extract from the report to the Croatian government on the visit to Croatia carried out by the CPT from 20 to 30 September 1998, CPT/Inf. (2001) 4): “a. Material Conditions ... 58. ... the two unrenovated wings, B and E, accommodating mainly unemployed prisoners, offered very poor conditions of detention. Prisoners in these wings were being held under cramped conditions, typically two to three persons in cells measuring between 5.5 to some 6.5 m2. The CPT must emphasise that cells of such size are only suitable for individual occupancy. Further, the cells were dirty and in a poor state of repair, and a number of them had poor access to natural light and/or dim or artificial lighting. In addition, they were not equipped with integral sanitation; as a result, at night inmates had to comply with the needs of nature using a plastic container in their cell. As for the communal sanitary facilities, they were in a generally woeful state of repair (some of them with hazardous flooded floors). It is also noteworthy that several prisoners in these two wings complained that they were not able to obtain necessary toiletries. The director informed the delegation that the renovation of the whole establishment was planned, but that difficulties were being encountered in obtaining the necessary resources. The CPT must stress that the prevailing material conditions in B and E wings are quite unacceptable. Consequently, the Committee recommends that the renovation of these wings, including installation of in-cell sanitation following the model of D wing, be treated as a matter of high priority. Moreover, the CPT recommends that steps be taken immediately to ensure that all prisoners at Lepoglava State Prison are able to obtain personal hygiene products (toilet paper, soap, toothpaste, etc.) as well as the necessary means to maintain their cells and communal sanitary facilities in a clean and hygienic state. 59. Further, as already indicated in paragraphs 56 and 58, the closed unit was overcrowded at the time of the visit. This was particularly the case in the unrenovated wings ... The CPT recommends that serious efforts be made to reduce cell occupancy levels in the closed unit at Lepoglava State Prison ... ... b. Regime 61. According to section 19 of the Law on Execution of Sentences, sentenced prisoners must be provided, to the extent possible given an establishment's facilities and resources, with various types of work appropriate to their abilities and skills. ... 62. Of the 660 prisoners in the closed and semi-open sections at Lepoglava State Prison, approximately 300 were engaged in various types of work activities, including woodworking and furniture production (employing 150 inmates), metalwork (20), arts and crafts, as well as a variety of posts involving the day-to-day operations of the prison (laundry, cooking, gardening, etc.). ... 63. Nevertheless, the fact remains that at the time of the visit, the majority of the prisoners in the establishment's closed unit – 324 out of 532 – were not working. 110 prisoners were on a waiting list for work. Further, 83 prisoners had been categorised as permanent non-workers, either through choice or disability, though many such prisoners interviewed by the delegation advanced that they did in fact wish to work. The situation of the non-workers was rendered all the more unsatisfactory by the scarcity of other regime activities at the prison. Although the establishment was equipped with good educational facilities, only about 50 prisoners – including some who already worked – were attending classes. Further, there was little evidence of therapeutic (i.e. offence-focused) programmes and no organised sport activities. To sum up, almost two-thirds of the prisoners accommodated in the closed unit were subject to an impoverished regime; the typical daily programme for a non-working prisoner was found to consist of little else besides watching television in an association area and outdoor exercise. 64. ... For the majority of prisoners in the establishment's closed unit, there was no positive regime in place which might encourage them to address their offending behaviour. The CPT recommends that the Croatian authorities take the necessary steps to ensure that all prisoners at Lepoglava State Prison have access to an appropriate range of work, educational, sports and recreational activities.” 22. On 1 July 2002 a delegation of the Court visited LSP in connection with the Benzan case (see Benzan v. Croatia (friendly settlement), no. 62912/00, 8 November 2002). Its findings in respect of the general conditions at LSP were as follows: “Meeting with the governor of LSP The prison governor informed the delegation that the only unrenovated wing is B wing. He further informed the delegation that the prison held 683 inmates. He admitted that the prison was overcrowded, especially B wing. Tour of LSP B wing We found cell 17 situated next to the communal bathroom. It measured 5.6 m2. There were no in-cell sanitary facilities. There were two non-working electrical sockets. There was a dim light on the ceiling. The window on the wall opposite the door measured 0.64 m2. There was one wooden chair and a metal locker. There was one set of bunk beds. The mattresses were dirty and bloodstained. The cell smelled strongly of moisture. The cement walls were damp to the touch. Shower, toilet and laundry area There were three toilets and two showers for 60 inmates. There was no heating in the toilet. In the shower there was one radiator. There was no toilet paper. Next to the showers there was a laundry area equipped with long basins for inmates to wash their clothes. The laundry area was accessible for one hour per day. The indoor entertainment and recreation area Next we visited a TV-room where we found one television, about 20 chairs and 7 tables. It served 60 inmates. There was also a social room with 6 tables, each with 4 chairs, serving 44 inmates. We saw chess-boxes on the tables. Inside, there was one stove with two electric hotplates and one sink. On each floor we saw table tennis equipment, each serving 44 inmates. Renovated wing Here we visited a cell which measured 11 m2. There were two sets of bunk beds. There was a separate bathroom with toilet and sink, but with no shower or bathtub. However, there were communal showers on the same floor. There was one electric socket, three lights on the ceiling, two metal lockers, two wooden chairs, one table and one shelf on the wall. There were two windows (0.64 m2). The room was freshly painted and had parquet floor. It was very clean. Outdoor recreation area We saw a large walking area, with benches and trees and an asphalt playground of large proportions. The canteen The canteen where the inmates eat is a huge room, separated from the other prison areas. It can accommodate 200 persons at a time. The inmates eat in shifts. Food is cooked on the premises and there is also a bakery. Working area The working area comprises several large workshops for wood-processing, production of chess boards, picture-framing, a bookbinding shop and book press and an art studio including a visual arts section. The bookbinding shop where the applicant works has large windows, a desk and a chair. The interviews The applicant The applicant informed the delegation that he had been placed in cell no. 17 in B wing sometime in May 2000 and had stayed there until August or September 2001. He reported that at the time of his arrival there had been no glass on the window, but that it had been repaired in a few days. The paint on the walls had been peeling off and the cell had been very damp. Sometime in 2001 the walls had been repainted in the entire wing. He further reported that although there had been a radiator in the cell, there had been no heating until the end of winter 2001, when the radiators had been repaired, but that even after that the heating had been insufficient. The applicant stressed that the toilets in B wing had been renovated to a certain degree and that they had been in a much worse state of repair. He said that there had been mould on the walls which was covered over with paint. The applicant's daily routine is as follows: 7 a.m. – wake up 8-9 a.m. – breakfast and walk 10.30-11.30 a.m. – locked in cell 11.30 a.m. – lunch 12.30-1.30 p.m. – walk 3-5 p.m. – locked in cell 5.30 p.m. – dinner from 7 p.m. – locked in cell 9 p.m. – lights off The applicant complained that the inmates were always pressed for time for lunch and dinner because there were too many people, divided into several shifts. He also said that the food was of low quality, badly prepared, badly cooked and that the only edible food was bread. He said that most of the time he was hungry. The inmates are dressed in jeans and shirts that are replaced every two years. They are also provided with shoes, underwear and a jacket. The applicant complained that the bed sheets were dirty, greasy and too short. The blankets were old, dirty and had not been washed for seven years. The mattress in his cell was old, rotting, bloodstained and soiled. The applicant also stated that medical assistance was only available once weekly on Mondays and that consultations with physicians were superficial, lasting one minute. The prison governor The prison governor admitted that there were two deaths from cardiac arrest this year and that a number of inmates suffered from hepatitis, though they were not placed in any special unit. He admitted further that in the whole area there was a water shortage because of the problems with water pressure. However, the bathrooms were open from 9.30 to 11.30 a.m. and from 4 to 5.30 p.m. As to the medical staff, he said that one physician, a specialist in general medicine, and a dentist, were employed full-time. There was at least one nurse on the premises at all times. Once a week physicians of different specialisation visited the prison (a lung specialist, a surgeon, an internist and an ophthalmologist). He also reported that about 50% of inmates currently worked in the prison.” 23. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows: “No one shall be subjected to any form of ill-treatment ...” 24. The Enforcement of Prison Terms Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text)) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows: “(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act. (2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.” “(1) The accommodation of the inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions. (2) Inmates shall as a general rule be accommodated in separate rooms ... (3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 m² and 10 m³ of space in the room. (4) Every room ... must have daylight and artificial light ... (5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so. (6) Inmates shall have drinking water at their disposal at all times.” “(1) The penitentiary or prison shall supply the inmates with underwear, clothes and bed linen appropriate to the climatic conditions.” “(3) Inmates shall be served at least three meals daily with a calorific value of at least 3,000 kcal per day. The content and the nutritional value of the food shall be supervised by a doctor or other medically qualified person.” | 1 |
train | 001-59052 | ENG | SVN | CHAMBER | 2,000 | CASE OF REHBOCK v. SLOVENIA | 1 | Preliminary objection dismissed (non-exhaustion);Violation of Art. 3 as regards treatment on arrest;No violation of Art. 3 as regards treatment during detention;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Elisabeth Palm;Gaukur Jörundsson | 10. On 8 September 1995 at about 2 p.m. the applicant crossed the border between Austria and Slovenia near Šentilj in a car belonging to his partner. In the car he had a package of pills which he had been asked to bring to Slovenia by an acquaintance of Slovenian origin. He did not declare this fact to the customs officers. At 4.55 p.m. on the same day the applicant was arrested by the Slovenian police in Dolič, some 70 km from the border crossing, where he was expected to hand over the pills to another person. 11. The circumstances of the arrest are in dispute between the parties. 12. According to the applicant's version of the facts, he found himself encircled by six men who had a sawn-off shotgun and pistols. They were dressed in black and wore black masks. They attacked the applicant without any prior warning. Several other men were standing nearby. The applicant was held fast and made no attempt to resist. Despite his shouting in both German and English that he was not resisting, he was dragged brutally to the bonnet of a car. Two men held him fast and pushed the upper part of his body against the bonnet. His hands were pulled behind his back and he was handcuffed. At the same time four other men kept hitting him on the head with cudgels and fists. His face was seriously injured and he suffered severe pain. 13. In their memorial of 25 November 1999 the Government explained that the applicant had been arrested in the context of an action which had been planned by the competent authorities on the basis of their operational data. When constituting the arrest team the authorities bore in mind the fact that the applicant, whom they suspected of being a drug dealer, was extremely strong as he had won the German body-building championship on several occasions. 14. In their oral submissions to the Court, the Government relied on the conclusions reached by a three-member commission established upon an order issued by the head of the Slovenj Gradec Police Administration on 9 February 1996 with a view to determining whether the use of force during the applicant's arrest had been justified. The report was adopted on 8 March 1996 and the Government submitted a copy to the Court on 23 May 2000 following the hearing on the merits of the case. The relevant parts read as follows: “... Four criminal investigators were designated with a view to apprehending the dealers ... They had standard equipment – identification jackets and personal weapons. They also carried equipment for handcuffing and restraining the suspects ... At the parking area [the suspects] were approached by the criminal investigators who shouted 'Stop! Police!' and instructed the suspects to stand still ... Criminal investigators B. and K. approached [the applicant] and attempted to search him ... [The applicant] disobeyed their command to remain still and tried to escape. Criminal investigators B. and K. prevented him from doing so by taking hold of him. They attempted to apply the 'elbow lock' grip [on the applicant] ... Being physically strong, [the applicant] tried to release himself. The investigators continued applying the grip with a view to preventing [the applicant] from escaping. Because of [the applicant's] strength they were unable to complete the grip in a standing position and therefore agreed to push [the applicant] down to the ground. As [the applicant] again tried to free himself, the criminal investigators had to bring him to the ground on the spot where they were standing. Since [the applicant] resisted and since there was a risk that he would attempt to escape, they were unable to choose a better location where there would be no danger of sustaining injuries. They pushed [the applicant] down to the ground between parked cars. In the course of the action [the applicant] hit his face on the mudguard of a parked car and on the tar-paved surface of the parking area. The investigators handcuffed [the applicant] while he was lying on the ground. All [three] suspects were then taken to the police station in Slovenj Gradec. At the time of the arrest [the applicant] did not complain of any pain or injury ... On 8 September at 4.55 p.m. [the three suspects] were taken into detention ... and on 10 September 1995 they were brought before the investigating judge of the Slovenj Gradec District Court who issued a detention order ... On 9 September 1995 [the applicant] complained of pain in his jaw ... He was taken to the medical centre in Slovenj Gradec where it was established that his lower jaw was broken and that he had suffered a serious bodily injury ... On the basis of the carefully collected information the commission concluded that criminal investigators K. and B. had acted correctly and in accordance with the law. The injury sustained [by the applicant] had occurred exclusively at the site of the arrest while he was being pushed down to the ground ... While arresting [the applicant], the criminal investigators used the mildest forms of coercion – physical force and handcuffing. They thereby prevented a person apprehended at the scene of a criminal offence from escaping. The injury occurred because [the applicant] was resisting his arrest and the investigators were therefore unable to push him to the ground at a different place with the use of less force. The commission concludes that, regardless of its consequences, the use of force was justified and in conformity with section 54 of the Internal Affairs Act and also with sections 9 and 12 of the Instruction on the Use of Coercive Measures ...” 15. By a letter of 23 May 2000 the Government also informed the Court, at its request, that there had been thirteen police officers involved in the operation and that two of them had been designated to handcuff the applicant. 16. After his arrest the applicant was detained by the police in Slovenj Gradec. He submitted before the Court that he had been suffering from headaches and had problems with his vision and that he had been examined by a doctor for the first time in the morning of 9 September 1995. On 9 September 1995 at 2.50 p.m. the applicant wrote and signed a statement, according to him upon the instructions of the police, indicating that he had fallen and hit his face against the edge of a car the day before. 17. The Government submitted that the applicant had complained for the first time about pains in his jaw to the duty officer in the morning of 9 September 1995 and that a doctor had immediately been called. The doctor had recommended that the applicant be examined at the Slovenj Gradec Health Centre, from where he was transferred to Maribor General Hospital. 18. The documents before the Court indicate that the applicant was examined meticulously by a doctor at the cervico-facial surgery department of Maribor General Hospital on 9 September 1995. The report states that he was brought to the hospital by the police and that his jaw was injured. The applicant told the doctor that he had been injured by the police. The latter stated that the applicant had hit the edge of a car during his arrest. 19. The doctor found that the applicant's temporo-mandibular joint was sensitive to pressure and that he could not open his mouth properly. The report further stated that the applicant's occlusion was irregular as the teeth on the left side had been displaced. The doctor X-rayed the applicant and diagnosed a double fracture of the jaw and facial contusions. 20. The doctor concluded that surgery under general anaesthesia was necessary and made arrangements for it to be carried out the next day. He allowed the police to keep the applicant in custody in the meantime. 21. On 10 September 1995 the applicant was brought to the hospital, but he did not consent to the operation as he considered that he would be released soon and that he would be operated on in Germany. It was agreed that the applicant would be examined again on 12 September 1995. 22. On 12 September 1995 the applicant was re-examined and stated that he felt sick and that he had vomited. He did not consent to the surgery recommended by the doctor. The latter ordered that mashed food should be served to the applicant. Another examination was fixed for 18 September 1995. 23. The medical report of 18 September 1995 indicates that the applicant felt better. His pain was less severe but still present when he was chewing and eating. 24. On 25 September 1995 the applicant refused to undergo a further examination in a hospital. 25. The applicant was again examined at Maribor General Hospital on 3 October and on 25 and 27 November 1995. He admitted a slight improvement of his problems with the jaw, but complained of pain in his abdomen and blood in his excrement. He refused a rectal examination. His abdomen and urine were examined but no abnormalities were found. The doctors prescribed a special diet and, if need be, a further examination. 26. On 4 December 1995 the applicant was examined at Maribor General Hospital. The report states that his dental occlusion was altered and that he had pain in his jaw. 27. On 7 December 1995 the applicant was treated in the hospital for two superficial cuts on his left wrist, which he had caused himself, while in a state of depression, on 3 December 1995. 28. In a letter of 17 December 1995 addressed to the Ministry of Justice the applicant complained that he had been brutally beaten up and that he had suffered a double fracture of his jaw. He stated that he had not been provided with appropriate medical care and claimed damages of 1,000,000 German marks (DEM). 29. A further medical examination was carried out on 16 January 1996. The doctor prescribed pain-killers to the applicant and noted that a specialist should be consulted as regards the treatment of his jaw. 30. On 23 January 1996 a specialist concluded that the applicant's jaw required prothetic rehabilitation or even surgery. As the applicant had stated that he wished to undergo treatment in Germany, the doctor recommended that he should be sent there as soon as possible. 31. On 5 March 1996 the applicant complained to the prison governor that he was suffering pain due to an inflammation in his middle ear and requested treatment in a hospital. 32. On 7 March 1996 the applicant complained to a doctor about severe pain in his head and that he had not been provided with appropriate medical care in the prison. In particular, he complained that the medication prescribed for him had not been given to him regularly. 33. On 10 June 1996 the applicant complained to the Maribor prison governor that on 8 and 9 June the guards had not provided him with the pain-killers prescribed by the doctor and that, as a result, he was suffering severe pain and was depressed. 34. On 20 June 1996 the applicant complained to the prison governor that on 18 and 19 June he had not been provided with the medication which had been prescribed for him. On 30 June and 3 July 1996 he complained again that medication had been refused him. In his complaints the applicant stated that he wished to bring criminal proceedings against the staff of the prison and requested that he should be allowed to file a criminal complaint with the police. 35. On 4 July 1996 the applicant complained to a judge of the Maribor Higher Court (Višje sodišče) that he suffered severe pain and that he had been provided with pain-killers only irregularly. 36. On 10 September 1995 an investigating judge of the Slovenj Gradec Regional Court (Okrožno sodišče) remanded the applicant in custody. 37. On 3 October 1995 the applicant lodged, through his lawyer, a request for release. He submitted that he would not abscond and offered a security of DEM 50,000. The applicant further claimed that his detention was no longer necessary as all witnesses in the criminal proceedings which had been brought against him had already been heard and that all relevant evidence had been taken. 38. On 6 October 1995 the Slovenj Gradec Regional Court extended the applicant's detention on remand until 8 December 1995 pursuant to Article 205 § 2 of the Code of Criminal Procedure. The court noted that the investigation into the applicant's case could not be completed within a month. 39. The applicant lodged a complaint. He claimed that there was no reason for his detention and that the Regional Court had not ruled on his request for release of 3 October 1995. 40. On 19 October 1995 the Maribor Higher Court dismissed the complaint. It noted that the applicant was a foreign national who had no links in Slovenia. It therefore held that there was a risk that he might abscond. As to the applicant's request for release on bail, the Higher Court held that it had to be examined by the Regional Court first. 41. On 26 October 1995 the Slovenj Gradec Regional Court dismissed the applicant's request for release of 3 October 1995. The court did not consider the security offered by the applicant as a sufficient guarantee that he would attend the proceedings before it. 42. On 27 November 1995 the Slovenj Gradec Regional Court extended the applicant's detention on remand pursuant to Article 272 § 2 of the Code of Criminal Procedure. 43. On 13 December 1995 the Maribor Higher Court dismissed an appeal by the applicant against the above decision. 44. On 29 November 1995 the applicant lodged, through his lawyer, another request for release. He claimed that there were no relevant reasons for his detention and offered a security of DEM 50,000. 45. The Slovenj Gradec Regional Court dismissed the request on 22 December 1995. 46. During his detention in Slovenia the applicant's correspondence, including the correspondence with the Commission, was monitored. 47. On 8 January 1996 the Slovenj Gradec Regional Court convicted the applicant of unauthorised production of and dealing in narcotics and of smuggling. The applicant was sentenced to one year's imprisonment. 48. On 17 April 1996 the Maribor Higher Court dismissed an appeal by the applicant and, allowing an appeal by the public prosecutor, increased the sentence imposed to seventeen months' imprisonment. 49. On 1 September 1996 the applicant was released conditionally. 50. Article 26 guarantees to everyone the right to compensation for any damage resulting from unlawful official acts committed by individuals or bodies carrying out tasks vested in State organs. 51. Section 54 of the Internal Affairs Act (Zakon o notranjih zadevah) of 25 November 1980, as amended, entitles authorised officials to have recourse to physical force in the exercise of their duties when, inter alia, they cannot otherwise overcome the resistance of a person who refuses to comply with lawful orders or who is to be arrested. 52. Section 9 of the Instruction on the Use of Coercive Measures (Navodilo o uporabi prisilnih sredstev) of 1 September 1981, as amended, provides, inter alia, that recourse to physical force in the cases enumerated in section 54 of the Internal Affairs Act of 1980 should normally be restricted to special holds. When the authorised officials consider that such means are not sufficient, they may have recourse to blows or a rubber truncheon. In any event, physical force and rubber truncheons may only be used to the extent that is strictly necessary to overcome resistance or to prevent an attack, and the use of force should never result in ill-treatment of the person concerned. 53. Section 12 of the Instruction on the Use of Coercive Measures permits authorised officials to handcuff a person or to restrain him or her by other means if it can reasonably be expected that the person concerned will actively resist or attempt to escape. 54. Article 205 § 1 provides that an investigating judge may remand an accused person in custody for no longer than a month from the moment when he or she was arrested. After the expiry of this period, a person may be detained only on the basis of a decision to extend his or her detention. 55. Under Article 205 § 2, such a decision must be delivered by a court and the detention may thereby be extended for no longer than two months. 56. Article 211 § 3 provides that a detainee may correspond with or establish other contacts with persons outside the prison with the consent and under the supervision of the investigating judge dealing with his or her case. The latter may prohibit the detainee from sending or receiving letters or from having other contacts where these could affect the criminal proceedings pending against him or her. However, it is not permissible to prevent a detained person from lodging applications or appeals. 57. Article 213b was enacted on 23 October 1998. Paragraph 3 empowers the Ombudsman and his deputies to visit detained persons and to communicate with them in writing without previous notification of the investigating judge and free of any supervision by the latter or by any other official. This provision has also been applied, by analogy, to correspondence between detained persons and the European Court of Human Rights. 58. According to Article 272 § 2, when an indictment is filed against a person detained on remand and provided that it does not contain a proposal that such a person should be released, a court must examine, of its own motion and within three days after the filing of the indictment, whether there are relevant reasons for the further detention of the accused, and issue a decision by which either the detention on remand is extended or the person concerned is released. 59. Article 542 § 1 gives rise to a right to compensation for detained persons who were not committed for trial, or were acquitted or discharged after standing trial, for persons who served a prison sentence which was subsequently reduced or quashed and also for those who were arrested or detained as a result of an error or unlawful act, or whose detention on remand exceeded the term of imprisonment to which they were sentenced. | 1 |
train | 001-105079 | ENG | IRL | ADMISSIBILITY | 2,011 | ADIO v. IRELAND | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre | The first applicant is a Nigerian national born in 1968. She is the mother of a child born in 1997, which child currently lives in Nigeria. She is also the mother of the second applicant (a Nigerian national born in Nigeria in 2001) and of the third applicant (born in Ireland in 2003 and, therefore, a citizen of Ireland). The three applicants all currently live in Ireland and are represented before the Court by Mr Mulvihill, a solicitor practising in Cork. On 17 March 2003 the first and second applicants arrived in Ireland. Ten days later the first applicant gave birth to the third applicant. The latter became an Irish citizen by virtue of his birth in Ireland at that time. On 18 March 2003 the first applicant applied for refugee status under the Refugee Act 1996, as amended (“the 1996 Act”) by completing the statutory questionnaire. She requested that the second applicant be included in her application and she reported that the whereabouts of her husband were unknown. She was called for an interview on 6 November 2003 but did not attend. Since she did not attend or explain her absence, by letter dated 13 November 2003 she was notified that the Refugee Applications Commissioner was recommending to the Minister for Justice, Equality and Law Reform (“the Minister”) that she should not be declared a refugee. The applicant did not pursue her request for refugee status any further. In December 2004 as well as in January and March 2005 the Minister announced the establishment and details of a scheme known as the “IBC05 Scheme”. It was designed to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005. Applications were to be received from 15 January to 31 March 2005. On 26 April 2005 the first applicant applied for leave to remain under the IBC05 Scheme. The application was received by the Minister on 5 May 2005. By letter dated 29 November 2005 the first applicant was informed that her application could not be considered under the IBC05 Scheme as she had applied after the closing date. Following a re-submission of the application in December 2005, on 19 December 2005 the Minister confirmed the position regarding the expiry of the relevant time-limit and enclosed a copy of his letter of 29 November 2005. On 13 February 2006 the applicants were granted leave to apply for judicial review seeking two reliefs. In the first place they requested an order of certiorari quashing the decision of the Minister refusing to consider the first applicant’s application, under the IBC05 Scheme, for leave to remain in Ireland. They submitted that the Minister’s decision was unlawful in that it was taken without any consideration of the personal rights of the Irish citizen child guaranteed by Article 40.3 of the Constitution and by Article 8 of the Convention. Secondly, they requested an order of mandamus directing the Minister to consider the application of the first applicant to reside in the State. The High Court judgment later summarised the Minister’s response: “The essence of the submission made in response on behalf of the respondent was that having regard to the time limit specified in IBC/05 the respondent was not under any obligation to consider the rights of the Irish citizen child either by reason of Article 40.3 of the Constitution or article 8 of the Convention. It was further submitted that the second application made by Ms. Adio’s solicitors on her behalf on 15th December, 2005 should properly be construed as simply a repeat of her application under the revised arrangements on IBC/05 and should not be considered as a separate or a “free-standing” application for permission to remain in the State or residency.” The hearing before the High Court took place at the same time as the hearings in a number of other judicial review applications, all concerning the Minister’s rejection of, or refusal to consider, applications by parents of Irish born children for leave to remain under the IBC05 Scheme. On 7 November 2006 the High Court delivered its lead judgment in those cases finding that the Minister’s decision to refuse the parent’s application under the IBC05 Scheme was unlawful because it was taken in breach of the citizen child’s rights under Article 40.3 of the Constitution and in breach of the Minister’s obligations under section 3(1) of the European Convention on Human Rights Act 2003. Although that decision meant that there was an outstanding application under the IBC05 Scheme to be considered, the High Court nevertheless examined Mr Bode’s request for an order of mandamus. Following the rejection of his application under the IBC05 Scheme, Mr Bode had made a further application for leave to remain to the Minister which, apart from being acknowledged, had not been responded to by the time leave to apply for judicial review had been granted (30 January 2006). The High Court found that, while there was no legislative provision enabling the parent of an Irish born child to apply for residency or leave to remain outside of a proposal to deport is made under s. 3 of the Act of 1999, it was “undisputed that [the Minister] as part of the executive power of the State has an inherent right and power to exercise a discretion to consider and determine and grant if he considers it appropriate residency to the parent of an Irish born child. ... such discretion must be exercised in accordance with the Constitution which includes having regard to the State guarantee of the personal rights of the citizen child under Article 40.3.1.” Accordingly, and having regard to the guarantee of the personal rights of the Irish citizen child in Article 40.3 (including the right to live in Ireland and the welfare rights set out in G. v. An Bord Uchtála ([1980] I.R. 32)), it was not open to the Minister either to fail to deal in a substantive way with the application or to refuse, without considering the relevant facts and rights of the citizen child, to consider the application. On 26 November 2006 the High Court applied the principles established in the lead Bode judgment to the present applicants’ request for an order of certiorari concerning the rejection of their IBC05 application. The High Court found that the decision to refuse to consider the first named applicant’s application under the IBC05 Scheme, without considering the constitutionally protected personal rights of the Irish citizen child under Article 40.3 as well as that child’s rights under Article 8 of the Convention, was invalid. The High Court therefore quashed the decision of 29 November 2005 as confirmed in the re-issued letter of 19 December 2005. The Minister appealed. On 20 December 2007 the Supreme Court delivered its judgment in the appeal in the lead Bode case. As regards the executive power of the Government to operate immigration controls, the Supreme Court noted as follows: ‘‘In every State, of whatever model, the State has the power to control the entry, the residency, and the exit, of foreign nationals. This power is an aspect of the executive power to protect the integrity of the State. It has long been recognised that in Ireland this executive power is exercised by the Minister on behalf of the State. This was described by Costello J. in Pok Sun Shun v. Ireland [1986] I.L.R.M. 593 at 599 as: “In relation to the permission to remain in the State, it seems to me that the State, through its Ministry for Justice, must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.’ The special role of the State in the control of foreign nationals was described by Gannon J. in Osheku v. Ireland [1986] I.R. 733 at 746. He stated at p.746:— ‘‘That it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual citizen, and the protection of the former may involve restrictions in circumstances of necessity on the latter. The integrity of the State constituted as it is for the collective body of its citizens within the national territory must be defended and vindicated by the organs of the State and by the citizens so that there may be true social order within the territory and concord maintained with other nations in accordance with the objectives declared in the preamble to the Constitution.’ I would affirm and adopt this description. While steps taken by a State are often restrictive of the movement of foreign nationals, the State may also exercise its powers so as to take actions in a particular situation where it has been determined that the common good is served by giving benefits of residency to a category of foreign nationals — as a gift, in effect.” As regards the request for an order of certiorari (to quash the Minister’s refusal to consider their application under the IBC05 Scheme), the Supreme Court summarised its conclusions as follows: “The application [by the Bode family to the High Court] was misconceived. The IBC 05 Scheme was a scheme established by the Minister, exercising executive power, to deal administratively with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly ... . At no stage was it intended that within the ambit of the scheme the Minister would consider, or did the Minister consider, Constitutional or Convention rights of the applicants. Thus the terms of the pleadings and of the appeal relating to the Constitutional and Convention rights of the applicants were misconceived and premature. Applicants who were not successful in their application under the IBC 05 Scheme remain in the same position as they had been before their application. The Oireachtas has established a statutory scheme providing that the Minister, in considering the situation of foreign nationals, shall have regard to a wide range of issues when making a decision under s.3 of the Immigration Act, 1999, as amended. Constitutional and Convention rights are appropriately considered at that stage. If there is a change of circumstances then an application may be made to the Minister to consider further matters under s.3(11) Immigration Act, 1999, as amended. Consequently, I would allow the appeal and reverse the decision of the High Court. Constitutional and Convention rights of the applicants have yet to be considered by the Minister. Such consideration may arise in the future in the statutory process under s.3 of the Immigration Act, 1999, as amended. If necessary, further matters may be considered at a later date under s.3(11) Immigration Act, 1999, as amended.” As regards their request for an order of mandamus (to order the Minister to consider Mr Bode’s free-standing application for leave to remain), the Supreme Court found that: “The High Court found it unnecessary to make an order of mandamus to require the Minister to consider [Mr Bode’s] stand alone application to remain in the State, per letter dated 6th December, 2005. However, the High Court then went on to consider the Minister’s legal obligation to consider stand alone applications. This is not now relevant in view of my decision on the nature of the IBC 05 Scheme, and the consequences, and the applicability of the s.3 procedure under the Act of 1999. However, I consider it important to state my opinion, to clarify the consequences of the decision. The appropriate process within which to consider Constitutional or Convention rights of applicants is on the process under s.3 of the Act of 1999. This is the relevant statutory scheme. In addition, within the statutory scheme there is provision to revoke a deportation order, see s.3(11) of the Act of 1999 ... Thus, a person, such as [Mr Bode], could notify the Minister of any altered circumstances since the making of a deportation order, such as the birth of an Irish born child. On such notification the Minister would have a duty to consider the new information to determine whether to revoke a deportation order. As the statutory scheme makes this provision for such an application, there is no need to seek a further process for a right to apply. The integrity of the system should be maintained, as long as it protects the rights of the applicants, which it does in this case. Consequently, it is my view that there is no free standing right of [Mr Bode] to apply to the Minister. The appropriate procedure is under s.3 of the Act of 1999, as amended, with the potential right to apply under s.3(11) in the future if the need to make such an application should arise.” On 20 December 2007 the Supreme Court applied, to the present applicants’ appeal, the principles it had established in its judgment on the appeal in the lead Bode case. It concluded as follows: “The application was misconceived. The IBC 05 Scheme was an administrative scheme established by the Minister exercising executive power to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly set out and included time limits for applications. The scheme was administered by the Minister within the criteria of the scheme. At no time was it intended, within the ambit of the scheme, that the Minister would consider Constitutional or Convention rights of applicants. The grounds of the application and the appeal relating to Constitutional or Convention rights were misconceived, and premature. Applicants who are unsuccessful on an application to the IBC 05 Scheme are in the same position after the application as they were prior to the application. Constitutional and Convention rights await consideration. It was a requirement of the scheme that applications be made within a specified time. The first named applicant did not make his application within the time required in the scheme. The Minister consequently acted correctly within the scheme in refusing to consider the application. Bearing in mind the analysis of the IBC 05 Scheme in Bode, and the extent of judicial review of such an administrative scheme, I would allow the Minister’s appeal on this matter, and reverse the decision of the High Court. The Constitutional and Convention rights of the applicants remain to be considered in another, appropriate, process.” The applicants continue to reside in Ireland. They do not refer to any change in their immigration status or submit that there has been any indication of an intention to deport them. Article 2 of the Constitution provides: “It is the entitlement and birthright of every person born in the island of Ireland, ..., to be part of the Irish Nation....” Article 40(3)(1) provides: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” Article 41(1)(1) provides: “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.” Section 17 of the 1996 Act is entitled “Declaration that person is a refugee” and subsection 6 provides as follows: “The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.” Section 3 of the 1999 Act confers on the Minister the power to make deportation orders in respect of certain categories of persons (Article 3(2) of the 1999 Act) having satisfied himself or herself that the deportation would not breach the prohibition of refoulement (section 5 of the 1996 Act) and having had regard to the “humanitarian” factors listed in Article 3(6) of the 1999 Act. Section 3, in so far as relevant, provides as follows: 3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 , and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State. ... (3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands. (b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall— (i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and (ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands. ... (6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to— (a) the age of the person; (b) the duration of residence in the State of the person; (c) the family and domestic circumstances of the person; (d) the nature of the person’s connection with the State, if any; (e) the employment (including self-employment) record of the person; (f) the employment (including self-employment) prospects of the person; (g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (h) humanitarian considerations; (i) any representations duly made by or on behalf of the person; (j) the common good; and (k) considerations of national security and public policy, so far as they appear or are known to the Minister. ... (11) The Minister may by order amend or revoke an order made under this section including an order under this subsection.” Section 3 of this Act is entitled “Performance of certain functions in a manner compatible with Convention provisions” and, in so far as relevant, provides as follows: “3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions. (2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate. ...” Section 6(1) of the Nationality and Citizenship Act 1956 provided that every person born in Ireland was an Irish citizen from birth. An Irish citizen was considered immune from deportation (as distinct from extradition). Further to the judgment of the Supreme Court in Fajujonu v. the Minister for Justice, Equality and Law Reform ([1990] 2IR 151 and see below), it became the general practice of the Minister to grant leave to remain in the State to non-national parents of Irish born children. Between 1996 and 2003 the Minister granted leave to approximately 10,500 non-national parents on this basis. The Minister also had the power to refuse to grant leave when he deemed that such leave would not be in the “common good” (for example, criminal conviction). There was no prescribed procedure for applying for such leave to remain or for the Minister’s examination of such requests. On 23 January 2003 the Irish Supreme Court found that a foreign national parent of an Irish born child did not have an automatic entitlement to remain in the State with the child (A.O. and D.L. v. the Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1). The Minister was entitled to order the deportation of parents if he was satisfied for good and sufficient reason that the common good required the residence of the parents in the State to be terminated, even if an Irish born child had, in consequence, to leave the State in order to remain in the care of his parents and within the family unit. Accordingly, from 19 February 2003 the Minister discontinued the practice of granting, as a matter of course, leave to remain in the State based solely on parentage of an Irish born child. According to the Supreme Court (Bode and Others v. Minister for Justice, Equality & Law Reform, cited above), approximately 11,000 such applications were pending before the Minister at that point. In 2004 the Constitution was amended (the 27th amendment) by referendum and the new Article 9(2) reads as follows: “(1) Notwithstanding any other provision of this Constitution, a person born in the island of Ireland ... who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law. (2) This section shall not apply to persons born before the date of the enactment of this section.” Legislative effect was given to this new Constitutional provision by the Irish Nationality and Citizenship Act 2004 (“2004 Act”) which came into force on 1 January 2005. This constitutional provision and legislation excludes the automatic grant of Irish nationality and citizenship to a child born after the date of enactment of the 2004 Act to parents neither of whom was entitled to be an Irish citizen at the time of birth. While the 2004 Act reduced the number of pregnant foreign nationals arriving in Ireland, the Minister set about managing the applications for leave to remain of parents of children born before 1 January 2005 which were, by then, pending. On 14 December 2004 the Minister announced (in national newspapers and on the Minister’s website) the establishment and details of the IBC05 Scheme. It was a Scheme designed specifically to deal with pending parental applications for leave to remain as regards children born in Ireland before 1 January 2005 in a “decent, pragmatic and common sense way”. Applications were to be received from 15 January to 31 March 2005. The examination would not touch upon the merits of each individual case, but the Scheme fixed broad qualifying criteria: - criminal activity would weigh against the granting of leave, as would not being part of the family unit and not taking a role in the upbringing of the child; - presence in the State for some time would lean in favour of granting leave and a demonstrated continuous residence in the State since the birth of the child was a pre-condition for inclusion in the Scheme. Details of the proofs/evidence required were outlined. A two-year leave to remain was to be initially granted, renewable at the Minister’s discretion. Such a grant was subject to certain conditions, on which an applicant would have to make a formal declaration including obeying the laws of the State, not becoming involved in criminal activity and making every effort to become economically viable. The Scheme was again announced on 15 January 2005, with all application details including an application form (which stated the closing date), advice as to the evidence required and a stipulation as to the necessity to explain if a relevant evidentiary document was missing. A reminder notice was also published on 18 March 2005. Almost 18,000 applications were received and leave to remain was granted to all but 1119 which were found not to qualify. In this latter respect, approximately 560 did not prove continuous residence since the birth of the child. Applications lodged after the expiry of the time-limit were not considered. Mr and Mrs Fajujonu were Nigerian and Moroccan citizens, respectively who moved to Ireland in the early 1980s. Their three children were born in Ireland and were therefore Irish citizens. When Mr. Fajujonu applied for a work permit, the Minister for Labour refused to grant it and the Department of Justice asked him to make arrangements to leave the country. It was this request, and a fear that a deportation order would be made, which led the plaintiffs to issue proceedings seeking an order restraining the Minister from deporting the plaintiffs; a declaration that the plaintiffs were entitled to reside within the State; a declaration that such provisions of the Aliens Act 1935 as purported to empower the Minister to deport them were inconsistent with the Constitution/not carried over as laws by Article 50 of the Constitution; and, if necessary, an order directing the Minister to grant to the first and second plaintiffs a visa entitling them to remain in the State as long as they were members of the family. The plaintiffs were unsuccessful in the High and Supreme Courts, where their action was dismissed on its merits, although the latter found that the Minister should consider the case afresh. The Supreme Court held that that, where non-national parents had resided for an appreciable time and had become a family unit within the State and had children who were Irish citizens, those children had the constitutional right to the company, care and parentage of their parents within the State. However, the Minister was entitled to exercise his powers to exclude such non-national parents from the State after due and proper consideration and full recognition of the fundamental nature of the constitutional rights of the family, where he was satisfied that their exclusion was necessitated by the requirements of the common good and where the consequences of this exercise would not be disproportionate to the requirements of the common good. The plaintiffs were a husband (non-national) as well as his wife and their child (both citizens of Ireland). The Minister indicated that leave to remain would not be given to the husband unless he produced proof of his ability to maintain himself and any dependants from his own resources. The husband feared deportation (no deportation order had issued) and the plaintiffs issued proceedings in the High Court seeking a declaration that, inter alia, the Aliens Act 1935 was unconstitutional and an order restraining the Minister from deporting the husband. This challenge was rejected by the High Court on its merits, that court finding, inter alia, that the Aliens Act 1935 not inconsistent with the Constitution. It sets out a legislative framework for the management of inward migration to Ireland and lays down principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. The executive power and responsibility of the Government to make immigration polices being currently supplemented by, inter alia, the Aliens Act 1935, the 1999 Act as well as the Immigration Acts of 2003 and 2004, the 2010 Bill proposes to repeal and replace those statutory provisions. The 2010 Bill also proposes to integrate into a unified process all procedures for claiming protection and otherwise for requesting leave to remain and it therefore repeals and replaces the relevant provisions of, inter alia, the 1996 Act. The 2010 Bill also includes provision allowing non-nationals to obtain long-term residence permits and it sets out the rights attaching thereto. The applicant was refused refugee status and requested leave to remain under section 3 of the 1999 Act. The Minister issued a deportation order which the applicant challenged by way of a request for leave to apply for judicial review. The High Court refused leave but it certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court (section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000). The point of law so certified was as follows: “In determining the reasonableness of an administrative decision which affects or concerns the constitutional rights or fundamental rights, is it correct to apply the standards set out in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39?” The Supreme Court allowed the appeal (Chief Justice Murray, Mrs Justice Denham and Mr Justice Fennelly in the majority, with Mr Justice Kearns and Mr Justice Hardiman dissenting). As noted by the Chief Justice, the primary and contemporary reference points for the approach which the courts had to adopt when judicially reviewing such administrative decisions were the decisions of the Supreme Court in The State (Keegan) v. The Stardust Victims Compensation Tribunal ([1986] I.R. 642) and the above-cited case of O’Keeffe v. An Bord Pleanala. As regards the nature and standard of judicial review of administrative decisions including decisions encroaching on fundamental rights, Mr Justice Nial Fennelly opined as follows: “The question is whether these considerations should lead to a modification of the Keegan or O’Keeffe test. The Minister strongly opposes the adoption of an entirely new threshold of review, whether that of “anxious scrutiny”, “most anxious scrutiny” or otherwise, for some administrative decisions. He submits that the adoption of such a test would significantly alter the role of the Courts in judicial review and would effectively constitute the Courts as the ultimate appellate tribunal from a vast range of administrative decisions. 67. At one level all this is no more than semantics: what is irrational or unreasonable depends on the subject-matter and the context. ... The appellant’s written submissions advance the principle of proportionality, in particular the notion of least intrusive interference with constitutional rights, saying that this principle can operate within the confines of the Keegan or O’Keeffe test. I do not consider it necessary to change the test. Properly understood, it is capable of according an appropriate level of protection of fundamental rights. The test as enunciated by Henchy J [in Keegan] and as explained by Finlay C.J. in O’Keeffe lays down a correct rule for the relationship between the courts and administrative bodies. Properly interpreted and applied, it is sufficiently flexible to provide an appropriate level of judicial review of all types of decision. The proposition of the [Minister], is a restatement, without using the word, of the principle of proportionality. The courts have always examined decisions in context against their surrounding circumstances. 68. Where decisions encroach upon fundamental rights guaranteed by the Constitution, it is the duty of the decision-maker to take account of and to give due consideration to those rights. There is nothing new about this. ... Where a right is not considered at all or is misdescribed or misunderstood by the decision-maker, the decision will be vulnerable to attack on the grounds of a mistake of law or failure to respect the rules of natural justice. In such cases, it may not be necessary to establish that it is unreasonable. It may, however, affect fundamental rights to such a disproportionate degree, having regard to the public objectives it seeks to achieve, as to cross a threshold, and to be justifiably labelled as so unreasonable that no reasonable decision-maker could justifiably have made it. To use the language of Henchy J [in Keegan], it may “plainly and unambiguously fl[y] in the face of fundamental reason and common sense.” 69. Where unreasonableness is alleged, the applicant will ask the court to examine the decision to see whether the decision-maker has complied with the duty to take account of and to give due consideration to any relevant rights or interests. There is an infinitely broad spectrum of decisions and of contexts and an infinite gradation of rights. There are constitutional rights, statutory and other legal rights, rights guaranteed by the Convention. In the last case, it is relevant that section 3 of the European Convention of Human Rights Act, 2003 places an obligation on every organ of the State to perform its functions in a manner compatible with the State’s obligations under the provisions of the Convention. In the Convention context, we must be conscious that the Court of Human Rights is influenced by the effectiveness of legal remedies against administrative decisions, when it considers the effectiveness of a national remedy pursuant to Article 13. 70. If we were to adopt the criterion of “anxious scrutiny,” it would follow that different standards of review would apply depending on whether the case was concerned with the protection of different types of right. That is the English “sliding scale” of review. In my view, it is neither appropriate nor necessary to have a different standard of review for cases involving an interference with fundamental, constitutional or other personal rights. ... It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered by the Chief Justice and of Denham J, can provide a sufficient and more consistent standard of review, without resort to vaguer notions of anxious scrutiny. The underlying facts and circumstances of cases can and do vary infinitely. The single standard of review laid down in Keegan and O’Keeffe is sufficiently responsive to the needs of any particular case. 71. I prefer to explain the proposition laid down in the Keegan and O’Keeffe cases, retaining the essence of the formulation of Henchy J in the former case. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word, “substantive,” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision-maker. This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J [in Keegan]. The applicant must discharge that burden by producing relevant and cogent evidence. 72. This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.” Mrs Justice Denham considered that the O’Keeffe decision has been construed “too narrowly” and judicial review should be an effective remedy especially where, as in asylum cases, access to the courts has been curtailed by law. Where fundamental rights were factors in a review, they are relevant in analysing the reasonableness of a decision and proportionality was inherent in any analysis of reasonableness. | 0 |
train | 001-66963 | ENG | HUN | ADMISSIBILITY | 2,004 | OLAH v. HUNGARY | 4 | Inadmissible | null | The applicant, Mrs Józsefné Oláh, is a Hungarian national, who was born in 1972 and lives in Ózd. She is represented before the Court by Mr I. Furmann, a lawyer practising in Miskolc, who also assists “the Legal Defence Bureau for National and Ethnic Minorities” (hereafter the “NEKI”). The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is of Roma origin, as was her late husband, Mr Oláh. The other person involved in the case, Sergeant L.T. was born in 1970. In 1996 he joined the Budapest VI/VII District Police Department. Following ten months' training, he received his firearm in January 1997. On 24 July 1997 at around 10.30 p.m. Mr Oláh, accompanied by an accomplice, broke the window of a car parked some fifteen metres from the French Embassy in Budapest and stole the radio. That night Sergeant L.T. was on guard in front of the Embassy. Having noticed Mr Oláh and his accomplice, he left his sentry-box. Seeing a police officer in uniform approach, Mr Oláh handed the car radio to his accomplice and both men started to run. Sergeant L.T. ordered them to stop. Mr Oláh and his accomplice looked back but kept running. Sergeant L.T. drew a gun and started to pursue them from a distance of some twenty metres. During the chase, he saw a shiny object in the hand of one of the fugitives. In a nearby street he again ordered them to stop. When they failed to do so, he fired a warning shot. Some time later he again ordered them to stop and fired a second warning shot. After some one hundred metres, Sergeant L.T. lost sight of them. Following a tip-off from an eye-witness (E. B.), Sergeant L.T. went through the gateway to a house in order to search for them. The gateway opened up onto a yard which was crossed by a path. To the right of the path, there was a garden; the entrance door to the building was located to the left of the path. Mr Oláh hid himself by the entrance door; his accomplice was lying in the garden. The visibility in the yard, which was not lit, was one metre. Sergeant L.T. crossed the path holding his firearm in his right hand. As Sergeant L.T. passed by, Mr Oláh, leaning forward, made a sudden move towards him. Sergeant L.T. stepped aside, turned towards Mr Oláh and – holding his firearm at a height of some 1.2 metres – fired a non-targeted shot at him from a distance of 1.6 metres. The bullet entered the right side of Mr Oláh's chest between the sixth and seventh rib, in a downward direction. It passed through the liver and exited through the tenth rib, finally lodging itself in the entrance door at a height of 130.5 centimetres. Mr Oláh collapsed. Sergeant L.T. got his handcuffs ready, but having noticed that Mr Oláh's injuries were serious he decided that it was not necessary to use them. At this point the eye-witness E.B. arrived. Sergeant L.T. asked him to call an ambulance and continued his search for Mr Oláh's accomplice. The ambulance arrived and transported Mr Oláh to the National Institute for Traumatology at 11.21 p.m. where he underwent surgery. On 26 July 1997 he died due to circulatory and respiratory failure caused by haemorrhagic shock. Meanwhile, on 24 July 1997 at 11.30 p.m. the police inspected the scene of the incident and arrested Mr Oláh's accomplice who was still hiding in the grass. Outside the house where the incident took place, they found the two spent cartridges from the warning shots; the spent cartridge from the lethal shot was found in the yard, as was the stolen radio. On 25 July 1997 Sergeant L.T. reported the events to the Head of the Budapest VI/VII District Police Department. He maintained that, during the chase and, again, immediately before firing the lethal shot, he had seen a shiny object in Mr Oláh's hand. He had perceived the latter's sudden move away from the door towards him as an attack, probably with a knife. He further deposed that he had intended to shoot Mr Oláh in his thigh in self-defence. Subsequently, administrative proceedings were instituted against Sergeant L.T. with a view to examining the lawfulness of his use of his weapon. The opinion of a forensic weapons expert was also obtained. On 28 July 1997 the Head of the District Police Department discontinued these proceedings on the ground that “according to the information obtained, the police officer had used his firearm lawfully and professionally”. In the decision, it was established that although Sergeant L.T.'s shot had been aimed at Mr Oláh's thigh, Mr Oláh had in fact been hit on the trunk, because he had been in the act of descending the stairs leading from the entrance door. On 5 August 1997 the applicant, represented by Mr Furmann, lodged a complaint challenging the administrative decision. In reaction to this complaint, the Budapest Police Department suspended the proceedings pending the outcome of the criminal proceedings initiated against Sergeant L.T. (see below). Following Sergeant L.T.'s acquittal, the District Police Department discontinued the administrative proceedings on 21 February 2000. The applicant was informed of this decision. Subsequent to Mr Oláh's death, a second administrative procedure was opened in order to establish the circumstances of the death. On 30 July 1997 an autopsy was carried out by two forensic pathologists. On 2 September 1997 the Budapest V District Police Department discontinued the proceedings, having regard to the competent authority's conclusion that Sergeant L.T.'s use of his firearm had been lawful and to the finding that there was no appearance of any medical negligence in the treatment administered to Mr Oláh. The applicant was informed of this decision. Subsequently, criminal proceedings were instituted against Sergeant L.T. on a charge of homicide. On 1 August 1997 Mr Furmann requested the Investigation Office of the Budapest Regional Public Prosecutor's Office to inform him about the state of these proceedings. On 5 August 1997 Mr Furmann submitted to the Budapest Investigation Office a power of attorney signed by Mr Oláh's mother. Meanwhile, a reporter and a cameraman from Hungarian Television who had been working at the scene of the incident on 24 July 1997 submitted a video and an audiotape recording of a conversation with Mr Oláh's accomplice about a knife found lying on the ground nearby. Both men were heard as witnesses on 1 and 11 August 1997, respectively. Two further witnesses were heard on 15 September 1997. One of them (E.B.) was the eye-witness who had given the tip-off to Sergeant L.T. and had been asked by Sergeant L.T. to call an ambulance; the other (Z.K.) lived in the house where the incident occurred. On 29 September 1997 Mr Furmann submitted two expert opinions which had been prepared at the request of the NEKI. On 30 September 1997 the Investigation Office appointed a forensic medical expert who submitted his opinion on 15 October 1997. On 8 October 1997 the Investigation Office appointed a forensic weapons expert who submitted his opinion on 27 October 1997. The opinion was based on an on-site demonstration. On 14 October 1997 the National Ambulance Service deposed that it had been called at 10.39 p.m. on the evening of the incident. On 29 October and 3 November 1997 the ambulance driver, the doctor and her assistant were heard as witnesses. On 3 November 1997 Mr Oláh's accomplice failed to appear at the Investigation Office where he was to be heard as a witness. He was eventually heard on 22 January 1998. On 19 November 1997 Sergeant L.T. was questioned by the Investigation Office as a suspect. A further on-site demonstration, attended by Mr Furmann, was held at 10.10 p.m. on 9 December 1997 in order to check the visibility conditions. On 30 December 1997 the National Service of Meteorology submitted information on the visibility conditions at the time of the incident. On 10 March 1998 Mr Furmann again requested information about the proceedings. On 19 March 1998 he was informed that the investigation had been completed and that the case had been transferred to the Budapest Public Prosecutor's Office. On 6 May 1998 the Public Prosecutor's Office preferred a bill of indictment against Sergeant L.T. charging him with homicide. On 8 July 1998 the Regional Court heard Sergeant L.T., a witness (Z.K.), the ambulance doctor, the cameraman and the forensic weapons expert. Mr Furmann had not been notified in advance of this hearing. On the same day Mr Furmann sent a letter to the presiding judge requesting that he be notified about the date of the next hearing. In his reply the presiding judge dismissed the request on the ground that Mr Furmann and his client, Mr Oláh's mother, could not be regarded as a party to the criminal proceedings in accordance with sections 53, 55 and 57 of the Code of Criminal Procedure. Nevertheless, the judge informed Mr Furmann of the dates of the subsequent hearings. At 12.10 p.m. on 13 July 1998 the Regional Court conducted an on-site inspection of the scene of the incident. The next hearing was held on 28 September 1998. The reporter, another journalist, the eye-witness E.B., four police officers and Mr Oláh's accomplice were heard as witnesses. Another hearing was held on 23 November 1998. On that occasion four police officers and the ambulance assistant were heard as witnesses. At the next hearing on 11 December 1998 the forensic medical expert and the weapons expert were heard. The parties presented their closing arguments. The public prosecutor proposed that Sergeant L.T. be acquitted by virtue of section 29(2) of the Criminal Code. He argued that the defendant should not be punished because he had been acting lawfully in self-defence even though he had exceeded the necessary force (elhárítás szükséges mértékének túllépése) in the circumstances. According to the public prosecutor, Sergeant L.T. could not have assessed properly the situation with which he was confronted on account of his fear and, given the circumstances, his over-reaction was justified. The public prosecutor however observed that the lawfulness of the use of a firearm in itself did not preclude the commission of a crime and referred to sections 15(1) and 17(2) of the Police Act in this connection. Counsel for the defence pleaded that Sergeant L.T should be acquitted primarily on the ground of the absence of any danger to society and hence the absence of a crime or, alternatively, by reason of lawful self-defence. On the same date the Regional Court acquitted Sergeant L.T., applying section 10(2) of the Criminal Code. The court found it impossible to determine whether Mr Oláh had been armed at the time of the incident. In particular, it remained unclear whether Mr Oláh or his accomplice had had an object in their hands and, if so, whether that object had been a knife, the stolen radio or an object which the offenders had been using to smash the car window. The court observed that the knife apparently found during the inspection of the scene had been lost and could no longer be located in police storage. Moreover, the court, relying on the opinions of the weapons expert and the two forensic pathologists, considered it proven that Mr Oláh had been shot while leaning or moving forward, rather than standing or hiding. Given that it was almost completely dark at the time of the incident, the court accepted that Sergeant L.T. could not properly decipher Mr Oláh's intention when the latter moved towards him. The Regional Court was satisfied that the defendant's action did not constitute a crime. Under sections 52(1) and 54(k) of the Police Act, he had been free to use his gun to avert an attack directed against his life or bodily integrity. His action had therefore not been “materially illegal” (materiális jogellenesség), that is, dangerous to society. In these circumstances, no criminal act had been committed – a conclusion which allowed the court to dispense with the examination of the question of self-defence, in particular whether it was lawful self-defence or excessive. The public prosecutor appealed against this judgment, requesting that the defendant be acquitted under section 29(2) of the Criminal Code. Subsequently, the public prosecutor withdrew the appeal. Consequently, on 1 June 1999 the Regional Court's judgment became final. On 8 January 1999 Mr Furmann requested a copy of the Regional Court's judgment. On 13 October 1999 Mr Furmann, submitting a power of attorney signed by the applicant on 1 October 1999, requested a copy of the case file from the Regional Court. He stated that the case file was needed in order to introduce an application with the European Court of Human Rights. On 20 October 1999 the Regional Court dismissed Mr Furmann's request on the ground that the applicant had not been a party to the criminal proceedings. On 2 November 1999 Mr Furmann appealed against this decision. He relied on the Convention and made references to the Court's case-law under Article 6 on the principle of equality of arms in criminal proceedings. On 6 December 1999 the Supreme Court dismissed the appeal holding that there was no connection between the cases referred to and the applicant's request for a copy of the case file. It was satisfied that the rejection of the request did not hinder the applicant's exercise of her right to lodge an application with the European Court of Human Rights. (1) Liability for damage caused in the sphere of State administration shall be established only if the damage could not have been be prevented by ordinary legal remedies or if the injured party has had recourse to ordinary legal remedies appropriate for preventing the damage. (3) These rules shall also apply to liability for damage caused in the judicial and prosecution spheres, unless otherwise provided by statute. (1) Any person who does an act which is necessary in order to prevent an unlawful attack against himself or another person, his own goods, or those of other persons, or against the public interest, or an unlawful attack directly threatening the above, shall not be liable to punishment. (2) A person shall not be punished either if he exceeds the necessary measure of prevention because he is unable to appreciate it due to fear or justifiable excitement (menthető felindulás). (3) The punishment may, without limitation, be mitigated if the perpetrator is restricted in appreciating the necessary degree of prevention through fear or justifiable excitement. (1) A criminal act is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which is dangerous to society and in respect of which the law imposes punishment. (2) An act or omission shall be deemed an act of danger to society if it violates or endangers the State, the social or economic order of the Republic of Hungary, a person or the rights of citizens. (1) The actions of the police shall not be such as to cause prejudice which is clearly disproportionate to the legitimate aim of the action. (2) If there exists several possible and appropriate actions or coercive measures in a given situation, the act or measure chosen should be the one which, besides ensuring efficiency, entails the least restriction, injury or damage to the person concerned. (2) During police actions, in the application of coercive measures, the infliction of injuries or deprivation of life should be avoided as far as possible. ... A police officer may use his firearm: ... (k) in order to avert an attack directed against his own life, bodily integrity or personal freedom. (1) A victim is a party whose rights or lawful interests have been infringed or endangered by the offence. (2) The victim: (a) may be present at any procedural acts carried out during the investigation, provided that the victim's presence is permitted by this Act, or during the trial, unless this Act states otherwise; (b) may have access to documents concerning him/her after the conclusion of the investigation, (c) may, at any stage of the proceedings, file motions or observations, and request information on his/her procedural rights and obligations, (d) may submit questions to be put to those heard at the hearing and may take the floor. (1) A civil party is a victim who files a civil-law claim for determination in the criminal proceedings. (5) In the event of the victim's death, his/her heir may become a civil party. However, the rights set out in section 53 will be applicable only in relation to the proof of the civil-law claim. (1) If possible, the court shall decide on the merits of the civil-law claim in the judgment or decision terminating the criminal proceedings. If this procedure delays the criminal proceedings significantly, the court may redirect the civil-law claim to other courts. (1) Copies of documents from the criminal case-files shall be issued to the ... civil party ... and his/her representative at their request. | 0 |
train | 001-72584 | ENG | SWE | CHAMBER | 2,006 | CASE OF HELLBORG v. SWEDEN | 3 | Violation of P1-1;Violation of Art. 6-1 (lack of oral hearing);Violation of Art. 6-1 (length of proceedings);Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 8. The applicant was born in 1940 and lives in Akarp. He is the owner of a property known as “Humanisten 1” located in the city of Lund, in the south of Sweden. On the property there is a one-family house, which was built in 1934. 9. The applicant inherited the property from his father, who died in 1991. The area where the property is located was regulated by a city plan (stadsplan) which, in accordance with the provisional regulations under the new Planning and Building Act of 1987 (Plan- och Bygglagen, - hereinafter “the 1987 Act”), became valid as a detailed development plan (detaljplan). In order to facilitate the implementation of the detailed development plan, a more specific “property plan” (fastighetsplan) was adopted with respect to Humanisten 1. 10. The applicant’s late father had applied on 13 June 1989 to the Building Committee (byggnadsnämnden) of Lund for tentative approval (förhandsbesked) of a plan to divide Humanisten 1 and build a new one-family house. The purpose of such an approval, issued under Chapter 8, section 34 of the 1987 Act, was to give a property owner who was planning a building project for which the grant of a building permit was uncertain the possibility to obtain an advance assessment of whether the planned measures may be permitted at all, thereby avoiding unnecessary project work and costs. In assessing an application for a building permit made within two years after the grant of tentative approval, the Building Committee was bound by the determinations made in that approval. According to the detailed development plan in force, only one main building was allowed on the existing property plot (the applicant’s plot corresponded to his property). The request for tentative approval was motivated by the father’s wish to build a house suited to his age, as he had difficulties in walking up and down the stairs of his current home. 11. In February 1990 the Building Committee decided to postpone its reply to the request until a new detailed development plan for the area had acquired legal force, but only until 13 June 1991. Subsequently, on 12 June 1991 the City Building Director (Stadsbyggnadsdirektören) adopted a new detailed development plan for Humanisten 1 by which a division of the property was prohibited. Accordingly, the Building Committee, on 14 August 1991, informed the applicant that he could not expect to be granted a building permit for a new one-family house and therefore did not give tentative approval for the project. 12. As the new owner of the property, the applicant appealed against both decisions to the County Administrative Board (länsstyrelsen, - hereinafter “the Board”) of the County of Malmöhus, claiming that the City Building Director had not been competent to adopt a new detailed development plan since the plan was contentious. He claimed that the refusal to grant tentative approval was also based on false assumptions. On 12 March 1992 the Board, which agreed with the applicant, quashed the City Building Director’s decision to adopt the plan and, on 16 March 1992, quashed the Building Committee’s decision and remitted the matter to the Committee for a new examination. 13. On 15 April 1992 the Building Committee granted the applicant a tentative approval, referring to his father’s initial application (of June 1989) for a tentative approval of a plan to divide the plot – Humanisten 1 – and to build a new one-family house. The decision moreover referred to the County Administrative Board’s decision (of 12 March 1992) to quash the detailed development plan and the earlier refusal of a tentative approval. Without expressing any conditions or reservations, the decision stated that the applicant could expect a building permit for a new one-family house and that this applied provided that an application for a building permit was submitted to the Building Committee within two years from the date of the decision. Finally, it stated that the tentative approval did not imply a right for the applicant to start the construction. The Building Committee referred the matter to the Land Survey (lantmäteri) of Lund to prepare the question of the division of the plot (tomtdelning). 14. On 9 October 1992 the applicant applied for a building permit. After the matter had been considered by the relevant road network and energy authorities, the applicant submitted new plans on 16 November 1992. It appears that those proceedings were at a standstill until January 1997 (see section 4 below). 15. At the beginning of March 1993 the Land Survey recommended that the property plan for Humanisten 1 be repealed in order to facilitate a division of the property enabling the applicant to construct a new house on the resulting new plot. The Land Survey observed that the Building Committee had, with binding effect, made the assessment that the addition of a new one-family house would be consistent with the detailed development plan. A new property plan would not be required; repeal of the existing property plan would be sufficient and the division of the property would be consistent with the detailed development plan and be suitable for its purpose. Several of the applicant’s neighbours opposed the measure with reference to the special character of the neighbourhood. On 17 March 1993 the Building Committee followed the Land Survey’s suggestion and repealed the property plan for Humanisten 1. 16. The owners of two neighbouring properties appealed against the decision to the Board, claiming that the neighbourhood was worthy of preservation due to its special character and that new buildings would spoil the area. The Board visited the area before deciding on 24 September 1993 to reject the appeal. 17. The neighbours appealed to the Government, invoking the same grounds as before the Board. The applicant also submitted his observations. On 14 November 1996 the Government quashed the Board’s decision to repeal the property plan with, inter alia, the following reasoning: “The Government find that the decision to repeal the property plan for Humanisten 1 ought to be considered in its context, namely to make possible a division of the property with the intention of constructing one more family house. The Government observe that the entire block has long been occupied by buildings in accordance with the city plan and plot divisions. The block has 10 plots, the sizes of which vary between approximately 750 m² and 1100 m². .... The Government find that the concentration which will be the result if Humanisten 1, today 810 m², were to be divided into two properties and a new building were to be constructed, involves a not inconsiderable change to the complainants’ immediate surroundings. Nor can such a change be considered to comply with the shape that the block has been given through the city plan and the plot divisions. .... The Government thus find that the suitability of the intended change of the property and the development conditions within the block ought to be examined through a new detailed development plan for the area in which the size and situation of the buildings can also be regulated to a sufficient extent. In view of this and everything else which has emerged in the case, the Government find that the decision to repeal the property plan should be quashed.” 18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for judicial review under the 1988 Act on the Judicial Review of Certain Administrative Decisions (Lagen om rättsprövning av vissa förvaltningsbeslut - hereinafter “the 1988 Act”), submitting that, since the Building Committee’s tentative approval was binding on the examination of an application for a building permit, it effectively precluded an examination on the merits in the present case. Moreover, as the Building Committee had previously considered the suitability of dividing the property when it granted the tentative approval, it was not legally correct of the Government to consider the suitability yet again. The Government’s conclusion that the case should be reviewed through a new detailed development plan therefore lacked a legal basis. The applicant further requested that an oral hearing be held in the case. In a decision of 17 March 1998 the Supreme Administrative Court refused the applicant’s request on the ground that the case could be examined and decided without holding an oral hearing. The applicant was given one month to submit additional written observations. 19. On 4 September 1998 the Supreme Administrative Court, unanimously, found that the Government’s decision was not unlawful and confirmed it. The court held: “According to section 1 of the [1988 Act] the Supreme Administrative Court must examine if the Government’ According to Chapter 1, section 6, of the [1987 Act] land may only be used for development if it is, from a public interest point of view, suitable for its purpose. The conditions on which an examination of suitability should be carried out through the adoption of a detailed development plan - and not solely in a matter concerning a building permit or a tentative approval - are specified in Chapter 5, section 1, paragraph 1, of the [1987 Act]. Thus, according to point 2 of the aforementioned provision, a detailed development plan becomes relevant when a new single building is to be constructed, the use of which will have significant influence on its surroundings. The Government’s assessment that the suitability of the intended change of the property and the development conditions within the block Humanisten ought to be reviewed through a new detailed development plan for the area, is within the scope of jurisdiction of the authorities in planning matters. Hence, the Supreme Administrative Court finds that the decision to quash the lower instances’ decisions regarding the property plan does not conflict with any legal rule in the manner claimed by the applicant. Nor does the examination show that the decision, in any other manner, is contrary to any legal rule. It should therefore be upheld.” 20. A request by the applicant for re-opening of the case was refused by the Supreme Administrative Court on 10 April 2002. 21. In the meantime, the Building Committee, in June 1995, adopted an amended detailed development plan which effectively prohibited a division of the applicant’s property, and the construction of another building on it. Upon appeal, the Board quashed the decision on the ground that it should have been decided by the Municipal Council (kommunfullmäktige) of Lund. After renewed examination by the Municipal Council, it adopted the detailed development plan on 27 February 1997. The applicant appealed against the decision to the Board, which on 18 January 1999 upheld the Council’s decision. It found that the public interest in protecting the cultural heritage of the neighbourhood outweighed the applicant’s private interest. The applicant made a further appeal to the Government, which was rejected on 23 June 2004. 22. On 13 February 1997, after the Office of the Town Architects had given its opinion and the applicant had commented, the Building Committee decided to reject his request of 9 October 1992 for a building permit. On 20 February 1997, the applicant appealed against the above decision to the County Administrative Board. On 10 February 1999, after having granted the applicant several postponements from 15 May 1998 to 25 January 1999, the Board quashed the Committee’s rejection and referred the matter back for a new consideration. 23. On 23 March 1999 the Office of the Town Architects served the Building Committee’s decision of 15 April 1992 to grant the applicant tentative approval on the applicant’s neighbours, several of whom brought proceedings in April 1999 to have the measure quashed. They claimed that, although they were affected by the decision, the Committee had failed to hear them in the case or inform them about the decision. In a decision of 31 March 2000, the Board first found that the neighbours were entitled to appeal against the tentative approval and was satisfied that they had done so within the required time-limit. Although they ought to have been aware of the tentative approval in connection with the property plan issue, the decision had been formally served or notified to them only in March 1999. The Board quashed the Building Committee’s 15 April 1992 decision on the grounds that the tentative approval was contrary to the existing property plan and detailed development plan and the neighbours should have been given the opportunity to express their views on the matter before it was decided. 24. On 3 March 1999 the Building Committee appealed against the Board’s above-mentioned decision of 10 February 1999 to the County Administrative Court (länsrätten) of the County of Skåne. The applicant obtained extensions of time-limits for filing his written submissions in April and May 1999, and in September he asked the court to give priority to the case. 25. Following the Board’s above-mentioned decision of 31 March 2000 on the tentative approval, the applicant appealed against this decision to the County Administrative Court. The latter granted him four extensions between 5 May and 23 August 2000 of the time-limits for specifying his appeal grounds. 26. The County Administrative Court examined both of the above appeals concurrently and on 11 October 2000 it delivered two judgments, one on each appeal. In the first judgment the County Administrative Court rejected the applicant’s appeal and upheld the Board’s reasoning. In the second judgment it held that, since it had confirmed the Board’s decision, there no longer existed a tentative approval which was binding on the Building Committee. Consequently, the Committee’s appeal against the Board’s decision of 10 February 1999 should be granted and the matter referred back to the Board for further consideration. 27. In November 2000 the applicant appealed against both judgments to the Administrative Court of Appeal (kammarrätten) in Gothenburg. In the appeal concerning the tentative approval, the Administrative Court of Appeal granted him seven extensions until 8 May 2001 for the submission of his appeal grounds. As to his appeal concerning the building permit, the applicant was granted two such extensions, also until 8 May 2001. In two separate decisions of 17 December 2001, the Administrative Court of Appeal refused the applicant leave to appeal in each case. 28. In February and March 2002 the applicant appealed to the Supreme Administrative Court. The latter granted him numerous extensions until 29 August 2003 of the time-limits for filing written submissions on the appeal concerning the building permit. On 7 January 2004 the Supreme Administrative Court ordered him to complete his submissions. Concurrently with the above, he was also granted a number of extensions for the filing of his appeal submissions, until 17 December 2003 in the case concerning the tentative approval. On that date the Supreme Administrative Court ordered him to complete his observations. In respect of both appeals, reminders were served on him in February and March 2004. On 15 September 2004 the Supreme Administrative Court refused the applicant leave to appeal in both cases. 29. In separate proceedings in 1997, the applicant requested the District Court (tingsrätten) of Lund to declare that the Municipality of Lund was liable to pay him compensation for both actual and potential damage caused by the Municipality’s refusal to grant his request for a building permit despite having granted him an unconditional tentative approval which was binding. The Municipality denied responsibility. 30. By judgment of 13 October 1998 the District Court declared that the Municipality was liable to compensate the applicant for both actual and potential damage caused by its refusal to grant the applicant a building permit. The Municipality was further liable to pay his legal costs. The District Court took note of the Municipality’s argument that the tentative approval was conditional upon an amendment to the property plan, and that the applicant was aware of the need to modify the property plan and ought to have understood that the positive tentative approval did not mean that he would be able to build without an amendment to the property plan. In the view of the District Court the fact that a claimant was aware that an amendment to the property plan was needed in order to grant a building permit did not dispense the Building Committee from specifically reviewing and justifying its position as to whether the desired measure was authorised by existing plans. What the applicant may have known about existing plans was therefore of no significance in this context. Since the applicable plans did not allow the grant of a building permit and since an amendment to the plan could not be a condition attached to a tentative approval, such approval should not have been granted. Nor was such knowledge significant for the assessment of his application for a building permit, refused on 13 February 1997. On the whole, the refusal was erroneous. The District Court found that the Building Committee had disregarded a clear and unambiguous provision in the 1987 Act, i.e. Chapter 8 section 34, which stated that a tentative approval was binding if an application for a building permit was made within two years from the date on which the tentative approval was granted. Moreover, the District Court found it remarkable that the Building Committee had taken almost four and a half years to reject the request for a building permit since the average time to process such a request was six to eight weeks, according to testimony given by the city architect. Thus, the court considered that the Building Committee’s handling of the case had involved such fault and neglect in its exercise of public authority that the Municipality was liable to pay compensation. 31. The Municipality appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge, which on 25 October 2000 upheld the lower court’s judgment in full. As no further appeal was lodged, the Court of Appeal’s judgment acquired legal force on 23 November 2000. 32. In 2001 the applicant, invoking the above declaratory judgment, instituted civil proceedings against the Municipality requesting compensation in an amount of SEK 3,000,000 for the damage he had suffered due to the refusal to grant him the building permit. He claimed that this damage corresponded to the market value of the part of his property upon which he would have built the house. The Municipality contested the request. 33. In a judgment of 4 March 2003, the District Court of Lund noted that the proceedings relating to the building permit were still pending and that it was improbable that he would be granted such a permit. However, even if he were to be granted a permit, the decision would most likely be quashed on appeal. Thus, it rejected the applicant’s claim on the ground that he had not shown that he had suffered any actual damage as a consequence of the Municipality’s fault and neglect. The applicant appealed against the judgment to the Court of Appeal. 34. By a judgment of 19 December 2003, the Court of Appeal upheld the District Court’s judgment of 4 March 2003, sharing the latter’s view that the applicant had failed to show that a building permit granted by the Municipality would have stood after the review by higher instances. The Municipality could reasonably argue that the question of damage could not therefore be assessed only on the basis of the fact that the Municipality was formally obliged to grant the applicant a building permit. It found that the applicant had not been able to demonstrate that the consideration of his application for a tentative approval by the Municipality of Lund, while blameworthy, had led to his being denied a definite right to divide and build a new house on his property. Nor had he demonstrated that the Municipality’s handling of his case had caused the damage for which he had claimed compensation. 35. The applicant appealed against the judgment to the Supreme Court, which on 23 May 2005 refused the applicant leave to appeal. 36. The 1987 Act entered into force on 1 July 1987 and contains provisions about the planning of land and water areas as well as buildings. Their purpose is to promote the development of a society characterised by equal and good living conditions for people today and for future generations, whilst having due regard to the freedom of the individual (Chapter 1, section 1). The provisions of the 1987 Act which are relevant to the present case read as follows: “Chapter 1 - Introductory provisions Section 5 When issues are examined in accordance with this Act, consideration shall be given to both public and private interests unless otherwise provided. Section 6 Land shall only be used for development if it is suitable for this purpose from the public interest point of view. The examination of suitability is carried out in connection with a planning procedure or during the examination of an application for a building permit or tentative approval.... Chapter 5 - Detailed development plans and area regulations Section 1 The examination of the suitability of the site for development and the regulation of the manner of design of the area of construction are to be carried out in accordance with a detailed development plan, which applies to 1. new continuous developments; 2. new individual buildings, the use of which will have significant impact on the surroundings or which are to be located in an area where there is considerable demand for building sites, or where the examination of the proposed building cannot be carried out in connection with the review of the application for a building permit or tentative approval.... Chapter 8 - Building permit, demolition permit and land permit Section 34 Upon application, the Building Committee shall give tentative approval for a particular measure, requiring a building permit, to be permitted on a designated site. When a tentative approval is granted, it shall contain the necessary conditions. The tentative approval is binding if an application for a building permit is made within two years from the date when the tentative approval was granted. If an application for a building permit is not made within the time specified in the second paragraph, the tentative approval will cease to be valid. ...” 37. The 1988 Act was introduced as a result of the European Court of Human Rights’ findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time. Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or any other public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3 of the Instrument of Government (regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions falling outside its scope, none of which is relevant in the instant case. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision “conflicts with any legal rule” (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp.23-24), its review of the merits of the cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case. If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority. The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court could decide to hold an oral hearing on specific matters if this was likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996 (1996:420), section 3a of the 1988 Act provides: “The [Supreme Administrative] Court shall hold an oral hearing if this has been requested by the person seeking judicial review and it is not manifestly unnecessary.” | 1 |
train | 001-23908 | ENG | RUS | ADMISSIBILITY | 2,004 | DENISOV v. RUSSIA | 2 | Inadmissible | Christos Rozakis | The applicant, Mr Anatoliy Aleksandrovich Denisov, is a Russian national, who was born in 1950 and lives in Gatchina. On 20 August 2002 the applicant brought proceedings against a local authority alleging that the authority had not ensured a good upkeep of his house. On 30 September 2002 the Gatchina Town Court refused to initiate the proceedings because the applicant had not paid a court fee. On 13 November 2002 the Leningrad Regional Court quashed this decision on appeal as insufficiently reasoned. On 20 November 2002 the Gatchina Town Court again demanded the applicant to accompany his action with a court fee. On 25 December 2002 the Leningrad Regional Court upheld this decision on appeal. On an unspecified date the applicant lodged a supervisory-review complaint against these decisions. On 11 April 2003 a judge of the Leningrad Regional Court refused to lodge an application for supervisory review. On 10 September 2003 the acting President of the Leningrad Regional Court upheld the decisions, including that of 11 April 2003. On 14 November 2002 a new Code of Civil Procedure (“CCivP”) was enacted to replace that of 1964. The CCivP entered into force on 1 February 2003. Section 4 of the CCivP defines the procedures by which judicial acts which have come into force may be re-examined. Chapter 41 defines the supervisory-review procedure: “1. Judicial acts which have come into force ... may be appealed against ... in a supervisory-review court by parties to litigation and other persons if their rights and legal interests are affected by the judicial acts. 2. Judicial acts may be appealed against in a supervisory-review court one year after they come into force. 3. Where a public prosecutor participated in litigation, officials of the prosecutor's office ... shall have the right to appeal to a supervisory-review court against judicial acts which have come into force.” “2. A [supervisory-review application] against: i) ... a cassation judgment of ... a Regional Court; ... a judgment of a District Court ... [shall be brought] before the Presidium of a ... Regional Court...; ii) ... a cassation judgment of ... a Regional Court; ... a judgment of a District Court ... [shall be brought] before the Civil Section of the Supreme Court, if the Presidium of a ... Regional Court has dismissed applications against these judgments;... 3. [Supervisory-review complaints] against supervisory-review judgments of the Civil Chamber of the Supreme Court ... shall be brought to the Presidium of the Supreme Court if such judgments disrupt the unity of court jurisprudence.” “2. After examination of a [supervisory-review application] a judge shall decide as follows: either i) to obtain the case-file, if there are doubts as to the lawfulness of the judicial act; or, ii) not to obtain the case-file, if under the federal law the reasons of the [supervisory-review application] cannot entail the quashing of the judicial act. 6. The President of the [competent] court may overrule the judge's decision not to obtain the case-file. In this case the President of the relevant court ... shall give his own decision to obtain the case-file.” “2. After examination of the case obtained by the supervisory-review court a judge shall decide as follows: either i) not to pass the case for consideration on the merits by the supervisory-review court; or, ii) to pass the case for examination of the [supervisory-review application] by the supervisory-review court.” “2. The President of the [competent] court may overrule the judge's decision not to pass the case for consideration on the merits by the supervisory-review court. In this case the President of the relevant court ... shall give his own decision to pass the case for consideration on the merits by the supervisory-review court.” “3. The court hearing may be attended by parties to litigation, their counsel, other persons who have lodged the supervisory-review application ... if their rights and legal interests are directly affected by the judicial act appealed against... [A representative of a prosecutor's office] may attend the hearing if a public prosecutor participated in the case. 5. If the persons listed in p. 3 of the present Article appear in the court hearing, they may make oral submissions on the case...” “The grounds for quashing or varying judicial acts of lower courts in supervisory-review proceedings shall be significant violations of substantive or procedural law.” “The President or a Deputy President of the Supreme Court may lodge with the Presidium of the Supreme Court a reasoned application for supervisory-review of judicial acts to ensure the unity of court jurisprudence and legality.” “1. After examination of a case under the supervisory-review procedure, a court may: i) uphold the decision of the court of first, second or supervisory-review instance and dismiss the [supervisory-review application]; ii) quash the decision of the court of first, second or supervisory-review instance in full or in part and remit the case for a fresh examination; iii) quash the decision of the court of first, second or supervisory-review instance in full or in part and shelve the case or close the proceedings; iv) leave in force one of judicial acts passed in the case; v) quash or vary the decision of the court of first, second or supervisory-review instance and pass a new decision without remitting the case for a fresh examination if there has been a mistake in the application and interpretation of substantive law...” | 0 |
train | 001-112131 | ENG | CYP | ADMISSIBILITY | 2,012 | IZZET MEHMET AND OTHERS v. CYPRUS AND OTHER APPLICATIONS | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 1. A list of the applicants is set out in the appendix. 2. The applicants are either owners, or the heirs of owners, of property which is governed by the custodianship regime under Law 139/1991. None of the applicants have taken proceedings in the domestic courts or brought such proceedings to a conclusion. The third applicant in no. 5702/10 claims to have proceedings pending but no documents or details have been provided. 3. The first two applicants wished to transfer as gift their properties in the Republic of Cyprus to their niece and nephew, the third and fourth applicants. On 10 June 2008, the Custodian refused permission for the transfer as the properties were classified as Turkish-Cypriot properties. 4. The applicant was one of the heirs and an administrator of property of his deceased father and mother, Turkish Cypriots who fled north in 1963. This property was now being used as a primary school. The applicant contacted the Minister of Education with a view to claiming his property rights and damages. No response was received. 5. The applicants are the heirs and administrators of the estate of three deceased Turkish- Cypriot relatives consisting of a property in the Republic of Cyprus. In 2003 they discovered the house had been demolished and another building erected. They made an application to the Ministry of Interior for the return of property and payment of loss of use; the authorities refused. 6. The applicant, a Turkish Cypriot, bought land in 1958 and rented it out. The tenant paid rent until 1974. The Cypriot Government later expropriated part of the land, building a road down the middle. Under Law 139/91, the Custodian appeared to have terminated the lease with the applicant’s tenant and rented the property to another person. 7. The three applicants are Turkish Cypriots, who left Cyprus either before or in 1974 and who owned or have inherited property in the Republic. The third applicant stated that his father’s property had been expropriated and a bus terminal built there. The second applicant brought court proceedings (no documents provided) which he said were still pending; the other applicants stated that no proceedings were brought due to the failures of their lawyers. 8. The applicant, a Turkish-Cypriot owner of property sold to the Government, made a claim for compensation for loss of use from 1974 to 2006 which was refused by the authorities who relied on Section 9 of Law 139/91. No proceedings were taken. 9. The applicant owned, wholly or in part, twelve plots of land in the Republic which he had not been able to use since 1963. One plot was used as a Post Office by the authorities and another was rented out as a giftshop without his consent. No proceedings had been taken. 10. The applicants are the heirs (spouse and children) of the deceased owner of property in the Republic of Cyprus. Greek Cypriots have been using the property, a house and shops, since 1963, without their consent. 11. The 21 Turkish-Cypriot applicants, who abandoned their homes and property in the village of Matyat in 1963, wrote a petition to the Ministry of Internal Affairs in 2010 for return of land and compensation. No reply was received. 12. The applicant, a Turkish-Cypriot who left the south in 1974, owns 11 properties from which she previously collected rents. On 4 March 2010, she made a claim to the Ministry of Internal Affairs for return of her property; no answer was received. 13. The applicants, Turkish Cypriots, own, wholly or in part, three plots in the Republic, bought in 1973. Since 1974, they have been unable to use or develop these plots. 14. The applicants are heirs of Turkish Cypriots who owned property in the south and fled in 1974; the property had tenants but no rent had been received since. On 27 April 2010 the applicants applied to the authorities for restitution of their property without success. 15. The applicants are heirs of their Turkish-Cypriot father who owned a house and business property in the Republic of Cyprus. The family left in 1974. Tenants declined to pay rent due to the custodianship regime and gave rents to the authorities. The applicants sought unsuccessfully after the death of their father in 1985 to obtain possession of the properties. Some of the property has been demolished, other plots compulsorily acquired by the State. No court proceedings were taken. 16. The relevant case-law and laws are set out in Kazali and Others v Cyprus (no. 49247 et al, §§34-100, decision of 6 March 2012). | 0 |
train | 001-103658 | ENG | ROU | ADMISSIBILITY | 2,011 | CASE OF ANTONESCU v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 1. The applicant, Mihai-Bogdan Antonescu, is a Romanian national who was born on 1 July 1965 and lives in Bucharest. He was represented before the Court by Ms Iasmina Simona Pîrvulescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Mr RăzvanHoraţiu Radu, from the Ministry of Foreign Affairs. 2. At the date of the events, the applicant was working in the city of Cluj as a supervisor (“supervizor”) at the local weekly newspaper “ATAC DE CLUJ”. 3. One issue of that newspaper (29 July – 5 August 1999) included an anonymous article signed under the pseudonym “Măcelaru’s cell phone” (Celularu’ lu’ Măcelaru) which described certain scandalous and alleged illegal acts of D.M., the chief police officer in the town of Cehu Silvaniei, Sălaj county. D.M. tried to find out who the author of the article was from the newspaper, but as he could not obtain this information he filed a criminal defamation complaint against the applicant and against I.G., the regional coordinator at the same Cluj newspaper. D.M. considered that both accused had violated journalistic ethics by allowing the publication of such a defamatory article. 4. By the time the criminal proceedings were initiated, the applicant had left his job in Cluj and was living and working in Bucharest. His official residential address registered with the police was at that time an address in the city of Câmpina, even though he was not in fact living there. He had not registered his new address with the police. 5. The applicant submits that he had not been aware of the trial against him during the time that the first-instance proceedings were underway, as: (i) all of the the procedural documents had been sent by way of notification to his registered address in Câmpina and; (ii) later summonses had been displayed at the Cluj local council. 6. During the first-instance proceedings, the applicant and I.G. were represented by the same defence lawyer. The transcript of the hearing held on 16 March 2000 mentions that the defence lawyer had stated that the applicant had been aware of the trial and that the lawyer had not been hired by the applicant or by I.G., but by a third party, namely the new coordinator of the newspaper. He had also mentioned that he had not been instructed to make any requests on behalf of the defence and that he would make written submissions. 7. The written submissions filed by the lawyer in the defence of the applicant consisted of the following text: “The only explanation for the drafting of the article complained of is the total lack of judgment [on the part] of A. (the applicant). The material presented before the court is highly trivial and abnormal. If the accused had presented himself in front of the court or at least contacted me, I would have asked for an expert psychiatric opinion to be ordered [in order] to establish his degree of judgment. In my opinion, it is impossible that as at the date of [the] publication [of] the material he was not crazy. On the other hand, it is also impossible that any of the readers believed a single bit of the article. [...] The only circumstance which I can raise in his defence is that [this] is the first time he is being tried before a court for the commission of such an offence. He does not have criminal record.” 8. On 23 March 2000, the Cluj Napoca Court of First Instance delivered its judgment, sentencing the applicant to the payment of a criminal fine of 1,500,000 Romanian lei (ROL) and the payment of civil damages of ROL 5,000,000 jointly with the other co-defendant. The court of first instance found the applicant guilty of aiding and abetting the offence of defamation, considering that by the nature of his function as supervisor he could have prevented the publication of the article. 9. The applicant became aware of the proceedings on an unspecified date and he filed an appeal on points of law against the judgment of 23 March 2000, requesting that the judgment be quashed and that a re-examination of the case be ordered. During the appeal proceedings he was represented by a lawyer of his choice. 10. He presented two grounds of appeal: firstly, the lack of proper summons procedure and lack of diligence on the part of the authorities in seeking to find out his real address; secondly, a breach of his right to mount a defence on account of the fact that the lawyer who had represented him in front of the first-instance court had not defended him properly, but on the contrary had acted against his interests, as could be seen from the written submissions put forward. The applicant further submitted that he had not tried to avoid attending the proceedings, as the court of first instance had held, but that he had not been aware of them due to the irregularities in summoning him. He concluded that these irregularities had prevented him from taking part in the first-instance proceedings and therefore that the judgment had to be quashed and referred back for fresh consideration. 11. On 5 July 2000, a first hearing of the appeal took place. The applicant lodged a request for postponement, in order to hire a lawyer. During the next hearing, held on 9 August, the applicant appeared before the court, assisted by a lawyer of his choice. As no representative of the newspaper was present, the parties, including the applicant, asked for a postponement. A new hearing date was set for 27 September 2000. The parties present took note of the new hearing date. On 27 September 2000, the applicant did not attend the hearing. His lawyer was present and argued that the appeal on points of law should be allowed, given the irregularities in summoning the applicant that had occurred during the first-instance proceedings. No requests for further evidence were lodged. The Cluj County Court postponed the delivery of the decision to a later date. 12. By a final decision of 11 October 2000 the Cluj County Court dismissed the applicant’s appeal, finding that he had been legally served the summons to appear in front of the first-instance court. The county court considered that the applicant had been legally summoned at his home address. The police had confirmed that the address noted in the summons was his official address and that he had not registered any new address with them. They had also indicated that his parents lived at his official address, but that his parents had declared that they did not know his new address. Taking these facts into account, the first-instance court had tried to summon him at his work place in Cluj, but a letter from the newspaper by way of response had indicated that he did not work there anymore and that they were not aware of his new address. Thus, it had been decided, in accordance with the provisions of the Code of Civil Procedure, to display the summons at the local council’s office. Taking into account these elements, the County Court concluded that the summons procedure had been in compliance with the law. The County Court then reviewed the legality of the first-instance judgment and concluded that the lower court had correctly assessed the facts and applied the law, and thus upheld the first-instance judgment. 13. Article 171 of the Romanian Code of Criminal Procedure (“the CCP”) lists the cases where assistance by a lawyer is compulsory in the framework of criminal proceedings, namely if the accused is under aged, is doing his military service, is held in a re-education centre, when he has been arrested, when the prosecutor or the courts consider that he needs to be represented, as well as in other cases provided for by law. During the trial, the assistance of a lawyer is also required when the possible penalty for the crime committed is imprisonment for more than 5 years or lifelong detention. 14. Article 177 of the CCP, as in force at the material time, provided the following with regards to summonses: “(1) The accused shall be summoned at the address where he lives and, in the event that this address is unknown, at the address of his workplace, through the human resources department of the unit in which he works (...) (4) In the event that the address where the accused lives or works is unknown, the summons shall be posted at the headquarters of the local council having territorial jurisdiction over the place where the crime was committed (...)” 15. Article 385 § 3 of the CCP provides that where an appeal on points of law is lodged against a judgment which had not been subject to an appeal, the appellate court has the duty to analyse all aspects of the case and not to limit its examination to the grounds for appeal on points of law listed by the CCP. 16. Article 385 of the CCP lists the grounds for appeal, amongst which is that a lower court has proceeded to judge a case in the absence of an accused when his presence is compulsory according to the law, or in the absence of a civil defendant when his presence is compulsory. Another reason for an appeal on points of law listed under this provision is that the lower court judged the case without properly summoning one of the parties, or when, even if lawfully summoned, it was impossible for that party to present herself before the court or to inform the court about the impossibility of doing so. 17. The Romanian Criminal Code provides that defamation is punishable by criminal fine. No imprisonment sentence is foreseen for this crime. 18. Articles 70-74 of the Law no. 51/1995 on the organisation and the exercise of the lawyers’ profession regulate the procedure for imposing disciplinary sanctions on members of the bar association. | 0 |
train | 001-22588 | ENG | ESP | ADMISSIBILITY | 2,001 | SANCHEZ NAVAJAS v. SPAIN | 1 | Inadmissible | Georg Ress | The applicant, Mr Juan Sanchez Navajas, is a Spanish national who was born in 1958 and lives in Rute (Province of Córdoba). The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is an employee of the Coria del Río Town Council and a trade-union representative elected by the council employees. In 1993, in his capacity as a trade-union representative, the applicant asked the mayor to grant him fifteen hours’ paid leave for trade-union activities for the month of September 1993. That request was turned down by the mayor. The applicant sought judicial review of that decision by the Andalusia High Court of Justice which, in a judgment of 20 July 1994 granted his application, quashed the impugned decision and made a declaration that he was entitled to the requested paid leave. Following an exchange of correspondence between the applicant and the mayor, the latter granted the applicant the requested leave on 20 November 1994 but required him to account for his time. By a memorandum dated 5 November 1994 the applicant stated that he had spent the time he had been allocated studying new legislation on trade-union elections and its consequences on collective bargaining. On 9 November 1994 the mayor decided to deduct two days’ pay from the applicant’s wages for the time he had spent studying the legislation on trade-union elections, on the ground that it had been spent in his own interest rather than in that of the staff he represented. The mayor considered that the applicant should have used his own time if his aim was personal development. If, on the other hand, he wished to improve his vocational skills, he should have attended one of the courses available. The applicant sought judicial review of that decision, considering that it ran counter to the right to trade-union freedom guaranteed by Article 28 of the Constitution. In a judgment of 6 November 1996 the Andalusia High Court of Justice dismissed his application, holding that studying provisions of trade-union law was a private activity that could not be carried out at the taxpayer’s expense. It said, inter alia: “All this occurred in the context of appalling relations between the council and its employee, who had devoted his time over the years to making scores of applications for judicial review on the most tenuous of grounds or on the slightest pretext, thereby demonstrating the lack of any common ground between the parties. That situation left the applicant dissatisfied and ill at ease with his work and his output was no more than the bare minimum. In the tense, antagonistic climate that prevailed between colleagues who were duty bound to cooperate and serve the general interest, the sole solution is to apply the law to the letter... In that regard, it is clear that Mr Sanchez Navajas has no absolute right to paid leave from work to allow him to train and learn about recent legal issues... That is a private activity that should not be conducted at the taxpayer’s expense.” The applicant lodged an appeal against that judgment, in which he relied on Articles 24 (right to a fair trial) and 28 (right to trade-union freedom) of the Constitution. By a decision of 15 November 1999, the Constitutional Court dismissed the appeal as being unfounded, holding that the Andalusia High Court of Justice had applied the legislation without undermining the essence of the fundamental right to trade-union freedom. Article 11 of Law no. 9/1987 of 12 June 1987 on Representative Bodies, the Determination of Working Conditions and Staff Participation in Public Authorities provides that staff representatives shall be granted a number of hours’ paid leave for trade-union activities. According to the applicant, the Act did not specify the trade-union activities for which paid leave was available. | 0 |
train | 001-96167 | ENG | SVK | CHAMBER | 2,009 | CASE OF SPATKA v. SLOVAKIA | 4 | Violation of Article 6 - Right to a fair trial | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | 4. The applicant was born in 1963 and lives in Lučatín. A. Applicant's action of 1997 5. On 21 August 1997 the applicant claimed a sum of money from an association and its three individual members before the Banská Bystrica District Court. 6. In November 1997 the District Court held a hearing at which neither the applicant nor his lawyer appeared. The applicant also failed to appear at the hearing of December 1997. 7. Another hearing was scheduled for 12 March 1998 but did not take place due to the absence of the judge. A further hearing was scheduled for 23 April 1998 but could not take place because it turned out that the judge who had been charged earlier that day with replacing the judge dealing with the case was the wife of the lawyer of the defendants. 8. On 10 December 1998 the District Court discontinued the proceedings in respect of two of the defendants. 9. In letters of 20 September 1999 and 21 February 2001 the President of the District Court acknowledged that there had been unjustified delays in the proceedings. 10. On 20 March 2001 and 5 April 2002 the District Court held further hearings. The former took place before a substitute judge who had been charged with replacing the judge initially appointed on health grounds earlier that day. Consequently, he had no in-depth knowledge of the case file and he could not proceed with the case. The latter hearing took place before a further judge who, again, was not familiar with the details for the case. It was adjourned sine die with a view to obtaining expert evidence. 11. In the meantime, on 31 January 2002, the Banská Bystrica Regional Court dismissed as unfounded the applicant's challenge to all judges of the District Court. 12. On 9 January 2003 the District Court appointed an expert and ordered that the applicant pay an advance on the expert's fees. The applicant appealed against the latter ruling. 13. On 24 June 2003 the District Court discharged the expert and appointed another one. On 29 July 2003 it corrected clerical errors in that decision. 14. On 30 January 2004 the District Court urged the expert to submit his opinion. The expert first requested an extension of the time-limit for the elaboration of his opinion and, subsequently, an exemption from his obligation to elaborate the opinion. 15. On 9 June 2004 the District Court did not exempt the expert from his obligation and urged the submission of the opinion by 8 October 2004. The expert requested the District Court to appoint a different expert due to his heavy workload. On 24 October 2004 the District Court prolonged the time-limit for elaboration of the expert opinion and warned the expert that a fine would be imposed on him in the absence of a reply. On 21 January 2005 the expert filed his opinion. 16. Between 5 April 2005 and 12 December 2006 the District Court held eleven hearings. They were adjourned with a view to obtaining further evidence and summoning witnesses and the defendants. 17. On 15 December 2006 the District Court delivered a judgment dismissing the action. 18. On 19 April 2007 the Regional Court, upon the applicant's appeal, partly confirmed and partly revised the first-instance judgment. 19. On 27 November 2007 the Supreme Court, upon the applicant's appeal on points of law, quashed the appellate court judgment. 20. On 4 September 2008 the Regional Court approved the friendly settlement reached between the parties. The decision became final on 9 October 2008. 21. On 13 September 2002 the applicant lodged a complaint with the Constitutional Court in respect of delays in the proceedings before the District Court. On 28 May 2003 the Constitutional Court found that the District Court had violated the applicant's right to a hearing within a reasonable time, awarded him SKK 45,000 in respect of non-pecuniary damage, ordered the District Court to proceed with the action promptly and reimburse the legal costs. 22. The Constitutional Court found that the subject-matter of the proceedings was not of any particular legal or factual complexity. No delays or procedural inactivity could be imputed to the applicant apart from his and his lawyer's absence at the hearing in November 1997. 23. As to the District Court's conduct, the Constitutional Court observed that the action was still pending at first instance without a single decision on the merits having been taken. The District Court had been inactive or its treatment of the case had been inefficient and, at times, even erroneous in the period after 23 April 1998. | 1 |
train | 001-57644 | ENG | CHE | CHAMBER | 1,990 | CASE OF HUBER v. SWITZERLAND | 2 | Violation of Art. 5-3;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;R. Pekkanen | 10. Mrs Jutta Huber, a Swiss national, resides in Zürich. A District Attorney (Bezirksanwalt) of Zürich, Mr J., issued instructions to the police (Vorführungsbefehl) requiring her to be brought to give evidence as a witness on 10 August 1983. He did so in connection with a criminal investigation concerning two persons - Mr K. of Hamburg and Mr B. of Zürich - suspected of living on the earnings of prostitution and of procuring. 11. On 11 August 1983 the applicant was taken by the Zürich municipal police to the District Attorneys’ Office (Bezirksanwaltschaft) in that town, where she was questioned as a witness by District Attorney J., although no summons to appear as a witness (Vorladung zur Zeugeneinvernahme) had been issued. In answer to his questions, she admitted making a living from prostitution, but maintained that she knew Mr K. and Mr B. only by name and that she did not pass on to them any of her earnings. 12. On concluding his examination, the District Attorney signed a detention order (Verhaftsverfügung) remanding the applicant in custody on grave suspicion of having given false evidence. According to this order, members of the "Hell’s Angels" of Zürich and Hamburg were strongly suspected of having brought to Zürich German prostitutes, some of whom had married Swiss nationals who received payment for this. The women were then encouraged, partly under threat, to engage in prostitution under the protection of the "Hell’s Angels", who were paid a part of the proceeds in exchange. There were strong grounds for supposing that Mrs Huber was one of these women. When appearing as a witness, she had denied any contact with the "Hell’s Angels", which appeared unlikely to be true. The order referred in particular to the danger of collusion and the possibility that evidence might be tampered with. It stated further that the applicant could appeal within 48 hours to the Public Prosecutor’s Office (Staatsanwaltschaft) of the Canton of Zürich. 13. Mrs Huber was released on 19 August 1983. 14. On 12 October 1984 District Attorney J. instituted proceedings before the Judge in Criminal Cases (Einzelrichter in Strafsachen) at the Zürich District Court (Bezirksgericht). His indictment (Anklageschrift) alleged that the applicant had given false evidence in judicial proceedings and, as a possible additional charge (eventualiter), that she had been an accessory to a criminal offence. He sought the imposition on Mrs Huber of a fine of 5,000 Swiss francs. The trial took place on 10 January 1985, after the indictment had been accepted (zugelassen, Article 165 of the Zürich Code of Procedure - Strafprozessordnung, "StPO"); the District Attorney was not present. The accused’s lawyer stated on that occasion (translation): "In this case we are confronted in the first place with a violation of ... Article 5 para. 3 (art. 5-3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that anyone who is arrested or detained in accordance with the provisions of Article 5 para. 1 (c) (art. 5-1-c) ... must be brought promptly before a judge or other officer authorised by law to exercise judicial power. This never happened in the present case. Indeed the person who remanded the accused in custody, District Attorney J., is now also prosecutor [Ankläger]." 15. On 10 January 1985 the District Court acquitted Mrs Huber on the ground that she had never been validly summoned to appear as a witness (vorgeladen zur Zeugeneinvernahme), which made her testimony unlawful and inadmissible. The judgment did not refer to the defence argument based on Article 5 para. 3 (art. 5-3) of the Convention. 16. On appeal (Berufung) by the prosecution, the Court of Appeal (Obergericht) of the Canton of Zürich fined the applicant 4,000 Swiss francs for attempting to give false evidence. In its judgment of 13 September 1985, the appeal court found that the accused’s testimony was not unlawfully obtained and could therefore be used in evidence. In addition, it referred to the monitoring of telephone conversations between Mrs Huber and Mr K., carried out by the German authorities who had communicated the transcript thereof to the Swiss judicial authorities in accordance with the system of mutual assistance in criminal matters. The court inferred from this evidence that the applicant in fact knew Mr K. and Mr B. On the question of the issue raised under Article 5 para. 3 (art. 5-3) of the Convention, the appeal court said (translation): "Finally, ... the appellant’s lawyer’s objection that, on her arrest and in contravention of Article 5 para. 3 (art. 5-3) of the Convention, the accused was not brought before a judge or other officer authorised by law to exercise judicial power is unfounded. For, according to the case-law of the Federal Court, the Zürich District Attorney also exercises judicial power within the meaning of Article 5 para. 3 (art. 5-3) of the Convention at the stage of the investigation (ATF [Arrêts du Tribunal fédéral suisse] 102 Ia 179)." 17. On 1 July 1986 the Court of Cassation (Kassationsgericht) of the Canton of Zürich dismissed Mrs Huber’s application for a declaration of nullity (Nichtigkeitsbeschwerde). It took the view that the submission relating to Article 5 para. 3 (art. 5-3) could not be taken into account in this instance. If Mrs Huber had wished to challenge the District Attorney on this point, she should have done so during the investigation. 18. On 22 August 1986 Mrs Huber lodged a public-law appeal with the Federal Court. She complained, inter alia, that, notwithstanding Article 5 para. 3 (art. 5-3), the same District Attorney had both ordered her detention on remand and drawn up the indictment. 19. The Federal Court dismissed the appeal by a judgment of 24 November 1986, which was served on 18 December. As to the complaint based on Article 5 para. 3 (art. 5-3), it held as follows (translation): "As the appellant has long since been released from detention on remand, she no longer has a current, practical interest in a ruling on [her] complaint, for which reason the Court can no longer deal with it. The objection would in any event be unfounded since both the Federal Court (ATF 102 Ia 179 et seq.) and the European Court of Human Rights (the Schiesser judgment of 4 December 1979) have declared that at the stage of the investigation the Zürich District Attorney qualifies as an ‘officer authorised by law to exercise judicial power’ within the meaning of Article 5 para. 3 (art. 5-3) of the Convention." 20. The Canton of Zürich is divided into eleven districts, each of which has a District Attorneys’ Office with one or more Attorneys. The status and powers of District Attorneys were laid down in the Courts Act of 13 June 1976 (Gerichtsverfassungsgesetz, "GVG"), which came into force on 1 January 1977 and which in substance re-enacted the provisions of an Act of 29 January 1911. Ordinary District Attorneys are elected by universal suffrage for a term of office of four years (section 80 GVG). If necessary, the Cantonal Government appoints Special District Attorneys for a specified period (sections 81 and 87 GVG). Both Ordinary and Special District Attorneys are subordinate to the Principal Public Prosecutor who in turn comes under the authority of the Department of Justice and the Government (Regierungsrat) of the Canton of Zürich. 21. District Attorneys carry out three different functions. 22. The investigation (instruction) of criminal cases comes within the competence of the prosecuting authorities (section 73 GVG). The District Attorney conducts the investigation except in those cases where it is entrusted by law to the Principal Public Prosecutor or a judge (Article 25 StPO). 23. The District Attorney may make a detention order (Verhaftsbefehl - Article 55 StPO), the grounds for which he must state. He has to hear an arrested suspect within 24 hours (Article 64 StPO). During this first interrogation, at which the suspect’s lawyer is not normally present, the suspect must be clearly informed of the reasons prompting the suspicions held against him (Article 65 StPO) and of the existence of a right of appeal against the order (1956 Circular from the Public Prosecutor’s Office). Detention on remand ordered by the District Attorney may not exceed 14 days; this period may be extended by the President of the District Court or, in cases coming within the jurisdiction of the Assize Court, the President of the Indictments Division of the Court of Appeal (Article 51 StPO). 24. In carrying out the investigation, the District Attorney is under a duty to establish both incriminating and exonerating evidence with equal care (Article 31 StPO). 25. The District Attorney is the prosecuting authority before the "Judge in Criminal Cases" and before the District Courts in cases concerning petty offences and misdemeanours; for the higher cantonal courts (the Court of Appeal and the Assize Court - section 72 GVG), this function is performed by the Principal Public Prosecutor. 26. Unless he finds that there is no case to answer, the District Attorney, or, depending on the seriousness of the offence, the Principal Public Prosecutor, must institute the main proceedings (Hauptverfahren) by drawing up the indictment (Article 161 StPO). In preparing the indictment, he has to take account of both incriminating and exonerating evidence (Article 178 para. 2 StPO), without setting out the grounds of suspicion or any legal considerations (Article 162 para. 3 StPO). The President of the District Court, or the President of the Indictments Division of the Court of Appeal, as the case may be, decides whether to accept or reject the indictment (Article 165 StPO). 27. Before the trial court, the District Attorney has the status of a party in the proceedings (Article 178 para. 1 StPO). He assumes the role of prosecuting authority, but is not required to attend the hearing unless the sentence sought exceeds eighteen months’ imprisonment or additional investigative measures are ordered. 28. Finally, the District Attorney is empowered to issue a punishment order (Strafbefehl) if the accused has admitted his guilt and if a fine (Busse) or a prison sentence of not more than one month is deemed sufficient (Article 317 StPO); however, the person concerned is entitled to enter an objection (Einsprache) to the punishment order, as is the Principal Public Prosecutor (Article 321 StPO). 29. The combination of the functions of investigation and prosecution has given rise to case-law - at cantonal and federal level - which has recently been confirmed. 30. In a judgment of 13 June 1988 (Ante Djukic gegen Staatsanwaltschaft des Kantons Zürich), the Cantonal Court of Cassation stated as follows (translation): "In this connection, the Federal Court has held that the District Attorney of the Canton of Zürich exercises judicial power (ATF 102 Ia 180, confirmed by the European Court of Human Rights, Publications of the European Court of Human Rights, Series A no. 34, ...; see also ATF 107 Ia 254). However, the appellant considers ... that reference to these precedents is not relevant as in the instant case the District Attorney who had drawn up the indictment was the same as the one who had ordered the arrest. This complaint is unfounded. What is decisive is whether at the time of the arrest the decision was taken by an official who satisfied the requirements of Article 5 para. 3 (art. 5-3) of the European Convention on Human Rights in other words by an officer who exercised judicial power. This question has been answered in the affirmative by the eminent courts referred to above. This finding that the functions discharged by that officer are compatible with the provisions of the Convention cannot subsequently be called in question on the sole ground that, once the investigation has been completed, the District Attorney assumes the role of prosecuting authority. The status of this officer at the time of and in relation to the decision to arrest remains the same, and the arrest, initially regarded as being lawful, cannot subsequently become unlawful on this sole ground. Furthermore, it is only natural that the District Attorney, as the investigating authority and acting within his powers, should draw up an indictment after the investigation has been completed if he considers that he possesses sufficient evidence of the accused’s guilt. Nor can it readily be seen what the accused would gain if the indictment had to be drawn up by an officer other than the District Attorney who, at the beginning of the investigation, had ordered his arrest. In other words, as far as Article 5 para. 3 (art. 5-3) of the Convention is concerned, the fact that the officer who ordered the arrest is the same as the officer who drew up the indictment is not decisive." 31. On a public-law appeal lodged against the judgment cited in the preceding paragraph, the Federal Court held as follows on 14 March 1989 (translation): "It has to be recognised that it is possible - as the instant case demonstrates - that the District Attorney may subsequently have occasion to draw up the indictment and even to put the prosecution case before the court. The mere fact that this possibility exists is not, however, decisive in this respect. Firstly, the eventuality cannot put in question or negate the Attorney’s independence from the parties at the time of an arrest. As has been shown, it is far more a matter of looking at the position as it stands at the time when the detention is ordered. Secondly, the possibility in question was held not to be decisive by the European Court in its judgment in the Schiesser case. In that case it could also have happened that the District Attorney subsequently had to draw up the indictment, since the jurisdiction of the Public Prosecutor’s Office at the stage of beginning the investigation or at the time of the arrest had not been established. This eventuality did not, however, prevent the European Court from finding that there had been no breach of Article 5 para. 3 (art. 5-3) of the Convention in the Schiesser case. That fact likewise shows that the relevant officer’s independence and impartiality must be considered exclusively at the time of the arrest and not in the light of the mere possibility that he may play a role later in the proceedings and draw up the indictment." 32. In 1989, 108 District Attorneys in the Canton of Zürich dealt with 17,647 investigations, of which 20.3% resulted in an indictment, 33.8% in the case being discontinued, 42.2% in a punishment order and 3.7% in the referral of the case to a higher court. 33. The number of cases in which the District Attorney personally conducted the prosecution in court does not appear in the statistics, but according to the Government it is very low. | 1 |
train | 001-23375 | ENG | ITA | ADMISSIBILITY | 2,002 | BORGHI v. ITALY | 1 | Inadmissible | null | The applicant, Mario Borghi, is an Italian national who was born in 1964 and lives in Ozieri. In 1996 four prostitutes, X, Y, V and Z, lodged a criminal complaint, alleging armed robbery, and gave the police information which they claimed would enable them to identify those responsible. After a police investigation proceedings were instituted against the applicant and two other persons, A and B. Among other offences, the applicant, a carabinieri officer, was charged with trafficking in soft drugs (hashish) and hard drugs (heroin), fraud, forgery, receiving and a number of counts of armed robbery and abuse of a public office. During the preliminary inquiries A and B made confessions, stating that the applicant was the person who had committed the armed robberies with them. W, a client of the prostitutes, identified the applicant as one of their assailants. In a decision of 27 December 1996 the Sassari judge responsible for preliminary investigations committed A, B and the applicant for trial in the Sassari District Court. A hearing at which W was due to give evidence was fixed for 24 April 1997. Having received a number of threats by telephone, W had installed a system for recording calls onto audio cassettes. In the evening of 23 April 1997 the applicant rang W. A detective sergeant friend of W who was at his home at the time of the incoming call, suspecting that it might contain threats to the witness, switched on the recording apparatus. The hearing scheduled for 24 April 1997 did not take place because one of the two parties did not appear. W at first kept the cassette at his home and then, a few days later, decided to give it to the police, who seized it. W gave evidence at a public hearing on 22 May 1997 and a transcript of the conversation of 23 April 1997 was added to the judge’s file. The applicant challenged the production of the transcript, asserting that it was the result of illegal and unauthorised telephone tapping. However, his arguments were rejected on the ground that the cassette had never been listened to by the detective sergeant, who had done no more than switch on the recording apparatus. W, who enjoyed the right to keep his communications secret, had then freely decided to give the cassette to the police. Accordingly, there had been no “telephone tapping” within the meaning of Articles 267 to 271 of the Code of Criminal Procedure (“the CCP”); the transcript was a document created by a private individual who had authorised it and produced it legitimately during the trial. In the course of the proceedings it was established that X, Y, V and Z were now untraceable. Accordingly, on 22 May 1997, the District Court, having taken formal note of the parties’ agreement on the point, ordered the statements the witnesses concerned had made to the police to be added to the judge’s file (Article 512 of the CCP). A and B declared that they wished to exercise their right under Article 210 of the CCP to remain silent. Pursuant to Article 513 § 1 of the CCP, the statements they had made before the trial were also added to the file and used when the court determined the merits of the charges against the applicant. At a later hearing the applicant challenged the production of the records of the statements made by three of the prostitutes, X, Y and Z, observing that it had been entirely foreseeable that they would be tempted to make themselves scarce. The court dismissed the applicant’s objection, noting that the prostitutes had given addresses in Italy where they could be contacted and that there was nothing to suggest that they would become untraceable. Moreover, the applicant had not immediately objected to the inclusion in the file of the statements he now sought to challenge, so that he was estopped from objecting to their use. In a judgment of 5 December 1997 the Sassari District Court sentenced the applicant for armed robbery, trafficking in soft drugs (hashish), fraud, forgery and abuse of a public office to six years’ imprisonment and a fine of 4 million Italian lire (approximately 2,065 euros). It acquitted him of trafficking in hard drugs (heroin) and receiving, and of one count of abusing a public office. The judgment was based on the statements by A and B, which were held to be precise, credible and corroborated by other evidence. In particular, the applicant, A and B had been recognised by some of the victims, and the version of events given by the women matched the evidence of the applicant’s two co-defendants. In addition, W had identified the applicant and, as appeared from the transcript of the telephone conversation on 23 April 1997, the latter had unlawfully tried to bring pressure to bear on his accuser. Admittedly, the applicant had pleaded that W’s evidence had been unlawfully admitted, since he should have been considered a co-defendant, not a witness, but the District Court held that it had not been established that W had been guilty of obscene behaviour in a public place. Lastly, a security guard had seen a car identical to the applicant’s near the place where one of the armed robberies had been committed, and it had been established, on the basis of evidence given at the trial and his own partial admissions, that the applicant had paid for certain goods with a cheque stolen from one of the victims. The applicant appealed, contesting the credibility of the prosecution witnesses. He repeated his objections concerning the unlawfulness of admitting in evidence the conversation with W and the prostitutes’ statements. In a judgment of 21 October 1998 the Cagliari Court of Appeal upheld the first-instance judgment. It repeated, for the most part, the reasoning of the Sassari District Court and observed that at the hearing on 22 May 1997 the applicant had accepted the reading out of the prostitutes’ statements and had thus implicitly waived any objection to their use. The applicant appealed on points of law, arguing in particular that his co-defendants’ statements had not been credible and that the recording of the conversation on 23 April 1997 had amounted to unauthorised and therefore illegal telephone tapping. On 14 September 1999 the applicant, as he was entitled to do by virtue of Law no. 14 of 19 January 1999, requested application of a sentence negotiated with the Principal Public Prosecutor at the Court of Cassation. At the same time he withdrew all his grounds of appeal. In a judgment of 29 September 1999, the text of which was deposited with the registry on 5 November 1999, the Court of Cassation reduced the applicant’s sentence to four years and six months’ imprisonment and a fine of 3 million lire. It observed that the applicant and the prosecuting authorities had reached an agreement about the appropriate sentence and that examination of the decisions at first and second instance had not revealed any circumstance warranting the applicant’s acquittal. ... In the version in force at the material time, Article 512 of the CCP provided: “At the request of one of the parties, the judge shall order to be read in court documents resulting from enquiries by the police [or] by the representative of the prosecuting authorities ... where, on account of unforeseeable events or circumstances, [those enquiries] can no longer be repeated.” Article 513 § 1 of the CCP, as amended by the Constitutional Court’s judgment no. 60 of 24 February 1995, read as follows: “Where the defendant ... refuses to answer questions, the judge, at the request of one of the parties, shall order to be read in court records of the statements made by the defendant to the representative of the prosecuting authorities [or to the police acting on the instructions of the prosecuting authorities] ... during the preliminary investigation...” As a consequence of being read out the documents and statements referred to in Articles 512 and 513 of the CCP are added to the judge’s file and may be used for assessment of the merits of the charges. By means of the Constitutional Amendment Act no. 2 of 23 November 1999 the Italian parliament added the principle of a fair trial to the Constitution itself. Paragraphs 3, 4 and 5 of Article 111 of the Constitution, as now worded, provide: “3. In criminal proceedings, the law shall guarantee that the person accused of an offence is informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial. 4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. An accused’s guilt cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer. 5. Rules shall be made governing the circumstances in which adversarial examination of the evidence is to be dispensed with, either because the accused has consented or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.” Section 3 of Law no. 14 of 19 January 1999 provides that where an appeal on points of law is pending in criminal proceedings in which a Court of Appeal gave judgment before 31 January 1999 the Principal Public Prosecutor at the Court of Cassation and the defendant may agree on the acceptance, in whole or in part, of some of the grounds of appeal, provided that the other grounds are withdrawn. Where acceptance of the grounds of appeal which the defendant has not withdrawn has a bearing on the severity of the sentence, the parties are required to inform the Court of Cassation what sentence they have agreed upon. | 0 |
train | 001-61197 | ENG | GRC | CHAMBER | 2,003 | CASE OF EFSTATHIOU AND MICHAÏLIDIS & Co. MOTEL AMERIKA v. GREECE | 1 | Preliminary objection rejected (non-exhaustion);Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (Convention proceedings) - claim dismissed | Peer Lorenzen | 8. The first applicant was born in 1930 and lives in Salonika. The second applicant is a commercial partnership with its registered office in Pieria (northern Greece). 9. On 7 July 1994, by means of a joint decision of the Minister of Finance and the Minister of Public Works (no. 1078361/4744/0010), the Greek State expropriated property covering a total surface area of 455,024 sq. m, with a view to improving certain sections of the main road between the towns of Platamonas and Katerini in Pieria. The expropriation affected 2,455.12 sq. m of land belonging to the first applicant and 2,401 sq. m belonging to the second (entered in the land register as plots nos. 64 and 214 respectively). The administrative authorities decided that the applicants should not receive any compensation in respect of 716.40 sq. m of plot no. 64 and 490 sq. m of plot no. 214, as they were deemed to have derived benefit from the construction of the road. 10. On 7 June 1995 the State applied to the Katerini Court of First Instance for an assessment of the provisional unit amount of compensation per square metre. The first applicant was not summoned to appear in court. 11. On 14 June 1996 the court determined the provisional amount of compensation for plot no. 214. It also assessed the amount of special compensation for the unexpropriated parcels of land at 100,000,000 drachmas (GRD) (judgment no. 118/1996). 12. The applicants subsequently applied to the Salonika Court of Appeal for the assessment of the final amount of compensation for the expropriation. In their observations, they submitted that the irrebuttable presumption in law that owners of property fronting a public highway derived benefit from the expansion of the highway was contrary to Article 17 of the Constitution and Article 1 of Protocol No. 1 to the Convention. 13. In an interlocutory decision of 18 June 1997 the Court of Appeal observed that, in assessing the unit amount of compensation for property expropriated with a view to building a main road, the court merely determined the amount, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs pursuant to section 1 of Law no. 653/1977. It ordered an expert assessment of the real value of the expropriated property (judgment no. 2380/1997). 14. On 29 September 1999 the Court of Appeal assessed the final unit amount of compensation for the expropriation of plots nos. 64 and 214 at GRD 8,000 per square metre. It also assessed the final amount of special compensation for the unexpropriated parcels of plot no. 64 at GRD 45,142,390 (judgment no. 2741/1999). 15. On 18 March 2000 the applicants appealed on points of law. They argued that the fact that the Court of Appeal had merely determined the amount of compensation for the expropriation, without considering whether and to what extent the adjoining owners had an obligation to contribute to the expropriation costs, was contrary to Article 17 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 16. In a judgment of 23 March 2001 the Court of Cassation dismissed the appeal, at least in so far as it concerned the present case (judgment no. 480/2001). 17. Article 17 of the Constitution provides: “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, in the circumstances and manner laid down 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 assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application ...” 18. Legislative Decree no. 797/1971 of 30 December 1970 and 1 January 1971 is the main legislative provision governing expropriations. It applies the principles set out in the constitutional provisions. By Article 13 § 1, compensation is calculated by reference to the real value of the expropriated property on the date of publication of the decision giving notice of the expropriation. Paragraph 4 of that Article provides: “Where part of a property is expropriated and the part remaining in the owner's possession suffers substantial depreciation in value or is rendered unusable, the judgment in which compensation is assessed shall also include a determination of the special compensation for that part. This special compensation shall be paid to the owner together with the compensation for the expropriated part.” 19. The relevant provisions of section 1 of Law no. 653/1977 of 25 July and 5 August 1977 on the obligations of adjoining owners where major roads are built are worded as follows: “(1) Where a major road up to thirty metres wide is built in an area not covered by a town development plan, adjoining owners who derive a benefit shall be required to pay for an area fifteen metres wide, thus contributing to the cost of expropriating the properties bordering the road. However, the area to which this obligation applies shall not exceed half the surface area of the property concerned. ... (3) For the purposes of this section, adjoining owners whose properties front the roads that have been built shall be deemed to have derived benefit. (4) Where those entitled to compensation on account of an expropriation are themselves liable for payment of part of that expropriation, there shall be a set-off between rights and obligations.” 20. For a long time, this presumption that the benefit derived from road improvements amounted to sufficient compensation was regarded as irrebuttable. Following the Court's judgments in Katikaridis and Others v. Greece, Tsomtsos and Others v. Greece (judgments of 15 November 1996, Reports of Judgments and Decisions 1996-V) and Papachelas v. Greece ([GC], no. 31423/96, § 49, ECHR 1999-II), the national courts now accept that the presumption is no longer irrebuttable. Consequently, the owners concerned may apply to the civil courts for a declaration that they have not derived benefit within the meaning of the law cited above and, where appropriate, for additional compensation (see judgment no. 10737/1998 of the Athens Court of Appeal, which, ruling on a similar application in another case, ordered an expert assessment of whether the applicants, as adjoining owners, had actually derived any benefit from the expropriation of their property). | 0 |
train | 001-79482 | ENG | RUS | CHAMBER | 2,007 | CASE OF KNYAZHICHENKO v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1 | Loukis Loucaides | 6. The applicant was born in 1952 and lives in the town of Bataysk of the Rostov Region. 7. In 1986 the applicant took part in the emergency operation at the Chernobyl nuclear plant. As a result he suffered from extensive exposure to radioactive emissions. The applicant underwent medical examinations which established the link between his poor health and his involvement in the Chernobyl events. He was consequently granted status of a disabled person and awarded a monthly pension and a special allowance from the State, to be adjusted once a year in line with the minimum subsistence amount (величина прожиточного минимума). 8. At a certain moment in 2001 the social security authorities ceased to increase regularly the amounts of pension and allowance, paid to the applicant in connection with his disability. Instead, he started to receive his pension in a fixed amount (3,100 Roubles), which was less than he expected. Presuming that this practice was illegal, the applicant brought proceedings against the regional social security office (“the defendant”) claiming the increase of the monthly allowance and pension in line with the increase of the minimum subsistence amount during the relevant period. 9. On 21 January 2003 the Bataysk Town Court of the Rostov Region (“the Town Court”) rendered a judgment ordering the increase of the monthly allowance due to the applicant in line with the increase of the minimal subsistence amount in the Rostov region. In re-calculating the amount of the applicant's pension the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly pension of the applicant increased to 5,952 Roubles. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid. 10. The defendant appealed challenging, among other things, the multiplier of 1.92 applied by the first-instance court. 11. On 16 April 2003 the Rostov Regional Court (“the Regional Court”) upheld the judgment of 21 January 2003 in full. The enforcement proceedings were opened. 12. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review seeking to quash the judgment of 21 January 2003, as upheld on 16 Aril 2003. 13. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”). 14. On 14 July 2003 the defendant complained to the President of the Regional Court about the judgment of 21 January 2003, as upheld on appeal, and the judge rapporteur's decision of 30 June 2003 rejecting their previous application for supervisory review. They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal. 15. On 6 August 2003 a judge of the Regional Court requested the case-file from the court of first instance. On 24 October 2003 judge B. of the Regional Court initiated the review of the judgment of 21 January 2003, as upheld on 16 April 2003. The decision of 24 October 2003 referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur's decision of 30 June 2003. The case was transferred to the Presidium for the examination on the merits. 16. On 4 November 2003 the applicant was informed about the date and venue of the hearing of his case by the Presidium. 17. On 4 December 2003 the Presidium quashed the judgment of 21 January 2003, as upheld on appeal, stating that the first instance court's calculation of the minimum subsistence amount, based on the multiplier of 1.92, had been insufficiently supported by evidence. The Presidium also noted that the first instance court had misinterpreted the domestic law. The case was remitted to the first instance court for a fresh examination. 18. On 22 April 2004 the Town Court examined the case anew. In the course of the proceedings the court established that the allowance should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that he accepted that multiplier. 19. As a result, the court held that the amount of pension due to the applicant for 2002 was 3,125 Roubles per month. In 2003 the pension of the applicant should have amounted to 3,937.5 Roubles per month. The court ordered the social security authorities to compensate the applicant for previous underpayments and, starting from 2004, pay him 4,567.5 Roubles monthly, with subsequent readjustment. 20. The judgment of the Town Court was not appealed against and became final. 21. On 1 February 2003 the Code of Civil Procedure of the Russian Federation (“the CCivP”) entered into force introducing, in particular, an amended system of supervisory review. 22. The CCivP, in the relevant part, provides as follows: “1. Judicial decisions that have become legally binding ... may be appealed against... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination.” “2. Having examined an application for supervisory review, the judge issues an interim decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision; (2) refusing to obtain the case file if the arguments in the application for supervisory review may not, in accordance with the federal law, result in quashing of the judicial decision. ... 6. The President of the...regional...court... may disagree with the judge's decision refusing to obtain the case file. In such case the President issues his own decision on obtaining the case file.” “2. Having examined the case file obtained by the supervisory review court, the judge issues an interim decision on – – refusing to remit the case for examination on the merits by the supervisory review court; – remitting the case for examination of the application for supervisory review on the merits by the supervisory review court.” “2. The President of the...regional...court...may disagree with the judge's decision refusing to remit the case for examination on the merits by the supervisory-review court. In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court.” “The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws” | 1 |
train | 001-95851 | ENG | ARM | ADMISSIBILITY | 2,009 | BOJOLYAN v. ARMENIA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 1. The applicant, Mr Murad Bojolyan, is an Armenian national who was born in 1950 and is currently serving a prison sentence in Kentron penitentiary institution in Yerevan. He was represented before the Court by Ms N. Gasparyan and Mr H. Arsenyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant was born in 1950 in Istanbul, Turkey. He is Armenian by origin. 4. In 1963 the applicant moved with his family to Armenia. In 1972 he graduated from Yerevan State University, with a degree in history and oriental studies. From 1972 to 1991, the applicant worked in the Academy of Sciences as a historian and oriental specialist. From 1980 to 1991 he also worked for State radio as a presenter and translator into Turkish. 5. In the same period, from 1970 to 1991, the applicant served with the intelligence service of the Transcaucasian military circuit under the codename “Zinde”. He had the rank of chief radio operator and his functions included carrying out appropriate activities on the territory of Turkey in times of war. 6. From 1991 to 1993 the applicant worked as the head of the division for Turkey in the Ministry of Foreign Affairs. In 1991 he also worked as the chief expert in the Committee for Foreign Affairs of the Supreme Soviet of Armenia. 7. In 1996 the applicant was appointed as a Turkish interpreter and chief specialist on Turkey at the President’s Office, where he worked until his dismissal in August 1998 due to a reduction of the staff. 8. From 1993 the applicant wrote analytical articles for a number of Armenian (Azg, Hayastani Hanrapetutyun, Yerkrapah and Hayk) and Turkish (Radical) newspapers. He also worked on a contractual basis for other Turkish media: from 1998 for the Anatolian News Agency (Anadolu Ajansi), and from 1999 for the NTV TV station and the MSNBC web-site. The applicant also cooperated with the British Broadcasting Corporation (BBC). Furthermore, he regularly accompanied Turkish journalists on their visits to Armenia in the capacity of an interpreter. 9. The applicant submits that from summer 2000 he became involved in trade, making regular trips to Turkey, alone or with his wife, re-selling clothes. 10. On 25 January 2002 criminal proceedings were instituted against the applicant, who was suspected of collecting information concerning events, organisations and people in Armenia and Nagorno Karabakh, and communicating it to the Turkish intelligence services. 11. On 26 January 2002 at around 8 p.m. the applicant and his wife, while on their way to Turkey, were arrested at the Armenian-Georgian border and were placed in different rooms in the customs office. Thereafter, they were searched and placed in a police car, where they stayed until early morning. 12. On 27 January 2002 at around 5 a.m. the police car headed for Yerevan. Upon arrival in Yerevan at around 8 a.m. to 9 a.m. the applicant and his wife were placed in different rooms in the Ministry of National Security (ՀՀ ազգային անվտանգության նախարարություն). 13. On the same date from 1.15 p.m. to 5 p.m. the applicant was questioned as a suspect. According to him, the investigators applied psychological pressure and blackmail, forcing him to confess. In particular, they threatened that, if he refused to confess, his wife and his epileptic son would be detained. The applicant submitted that, for this reason, he had no other choice than to confess. Thus, in order to defuse the situation, to have his wife released and to gain some time by fooling the investigators, he decided to make a false confession by making up a story which included fictitious names, districts and undercover flats which never existed. As a basis for his story he used certain real people and circumstances encountered on his regular trips to Turkey. 14. On 28 January 2002 the applicant was formally charged under Article 59 of the then Criminal Code (ՀՀ քրեական օրենսգիրք, 07.03.1961 – “the CC”) with espionage committed to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence. In particular, he was charged with being enrolled in the Turkish National Intelligence Organisation (Milli Istihbarat Teskilati – “the MIT”) in June 2000 and until January 2002 providing information to them on a paid basis concerning Armenia’s and Nagorno Karabakh’s military, economic and political spheres, in particular concerning the Russian troops based in Armenia. 15. On the same date the applicant was remanded in custody by a court order. From 6.15 p.m. to 10.40 p.m. the applicant was questioned again in connection with the above charges. He submitted that he did not wish to have a lawyer. He further admitted his guilt and repented of his actions. 16. In sum, the applicant’s confession statements of 27 and 28 January 2002 contained the following submissions. The applicant had established his first contact with various Turkish journalists during his work at the Ministry of Foreign Affairs, as part of his public relations function. Some of these contacts had later developed into professional cooperation, such as preparation of journalistic materials for the NTV TV and the Anatolian News Agency. In June 2000 the applicant had started to prepare analytical materials concerning Armenia’s political and economic spheres for the MIT officers whom he had met in May 2000 during his trip to Turkey. Later, the communicated materials had also included information of a military nature. To collect the materials in question the applicant had used the Armenian press and his personal knowledge. The information had been communicated in the form of either written reports or the applicant reporting in person and answering questions which interested the MIT officers. 17. On 31 January 2002 the applicant’s wife hired a defence counsel who was admitted to the case on 1 February 2002. 18. On 5 and 12 February 2002 the applicant was questioned again, in the presence of his defence counsel, during which the applicant made further submissions and certain questions relating to his previous statements were clarified. 19. In mid-April 2002 the applicant dispensed with the services of his defence counsel and hired another one. 20. On 4 July 2002 the applicant made a written statement, retracting his confession statements made earlier. In his statement he presented the allegedly true version of events, describing how since 2000 he had started to prepare analytical articles for the MSNBC web-site and how little by little he had become involved in trade with Turkey, thus making more frequent trips to that country. He indicated the names of various people, their relevance and the discussions he had had with them during his trips. The applicant contended that he had never cooperated with any foreign organisation except for mass media. As to his confession statements made earlier, these were a tactical move aimed at having his wife released from detention, securing the safety of his family and preventing any possible violence against himself. 21. On 16 August 2002 the charges against the applicant were modified and stated in greater detail. It was, inter alia, stated that since 1998 he had cooperated with various MIT officers, who mostly operated under the veil of journalistic activities. At the beginning, various means had been used to communicate information, such as letters, faxes and telephone calls, but from 2000 the applicant had established direct contact with the officers of the MIT Istanbul office. The act imputed to the applicant was once again qualified under Article 59 of the CC as espionage committed to the detriment of Armenia’s sovereignty, territorial integrity, national security and defence. 22. On 16 December 2002 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) found the applicant guilty under Article 59 of the CC and sentenced him to ten years in prison with confiscation of all property, concluding that it was substantiated that the applicant had committed high treason and that the act committed by him had been qualified correctly and had features of an offence prescribed by Article 59 of the CC. The District Court found: “After the dissolution of the USSR, [the applicant], by occupying various high posts in Armenia and by being very fluent in Armenian, Russian and Turkish, was spotted by [the MIT]... Within this period, [the applicant] regularly met and maintained contact with various Turkish journalists, including [O.R.O., N.H., J.B., M.A.B. and S.T.], providing interpretation services or information. According to information received from the Russian Federal Security Service [(FSB)] and the Ministry of National Security of Armenia [(MNS)], these individuals were directly linked with the Turkish intelligence services...” 23. The District Court went on to detail the positions held by the above individuals and their alleged involvement with the Turkish intelligence services. The District Court further found that: “Having financial problems and being unable to repay his debts, in the spring of 2000 [the applicant] travelled to Istanbul in search of a well-paid job. There he stayed with his cousin [I.] ... [O]n 2 June 2000 [I.] introduced [the applicant] to two MIT officers, [T. and N.]. They told [the applicant] that they needed information concerning ASALA [(Armenian Secret Army for the Liberation of Armenia)], the Kurdish Workers Party, HYD [(Armenian Revolutionary Federation Party)], Armenia’s internal political situation, foreign policy and economic relations, and the Russian troops based in Armenia. [The applicant] told them that he wanted USD 5,000-7,000 for his services. [T. and N.] promised to discuss the issue of remuneration with their superiors. On 6 June 2000 [the applicant], having met again with the above-mentioned MIT officers, asked them to help him first to repay his debts, after which he would cooperate. During their third meeting on 8 June 2000 ... [the applicant] received a down payment of USD 500 from MIT officer [T.] and promised to provide the required information in two months. On 9 June, upon his return to Yerevan, [the applicant] started to single out from media publications the information which interested the Turkish intelligence officers, with the intention of providing it to them later. On 6 September 2000 [the applicant] travelled to Istanbul and on 11 September 2000 he communicated that information to ... the MIT officers. [He also] answered their questions concerning Armenia’s internal political life, the political parties in Armenia, the contacts that he had with members of these parties, and the activities and location of the Kurdish Intelligentsia Association of Armenia, receiving USD 1,000 from the MIT officers as remuneration for the completed assignment ... [On 10 January 2001 the applicant] ... met in an undercover flat with MIT officers [T. and N.], who were displeased with the fact that he provided only media publications and demanded that he use his contacts and provide unpublished secret information concerning Armenia’s political and economic life. [The applicant] explained that, in spite of having many contacts with people who had access to confidential information, they would not allow him – and he was not able – to extort secret information. Thereafter, he told them about recent political events in Armenia, newspapers published in Armenia and their editors ... The next day [the applicant] was presented to another MIT officer who introduced himself as [G.] ... [G.] reproached [the applicant] for providing information with a delay of four months and explained that high remuneration was out of the question without him providing secret or military information ... At the meeting of [10 January 2001 T.] demanded that, from that moment, [the applicant] indicate his sources when providing information. On 12 January 2001 [the applicant] ... met with [T. and N.] and received USD 1,000 from [T.] in return for the information provided. [N.] advised [the applicant] to engage in small-scale trade, thereby justifying his frequent trips to Turkey ... On 16 April 2001, in Istanbul, [the applicant] met with [N. and another officer replacing T.] and told them about the Armenian communities in Georgia and the Krasnodar and Stavropol regions of Russia. Thereafter, [the applicant] presented his notes containing information of a military nature which included information concerning the guarding of the western and southern borders of Armenia by the Russian and Armenian border guards, the commander of the Russian border guards, the three check points at the Armenian-Turkish border, the check point at the Armenian-Iranian border, the presence of border guards in Zvartnots airport, the length of the Armenian-Turkish and Armenian-Iranian borders, high-ranking officials in the Ministry of Defence of Armenia, the strength of the Armenian army and the conscription quota, the bridges in Yerevan, the troops based in Yerevan and other similar information. During a regular meeting held in an undercover flat [the applicant] was asked questions about Russian weapons and material in Armenia. Most of the military-related questions had narrow specialisation and the names of the material were presented in Latin and numerical notes. [The applicant] drew the general layout of Yerevan, indicating the military objectives and bridges in the city, and provided other information. As remuneration [the applicant] received from the MIT officers USD 2,250 and he returned to Armenia. Continuing his cooperation with the Turkish intelligence service and carrying out their assignments, [the applicant] - before 26 January 2002 - travelled to Istanbul also in July and October 2001, on each occasion providing to the MIT officers information concerning Armenia which interested them and receiving USD 2,250 as remuneration. In July 2001 [the applicant], having received an assignment, wrote down on a blue lined sheet of paper the questions that interested the MIT, which included the military cooperation with Greece, the new weapons provided to Armenia by Russia, their location and quantity, the anti-aircraft defence system, the Kurdish Workers Party, Iran and other issues. On his last trip to Istanbul ... on 26 January 2002 [the applicant] was arrested and various documents and notes prepared by him for the MIT officers were found in his possession, which included the answers to the assignments previously received from the Turkish intelligence officers as indicated above. This information was collected by [the applicant] from various sources and included data concerning the aid provided to Armenia by Iran, the credit extended to the Nagorno Karabakh Republic from the Armenian budget, the unlawful acts taking place in the Armenian army, the location of the Armenian border-guarding military units, the ammunition and material provided to Armenia by Russia as military aid, the military bases used by Russia, the English delegations that visited the Nagorno Karabakh Republic for purposes of elimination of mines and missiles, the aid provided to Armenia by Greece, the recruitment to the Russian troops based in Armenia, the representatives of the Kurdistan Committee based in Armenia, as well as other information concerning Armenia’s military, political and economic spheres. The following items were also found in [the applicant’s] possession: a map of Armenia and a tape recording of a conversation between [the applicant] and the Kurds secretly made by him at the Yerevan Office of the Armenian-Kurdish Friendship which [the applicant] was intending to transmit to the MIT officers as proof of an actual contact with members of the Kurdish Workers Party. ... In such circumstances, the commission of high treason by [the applicant] has been substantiated, [and] the act committed by him has been qualified correctly and falls within the scope of Article 59 § 1 of the Criminal Code.” 24. The District Court, as a basis for its findings, first cited in detail the applicant’s confession statements made during the investigation. It further cited five witness statements: one of the witnesses – who had worked with the applicant in the intelligence service before 1981 – characterised him as a well-trained intelligence officer, and four others stated that they had met the applicant at the Yerevan Office of the Armenian-Kurdish Friendship and had known him as a translator. As material evidence, the court cited the above tape recording, the map of Armenia printed in 1988, the blue lined sheet of paper, a notebook containing the telephone numbers of the MIT officers, the information note received from the MNS and prepared on the basis of materials provided by the FSB, and other notes found in the applicant’s possession. 25. As regards the above confession statements, it appears that the applicant unsuccessfully attempted to rebut them in court. He submitted that he had deliberately given self-incriminating statements in order to have his wife released from detention, to gain some time so that the Armenian and Russian intelligence services could intervene and deny the suspicions, and to prevent any possible violence against himself. 26. On an unspecified date, the applicant lodged an appeal. In his appeal, he complained, inter alia, that the judgment was mainly based on his self-incriminating statements which the court wrongly considered as “confession statements”. In reality, he was an analytical journalist and had never cooperated with the Turkish intelligence services. The materials found in his possession were the result of his journalistic activities and were taken from the press. Both the investigating authority and the court had misinterpreted the notion of “other information” contained in Article 60 of the CC by applying it to the materials in question. Thus, he argued that any material taken from the press could be considered as “other information” posing a threat to Armenia’s sovereignty and territorial integrity. 27. On 19 March 2003 the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) dismissed the appeal. In addition to the findings of the District Court, the Court of Appeal noted that: “[After 1991 the applicant] worked in the National Assembly, the Ministry of Foreign Affairs and the President’s Office, he also worked as a reporter and was involved in trade, however, in reality he was an agent connected with intelligence services. Having been spotted by the Turkish intelligence services, from 1998 he cooperated with their agents, the majority of whom operated under the veil of various journalistic agencies and organisations. Upon their instructions, he collected and communicated information concerning Armenia’s and Nagorno Karabakh’s economic and internal political spheres. For a certain period of time [the applicant] cooperated with the Turkish intelligence services through various means of communication, including letters, faxes and telephone calls, but starting from 2000 he changed the mode of cooperation and established direct contact with the officers of the MIT intelligence office in Istanbul, including [N.,] ... [T. and G.] ... [The applicant] received instructions from them and collected information concerning the type and structure of troops and types of ammunition in [Nagorno Karabakh], the existence and location of troops on the Mrav mountain, the defence system at the Armenian-Turkish border, the existence of radars and military airports, the types and number of military aircraft. He was also instructed to find out whether Armenia had surface-to-surface missiles and collected information concerning Iranian “Sam-7” type missiles, roads, tunnels and water reservoirs being built in Armenia, the Armenian-Russian joint military bases, their structure, location, anti-aircraft defence units and types of ammunition, the details of the military cooperation between Armenia and Greece, the existence of electronic military bases, the existence of representatives of the Kurdish Workers Party in Armenia and other instructions ... [The applicant], an employee of the President’s Office, from 1998 established contact with [O.R.O.], who was in Armenia at that time, and accompanied him on his trips to various regions in Armenia and received instructions to provide him with information. As a paid agent of the Turkish intelligence services, he communicated to the MIT various information concerning the economic and military-political situation. [The applicant] was also in contact with a number of other MIT officers ...” 28. On 27 March 2003 the applicant lodged an appeal on points of law. In his appeal, he argued, inter alia, that all the information in question had been collected from the mass media and was thus in the public domain. He further complained that his conviction was based on his self-incriminating statements. 29. On 25 April 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the appeal. 30. On 8 August 2003 the Kentron and Nork-Marash District Court of Yerevan, upon the applicant’s request and pursuant to the requirements of the new Criminal Code enacted on 18 April 2003, modified the applicant’s sentence by annulling the confiscation of his property. 31. The relevant provisions of the Constitution read as follows: “Everyone has the right to express his opinion. It is prohibited to force anyone to give up or change his opinion. Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas through any information medium regardless of frontiers.” “No restrictions may be placed on the exercise of the rights and freedoms guaranteed under [Article 24] of the Constitution other than such as are prescribed by law and are necessary in the interests of national security or public safety, for the protection of public order, health or morals, or for the protection of the rights, freedoms, honour and reputation of others.” 32. The relevant provisions of the Code read as follows: “High treason, that is, a premeditated act committed by an Armenian national to the detriment of Armenia’s sovereignty, territorial integrity or national security and defence, such as joining the enemy, espionage, disclosure of a State or military secret to a foreign country, flight abroad or refusal to return from abroad, assistance to a foreign country in carrying out hostile activities against Armenia, and conspiracy to usurp power, shall be punishable by ten to fifteen years’ imprisonment with confiscation of property and two to five years of exile or without exile, or by the death penalty with confiscation of property...” “Communication of information constituting a State or military secret, including theft or collection of such information for communication to a foreign country, a foreign organisation or its branch, or communication and collection of other information upon the instructions of a foreign intelligence service to be used to the detriment of Armenia’s interests, if committed by a foreign national or a stateless person, shall be punishable by seven to fifteen years’ imprisonment with confiscation of property and two to five years of exile, or by the death penalty with confiscation of property.” 33. The relevant provisions of the State and Official Secrets Act, as in force at the material time, read as follows: “The provisions of this Act are binding on the territory of Armenia and outside its borders for public and local self-governing authorities, agencies, institutions and organisations (irrespective of the type of ownership), public officials and citizens, who by their status are under the obligation or have undertaken the obligation to implement the requirements of the Armenian legislation on State and official secrets.” “A State secret is information related to the spheres of military, foreign relations, economic, scientific/technical, intelligence, counter-intelligence and operational intelligence activities of Armenia which is protected by the State and the dissemination of which may have grave consequences for the security of Armenia. An official secret is information related to the spheres referred to in the first part of this section which is protected by the State and the dissemination of which may cause other damage to the security of Armenia. As a rule, such information contains data which constitutes a part of a State secret, but in itself does not disclose the State secret. Information classified as a State or official secret is considered to be the property of Armenia and is kept and protected by the State.” “The following terms are used in this Act: 1. The media of information constituting a State or official secret (hereafter, information media) are the material objects, including physical fields, in which the information constituting a State or official secret is expressed through images, conventional signs, signals, engineering solutions and processes. ... 3. Encryption of information is the application of restrictions to the dissemination of information constituting a State or official secret and information media.” “The following types of information may be classified: 1. In the military sphere: (a) the contents of documents concerning strategic and operational plans of the armed forces, preparation and conduct of operations, strategic, operational and mobilisation expansion of troops, their combat capacity and the creation and use of the conscript reserve; (b) the programmes of the military-industrial complex, their contents and implementation results, armament and the course of development of arms technology, their strategic and technical characteristics and combat application capacity; (c) the deployment, significance, level of defence and degree of readiness of units of special importance and regime, their design and construction, and allocation of territory for such units; (d) the deployment, true names, organisational structure, armament capacity and size of the regiments and military units of the armed forces of Armenia and those of allied states located on the territory of Armenia; and (e) the level of defence and safety of the population in times of martial law...” “Information shall be classified according to the sphere to which it belongs or the authority under whose competence it falls. ... With the purpose of implementing a common encryption mechanism, a list of classified information shall be drawn up in a procedure prescribed by the Government of Armenia which shall also indicate the public authorities competent to manage each piece of information...” “Encryption of information is the process of determining the level of secrecy of each separate piece of information and assigning a secrecy label to the relevant information carrier in accordance with a procedure prescribed by the Government of Armenia...” “Access to a State or official secret may be granted to: (a) citizens of Armenia on a voluntary basis; and (b) foreign nationals or stateless persons in accordance with a procedure prescribed by the Government of Armenia. In order to have access to a State or official secret citizens must be authorised to do so, upon their written consent, by the competent authorities through entering into a work agreement with public authorities, agencies, institutions or organisations on the basis of favourable results of the security clearance measures taken in their respect...” 34. This decree approved the list of classified information which contained a table comprising such information and the relevant public authorities competent to manage each piece of information. The following information related to the military sphere was, inter alia, included in the list: “... (3) information on the size changes, combat staff, strength and operational readiness of troops and information on the military/political and operational situation; ... (8) information disclosing the deployment, true names, organisational structure, armament capacity and size of troops which is not subject to dissemination in accordance with the international obligations undertaken by Armenia; ... (12) information disclosing the nature and the organisation or the results of the main types of activity of the Armenian border troops, and the border guard system...” | 0 |
train | 001-76710 | ENG | UKR | CHAMBER | 2,006 | CASE OF KUKHARCHUK v. UKRAINE | 4 | Violation of Art. 6-1;Not necessary to examine Art. 13 and P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 5. The applicant was born in 1958 and lives in Kyiv, Ukraine. 6. In 1994 Mrs S. obtained a loan from the Azhio Bank. In 1995, due to the failure of Mrs S. to repay the loan, the bank sold her flat to Mr S. The latter sold the flat to Mrs Sb., who further sold it to Mr G. On 22 January 1997 the applicant purchased the flat from Mr G. 7. In March 1997 the applicant instituted proceedings in the Vatutinskyy District Court of Kyiv (“the Vatutinskyy Court”), seeking the eviction of Mrs S. and her minor child from the flat. Mrs S. lodged a counter-claim and requested the court to invalidate all the sales contracts concerning the flat. The parties to these contracts were summoned to participate in the proceedings. 8. On 18 December 1997 the court found for the applicant and ordered the eviction of Mrs S. together with her child. 9. On 25 February 1998 the defendant requested an extension for lodging an appeal in cassation. On 2 March 1998 the Vatutinskyy Court granted the extension requested on the ground that she had missed the initial deadline through no fault of her own. 10. On 1 April 1998 the Kyiv City Court (“the Kyiv Court”) rejected the defendant’s appeal in cassation against the decision of 18 December 1997. 11. On 13 April 1999, the Deputy General Prosecutor of Ukraine, following the complaint of the defendant, lodged a request for supervisory review (protest) of the applicant’s case with the Presidium of the Kyiv Court. On 26 April 1999 the Presidium allowed the request, quashed the decisions of 18 December 1997 and 1 April 1998, and remitted the case for a fresh consideration. It found that the lower courts misinterpreted the facts and law in the case. 12. On 23 November 1999 the Vatutinskyy Court found for the applicant. 13. On 24 December 1999 the defendant requested an extension for lodging her appeal in cassation. On 5 January 2000 the Vatutinskyy Court granted the extension requested. It found that ground that the defendant had missed the initial deadline through no fault of her own. 14. On 23 February 2000 the Kyiv Court quashed the decision of 23 November 1999 and remitted the case for a fresh consideration. 15. On 9 February 2001 the Vatutinskyy Court found against the applicant. 16. On 23 February 2001 the applicant appealed in cassation against the decision of 9 February 2001. On 12 March 2001 the Vatutinskyy Court granted the applicant an extension for lodging his appeal, as he had not been informed about the decision of 9 February 2001 in due time. 17. On 11 April 2001 the Kyiv Court quashed the decision of 9 February 2001 and remitted the case for a fresh consideration on the ground that the first instance court had considered the case in the absence of Messrs G. and S., Mrs Sb., and the third parties to the proceedings, Mrs A. and Mr K., who had not been informed about the hearings. 18. By the decisions of 28 August and 26 September 2001, the Vatutinskyy Court discontinued the consideration of the applicant’s claims and the counter-claim of the defendant because of their failure to attend the hearings on the same dates. 19. On 7 March 2002 the applicant appealed in cassation to the Supreme Court of Ukraine against the decision of 28 August 2001, of which he had been informed on 15 February 2002. 20. On 20 February 2003 the Supreme Court of Ukraine quashed the decision of 28 August 2001 and remitted the case for a fresh consideration on the grounds that the Vatutinskyy Court had failed to inform the applicant about the date and place of the hearing 28 August 2001. 21. On 6 July 2004 the Desnyanskyy District Court of Kyiv (the former Vatutinskyy Court) found for the applicant and ordered the eviction of Mrs S. together with all other persons residing in that flat. The court held that the applicant had lawfully acquired the flat. 22. On 4 August 2004 the defendant appealed against the judgment of 6 July 2004. On 25 August 2004 the Desnyanskyy District Court of Kyiv granted the defendant a time-limit to rectify the shortcomings of her appeal. 23. On an unspecified date the defendant lodged with the same court the corrected version of her appeal. 24. On 9 November 2004 the Kyiv City Court of Appeal rejected the defendant’s appeal against the judgment of 6 July 2004. 25. On 14 April 2005 the panel of three judges of the Supreme Court of Ukraine rejected the defendant’s request for leave to appeal in cassation. | 1 |
train | 001-98118 | ENG | UKR | ADMISSIBILITY | 2,010 | PAK v. UKRAINE | 4 | Inadmissible | Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Kliment Yencherovych Pak, is a Kazakhstani national who was born in 1947 and lives in Astana. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date the applicant arrived in Kyiv, Ukraine and applied for refugee status. On 8 December 2003 the Podilskyy District Police Office of Kyiv (“the Police Office”) arrested the applicant on suspicion of vagrancy. On 9 December 2003 the local prosecutor authorised the applicant’s detention. The same day the local authorities refused to grant the applicant refugee status. On 10 December 2003 the Police Office placed the applicant in the Kyiv Police Holding Centre for vagrancy. According to the applicant, the cell in which he was held was always overcrowded; he was not provided with sufficient food; he could not take a shower; and he developed back and skin problems there. On 6 January 2004 the applicant was released. On 4 May 2005 the applicant instituted civil proceedings in the Podilskyy District Court of Kyiv against the Police Office, claiming that his arrest and detention had been unlawful and seeking compensation on this account. On 27 February 2006 that court left the claim unexamined in view of the applicant’s repeated failure to appear for the hearings. The applicant did not appeal against that decision. On 17 February 2007 the domestic authorities forbade the applicant to enter and stay in Ukraine for three years for having breached the regulations on foreigners staying in Ukraine. Following that decision the applicant left Ukraine for Latvia, where he stayed for a while, and subsequently went back to Kazakhstan. Section 11 of the Act provided, inter alia, that the police authorities could – subject to a prosecutor’s warrant – detain persons who were suspected of vagrancy for a period of up to thirty days. Section 25 of the Act provided, inter alia, that actions of a police officer could be challenged, in accordance with the established procedure, to a supervising police authority, a prosecutor, or a court. Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, action or omission of a State body, a legal entity or an official, could lodge a complaint with a court. According to Article 248-6 of the Code, if such complaint concerned a dispute that had to be resolved in the course of civil adversary proceedings, the court had to leave the complaint unexamined and explain to the claimant his right to lodge a civil claim on a general basis. Under Article 248-7 of the Code, if a complaint lodged under Article 248-1 of the Code was substantiated, the court could declare the decision, act or omission unlawful and oblige the respondent authority or official to put an end to the violation found. The court could quash the obligation imposed on or the measures applied to the claimant or restore his or her rights in another manner. The court could further order immediate execution of its decision. | 0 |
train | 001-105217 | ENG | RUS | CHAMBER | 2,011 | CASE OF SHIMOVOLOS v. RUSSIA | 2 | Violation of Art. 5-1;Violation of Art. 8;Remainder inadmissible | Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1969 and lives in Nizhniy Novgorod. He is the head of the Nizhniy Novgorod Human Rights Union. 6. It transpires from a certificate issued by an official of the Volgo-Vyatskiy Interior Department of Transport on 17 April 2008 that on 23 March 2007 the applicant’s name was registered in a so-called “Surveillance Database” (“Сторожевой контроль”). An extract from the list of persons registered in that database shows that the applicant’s name is mentioned in the section entitled “Human Rights Activists”. 7. The Surveillance Database contains information about skinheads, human rights activists and other persons allegedly involved in extremist activities. Whenever a person mentioned in the database purchases a train or aeroplane ticket the Interior Department of Transport receives an automatic notification. 8. An EU-Russia Summit was scheduled for 17 and 18 May 2007 in Samara. 9. On 10 May 2007 the Volgo-Vyatskiy Interior Department of Transport sent a telex to its local branches informing them that protest rallies by several opposition organisations were planned for 18 May 2007. To prevent unlawful and extremist acts it was necessary, in accordance with the Suppression of Extremism Act and Order no. 47, On certain measures intended to strengthen the fight against extremism, issued by the Interior Ministry on 14 April 2005, to detect and stop all members of those organisations travelling to Samara between 8 and 20 May 2007. In particular, it was necessary to separate the travellers and dissuade them from going to Samara. 10. On an unspecified date the applicant bought a train ticket to Samara for 13 May 2007 and a return ticket for 16 May 2007. 11. On 13 May 2007 the Volgo-Vyatskiy Interior Department of Transport sent a telex to its local branches informing them that the applicant intended to travel to Samara in connection with the EU-Russia Summit. It also communicated his train reservation details. Another telex sent on the same day by the Samara Interior Department of Transport indicated that the applicant was travelling to Samara to take part in the opposition rally “March of dissent” and might be carrying extremist literature. 12. On the same day, as soon as the applicant mounted the train at Nizhniy Novgorod station, three policemen entered his compartment, checked his identity documents and asked him questions about the purpose of his trip. 13. At Saransk station (the Mordoviya Republic) another identity check was conducted and the applicant was again questioned about the purpose of his trip. The policemen ordered the applicant to leave the train and follow them to the police station, but the applicant refused to comply. In the early morning of 14 May 2007, immediately after the train entered the Samara region, the applicant’s identity documents were checked for a third time. 14. When the applicant got off the train in Samara he was stopped by the police. The policemen checked his identity documents and took him to the police station, saying that it was necessary to look up his name in the police databases. They threatened to use force if the applicant refused to comply with their order. 15. The police drew up an attendance report, using a standard template entitled “Attendance report in respect of a person who has committed an administrative offence”. The phrase “who has committed an administrative offence” was struck through by the police officer who filled in the template. The report indicated that the applicant was brought to the police station on 14 May 2007 at 12.15 p.m. It was mentioned that he had been stopped on account of information received in telexes nos. TP 1149 and 26/4T2021 of 13 May 2007. He was questioned about the purpose of his trip and his acquaintances in Samara. He was released on the same day at 1 p.m. 16. It follows from the submissions by the police officer who escorted the applicant to the police station that he had received information from his superiors that the applicant intended to participate in an opposition rally and might be carrying extremist literature. He had stopped the applicant and escorted him to the police station in order to prevent him from committing administrative and criminal offences. He had warned the applicant that if he refused to comply, force would be used. He had asked the applicant questions about the purpose of his visit to Samara. The applicant had denied involvement in any extremist activities. He had not been searched because he had no luggage and it was clear that he was not carrying any extremist materials. 17. The applicant lodged complaints with the prosecutor’s offices of Nizhniy Novgorod, Mordoviya Republic and Samara Region. 18. On 15 June 2007 the Nizhniy Novgorod Transport Prosecutor’s Office refused to initiate criminal proceeding against the policemen who had questioned the applicant in Nizhniy Novgorod, finding that the applicant had voluntarily submitted to the identity check and questioning. 19. On 12 July 2007 the Ruzayevka Transport Prosecutor’s Office (the Mordoviya Republic) refused to initiate criminal proceedings against the policemen who had allegedly questioned the applicant at Saransk station. It found that on 13 May 2007 the Ruzaevka police station had received telex no. 26/4-T-2021 from the Volgo-Vyatskiy Interior Department of Transport, containing information that the applicant was going to Samara by train with the intention of taking part in an opposition rally and that he was suspected of carrying extremist literature. The police had searched the train but could not find the applicant. 20. On 23 July 2007 the Kuybyshevskiy Transport Prosecutor’s Office refused to open criminal proceedings against the policemen who had stopped the applicant in Samara. The prosecutor’s office found that the policemen had acted lawfully, in accordance with sections 2 and 10 of the Police Act (see paragraph 33 below). In particular, they had received information (telex no. 26/4-T-2021) about the applicant’s intention to participate in an opposition rally. There had therefore been reasons to believe that he might be involved in the commission of administrative offences, and it had been necessary to stop him and bring him to the police station. 21. On 24 May 2007 the applicant brought an action against the Volgo-Vyatskiy Interior Department of Transport before the Kanavinskiy District Court of Nizhniy Novgorod. He claimed that the telexes sent by the Volgo-Vyatskiy Interior Department of Transport to the local offices, requiring them to stop the applicant, check his identity documents and question him, had been unlawful for the following reasons: - There had been no reason to check his documents or question him, as the police already had information about his identity, and the date and time of his arrival in and departure from Samara; - There could be no suspicion of his intention to engage in any unlawful activities as, firstly, the rallies in Samara had been duly authorised by the town council and, secondly, he had planned to leave Samara before the date scheduled for the rallies; - His name had been entered in the police database unlawfully, without prior judicial authorisation. 22. He further complained about his allegedly unlawful arrest and one-hour detention at the police station in Samara. He claimed that all the above actions had violated his right to respect for private life and his right to liberty and security, and had interfered with his human rights activities. 23. The Kanavinskiy District Court declared the application inadmissible, finding that the applicant had failed to submit supporting documents. This decision was subsequently quashed by the Supreme Court and the case was remitted to the Kanavinskiy District Court. 24. At the hearing the representative of the Volgo-Vyatskiy Interior Department of Transport testified that the applicant’s name had been registered in the Surveillance Database following an order from the Interior Department of the Nizhniy Novgorod Region. The police had therefore been entitled to take measures against him as specified in the Police Act and the Operative-Search Act. As to the identity checks in the Mordovia Republic and Samara Region, the Volgo-Vyatskiy Interior Department of Transport had no territorial jurisdiction over these local police offices. 25. At the applicant’s request the Interior Department of the Nizhniy Novgorod Region was joined as a co-respondent to the proceedings. Its representative informed the court that commission of criminal or administrative offences by a person was not a prerequisite for inclusion of his name in the Surveillance Database. The applicant’s name had been registered in that database on the basis of confidential information. 26. On 29 May 2008 the Kanavinskiy District Court dismissed the application. It found that section 11 § 4 of the Police Act and sections 2, 5, 6 and 7 §§ 2 (b) and 4 of the Operative-Search Act (see paragraphs 34 to 38 below) gave the police powers to check documents and question citizens in certain cases. In the applicant’s case the identity checks and the questioning had been justified by the fact that his name was registered in the Surveillance Database. The applicant had voluntarily replied to the questions asked by the police officers. No force or coercion had been used against him by the police officers in Nizhniy Novgorod. The Volgo-Vyatskiy Interior Department of Transport was not liable for the measures taken against the applicant by the police officers in the Mordoviya Republic and Saransk Region [the domestic court apparently meant Samara region], as it had no territorial jurisdiction over those regions. Finally, the court rejected the applicant’s request for an injunction to the Volgo-Vyatskiy Interior Department of Transport to delete his personal data from the police databases. The court found that the applicant’s personal data had been collected by the Interior Department of the Nizhniy Novgorod Region rather than by the Volgo-Vyatskiy Interior Department of Transport. 27. The applicant appealed, complaining in particular about insufficient reasoning. He submitted that the District Court had failed to give detailed answers to all his arguments. 28. On 7 October 2008 the Nizhniy Novgorod Regional Court upheld the judgment on appeal, endorsing the reasoning of the District Court. 29. On 8 December 2008 the applicant challenged the decision to register his name in the Surveillance Database before the Nizhegorodskiy District Court of Nizhniy Novgorod. He alleged, in particular, that that decision interfered with his right to respect for private life because it permitted the police to collect information about his trips. He was also regularly questioned by the police about the purpose of his trips, his income, his acquaintances and his political opinions. That interference was not necessary in a democratic society. Firstly, the Interior Ministry’s orders governing the creation and functioning of the Surveillance Database had not been published. Society did not know the procedures for its operation. According to the media, the database contained the names of more than 3,800 persons, the majority of whom were members of human rights and opposition groups. Secondly, the decision to register his name in the database had been arbitrary. He had never been suspected of any criminal or administrative offences, had never been involved in extremist activities and had never supported or called for violence. The registration of his name in the database was apparently connected with his human rights activities and his participation in opposition rallies. He also complained of a violation of his right to liberty. He had been unlawfully stopped by the police several times on the sole ground that his name was registered in the Surveillance Database. 30. On 22 April 2009 the Nizhegorodskiy District Court dismissed the applicant’s claims. It noted that the applicant’s name had been deleted from the database in September 2007. It continued as follows: “The court considers that the Interior Department of the Nizhniy Novgorod Region had grounds for registering [the applicant’s] name in the Surveillance Database. It follows from [the] letter by a deputy head of the Department for Maintaining Order on Transport of the Interior Ministry of Russia that the Surveillance Database pursues the aim of collecting information about the purchase by the persons listed in it of travel tickets to places [where] mass events [are planned]. Thus, the Surveillance Database does not interfere with the private lives of those listed as [the database] contains only data on their trips in connection with their professional or public activities. The registration of a person’s name in the Surveillance Database cannot be considered as breaching his/her rights or freedoms or hindering the exercise of such rights and freedoms or imposing an unlawful obligation or liability. ... [the applicant] is the representative of the Moscow Helsinki Group, a public activist and the head of the Nizhniy Novgorod Human Rights Union. He organises round tables and seminars for human rights activists. In connection with his public activities he travels to many Russian towns. Thus, in May 2007 he travelled to Samara with the aim of investigating the restrictions on public assemblies during the G8 summit in the Samara region. The court considers that, taking into account [the applicant’s] public activities, the Interior Department of the Nizhniy Novgorod Region was entitled to register his name in the Surveillance Database because, in accordance with section 11 § 4 of the Police Act, when discharging their duties the police may require citizens and officials to provide explanations, information or documents...” 31. The Administrative Offences Code provides that a police officer may escort an individual to the police station by force for the purpose of drawing up a report on the administrative offence provided that it is impossible to do it at the place where that offence has been detected. The individual must be released as soon as possible. The police officer must draw up an “attendance report” or refer to the fact of escorting the individual to the station in the report on the administrative offence. The individual concerned must be given a copy of that report (section 27.2 §§ 1 (1), 2 and 3). 32. In exceptional cases a police officer may arrest an individual for a short period if it is necessary to ensure a correct and prompt examination of the administrative case and secure enforcement of the eventual penalty (Article 27.3 § 1 of the Code). The duration of such administrative arrest must not normally exceed three hours (Article 25.5 §§ 1 of the Code). The arresting officer must draw up “an administrative arrest report” (Article 27.4 of the Code). 33. The Police Act of 18 April 1992 (No. 1026-I) provides that the tasks of the police are, inter alia, the prevention and suppression of criminal and administrative offences and protection of public order and public safety (section 2). Their duties include the prevention and suppression of criminal and administrative offences, detection of circumstances conducive to commission of offences and taking measures to obviate such circumstances (section 10 § 1). 34. Section 11 of the Police Act provides that when discharging their duties the police may, in particular: § 2. check citizens’ identity documents if there are sufficient grounds to suspect that they have committed a criminal or administrative offence or have fled from justice; and search citizens and their belongings if there are sufficient reasons to believe that they possess weapons, ammunition, explosives or drugs; § 4. require citizens and officials to provide explanations, information or documents; § 5. arrest persons suspected of administrative offences or persons who have unlawfully entered or attempted to enter a secure area; § 7. arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order; § 8. arrest persons who have fled from justice; § 9. arrest persons who have evaded compulsory medical treatment or educational supervision; § 10. arrest minors suspected of criminal or administrative offences; § 11. arrest persons in a state of alcoholic intoxication if they have lost their ability to walk unaided or could cause harm to others or to themselves (section 11). 35. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provides that the aims of operative search activities are: (1) the detection, prevention, suppression and investigation of criminal offences and identification of persons conspiring to commit, or committing, or having committed a criminal offence; (2) finding fugitives from justice and missing persons; (3) obtaining information about events or activities endangering the State, military, economical or ecological security of the Russian Federation (section 2). 36. State officials and organs performing operational-search activities are to show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to attain aims or objectives other than those specified in this Act (section 5). 37. Operational-search activities include, inter alia, questioning and identity check (section 6). 38. Section 7 of the Operational-Search Activities Act provides that operational-search activities may be conducted, inter alia, on the following grounds: (1) pending criminal proceedings; (2) receipt by the police of information (a) that a criminal offence has been committed or is ongoing, or is being conspired, and about persons conspiring to commit, or committing, or having committed a criminal offence, if this information is insufficient to open criminal proceedings; (b) about events or activities endangering the State, military, economical or ecological security of the Russian Federation; (c) about fugitives from justice; (d) about missing persons or unidentified bodies; ... (4) receipt of a request from another State agency which is performing operational-search activities on the grounds specified in this section (section 7). 39. The Suppression of Extremism Act (Federal Law no. 114-FZ of 25 July 2002) requires State agencies to take preventive measures against extremism to detect and eliminate causes of, and conditions for, extremist activities, as well as measures to detect, prevent and suppress extremist activities conducted by non-profit and religious organisations and persons (section 3). 40. Order no. 980, On measures for enhancement of the automatic information system used by the interior departments of transport, issued by the Interior Ministry on 1 December 1999 (unpublished, a copy was submitted by the Government), directed that a software database code-named “Search-Highway” (“Розыск-Магистраль”) be created and installed. Its purpose was to facilitate discovery of those suspected of criminal offences whose names were on the wanted persons’ list. It was to be linked to the databases of the railway and airline companies, so that whenever any of the persons listed bought a train or airplane ticket an automatic notification was sent to the police, thereby allowing the police to arrest that person. 41. Order No. 1070, On installing the software database “Search-Highway” in the interior departments of transport, issued by the Interior Ministry on 22 December 1999 (unpublished, a copy was submitted by the Government) provided that the database be installed in the first half of 2000. The appendix to that Order established the procedure for its operation. In particular, it established that the following persons should be included in the database: (1) persons on the Interpol Wanted Fugitives list; (2) foreign nationals or stateless persons whose names were put on the wanted persons’ list in connection with criminal offence committed on the territory of the Russian Federation; (3) foreign nationals whose entry into the Russian Federation was prohibited or restricted; (4) persons suspected of the following serious or especially serious offences: unlawful transportation of arms, ammunition or explosives; criminal explosions; unlawful traffic of antiques or their smuggling out of the Russian Federation; premeditated murders; terrorist acts; drug trafficking; financial crimes; (5) leaders of ethnic communities; leaders and active members of organised criminal groups. 42. Order no. 47, On certain measures intended to strengthen the fight against extremism, issued by the Interior Ministry on 14 April 2005 (unpublished), directed that a database of potential extremists be created as a part of the “Search-Highway” database. It was code-named “Surveillance Database” (“Сторожевой контроль”). 43. According to Mr Sh., an officer from the Volgo-Vyatskiy Interior Department of Transport whose affidavit was submitted by the Government, the decision to register a person’s name in the “Surveillance Database” is taken by the Interior Ministry or its regional departments on the basis of confidential information. | 1 |
train | 001-103765 | ENG | MNE | CHAMBER | 2,011 | CASE OF ŽIVALJEVIĆ v. MONTENEGRO | 4 | Violation of Art. 6-1 | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicants were born in 1950 and 1953 respectively and live in Podgorica. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 19 May 1995 the Public Construction Fund based in Podgorica (“the PCFP”) requested the expropriation of a plot of land belonging to the applicants in order to build a road. 8. On 14 September 1995 the applicants requested that their house and the remainder of their land also be expropriated. 9. By the end of 1995 the planned road was built, passing through the plot in question. 10. On 11 October 1996 the Real Estate Office in Podgorica (“the REOP”) expropriated only the plot specified by the PCFP, without considering the applicants’ request. 11. On 29 October 1996 the applicants lodged an appeal, but by 11 December 1996 this appeal had been rejected. 12. On 5 February 1998 the Supreme Court (Vrhovni sud) quashed the above decisions. 13. By 3 March 2004, following eight remittals, the requests were still pending before the REOP. 14. Between 3 March 2004 and 28 March 2005 three hearings were adjourned, as either the municipality’s representative or the court’s expert witnesses had failed to appear. 15. On 18 February 2005 the applicants sought an “inspection” (inspekcijski nadzor) of the proceedings at issue. By 16 March 2005 the Ministry of Justice had “established irregularities” in the proceedings and ordered that they be rectified (otklanjanje utvrđenih nepravilnosti). 16. On 28 March 2005 the REOP accepted both expropriation requests and on 1 September 2005 this decision was confirmed on appeal. 17. On 6 June 2006 the Administrative Court (Upravni sud) quashed the latter decision. 18. On 3 October 2006 the Ministry of Finance (“the MOF”) quashed the REOP’s decision of 28 March 2005. 19. Since the REOP had failed to render a decision thereafter, on 11 June 2007 and 14 August 2007 respectively the applicants lodged complaints with the MOF. 20. On 30 August 2007 the applicants also initiated a dispute (upravni spor) before the Administrative Court. 21. On 7 September 2007 the MOF accepted the applicants’ appeal and ordered the REOP to decide on the matter within thirty days. 22. On 24 October 2007 the Administrative Court stayed the administrative dispute. 23. On 3 November 2007 the REOP accepted both expropriation requests, but on 28 May 2008 the MOF quashed this decision on appeal. 24. On 16 December 2008 the applicants re-instituted their dispute before the Administrative Court. 25. As of 19 May 2010 the proceedings were still pending. 26. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted. 27. This Constitution entered into force on 22 October 2007. 28. Section 48 provides that a constitutional appeal can be filed against an individual decision of a state body, an administrative body, local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted. Sections 49-59 provide additional details as regards the processing of constitutional appeals. 29. This Act entered into force in November 2008. 30. This Act provides, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of request for review (kontrolni zahtjev), as well as an opportunity for the claimants to be awarded compensation therefor by means of an action for fair redress (tužba za pravično zadovoljenje). 31. Section 44, in particular, provides that this Act shall be applied retroactively to all proceedings from 3 March 2004, but that the duration of proceedings before that date shall also be taken into account. 32. This Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court. 33. Section 212 § 1 provides that in simple matters an administrative body is obliged to issue a decision within one month of a party’s lodging a request. In all other cases, the administrative body is obliged to issue a decision within two months of the lodging of the request. 34. Section 212 § 2 enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal to the appellate body as if his request had been refused. If the appeal is not allowed, the applicant can directly initiate an administrative dispute before the court with jurisdiction. 35. Section 18 provides that a party can institute administrative proceedings before the Administrative Court (administrative dispute) if the appellate body does not issue a decision within sixty days nor within an additional period of seven days; or if the first-instance body does not issue a decision and there is no right to an appeal. 36. Section 35 provides that the Administrative Court itself can rule on the merits if a decision has already been quashed in the same dispute and the relevant body has not acted fully in accordance with the Administrative Court’s judgment or if it has not issued a new decision within thirty days. The Administrative Court can also rule on the merits if the appellate body, or the first-instance body where there is no right to an appeal, has not ruled within the envisaged time-limit. 37. Section 9 of this Act provided that if during the expropriation of a part of one’s real estate it is established that the owner can no longer normally use the remaining property, has no economic interest in using it or if his very means of support is thereby jeopardised, the remaining property shall also be expropriated if he requests it. 38. Section 10 provides that anybody can request an administrative inspection. 39. Sections 13-19 specify the rights and duties of inspectors, which, inter alia, include their right to identify irregularities and order that adequate measures be undertaken, as well as adequate fines imposed. 40. Between 1 January 2008 and 30 September 2009 the courts in Montenegro considered one hundred and two requests for review pursuant to the Right to a Trial within a Reasonable Time Act. A further two requests were withdrawn and eight were still being examined. Of the one hundred and two requests that had been considered in eighty-four cases the applicants were notified that certain procedural measures would be undertaken within a specified period. There is no information in the documents provided as to whether these time-limits were complied with or not. Eighteen requests were rejected as ill-founded. 41. In the same period, twenty-two actions for fair redress were submitted, of which sixteen were dealt with and six were still being examined. In one case the courts awarded the plaintiff non-pecuniary damages for the length of civil proceedings. In 2010 an additional fourteen actions for fair redress were examined, in two of which the courts awarded damages. 42. Sections 185-192 contained details concerning the right of persons who had suffered damage as a result of the wrongful acts of third parties to be compensated. 43. This Act entered into force on 15 August 2008 thereby repealing the Obligations Act 1978. Sections 192-199, however, correspond to sections 185-192 of the previous Act. | 1 |
train | 001-81610 | ENG | UKR | CHAMBER | 2,007 | CASE OF URYANSKIY v. UKRAINE | 4 | Violation of Art. 6-1 | Peer Lorenzen | 4. The applicant was born in 1947 and lives in Novovolynsk. 5. In July 1999 the applicant instituted civil proceedings in the Novovolynsk Court (Нововолинський міський суд Волинської області) against his former employer, the State OJSC “Chervonogradske GMU” (“the Company”; ДВАТ «Червоноградське гірничо-монтажне управління») for various payments. 6. On 6 October 1999 and 17 December 1999 the court awarded the applicant a total of 3,355.37 Ukrainian hryvnyas (UAH). 7. On 21 January 2000 the Chervonograd Bailiffs Service (Відділ Державної виконавчої служби Червоноградського міського управління юстиції Львівської області) initiated the enforcement proceedings for collecting the above amount. 8. On 20 August 2005 the applicant received UAH 1,409.80. 9. The remaining judgments debt is outstanding on account of the Company's lack of funds and the holding of its assets in tax lien. 10. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). | 1 |
train | 001-109750 | ENG | TUR | CHAMBER | 2,012 | CASE OF PEKASLAN v. TURKEY | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicants were born in 1961, 1972, 1985, 1956 and 1962 respectively and live in Malatya. 6. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in section B below (paragraphs 7-13). The Government’s submissions concerning the facts are summarised in section C below (paragraphs 14-20). The documentary evidence submitted by the applicants and the Government is summarised in section D (paragraphs 21-41). 7. On 8 March 2005 the applicants took part in International Women’s Day celebrations in the city of Malatya, during which a group comprising hundreds of police officers formed a cordon around the crowd. The police chief warned the participants that no prior permission had been obtained for the gathering. 8. The first applicant, Ms Nihal Pekaslan, who was a spokesperson for the Women’s Democratic Platform, told the police chief that they were exercising their constitutional right and that the applicable legislation required no prior permission. 9. Police officers then dragged a number of persons, including four of the applicants, into waiting police vehicles. In the course of so doing, the police officers sprayed the crowds with tear gas and hit some of them, including the four applicants. 10. The second applicant, Ms Refika Meltem İspir, was not arrested. She was not beaten up, but was sprayed with tear gas. She was accompanied by her eleven-year-old daughter and her mother, both of whom were also sprayed with tear gas. 11. The ill-treatment continued in the police vehicles. Male police officers started squeezing the arms and legs of the detained women. When the women told the police officers that they had no right to behave like that and asked for female police officers to accompany them, they were sworn at. The episode in the police vehicles lasted for approximately twenty minutes. 12. The four applicants were then taken to a police station and subsequently to the Forensic Medicine Institute for a medical examination. According to the medical reports drawn up that day, the four applicants who had been hit by the police officers had a number of injuries on their bodies, rendering them unable to work for periods of between one and three days. 13. Later that same day the four applicants were released from police custody. 14. On 8 March 2005 the applicants took part in International Women’s Day Celebrations in Malatya where three different groups of demonstrators were carrying placards, flags and posters, and holding demonstrations which hindered the flow of traffic. 15. A group of police officers tried to convince the group to disperse, and requested them to hold their demonstrations without impeding the circulation of the traffic. A police chief warned the participants that no prior permission had been obtained for the gathering, but told them that they could carry on with their demonstration on the pavement and walk in an orderly manner without violating public order. Nevertheless, the group, including the applicants, refused to disperse and continued with their demonstration. 16. The police chief made several unsuccessful attempts to tell the participants that the manner in which they were conducting their demonstration was unlawful because they were impeding the flow of traffic. The police chief also told the participants that they could leave their placards – which were too large – and walk on the pavement; the placards would be returned to them later. 17. The group insisted on blocking the street and continued with their demonstration. In spite of the police officers’ warnings and efforts, the group shouted slogans and continued to protest. Meanwhile, ten to fifteen police officers formed a cordon around the participants who had been giving orders to the rest of the demonstrators. The demonstrators inside the police cordon continued to protest, saying that they would not end the illegal demonstration even if they were arrested. 18. Police officers then put a number of persons, including four of the applicants, into the waiting police vehicles by force which could not be considered disproportionate. They were taken to the Malatya Court House. On the way to the court house the applicants insulted the police officers present in the vehicle and tried to provoke them. However, the police officers kept their calm. Female demonstrators were accompanied by female police officers in the vehicle. 19. The remaining members of the group who had not been arrested continued with their demonstration and read out their press release after having complied with the police officers’ request to fold their placards and walk on the pavement. 20. The Government submitted the video footage of the incident to the Court, and argued that the footage supported their submissions summarised above. 21. The following information emerges from the documents submitted by the parties. 22. According to a report signed by eighteen police officers, at 2.00 p.m. on 8 March 2005, police received intelligence that a number of non-governmental organisations were planning to gather at the junction of Milli Egemenlik Street with a view to marching from there to the square outside the post office. The police put in place all necessary security measures at the junction at 11.00 a.m. and the demonstrators began arriving at midday. 23. The police officers unsuccessfully urged the demonstrators not to march with their placards to the square, where a press release was scheduled to be read out. When the demonstrators ignored the police and started marching, thus blocking a main road, the police officers had to use force to arrest the applicants – with the exception of the second applicant, Ms Refika Meltem İspir – and five other demonstrators because they resisted arrest and insulted the police officers. 24. According to another police report drawn up on the same day, the arrested persons behaved in a rowdy manner while they were being transported to the court house in a vehicle. They also insulted the police officers present in the vehicle by shouting things such as “Who do you think you are? You have no right to behave like this. Shame on you, are you going to tell your children that you are torturers?”. 25. The Government submitted to the Court the video footage of the incidents recorded by police officers. However, the part where the police officers used force and arrested the applicants does not feature in the footage. The footage begins with the police officers trying to persuade the demonstrators to leave their placards behind, and then resumes with the demonstrators protesting against the use of force by the police officers and asking for their arrested friends to be released. 26. It can be seen from the footage that before they were arrested the applicants drew the police officers’ attention to a circular issued by the Ministry of the Interior on 11 June 2004. In the circular, a copy of which was made available to the Court by the applicants, the Ministry urges police officers to respect certain rights and freedoms, including freedom of expression and assembly, and reminds them that those rights and freedoms can only be restricted in limited circumstances. In the circular, police officers are also urged to show restraint when faced with demonstrations, and to use their powers to promote the rights of civil society. 27. On the same day the four arrested applicants were examined by doctors at the local branch of the Forensic Medicine Institute. The details of their injuries, as noted in the medical reports, are as follows: Ms Nihal Pekaslan: four ecchymosed areas measuring between one and five centimetres, and grazes on both forearms and on the left hand. Her injuries prevented her from working for three days. Ms Kıvanç Pekaslan: an ecchymosed area measuring 2 x 2 centimetres on the inside of the right arm, which prevented her from working for one day. Mr İbrahim Bozay: two ecchymosed areas, each measuring 1 x 1 centimetre, on the forehead, and two ecchymosed grazes on one of the fingers of the right hand and on the right forearm, measuring 1 x 1 and 2 x 2 centimetres respectively. These injuries prevented Mr Bozay from working for one day. Ms Leyla Bozay: Ms Bozay told the doctor that she had been hit on the nape of the neck and that her hair had been pulled. The doctor observed two ecchymosed areas measuring 1 x 1 and 2 x 1 centimetres on the insides of both arms, which prevented her from working for one day. 28. On 10 March 2005, at 2.40 p.m., the first applicant, Ms Nihal Pekaslan, was examined by another doctor at the Malatya State Hospital, who observed two ecchymosed areas measuring 15 x 15 centimetres on her arms, and various other ecchymosed areas on her knee and hand. According to the doctor, the injuries had been caused some thirty-six to forty-eight hours previously. 29. On 8 March 2005 the second applicant, Ms Refika Meltem İspir, lodged an official complaint with the prosecutor against the police officers who, she alleged, had sprayed her and her daughter with tear gas. On the same day Ms İspir orally informed the prosecutor that she would recognise the police officer who had sprayed her and her daughter with tear gas. When, some thirty-five days later, she was asked by the investigating police officer whether she would be able to identify the police officer responsible, she stated that she had only seen him once and then only for a few seconds, but that had they asked her immediately after the incident she would have been able to recognise him. 30. On 11 March 2005 the remaining four applicants lodged an official complaint with the prosecutor against the police officers allegedly responsible for the ill-treatment. They complained, inter alia, that they had been beaten up and assaulted while exercising their right to freedom of expression and assembly. They also referred to Articles 3 and 10 of the Convention. 31. On 16 March 2005 a police chief in Malatya sent a verbatim transcription of the video footage of the incidents to the Malatya prosecutor. 32. Between 4 April 2005 and 3 May 2005 the Malatya prosecutor took statements from eighteen police officers who had been on duty on the day of the incidents. A police chief told the prosecutor that female demonstrators had attacked the police and that the police had had to use force in response. He maintained that the force used by the police had been proportionate. 33. Four of the police officers told the prosecutor that the demonstrators had blocked the street and that the police had had to arrest them. While they were arresting the demonstrators there had been scuffles and the demonstrators had attacked the police officers with sticks. The police officers had had to use force, as a result of which the demonstrators might have suffered minor injuries. 34. The remaining thirteen police officers’ statements concerned solely the complaints made by the applicants regarding the alleged assaults by male police officers on their way to the court house. These officers denied that the demonstrators had been assaulted in the police vehicles. They also added that the arrested persons had been accompanied by female officers in the vehicles. 35. On 18 April 2005 the prosecutor examined the video footage submitted to his office by the police, and recorded his findings in a report. In the opinion of the prosecutor, the demonstrators had tried to break the police cordon and march. The police officers had not behaved in an arbitrary manner and the use of force by them had not been excessive. 36. On 12 May 2005 the Malatya prosecutor decided not to prosecute the police officers. In his decision the prosecutor stated that the second applicant, Ms İspir, had been unable to recognise the police officer who had sprayed her with tear gas. The prosecutor stated that the applicants had gathered in the area without having sought prior permission. In dispersing the unauthorised demonstration, the police officers had been impelled to resort to the use of force in order to apprehend the applicants because they had resisted arrest and insulted them. In the opinion of the prosecutor, other than the applicants’ unsubstantiated allegations, there was no evidence justifying the prosecution of the police officers. 37. The applicants lodged an objection against the prosecutor’s decision. They argued, in particular, that although they had not resisted arrest, the police officers had proceeded to arrest them by using force. The applicants also maintained that they had tried to exercise their right to freedom of expression, which was guaranteed by the Constitution as well as by Article 10 of the Convention. They also pointed out that, according to the applicable legislation, no prior permission was necessary to hold demonstrations. Moreover, the police officers had acted contrary to the circular issued by the Ministry of the Interior (see paragraph 26 above), and their actions had also been in breach of Article 3 of the Convention. 38. The objection filed by the applicants was rejected by the Elazığ Assize Court on 28 July 2005. That decision was communicated to the applicants in September 2005. 39. On 8 March 2005 four of the applicants – that is, all the applicants with the exception of the second applicant, Ms Refika Meltem İspir – were questioned by the Malatya prosecutor as suspects. They told the prosecutor that before they could even begin their demonstration the police had arrested them without warning and, in the course of doing so, had hit them. They denied that they had insulted the police officers. Lawyers representing the applicants told the prosecutor that the arrests had been arbitrary and in breach of their clients’ fundamental rights and freedoms under the Convention, including the prohibition of torture. The lawyers added that their clients had been exercising their democratic rights and had not committed any offences. 40. On the same day, the Malatya prosecutor filed an indictment with the Malatya Criminal Court of First Instance and brought criminal proceedings against the four applicants, as well as against the remaining five persons who had been arrested together with the applicants, for insulting the police officers and contravening the Meetings and Demonstration Marches Act (Law no. 2911). 41. On 2 June 2005 the Malatya Criminal Court of First Instance acquitted the four applicants and the remaining defendants. It held that there was no evidence to show that the four applicants had put up resistance against the police officers. | 1 |
train | 001-5053 | ENG | RUS | ADMISSIBILITY | 2,000 | CHEREPKOV v. RUSSIA | 1 | Inadmissible | Nicolas Bratza | The applicant is a Russian national, born in 1942. He lives in Vladivostok. A. On 5 July 1993 the applicant was elected mayor of the city of Vladivostok, an administrative centre of the Maritime Territory of Russia. The mandate of the previous Vladivostok Municipal Council (hereinafter referred to as the “VMC”) expired in 1993. From 1994 to 1996 elections to the VMC were fixed and postponed several times. The elections took place in 1996 and 1997, but were found invalid because of certain informalities, including insufficient participation by the electorate and a disputed outcome. In 1997 and 1998 the VMC was not elected as the local executive and law enforcement authorities were involved in a number of court disputes as to the proper manner in which to hold the elections. During those proceedings a number of administrative decisions were taken, but subsequently quashed. In late 1998 and early 1999 the elections took place several times, but were found invalid because of various informalities including, once more, insufficient participation by the electorate and a disputed outcome. On 5 July 1998 the applicant’s mandate as the mayor of Vladivostok expired. On 26 September 1998 the Maritime Territory Electoral Registry refused to register him as a candidate in the next mayoral elections. The elections took place on 27 September 1998, but were found invalid due to various informalities. Upon the applicant’s appeal against the decision preventing his candidacy, on 5 October 1998 the Maritime Territory Regional Court upheld that decision. The applicant appealed to the Supreme Court. The applicant contends that the appeal is currently pending. By a decree of 11 December 1998 the President of Russia authorised the Governor of the Maritime Territory to appoint an acting mayor of Vladivostok on the ground that the applicant’s mandate had expired. On 14 December 1998 the Governor appointed an acting mayor. The applicant applied to court, contesting the lawfulness of that appointment. He stated in particular that his term continued as long as his successor was not elected. On 19 January 1999 the Maritime Territory Regional Court confirmed the lawfulness of the Governor’s decision. On 4 February 1999 the Supreme Court rejected at first instance the applicant’s action whereby he had alleged that the presidential decree of 11 December 1998 had been null and void. On 15 April 1999 the Appellate Chamber of the Supreme Court upheld that decision. On 14 May 1999 the Supreme Court dismissed the applicant’s appeal against the judgment of 19 January 1999. It appears that to date neither the Vladivostok Municipal Council nor the mayor has been elected. B. Relevant domestic law The Constitution of the Russian Federation Pursuant to Article 5 of the Constitution, the Russian Federation consists of “federal subjects” (субъекты федерации) which can have their own constitutions, statutes and legislation. Under Article 11 § 1, “State authority” is exercised by the President of Russia, the Parliament, the Government and courts. Pursuant to Article 11 § 2, State authority which is vested in the federal subjects is also exercised by the competent authorities of those entities. Legislative power is exercised by the Parliament (Article 94). Under Article 12, local authorities are not considered as having State authority (i.e. legislative, executive or judicial powers) within the meaning of the Constitution. Federal subjects enjoy a number of autonomous rights, including inter alia the right to exercise, jointly with the competent federal authorities, legislative power in various political, economic, social and legal fields (Articles 72 and 76). Articles 73 and 76 of the Constitution entitle the federal subjects to exercise legislative power in those areas which do not relate to the exclusive competence of the Federation or the joint competence of the Federation and “federal subjects”. The Maritime Territory is a “federal subject” of Russia (Article 65). Laws of the Maritime Territory The status of the Maritime Territory is defined in the Constitution of the Russian Federation and the Statute of the Maritime Territory. The Statute was passed by the Duma of the Maritime Territory (hereinafter referred to as the “DMT”) on 12 September 1995. Under Article 9 of the Statute, legislative power in the Maritime Territory is exercised by the local residents by way of referendum, and by the DMT. The DMT is the only legislative organ in the territory, and consists of 39 representatives elected for a period of four years (Article 46 of the Statute). The Governor is the head of the executive in the Maritime territory (Article 56 of the Statute). Under Article 11 of the Statute, the local authorities do not exercise “State authority” (i.e. legislative, executive or judicial powers). The mandate, functions, powers and controls of the local authorities, including municipal councils and mayors, are defined in the Maritime Territory Local Government Act (hereinafter referred to as the “Act”), which was adopted by the DMT on 26 December 1995. Municipal councils and mayors are elected by local residents (Articles 24 and 26 of the Act), and election procedures are specifically governed by special laws passed by the DMT. Pursuant to Article 29 of the Act, local authorities can adopt regulations and by-laws in the areas in which the Act confers such competence upon them. | 0 |
train | 001-104885 | ENG | RUS | ADMISSIBILITY | 2,011 | TIMOSHIN v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | The applicant, Mr Yevgeniy Viktorovich Timoshin, is a Russian national who was born in 1967 and is currently serving his sentence in Revda in the Murmansk Region. The respondent Government are represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 May 2004 the Moscow Regional Court in a jury trial convicted the applicant of a number of serious criminal offences, including two counts of murder, attempted murder and robbery, and sentenced him to twenty-two years’ imprisonment and a fine in the amount of 2,500 roubles (RUB). During the trial the applicant, represented by a lawyer of his own choosing, protested his innocence. On 26 May 2006 he lodged an appeal before the Supreme Court of the Russian Federation (“Supreme Court”). He also made a special request to ensure his participation, as well as the participation of his counsel, in the appeal hearing. On 6 October 2004 the Supreme Court held an appeal hearing in which the applicant took part by videoconference. His lawyer did not appear. The public prosecutor was present and made his oral submissions. By the judgment of the same date, the Supreme Court of Russia upheld the applicant’s conviction and sentence. On 6 October 2010, on request by the Deputy Prosecutor General, the Presidium of the Supreme Court, by way of supervisory review proceedings, quashed the judgment of 6 October 2004 on the ground that the applicant’s right to legal assistance had been infringed and remitted the case for a fresh examination before the appellate court. On 30 November 2010 the Supreme Court held a fresh appeal hearing. The applicant participated in the hearing by video link. At the beginning of the hearing, the court introduced the applicant to Mr R., a court-appointed counsel who was present in the Supreme Court’s courtroom. The applicant asked the court to provide him with an opportunity to discuss confidentially the strategy of his defence with counsel by means of video link. His request was granted. The court then proceeded with the examination of the applicant’s appeal. It studied the case file and heard oral submissions by the applicant, his representative and the public prosecutor. Mr R., in particular, pointed to numerous procedural violations, and asked to quash the judgment of 18 May 2004 and remit the applicant’s case to the trial court for the fresh examination. By the judgment of the same date, the Supreme Court upheld the applicant’s conviction and reduced his sentence to twenty years’ imprisonment. According to the court record, the applicant had neither objections nor comments as regards the conduct of the proceedings. | 0 |
train | 001-119678 | ENG | DEU | CHAMBER | 2,013 | CASE OF RADU v. GERMANY | 3 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Conviction) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1962. He is currently detained in Riedstadt Psychiatric Hospital. 6. On 26 January 1983 the Frankfurt am Main Regional Court convicted the applicant on two counts of murder and sentenced him to seven years’ imprisonment. It found that the then nineteen-year-old applicant, acting with full criminal responsibility, had killed the parents of his girl-friend in 1982 by stabbing them twenty-five times following a quarrel. He was released from prison in January 1987. 7. On 15 March 1995 the Gießen Regional Court convicted the applicant of homicide. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 41 below). It found that in April 1994, the applicant had killed his former partner by stabbing her eight times following a clash caused by the fact that his former partner had started an intimate relationship with a tenant living in their house. The applicant had subsequently attempted to kill himself. 8. The Gießen Regional Court, having consulted experts Sch. and P., further considered that the applicant’s placement in a psychiatric hospital had to be ordered. It found that the applicant had committed his offence with diminished criminal responsibility (Article 21 of the Criminal Code; see paragraph 39 below). His capacity to control his acts had been substantially diminished upon commission of the act owing to a profound consciousness disorder (tiefgreifende Bewußtseinsstörung). He suffered from a serious personality disorder characterized by violent outbursts which led to his diminished capability to control his acts. Having regard to his condition, it was to be expected that the applicant would kill again if he found himself in a similar conflict situation in a relationship. The court mitigated the applicant’s prison sentence owing to the fact that he had acted with diminished criminal responsibility (Article 49 of the Criminal Code, see paragraph 40 below). As the applicant did not lodge an appeal on points of law, the judgment became final. 9. The applicant served four years of his prison sentence. On 14 April 1998 he was then transferred to the Haina Psychiatric Hospital. In subsequent proceedings for review of the applicant’s detention, the medical director of that hospital came to the conclusion that the applicant had been wrongfully placed in a psychiatric hospital as he had never suffered from a persisting pathological mental disorder. He was an “accentuated personality” whose profile was still normal and did not suffer from a personality disorder as defined by the World Health Organization. He lacked true motivation to complete a therapy aimed at resolving crisis situations in relationships. It was therefore very likely that he would commit another capital offence in the context of a serious crisis in a relationship if released. The court dealing with the execution of sentences thereupon ordered the applicant’s retransfer to Kassel Prison in June 2000, where the applicant served the remainder of his prison sentence. 10. On 22 October 2002 the Frankfurt am Main Court of Appeal (file no. 3 Ws 557/02) dismissed the applicant’s appeal against the decision of the Marburg Regional Court of 17 April 2002. The latter had decided not to suspend the remainder of the applicant’s prison sentence and grant probation and not to declare the applicant’s placement in a psychiatric hospital terminated. 11. The Court of Appeal noted that the Regional Court had consulted a psychiatric expert, S. In his report dated 17 September 2001, the latter had found that at the time of his act, and contrary to the conclusions drawn by the Gießen Regional Court, the applicant had not suffered from a serious personality disorder diminishing his criminal responsibility. Agreeing with psychiatric experts who had examined the applicant in 1982, 1994 and 1995, expert S. considered that the applicant did not suffer from a serious mental abnormality (Article 20 of the Criminal Code; see paragraph 38 below). From a medical point of view, his detention in a psychiatric hospital was therefore not justified. 12. The Court of Appeal considered, however, that the applicant’s detention in a psychiatric hospital was not to be declared terminated. It noted that the order for the applicant’s placement in a psychiatric hospital by the sentencing court was the result of an erroneous legal qualification of the applicant’s condition on the basis of a correct factual basis. This assessment could not be corrected by the courts dealing with the execution of sentences as doing so would violate the constitutional principle of the finality of judicial decisions. 13. Since 13 October 2003 the applicant, having fully served his prison sentence, is detained in a psychiatric hospital, initially in Hanau. 14. On 28 April 2006 the Gießen Regional Court, in review proceedings under Article 67e of the Criminal Code (see paragraph 42 below) in which the applicant was represented by counsel, declined to suspend the order for the applicant’s confinement in a psychiatric hospital and to grant probation. 15. The Regional Court noted that in the submissions of the medical director of the Hanau Psychiatric Hospital, there was still a risk that the applicant, who had already killed three people, committed similar offences if released. However, that risk did not stem from a mental abnormality of the applicant, but from certain characteristics of his personality which permitted an escalation in a crisis within a relationship. Therefore, the medical director of the psychiatric hospital had suggested the applicant’s retrospective preventive detention (see paragraphs 49-52 below). 16. The Regional Court had further consulted a psychiatric and neurological expert, B. The latter had found in his report of 9 November 2005 that the applicant suffered from a personality disorder characterized by emotional instability and a disposition to react in an uncontrolled violent manner. That disorder was not pathological and was, from a psychiatric point of view, not a serious mental abnormality (see Article 20 of the Criminal Code). He agreed in this respect with the findings of psychiatric experts S. (consulted in 2001) and Sch. (consulted in 1994) who had equally found that the applicant did not suffer from a pathological personality disorder for the purposes of Article 20 of the Criminal Code. Expert B. further considered that the applicant, who had not learnt to deal with conflicts arising in relationships since his past offences, had a disposition to and was liable to commit similar offences as the one which had led to his placement in a psychiatric hospital if released. 17. The Regional Court noted that it was impossible from a legal point of view to order the applicant’s retrospective preventive detention under Article 66b of the Criminal Code (see paragraphs 50-52 below). In particular, there was no new evidence indicating that the applicant was particularly dangerous. Furthermore, the court was legally precluded from taking into account the applicant’s conviction in 1983 on two counts of murder as a previous conviction, as it dated back too long. The Public Prosecutor’s Office had accordingly withdrawn its requests to declare the applicant’s confinement in a psychiatric hospital terminated and to order his retrospective preventive detention. 18. The Regional Court considered that the applicant’s continued detention in a psychiatric hospital had to be ordered. It noted that expert B. had confirmed previous findings to the effect that the order made by the sentencing Gießen Regional Court for the applicant’s detention in a psychiatric hospital was based on an erroneous legal qualification on the basis of correctly established facts. 19. The Regional Court argued that this situation differed from a situation in which the sentencing court had wrongly established the relevant facts as to a person’s diminished criminal responsibility. In the latter case, a person who had never suffered from defects warranting placement in a psychiatric hospital could not be expected to undergo psychiatric treatment independently of his criminal guilt. In that case, the termination of the confinement by the courts dealing with the execution of sentences made it unnecessary for the person concerned to request the reopening of the criminal proceedings. 20. Conversely, in the present case, the courts dealing with the execution of sentences would breach the constitutional principle of the finality of judgments if they replaced the legal qualification of the facts by the sentencing court by their own legal qualification. A reopening of the proceedings was not possible in these circumstances. The Regional Court further considered that Article 67d § 6, read in conjunction with Article 66b § 3 of the Criminal Code (see paragraphs 44 and 51 below), just as the caselaw previously established on that issue (see paragraphs 45-48 below), concerned only the order for placement in a psychiatric hospital based on a wrong establishment of the facts. 21. The Regional Court, endorsing the findings of expert B., further found that the applicant’s continued detention was necessary as the applicant was still dangerous to the public. As there was a risk that the applicant would kill a person for the fourth time if released, his detention was not disproportionate. 22. The applicant appealed against the Gießen Regional Court’s decision. He argued that his detention in a psychiatric hospital had to be declared terminated under Article 67d § 6 of the Criminal Code as he did not suffer from a disorder which had to be considered as pathological. Therefore, his placement in a psychiatric hospital could not be justified under Article 63 of the Criminal Code. 23. On 16 June 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal. It found that the applicant’s detention was not to be terminated under Article 67d § 6 of the Criminal Code. It noted that expert B., consulted by the Regional Court, had found in accordance with all experts consulted previously that the applicant suffered from a personality disorder characterized by emotional instability. His tendency to uncontrolled outbursts of fury or violence and his inability to control his conduct was not, however, pathological. The applicant’s unchanged condition was not a persisting disorder which fell within the ambit of Article 63 of the Criminal Code. 24. Referring to its decision dated 22 October 2002 (see paragraphs 1012 above), the Court of Appeal found that the applicant’s placement in a psychiatric hospital was not the result of an erroneous establishment of the relevant facts, that is, the diagnosis of the applicant’s condition. It was the result of an erroneous legal qualification of the applicant’s condition on the basis of correctly established facts. The sentencing court had qualified the applicant’s offence as being the result of a serious personality disorder and had ordered the applicant’s detention in a psychiatric hospital without taking into account that a disorder for the purposes of Article 63 of the Criminal Code had to be a persisting condition. However, this erroneous legal assessment was to be corrected in proceedings following an appeal on points of law. It could no longer be corrected in the proceedings dealing with the execution of a sentence as doing so would violate the constitutional principle of the finality of legal decisions. 25. The Court of Appeal further confirmed that the newly enacted Article 67d § 6 of the Criminal Code did not alter that conclusion. Referring to its previous decisions (including, in particular, its decision of 3 June 2005, file no. 3 Ws 298 and 299/05, see paragraph 48 below), it considered that that provision, which did no more than codify the case-law developed previously by the courts dealing with the execution of sentences, also did not cover placements in a psychiatric hospital based on an erroneous legal qualification (as opposed to factual assessment) by the sentencing court. 26. Endorsing the findings of the Regional Court, the Court of Appeal further found that it was very likely that the applicant would seriously harm others, especially in case of a crisis in a relationship, if released. Having regard to the fact that he had already killed three people, his continued detention was proportionate. The applicant had not changed his attitude and had not learnt to control his conduct. 27. On 14 July 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions taken by the Regional Court and the Court of Appeal. He submitted, in particular, that his continued detention in a psychiatric hospital violated his constitutional right to liberty. He argued that under the clear wording of Article 67d § 6 of the Criminal Code, his detention had to be declared terminated as he had never suffered from a pathological mental disorder within the meaning of Article 20 of the Criminal Code. Therefore, the requirements for his further detention under Article 63 of the Criminal Code were not met and his detention was unlawful. 28. On 19 October 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint as it lacked prospects of success (file no. 2 BvR 1486/06). 29. The Federal Constitutional Court reiterated that it examined the application of legal provisions other than those of constitutional law only to a limited extent. The application of those provisions by the courts dealing with the execution of sentences had not been arbitrary. Even having regard to the importance of the constitutional right to liberty, constitutional law did not prohibit the courts’ refusal to apply Article 67d § 6 of the Criminal Code to cases in which the sentencing court had only made an error of law in the judgment ordering the detention. The sentencing court’s application of the law had become final and no reopening of the proceedings was permitted on that ground. The finality of judgments guaranteed legal certainty, which was a principle protected by the rule of law alongside the principle of justice (materielle Gerechtigkeit). It was in the first place for the legislator to balance these competing principles enshrined in the rule of law. 30. The Federal Constitutional Court’s decision was served on the applicant’s counsel on 13 November 2006. 31. On 26 March 2007, 21 April 2008, 14 April 2009 and 29 January 2010 the Gießen Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation. 32. The Gießen Regional Court had heard the medical director of the Hanau Psychiatric Hospital prior to its decisions, who had repeatedly confirmed that the applicant did not suffer and had never suffered from a pathological disorder justifying his placement in a psychiatric hospital. However, having regard to his personality and his lack of motivation to bring about a change in his personality, it was likely that he would commit further similarly serious offences as the one having let to his placement in a psychiatric hospital if released. 33. The Regional Court’s decisions were all subsequently confirmed by the Frankfurt am Main Court of Appeal. The latter stressed on several occasions, in particular in its decision dated 29 August 2008, that the Psychiatric Hospital was obliged to offer the applicant a suitable therapy even if he did not suffer from a pathological personality disorder. It equally stressed, for example in its decision dated 30 June 2009, that the applicant, for his part, had to show to be ready to undergo therapy. 34. In January 2010 the applicant was provisionally transferred from Hanau Psychiatric Hospital, which was being closed, to Wiesloch Psychiatric Hospital. 35. On 21 March 2011 the Heidelberg Regional Court ordered the applicant’s detention in a psychiatric hospital to continue. 36. On 1 April 2011 the applicant was transferred from Wiesloch to Riedstadt Psychiatric Hospital where he is currently detained. 37. On 18 January 2012 the Darmstadt Regional Court ordered the applicant’s confinement in a psychiatric hospital to continue. On 5 March 2012 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. The psychiatric expert H. consulted by the court had confirmed that the applicant had a disposition to emotional outbursts and a limited capability to control his impulsive behavior and that his personality deviated from a normal personality in these respects. However, these deviations were not so serious as to amount to a personality disorder and even less to “any other serious mental abnormality” within the meaning of Article 20 of the Criminal Code. There was a high risk that the applicant committed further capital offences in a conflict situation if released. The Court of Appeal stressed that it would be possible for the applicant to undergo a therapy in a psychiatric hospital and to reduce his dangerousness significantly thereby. However, he lacked sufficient motivation to complete the therapies he had started. Despite this, the hospital staff remained under an obligation to offer the applicant suitable therapies and to attempt to motivate him to undergo therapy. 38. Article 20 of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders. It provides that a person who, upon commission of an act, is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder, a profound consciousness disorder, a mental deficiency or any other serious mental abnormality acts without guilt. 39. Article 21 of the Criminal Code governs diminished criminal responsibility. It provides that the punishment may be mitigated in accordance with Article 49 § 1 of the Criminal Code if the perpetrator’s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to one of the grounds indicated in Article 20 of the Criminal Code. 40. Article 49 § 1 of the Criminal Code contains rules on the fixing of a penalty in cases in which the law requires or allows for a mitigation of the penalty under that provision. It provides, in particular, that in cases of sentences of imprisonment for a fixed term, no more than three quarters of the statutory maximum term may be imposed (Article 49 § 1 subparagraph 2). 41. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility (Article 20 of the Criminal Code) or with diminished criminal responsibility (Article 21 of the Criminal Code), the court shall order his placement in a psychiatric hospital if a comprehensive assessment of the perpetrator and his act reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public. 42. Pursuant to Article 67e of the Criminal Code, the court (that is, the chamber responsible for the execution of sentences) may review at any time whether the further execution of the order for a person’s placement in a psychiatric hospital should be suspended and a measure of probation applied. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons detained in a psychiatric hospital, this time-limit is one year (paragraph 2 of Article 67e). 43. Article 67d of the Criminal Code contains provisions on the duration of detention. Paragraph 2 of that provision provides that if there is no provision for a maximum duration of the confinement or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the person concerned. 44. Article 67d § 6 of the Criminal Code, in the version in force at the relevant time, provided: “(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. On termination of the measure, the conduct of the person concerned shall be supervised. ...” 45. Article 67d § 6 was inserted into the Criminal Code together with Article 66b by the Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004. It codifies the case-law previously established by the courts dealing with the execution of sentences concerning the termination of a person’s confinement in a psychiatric hospital in cases in which that person no longer suffered, or had in fact never suffered, from a condition excluding or diminishing his or her criminal responsibility. 46. Under that case-law, a person’s detention in a psychiatric hospital had to be terminated in cases in which it was established that the person concerned no longer suffered from a mental disorder within the meaning of Article 20 of the Criminal Code at the time of the decision of the court dealing with the execution of sentences, notably as he or she has been cured (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298299/05, decision of 3 June 2005; and the references quoted in the decision dated 12 May 2010 of the Federal Court of Justice, file no. 4 StR 577/09). 47. Moreover, the detention was to be terminated in cases in which such a disorder did not exist from the outset, but where the sentencing court had concluded on the basis of erroneous facts that it did exist (erroneous placement in a psychiatric hospital for factual reasons). It was only decisive that at the time of the decision of the court dealing with the execution of sentences, it has been established that the conditions for a confinement in a psychiatric hospital were not met (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 1119/01, decision of 26 November 2001; Frankfurt am Main Court of Appeal, file no. 2 Ws 572/02, decision of 22 October 2002, NStZ 2003, pp. 222 ss.; Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005). 48. Conversely, the domestic courts dealing with the execution of sentences, whose view was supported by a number of scholars, repeatedly found that an erroneous placement in a psychiatric hospital based on purely legal errors by the sentencing court was not covered by Article 67d § 6 of the Criminal Code, despite the fact that the wording of that provision was open in that respect. Such a purely legal error arose in cases in which the sentencing court had correctly established the relevant facts relating to the mental disorder, but had wrongly classified it in law as a mental disorder within the meaning of Articles 20, 21 and 63 of the Criminal Code (see, for instance, Frankfurt am Main Court of Appeal, file no. 3 Ws 298-299/05, decision of 3 June 2005; and W. Stree / J. Kinzig, in: A. Schönke / H. Schröder, Strafgesetzbuch Kommentar, 28th edition, Munich 2010, Article 67d, no. 16 with many further references). 49. As mentioned above (see paragraph 45), the Retrospective Preventive Detention Act of 23 July 2004 inserted not only Article 67d § 6, but also Article 66b into the Criminal Code. The provision was aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met (including cases in which they had never been met from the outset), but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14). 50. Article 66b of the Criminal Code contains provisions for the retrospective order for a person’s placement in preventive detention. At the relevant time, paragraphs 1 and 2 of that provision authorised such an order if the person concerned had committed certain serious offences. In addition, following the person’s conviction, new evidence must have come to light which indicated that the convicted person presented a significant danger to the general public. Furthermore, it must be very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims. 51. Article 66b § 3 of the Criminal Code further provided at the relevant time that if an order for placement in a psychiatric hospital was declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order had been based did not exist at the time of the decision terminating the placement, the court could order preventive detention retrospectively under the following conditions. Firstly, the placement of the person concerned under Article 63 must have been ordered on the basis of several serious offences (listed in Article 66 § 3, first sentence). Alternatively, the person concerned must either already have been sentenced to at least three years’ imprisonment or must have been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63. Secondly, a comprehensive assessment of the person concerned, his criminal acts and, in addition, his development during the execution of the measure must have revealed that it was very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims. 52. Article 66b § 3 and Article 67d § 6 of the Criminal Code remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code by the said Act, the former paragraph 3, slightly amended, became the only provision of that Article. 53. Under Article 337 § 1 of the Code of Criminal Procedure, an appeal on points of law (Revision) may only be filed on the ground that the judgment was based on a violation of the law. Article 337 § 2 of the Code of Criminal Procedure provides that the law was violated if a legal provision was either not applied or was not applied correctly. 54. Article 359 of the Code of Criminal Procedure enumerates the circumstances in which criminal proceedings which were terminated by a final judgment may be reopened to the benefit of the convicted person. Under sub-paragraph 5 of that provision, this is the case, in particular, if new facts or evidence were produced which, alone or in connection with the evidence taken previously, may support the acquittal of the accused or an essentially different decision on a measure of correction and prevention. Conversely, the discovery of an error in law was not a ground listed in that provision for the reopening of criminal proceedings. | 0 |
train | 001-22204 | ENG | ESP | ADMISSIBILITY | 2,000 | CAMPMANY Y DIEZ DE REVENGA and LOPEZ-GALIACHO PERONA v. SPAIN | 1 | Inadmissible | Georg Ress | The applicants are Spanish nationals who were born in 1925 and 1961 and live in Madrid. They are represented before the Court by Mr Guillermo Regalado Nores and Mr Manuel Ollé Sese, lawyers practising in Madrid. The first applicant is the editor of a general news magazine, Epoca, and the legal representative of the company that publishes the magazine. The second applicant is a journalist. In its edition of 4 March 1991 the magazine Tribuna referred in its “Prying Eye” column to what one of its journalists called “a new sex scandal between an attractive aristocrat and a banker from this country” and to the existence of pictures immortalising their encounter in a Madrid hotel. The rumour was widely repeated in the media, although the persons to whom the Tribuna story related were not identified. On 12 March 1991, while on air with the presenter of the Radio 4 programme “Night Carmen” broadcast by Radio nacional de España, a journalist, C.H., referred to the rumour and identified the Duchess of M. and E.B. as the protagonists of “the much-publicised romance between the aristocrat and the banker, both married with lots of children” and gave the names of their spouses. In its 25 March 1991 edition, Epoca, of which the first applicant was the editor, published an article by the second applicant concerning the alleged adulterous relationship. Photographs of the two people concerned appeared on the magazine cover with the following caption: “Suspected relationship between E.B. and the Duchess of M.; a new scandal breaks”. In a four-page report that included two photographs of the persons implicated in the alleged relationship and photographs of their families, the second applicant referred to the rumours circulating about the romance in the media and said that those involved had been identified by Radio nacioñal de Espana. A reference was also made to information that had appeared in another report. In the article the Duchess of M.’s husband was described as debonair, very chubby and known to his former classmates as “el platillo” (“the saucer”). Then, after giving the names of the children and the occupational activities of both the Duchess of M. and E.B., the second applicant added: “the family ties make this saga resemble an American television series”. He repeated statements made in another magazine that “the mysterious couple’s chosen love nest was a luxury Madrid hotel where they were caught by the photographer in two compromising situations”, the first at the hotel entrance and the second during a romantic encounter in the hotel corridors. The report was accompanied by the words of lewd ditties containing allusions to women, not only courtesans, but also duchesses who ended up getting the “Booty” (a reference to E.B.’s surname, Botín) and instructing Filipino women in the techniques of pleasure and who chased after bankers who were only too happy to oblige, paying scant regard to their qualities since their sole interest was money – “Booty” (Botín). Furthermore, a second report by the second applicant was published in another edition of the magazine that appeared on 1 April 1991 under a title that was published on the cover: “The continuing enigma of the banker and the aristocrat: E.B. and the Duchess of M. deny any relationship”. Two large photographs of the couple appeared on pages 12 and 17. An account was given of the history of the case and references made to an attempt by E.B. to have copies of Epoca seized and to other judicial proceedings he had brought. The magazine also explained that the compromising photographs had still not been published. As a result, the Duchess of M. and her husband brought a civil action before the Madrid first-instance judge no. 11 against the applicants and two reporters from Radio nacional de España on the basis of Institutional Law no. 1/82 of 5 May 1982 on the Protection of the Right to Honour, Private and Family Life and to Control the Use of One’s Likeness. In a judgment delivered on 4 December 1992 after adversarial proceedings the Madrid first-instance judge no. 11 found in favour of the claimants in the civil action, holding that they had been the victims of an unlawful interference with their right to honour and to respect for their private life. He gave inter alia the following reasons in his judgment: “Three: honour as an authentic personality right may be offended by acts or interferences ... that entail a loss of esteem for a person either in the eyes of fellow citizens (the objective aspect) or in his or her own eyes (the subjective aspect). Under Article 18 of the current Constitution honour is ranked as a fundamental right and even though section 20 of the Institutional Law recognises and protects freedom of expression, that freedom is circumscribed in particular by the right to honour, to private life and to control one’s likeness... ... Five: the information provided by Radio 4 and Epoca magazine constitutes an intolerable interference with the claimants’ honour which it is for the courts to remedy ... by setting the limits on the rights to impart information and to freedom of expression, the pillars of all democracies. In order to guide judges when they consider a defendant’s conduct unlawful the courts have established a series of principles to assist them in the performance of the delicate task of weighing up the various competing interests or, to coin the Anglo-American expression, “balancing”, which entails weighing in the balance the various circumstances capable of being defined in law so as to determine which of the rights in issue must prevail, the right to impart information or the right of others to respect for their honour or privacy or to control the use made of their likeness... Six: ... As regards the written publication, the representatives acting for the defendants linked to the magazine Epoca cleverly retort that the reports did no more than transmit ‘journalistic information’ to its readers, as simple ‘scribes of news’ made by others. Although that affirmation is true because the defendants have not produced anything of substance of their own in the magazine, it nevertheless cannot serve to justify their conduct as they also had a duty to seek out the truth in a diligent manner ... as the reports did not merely repeat information that had been disseminated by others but were published as items of scandal or sensation. Seven: an important detail that concerns all the defendants is the indisputable fact that the claimants are not public figures who, as the Constitutional Court has indicated, are afforded reduced protection under the Constitution as regards freedom to impart information on their activities that are of public interest or social utility... The claimants have not freely chosen to become public figures and, although they have a certain social standing, it is not something they have sought, as it neither appears nor has been proved that they desired publicity...”. After dealing with the content of the reports in another paragraph of the judgment, the judge held: “the intentionally disproportionate use of scandalous or disparaging terms and the use of innuendo about matters for which there is not the least shred of evidence constitute unlawful practices that were clearly perpetrated by the magazine Epoca”. As a consequence, the judge ordered the applicants to publish the full text of the judgment in the same column of Epoca, using the same typeface as that used in the report, and with an announcement of the judgment on the cover. Radio nacional de España was ordered to broadcast the text of the judgment on its frequencies in the same programme. The applicants and Radio nacional de España were also ordered to make reparation for the damage sustained by the victims in an amount to be assessed at the execution stage of the judgment, according to the criteria it laid down. The applicants appealed against that judgment to the Madrid Audiencia Provincial, which, in a judgment of 26 January 1996, dismissed the appeal and upheld the impugned decision. An appeal on points of law was dismissed by the Supreme Court on 24 September 1998. It held that the courts below had correctly decided the issues and had not infringed the applicants’ constitutional right to communicate or impart true information. It added that freedom of expression was curtailed by an obligation to omit anything which could be injurious or offensive and was unnecessary in the expression of ideas, opinions or value judgements. The report in question had focused on scandal and sensationalism, without any attempt being made to articulate a healthy public opinion. Relying on Articles 24 (right to a fair hearing) and 20 (right to freedom of expression and to information) of the Constitution, the applicants lodged an appeal with the Constitutional Court. In a decision of 14 July 1999, which was served on the applicants on 23 July 1999, the Constitutional Court dismissed the appeal as ill-founded. With regard to the complaint under Article 20 of the Constitution, it held: “... As a practical matter, as regards the so-called ‘neutral report’, this court stated in its judgment no. 232/1993, which was cited by the appellants: ‘when a media body divulges statements made by a third party that suggest that there has been an interference with the rights recognised by Article 18.1 of the Spanish Constitution, that divulgation is not entitled to the protection of Article 20.1 of the Spanish Constitution unless the truth of the statements attributed to the third party is proved and the statements ... relate to facts or circumstances of public importance’. Further, in judgment no. 41/1994..., it expressly added: ‘a report that is neutral in form or content may cease to be so if it assumes an informative character which is in practice incompatible with its function as a mere conduit for the message’ (paragraph 4 of the judgment). Thus the Supreme Court’s decision on the conflicting constitutional rights in the instant case, which is set out in its judgment upholding the judgments of the first-instance judge and the Audiencia Provincial, is consistent with the case-law cited above. The Supreme Court ... does not contest that, as a transcription of the information broadcast by Radio nacional, the information published by Epoca enjoyed formal protection as it satisfied the requirement of truth explained in judgmentjudgment on the issue of the freedom to impart information that also led the Supreme Court to find that the report in question had overstepped the bounds within which freedom of expression may legitimately be exercised... That finding is entirely consistent with the constitutional case-law applicable on the subject...” “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction; ... (d) the right freely to receive and communicate true information by any means of dissemination. 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.” | 0 |
train | 001-100269 | ENG | UKR | CHAMBER | 2,010 | CASE OF FEDINA v. UKRAINE | 3 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1950 and lives in the village of Tenistoye, Crimea, Ukraine. 5. On 19 July 2001 the applicant's son, Mr Fedin, who was born in 1969, was fishing in the River Karacha with a teenager, D. According to D.'s testimony in the subsequent proceedings, the water started to “bite” their feet when they reached Ayvove village. They saw a wire hanging from a wooden support pole for power lines, dangling in the water. Mr Fedin, saying that the wire was not dangerous and should be removed, stepped into the water and tried to pull the wire from the river. When he grasped the wire he cried out, fell into the water and died. D. tried to pull the wire out of Mr Fedin's hands. Unable to do so, he ran to the village for help. 6. Mr Z., an engineer with the Bakhchisaray District Electricity Network (hereinafter “the Network”) – forming a part of the public company, Krymenergo, owned by the Ukrainian State – carried out an initial, immediate investigation into the accident. In his report of 26 July 2001, Mr Z. concluded that the applicant's son had died as a result of electrocution. This occurred because a live wire, which had been incorrectly fixed to a wooden support pole, had come loose during strong winds. He further concluded that the security trip switch had failed on account of an ineffective earth connection. 7. A further internal inquiry was subsequently carried out by a commission composed of six Network officials (hereinafter “the commission”). Its report, drawn up on 20 August 2001, states that the Network owned two wooden poles on opposite banks of the River Karacha, supporting a power line strung across the river. In addition to that power line, those two poles also supported a bare radio wire that had been attached to the poles – above the power line – by the local telecommunications service of the Ukrtelecom Company. Owing to stormy weather conditions, the hook with which the radio wire had been attached had come loose, the wire had snapped and one end had fallen into the river. The commission found that, although in principle it was not unlawful to attach a power line and a radio wire to a single pole, the local telecommunications service had failed to obtain the relevant consent from the Network. 8. On 6 August 2001 the applicant asked the Bakhchisaray District Prosecutor's Office (hereafter “the Prosecutor's Office”) to conduct an inquiry into the circumstances of her son's death, claiming that his death had been caused by negligence and carelessness on the part of the Network in that it had failed to repair a broken power line, whereas the Ayvove villagers had already reported a power failure as early as 5 July 2001. 9. The autopsy report, issued on 20 August 2001 by an expert with the local Bureau of Forensic Medical Examinations at the request of the Prosecutor's Office, stated that Mr Fedin had suffered a sudden death as a result of an electric shock. 10. On 20 August 2001 the Prosecutor's Office asked the Network to make available documents relating to the accident, including the records of previous inspections and repairs of the power line. In its reply of 30 August 2001 the Network stated, inter alia, that it had not given its consent to the radio wire being attached to the pole, and that the manner in which it had been done contravened technical safety rules. It further stated that it had notified the telecommunications service several times of the potential danger of the installation and had unsuccessfully sought to have it comply with the relevant safety regulations. 11. On 3 September 2001 the Prosecutor's Office informed the applicant that there was no reason for the Office to take any criminal proceedings against the Network's management. None of the Ayvove villagers had called the Network between 5 and 19 July 2001 to report a power supply failure, and the required annual inspections and general revision of the power supply network had been conducted regularly and timely by the Network. The last annual inspection had taken place on 22 August 2000 and the last general overhaul in October 1995 which was within the prescribed six years' interval. Also taking into account the findings of the internal inquiry carried out by the Network's commission and statements given by various Ayvove villagers – according to whom the 0.4 Kilowatt radio wire had come loose on 18 July 2001 – the Prosecutor found no wrongdoing on the part of the Network's staff. 12. On 19 November 2001 the applicant asked the Prosecutor's Office to conduct an additional criminal investigation into the death of her son and to take criminal proceedings in accordance with Article 97 of the Code of Criminal Procedure. 13. In a decision of 23 November 2001, the investigator from the Prosecutor's Office decided against taking criminal proceedings against the Network's staff as there was no evidence of a criminal offence. That decision was based on statements taken by the investigator from the applicant, her son's widow, her son's friend D., two Ayvove villagers and Ms T., a nurse who had been called for help on 19 July 2001. The two villagers had stated that, although Ayvove had experienced certain power supply problems as early as 13 July 2001, it was only on 18 July 2001 that the radio wire had come loose from the pole, and that nobody had informed the Network about this. The investigator further noted that the applicant's claim that her son had died as a result of negligence and carelessness on the part of the Network in that it had failed to repair a power line broken on 5 July 2001 was not supported by the findings made by the Network's commission. 14. The applicant filed a complaint against that decision with the Prosecutor's Office of the Autonomous Republic of Crimea (hereafter “the POARC”) as well as an appeal with the Bakhchisaray District Court (hereafter “the Bakhchisaray Court”). 15. On 29 May 2002, the POARC quashed the decision of 23 November 2001, finding that further inquiries were called for. It instructed the investigator to question officials of Ukrtelecom, to question again the villagers as to when the radio wire had come loose and whether someone had informed the Network about this, and to attach a copy of the onsite inspection of the scene of the accident and the report on the forensic post-mortem examination of the body of the applicant's son. In view of that decision, the Bakhchisaray Court did not deal with the applicant's appeal against the decision of 23 November 2001. 16. On 17 June 2002 the investigator of the Prosecutor's Office, after having heard an Ukrtelecom employee – according to whom the radio wire had been attached to the pole in conformity with the relevant technical requirements – and after having heard the applicant, her son's friend D., the two Ayvove villagers already heard previously, and the nurse, Ms T., who gave the same testimonies as before, decided against taking any criminal proceedings because there was no evidence of a criminal offence. 17. On 20 December 2002, acting on an appeal filed by the applicant, the Bakhchisaray Court quashed the decision of 17 June 2002. It found that the inquiry carried out by the Prosecutor's Office was incomplete, in that the case file contained no record of an on-site inspection of the scene of the accident and no report on post-mortem examinations of the body of the applicant's son, and in that the investigation had failed to establish the reason why a dangerous live wire had been hanging in the river and who bore responsibility for this. 18. On 3 February 2003, after having added to the case file the report on the post-mortem examination of Mr Fedin's body and an undated statement taken from the local electrician, the Prosecutor's Office took a fresh decision not to initiate any criminal proceedings, which was based on essentially the same grounds as the decision of 17 June 2002. According to the statement given by the electrician, he had received no complaints or information about a wire hanging in the river. He did know that wires had come loose from their support, but did not know who was responsible for it. 19. On 27 March 2003, acting on a complaint filed by the applicant, the POARC quashed the decision of 3 February 2003 and remitted the case to the Prosecutor's Office for further inquires in that, inter alia, the case file did not contain an internal investigation report from the company responsible for electricity network maintenance, and the investigation had not made any findings about who was responsible for the network's maintenance. 20. In the course of the subsequent additional criminal investigation, the investigator of the Prosecutor's Office examined the internal regulations governing the duties and responsibilities of the Network's staff, and identified and questioned two officials responsible for the maintenance of power lines, as well as two Network employees who had repaired the power supply network after Mr Fedin's death. It further examined information about the meteorological conditions at the material time and concluded that the power cut had been caused by adverse weather conditions. On 16 April 2003, having found no evidence of negligence or involuntary manslaughter, the Prosecutor's Office decided not to bring any charges against the Network staff responsible for electricity network maintenance. According to the Prosecutor's Office, the wire network in the Ayvove village had been maintained in accordance with the relevant technical rules and regulations. 21. On 1 August 2004, acting on a complaint filed by the applicant, the POARC quashed the decision of 16 April 2003 and remitted the case once more for additional investigations. It found that the investigator had failed to question a number of Network employees and that, despite repeated instruction, no on-site inspection report had been drawn up. 22. Accordingly, the Prosecutor's Office conducted an on-site inspection at the scene of the incident. According to the inspection report, an unprotected radio wire, strung across the River Karacha, had been attached to a wooden support pole. That pole also had an electricity power line attached to it. The Prosecutor's Office concluded that such an installation was permissible under the relevant technical regulations. It further found that a storm had caused the radio wire to come loose and fall into the river. 23. On 27 August 2004 the Prosecutor's Office concluded that Mr Fedin's death had been the result of a tragic accident and decided not to institute any criminal proceedings. The applicant again filed a complaint against that decision. On 23 November 2004 the POARC accepted the applicant's complaint, quashed the decision of 27 August 2004 and ordered further inquiries to be made, including a forensic technical examination of the cause of the accident. 24. On 6 December 2004 the Prosecutor's Office again decided against bringing any charges, having found no evidence that any criminal offence had been committed by officials of the Network. The applicant challenged the decision of 6 December 2004 before the POARC. On 24 February 2005 the POARC quashed the decision of the Prosecutor's Office of 6 December 2004, finding that the criminal inquiry conducted had not been sufficiently thorough. It noted that, in the internal investigation into the incident carried out by the Network's commission in 2001, it had been found that the radio wire had been attached to the poles in a manner contrary to relevant technical regulations, whereas the Prosecutor's Office had found that the relevant rules and regulations had been respected. The POARC further found it unacceptable that no documentary evidence had been obtained from the Network concerning inspections of the Ayvove village electricity supply network prior to the accident, and that the identity of the persons who were responsible for the maintenance of the Network wires had not been established. 25. In its subsequent decision of 23 March 2005 the Prosecutor's Office maintained its conclusion that there were no reasons for taking any criminal proceedings. As to the installation of wires and poles, the investigation found that they had originally been installed in 1968 and the relevant installation company no longer existed. It further stated that the forensic technical examination could be conducted by the Kharkiv Forensic Examinations Institute (Харківський науково-дослідний інститут судових експертиз), however, such examination would require pre-payment of fees and the Prosecutor's Office did not have funds available to cover those costs. The applicant was offered an opportunity to meet those costs. 26. On 19 July 2005 the Bakhchisaray Court quashed the decision of 23 March 2005 and ordered further investigation on the ground that technical expertise was required to establish whether there had been irregularities in the installation and use of wires that could have a causal link with the electrocution and death of the applicant's son. 27. On 28 July 2005 the Prosecutor's Office sent the case file material to the Kharkiv Forensic Examinations Institute, but the examination was not conducted owing to non-payment of fees. 28. On 31 March 2006 the Prosecutor's Office refused to institute criminal proceedings on the same grounds as in its decision of 23 March 2005. The Prosecutor's Office noted that it had no available funds to pay for the forensic examination and the interested parties were not willing to meet the costs either. 29. On 13 December 2006 the POARC quashed the decision of 31 March 2006 and remitted the case for additional investigation. 30. On 28 December 2006 the Prosecutor's Office refused to institute criminal proceedings on the same grounds as in its decisions of 23 March 2005 and 31 March 2006. 31. On 24 January 2007 the POARC quashed the decision of 28 December 2006 and remitted the case for additional investigation. 32. On 2 February 2007 the Prosecutor's Office refused to institute criminal proceedings against the Network officials under Article 367 of the Criminal Code. The Prosecutor's Office repeatedly noted that they had no funds available for forensic examination and the interested party refused to pay for it. 33. On 14 February 2007 the applicant complained about that decision to the POARC. She did not, however, provide information about any decision taken regarding her complaint. 34. On 6 September 2001 the applicant instituted civil proceedings before the Bakhchisaray Court against Krymenergo, the public company of which the Network formed a part. In those proceedings, the applicant claimed compensation for non-pecuniary damage caused by the death of her son. 35. On 14 September 2001 the Bakhchisaray Court, for reasons of territorial jurisdiction, remitted the case to the Kyivskyy District Court of Simferopil. On 25 March 2002, acting at the applicant's request, the Court of Appeal of the Autonomous Republic of Crimea (the "Court of Appeal of the ARC") ruled that the Bakhchisaray Court had jurisdiction over the case. 36. On 30 April 2002 the Bakhchisaray Court assumed jurisdiction over the case and scheduled a first hearing for 28 August 2002. On that day, it granted the applicant's request to stay those proceedings pending the criminal investigation into the death of her son. It did not fix any date for a future hearing. 37. On 14 May 2004, the Bakhchisaray Court granted another request to stay the proceedings filed by the applicant, who had expected to receive further information from the Prosecutor's Office. 38. On 18 March 2005, the Bakhchisaray Court considered the proceedings and asked the Prosecutor's Office for information about the state of proceedings in the criminal investigation. On 6 April 2005, after having received a copy of the decision taken by the Prosecutor's Office on 23 March 2005, the Bakhchisaray Court resumed its examination of the applicant's case. 39. On 4 June 2007 the Bakhchisaray Court found against the applicant. 40. On 27 August 2007 the Crimea Court of Appeal overruled the decision of the first-instance court, having held that under the law the owner of a source of the increased hazard could be exempted from liability in two conditions: force majeure or the intentional actions of the victim. Neither of the two had been established in the case. The court also noted that the prosecutor had refused to institute criminal proceedings owing to a lack of proof of a crime and not because there had been any doubt that the event had taken place. Therefore, the Network, regardless of guilt, bore liability and had to provide compensation for the death of the applicant's son. Therefore, it awarded 80,000 Ukrainian hryvnias (UAH) to the applicant, UAH 50,000 to her daughter-in-law and UAH 20,000 to her granddaughter. 41. On 4 December 2008 the Supreme Court of Ukraine upheld the decision of the court of appeal. 42. Article 367 of the Criminal Code provides: “Neglect of official duty, that is, failure to perform, or improper performance, by an official of his or her official duties due to negligence, where it causes any significant damage to the legally protected rights and interests of individual citizens, State and public interests or those of legal entities, shall be punishable by a sentence of two to five years' imprisonment ...” 43. Article 450 of the Civil Code, as in force until 1 January 2004, provided as follows: “Organisations and persons, whose activities give rise to an increased hazard to their environment (transport organisations, industrial enterprises, buildings, car owners etc.) shall be obliged to compensate the damage caused by the source of that increased hazard unless they can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim.” 44. The relevant provisions of the Civil Code, as in force since 1 January 2004), read: Article 1187. Compensation of damage caused by a source of increased danger ...5. A [natural or legal] person involved in an activity constituting a source of increased hazard shall be responsible for the damage caused [by that activity] unless [he, she or it] can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim” 45. Article 221 of the Code of Civil Procedure provides: “The court shall suspend its examination of a case if ... it cannot be examined prior to the outcome of another case pending in civil, criminal or administrative proceedings.” | 1 |
train | 001-126978 | ENG | MDA | CHAMBER | 2,013 | CASE OF SEGHETI v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1960 and lives in Cricova. 6. The applicant worked as a consultant for the Romanian Embassy in Moldova. On 12 April 2005 he was arrested by Moldovan police in Călăraşi, Moldova, on suspicion of having made false accusations against a third person. While the parties did not submit any copies of judgments concerning the applicant’s criminal proceedings, it follows from his correspondence that on an unknown date he was convicted to eight years’ imprisonment. He was placed in detention in prison no. 3 in Chişinău (previously known as prison no. 13) on 12 April 2005. On 5 October 2006 he was transferred to prison no. 15 in Cricova. On 6 August 2009 he was transferred to the Pruncul prison hospital (prison no. 16), where he received inpatient treatment until 18 August 2009 for hypertension and cardiac insufficiency. 7. The applicant described the conditions of his detention in prison no. 3 in Chişinău as follows. He was detained with thirty-nine other people in a 40 sq. m cell without ventilation or heating. Prisoners sometimes had to take turns to sleep and had to wait for a daily time-slot of two to three hours to obtain running tap water, which made hygiene issues in the prison a lot worse. The toilet was located in the cell itself and gave off a foul odour because there were no products to clean it with. The food was inedible. 8. He described the conditions of his detention in prison no. 15 as follows. On 5 October 2006 he was placed in a cell measuring 60 sq. m with twenty-six other people, which left very little space for each detainee. In the absence of any work or other activities, he had nothing to do and spent most of his time in the cell. 9. No bedding was given to the applicant and he had to ask his relatives to bring him some. The same was true of items of personal hygiene. He had to wear the same clothes he had been wearing when he was admitted to the prison, since no clothes were provided by the prison administration. 10. Water from a single tap was available during the day but not at night, and owing to the number of detainees in the cell it was not always possible to have access to it. Food was scarce and of very poor quality. The library contents were old and there were no reading materials about the Convention. The applicant also claimed that he had been given insufficient medical treatment in both detention facilities. 11. According to the Government, the space available to the applicant in various cells of prisons no. 3 and 15 always exceeded 4 sq.m. In particular, in prison no. 15 he was held in a detention block for working prisoners. The first cell he was detained in measured 61.6 sq.m and accommodated fifteen people. Shortly thereafter he was transferred to a cell measuring 30 sq.m, which accommodated three detainees. He was later moved to another cell measuring 24 sq.m, which also accommodated three detainees. All the cells had the correct number beds for detainees and were equipped with a water tap and a toilet. 12. The Government submitted a list confirming that the applicant was given medical assistance on a number of occasions in both prisons no. 3 and no. 15, including inpatient treatment for an ulcer in 2005. 13. The relevant parts of the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) concerning its visit to Moldova from 20 to 30 September 2004 read as follows (unofficial translation): “54. The delegation visited five establishments run by the Ministry of Justice: prison no. 3 in Chişinău [and] correctional facilities nos. 4 and 15 in Cricova ... 55. In view of the economic situation in the country, the situation in the majority of prisons visited remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of the physical conditions of detention and regimes. ... 81. Correctional facility no. 15 has four detention blocks where the prisoners were divided into different units, according to whether they were classed as workers (units 2, 3, 4 and 6) or non-workers (units 1, 5, 7 and 8). Unlike correctional facility no. 4, despite the shabbiness of the premises, the establishment gave an overall impression of cleanliness and satisfactory upkeep. The laudable efforts made in this regard deserve to be highlighted. But again, much depended on the resources [available to the] prisoners for fitting out and renovating the cells. Physical conditions ranged from acceptable to good on occasion. This was the case as regards unit 5 which held non-working detainees. Other dormitories – while remaining in an acceptable state of upkeep and cleanliness – presented difficult conditions there being, in some cases, fewer beds than occupants, windows with panes missing and a lack of basic amenities, certain essentials (such as mattresses, sheets, blankets or crockery) having been obtained through the charity of fellow-prisoners. Again, living space was often restricted in some of the dormitories, a situation which was partially alleviated by an open-door policy within the sections. 83. Except in the Lipcani Re-education Correctional Facility for Minors, where the efforts made in this respect regard are to be highlighted... the quantity and quality of prisoners’ food everywhere is a source of grave concern. The delegation was inundated with complaints regarding the absence of meat and dairy products. The findings of the delegation, regarding both stock levels of food and the menus, confirm the credibility of these complaints. The delegation’s findings also confirm that in certain places (Colonies 3 and 4) the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is hardly surprising, given the general state of the kitchens and their modest equipment. The Moldovan authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food. However, the Committee reiterates that this is a fundamental requirement of life that must be ensured by the State to persons in its care, and that nothing can exonerate it from such responsibility. Failure to meet this obligation is all the more unacceptable as, under legislation, working prisoners in the institutions visited contribute to the cost of feeding themselves and their fellow-prisoners. ... 85. In the light of the above, the CPT recommends that the Moldovan authorities: ... - ensure that each prisoner in correctional facility nos. 4 and 15 has his own bed with the necessary bedding (mattress, sheets, blankets) and that all windows are glazed; - remove the screens from the windows in the cells in unit 1 of correctional facility no. 15 to allow for the proper entry of natural light and fresh air; - commence the refurbishment of the sanitary equipment in correctional facility nos. 4 and 15 and in the Re-education Correctional Facility for Minors forthwith, in the light of the remarks made above; - immediately guarantee that inmates in Prison nos. 3, ... 4 and 15, as well as in all other affected prisons, receive adequate food served in accordance with the basic rules of hygiene; - take all requisite measures to ensure adequate water, electricity and fuel supplies in correctional facility nos. 4 and 15, as well as in all other affected prisons; ...” 14. The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows: “B. Conditions in places of detention Institutions under the Ministry of Justice 30. Undoubtedly, progress has been achieved in improving conditions of detention. However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution. 31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food. ...” 15. In its report for 2009 (page 117 – “Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that: “Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.” 16. In its report for 2010 (page 142 et seq. – “Conditions of detention”) the Human Rights Centre found, inter alia, that: “... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in prison no. 17 in Rezina received 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice submitted information concerning the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million. The daily cost of feeding a detainee in 2010 was MDL 10.24 [approximately EUR 0.60], while the daily budgetary need was MDL 12.35. This statistic was often cited by prison administrations to justify why they were unable to provide detainees with meat and fish ...” 17. On 24 October 2003 Parliament adopted Decision no. 415-XV approving the National Human Rights Action Plan for 2004-2008. The Plan included a number of objectives to be achieved over a four-year period and was aimed at improving conditions of detention, including reducing overcrowding, improving medical treatment, introducing detainees to employment and encouraging their social reintegration, as well as carrying out training for personnel. Regular reports were to be submitted regarding the implementation of the Action Plan. On 31 December 2003 the Government adopted a decision on the principles of reorganisation of the prison system, together with the 2004-2013 Action Plan for the Reform of the Prison System, both having the aim, inter alia, of improving the conditions of detention in prisons. 18. On an unspecified date the Ministry of Justice produced a report entitled “Implementation by the Ministry of Justice of Chapter 14 of the National Human Rights Action Plan for 2004-2008, approved by Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights also produced a report on implementation of the National Action Plan. Both reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the Plan in Moldovan prisons, including prison no. 3 in Chişinău. The first of these reports stated, inter alia, that “as long as the aims and actions outlined in [the National Human Rights Action Plan] do not have the necessary financial support ... it will remain only a good intention of the State to protect human rights as described in Parliament Decision no. 415-XV of 24 October 2003 ...” | 1 |
train | 001-58119 | ENG | DEU | CHAMBER | 1,997 | CASE OF K.-F. v. GERMANY | 3 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | C. Russo;N. Valticos | 7. Mr K.-F. was born in 1946 and is a German national. He was formerly a lawyer and lives with his wife in Karlsruhe. 8. In May 1991 the applicant and his wife rented a holiday flat at Ulmen at a daily rent of 40 or 50 German marks (DEM). They occupied the flat from 24 May 1991 and paid DEM 350 rent for their stay in May. 9. On 3 July 1991 the landlady of the flat, Mrs S., asked Mrs K.-F. for payment of rent arrears, including telephone calls, of approximately DEM 4,000. 10. On 4 July 1991, at about 7.50 p.m., Mrs. S. telephoned Cochem-Zell police station and reported that Mr and Mrs K.-F. had caused a car accident. She added that they had rented her flat without intending to perform their obligations as tenants and were about to make off without paying what they owed. 11. Following that call, two police officers went to the flat and took statements from the landlord and the landlady (Mr and Mrs S.) and the tenants. The owners admitted that, for fear that Mr and Mrs K.-F. would make off without paying the rent, they had attempted to stop the couple’s son from driving off; they emphasised, however, that he had been determined to force his way through at all costs. Mr and Mrs K.-F., on the other hand, said that the accident had been caused by Mr S.’s aggressive and incomprehensible behaviour towards their son. 12. After consulting the appropriate public prosecutor (Staatsanwalt), the police officers inquired into the address of the applicant and his wife at Bad Soden and discovered that it was merely a Post Office box. The Bad Soden police also informed them that the applicant had previously been under investigation for fraud. 13. At 9.45 p.m. on the same day Detective Sergeant Laux, accompanied by Constables Walther, Kugel and Reuter, arrested Mr and Mrs K.-F. and their son and took them to Cochem-Zell police station so that their identities could be checked. The son was released shortly afterwards but Mr and Mrs K.-F. were provisionally held in police custody. In a report drawn up at 11.30 p.m. the police stated that they strongly suspected Mr and Mrs K.-F. of rent fraud (Einmietbetrug) and that there was a risk that they would abscond. The questioning ended at 12.45 a.m. 14. Inquiries made during the night into the applicant’s various addresses revealed that he had been the subject of other criminal proceedings on suspicion of fraud and that the Hanau Public Prosecutor’s Office (Staatsanwaltschaft) had opened a preliminary investigation in respect of him for the same reason. 15. On the morning of 5 July 1991 (between 8.30 a.m. and 9.40 a.m.), Superintendent Blang of the Cochem-Zell police questioned the applicant further. His wife was interviewed at 9.05 a.m. 16. At about 9.25 a.m. the Hanau Public Prosecutor informed Superintendent Berg, likewise of the Cochem-Zell police, that he did not intend to issue a warrant for the applicant’s arrest. 17. At 10.30 a.m. Mr and Mrs K.-F. were released and taken back to Ulmen. 18. On 5 July 1991 Mrs S. lodged a complaint against Mr and Mrs K.-F. alleging attempted rent fraud. 19. On 13 September 1991 the Koblenz Public Prosecutor’s Office discontinued the criminal proceedings against the applicant and his wife on the ground that it had not been proved that Mr and Mrs K.-F. had not intended – or had not been able – to pay the rent owed, as they had paid most of the arrears in mid-July 1991 and there was a civil dispute over the balance. Furthermore, the incident that had occurred at Ulmen on 4 July 1991 did not justify concluding that Mr and Mrs K.-F. had not intended to pay their debts, as only their son had attempted to drive off and there was no concrete evidence to show that they had sought to make off surreptitiously. 20. On 7 October 1991 Mr K.-F. lodged a complaint with the Koblenz Public Prosecutor’s Office against the police officers and public prosecutors concerned in the events of 4 and 5 July 1991 alleging false imprisonment (Freiheitsberaubung), attempted coercion (versuchter Nötigung) and insulting behaviour (Beleidigung). He maintained that his arrest and detention at Cochem-Zell police station had been unlawful, since he had not committed any criminal offence as only the rent tribunal had jurisdiction to hear disputes over the amount of rent. The police officers had likewise acted unlawfully in recording his personal details. 21. On 2 January 1992 the Koblenz Public Prosecutor’s Office discontinued the proceedings against Detective Sergeant Laux and three other police officers who had taken part in the arrest, and against the two public prosecutors. The Office considered that in all the circumstances they had not acted unlawfully. In particular, the police officers who had gone to Ulmen during the evening of 4 July 1991 had had reasonable grounds for suspecting Mr and Mrs K.-F. of defrauding Mr and Mrs S. and intending to leave without paying the sums due. 22. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office (Generalstaatsanwaltschaft), who confirmed the decision on 28 February 1992. 23. On 6 April 1992 the applicant applied to the Koblenz Court of Appeal (Oberlandesgericht) for an order that Detective Sergeant Laux and Constables Walther, Kugel and Reuter be prosecuted for attempted coercion and false imprisonment. He described what had happened and said that it had been agreed between his wife and Mrs S. that the rent would be paid on 8 July 1991. That agreement had not been to the liking of Mr S., who had assaulted his son to prevent him driving off. His wife had even called the police for assistance. Furthermore, neither he nor his wife had intended to leave the rented flat; they had not started to pack any suitcases and their personal belongings were still in the cupboards and drawers. The police officers’ brutal searching of him, his wife and his son, the searching of their home, their arrest and their subsequent detention had accordingly been totally illegal for want of any basis in law, as they had not complied with the requirements of either Article 163 b or Article 127 § 2 taken together with Article 112 of the Code of Criminal Procedure (Strafprozeßordnung – see paragraph 35 below). 24. On 21 May 1992 the Court of Appeal dismissed Mr K.-F.’s application on the ground that there was insufficient cause to prosecute the police officers (kein hinreichender Tatverdacht). It held, inter alia: “There is sufficient cause to prosecute where, in the light of all the evidence and the prosecution’s assessment of the facts, it is to be expected that the potential defendants will be convicted (cf. Kleinknecht/Meyer, [Code of Criminal Procedure], 40th ed., § 170 no. 1). The findings of the investigation do not found such an expectation. There would have been sufficient cause to prosecute for false imprisonment (Article 239 of the Criminal Code) if the accused police officers had unlawfully taken the applicants to the police station and held them there. The investigation did not disclose any such unlawful act. The inquiries made at Ulmen gave the police officers on duty cause to suspect a fraud on Mr and Mrs [S.] (rent arrears and telephone bills amounting to approximately DEM 4,000), especially as the applicants had admitted that they were not then able to find that sum. Furthermore, according to the statements of the witnesses [J.] and [S.] (page 4 of file Js 25638/91) and the findings of the accused police officers (position of the wheels of the vehicle ... – page 4 of the above-mentioned file), the accused police officers had the impression that ‘[K.-F.] intended to drive off come what might’. The fact that the accused police officers, in the light of all these circumstances, consequently suspected the applicant of ‘attempted rent fraud’ cannot be criticised. The arrest was accordingly, on the facts, likewise justified. At the police station the alleged offenders, who had had the applicants’ address checked, learned that, according to inquiries made at Bad Orb, the address there was ‘fictitious’ and that, according to further inquiries made of the Hanau Public Prosecutor’s Office, several sets of proceedings were pending against the applicants for fraud. The applicants’ detention at the police station was therefore justified. The question whether it was necessary to hold them until the following morning can be left open in the instant case as, on grounds of intent at least, the potential defendants’ conviction on a charge of false imprisonment is unlikely. Nor did the investigation disclose sufficient evidence of joint coercion (Article 240 and Article 25 § 2 of the Criminal Code). On the basis of the information obtained at Ulmen that has previously been referred to, the accused police officers could reasonably presume that an offence had been committed. It was accordingly lawful in the circumstances to carry out a search (Article 163 b § 1, third sentence, of the Code of Criminal Procedure). Besides, even if it were to be accepted that there had been coercion, the accused police officers’ behaviour could not be considered reprehensible within the meaning of Article 240 § 2 of the Criminal Code. For the purposes of that provision, reprehensible behaviour is behaviour which in all the circumstances is so manifestly objectionable that it calls for punishment under the criminal law as a gross interference with other people’s exercise of free will (see Criminal Decisions of the Federal Court of Justice 17, 328, 332). Measured against these principles, the accused police officers’ behaviour cannot be said to have been reprehensible. The findings of the investigation at Ulmen – before the police officers entered the premises – and in particular the conduct of the applicants’ son, who, according to the [S.] family, sought to drive off aggressively in his car, could perfectly well have led the police officers to believe that the applicants might also make off without paying their relatively substantial rent arrears. The Koblenz Public Prosecutor was therefore right to discontinue the proceedings, there being insufficient cause to bring a prosecution for false imprisonment and coercion.” 25. On 21 September 1992 the applicant complained to the Koblenz Principal Public Prosecutor’s Office that no official decision had been taken on the allegations against Superintendent Blang of the Cochem-Zell police. 26. On 28 December 1992 the Koblenz Public Prosecutor’s Office discontinued proceedings in that case also. It said that the offences of insulting behaviour were statute-barred. As to the offences of attempted coercion and false imprisonment, it pointed to the Koblenz Court of Appeal’s judgment of 21 May 1992 to justify discontinuing the proceedings. 27. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office. 28. On 15 February 1993 the Public Prosecutor’s Office reopened the investigation in respect of Superintendent Blang and took several written statements, including one from Mr K.-F. and one from Superintendent Blang. 29. On 18 June 1993 the Koblenz Public Prosecutor’s Office discontinued the proceedings permanently. 30. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office, which confirmed it on 3 September 1993. 31. On 7 October 1993 Mr K.-F., relying on the same arguments as before (see paragraph 23 above), made a further application to the Koblenz Court of Appeal for an order that Superintendent Blang be prosecuted for attempted coercion, false imprisonment and insulting behaviour. 32. On 30 November 1993 the Court of Appeal dismissed the application on the ground that there was not sufficient cause to bring a prosecution against the superintendent. It held, inter alia: “There would be sufficient cause to bring a prosecution for false imprisonment (Article 239 of the Criminal Code) if the accused police officer had unlawfully prevented the applicant from leaving the police station. According to the reasons set out on p. 3 of the Division’s judgment of 21 May 1992 (1 Ws 164/92), the applicant was held at the police station lawfully. In the aforementioned judgment the Division had already explained that the question whether it had been necessary to hold the applicant in detention until the following morning could be left open as, on grounds of intent at least, the potential defendants (Laux, Walther, Kugel and Reuter) were unlikely to be convicted of false imprisonment. In his report dated 4 July 1991 (pp. 23 et seq. of the file) Detective Sergeant Laux said (p. 24) that ‘Mr and Mrs [K.-F.] and their son were first taken to the police station so that their identity could be checked’ and Mr and Mrs [K.-F.] were held in police custody after consultation of Supt. Blang. The second sentence of Article 127 § 1 of the Code of Criminal Procedure provides that the checking of a person’s identity by police officers must be conducted in accordance with Article 163 b § 1 of that code. A person affected by a measure taken under Article 163 b for the purposes of checking his identity cannot be deprived of his liberty for more than twelve hours in all. The applicant was detained at 9.45 p.m. on 4 July 1991 (page 19) and released at 10.30 a.m. on 5 July 1991 (page 20). For this detention, which lasted for more than twelve hours, Superintendent Blang was responsible. On the basis of the evidence as it currently stands, however, it appears unlikely that he would be convicted of false imprisonment as ultimately it will not be possible to establish that he was aware that the maximum permitted period had been exceeded. A conviction for coercion (Article 240 of the Criminal Code) appears equally unlikely. As to the applicant’s allegation that he was ordered to leave the district (Verweisung), the decision to discontinue the proceedings rightly points out that it is far removed from reality. The ‘raised fist’ and the assertion that ‘sparks are going to fly’ are denied in the accused police officer’s statement. No other evidence, beyond the applicant’s statements, is to be found. On the basis of the evidence as it currently stands, the decision to discontinue the proceedings cannot be criticised. For these reasons, no offence of extorting a confession (Article 343 of the Criminal Code) has been made out either. Given the information to which the Division has already referred in its judgment of 21 May 1992, the checking of the applicant’s identity was justified. Nor, lastly, can the accused police officer be said to be guilty of coercive behaviour in having forbidden the applicant to enter the flat at Ulmen to collect personal belongings. In the police officer’s view, his behaviour cannot be shown to have been reprehensible since he had cause to believe that as the rent for the holiday flat had not been paid as agreed, the landlord was entitled to exercise a lien. The application to the Court against the refusal to prosecute (Klageerzwingungsverfahren) was at first sight also admissible in respect of the accusation of insulting behaviour, because the reported criminal act within the meaning of Article 264 of the Code of Criminal Procedure also includes the offences of coercion and false imprisonment, which only the Public Prosecutor’s Office can prosecute (Offizialdelikte). As, however, there is insufficient cause to bring a prosecution for the offences which can be prosecuted only officially, the third sentence of Article 172 § 2 of the Code of Criminal Procedure again operates to bar (Sperrwirkung) the present proceedings to challenge the refusal to prosecute in respect of the alleged insulting behaviour, an offence that can be prosecuted privately (Privatklagedelikt), so that the Division is unable to consider the merits of the related accusation.” 33. On 2 January 1994 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht) alleging a violation of his fundamental rights. 34. On 15 March 1994 the Federal Constitutional Court, sitting with three members, declined to accept the complaint for adjudication. 35. The relevant provisions of the Code of Criminal Procedure read as follows: “To the extent that they are necessary for the conduct of a criminal investigation or for the purposes of the criminal identification department, a suspect’s photographs and fingerprints may be taken even against his will, his measurements may be recorded and other similar measures taken.” “1. A suspect’s detention pending investigation may be ordered where it is strongly suspected that he has committed an offence and a ground for his detention exists. Detention shall not be ordered if it is disproportionate to the seriousness of the case and to the likely sentence or rehabilitative or security measure. A ground for detention exists where, on the basis of definite facts: (1) it is established that the suspect is on the run or in hiding; (3) the suspect’s behaviour gives rise to a strong suspicion that he will (a) destroy, alter, dispose of, suppress, or falsify evidence; or (b) improperly influence other suspects, witnesses or experts; or (c) incite third parties to do so; and where as a result there is a danger that the discovery of the truth will be impeded (risk of suppression of evidence). …” “1. Anyone may provisionally arrest without a judicial warrant a person caught in the act of committing an offence or being pursued after committing one, if there is reason to believe that he is absconding or if his identity cannot be immediately established. Identity checks by the public prosecutor’s office or the police shall be carried out in accordance with Article 163 b § 1. 2. Members of the public prosecutor’s office and police officers shall have authority to effect a provisional arrest in cases where there is imminent danger, provided that the conditions for the issue of an arrest warrant or warrant of commitment are satisfied. …” “1. If not released, an arrested person must immediately – and in any event no later than the day after his arrest – be brought before a judge of the District Court (Amtsgericht) in whose area he was arrested … …” “The police and the public prosecutor’s office may take such measures as are necessary to establish the identity of a person suspected of an offence … They may arrest him if his identity cannot be otherwise established or can only be established with great difficulty. On the conditions laid down in the second sentence, the suspect may be searched, articles in his possession examined and measures taken to enable him to be identified.” “1. A person affected by a measure provided for in Article 163 b shall under no circumstances be detained for longer than is necessary for his identity to be checked. A person so detained must immediately be brought before a judge of the District Court in whose area he was arrested for it to be decided whether the deprivation of liberty is lawful and whether it should be continued, unless it would foreseeably take longer to obtain a judicial decision than to check his identity. … 3. Deprivation of liberty for the purpose of checking identity shall not exceed a total of twelve hours.” 36. Article 11 § 1, sub-paragraph 2, of the Rhineland-Palatinate Police Administration Act (Rheinland-Pfälzisches Polizeiverwaltungsgesetz) provides: “The police may take measures to establish or record identity where … such measures are necessary for the prevention of criminal offences because the person concerned is suspected of having committed a punishable offence and the nature of the offence and the manner in which it was committed are such that there is a danger that it may be repeated.” 37. Article 98 §§ 1 and 2 of the Code of Criminal Procedure provide: “1. Seizure can only be ordered by a judge or, in cases where there is imminent danger, by the public prosecutor or a police officer … 2. An official who seizes goods without a judicial warrant must, within three days, seek retrospective authority for the seizure from a judge if the seizure was carried out in the absence of the person concerned or a close adult relative, or if the person concerned or (in his absence) a close adult relative expressly objected to it. The person concerned may at any time apply to a judge for a decision … …” 38. Under section 23 (1) of the Introductory Act to the Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz), “The lawfulness of orders, injunctions or other measures issued by the judicial authorities in order to settle specific matters in the field of civil law (bürgerliches Recht) ... and the administration of criminal justice (Strafrechtspflege), shall, upon application, be determined by the ordinary courts ...” | 1 |
train | 001-23017 | ENG | GBR | ADMISSIBILITY | 2,003 | NOYE v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Kenneth James Noye, is a United Kingdom national, who was born in 1947 and is currently detained in HM Prison Whitemoor. He is represented before the Court by Mr H. Milner, a lawyer practising in London. The facts of the case, as submitted by the applicant and as revealed by the supporting documents, may be summarised as follows. In 1983 the applicant came to the attention of the public when he was implicated in a notorious gold bullion robbery (‘the Brinks-Mat robbery’). As part of their enquiries, police kept observations on the applicant and his property. A police officer dressed in black and wearing a balaclava with only slits for eyes, hid in the grounds of the applicant’s home. The applicant’s dogs alerted him to the presence of someone and he went to confront the intruder. A violent struggle ensued during which the officer was stabbed and died. The applicant was tried and acquitted of murder, his defence being that he had acted in self-defence. The applicant was subsequently convicted of handling proceeds from the Brinks-Mat robbery and was sentenced to fourteen years’ imprisonment. Both trials received extensive media coverage. At about 1.20 p.m. on the afternoon of 19 May 1996, Stephen Cameron became involved in an altercation with the applicant on a slip road of the M25 motorway. The applicant had overtaken the van in which Cameron was a passenger and which was driven by his girlfriend, Danielle Cable. The applicant and Cameron left their respective vehicles and fought, during the course of which the applicant stabbed Cameron twice, fatally wounding him. Fearing that he would not be treated fairly by the police the applicant fled abroad. In 1998 he was arrested in Spain for the murder of Cameron and extradited to the UK to face trial. In December 1999 at a pre-trial hearing the applicant submitted that it would be impossible for him to have a fair trial in light of the lurid and extensive press coverage since the 1996 death of Cameron. The judge acknowledged that the coverage was “tendentious in the extreme” and went on to say: “There were allegations made about his criminal activities which went beyond any of his previous convictions, to the extent that he was being presented ... as ‘public enemy number one’. The undoubted effect of those articles, and the media coverage generally, will have been to bring back into the public mind all the controversy which surrounded his trial in 1983. Indeed, it is clear that a lot of the material was intended to stimulate precisely that controversy, to the extent that a significant proportion of the press coverage was so slanted as to suggest that the jury’s verdict in the defendant’s previous trial was perverse.” The judge noted that the coverage had been extreme in 1996 (when the applicant was out of the country) and 1997, but had then decreased and there was no significant adverse publicity after August 1998 (when he was arrested). The applicant submitted that the test to be applied was whether on the balance of probabilities there was a real danger of even one juror being prejudiced by the publicity. The tribunal could not then properly be said to be impartial. It was submitted that there clearly was such a danger and that therefore it was not possible for the applicant to have a fair trial. The judge considered that there were two aspects of the adverse publicity; the ‘general miasma of notoriety’, which could be addressed by careful directions to the jury, who could be trusted to approach the facts as established, and also the fact that the applicant was charged with the same offence as in 1983 and was running the same defence. Given the cynicism in the press about the earlier verdict, the latter aspect was a cause for concern. However, even if, as the prosecution had conceded, there was a risk that, “one or more members of the jury may have retained sufficient prejudice from the publicity as to let it affect his or her judgement” that was not the test to apply. The fact that one or more jurors had already formed an adverse view of the applicant was not bias in the relevant sense. The applicant had confused bias and prejudice in the way the application had been argued. The judge concluded that the test to be applied was whether it was possible for the applicant to have a fair trial and he found that the jury could be trusted to deal with the matter fairly and properly in the context of the directions they would be given. The passage of time, coupled with the process of trial, would sufficiently concentrate the jury’s minds on the events in issue so as to enable a fair trial to take place. On 14 April 2000, the applicant was convicted of Cameron’s murder, by a majority of eleven to one. At the trial he gave evidence that the deceased had been the aggressor throughout the fight and he had only taken out the knife as a last resort to try and dissuade the deceased from attacking him. He only stabbed the deceased when the attack continued and he believed it was necessary to protect himself. The issue for the jury therefore centred on the credibility of the applicant and by extension, the prosecution witnesses. There were two prosecution witnesses who claimed to have seen the stabbing (although many others who saw part of the fight); Danielle Cable and an apparently independent witness called Alain De Cabral, who presented himself as a respectable and successful businessman. Danielle Cable gave evidence that the deceased had behaved aggressively and that he had pursued the applicant when he had broken away from the fight, thus providing some support for the applicant’s case. A number of the other witnesses also suggested that the deceased was the more aggressive of the two men. De Cabral said that the applicant had initially approached the van and there had been a tussle between the two men, Cameron apparently trying to get back in the van. He was not sure who threw the first punch, but Cameron appeared to be in a stronger position. He gave evidence that he saw the applicant take the knife from his front right hand pocket of his trousers and conceal it behind his back. The applicant then ran at the deceased, who punched and kicked at him. The applicant lunged at him, stabbing him in the sternum. The applicant then turned to face De Cabral and shut the knife. As he walked past De Cabral’s car he nodded at him as if to say, ‘that sorted him out’. Neither the applicant or deceased were known to him. Soon after the incident De Cabral made a 999 emergency call to report a stabbing, the transcript of which was made available to the jury. Before the trial the prosecution had disclosed to the defence the fact that in June 1999 De Cabral had been arrested, suspected of involvement in a large scale drug dealing operation. Over 120,000 pounds sterling GBP in cash had been seized from him, but subsequently returned, the police being satisfied that he had an adequate explanation for it. He pleaded guilty to minor drugs possession offences and was conditionally discharged. Some time after the trial, De Cabral’s wife approached the applicant’s solicitors and gave a statement claiming that her husband had been involved in substantial cocaine dealing and that he was dishonest. It also transpired that a Mercedes car had been seized from De Cabral at the time of his arrest, which had been adapted to include a secret compartment to enable drugs to be concealed in the petrol tank. The modification had been noted by a customs officer four days before the witness attended an Identification Parade at which he picked out the applicant. The vehicle was returned to De Cabral after the trial. No application was made to the trial judge for an order relating to disclosure of the information about the vehicle and the judge was not aware of the information. Leading counsel for the applicant at trial did not consider that on the basis of the information provided to the defence he could justify suggesting to De Cabral that he had a motive to give untrue or embroidered evidence. Information disclosed which tended to show that De Cabral was suspected of involvement in the supply of Class A drugs was evidentially insufficient to form the basis of cross examination. A query raised with the prosecution about whether De Cabral had received unusual or lenient treatment was never answered. The applicant appealed against the conviction, initially on the grounds that the judge had been wrong to refuse the application to stay the proceedings on the basis of the adverse publicity and also that there had been excessive security, including jury protection, which would have reinforced any prejudices the jury did have. Later, the applicant submitted additional grounds relating to the fresh evidence from Mrs De Cabral (who gave evidence on the appeal) and the lack of disclosure by the prosecution about the Mercedes vehicle. By the time of the appeal De Cabral himself had been killed. The applicant was represented by new counsel on the appeal and leading trial counsel gave evidence as to how his approach to the case would have differed had he been aware of the additional information about De Cabral. On 10 October 2001 the Court of Appeal dismissed the appeal. It was noted that the trial judge’s summing up had not been criticised. The court found that the judge had been correct to refuse the application to stay the proceedings. The submissions made by both parties to the judge had amounted to the same in essence, namely was the court satisfied that the applicant could have a fair trial. A question of that nature was very much within the judge’s discretion. Whilst it was regrettable that the press had not exercised more self-restraint, it was noted that the applicant had fled the country following some of the publicity and it was not clear that there ever would be a prosecution. The court agreed that juries were well able to put media comment out of their minds and do proper justice to a case in the great majority of cases. The court said: “We must be cautious about reaching a situation as a consequence of our decisions that if the conduct of a defendant has been sufficiently sensational he cannot be tried but can say, ‘Because of the media attention which I have received I cannot be tried’. As in so many situations it is for the judge to hold the scales evenly between the public and the defendant.” The court proceeded on the basis that the evidence about the Mercedes car ought to have been disclosed, but nevertheless found that even had De Cabral’s credibility been duly impugned, the jury would not have come to a different conclusion, as the real issue was whether the applicant’s account of events was fanciful. De Cabral did not in any event appear to have been motivated in the way it was claimed for the applicant. He had in fact made favourable concessions to the applicant. There had been absolutely no justification for the applicant to take out and use a knife and it could not have been reasonable and proportional having regard to the nature of the fracas. The procedure to be applied when determining questions of disclosure was governed at the time by common law. The prosecution were under a duty to disclose any information which was ‘material’ and (i) raised a relevant or possibly relevant issue in the case, (ii) raised or possibly raised a new issue, or (iii) which held out a real, as opposed to fanciful, lead on (i) or (ii) (R. v. Keane [1994] 1 WLR 747). It was for the court to determine what it was proper to disclose if the prosecution sought to withhold material information. Previous convictions of a prosecution witness or other matters adverse to the character of the witness were matters which would prima facie fall to be disclosed (R. v. Ward [1993] 96 Cr.App.R. 23, and R. v. Winston Brown [1995] 1 Cr.App.R. 191). Jurors are required to swear an oath or affirmation that they will: “faithfully try the defendant and give a true verdict according to the evidence.” (Practice Direction (New Jury Oath) 80 Cr.App.R. 13) In a case of alleged bias, the test for the court to consider was set out in R. v. Gough ([1993] A.C. 646). Having ascertained the relevant circumstances, the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration, a test confirmed in the case of Locabail (UK) Ltd. v. Bayfield Properties ([2000] 2 WLR 870). Where it is alleged that the particular circumstances mean that a defendant cannot have a fair trial, for example where there has been significant delay, the defendant must show on the balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held (Attorney General’s Reference number 1 of 1990 [1992] 95 Cr.App.R. 296). In the case of R. v. West, (1996 2 Cr.App.R 374) the appellant claimed that she could not have a fair trial because of the publicity surrounding the case. The Lord Chief Justice said: “The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.” | 0 |
train | 001-100440 | ENG | TUR | CHAMBER | 2,010 | CASE OF TAYLAN AND OTHERS v. TURKEY | 4 | Violation of Art. 6-1 | Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant worked for a Turkish company in Libya between 1992 and 1994. Following the termination of his contract by the company the applicant brought civil proceedings before the Libyan courts and requested compensation. On 3 October 1995 the Libyan courts partially awarded the applicant's claims. Upon his return to Turkey the applicant brought the following proceedings before the Turkish courts. 5. Without specifying before which court, the applicant stated that he instituted domestic proceedings on 29 April 1998 for the recognition of the Libyan court order. According to the applicant, these proceedings had later been abrogated. The applicant did not present any document regarding these proceedings. 6. On 20 October 1998 the applicant instituted proceedings before the Üsküdar 3rd Civil Court requesting the recognition of the Libyan court order. On 24 March 1999 the Üsküdar 3rd Civil Court rejected the applicant's request. The applicant appealed and on 4 October 1999 the Court of Cassation quashed the decision on the ground that the first instance court did not have jurisdiction. On 29 February 2000 the Court of Cassation further rejected the rectification request. On 29 March 2001 the Üsküdar 3rd Civil Court issued a decision of non-jurisdiction. 7. On 9 April 2001 the applicant requested the proceedings to be referred to the competent labour court. On 10 October 2002 the Istanbul 5th Labour Court held that the case before it concerned the recognition of the Libyan court order, the contents of which were the subject matter of the proceedings pending before the Istanbul 4th Labour Court that the applicant had introduced separately on 20 December 2000. Therefore there was no need to continue the proceedings. The applicant appealed. On 18 September 2003 the Court of Cassation upheld the judgment. 8. On 20 December 2000 the applicant initiated proceedings before the Istanbul 4th Labour Court and requested compensation for the same period that had been examined and concluded by the Libyan court as well as a number of other damages. After holding 24 hearings the Istanbul 4th Labour Court partially awarded the applicant on 31 May 2007. The applicant appealed. The Court of Cassation upheld the judgment on 17 February 2009. 9. The applicant also instituted proceedings before the İstanbul 6th Labour Court against the Libyan company and requested the payment of five months' salary. These proceedings which started on 22 April 1999 ended on 5 April 2001 when the court partially upheld the applicant's request. The applicant appealed and the Court of Cassation upheld the judgment on 16 October 2001. The sum awarded was paid to the applicant. 10. In 1986 the applicants brought proceedings before the Çatalca Civil Court and requested additional compensation for their property that had been expropriated. Claiming that the additional compensation amount to be awarded by the court would not have met their actual loss, the applicants later stopped pursuing their case and on 11 August 1994 the court decided not to continue the proceedings. On 9 December 1997 the applicants initiated proceedings before the Büyükçekmece Civil Court and requested determination of the value of the expropriated property and their damages due to the expropriation. The court issued a decision of non-jurisdiction on the ground that the proceedings should have been instituted before the competent administrative court. The applicants' appeal was further dismissed by the Court of Cassation on 12 April 1999. 11. Consequently, the applicants instituted damage proceedings on 21 July 1999 before the Istanbul Administrative Court. On 14 February 2002 the Istanbul Administrative Court dismissed the applicants' claims. Referring to the previous proceedings before the Çatalca Civil Court which the applicants had stopped pursuing, the court declared that the State could not be held liable for the applicants' omission in not following the judicial procedure in due time. The applicants' appeal and rectification requests were rejected by the Council of State on 17 February 2004 and 28 March 2005 respectively. 12. On 11 December 2002 criminal proceedings were initiated against the applicant and six others who were allegedly involved in a bribery and forgery incident. On 22 October 2003, 12 May 2006 and 24 June 2008 the Çankırı Assize Court convicted the applicant as charged. The Court of Cassation quashed these judgments on 22 February 2005, 16 May 2007 and 16 July 2009. According to the information submitted by the applicant, the proceedings are still pending before domestic courts. | 1 |
train | 001-81317 | ENG | RUS | ADMISSIBILITY | 2,007 | TSOMARTOV v. RUSSIA | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Nikolay Valeryevich Tsomartov, is a Russian national who was born in 1975 and lives in Vladikavkaz, the Republic of North Ossetia-Alania. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a former serviceman of the Ministry of the Interior of the Republic of North Ossetia-Alania. He instituted civil proceedings against the Ministry of the Interior to recover the remuneration for his participation in military operations. On 19 April 2002 the Leninskiy District Court of Vladikavkaz (“the District Court”) granted his claim. The court awarded the applicant 233,640 Russian roubles (RUR). The judgment was not appealed against and acquired legal force on 29 April 2002. On the same date the District Court issued a writ of execution. On 5 March 2005 the judgment of 19 April 2002 was fully enforced. By a decision of 11 July 2005 the District Court granted the applicant’s action for compensation of inflation losses sustained as a result of the delayed enforcement of the judgment of 19 April 2002. The court acknowledged that the judgment of 19 April 2002 had been enforced with a substantial delay and awarded the applicant RUR 91,814.51. No appeal was lodged against the decision and it entered into force on 22 July 2005. On 7 December 2005 the applicant received the amounts awarded to him by the decision of 11 July 2005. | 0 |
train | 001-89552 | ENG | RUS | CHAMBER | 2,008 | CASE OF KUZMINSKIY v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1966 and lives in Rostov-on-Don, a town in the Rostov Region. 5. In 2002–03 the applicant stood trial for bribery but was acquitted. The applicant spent this time in pretrial custody. 6. On 30 December 2003 the Rostov Regional Court awarded the applicant against the Ministry of Finance 48,245.12 Russian roubles (RUB) in respect of pecuniary damage inflicted by the trial. This judgment became binding on 11 March 2004 and was enforced on 29 April 2005. 7. On 28 April 2005 the Presidium of the Regional Court awarded the applicant against the Ministry of Finance RUB 10,000 in respect of non-pecuniary damage sustained in pretrial custody. This judgment became binding on 28 April 2005 and was enforced on 21 March 2006. 8. On 4 April 2004 the Sovetskiy District Court of Rostov-on-Don adjusted the award of 30 December 2003 for the cost of living and awarded a further RUB 7,034.68. 9. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. | 1 |
train | 001-72837 | ENG | TUR | ADMISSIBILITY | 2,006 | SAYDAM v. TURKEY | 1 | Inadmissible | null | The applicant, Mr Mehmet Saydam, is a Turkish national who was born in 1948 and lives in Istanbul. He was represented before the Court by Mr N. Ertekin, Mr T. Aycık and Mr K. Öztürk, lawyers practising in Istanbul. On 12 March 1998 the Istanbul State Security Court convicted the applicant of drug trafficking and sentenced him to seventeen years and six months' imprisonment. The applicant was placed in Kırklareli Prison. On 8 December 2002 the applicant was diagnosed as suffering from lung cancer. He was transferred to the Edirne open-farm prison in order to facilitate his medical treatment. On 7 January 2003 the applicant was operated on at Cerrahpaşa Hospital, attached to the Faculty of Medicine of Istanbul University. The top right lobe of his lung was removed (lobectomy). The applicant remained in hospital between 6 and 24 January 2003. Between 5 March and 8 April 2003 the applicant received radiotherapy at the hospital of the Faculty of Medicine of Thrace University. On 8 April 2003 the doctors in charge of the applicant recommended house rest for three months. Between 9 April and 12 June 2003 the applicant was transferred seven times to the prison clinic for a check-up. On 29 April 2003 the applicant was examined by six doctors at Edirne State Hospital. The doctors noted that he was suffering from chronic obstructive lung disease of a permanent nature. On 9 June 2003 the 3rd Section of the Forensic Medicine Institute, referring to the applicant's health condition, held that his continued incarceration could be life-threatening and recommended the suspension of his sentence for a year. It further held that at the end of that period his state of health would be reviewed. On 13 June 2003 the Edirne public prosecutor suspended the execution of the applicant's sentence for one year, in accordance with Article 399 § 1 of the Code of Criminal Procedure, and ordered his release. He was released on the same day. According to a medical report issued by Cerrahpaşa Hospital on 21 April 2004, the applicant was placed under medical supervision in case he suffered a relapse. On 26 April 2004 the applicant filed a petition with the Edirne public prosecutor. In his petition the applicant submitted that he was still ill and that his sentence should be suspended. He also requested to be pardoned under Article 104 § 2 (b) of the Constitution. According to a medical report issued by Edirne State Hospital on 4 May 2004, the applicant's illness and treatment were continuing and his condition constituted a handicap and a state of ageing. On 23 June 2004 the 3rd Section of the Forensic Medicine Institute, after evaluating the medical reports on the applicant together with his blood analysis and lung images, held that the applicant, who had been suffering from adenocarcinoma of the lung and had been operated on, presented no symptoms of a recurrence. It concluded that, at the time of the report, the applicant no longer fulfilled the requirements of Article 399 § 1 of the Code of Criminal Procedure and Article 104 of the Constitution. It further stated that, in the event of any change in his medical condition, it would reconsider its decision. Consequently, on 7 July 2004 the Edirne public prosecutor informed the applicant that he had seven days in which to apply to the public prosecutor's office for his incarceration. That decision was served on the applicant on 19 July 2004. According to a medical report issued by Cerrahpaşa Hospital on 12 July 2004, an analysis of the applicant did not reveal any atypical cells and his illness had not progressed. The report further stated that the applicant was under medical supervision in case of a relapse. On 21 July 2004 the applicant applied to the Edirne public prosecutor's office for the suspension of his prison sentence. He challenged the veracity of the medical report issued by the Forensic Medicine Institute on 23 June 2004 and claimed that he would face the risk of a relapse if he were returned to prison. He stated that in order to provide for his children he had been trying to reactivate his company and that he needed a further three or four months. On 26 July 2004 his application was dismissed by the Edirne public prosecutor's office. On the same day the applicant was incarcerated at Edirne open-farm prison. On 4 August 2004 the applicant was transferred to the prison clinic for a check-up. On 1 September 2004 the Edirne public prosecutor decided that, in view of the conflicting reports issued by the Forensic Medicine Institute on 23 June 2004 and by Edirne State Hospital on 4 May 2004, the applicant's case should be examined by the General Assembly of the Forensic Medicine Institute. The public prosecutor considered that, since the date of the meeting of the General Assembly was not known, it was appropriate to suspend the execution of the applicant's sentence for a period of six months. The applicant was released on the same day. On 23 September 2004 the General Assembly of the Forensic Medicine Institute, after examining the medical reports concerning the applicant, concluded that, at the time of its decision, he did not fulfil the requirements of Article 399 § 1 of the Code of Criminal Procedure and Article 104 of the Constitution. It further stated that in the event of any change in the applicant's medical condition it would reconsider its decision. In the meantime, on 12 October 2004, the new Criminal Code was adopted by Parliament. On 29 November 2004 the Edirne Assize Court reviewed the applicant's sentence in the light of the provisions of the new Criminal Code resulting from Law no. 5252 and decided to suspend the execution of his sentence pending the entry into force of the new Criminal Code on 1 June 2005. On 10 February 2005 the Faculty of Medicine of Thrace University submitted to the Edirne public prosecutor a report dated 9 February 2005 by Dr C.U., the head of its oncology department. In the report Dr C.U., referring to the medical reports drafted by the doctors at the hospital of the Faculty of Medicine of Thrace University, submitted that the applicant presented certain symptoms resulting from the various treatments he had received, but no symptoms of lung cancer. Accordingly, he concluded that the applicant had recovered from lung cancer. He held, however, that as there was a small risk of recurrence, the applicant should be kept under medical supervision for a further five years. In a letter dated 22 August 2005 the applicant informed the Court that he was still under medical supervision in Cerrahpaşa Hospital. He also submitted that no further decisions had been taken by the national authorities as regards his return to prison. Finally, the applicant stated that, at the request of the public prosecutor, he had submitted the results of his latest medical tests to the authorities. “The execution of penalties restricting the liberty of a person suffering from mental disease shall be postponed until the patient has recovered. The same provision shall apply in the event of any other illness which would constitute a serious danger to the life of the convicted person in the event of the execution of a sentence restricting liberty.” “The President of the Republic is the head of State... To this end, the duties he or she shall perform, and the powers he or she shall exercise, in accordance with the conditions laid down in the relevant Articles of the Constitution, are as follows: ... to remit, on grounds of chronic illness, disability or old age, all or part of the sentences imposed on certain individuals...” Law no. 5252, adopted on 4 November 2004, concerns the rules and procedures to be applied during the transitional period pending the entry into force of the new Criminal Code. It provides for a review of the suspension of the execution of sentences in respect of convictions which became final before 1 April 2005, if the provisions of the new Criminal Code are more favourable to the convicted person. | 0 |
train | 001-97635 | ENG | FIN | ADMISSIBILITY | 2,010 | KOIVUSAARI AND OTHERS v. FINLAND | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicants, Mr Rauno Koivusaari, and Mr Mikael Marttinen, are Finnish nationals who were born in 1964 and 1968 and live in Koria and Espoo respectively. They were represented before the Court by Mr Jan Aminoff, 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. In an autumn storm in 1771, the Vrouw Maria, a Dutch merchant ship, was wrecked on the seabed in Finnish waters in the south-western archipelago in the vicinity of Borstö and Jurmo islands. The ship, which was on its way from Amsterdam to St Petersburg, is believed to have been carrying valuable works of art destined for Empress Catherine the Great of Russia. On 28 June 1999, the first applicant, an experienced diver, located the vessel at a depth of 41 metres and subsequently informed the Finnish Maritime Museum (merimuseo, sjöhistoriska museet) of the find as required under the Antiquities Act (muinaismuistolaki, lagen om fornminnen; Act no. 295/1963). The first applicant had a total of 16 divers in his team. On 9 July 1999 artefacts were brought up from the wreck by the applicants. According to the applicants, they were brought up at the request, alternatively with the permission, of Ms F., a representative of the National Board of Antiquities (museovirasto, museiverket; a subordinate body of the Ministry of Education; opetusministeriö, undervisningsministeriet). Under the Antiquities Act, as in force at the time, a wreck more than 100 years old could not be removed or touched without permission from the Maritime Museum and/or the National Board of Antiquities. The same was true of items found in, or originating from, such a wreck. Subsequently the Museum and/or the Board consistently refused the applicants permission to deal with the wreck and the associated items. In or around December 1999 the applicants informed the local police of the find and, when no owner appeared, a claim to title was lodged with the police in or around May 2000, in accordance with the procedure laid down in the Lost Property Act (löytötavaralaki, hittegodslagen; Act no. 778/1988). On 1 December 2002 an amendment to section 20 of the Antiquities Act, vesting the ownership of a wreck in the State, entered into force (see below). On 22 December 1999 the applicants instituted proceedings in the Maritime Court (merioikeus, sjörätten; a department of the District Court (käräjäoikeus, tingsrätten) composed of three professional judges and two sea captains), requesting the court to confirm that on 9 July 1999 by bringing up three chalk pipes, a clay bottle, a seal and a zinc ingot they had engaged in salvage operations for which they were entitled to remuneration under Chapter 16 of the Maritime Code (merilaki, sjölagen; Act no. 674/1994) and that they had a right, either under a contract or as first salvors, to bring up all objects for which they were entitled to salvage remuneration. The court was also asked to confirm that the applicants were to be considered owners of the wreck and that they had the right also on that ground to engage in salvage operations. Were the court to consider the State owner of the wreck, the applicants requested it to confirm that they, either under a contract or as first salvor, had the right to engage in salvage of the wreck and to receive remuneration therefor. Lastly, they claimed legal costs. Under Chapter 16, article 1, of the Maritime Code anyone who salvages or assists in salvaging a foundered vessel, or goods in such a vessel, is entitled to salvage remuneration. As the applicants had been the first at the scene, they contended that they had been entitled to engage in salvage. Under the Maritime Code a right to salvage remuneration arose even if the wreck was no longer in danger. In any event, the presumably valuable cargo could be considered in danger as divers had access to it through the wreck's open cargo hold. This was shown by the fact that on 19 July 1999 the Maritime Museum had asked the Finnish Naval Forces and the Frontier Guard to monitor the wreck. The applicants conceded that ownership as regards objects found in the wreck fell to the State under section 20 of the Antiquities Act as in force at the time when the case was heard before the courts. However, they considered themselves owners of the wreck under former section 20 as in force at the time of the find. The old provision did not state anything about the ownership of a vessel more than 100 years old but the decision was to be made in accordance with the general principles. The subsequent entry into force on 1 December 2002 of the amendment could not remove the applicants' right of ownership, although the Act was given retroactive effect if the wreck did not have an owner. As the applicants had become owners in July 1999 as a result of appropriation, the subsequent amendment could not be given retroactive effect in the present case. The State contested the action, arguing that objects had been brought up under section 10 of the Antiquities Act with the permission of the Maritime Museum for research purposes. The Vrouw Maria was a relic of antiquity within the meaning of the Antiquities Act. The exclusive right to make decisions concerning the wreck and objects therein, their examination and possible removal was vested in the State. Any decision to bring up objects did not mean engaging in salvage but rather the conduct of research under the Antiquities Act. The remuneration of such work was to be decided pursuant to a contract, or in the absence of such, pursuant to the Code of Commerce (kauppakaari, handelsbalken). The State argued that there was no salvage contract. In any event, such a contract was not binding on the State since Ms F., a researcher, had not been competent to enter into such a contract, a fact of which the applicants had been aware. If the court were to find that a salvage contract had been established, it must be considered to have concerned only the bringing up of objects in the summer of 1999. The State also argued that, as there had been no dangerous situation requiring immediate salvage action, the applicants could not be considered first salvors. Accordingly, they had no right to salvage remuneration. The State argued that the National Board of Antiquities had the right to forbid possible further action under Chapter 16, article 1, of the Maritime Code. It was likewise free to choose its own salvor for the remaining work. In the State's view, the amendment of the Antiquities Act had only been of a clarifying nature. The intention of the Act from the outset had been that the State would receive ownership of a wreck based on protection. This was evidenced from the duty to inform the Maritime Museum of a find. Under the Antiquities Act a third party did not have the right to interfere, touch or otherwise repossess an immovable relic of antiquity. Therefore, the applicants could not have gained ownership of the wreck on the basis of appropriation. As the Vrouw Maria had been abandoned by its original owner, she had immediately become protected following her discovery in July 1999 without any separate decision or action. By an interim judgment of 19 September 2002 the Maritime Court (composed of one single professional judge) held that the provisions of the Maritime Code on salvage were applicable to the operations aimed at salvaging the wreck and the property originating from it. During the course of the present proceedings, and as noted above, Parliament amended section 20 of the Antiquities Act so as to vest ownership of vessels wrecked more than 100 years previously in the State. According to the applicants, this enabled the State to assert as owner that it objected to salvage, which it had not been able to do before, thus depriving the applicants of their position as first salvors. In a final judgment of 16 June 2004 the Maritime Court (in its full composition), having held an oral hearing and heard 11 witnesses, decided that the Antiquities Act, as amended, was to be considered lex specialis. As the wreck and objects therein were protected, any interference required the permission of the National Board of Antiquities. Under section 20(3) of the Antiquities Act the State was the owner of any object found in or obviously originating from the wreck. Under the amended section 20(2) also the wreck belonged to the State. As the Vrouw Maria had been shipwrecked in 1771, it was clear that she had been abandoned by her owner. Because she was over 230 years old she had become protected by law before 1 December 2002 when the amendment to the Antiquities Act took effect. Appropriation by the applicants, which presupposed, inter alia, the gain of control over an object, had not been possible due to the protection by law. According to the court, the Maritime Code applied only to ships in navigation and in danger. In respect of a foundered ship which fell within the purview of the Antiquities Act (an historic vessel without an apparent owner), the Act worked to exclude the provisions on salvage; hence, the applicants were not in the position of first salvors. The court further held that, even if the applicants were considered as first salvors, the State had in any case the right to forbid any salvage operation and the salvage remuneration could be refused on that ground. The judgment was not unanimous as one of the professional judges expressed the view that the applicants had the right of first salvors and a right to remuneration for the objects brought up by them. The claim for remuneration for further actions was premature as it was not known whether anything else would be brought up. The judge did not find the existence of a salvage contract established. The applicants appealed, repeating their claims as presented before the District Court. In their counter appeal, the State requested the court to find that the Antiquities Act superseded the provisions on salvage in the Maritime Code as lex specialis and lex posterior and because of the hierarchical order of these laws and that the action should be dismissed on the ground that the Maritime Court had lacked jurisdiction to examine the case. On 23 March 2005 the Court of Appeal (hovioikeus, hovrätten), having held an oral hearing in which it received testimony from twelve witnesses, rejected the appeals save that it discharged the applicants from their obligation to pay the State's legal costs. The court found that both the Antiquities Act and the Maritime Code were lex specialis. There were no grounds for considering that the former superseded the latter. Neither did the court uphold the Government's contention that there were two different groups of flotsam, one to be examined under the Antiquities Act and another under the Maritime Code. Nor did it uphold the Government's argument that Chapter 16, article 1, of the Maritime Code applied only to wrecks in danger. Finding that an unendangered wreck could also be the object of salvage, it confirmed that the Vrouw Maria was shipwrecked within the meaning of Chapter 16 of the Maritime Code. The court also noted that the Antiquities Act did not include a provision forbidding the application of the Maritime Code's provisions on salvage to flotsam within the meaning of the Antiquities Act. In sum, both Acts were applicable to the present case. As to the applicants' claim for ownership based on appropriation, the court noted that the wreck was placed under protection under section 1 of the Antiquities Act, which meant that all types of interference were forbidden without the permission of the National Board of Antiquities. The provisions on protection worked to prevent the finder of a wreck from gaining de facto dominion over it. Therefore appropriation of an abandoned object such as the one in issue was not possible and the applicant's claim for ownership could not be upheld. Under section 20(2) the State was the owner of the wreck. As to the applicants' contention that the parties had entered into a salvage contract, the court held that the existence of such an agreement had not been evidenced. It noted the following. On the basis of the witness statements of Ms M. and Ms P. the former had, in any event, not been competent to enter into such an agreement with binding effect on the State. On the basis of Ms P.'s testimony it was equally clear that the personnel of the Maritime Museum had not been competent to agree on remuneration. Ms M. also gave evidence to the effect that she had plainly given permission to bring up objects for research purposes in order to identify the wreck and without having the intention of engaging in a salvage contract. While noting that the Maritime Museum had paid compensation to one of the applicants for operations carried out during a diving expedition, the compensation paid could not be equated to salvage remuneration. The court found that the sums already paid did not support the conclusion that a salvage contract had been established between the parties. As to a document relied on in evidence and entitled “the wreck of the Vrouw Maria”, its drafter, Ms P., explained that she had made an estimate of the costs for examining the wreck. When drawing up the document there had been no discussion about bringing up the wreck. The court also noted a written statement by Ms M. according to which there had been discussion within the National Board of Antiquities about the possible bringing up of objects. However, none of these documents showed that the representatives of the Maritime Museum had intended to engage in a salvage agreement with the applicants. As to whether the State as owner had the right under Chapter 16, article 1(2), of the Maritime Code to forbid the applicants from engaging in salvage, the court noted that the first salvor may engage in salvage contrary to the owner's will when there is a concrete danger which necessarily requires engaging in salvage. In the present case, there was no such danger. The wreck and its cargo had lain at the bottom of the sea for over 230 years. The wreck and at least part of the cargo had been found in good condition and it could be assumed that they would continue to remain so for decades. The wreck was situated at a depth of 42 metres and at a difficult location navigationally. It caused no danger to navigation. It was possible that divers might enter the wreck and remove items. On the other hand, the wreck was under radar and camera surveillance by the authorities and therefore it was not probable that any stay of a long duration at the location where the ship went down would be possible without the intervention of the authorities. The ship went down in territorial waters and therefore it was unlikely that the wreck could be damaged by anchoring. Neither did archaeological concern require the immediate salvage of the wreck or its cargo. On these grounds the Court of Appeal considered that the State had the right to prohibit salvage. The court did not comment on the amendment of section 20 of the Antiquities Act. The applicants appealed, repeating their claims as presented before the District Court and the Court of Appeal. However, in their request for leave to appeal, the applicants expressly abandoned their ownership claim. They did so because they considered that the intervening amendment to the Antiquities Act had made it impossible for them to succeed in that claim as the Supreme Court (korkein oikeus, högsta domstolen) was bound to give effect to the legislation and therefore to reject their ownership claim. On 24 November 2005 the Supreme Court refused leave to appeal. Article 15 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and in consideration of full compensation, are laid down by an Act. According to Article 106: "[i]f, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution." The Supreme Court found, inter alia, in the case KKO 2004:26 concerning property rights that a provision of the Act on the Protection of Buildings (rakennussuojelulaki, byggnadsskyddslagen) was in conflict with the Constitution and that primacy was to be given to the latter. Section 1 of the Antiquities Act (Act no. 295/1963) provides that immovable relics of antiquity are protected as traces of the previous settlement and history of Finland. Without permission given under this Act such relics are not to be the object of excavation, covering, modification, damage, removal or other unauthorised interference. Section 10 provides that the National Board of Antiquities has the right, inter alia, to examine and restore an immovable relic of antiquity, or it can entrust this task to someone else. Sections 16 and 17 provide that the find of certain specified movable objects, which can be presumed to be at least one hundred years old, must be reported to the National Board of Antiquities, which is entitled to redeem them. A movable antiquity found on an immovable one belongs to the State without redemption provided that it is connected with the immovable antiquity. The National Board of Antiquity may however decide to give a finder's reward if it considers this justified. At the time when the Vrouw Maria was found, section 20 of the Antiquities Act (Act no.295/1963) provided: “A wreck of a ship or other craft, or part of such a wreck, discovered in the sea or inland waters, which can be presumed to be more than 100 years old, is protected. The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof. Items found in a wreck referred to in subsection 1 or which apparently originate from such a wreck belong to the State without redemption, and otherwise the provisions concerning movable antiquities shall apply where relevant. Anyone who finds a wreck or an item referred to in this section shall immediately inform the National Board of Antiquities.” On 15 November 2002, that is during the course of the proceedings in the present case, Parliament amended section 20 of the Antiquities Act so as expressly to vest ownership of vessels wrecked more than 100 years previously in the State. The amended section 20 (Act no. 941/2002) reads: “A wreck of a ship or other craft, or part of such a wreck, discovered in the sea or inland waters, which can be presumed to have gone down more than 100 years ago, is protected. The provisions regarding immovable antiquities shall apply where relevant to such a wreck or part thereof. If, on the basis of external conditions, it is obvious that the owner has abandoned a wreck referred to in subsection 1 or a part thereof, it shall belong to the State. Items found in a wreck referred to in subsection 1 or which apparently originate from such a wreck belong to the State without redemption, and otherwise the provisions concerning movable antiquities shall apply where relevant. Anyone who finds a wreck or an item referred to in this section must inform the National Board of Antiquities without undue delay. ... ” The amendment (Act no. 941/2002) took effect on 1 December 2002. It was, however, given retroactive effect. The amendment was applicable to wrecks and parts thereof which had already become protected as historical monuments before the entry into force of the amendment if, based on external conditions, it was obvious that they had been abandoned by their owner. The preparatory works of the amendment of section 20 of the Antiquities Act (see the Government bill HE 80/2002) noted the need to clarify the question of ownership of a protected wreck or part thereof. It stated, inter alia, that: “Since the enactment of the Antiquities Act, technological developments have facilitated locating and exploring old shipwrecks under water. The number of wrecks located by means of side scan sonar in territorial waters of Finland will probably grow in the next few years. .... The Vrouw Maria, which foundered in 1771, was discovered in 1999 in the Nauvo archipelago. It has been stated that the title to the wreck itself is not unambiguous in the light of current law, because the Act does not stipulate directly that a wreck regarded as a relic of antiquity is owned by the State. No case-law exists on the application of the Antiquities Act to this question, and it is not covered in legal literature either. .... Swedish and Norwegian legislation contains an unambiguous provision stipulating that the title to a shipwreck regarded as a relic of antiquity is vested in the State. The preparatory works of the Finnish Antiquities Act in force state, however, that relics of antiquity, because of their old age, can no longer be regarded as the property of private individuals. Relics of antiquity are considered to have primarily antiquity value and/or historical value but no longer use value. Also the raising of a sunken historical wreck constitutes primarily archaeological research. For these reasons it can be considered that the legislator originally intended to stipulate that historical shipwrecks are owned by the State, although this intent was not expressed openly.” Chapter 16, article 1, of the Maritime Code (Act no. 674/1994), as in force at the material time, provided that anyone who salvaged or assisted in salvaging a foundered vessel or a vessel in danger, or goods in such a vessel, or anything having pertained to such a vessel or goods, was entitled to salvage remuneration. Anyone who had taken part in a salvage operation notwithstanding the express and justified prohibition of the master of the vessel had no right to salvage remuneration. | 0 |
train | 001-57474 | ENG | NLD | CHAMBER | 1,984 | CASE OF DUINHOF AND DUIJF v. THE NETHERLANDS | 2 | Questions of procedure rejected;Violation of Art. 5-3;Non-pecuniary damage - financial award | null | 10. Mr. Duinhof and Mr. Duijf, who were born in 1962 and 1958 respectively, reside in the Netherlands. In 1981 and 1982, after being forcibly drafted as conscript soldiers in the Netherlands Armed Forces, they each refused, on account of their beliefs as conscientious objectors, to obey specific orders deriving from their obligation to perform military service. They were placed in detention by the competent military officers for suspected offences against the Military Penal Code (Wetboek van Militair Strafrecht). They were kept in custody and referred for trial before a military court. 11. Exemption may be obtained from compulsory military service on the ground of conscientious objection, both before and after active military service has begun. The procedure for requesting such exemption from the Minister of Defence is laid down in the Conscientious Objection to Military Service Act (Wet Gewetensbezwaren Militaire Dienst) and a Ministerial Decree of 31 July 1970. In the present case, neither applicant ever submitted a request to the Minister of Defence to be granted the status of conscientious objector (see paragraphs 21-28 below). 12. Criminal procedure for the military land and air forces, including in particular the matter of arrest and detention on remand, is governed by the Army and Air Force Code of Procedure (Rechtspleging bij de Land-en Luchtmacht - "the Military Code"), as last amended on 24 November 1978. Offences under military criminal law, which applies equally to conscript servicemen such as the applicants and to volunteers, are tried at first instance before a Military Court (Krijgsraad). There may be an appeal to the Supreme Military Court (Hoog Militair Gerechtshof) and ultimately a (cassation) appeal on points of law to the Supreme Court (Hoge Raad) of the Netherlands. 13. Every officer and non-commissioned officer is empowered to arrest military personnel of lower rank suspected of a serious offence provided the circumstances require immediate deprivation of liberty (Article 4 of the Military Code). The resultant detention is not to exceed twenty-four hours (Article 5). The commanding officer may order a suspected serviceman to be placed or kept in custody on remand if (a) there is a serious risk of absconding or (b) there are important reasons of public safety requiring immediate deprivation of liberty or (c) this is necessary in connection with the maintenance of military discipline among other servicemen (Article 7, second paragraph). Such a detention order may be made against a serviceman suspected of any offence set out in the Military Penal Code or any offence in respect of which detention on remand is permitted under the civilian Code of Criminal Procedure, with the exception of those offences of which the Military Court takes no cognisance (Article 7, fourth paragraph). An order may not be issued if the suspect is unlikely to be penalised by unconditional imprisonment or by any other measure restricting his freedom, or is likely to be given a sentence of shorter duration than that of the detention on remand (ibid.). Detention must be terminated once the grounds for it cease to exist (Article 7, fifth paragraph). All cases of detention exceeding four days shall be reported by the commanding officer to the commanding general (Article 7, sixth paragraph). Where detention has lasted fourteen days, the suspected serviceman may petition the competent Military Court to fix a term (liable to extension) within which the commanding general must either decide whether the case is to be referred to a Military Court or else terminate the detention. The Military Court has to rule on the petition without delay, after hearing the authority empowered to refer the case, the auditeur-militair (see paragraph 18 below) and the suspected serviceman, who may have the assistance of an adviser (Article 13). 14. If, after receiving the advice of the auditeur-militair and, "if possible" ("zo mogelijk"), after the suspected serviceman has been heard, the commanding general or a senior officer (hoofd officier) designated by him to act on his behalf considers that the case should be tried by the Military Court, the serviceman shall be referred for trial before that Court (Article 11). On the other hand, the commanding general or the designated officer may in appropriate circumstances leave the case to be dealt with as a disciplinary matter (Article 12). Regulation No. 27/7 of the Ministry of Defence explained the effect of these provisions in the following terms (translation from Dutch): "In military penal procedure, as distinct from civilian procedure, the decision to prosecute in a case is not taken separately by the prosecuting authority, the auditeur-militair, but by a military authority. That authority is the commanding general or the senior officer he has appointed to act on his behalf, i.e. the referring officer ... Thus, the auditeur-militair is merely an advisory body at this stage, although the obtaining of his advice and the giving of that advice by him are mandatory." Any decision to refer for trial must be in writing and state whether the suspected serviceman is to be released or kept in custody; the grounds for detention set out in the second and fourth paragraphs of Article 7 (see paragraph 13 above) apply pari passu (Article 14). If, against the advice of the auditeur-militair, the commanding general or designated senior officer chooses not to refer a suspected serviceman for trial, the auditeur-militair may take the matter to the Supreme Military Court (Article 15). No appeal is provided for in the contrary case. According to the Government, it has now become standard procedure to apply the above provisions of the Military Code in the following manner. Where detention on remand has been ordered, the suspected serviceman is always heard by the auditeur-militair and any referral to the Military Court takes place shortly thereafter, on average four to five days after the arrest. In view of the requirements of Article 14 of the Military Code the auditeur-militair’s assessment of the circumstances and his advice to the commanding general or designated senior officer cover not only referral for trial but also the question whether the conditions for detention on remand set out in Article 7 are fulfilled. Thus, the standard written form used by the auditeur-militair for the purposes of transmitting his advice to the referring officer contains, inter alia, a paragraph as to whether the suspect should "be released or be placed or kept in custody". Practice has evolved to the point where the advice of the auditeur-militair is invariably followed and generally regarded as binding. 15. Detention maintained or ordered in the decision referring the serviceman for trial may not exceed fourteen days unless extended, by terms of thirty days, by the Military Court at the request of the auditeur-militair (Article 31). Every accused detained by virtue of the referral decision must be heard by the officier-commissaris (see paragraph 19 below) as speedily as possible and in any event within four days of referral; in this connection, the accused may be assisted by an adviser (Article 33, first paragraph). Before extending detention, the Military Court must give the accused or his adviser the opportunity to submit argument (Article 33, second paragraph). As soon as the grounds for the detention cease to exist, release must be ordered (Article 34, first paragraph). In the period between referral and commencement of the trial, power to order release is exercisable by the auditeur-militair, or by the Military Court at the request of either the officier-commissaris or the detained serviceman himself (Article 34, second paragraph). The Military Court, in deciding on such requests, will hear the auditeur-militair and also the detained serviceman or his adviser where the serviceman is requesting release for the first time (Article 34, third paragraph). 16. If the accused is in custody at the first hearing, the Military Court will decide, after being addressed by the auditeur-militair, whether or not the nature and circumstances of the case require his continued detention during the trial (Article 151). The Court may direct the accused’s release from detention on remand at any later stage in the proceedings, either of its own motion or at the request of the auditeur-militair or the accused himself (Article 156). 17. A serviceman in custody may request release or suspension of his detention under Article 219 of the Military Code in proceedings before the Supreme Military Court pending the decision on his appeal. 18. The auditeur-militair has the function of prosecuting authority before the Military Court (Article 126, first paragraph). No serving member of the Armed Forces may appear as auditeur-militair or substitute auditeur-militair (Article 126, third paragraph). The auditeur-militair and his substitute may be replaced by an acting auditeur-militair (plaatsvervanger - Article 126, second paragraph) who may be a military officer, but such replacement was said by the Government to occur only in exceptional circumstances. Auditeurs-militair (including substitutes and acting ones) are appointed, and dismissed, by the Crown on a joint proposal from the Ministers of Justice and Defence; they must possess a law degree (Article 126, fourth and sixth paragraphs). Under the terms of Article 276, second paragraph, of the Military Code, they are obliged to comply with instructions given to them in their official capacity by the Minister of Justice. However, according to the Government, this latter provision serves as no more than the legal authority for issuing general guidelines on prosecution policy and, at least in recent years, no Minister of Justice has acted or interfered in a concrete case on the basis of Article 276. The auditeur-militair is bound by his oath to act honestly and impartially (Articles 368 and 370). He must attend the hearings of the Military Court (Article 290) but he does not take part in the Court’s deliberations. He is under a general duty to assist the Military Court, as well as the commanding general, with reports, observations and advice in relation to military justice when required to do so (Article 278). He is not under the supervision of the Military Court or the Supreme Military Court in the discharge of his duties, save that the Supreme Military Court has the power to reprimand him should he fail strictly to observe statutory time-limits (Article 297). 19. Attached to each Military Court is at least one officier-commissaris who is in charge of the preliminary investigation of cases (Article 29). An officier-commissaris is an officer or former officer of the Armed Forces with the rank of captain or higher and is appointed for a fixed term of at least one year by the commanding general (ibid.). While he may at the same time be a member of the Military Court, this is not usually the case. His task of preliminary investigation involves gathering the facts and hearing witnesses and the accused when necessary (Articles 29, 48 and 78). A hearing by the officier-commissaris has the same force as a hearing by the Military Court (Article 161). During his enquiries, he is under a duty to apply himself equally to discovering the accused’s innocence and to obtaining proof or admission of guilt (Article 62). Like the auditeur-militair, he is bound by his oath to act honestly and impartially (Articles 368 and 370). 20. The Military Court sits with a president and two military members (Article 120). The latter are military officers appointed by the commanding general; during their term of office, which is for one year at least, they may not be dismissed; they must be at least twenty-five years of age and be commissioned officers (Article 120). In practice, the rank most commonly possessed is that of captain or major. There is no requirement that the military members be legally qualified. According to the Government, although they retain the status of military officers, they are independent in their capacity as judges and no order can be given to them by anyone. Like the president, the military members are bound by oath to act honestly and impartially (Articles 368 and 369). The president is a civilian who must be the holder of a university law degree; he is appointed for life by the Crown on the joint recommendation of the Ministers of Justice and Defence (Article 121). The deliberations of the Military Court are secret and its members are not allowed to make public their personal opinions or those of their colleagues (Article 135). 21. Mr. Duinhof was arrested on 18 November 1981 on a charge of having failed to register in due time as a conscript serviceman (Article 150 of the Military Penal Code). He was transferred to military barracks where he refused to submit to a medical examination. He was then further accused of persistent insubordination (Article 114 of the Military Penal Code). On 19 November, the commanding officer confirmed the detention, the ground relied on being the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 13 above). On 20 November, he was brought before the auditeur-militair. On 23 November, in accordance with the advice of the auditeur-militair, the designated senior officer referred the applicant for trial before the Military Court, while deciding that he should be kept in custody on the same ground as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 14 above). 22. On 24 November, the applicant was heard by the officier-commissaris (Article 33, first paragraph, of the Military Code - see paragraph 15 above). On 26 November, the Military Court examined a request made by the applicant on 24 November for release from custody (Article 34 of the Military Code - see paragraph 15 above). At this hearing, the applicant submitted, inter alia, that the requirements of Article 5 § 3 (art. 5-3) of the Convention had not been complied with. The Court held that the lapse of time between the applicant’s arrest and his appearance before the officier-commissaris, a judicial officer, was "considerable" but nonetheless "acceptable", having regard both to the fact that this period comprised a week-end and to the geographical distance between the various intervening authorities. Accordingly, considering that the grounds for detention were still prevailing, the Court dismissed his request. Subsequently, his detention was regularly prolonged by the Military Court. 23. On 28 January 1982, Mr. Duinhof was convicted of insubordination and sentenced by the Military Court to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom. 24. He then appealed to the Supreme Military Court. On 29 January, pending the examination of his appeal, the applicant lodged with the Supreme Military Court a request for the detention to be terminated having particular regard to Article 5 § 3 (art. 5-3) of the Convention or, alternatively, for the detention to be suspended (Article 219 of the Military Code - see paragraph 17 above). On 17 March, the Supreme Military Court rejected the first part of his request. However, on the same day, it acceded with immediate effect to the second part subject to a number of conditions, inter alia, that he accepted - which he did - to perform substitute civilian service over a minimum period of fifteen months and to submit to a medical examination. Criminal proceedings were likewise suspended by the Court under the same conditions. The Supreme Military Court subsequently sentenced Mr. Duinhof to 101 days’ imprisonment, the time spent in custody on remand, which likewise totalled 101 days, to be deducted therefrom. 25. Mr. Duijf was arrested on 15 January 1982 on a charge of having failed to register in due time as a conscript serviceman (Article 150 of the Military Penal Code). He was transferred to a military house of detention where he refused to take receipt of a military uniform and weapon. He was then further accused of persistent insubordination (Article 114 of the Military Penal Code). The commanding officer confirmed the detention, the grounds relied on being a serious risk of his absconding and the need to maintain discipline amongst other servicemen (Article 7 of the Military Code - see paragraph 13 above). On 18 January, in accordance with the verbal advice of the auditeur-militair, the designated senior officer referred the applicant for trial before the Military Court, while deciding that he should be kept in custody on the same grounds as before (Articles 11, 14 and 7, second paragraph, of the Military Code - see paragraph 14 above). 26. On 19 January, the applicant was heard both by the officier-commissaris (Article 33, first paragraph, of the Military Code - see paragraph 15 above) and by the auditeur-militair. On 27 January, the Military Court examined a request made by the auditeur-militair on 22 January for the detention to be maintained (Article 31 of the Military Code - see paragraph 15 above). At this hearing, the applicant submitted, inter alia, that Article 5 § 3 (art. 5-3) of the Convention had not been complied with. The Court rejected his various arguments and, considering that the grounds for keeping him in custody were still prevailing, prolonged the detention by a thirty-day term. Subsequently, his detention was regularly prolonged by the Military Court. 27. On 15 April, the applicant was convicted of insubordination and sentenced by the Military Court to eighteen months’ imprisonment, the time spent in custody on remand to be deducted therefrom. 28. The applicant then appealed to the Supreme Military Court. On 16 April and 2 June, the applicant lodged with the Supreme Military Court requests to have his detention terminated, alleging, inter alia, breach of Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention (Article 219 of the Military Code - see paragraph 17 above). The Supreme Military Court rejected these requests on 23 June. On 7 September, the Supreme Military Court, substituting its own judgment for that of the trial court, upheld both the conviction and the sentence imposed. | 1 |
train | 001-97228 | ENG | POL | CHAMBER | 2,010 | CASE OF KOSTKA v. POLAND | 3 | Violation of Art. 6-1;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1934 and lives in Chmielno. 6. On an unspecified date the applicant applied to the Polish-German Reconciliation Foundation (“the Foundation”) for compensation on the ground that he and his parents had been deported to Germany with a view to performing forced labour in agriculture. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act”; “the GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation. 7. On 3 September 2003 the Foundation's Verification Commission decided that the applicant was not eligible for compensation. It informed him that under section 11 of the GFA only those forced labourers who had been deported to Germany or to an area occupied by it had been eligible for compensation. In the case of citizens of the Third Reich or persons placed on the List of German Nationals (Deutsche Volksliste; niemiecka grupa narodowościowa) their assignment to work by the German authorities was not considered compulsory. The Verification Commission established on the basis of documentary evidence that the applicant's parents had been placed on the List of German Nationals and that accordingly their assignment to work in Germany had not been compulsory. 8. On 27 October 2003 the applicant appealed against that decision. He strongly contested the Verification Commission's finding that the assignment to work of the persons who had belonged to the German Nationals' List had not been compulsory. He submitted that the farm of his parents had been sequestered by the German authorities without compensation. Subsequently, the applicant and his parents had been placed in the Jabłonów germanization camp. On account of his internment in the camp as a child the applicant was granted a veteran status by the Polish authorities. The applicant further argued that the seizure of his parents' prosperous farm without payment of compensation had been certainly effected against their will, as had been their transfer to work on a farm in Germany. He submitted that the placement on the German Nationals' List had resulted in most cases from various forms of coercion, in particular in Silesia and Pomerania where his family had been from. He concluded that his and his parents' deportation to perform forced labour in Germany had been compulsory. 9. On 20 August 2004 the Foundation's Appeal Commission dismissed the applicant's appeal. It reiterated that the applicant had not met the conditions specified in section 11 of the GFA. The Appeal Commission did not reason its decision. 10. On 29 November 2004 the applicant filed an appeal against that decision with the Appeal Commission for transmission to the Warsaw Regional Administrative Court. Since the appeal had not been transmitted, on 3 October 2005 the applicant made an application to the administrative court to impose a fine on the Appeal Commission. 11. On 19 October 2005 the Warsaw Regional Administrative Court rejected his application, finding that it did not have jurisdiction to examine appeals against decisions or inactivity of the Foundation. The court relied on the Supreme Administrative Court's Resolution of 3 December 2001 (no. OPS 3/01; see paragraph 37 below). 12. On 6 January 2006 the Supreme Administrative Court dismissed the applicant's appeal against the Regional Administrative Court's decision. 13. On 18 April 2006 the applicant lodged a constitutional complaint, alleging that the exclusion of the administrative court's jurisdiction in respect of the Foundation's decision had violated Article 45 § 1 of the Constitution, that provision guaranteeing access to court. 14. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds (case no. SK 53/06). It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the civil courts to pursue his appeal against the Foundation's decision. The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the civil courts and the Supreme Court's Resolution of 27 June 2007 (see paragraph 38 below). 15. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall respect international law binding upon it.” Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides: “The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.” Article 177 of the Constitution states: “The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.” Article 184, in so far as relevant, provides: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.” 16. On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of payments, having regard both to serious damage to the victims' health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country. 17. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder, made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation's aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation's capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation's activities is exercised by the regional governor (Wojewoda) or the competent minister. 18. The Foundation's organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna). 19. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland. 20. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act. 21. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace. 22. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”; the German Foundation Act; the GFA). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. 23. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide: Recognising that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations, that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it, that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility, that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments, that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime, the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...) (1) A legally recognised Foundation with the name 'Remembrance, Responsibility and Future' shall be established under public law. (...) (1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...) (...) (8) In concert with the Board of Trustees, the partner organizations may subdivide the category of forced labourers, within its quota, in accordance with Section 11, Paragraph 1, Sentence 1, Number 1, insofar as this involves persons interned in other places of confinement, as well as affected persons within the meaning of Section 11, Paragraph 1, Sentence 1, Number 2, into subcategories depending on the severity of their fate and may set correspondingly gradated maximum amounts. This shall also apply to the eligibility of legal successors. (...) (1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...) (1) Eligible under this Law are: 1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour; 2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...) (2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant's eligibility may be substantiated in some other way. (1) Awards under section 11, paragraph 1, sentence 1, numbers 1 or 2, or sentence 2 or sentence 5 are strictly personal and individual and must be applied for in one's own name. In a case where the eligible person has died after February 15, 1999, or where an award under Section 11, Paragraph 1, Number 3 or Sentence 4 is being applied for, the surviving spouse and children shall be entitled to equal shares of the award. If the eligible person left neither a spouse nor children, awards may be applied for in equal shares by the grandchildren, or if there are no grandchildren living, by the siblings. (...) The partner organizations are to create appeals organs that are independent and subject to no outside instruction. The appeals process itself is to be free of charge. However, costs incurred by the applicant are not to be reimbursed.” 24. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law. They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory. 25. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour. It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited. 26. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish an individual's claims vis-à-vis a public-law foundation and to exclude judicial review in this connection. 27. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000. 28. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000. 29. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of payment awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3). 30. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of payments. The relevant parts provide: “Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government's efforts, former slave and forced labourers will receive in total DEM 1,812 thousand million, which constitutes a very positive outcome to the negotiations. The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.” 31. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001. 32. The amended statutes stipulated that the Foundation was to disburse payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation's decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5). 33. Pursuant to paragraph 20 of the amended statutes, the Verification Commission (Komisja Kwalifikacyjna) was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation's management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2). 34. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission (Komisja Odwoławcza). Its president and members are appointed and dismissed by the Foundation's management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3). 35. On 31 December 2006 the Foundation terminated the disbursement of payments under the second scheme. 36. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted Resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the PolishGerman Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation's decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant's eligibility had been established but the benefit was not paid, a claim could arise under civil law. 37. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.” 38. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that: “The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.” In the reasons for its Resolution the Supreme Court found, inter alia, that: “The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...) There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation's refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...) The need for extensive interpretation of the individual's access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished). The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.” | 1 |
train | 001-78894 | ENG | TUR | CHAMBER | 2,007 | CASE OF MOĞUL v. TURKEY | 4 | Violation of P1-1 | null | 4. The applicants were born in 1945 and 1949, respectively, and live in Seferihisar, İzmir. 5. The applicants’ father, Ali Moğul, sold his two houses which were situated in the Seferihisar district to his sons in 1972 and 1973, respectively, by a notary deed. He transferred the possession of the land on which the houses were located to the applicants; however, this land was not registered in the title deeds at that time. The applicants requested that the land be divided into two parts by the Seferihisar Municipality. Subsequently, the Municipality acceded to their request on 25 April 1979. 6. On 12 October 1981 the applicants were issued with title deeds for the plots of land numbered 3 and 4 in Seferihisar, following a cadastral survey conducted in the region. 7. In 1999, a general survey of coastal districts carried out by the National Property Supervisor defined the applicants’ plots of land and houses as falling within the coastline area. 8. On 18 May 2000 the Treasury brought an action against the applicants before the Seferihisar Civil Court of First Instance for the annulment of their title deeds on the ground that their land was located within the coastline area. They claimed that, according to the Coastal Law of 1990, the land in question could not be owned by an individual, but could only be used in the public interest. 9. On 29 June 2001 a group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that it was located within the coastline area. 10. On 19 July 2001 the first-instance court upheld the request of the Treasury and annulled the applicants’ ownership in the title deed registry. 11. The applicants’ requests for an appeal and rectification of this judgment were rejected by the Court of Cassation on 20 February, 22 May and 5 June 2002. 12. On unspecified dates, the Treasury brought further actions against the applicants, for injunctions to prevent any intervention (müdahelenin men-i ve kal davası) by the applicants on the disputed land and the destruction of the adjoining houses. On 15 June 2004 the Seferihisar Civil Court of First Instance accepted this request in relation to the first applicant. This decision has not yet been finalised. The action against the second applicant is still pending before the same court. 13. The relevant domestic law is set out in the Court’s judgments in the similar cases of N.A. and Others v Turkey (no. 37451/97, § 30, 11 October 2005), and Doğrusöz and Aslan v. Turkey (no. 1262/02, § 16, 30 May 2006). | 0 |
train | 001-21930 | ENG | NLD | ADMISSIBILITY | 2,001 | ERDOGAN v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant, Muhittin Erdoğan, is a Turkish national of Kurdish origin, born in 1975 and, at the time of introduction of the application, he was detained in the Netherlands for expulsion purposes. He is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1989, the applicant entered the Netherlands where he stayed until his expulsion to Turkey on 3 May 1993. He returned to the Netherlands on 21 December 1993. On 19 January 1994, the Turkish consular authorities in the Netherlands issued a new Turkish Nüfüs identity card to the applicant. On 2 October 1995, the applicant applied for asylum or, in the alternative, a residence permit on humanitarian grounds. He based his claims, inter alia, on the argument that as a person of Kurdish origin he did not wish to perform his military service in Turkey as he might be sent to south-east Turkey where he would be made to fight his own people. The applicant's requests were rejected by the State Secretary of Justice (Staatssecretaris van Justitie) on 27 November 1995 and the applicant was ordered to leave the Netherlands. The applicant's objection (bezwaarschrift) against this decision was rejected by the State Secretary on 24 September 1996. On 22 October 1996, the applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem against the State Secretary's decision of 24 September 1996. He further requested the Hague Regional Court to issue an injunction on his expulsion pending the appeal proceedings. On 5 September 1997, the Hague Regional Court rejected both the applicant's request for an injunction and his appeal against the decision of 24 September 1996. This decision was notified to the parties on 11 September 1997. On 22 October 1997, the State Secretary issued an order for the applicant's expulsion from the Netherlands. At some unspecified point in time the applicant was expelled to Turkey. He returned to the Netherlands at a later unspecified point in time. On 21 July 1998 and on the basis of a change in the case-law concerning Turkish-Kurdish asylum seekers who had evaded military service in Turkey, the applicant requested the State Secretary to reconsider (heroverwegen) his case. On 22 September 1998, the State Secretary informed the applicant that his request was in essence a new request for asylum and that such a request should be filed at one of the reception centres for asylum seekers or the aliens' department (vreemdelingendienst) in the applicant's place of residency. On 20 October 1998, the applicant filed an objection against the State Secretary's letter of 22 September 1998. On 21 October 1998, the Turkish consular authorities in the Netherlands issued a Turkish passport to the applicant with a validity of one year. On 16 March 1999, the applicant was apprehended as an illegal alien when he presented himself to the Rotterdam aliens' department in order to obtain certain documents required for his intended marriage to his Dutch partner Ms Z. When his particulars, as stated in his passport, were verified in the Aliens Administration System (Vreemdelingen Administratie Systeem), it appeared that he was registered as a person who, on the basis of a decision taken by the Hague Regional Court on 11 September 1997, was no longer entitled to stay in the Netherlands. Although the applicant held a registration card indicating that, as from 5 November 1998, he had reported himself every week to the aliens' department in the asylum seekers' reception centre in De Lier (a town near Rotterdam), his residence status could nevertheless not be sufficiently established and as there were apparently no proceedings pending on a request by the applicant for a residence permit, the applicant was placed in aliens' detention for the purposes of his expulsion (vreemdelingenbewaring) under Article 26 § 1 (a) of the Aliens Act (Vreemdelingenwet) on the same day. Also on 16 March 1999, the applicant requested the Hague Regional Court to issue an injunction on his expulsion pending the determination by the State Secretary of his request for a reconsideration of his first request for asylum. He further filed a second request for asylum or a residence permit on humanitarian grounds and, on this basis, was placed in aliens' detention under Article 26 § 1 (c) of the Aliens Act. On 17 March 1999, the applicant filed an appeal with the Hague Regional Court against his placement in aliens' detention and he requested compensation for the time spent in aliens' detention. On 24 March 1999 and 6 April 1999 the applicant was interviewed by an official of the Ministry of Justice in relation to the grounds for his request for asylum. He claimed, inter alia, that he had been summoned to report for military service in Turkey and that he feared that, as a conscript in the Turkish army, he would be deployed against his own people. On 6 April 1999, after a hearing held on 30 March 1999 in the course of which the applicant was represented by his lawyer, the Hague Regional Court rejected the applicant's appeal of 17 March 1999 as well as his request for compensation. It did not find it established that the applicant's placement in aliens' detention was in violation of the Aliens Act or that, after having balanced the interests involved, it could not reasonably be regarded as justified. The Hague Regional Court noted that, when the applicant had presented himself to the aliens' department on 16 March 1999 in connection with his intended marriage, it had appeared that he was no longer allowed to stay in the Netherlands. It held that this was sufficient indication that the applicant was an illegal alien. The court agreed with the State Secretary that public order required the applicant's placement in aliens' detention given the fact that he had resided illegally in the Netherlands for years, had returned to the Netherlands after having been expelled, had applied for asylum two years after he had returned to the Netherlands in 1993 and had failed to leave the Netherlands after this request for asylum had been rejected. The Regional Court also held that it did not automatically follow from the fact that the applicant reported himself to a reception centre for asylum seekers every week in order to obtain his benefits under the Regulation on Reception of Asylum Seekers (Regeling Opvang Asielzoekers) that he would respect an obligation to report to the authorities on a regular basis, given that he had evaded control for years and that he was now aware of the fact that the authorities were actively pursuing his expulsion. Insofar as the applicant relied on his relationship and cohabitation with his Dutch partner, the Regional Court noted that, according to the record of the applicant's interview held on 24 March 1999, he had been unable to state her name correctly. The Regional Court further held that the argument, advanced by the applicant, to the effect that it could no longer be excluded that persons of Kurdish origin, while doing their military service in Turkey, would be deployed in south-east Turkey, by no means increased the chances of success of his second request for asylum, since additional conditions needed to be fulfilled for that to be the case. Finally, the Regional Court accepted that the State Secretary had valid reasons to suspect that the applicant would seek ways to avoid his expulsion. On 8 April 1999, the State Secretary rejected the applicant's request for asylum or a residence permit on humanitarian grounds and ordered his expulsion from the Netherlands. As a result, the legal basis for the applicant's placement in aliens' detention was changed to Article 26 § 1 (a) of the Aliens Act. On 14 April 1999, the applicant filed an appeal with the Hague Regional Court sitting in Haarlem against the State Secretary's decision of 8 April 1999. As he had been placed in aliens' detention he was not required, like asylum seekers not placed in such detention, first to file an objection (bezwaarschrift) with the State Secretary of Justice before filing an appeal with the Hague Regional Court. As the State Secretary had failed to respond to the applicant's objection of 20 October 1998, the applicant filed an appeal with the Hague Regional Court sitting in Haarlem on 9 August 1999 against this failure to determine his objection timely. On the same day, the applicant filed a second appeal with the Hague Regional Court against the measure of his placement in aliens' detention and he requested compensation for the time spent in aliens' detention. On 31 August 1999, after a hearing held on 24 August 1999, the Hague Regional Court decided on the applicant's appeal of 9 August 1999 against his placement in aliens' detention. Insofar as relevant, it held: “1. The Regional Court considers from the outset that the lawfulness of the measure of placement in aliens' detention has, as such, already been decided in this court's decision of 6 April 1999 which has obtained the force of res iudicata. The only issue to be examined now is the lawfulness of the continuation of the placement in aliens' detention in the circumstances of the present case. 2. ... The <applicant's> representative has ... submitted that the expulsion of Turkish/Kurdish aliens has been suspended in connection with an incident in Turkey, in which an expelled Turkish/Kurdish alien is alleged to have been killed, so that there are no prospects for expulsion and, for this reason, the continuation of the placement in aliens' detention is unlawful. 3. ... 4. The Regional Court considers, with reference to the letter of 31 August 1999 of the State Secretary addressed to the National Co-ordinator for Aliens' Affairs of the Hague Regional Court, that in any event as from that date there are no prospects of expulsion of <the applicant> within a delay that can be regarded as reasonable. On this point, the Regional Court notes that the Ministry of Foreign Affairs, upon a request by the State Secretary of Justice, has conducted an investigation into the backgrounds of the above mentioned incident. Since it was initially assumed that this investigation would only take a relatively short period of time, the Regional Court did not previously see any reason to conclude that there were no longer any prospects for expulsion within a reasonable time. From the aforementioned letter of 31 August 1999 it has, however, become clear that the investigation by <the Ministry of> Foreign Affairs has been delayed, as a consequence of the heavy earthquake in Turkey, to such an extent that expulsion within a reasonable time can no longer be envisaged. The court considers, therefore, that the continuation of the placement in aliens' detention as from 31 August 1999 is unlawful. 5. In relation to the above <considerations>, the Regional Court sees no reason to award compensation.” The Hague Regional Court did, however, find reasons to order that the applicant's legal costs incurred be compensated and, consequently, issued an order for costs against the State Secretary. The applicant was released from aliens' detention the same day. On 28 November 1999, the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the Netherlands for a long period of time (Tijdelijke regeling witte illegalen). On 19 January 2000, the applicant married Ms Z. and, on the basis of his marriage to a Dutch national, applied on 2 February 2000 for a residence permit on grounds of “stay with Dutch spouse”. On 9 February 2000, the Hague Regional Court sitting in Haarlem declared well-founded the applicant's appeal of 9 August 1999 against the State Secretary's failure to determine timely the applicant's objection of 20 October 1998 and ordered the State Secretary to decide on the objection within a period of six weeks. On 14 February 2000, the applicant was informed that he had failed to submit some of the required documents in respect of his request of 28 November 1999. He was invited to complete his application within 14 days. In its decision of 29 June 2000, following a hearing held on 2 May 2000, the Hague Regional Court declared the applicant's appeal well-founded, quashed the State Secretary's decision of 8 April 1999 and ordered the State Secretary to take a new decision on the applicant's request of 16 March 1999 within a period of two weeks. The Hague Regional Court noted that there had been a change in the case-law concerning Turkish-Kurdish asylum seekers on the basis of, inter alia, an official report (ambtsbericht) of the Minister of Foreign Affairs (Minister van Buitenlandse Zaken). The Hague Regional Court found that the conclusion set out in this official report, to the effect that there had apparently been an increase in the chances of Kurdish young men being deployed in south-east Turkey as members of the Turkish armed forces, constituted a relevant new fact in relation to the examination of the applicant's first request for asylum and that, therefore the substance of his second request for asylum had to be examined in full. It was further found established that the applicant had been summoned to report for military service in Turkey and that an order for his apprehension had been issued by the Turkish authorities. On 29 September 2000, the applicant informed the Court that, in the meantime, he had been granted a residence permit on grounds of his marriage to a Dutch national. Article 26 of the Aliens Act, insofar as relevant, provides: “1. If the interests of public order, public policy or national security so require, the following categories of aliens may be detained: a. aliens whose expulsion has been ordered; b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered; c. aliens who are not allowed to reside in the Netherlands by virtue of any of the provisions contained in Articles 8-10 <of the Aliens Act>, pending the decision on an application for a residence permit, a permanent residence permit or leave to enter as refugees. 2. An alien shall not be detained when, and detention shall be terminated as soon as, he intimates that he wishes to leave the Netherlands and is in fact in a position to do so. 3. Detention for the reasons set out in the first sentence of paragraph 1 and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than one month....” An alien whose expulsion has been ordered can, in principle, remain in aliens' detention for an unlimited period of time. The lawfulness of a placement in aliens' detention can, however, be challenged before a court. Where the court is of the opinion that there are no prospects of expulsion within a reasonable time, it can order that the measure of placement in aliens' detention be terminated. It has been established in the case-law of the Legal Uniformity Division (Rechtseenheidskamer) of the Hague Regional Court that the interest of an alien to be released from aliens' detention increases with the passage of time. Where a placement in aliens' detention exceeds a period of six months, it is generally held that the alien's interest in being released is greater than the interest to keep him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control. Although no appeal lies against a decision by the Regional Court in proceedings concerning requests for release from detention for expulsion purposes, an appeal to the Court of Appeal (Gerechtshof) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes. There is no time-limit for the filing of an appeal against a decision of placement in aliens' detention and in principle a person placed in aliens' detention may file as many appeals against this decision as he sees fit. When the lawfulness of a decision of placement in aliens' detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens' detention as from the date of the last judicial decision taken on this point. On 27 July 1999, the State Secretary of Justice requested the Hague Regional Court to suspend the examination of appeals, including requests for injunctions on expulsions, filed by asylum seekers of Kurdish origin, as it had appeared that two such asylum seekers had encountered serious problems after they had been expelled to Turkey. On 31 August 1999, the State Secretary informed the Dutch Parliament that, in view of reports on what had happened to two asylum seekers who had been expelled to Turkey, a policy decision had been taken to suspend temporarily the expulsion of Turkish nationals of Kurdish origin. | 0 |
train | 001-22793 | ENG | GBR | ADMISSIBILITY | 2,002 | COLLINS v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Ms Katie Collins, is a United Kingdom national, who was born in 1966 and lives in Lincoln. She is represented before the Court by Mr I. Wise, counsel practising in London, and Ms S. Hawson, a solicitor practising in Lincoln. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, now aged 36, is microcephalic, has spasticity to her lower limbs and is autistic. She has limited verbal skills and has been assessed as having the mental age of about four and a half years. From 1986, she was resident in a longstay hospital for the mentally handicapped. In about January 1990, she was moved to live in Long Leys Court, a purpose built complex of five bungalows and communal facilities for severely disabled adults which forms a unit within the grounds of St George’s Hospital, Lincoln. At the time of her move, the applicants and others who were also moved at this time were promised a “home for life” at Long Leys Court. In August 2000, the Lincolnshire Health Authority (the “LHA”) issued proposals for consultation which would result in the provision at Long Leys Court ceasing and the site being used for 16 assessment/treatment and forensic beds. It was envisaged that the current residents would be transferred to social care in the community by April 2001. During the period of consultation, the applicant’s parents wrote to the LHA complaining of this intention to renege on its promise to provide a home for life for the applicant at Long Leys Court. The applicant’s parents took the view, as later set out in their judicial review application, that the applicant would be adversely affected by the change to her routine and environment and that the applicant was adamant that she wished to remain in Long Leys Court. On 26 October 2000, the LHA considered the outcome of the consultation process, whose proposals had been supported by the Community Health Council but opposed by the residents’ carers. While they agreed to proposals to transfer provision for the residents to “Social Care Providers” they deferred a decision about the future use of the site and sought legal advice concerning the “home for life” promises allegedly made to the residents. It was acknowledged by the LHA, in face of the consistent statements by the families of Long Leys residents, that there was a possibility that such had been given to some of the residents. The LHA were given advice by solicitors that: “The view is that ‘home for life’ does not necessarily mean a ‘home for life’ at a particular hospital or place of residence; rather a ‘home for life’ by reference to the needs of those individuals being met appropriately. Their need at the time that any decision is made to transfer them to other accommodation must be taken into account as must their own wishes.” On 30 November 2000, the LHA took the decision to stop the provision of long term care beds at Long Leys and to transfer the future care of the residents to the Social Service Directorate, with due regard to working closely with the users of the services, their relatives and carers in the shape and design of new services to replace those long term care beds. The applicant took judicial proceedings through her mother and litigation friend, alleging inter alia that the LHA had failed to respect the promise made to the applicant of a home for life at Long Leys Court, that the LHA had failed to assess her needs prior to deciding to move her and failed to give rational reasons for the decision to resile from the promise. In his judgment of 6 September 2001, the Deputy High Court judge rejected all the applicant’s arguments. He found that the decision reflected the government policy which was to encourage the removal of persons with learning disabilities away from long term care in institutions, particularly where there was no need for the use of health resources, since the view was being taken that it would benefit the individual by promoting their independence, choice and civil rights. The decision was not taken on an erroneous view that all persons in institutional care had to be moved but was based on an assessment of the personal circumstances of the residents in this case. The judge was also satisfied that the authority did properly take into account the strong preference of the applicant and her family that she should continue to live at Long Leys. While the LHA regarded this as a weighty factor, they nonetheless concluded that it would be very much in the interests of the applicant to move into the community as she had no health needs requiring a hospital setting and her autonomy and progress would be enhanced by the move. He referred to the evidence of the consultant psychiatrist, according to whom previous patients moved into community homes had made impressive progress in health, behaviour, social skills and communication, and to his opinion that such a move would have a positive impact. He considered that there was no failure in assessment of the applicant’s situation as the consultant psychiatrist and the LHA were entitled to rely on their experience of the applicant to conclude that she would be able to adjust well to a move with adequate support without seeking a specific psychological assessment of the impact of the change. As regarded the giving of the promise of “a home for life”, the judge found that the local health authority’s approach had accorded with legal requirements of giving due consideration to the promise - they had quite properly taken legal advice on the point – and that they had been entitled to decide to move the applicant in light of their conclusion that she would benefit positively from the move. He concluded: “For similar reasons, I am satisfied that the assessment ... of the benefits to [the applicant] of moving her out of NHS care and the [LHA’s] decision to act on those views, mean that the interference with [the applicant’s] right to respect for her home is justified under Article 8 § 2 of the Convention. The [LHA] are entitled to a degree of deference in relation to such a decision and I cannot say that their decision is a breach of Article 8, in the particular circumstances of [the applicant’s ] case, having regard, again, as I have mentioned, to the fact that moving [the applicant] will promote other aspects of her rights as a citizen in the community.” The applicant applied for permission to appeal against this decision. A single judge of the Court of Appeal refused permission finding that the judge had reached the right decision for the right reasons. The Court of Appeal refused the renewed application on 7 November 2001, finding that the judge had taken into account all relevant matters and that his approach to the issues could not be faulted. | 0 |
train | 001-61334 | ENG | LVA | GRANDCHAMBER | 2,003 | CASE OF SLIVENKO v. LATVIA | 1 | Violation of Art. 8;Not necessary to examine Art. 14+8;No violation of Art. 5-1;Not necessary to examine Art. 5-4;Non-pecuniary damage - financial award | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 14. The facts of the case, as submitted by the parties, may be summarised as follows. 15. The first applicant is Mrs Tatjana Slivenko, born in 1959. The second applicant is her daughter, Ms Karina Slivenko, born in 1981. 16. The applicants are of Russian origin. The first applicant was born in Estonia into the family of a military officer of the Union of Soviet Socialist Republics (USSR). At the age of one month she moved to Latvia together with her parents. Her husband, Nikolay Slivenko, born in 1952, was transferred to Latvia in 1977 to serve as a Soviet military officer. He met the first applicant in Latvia and married her there in 1980. In 1981 the first applicant gave birth to their daughter, the second applicant. The first applicant's father retired from the army in 1986. 17. Latvia regained independence from the USSR in 1991. On 28 January 1992 the Russian Federation assumed jurisdiction over the former Soviet armed forces, including those stationed in the territory of Latvia. 18. On 4 March 1993 the applicants and the first applicant's parents were entered in the register of Latvian residents (“the register”) as “ex-USSR citizens” (see paragraphs 50-56 below). At that time, none of them were citizens of any particular State. In her request to be entered in the register, the first applicant had not indicated that her husband was a Russian military officer. 19. The respondent Government state that, in requesting her entry in the register, the first applicant submitted false information about the occupation of Nikolay Slivenko, stating that he worked at a factory. The respondent Government have submitted a copy of an annex to the first applicant's application for residence in Latvia, including the statement that her husband worked at a factory. 20. The applicants and the third party submit that the document is falsified, and that it does not exist. They also refer to the fact that, during the subsequent proceedings concerning the legality of their stay in Latvia (see paragraphs 34-39 below), the immigration authorities did not refer to any such false information, and the Latvian courts did not establish that the applicants had at any point submitted the information mentioned by the respondent Government. 21. Nikolay Slivenko, who had become a Russian citizen on an unspecified date in the early 1990s, continued his service in the Russian army until his discharge in 1994 on the ground of the abolition of his post. The parties disagree as to the actual date of his discharge: the applicants state that he was discharged on 2 March 1994. They rely on the fact that an order for his discharge was signed and became effective on 2 March 1994. The Russian Government support this conclusion. The respondent Government argue that the first applicant's husband was discharged on 5 June 1994 as it was only on that date that he formally completed his leave; his leave allowance and retirement benefits had been calculated with reference to that date. 22. The treaty between Latvia and Russia on the withdrawal of the Russian troops (“the treaty”) was signed in Moscow on 30 April 1994 and became effective on that date (see paragraphs 64-67 below). 23. According to the respondent Government, even before the signature and entry into force of the treaty, various Latvian and Russian authorities cooperated in establishing the names of the Russian military personnel liable to be removed from Latvia. In this context, on 31 March 1994, the Russian military authorities submitted to the Latvian authorities a list of the Russian military officers in Latvia, including the first applicant's husband, with an accompanying request to prolong his and his family's temporary residence in Latvia. This, the respondent Government contend, made it clear that their stay in Latvia was temporary, and that they would be required to leave. 24. According to the applicants and the Russian Government, the list of 31 March 1994 did not entail any obligation on Nikolay Slivenko to leave Latvia as it was a document solely requesting the prolongation of his temporary stay in Latvia, submitted before the actual signature and entry into force of the treaty. 25. On 7 October 1994 Nikolay Slivenko applied to the Latvian Citizenship and Migration Authority (“the CMA”) for a temporary residence permit in Latvia by reason, inter alia, of his marriage to the first applicant, a permanent resident of Latvia. This was refused on the ground that, as a Russian military officer, he was required to leave Latvia as a result of the withdrawal of the Russian troops in accordance with the treaty. 26. On 29 November 1994 the CMA annulled the applicants' entry in the register on the ground of Nikolay Slivenko's military status. The applicants state that they were not informed about the decision, and that they found out about it only in 1996, in the context of the court proceedings brought by the first applicant's husband (see paragraph 29 below). 27. The respondent Government have also produced a list dated 10 December 1994, which according to them had been submitted to the Latvian authorities by the Russian armed forces. In the list Nikolay Slivenko was included in the category of military personnel who had retired after 28 January 1992. The applicants and the third party contest the authenticity of the list. 28. The respondent Government have further produced a list dated 16 October 1995, which according to them had been sent to the Latvian Ministry of Foreign Affairs by the Russian consulate in Riga. According to the respondent Government, Nikolay Slivenko's name appeared on the list among those Russian military pensioners who had been discharged from the Russian armed forces after 28 January 1992. It was also noted in the list that on 3 August 1994 Nikolay Slivenko had been given housing in the city of Kursk in Russia, and that he had left Latvia on 31 December 1994. The applicants and the third party contest the authenticity of the list. 29. In point of fact, however, the first applicant's husband had stayed in Latvia. He brought a court action against the CMA, claiming that their refusal to issue him with a temporary residence permit was void. On 2 January 1996 the Riga City Vidzeme District Court found in his favour. The CMA appealed against the judgment. 30. On 19 June 1996 the Riga Regional Court allowed the CMA's appeal, finding, inter alia, that Nikolay Slivenko had been a Russian military officer until 5 June 1994 and that the treaty of 30 April 1994 required all Russian officers in service on 28 January 1992 to leave Latvia together with their families. The Regional Court referred, inter alia, to the list of 16 October 1995, which confirmed that he had been provided with accommodation in Kursk, and that he had left Latvia in 1994. He did not bring a cassation appeal against the appellate judgment. 31. On 20 August 1996 the immigration authorities issued a deportation order in respect of the applicants. The order was served on them on 22 August 1996. 32. On that date the local authorities decided to evict the applicants from their flat, which they rented from the Latvian Ministry of Defence. Russian military officers and their families as well as other residents of Latvia lived in the block where the flat was located. The eviction order was not enforced. 33. On an unspecified date in 1996 Nikolay Slivenko moved to Russia, while the applicants remained in Latvia. 34. The first applicant brought a court action in her own name and on behalf of her daughter, claiming that they were in fact permanent residents of Latvia and that they could not be removed from the country. 35. On 19 February 1997 the Riga City Vidzeme District Court found in favour of the applicants. The court held, inter alia, that the first applicant had come to Latvia as a relative of her father, not her husband. As her father had retired in 1986, he could thereafter no longer be regarded as a military officer, and his close relatives, including the applicants, could be entered in the register as permanent residents of Latvia. The court quashed the deportation order in respect of the applicants and authorised their re-entry in the register. 36. The CMA appealed against the judgment of 19 February 1997. On 30 October 1997 the Riga Regional Court dismissed the appeal, finding that the first-instance court had decided the case properly. Upon a cassation appeal by the CMA, on 7 January 1998 the Supreme Court quashed the decisions of the lower courts and remitted the case to the appellate court for a fresh examination. The Supreme Court referred to the fact that the applicants had been provided with a flat in Kursk, and that they were subject to the provisions of the treaty of 30 April 1994. 37. On 6 May 1998 the Riga Regional Court allowed the CMA's appeal, finding that Nikolay Slivenko had been a serving Russian military officer until 5 June 1994. Referring to the fact that he had been given housing in Kursk in 1994 following his retirement from the Russian military, the court decided that he had been required to leave Latvia with his family in accordance with the treaty. The court found that the decision of the immigration authorities to annul the applicants' entry in the register had been lawful. 38. On 12 June 1998 the first applicant was informed by the immigration authorities that the deportation order of 20 August 1996 had become effective upon the delivery of the appellate court's judgment of 6 May 1998. 39. On 29 July 1998, on a cassation appeal by the applicants, the Supreme Court confirmed the decision of 6 May 1998. The Supreme Court stated that Nikolay Slivenko had been discharged from the Russian armed forces on 5 June 1994. The Supreme Court noted that the applicants had been allocated the flat in Kursk in the context of the material assistance provided by the United States of America for the withdrawal of Russian troops. Relying on the fact that Nikolay Slivenko had been discharged from the military after 28 January 1992, the Supreme Court concluded that the applicants, as part of his family, had also been required to leave Latvia in accordance with the treaty. 40. On 14 September 1998 the first applicant requested the CMA to defer execution of the deportation order. That was refused on 22 September 1998. 41. On 7 October 1998 the first applicant lodged with the immigration authorities an appeal against the deportation order, requesting a residence permit and her re-entry in the register. She stated, inter alia, that Latvia was her and her daughter's motherland as they had lived there all their lives and had no other citizenship, and that she was required to take care of her disabled parents who were permanently resident in Latvia. 42. In the late evening of 28 October 1998 the police entered the applicants' flat. They were arrested at 10.30 p.m. on the same date. On 29 October 1998, at 12.30 a.m., a police officer issued an arrest warrant in respect of the applicants on the basis of section 48-5 of the Aliens Act. The warrant stated that the applicants had no valid documents justifying their stay in Latvia, and that the applicants' entry in the register of Latvian residents had been annulled by the Supreme Court's final judgment of 29 July 1998. It was also mentioned in the warrant that the applicants “did not leave Latvia following the judgment, and there were reasonable grounds to suspect that they were staying in Latvia illegally”. The warrant was signed by the applicants. On the basis of the warrant the applicants were immediately detained in a centre for illegal immigrants. 43. Also on 29 October 1998 the Director of the CMA sent a letter to the immigration police, stating that the applicants' arrest had been “premature” in view of the fact that the first applicant had lodged an appeal on 7 October 1998. No reference to domestic law was made in the letter. The Director of the CMA ordered the immigration police to release the applicants. They were released at an unspecified time on 29 October 1998. 44. On 3 February 1999 the applicants received a letter from the Director of the CMA dated 29 October 1998, informing them that they were required to leave Latvia immediately. They were also informed that, if they complied voluntarily with the deportation order, they could thereafter be issued with a visa enabling them to stay in the country for ninety days per annum. 45. On 16 March 1999 the flat of the first applicant's parents was searched by the police in the presence of the second applicant. On the same date, at 9 a.m., a police officer issued a warrant for the second applicant's arrest on the basis of section 48-5 of the Aliens Act. The warrant stated that the second applicant had no valid document justifying her stay in Latvia, and that there were reasonable grounds to suspect that she was staying in Latvia illegally. The order was signed by the second applicant. She was immediately arrested and thereafter detained for thirty hours in a centre for illegal immigrants. She was released on 17 March 1999. 46. On 11 July 1999 the applicants moved to Russia to join Nikolay Slivenko. By that time the second applicant had completed her secondary education in Latvia. On an unspecified date in 2001 the applicants adopted Russian citizenship as former nationals of the USSR. The applicants now live in Kursk, in accommodation which was provided by the Russian defence authorities. After the applicants left Latvia, their flat in Riga was taken back by the Latvian authorities. Meanwhile, the first applicant's parents continued living in Latvia on the basis of their status as “ex-USSR citizens”. 47. According to the applicants, the first applicant's parents are seriously ill, but the applicants have not been able to go to Latvia to visit them. The deportation order of 20 August 1996 prohibited the applicants from entering Latvia for five years. That prohibition expired on 20 August 2001. Towards the end of 2001 the applicants obtained visas permitting their stay in Latvia for no more than ninety days per annum. 48. In view of the fact that Nikolay Slivenko had left Latvia voluntarily, the prohibition on entering Latvia was not extended to him. He was allowed to visit Latvia several times in the period between 1996 and 2001. 49. Latvian laws use the term “citizenship” (pilsonība) to denote the nationality of a person. In the official English translations of the domestic statutes, the term “nationality” is sometimes used in brackets alongside the term “citizenship”. An official English translation of the Aliens Act (Part I) provides, for example, that “an 'alien' [is] a person having the citizenship (nationality) of another State; [a] 'stateless person' [is] a person having no citizenship (nationality)”. 50. Latvian legislation on nationality and immigration identifies several categories of persons, each with its own status defined in a specific Act: (a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act of 22 July 1994 (Pilsonības likums); (b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the dissolution of the USSR but have not subsequently obtained any other nationality – who are governed by the Status of Former USSR Citizens Act of 12 April 1995 (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības”); this group of persons may also be referred to as “ex-USSR citizens”; (c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums); (d) “stateless persons” (bezvalstnieki) within the meaning of the Stateless Persons Act of 18 February 1999 (Likums “Par bezvalstnieka statusu Latvijas Republikā”), read in conjunction with the Aliens Act and, since 1 May 2003, with the Immigration Act which replaced it; (e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens and Stateless Persons (Entry and Residence) Act of 9 June 1992 (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā” – “the Aliens Act”) (before 1 May 2003), and the Immigration Act (after that date). 51. The Citizenship Act is based on two principles: the principle of jus sanguinis and the doctrine of State succession in matters of international and constitutional law. Accordingly, with certain exceptions, only those persons who had Latvian citizenship on 17 June 1940 (the date on which Latvia came under Soviet domination) and their descendants are recognised ipso jure as Latvian citizens (section 2(1)). The fact of having been born within Latvian territory or having been resident there for a long period does not in itself confer Latvian citizenship; accordingly, citizens of the former USSR who arrived in Latvia during the Soviet era (1944-91) and their descendants were not automatically granted Latvian citizenship after Latvia had regained its independence. 52. Furthermore, the Citizenship Act provides for the possibility of becoming a Latvian citizen by means of naturalisation, in accordance with the conditions and procedure laid down in Chapter II of the Act. Persons seeking naturalisation as Latvian citizens must have been lawfully resident in Latvia for at least the past five years, have a legal source of income, pass an examination testing proficiency in Latvian, be familiar with the Latvian Constitution and national anthem, have a basic knowledge of Latvian history, swear an oath of allegiance and, where appropriate, renounce their existing citizenship (section 12). Section 11(1) lists the grounds on which naturalisation may be refused; for example the provision prohibits the naturalisation of persons who “... after 17 June 1940 chose the Republic of Latvia as their place of residence immediately after being discharged from the USSR (Russian) armed forces, and who did not have their permanent residence in Latvia on the date of their conscription or enlistment ...”. 53. In the version in force before 25 September 1998, section 1 of the Status of Former USSR Citizens Act provided: “(1) This Act shall apply to citizens of the former USSR who are resident in Latvia ..., were resident within Latvian territory before 1 July 1992 and are registered as being resident there, regardless of the status of their housing, provided that they are not citizens of Latvia or of any other State, and also to their children below the age of majority, if the latter are not citizens of Latvia or of any other State.” In the version in force since 25 September 1998, section 1 of the Status of Former USSR Citizens Act provides: “(1) The persons governed by this Act – 'non-citizens' – shall be those citizens of the former USSR, and their children, who are resident in Latvia ... and who satisfy all the following criteria: 1. on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence by 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within the territory of Latvia for not less than ten years; 2. they do not have Latvian citizenship; and 3. they are not and have not been citizens of any other State. (2) The legal status of persons who arrived in the Republic of Latvia after 1 July 1992 shall be determined by the Aliens and Stateless Persons Acts. (3) The present Act shall not apply to: 1. military specialists engaged in the operation and dismantling of Russian Federation military [radar equipment] installed in the territory of Latvia, and civilians sent to Latvia for that purpose; 2. persons who were discharged from the armed forces after 28 January 1992, if on the date of their enlistment they were not permanently resident in the territory of Latvia and if they are not close relatives of Latvian citizens; 3. spouses of the persons [mentioned above] and members of their families (children and other dependants) living with them, where, irrespective of the date of their arrival, they arrived in Latvia in connection with the service of a member of the Russian Federation (USSR) armed forces; 4. persons who have received compensation for establishing their permanent residence abroad, regardless of whether the compensation was paid by a Latvian central or local authority or by an international or foreign authority or foundation; or 5. persons who on 1 July 1992 were officially registered as being resident for an indefinite period within a member country of the Commonwealth of Independent States.” Section 2( )2 of the Act prohibits the deportation of “non-citizens”, “save where deportation takes place in accordance with the law and another State has agreed to receive the deportee”. Furthermore, section 5 (which became section 8 on 7 April 2000) provides: “(1) Section 2 ... of this Act shall also [apply to] stateless persons and their descendants who are not and have never been citizens of any State and who, before 1 July 1992, were resident within the territory of Latvia and were registered as being permanently resident there ... (2) Section 2 of this Act shall also apply to nationals of other States and their descendants who were resident within the territory of Latvia before 1 July 1992 and were registered as being permanently resident there ..., provided that they do not have Latvian citizenship ...” Lastly, section 49 provides that international agreements on immigration “concluded by the Republic of Latvia and approved by Parliament” take precedence over national legislation. 54. The relevant provisions of the Aliens Act were worded as follows: Section 11 “Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force from 25 May 1999: 'more than ninety days in the course of one half of a calendar year'], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...” Section 23 “The following may obtain a permanent residence permit: ... (2) the spouse of a Latvian citizen, of a 'permanently resident non-citizen' of Latvia or of an alien or stateless person who has [himself or herself] been granted a permanent residence permit, in accordance [with section] ... 26 of this Act, and the spouse's minor or dependent children ...” 55. When the Aliens Act came into force, it did not contain any provision excluding serving members of the Russian armed forces who had been discharged after 28 January 1992. Regulation no. 297 of 6 August 1996, confirmed by the Act of 18 December 1996, amended section 23 as follows: “Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents. Citizens of the former USSR who acquired the citizenship of another State before 1 September 1996 must apply for a permanent residence permit by 31 March 1997. Citizens of the former USSR who acquired the citizenship of another State after 1 September 1996 must apply within six months of the date on which they acquired the citizenship of that State. This section shall not apply to: 1. military specialists engaged in the operation and dismantling of Russian military [radar equipment] installed in the territory of Latvia, and civilians sent to Latvia for that purpose; 2. persons who were discharged from active military service after 28 January 1992 if on the date of their enlistment they were not permanently resident in the territory of Latvia and if they are not close relatives of Latvian citizens; or 3. spouses of the persons [mentioned above] and members of their families (children and other dependants) living with them, where, irrespective of the date of their arrival, they arrived in Latvia in connection with the service of a member of the Russian Federation (USSR) armed forces.” 56. Persons who are lawfully resident in Latvia are entered in the register of residents and given a personal identification number (personas kods). The functioning of the register, which is kept by the interior authorities, is laid down in the Register of Residents Act of 27 August 1998 (Iedzīvotāju reģistra likums), which replaced the previous Act of 11 December 1991 (Likums “Par iedzīvotāju reģistru”). 57. According to the information provided by the respondent Government, about 900 persons – close relatives of Russian military officers required to leave Latvia under the treaty – were able to legalise their stay in Latvia because those persons were either Latvian citizens or close relatives of Latvian citizens, and had not arrived in Latvia in connection with service in the Soviet armed forces. 58. Section 35 of the Aliens Act lists the circumstances in which a residence permit, even a temporary one, will not be issued. Section 36 of the Aliens Act lists the grounds on which a residence permit may be withdrawn. The fact of having been a serving member of the Russian armed forces after 28 January 1992 does not appear in either of these lists. Point 1 of section 36 provides that a residence permit should be withdrawn where its holder “has knowingly submitted false information to the Department”. Point 3 provides for the same consequences if the holder of a residence permit “arouses reasonable suspicion on the part of the competent authorities that he or she presents a threat to public order and safety or national security”. Point 6 concerns persons who have “entered the service of a foreign State, whether in the armed forces or otherwise, except in cases provided for by international agreements”. Lastly, point 14 concerns persons who have “received compensation for establishing their permanent residence abroad, regardless of whether the compensation was paid by a Latvian central or local authority or by an international or foreign authority or foundation”. 59. Section 38 of the Act provides that the head of the Department of the Interior or of one of its regional offices should issue a deportation order where an alien or stateless person resides within the territory of Latvia without being in possession of a valid visa or residence permit or in any other circumstances listed in Article 36. 60. Sections 39 and 40 provide: “Where a deportation order is issued in respect of a person with dependent relatives in Latvia, the latter must leave with him or her. The deportation order shall not apply to members of his or her family who are Latvian citizens or non-citizens.” “A person shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in the manner prescribed in this section. Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Department, who shall extend the residence permit pending consideration of the appeal. An appeal against the decision of the head of the Department shall lie to the court within whose territorial jurisdiction the Department's headquarters are situated, within seven days after the decision has been served.” 61. Under section 48, where a person has not complied with a deportation order, he or she may be forcefully removed from Latvia by the police. Under section 48-4, the police have the right to arrest a person in order to execute a deportation order. Under section 48-5, the police have the right to arrest a person where no decision to deport him or her has been taken, if: (1) the person has illegally entered the State; (2) the person has knowingly provided false information to the competent authorities in order to receive a visa or residence permit; (3) the authorities have a well-founded suspicion that the person will hide, or that he or she has no permanent place of residence; or (4) the authorities have a well-founded suspicion that the person poses a threat to public order or national security. In such cases the police have the right to detain a person for not more than seventy-two hours, or, where a prosecutor has been notified, for not more than ten days. The police must immediately inform the immigration authorities about the arrest, with a view to their issuing an order for the deportation of the person by the use of force. The person concerned can appeal against that deportation order in accordance with the provisions of section 40 of the Act. By section 48-6, a person in respect of whom such a deportation order has been issued may be detained until the execution of the order, and a prosecutor must be notified of the order. Section 48-7 provides that an arrested person must be immediately informed of the reasons for his arrest, and of his right to have legal assistance. By section 48-10, the police have the right to arrest aliens and stateless persons who reside in Latvia without a valid visa or residence permit. Such persons must be brought to the immigration authorities or to a police remand centre within three hours. 62. Chapter 24-A of the Code of Civil Procedure guarantees the right to appeal to a court against administrative acts breaching personal rights. Article 239-2 § 1 states that a complaint against an action (decision) of a State authority may be submitted to a court, after a hierarchical complaint in this connection has been determined by the competent administrative authority. Under Article 239-3 § 1 of the Code, a complaint to a court may be submitted within one month from the date of the notification of the dismissal of the hierarchical complaint, or within one month from the date of the contested act, provided that the person concerned has not received a decision. Article 239-5 provides that the court must examine the complaint within ten days, having questioned the parties and other persons, if necessary. Pursuant to Article 239-7, if the court considers that the act concerned violates an individual's personal rights, the court should adopt a judgment obliging the authority to remedy the violation. 63. Under the Soviet legislation, a citizen was issued with a “registration” (propiska) at a particular address, by way of a special seal in his passport attesting to his place of permanent residence for the purposes of domestic law. Following the restoration of Latvian independence in 1991, the “registration” system remained effective under the Latvian legislation. 64. The treaty between Latvia and Russia on the conditions and schedule for the complete withdrawal of Russian Federation military troops from the territory of the Republic of Latvia and their status pending withdrawal (“the treaty”) was signed in Moscow on 30 April 1994, published in Latvijas Vēstnesis (Official Gazette) on 10 December 1994, and came into force on 27 February 1995. In the preamble of the treaty the parties stated, inter alia, that by signing the treaty they wished to “eradicate the negative consequences of their common history”. 65. The other relevant provisions of the treaty read as follows: “The Russian Federation's military troops shall leave the territory of the Republic of Latvia by 31 August 1994. The withdrawal of Russian Federation military troops shall concern all members of the armed forces of the Russian Federation, members of their families and their movable property. The closure of military bases in the territory of the Republic of Latvia and the discharge of military personnel after 28 January 1992 shall not be regarded as the withdrawal of military troops. ...” “The Russian Federation shall inform the Republic of Latvia about its military personnel and their families in the territory of Latvia. It shall provide regular information, at least every three months, about the withdrawal of, and quantitative changes in, each of the above-mentioned groups. ...” “The Republic of Latvia shall guarantee the rights and freedoms of Russian Federation military troops affected by the withdrawal, and also of their families, in accordance with the legislation of the Republic of Latvia and the principles of international law.” “This treaty ... shall be applied on a provisional basis from the date of signature and shall come into force on the date of exchange of the instruments of ratification. ...” 66. The conditions for the implementation by Latvia of the above-mentioned treaty are laid down in Regulation no. 118 of 22 April 1995, the relevant parts of the second paragraph of which provide: “The Ministry of the Interior: ... 2.2. shall issue residence permits, after checking the list of military personnel ... to discharged members of the Russian armed forces who were resident within the territory of Latvia on 28 January 1992 and have been registered by the Nationality and Immigration Department ... 2.3. shall issue deportation orders in respect of members of the armed forces who are unlawfully resident in the Republic of Latvia, and shall supervise the execution of such orders; ...” 67. An agreement between Russia and Latvia, also signed on 30 April 1994, concerns the social protection of retired members of the Russian Federation armed forces and their families residing within the territory of the Republic of Latvia. Article 2 of the agreement, which applies principally to persons discharged from the Soviet armed forces before Latvia regained its independence, provides: “The persons to whom this agreement applies shall enjoy their fundamental rights within the territory of the Republic of Latvia, in accordance with the standards of international law, the provisions of this agreement and Latvian legislation. The persons to whom this agreement applies ... and who were permanently resident within the territory of the Republic of Latvia before 28 January 1992, including those in respect of whom the relevant formalities have not been carried out and who are on the lists verified by both parties and appended to this agreement, shall retain the right to reside without hindrance in the territory of Latvia, if they so desire. By agreement between the Parties, any persons who were permanently resident within the territory of Latvia before 28 January 1992 and, for various reasons, have not been included on the lists referred to above may be added to them. ...” | 1 |
train | 001-94875 | ENG | DEU | CHAMBER | 2,009 | CASE OF YILDIZ v. GERMANY | 4 | No violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1963 and lives in Anzing. 5. On 8 August 1994 the applicant had an accident at work – a cut of about one centimetre to his right wrist. The same day he was treated by the company doctor, Dr B. On 10 August 1994 his general practitioner transferred him to hospital. That day and again on 24 August 1994 he was examined by a Dr M. On his second examination Dr M. diagnosed that the applicant was unable to flex his thumb. On 5 September 1994, following a further examination, he had surgery on a muscle, the flexor pollicis longus. 6. On 28 January 1997 the applicant instituted proceedings in the Munich Regional Court against Dr B. and Dr M., seeking an award of compensation for pecuniary and non-pecuniary damage in the amount of 60,000 euros (EUR). He argued that if the defendants had treated him properly, the operation would have been avoided, which in turn would have avoided severe pain and further problems, including reactive depression. 7. In February 1997 the court scheduled a hearing for 21 April 1997. Submissions by the parties followed and in April the case was transferred to a single judge. 8. On 12 May 1997, following the hearing, the Munich Regional Court decided to hear the applicant's general practitioner and scheduled a new hearing for 28 July 1997. On account of the absence of the first defendant's legal counsel, it later postponed it to 24 November 1997. It refused a subsequent request for a further postponement. 9. On 18 August 1997 the applicant's legal counsel ceased taking instructions from the applicant. On 24 October 1997 his new lawyer addressed the court. 10. In November 1997 the parties agreed on written submissions. 11. In February 1998 the applicant's second lawyer also ceased taking instructions from the applicant; subsequently, a new lawyer was appointed and requested access to the files. 12. On 26 March 1998 the applicant requested the court to await the outcome of the social court proceedings, which were also pending, and returned the files. 13. On 13 April 1999 the applicant's third lawyer also ceased taking instructions but was subsequently reappointed in May. 14. On 15 April 1999, upon the request of one of the defendants to continue the proceedings, the court scheduled a hearing for 10 May 1999. At the hearing the parties agreed that the files of the social court proceedings should be consulted. Between June and September 1999, having been granted access to those files, the parties submitted further observations. 15. In October 1999 the applicant asked for an expert to be commissioned. In November 1999 he submitted documents which had until then been missing. 16. In February and April 2000 he requested the court to continue with the proceedings. On 5 April 2000 he was informed that the judge had fallen ill. 17. On 23 June 2000 the Munich Regional Court decided to obtain an expert opinion. On 22 August 2000 the expert submitted his report. 18. The court then set the parties a time-limit for their observations of 18 September 2000. 19. On 5 October 2000 the court decided to obtain a supplementary report. On 31 October 2000, after payment of an advance, it transferred the files to the expert. In January 2001 it asked the expert when he would be submitting his report. 20. On 20 February 2001 the applicant did not attend the examination arranged with the expert. On 16 May 2001 the expert examined the applicant. 21. On 31 May 2001 the court set the expert a time-limit of four weeks for the submission of his report. On 27 June 2001 it set him another deadline of two weeks. On 3 July 2001 the expert submitted the supplementary report. The parties' submissions followed. 22. On 28 August 2001 the court scheduled the hearing for 29 October 2001 and also summoned the expert. It later had to be postponed to 13 November 2001 on account of the absence of one of the legal counsel. 23. On 27 December 2001, following the hearing, the Munich Regional Court rejected the applicant's claim. Relying on the expert opinion obtained and a statement from the applicant's general practitioner, it found that the muscle had not been cut and that no liability on the part of the doctors could be established. 24. On 11 February 2002 the applicant appealed. In April 2002, following an extension of the time-limit, he submitted the grounds of his appeal. 25. On 18 April 2002 the Munich Court of Appeal scheduled the hearing for 16 May 2002. A subsequent request by the applicant for a postponement was rejected. 26. At the hearing the Munich Court of Appeal heard the doctor who had operated on the applicant. 27. The parties' submissions followed. In July 2002 the applicant requested a further expert opinion regarding a number of questions. 28. The court then scheduled a hearing for 17 October 2002 and decided to obtain an additional statement from the expert appointed at first instance, which was submitted on 22 August 2002. 29. On 18 September 2002 the applicant challenged the expert on grounds of bias. On 2 October 2002 the Munich Court of Appeal rejected this challenge. 30. Subsequently, it commissioned another expert. The parties did not object when the expert announced that he would not submit his report before the following summer. 31. In May 2003 the applicant transferred further documents. On 16 June 2003 the expert examined the applicant. 32. On 1 August 2003 the expert submitted his report. The court then scheduled the hearing for 13 November 2003. The applicant again requested the court to obtain another expert opinion. 33. On 27 November 2003, following the hearing, the Munich Court of Appeal dismissed the applicant's appeal and refused leave to appeal on points of law. Relying on the experts' statements, it found that no liability of the defendants could be established. 34. On 29 December 2003 the applicant appealed against the refusal of leave to appeal. On 30 April 2004, following two requests for an extension of the time-limit set, he lodged the grounds of his appeal. 35. On 29 June 2004 the Federal Court of Justice dismissed the applicant's appeal. 36. On 2 August 2004 the applicant lodged a constitutional complaint. 37. On 7 December 2005 the Federal Constitutional Court refused to accept his constitutional complaint for examination. | 0 |
train | 001-23688 | ENG | FRA | ADMISSIBILITY | 2,003 | S.A.R.L. DU PARC D'ACTIVITES DE BLOTZHEIM AND LA S.C.I HASELAECKER v. FRANCE | 1 | Inadmissible | null | The applicants, Parc d’activités de Blotzheim (“PAB”), a limited company (société à responsabilité limitée – “SARL”), and Haselaecker, a non-commercial partnership (société civile – “SCI”), were both incorporated under French law and have their registered office in Blotzheim (France). They were represented before the Court by Mr P. Martin, of the Paris Bar. The French Government (“the Government”) were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The Mulhouse-Rhin-Mines outline development scheme, approved in a prefectoral order of 15 September 1977, made provision for the building of an industrial estate in the vicinity of Basle-Mulhouse Airport (whose premises are situated on land in the French municipalities of Blotzheim, Hésingue, Bourgfelden and Saint-Louis). On 27 April and 3 May 1989 the managing director of PAB (whose memorandum and articles of association were drawn up before a notary on 8 June 1989) submitted a project to the mayor of Blotzheim for the development of industrial, business and service-sector activities on a site within the municipality’s boundaries, adjoining Basle-Mulhouse Airport. On 16 May 1989 Blotzheim Town Council gave the mayor its consent for the sale to PAB of municipal land within the area covered by the project. It also gave its approval for, among other things, the municipality to undertake to waive its right of pre-emption over the land which the company intended to use, a special planning area (zone d’aménagement concerté – “ZAC”) to be created on the site and the procedure for revision of the municipality’s land-use plan (plan d’occupation des sols) to be initiated. By notarial deeds of 30 June 1989 PAB purchased various plots of land in Blotzheim from the municipality. On 11 January 1990 the town council decided to take steps to create a ZAC, to set in motion the appropriate procedure and to revise the land-use plan accordingly. A public consultation meeting was held on 28 February 1990 about the proposal to create the ZAC. On 2 March 1990, in the light of the findings of the consultation process, the town council formally decided to create the ZAC. In the meantime, on 4 July 1989, Basle-Mulhouse Airport’s board of directors had adopted, confidentially, a general development plan in which it was proposed, in particular, to acquire additional land and build a third runway on the same site which the developers of the Blotzheim industrial estate intended to use. On 8 September 1991 PAB submitted its building project to the airport’s board of directors. In a letter to the board dated 1 December 1989 it had emphasised that the project would not hinder the development of the airport’s activities. On 17 April 1990 the board of directors decided to take the necessary steps to set aside the land it required in order to implement its development plan. On 6 December 1989 it had decided to apply to the prefect of the département of Haut-Rhin to set in motion the procedure by which the development plan could be designated as a “project in the public interest”. In an order of 17 May 1990 the prefect of Haut-Rhin designated the development plan as a “project in the public interest” and served formal notice on the municipality of Blotzheim to revise its land-use plan to take the project into account. As the mayor of Blotzheim did not reply within the statutory time-limit, the prefect made an order on 11 July 1990 for the revision of the land-use plan. After Basle-Mulhouse Airport’s board of directors had amended its development plan and the statutory three-year period had expired without the above-mentioned orders having been confirmed, the prefect of Haut-Rhin made further orders on 14 March 1993 (designating the plan as a “project in the public interest” and serving formal notice on the mayor) and 26 October 1993 (requiring the revision of the land-use plan). The municipality of Blotzheim, PAB and SCI Haselaecker applied to the Strasbourg Administrative Court, which in a judgment of 27 October 1995 set aside the decision taken by Basle-Mulhouse Airport’s board of directors on 6 December 1989 and the prefect’s orders of 17 May and 11 July 1990 and 14 May and 26 October 1993. Ruling on a preliminary objection as to admissibility lodged by Basle-Mulhouse Airport, the court held that PAB had an interest in seeking to have set aside the decision taken by Basle-Mulhouse Airport’s board of directors on 6 December 1989 and the subsequent orders, on the ground that prior to that date the municipality of Blotzheim had promised to sell it the land in question. As to the merits, the court pointed out that Basle-Mulhouse Airport was governed by the Franco-Swiss treaty signed in Berne on 4 July 1949, which provided, among other things, for the building of two runways and for the expropriation of 536 ha of land (Articles I and IV of Annex III to the treaty), and that under the treaty, although the airport’s board was empowered to draw up plans to expand the airport, its exercise of that power was subject to the limits laid down in the treaty regarding both the airport’s infrastructure and the maximum area of land to be expropriated. Noting that in the instant case the development plan adopted by the airport’s board had exceeded those limits, the court set aside the decisions in issue. On 25 January 1996 Basle-Mulhouse Airport’s board of directors decided to ask the governments concerned to revise the specifications appended to the Franco-Swiss treaty of 4 July 1949 in accordance with Article 19 of the treaty, and to increase the maximum area that could be expropriated for use by the airport from 536 ha to 850 ha with a view to building a third runway. That proposal was agreed to in an exchange of notes (on 12 and 29 February 1996) between the French Government and the Swiss Federal Council; the agreement came into force on 29 February 1996. On 13 May 1996 the French President issued a decree publishing the agreement. On 12 July 1996 the applicant companies applied to the Conseil d’Etat seeking to have the decree annulled. Observing that the ratification of the Franco-Swiss treaty of 4 July 1949 had been authorised by a law of 1 August 1950, they submitted that in accordance with Article 53 of the Constitution (which provides that “... treaties or agreements ... entailing a financial commitment on the part of the State ... may be ratified or approved only by an Act of Parliament”) and with the principle that power to enact and amend legislation should be vested in the same authority, such an amendment required the legislature’s intervention and could not be carried out by the simplified method of an exchange of notes. They added that the decree in issue and the agreement published in it contravened Article 19 of the treaty (by which “amendments to the articles of association and specifications following a decision by a two-thirds majority of the serving members of the board may be effected by agreement between the two Governments”) in that they went beyond the purpose of the simplified amendment procedure. The companies further submitted that the exchange of notes published by the decree in issue incorrectly stated that the requirements of paragraph 9 of the specifications appended to the treaty had been satisfied. Whereas paragraph 9 made the procedure laid down in Article 19 conditional on the production of a detailed description and estimate – entailing the acquisition by the French State of the land needed for the airport – a significant portion of the 536 hectares of land corresponding to the maximum area that could be expropriated had not been acquired by the French State. Lastly, they argued that the agreement in issue contravened the treaty’s financial clauses. The Conseil d’Etat dismissed the application in a judgment of 18 December 1998. It pointed out that by the Law of 1 August 1950 Parliament had authorised the ratification of the Franco-Swiss treaty of 4 July 1949, which had from the outset provided for the possibility of extending the airport’s premises, and that Parliament should therefore be regarded as having “by that law authorised the expenditure associated with the development and operation of additional structures or facilities designed to compensate for the inadequacy of existing structures or facilities”, so that there had been no breach of Article 53 of the Constitution. As regards the applicant companies’ other submissions, the Conseil d’Etat held: “Although the applicant companies submit that the agreement of 12 and 29 February has a broader purpose than the mere drawing up of an amendment to the specifications appended to the treaty of 4 July 1949 and that, consequently, it could have not been concluded under the simplified procedure provided for in Article 19 of the treaty, the choice of the means by which international treaties and agreements are to be concluded is indissociable from the conduct of diplomatic relations and, accordingly, cannot be challenged in proceedings before the administrative courts. Nor is it the task of the Conseil d’Etat, acting in its judicial capacity, to review the assessment by the French Government and the Swiss Federal Council of whether the requirement to produce a detailed description and estimate, as laid down in paragraph 9 of the specifications appended to the treaty, was satisfied and whether the expansion of Basle-Mulhouse Airport was necessary. Lastly, although the applicant companies criticised the content of the exchange of notes published by the impugned decree in relation to the provisions of the treaty of 4 July 1949, it is not for the Conseil d’Etat, acting in its judicial capacity, to rule on the validity of an international undertaking in relation to other international undertakings.” “The President of the Republic shall negotiate and ratify treaties. He shall be informed of all negotiations leading to the conclusion of an international agreement not subject to ratification.” “Peace treaties, commercial treaties and treaties or agreements relating to the organisation of international affairs, or entailing a financial commitment on the part of the State, or amending legislative provisions, or relating to the status of persons, or entailing the cession, exchange or acquisition of territory, may be ratified or approved only by an Act of Parliament. They shall take effect only after having been ratified or approved. No cession, exchange or acquisition of territory shall be valid without the consent of the populations concerned.” “Treaties or agreements that have been lawfully ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, in respect of each agreement or treaty, to its application by the other party.” “The Minister for Foreign Affairs shall have sole responsibility for ensuring the ratification and publication of international treaties, agreements, protocols and regulations to which France is a signatory or by which France is bound. The same shall apply to the renewal or denunciation of such agreements. ...” “After transmission to the Minister for Foreign Affairs and, where necessary, ratification, the treaties, agreements, protocols and regulations referred to in the preceding Articles, where their implementation is liable to affect the rights or obligations of individuals, shall be published in the Official Gazette of the French Republic. ...” | 0 |
train | 001-22054 | ENG | FRA | ADMISSIBILITY | 2,000 | REZGUI v. FRANCE | 1 | Inadmissible | null | The applicant is a Moroccan national. He was born in 1954 and lives in Le Puy. He was represented before the Court by Mr Michel Gras, of the Le Puy Bar. On 21 November 1996 the applicant was stopped by police for an identity check and taken to the police station where he claims to have been insulted and assaulted. On being released, he went to hospital where he was kept in after being examined. At about 10.30 p.m. a doctor came into his room saying that he was a forensic medical examiner and had come to examine the applicant at the public prosecutor’s request. The applicant refused to submit to the examination and left the hospital to go to a private clinic. On 28 November 1996 the applicant lodged a criminal complaint with the investigating judge alleging assault in the course of his duties by a person exercising public authority, and trespass by the forensic medical examiner. He sought leave to join the proceedings as a civil party seeking damages. On 5 December 1997 the investigating judge issued an order finding that there was no case to answer. The applicant appealed. The Indictment Division upheld the order in a judgment of 17 March 1998. The applicant appealed on points of law against that judgment. In a judgment of 16 December 1998, the Court of Cassation declared the appeal inadmissible on the ground that the applicant had not made out “any complaint that a civil party may lodge under Article 575 of the Code of Criminal Procedure in support of an appeal against the decision of an Indictment Division in the absence of an appeal by the prosecution”. Article 575 of the Code of Criminal Procedure “A civil party shall be barred from lodging an appeal on points of law against judgments of the Indictment Division unless the prosecution lodges an appeal. However, an appeal on points of law by the civil party above shall be admissible in the following circumstances: 1. where the Indictment Division has stated in the judgment that there are no grounds for an investigation; 2. where the Indictment Division has declared the civil party’s action inadmissible; 3. where the Indictment Division has upheld an objection terminating the criminal proceedings; 4. where the Indictment Division has declared, of its own motion, or on an objection by the parties, that it has no jurisdiction; 5. where the Indictment Division has omitted to rule on a charge; 6. where the judgment does not formally satisfy the conditions essential for its legal validity; 7. where a breach of personal rights as defined in Articles 224-1 to 224-5 and 432-4 to 432-6 of the Criminal Code has been alleged.” | 0 |
train | 001-22296 | ENG | GBR | ADMISSIBILITY | 2,002 | HOLDING AND BARNES PLC v. THE UNITED KINGDOM | 1 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Holding And Barnes Plc, is public limited company incorporated in 1964 and with a registered office in Canvey Island, Essex. It is represented before the Court by Mr T. Pittas, a solicitor practising in London. The facts of the case, as submitted on behalf of the applicant, may be summarised as follows. The applicant company is involved in the storage and sale of damaged vehicles. It applied for planning permission to relocate part of its business. On 2 May 2000 the local authority resolved that it was minded to grant planning permission. However, on 25 July 2000 the Secretary of State for the Environment wrote to the Council requesting it to direct the application to him under Section 77 of the Town and Country Planning Act 1990 (see below). The Secretary of State considered that he should exercise his power to “call-in” the applicant’s application because of the nature of the proposed use, the impact it could have on the future economic prosperity of the region, and the proposed site’s location next to hazardous gas storage installations. The applicant challenged the Secretary of State’s power to “call-in” the application as a breach of Article 6 § 1 of the Convention, and the case together with three others raising a similar issue was heard by the Divisional Court on 13 December 2000, which found in favour of the applicants. The Secretary of State appealed to the House of Lords which held, on 9 May 2001, that there had been no breach of Article 6 § 1. Reversing the decision of the Divisional Court, the House of Lords held that, although the Secretary of State was not himself an independent and impartial tribunal when dealing with called in or recovered matters, the crucial question under Article 6 of the Convention was whether there was sufficient judicial control to ensure determination by such a tribunal subsequently. The jurisprudence of the European Court of Human Rights (in particular, the judgment of the Court in Bryan v. the United Kingdom: see below) did not require such control to constitute a rehearing on an application by an appeal on the merits. What was required was that there should be a sufficient review by a court satisfying the requirements of independence and impartiality of the legality of the decisions and the procedures followed. The judicial review jurisdiction of the High Court constituted such a review (R. v. Secretary of State for the Environment, ex parte Holding and Barnes, Alconbury Developments Ltd and Legal and General Assurance Society Ltd, [2001] UKHL 23; [2001] 2 All ER 929). Following the House of Lords’ decision the applicant was forced to abandon part of its relocation plans and substantially to amend its request for planning permission. The Secretary of State granted the amended application on 6 December 2001. Under English law, most applications for planning permission are determined by elected local authorities, with the possibility of appeal to an inspector appointed by the Secretary of State for the Environment. However, under section 77 of the Town and Country Planning Act 1990 (“the 1990 Act”), the Secretary of State has a power to “call-in” planning applications for his own determination. The Secretary of State has a number of other roles in the field of planning, including the development of policy and the provision of guidance to be taken into account by others determining planning applications and the control of development plans for all areas of the country. The Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999, contained in Circular 07/99, contain guidance on the call-in of applications. Paragraph 2 of the Circular advises that the Secretary of State will “maintain his policy of, in general, only calling in for his own determination those applications which raise planning issues of more than local importance”. Under section 77(5) of the 1990 Act, before determining a “called-in” application, at the request of either the applicant or the local authority, the Secretary of State must appoint an inspector to hear oral submissions from both parties. The parties are allowed to call and cross-examine witnesses at these hearings (Town and Country Planning (Inquiries Procedure) (England) Rules 2000: “the 2000 Rules”). Following such a hearing, the inspector will prepare a report in which he or she sets out his or her conclusions and recommendations. If the Secretary of State is inclined to reach a different conclusion because he or she differs from the inspector on any material question of fact or takes into consideration new evidence or new facts, the parties are entitled to be informed before the Secretary of State makes a decision, and must be given the opportunity to make written representations or ask for the inquiry to be reopened to assess the new evidence (2000 Rules, rule 17). The 1990 Act provides in section 288 for judicial review of an order made by the Secretary of State following the call-in procedure: (1) If any person - (a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds - (i) that the order is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that order; or (b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds - (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section.” In the House of Lords’ judgment in the present case, Lord Slynn of Hadley described the scope of judicial review under the 1990 Act as follows: “It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness or natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control.” Lord Slynn continued that he was further of the view that the court had jurisdiction to quash the Secretary of State’s decision for a misunderstanding or ignorance of an established and relevant fact (§§ 50 and 53 of the judgment; and see also Lord Nolan at § 61, Lord Hoffman at § 130 and Lord Clyde at § 169). | 0 |
train | 001-58020 | ENG | GRC | CHAMBER | 1,997 | CASE OF HORNSBY v. GREECE | 2 | Violation of Art. 6-1;Preliminary objection rejected;Just satisfaction reserved | John Freeland;N. Valticos | 6. Mr David Hornsby and his wife Mrs Ada Ann Hornsby were born in the United Kingdom in 1937 and 1939 respectively. They are graduate teachers of English and live on the island of Rhodes. 7. On 17 January 1984 the second applicant applied to the Ministry of Education in Athens for authorisation to establish in Rhodes a private school (frontistirion) for the teaching of English (see paragraph 29 below). On 25 January the Ministry refused the application on the ground that only Greek nationals could be granted such authorisation by the provincial secondary education authorities. 8. On 12 March 1984 Mrs Hornsby tried to deliver a second application in person at the offices of the Dodecanese Secondary Education Authority, but the responsible civil servant refused to acknowledge receipt. After a complaint had been lodged by Mrs Hornsby’s lawyer, the authority informed her on 5 June 1984 that under the Greek legislation in force foreign nationals could not obtain authorisation to open a frontistirion. 9. Mrs Hornsby, considering that making nationality a condition for authorisation to establish a frontistirion contravened the Treaty of Rome of 25 March 1957, applied to the Commission of the European Communities, which referred the case to the Court of Justice of the European Communities. In a judgment of 15 March 1988 (no. 147/86, Commission of the European Communities v. the Hellenic Republic), the Court of Justice held that "by prohibiting nationals of other member States from setting up frontistiria the Hellenic Republic [had] failed to fulfil its obligations under Articles 52 and 59 of the EEC Treaty". 10. On 1 April 1988 Mrs Hornsby made a further application to the Dodecanese Secondary Education Authority and on the same day Mr Hornsby separately sent the authority a similar application. On 12 April 1988 the authority refused both applications for the same reasons as it had given in its reply of 5 June 1984 (see paragraph 8 above). 11. On 15 September 1988 the Director of Secondary Education for the Dodecanese province informed the applicants that the question of granting non-Greeks authorisation to open a frontistirion was being reviewed by the competent authorities. 12. In a letter of 23 November 1988 the applicants requested the Prime Minister to take the necessary steps to ensure compliance with the judgment given by the Court of Justice on 15 March 1988 (see paragraph 9 above). 13. On 8 June 1988 each of the applicants had lodged with the Supreme Administrative Court an application to set aside the decisions of the Dodecanese Director of Secondary Education (see paragraph 10 above). By two judgments of 9 and 10 May 1989 (nos. 1337/1989 and 1361/1989), the Supreme Administrative Court set the decisions aside in the following, identical terms: "... This application seeks annulment of the Dodecanese Director of Secondary Education’s decision ... of 12 April 1988 rejecting the request of the applicant, a British national, for authorisation to set up a frontistirion for foreign-language teaching in Rhodes. Section 68 (1) of Law no. 2545/1940 ... provides: ‘Authorisation to set up a frontistirion shall be granted to natural persons possessing the qualifications required for employment as a teacher in a primary or secondary school in the public system, or having equivalent academic qualifications.’ In addition, Article 18 para. 1 of the Civil Servants Code - Article 2 para. 3 of which also applies to secondary and primary teachers - provides: ‘No one shall be appointed to a civil service post who does not have Greek nationality.’ It appears from these provisions that it is against the law for a non-Greek to be given authorisation to set up a frontistirion for the teaching of foreign languages. Article 52 of the Treaty of 25 March 1957 instituting the EEC ... proclaims freedom of establishment for the nationals of a member State within the territory of another member State, prohibiting all discrimination on the ground of nationality as regards the right to take up activities as self-employed persons and to set up and run businesses. That provision ... has been ‘directly applicable’ in Greek law since 1 January 1981, when the Treaty came into force, without it being necessary to amend Greek legislation beforehand to bring it into line with Community law. The above-mentioned bar preventing non-Greeks from being granted authorisation to set up a frontistirion for the purpose of teaching foreign languages, in so far as it concerns the nationals of the other member States of the European Communities, is contrary to Article 52 of the Treaty (judgment no. 147/86 of the Court of Justice of the European Communities, 15 March 1988, Commission v. the Hellenic Republic), since it has been without legal force, regard being had to the foregoing considerations, since 1 January 1981. Consequently, the impugned decision rejecting the applicant’s request - based on the erroneous premiss that the bar complained of continues to apply to all non-Greeks, without any distinction between the nationals of other member States of the European Communities and the nationals of non-member States - is unlawful and must therefore be set aside. The application under consideration must accordingly be allowed. For these reasons ... The Supreme Administrative Court sets aside the Rhodes Director of Secondary Education’s decision ... of 12 April 1988. ..." 14. On 3 July 1989 two associations of frontistirion owners and three owners of such establishments in Rhodes lodged a third-party appeal (tritanakopi) against judgments nos. 1337/1989 and 1361/1989 with the Supreme Administrative Court. This appeal was dismissed by the Supreme Administrative Court on 25 April 1991. 15. On 8 August 1989 the applicants lodged two further applications for authorisation with the Dodecanese Secondary Education Authority, enclosing the judgments of the Supreme Administrative Court and emphasising that no further delay in granting authorisation could be justified. However, they received no reply. On 27 February 1990 the applicants’ lawyer again applied to the authority. 16. On 28 March 1990 the applicants brought a private prosecution in the Rhodes Criminal Court against the Dodecanese Director of Secondary Education and any other civil servant responsible, relying on Article 259 of the Criminal Code (see paragraph 24 below). On 22 October 1993 the Criminal Court gave judgment against the applicants, holding that even supposing the director had been acting unlawfully when he refused authorisation, the intent required by Article 259 for the elements of the offence to be made out had not been established. 17. On 14 November 1990 the applicants brought proceedings in the Rhodes First Instance Civil Court seeking compensation (Articles 914 and 932 of the Civil Code and sections 104 and 105 of the Introductory Law (Isagogikos Nomos) to the Civil Code (see paragraph 26 below)) for the prejudice they alleged had been caused them on account of the administrative authorities’ refusal to comply with the judgments of the Supreme Administrative Court (see paragraph 13 above). Mr and Mrs Hornsby claimed 30,025,200 and 41,109,200 drachmas (GRD) respectively for pecuniary damage and loss of income, and GRD 100,000,000 for non-pecuniary damage. 18. On 30 January 1992 the Rhodes First Instance Civil Court declared the application inadmissible (judgment no. 32/1992) on the ground that the dispute submitted to it came within the jurisdiction of the administrative courts. 19. On 3 July 1992 the applicants brought an action for damages against the State in the Rhodes Administrative Court. They relied, inter alia, on Article 914 of the Civil Code and section 105 of the Introductory Law to the Civil Code. In addition, they argued that the compensation should cover not only the pecuniary and non-pecuniary damage they had already sustained but also the damage they would continue to sustain until the administrative authorities granted them the authorisation they sought. On 15 December 1995, in judgment no. 346/1995, the Administrative Court accepted that the administrative authorities had unlawfully refused to process Mrs Hornsby’s application for authorisation of 12 March 1984 (see paragraph 8 above) and that after publication of the judgments of the Court of Justice and the Supreme Administrative Court (see paragraphs 9 and 13 above) they had failed to comply with them. However, considering that the applicants had not sufficiently proved the damage they claimed to have sustained, it ordered further investigative measures. 20. On 20 April 1990 the applicants asked the Minister of Education to intervene. They applied to him again on 14 January and 29 July 1991 and to the Minister responsible for managing Cabinet business on 25 October 1991. 21. On 14 January 1993 the Dodecanese Director of Secondary Education informed the applicants that he had written to the Minister of Education to ask if he could grant the authorisation requested, in the light of the Supreme Administrative Court’s judgments of 25 April 1991 (see paragraph 14 above). On 3 May 1993 he informed them that he had again written to the Minister reminding him that two years had already gone by since the above-mentioned judgments of the Supreme Administrative Court and that their application was still pending. He also referred to three previous letters to the Minister which had gone unanswered. 22. A presidential decree (no. 211/1994) published on 10 August 1994 recognised the right of nationals of member States of the European Communities to establish frontistiria in Greece (see paragraph 28 below). However, those who did not possess a Greek secondary school-leaving certificate had to pass an examination in Greek language and history. On 20 October 1994 the Minister of Education asked the Dodecanese Director of Secondary Education to resume consideration of the applicants’ request in the light of Presidential Decree no. 211/1994 and to keep the Ministry informed of further developments. On 11 November 1994 the Director sent the applicants a photocopy of the decree and urged them to take the necessary steps. On 7 February 1996 he wrote to them again expressing his surprise that they had not yet taken the examination they needed to pass in order to obtain authorisation to open a frontistirion and to teach in one. He informed them that it was illegal for them to continue working in a frontistirion (belonging to a Greek national) under the relevant new legislation and asked them to regularise their situation if they wished to avoid application of the statutory penalties. 23. Article 95 para. 5 of the 1975 Constitution provides: "The administrative authorities shall be under an obligation to comply with judgments of the Supreme Administrative Court setting aside their decisions. Breach of that obligation shall engage the responsibility of any authority in breach, according to the provisions of statute law." 24. Article 259 of the Criminal Code provides: A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law." 25. The relevant Articles of the Civil Code read as follows: Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded." In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’s decision and any other measure 26. The following provisions of the Introductory Law (Isagogikos Nomos) to the Civil Code (Law no. 2783/41) are relevant: "The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets." "The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility." 27. Sections 45 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court, of 30 December 1988/9 January 1989, govern applications for judicial review of acts or omissions by the administrative authorities: 1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court. ... 4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority’s failure to issue such decision. The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible. An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately. ..." 1. Except as otherwise provided, an application for judicial review must be made within sixty days of the day following the date of notification of the impugned decision or the date of publication ..., or, otherwise, of the day following the day on which the applicant acquired knowledge of the decision. In the cases provided for in paragraphs 2, 3 and 4 of section 45, time begins to run when the time-limits prescribed in those provisions have expired. ..." 1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure. ... 3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it. 4. In discharging the obligation imposed on them by Article 95 para. 5 of the Constitution, the administrative authorities must comply with the judgments of the Supreme Administrative Court in the light of the circumstances of each case, either by taking positive measures to that end or by refraining from any action contrary to the Supreme Administrative Court’s decision. Failure to do so may entail, in addition to the criminal penalties laid down by Article 259 of the Criminal Code, personal liability in damages. 5. Judgments of the plenary court or the divisions allowing or refusing applications to set aside shall constitute binding authority in respect of the parties to a particular case and also in respect of each case or dispute pending before the judicial or other authorities where the administrative issue determined by the Supreme Administrative Court is decisive for the outcome." 28. The presidential decree of 10 August 1994 on "bringing Greek legislation concerning the setting up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community" provides: "The purpose of the present decree is to bring Greek legislation concerning the setting-up and running of frontistiria ... into conformity with Articles 7, 48, 52, 58 and 59 of the Treaty instituting the European Economic Community, by abolishing all forms of discrimination on the ground of nationality." "In addition to what is provided in section 68 (1) of Law no. 2545/1940 on private schools, frontistiria and boarding-schools, authorisation to set up a frontistirion shall also be granted to nationals of the member States of the European Union, providing that they have the qualifications required by law for such authorisation to be granted to a Greek national. European Union nationals shall be required to produce similar documentary evidence and the certificate prescribed by section 14 (10) of Law no. 1566/1985, which shall be applicable by analogy." "If the applicants ... do not have a Greek secondary school-leaving certificate, they shall be required to produce a certificate attesting that they understand Greek and speak it fluently and have a knowledge of Greek history. In order to obtain such a certificate, applicants must take an examination under regulations laid down by the Minister for Education and Religious Affairs." 29. Section 63 of Law no. 2545/1940 defines a frontistirion as "the organisation in one place of courses for groups of more than five persons, or, regardless of the composition of the groups, for more than ten persons in total per week, which have as their purpose, either to supplement and consolidate instruction forming part of the curriculum for primary, secondary and higher education (the latter whether or not preparatory to university entrance), or to teach foreign languages or music or to provide general training in extra-curricular activities, for not more than three hours a day per group consisting of the same persons". Section 68 of the same Law provides that the setting up of a frontistirion is subject to authorisation which may be granted only to natural persons who hold the qualifications required for employment in the civil service as a teacher in the public-education system. Those qualifications include, according to Article 18 of the Public Servants Code, the possession of Greek nationality. According to Law no. 284/1968, frontistiria for foreign languages may be administered only by persons holding the statutory qualifications; for a definition of those qualifications, reference is made to Law no. 2545/1940, which requires, in particular, the possession of Greek nationality. Greek nationality is also required in the case of all persons teaching in a frontistirion of whatever kind. The only exception to that rule was laid down by Decree no. 46508/1976 of the Minister for Education and Religious Affairs. That decree, which, however, applies only to frontistiria engaged in the teaching of foreign languages, provides: "Each frontistirion may employ only one foreign national if it does not employ more than four foreign-language teachers of Greek nationality. If it employs more than four Greek nationals, it shall be authorised to employ more foreign nationals in the proportion of one foreign national to five Greek nationals." | 1 |
train | 001-22083 | ENG | POL | ADMISSIBILITY | 1,999 | SCISLOSKI v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant is a Polish citizen, living in Ciębłowice Duże, Poland. may be summarised as follows. A. On 21 November 1988 the Tomaszów Mazowiecki District Prosecutor conditionally discontinued criminal proceedings against the applicant instituted on suspicion of his having constructed a building on his farm contrary to the terms of a building permit he had received, considering that the applicant’s offence was of minor importance and that it was not justified to proceed further. On 29 December 1988 the Tomaszów Mazowiecki municipality ordered the applicant to stay the construction works, to draw up an inventory of the works carried out to date and to request the municipality to give an administrative decision allowing for the works to be continued. The municipal authority considered that the applicant had failed to comply with the terms of the building permit in that he had changed the placement of the building on the plot, changed the dimensions of the building, had a basement constructed and had added windows and doors not provided for by the permit. The applicant’s neighbour E.K. appealed against this decision. On 21 January 1989 the municipal office inspected the construction site. On 21 March 1989 the Piotrków Trybunalski Regional Office set the decision of 29 December 1988 aside and ordered that the case be reconsidered. The administrative authority was of the view that the applicable legal provisions required that a building intended to serve for husbandry purposes should be located at least 15 metres from the nearest well. Following the changes effected by the applicant in relation to the building permit, the building was to be situated 9,5 metres from a well located on the adjacent plot of E.K. Moreover, the applicant had enlarged the building and it was planned that it would serve, inter alia, as a pigsty for 30 pigs, instead of 15 as foreseen by the permit. Thus, it was necessary to hold an administrative hearing in order to establish whether the nuisance which these changes could cause to his neighbours would be within the limits prescribed by the construction laws. On 5 May 1989 the Tomaszów Mazowiecki municipality ordered the applicant to partially demolish the building, to bring it into conformity with the original building permit, and to ensure that the distance between the part of the building designed for husbandry and the well on the adjacent plot would be not less than 15 metres. The applicant appealed. On 8 July 1989 the Tomaszów Mazowiecki Regional Office upheld the decision, considering that it was in conformity with the law. On 26 September 1989, the Supreme Administrative Court refused to grant the applicant retrospective leave to appeal against this decision. Apparently the proceedings were reopened later. On 5 March 1991 the Minister of Construction again ordered that the building be demolished. On 6 December 1991 the Supreme Administrative Court upheld this decision. On 23 May 1990, 14 February 1994, 8 April 1994 and 17 January 1995, the Tomaszów Mazowiecki District Office imposed fines on the applicant, in order to compel him to demolish part of the building, in accordance with the decision of 5 May 1989. On 3 October 1994 the Tomaszów Mazowiecki Administrative Offences Board also imposed a fine on the applicant for the regulatory offence of failure to comply with an administrative decision. On 20 January 1995 the Tomaszów Mazowiecki District Office issued an injunction, authorising an outside company to demolish the applicant's building, at the applicant’s expense. The applicant lodged a complaint concerning the enforcement decision with the Regional Office in Piotrków Trybunalski. On 20 February 1995 the decision under appeal was upheld by the Piotrków Trybunalski Regional Office, which first took into consideration the applicant’s failure to comply with the demolition order of 1989. The authority further considered that in view of the fact that the administrative enforcement proceedings had been pending for a long time and that the applicant had not taken any steps to regularise his situation, the administrative authority was justified in ordering the demolition by an authorised company, as provided by the Law on Administrative Enforcement of 1966. The applicant lodged an appeal with the Supreme Administrative Court. On 8 August 1995 the Court refused to entertain the applicant's appeal, considering that under Article 196 § 1 of the Code of Administrative Procedure no appeal to the court lay against an injunction ordering an enforcement of a non-pecuniary administrative obligation, which the party to the proceedings refused to carry out. B. Relevant domestic law 1. Judicial review of administrative decisions Article 196 § 1 of the Code of Administrative Procedure, as applicable at the relevant time, provided that an appeal could be lodged with the Supreme Administrative Court against a second-instance administrative decision on the merits on the ground that the decision was not in conformity with the law. Article 207 § 2 states that the Court could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening. 2. Enforcement of administrative decisions Chapter III of the Administrative Enforcement Act of 1966 (hereafter “the Act”) sets out the principles of administrative enforcement concerning non-pecuniary obligations. Provisions relating to enforcement by way of imposing fines are contained in Part 2, whereas those concerning injunctions to carry out the obligations on behalf and at the expense of the parties to the proceedings are contained in Part 3. Article 119 § 1 of the Act provides that a fine can be imposed in order to compel a person to comply with an obligation to bear or to desist from certain acts, or to carry out certain acts, particularly acts which, due to their nature, cannot be carried out by other persons. Such fines can be imposed repeatedly. Pursuant to Article 127 of the Act, an injunction to carry out an administrative obligation can be issued when the administrative enforcement proceedings are being conducted in respect of a non-pecuniary obligation which can be carried out on behalf of the party and at its expense. The person against whom administrative enforcement proceedings are being conducted is entitled to lodge a complaint against the decisions given in such proceedings with the organ conducting the proceedings. 3. Relevant provisions of the Law on Construction Article 48 of the Law on Construction of 1974 (repeated in the same form in the Law on Construction of 1994, which entered into force on 10 January 1995) provided, insofar as relevant: “The competent organ shall … order that a building, or part of a building, be demolished if it is under construction or has been constructed without an appropriate permit or notification thereof, or in breach of the terms of the permit…” | 0 |
train | 001-81321 | ENG | BGR | CHAMBER | 2,007 | CASE OF MALECHKOV v. BULGARIA | 4 | Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5 | Peer Lorenzen | 6. The applicant was placed in preliminary detention on 3 July 1998 under an order of an investigator on the suspicion of having raped a minor on the previous day, 2 July 1998. The arrest was undertaken on the basis of a complaint filed by the victim whereby she had identified the applicant as one of the persons who had raped her. On the same day, the preliminary detention of the applicant was extended until 6 July 1998 by order of a prosecutor. 7. Based on the complaint filed by the victim and the evidence collected by the police, a preliminary investigation was opened against the applicant on 6 July 1998. On the same day, he was charged with aggravated rape of a defenceless minor perpetrated on two occasions on 2 July 1998 together with another two individuals. By virtue of the same order, confirmed by the Prosecutor's Office later in the day, the applicant was detained on remand. He was presented with the aforesaid order and countersigned it on the same day. 8. On 13 and 15 July 1998 the applicant filed appeals against his detention, which were examined and dismissed by the Pazardzhik Regional Court by decision of 20 July 1998. The court found that because the applicant was charged with a serious intentional offence there was a risk that he might abscond. 9. The charges against the applicant were amended on 14 May and 24 June 1999. On both occasions the detention on remand was maintained on the grounds of the applicant's personality and the seriousness of the offence. 10. On 28 June 1999 the preliminary investigation was concluded with a proposal that an indictment be filed against the accused. 11. The Pazardzhik Regional Prosecutor's Office amended the charges against the applicant on 29 June 1999. 12. The Pazardzhik Regional Prosecutor's Office entered an indictment against the applicant on 7 July 1999 charging him with being an accomplice to the rape of a minor using threats or force (Article 152 § 3 (1), in conjunction with § 2 (1) and § 1 (2) of the Bulgarian Criminal Code). 13. On an unspecified date the victim joined the proceedings as a civil claimant. 14. On 10 or 11 August 1999 the applicant appealed against his detention claiming, inter alia, that he had a permanent address and that the worsening financial situation of his family would preclude any possibility that he might abscond. With a resolution of 10 September 1999 the Pazardzhik District Court decreed that the appeal would be examined at the next court hearing. 15. At a hearing on 4 October 1999 the Pazardzhik District Court dismissed the applicant's appeal. It considered that there were no new circumstances following his previous appeal of July 1998, that he was still charged with a serious intentional offence and, therefore, that there was still a risk that he might abscond, attempt to intimidate the victim and the other witnesses, and obstruct the discovery process in the proceedings. The lack of employment of the applicant was considered a contributory element to the risk that he might abscond. The court did not consider the length of the detention to be a reason onto itself which might justify a reassessment of the justification of the applicant's deprivation of liberty. 16. On 10 November 1999, on appeal by the applicant of 6 October 1999, the Pazardzhik Regional Court upheld the lower court's decision on similar grounds. 17. On 6 December 1999 the applicant filed another appeal against his detention. 18. At the court hearing on the same day, the Pazardzhik District Court dismissed the appeal as it considered that the seriousness of the offence still inferred that he might abscond and re-offend. The court also considered that the length of the applicant's detention could not in itself warrant his release. At the end of the hearing, the court withdrew to deliver its judgment. 19. In a judgment of 7 December 1999 the Pazardzhik District Court found the applicant and his two accomplices guilty as charged. He was sentenced to seven years' imprisonment and ordered to pay damages to the victim. 20. The applicant appealed against the judgment on 4 January 2000 claiming that the imposed sentence was unjustified and unsupported by the evidence in the case. 21. The hearings of 16 and 30 May 2000 before the Pazardzhik Regional Court were postponed due to improper summons of the civil claimant. 22. The applicant's appeal was examined at the next hearing on 27 June 2000. 23. In a judgment of 27 September 2000 the applicant's appeal was dismissed by the Pazardzhik Regional Court. The applicant did not appeal further and the aforementioned judgment became final on 27 October 2000. 24. The applicant was held at the Pazardzhik Regional Investigation Service from 3 July to 10 November 1998. He was then transferred to the Pazardzhik Prison where he remained until 11 January 2001 before being moved to the Sofia Prison. It is unclear when he was released. 25. The applicant claimed, which the Government subsequently challenged, that at this detention facility (1) there had been insufficient fresh air and sunlight in the cells; (2) there had been no exercise or healthy food; (3) hygiene had been lacking; (4) he had been denied access to newspapers, books, radio and television; (5) he could not meet with his representative in private, and (6) he could not maintain an active correspondence. In support of his assertions, the applicant submitted signed declarations from himself and another detainee, Mr D.G. 26. In his declaration, the applicant claimed that he had been held in isolation for the duration of his detention at this facility in a cell which measured 67 sq. m. There had been two wooden beds covered with worn and torn mattresses, blankets and pillows. There had been fleas, cockroaches and mice. There had been no windows and the only fresh air entering the cell had come from the corridor through a grate above the door. There had been only artificial light which had been constantly switched on. The applicant had to satisfy the needs of nature in a bucket inside the cell, the contents of which were removed twice a day. He had access to sanitary facilities twice a day for three to five minutes during which time he had to throw out the bucket and pour himself drinking water in a dirty plastic bottle. The applicant bathed and shaved once a week with cold water. The food had been insufficient and lacked any meat. The applicant received half a kilogram of bread every day. He had to eat without cutlery from dirty plastic dishes. No exercise had been provided and he had not been allowed to read newspapers, magazines and books. 27. Mr D.G., in his declaration, corroborated the applicant's statements. 28. The applicant claimed, which the Government subsequently challenged, that at this detention facility (1) there had been insufficient fresh air and sunlight in the cells; (2) there had been no exercise or healthy food; (3) hygiene had been lacking; (4) he had been denied access to newspapers, books, radio and television; (5) he could not meet with his representative in private, and (6) he could not maintain an active correspondence. The applicant also submitted signed declarations from himself and another detainee, Mr I.S. 29. In his declaration, the applicant stated that the conditions in the Pazardzhik Prison had initially been similar to those at the Pazardzhik Regional Investigation Service, but that they had improved in 1999. In addition and contrary to some of his complaints, he stated that he had been allowed to have visitors, that the food had consisted of meat or fish several times a week, that he had the ability to watch television, listen to the radio and read books and newspapers. The applicant also stated that he had access to other pastimes at this detention facility, that the sanitary facilities had been situated in the cell itself and that pest extermination activities had been undertaken on a regular basis. 30. Mr I.S., in his declaration, corroborated the applicant's statements. 31. The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 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. On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004). 33. 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). 34. In respect of the regime of detention and conditions of detention, 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, §§ 5660, 8 April 2004). 35. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public. 36. The Pazardzhik Prison was visited by the CPT in 1995, while the Pazardzhik Regional Investigation Service was visited both in 1995 and in 2006. The report from the latter visit has not yet been made public. 37. There are also general observations about the problems in all Investigation Service detention facilities in the 1995, 1999 and 2002 visit reports. 38. 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. 39. 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. 40. 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. 41. 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. 42. 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. 43. 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. 44. 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. 45. 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. 46. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements. 47. 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. 48. 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”. 49. 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. 50. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates. | 1 |
train | 001-57808 | ENG | AUT | CHAMBER | 1,993 | CASE OF FEY v. AUSTRIA | 3 | No violation of Art. 6-1 | John Freeland | 6. The applicant, a German national residing at Geeste in Germany, is a pensioner. 7. From 17 to 27 January 1988 he rented a room in Mayrhofen in Austria from a Mrs Rosa Kröll. During this period he told her that his wife was very ill and was undergoing treatment in an Innsbruck hospital. He also claimed that he was expecting to receive payments under a pension scheme in Germany. As a result Mrs Kröll handed over to him 2,500 schillings and waived the rent of 1,500 schillings. Purportedly in the expectation of receiving the above-mentioned payments, the applicant opened an account at a bank in Mayrhofen on 19 January 1988 and, on 22 January, Mrs Kröll gave him a further 600 schillings. 8. On 27 January 1988, Mrs Kröll reported the matter to the police. The Innsbruck Public Prosecutor’s Office (Staatsanwaltschaft) asked, on 8 February 1988, the investigating judge of the Innsbruck Regional Court (Landesgericht) to institute a preliminary investigation concerning the applicant on suspicion of fraud as a recidivist offender. In addition, the prosecutor requested the judge to order his detention on remand on the ground that there was a risk of his absconding. The judge granted these requests on 9 February 1988. Prior to this, the applicant had been detained since 4 February, pending extradition to Germany. On 10 February he was questioned by the investigating judge. 9. The latter sent, on 12 February 1988, a rogatory letter (Rechtshilfeersuchen) to the Zell am Ziller District Court (Bezirksgericht) asking it to put some specific questions to Mrs Kröll as a witness. District Court Judge, Mrs Andrea Kohlegger, did so on 25 February. 10. On 1 March 1988, the Innsbruck Public Prosecutor’s Office dropped one of the fraud charges against the applicant. As a result, the Regional Court no longer had jurisdiction. Accordingly, the prosecutor asked to have the case, which now concerned only the alleged fraud against Mrs Kröll, transmitted to the District Court which had jurisdiction to deal with offences of lesser gravity, that is, according to Article 9 of the Code of Criminal Procedure (Strafprozeßordnung), offences punishable by a fine or a term of imprisonment not exceeding six months. Moreover, on the same date, the prosecutor, in pursuance of Article 451 (1) of the Code, called for the applicant’s conviction on charges of fraud. 11. At the time when the case was referred to the District Court the case-file contained mainly the following items: - criminal information to the Mayrhofen police; - the applicant’s criminal record in Germany; - the order made by the Regional Court’s investigating judge for the applicant’s detention on remand; - a record of the investigating judge’s interrogation of the applicant; - a record of District Court Judge, Mrs Kohlegger’s interrogation of witness, Mrs Kröll; - letters from the applicant to the prosecution, asking it to drop the charges, and to the Regional Court, complaining about his detention on remand; - a note to the effect that the applicant had withdrawn his complaint against detention. 12. During the ensuing period, Judge Kohlegger took the following steps in the applicant’s case: In a letter to the Osnabrück Execution of Sentence Chamber (Strafvollstreckungskammer) in Germany, she enquired why a prison sentence imposed on the applicant had been partly suspended. She received a reply on 1 April 1988. She sent the case-file to the Innsbruck District Court together with a rogatory letter asking it to question the applicant in order to establish whether his expectations as regards the pension payments allegedly due in January 1988, had been justified and to obtain details of his pension or any other revenue from insurance policies. On 17 March 1988, she telephoned the Mayrhofen bank to establish whether any payments had been entered on the account opened by the applicant (see paragraph 7 above); by letter of the same date the bank replied that no payment had so far been recorded. In addition, she telephoned the Provincial Insurance Companies of Hannover and of Oldenburg-Bremen (Germany) in order to find out whether the applicant had ever applied for or received a pension. According to a note in the case-file, prepared by Judge Kohlegger on 18 March 1988, the first of these companies had replied that, under the reference number which the applicant had indicated, a pension had never been requested by him and that no pension benefits had been paid to him; the other company had stated that he had not been granted a pension. On 18 March 1988, she set down the trial hearing for 24 March (Article 451 (4) of the Code of Criminal Procedure). 13. On the latter date a hearing was held by the Zell am Ziller District Court, with Judge Kohlegger sitting as a single judge. The District Prosecutor (Bezirksanwalt) was present, but the applicant’s lawyer at the time did not appear although he had been summoned. The court heard the applicant first, who claimed that he was innocent. It then heard Mrs Kröll as a witness and a police officer replacing a colleague who had visited her house after the applicant’s arrest. Various documents were exhibited (dargetan), including: - the complaint to the police; - the results of the police investigations in the case; - the applicant’s criminal record; - the case-file of the Regional Court (see paragraph 11 above); - the information provided by the Mayrhofen bank and the two German insurance companies and a letter from a third such company. After the court had finished taking evidence, the prosecutor invited it to find the applicant guilty. The applicant asked the court to ascertain that, on 9 April 1987, he had applied to a German insurance company for a pension. The court dismissed this request, finding that the facts in the case were sufficiently clear. 14. By judgment of 24 March 1988, the District Court acquitted the applicant of the fraud charge concerning the 600 schillings which he had received from Mrs Kröll on 22 January 1988 but convicted him of having fraudulently induced her to hand over 2,500 schillings to him and to waive the rent of 1,500 schillings; it sentenced him to three months’ imprisonment and ordered him to pay Mrs Kröll 4,000 schillings. The periods of detention pending extradition and the trial were deducted from the sentence. The judgment, which was signed by Judge Kohlegger, was founded inter alia on Mrs Kröll’s testimony as well as the information obtained from the bank and the insurance companies. 15. The applicant appealed against his conviction and sentence to the Regional Court. He complained, inter alia, that in the proceedings before the District Court, the case had been investigated and tried by the same person. 16. On 20 April 1988 the Review Chamber (Ratskammer) of the Regional Court dismissed several requests for release submitted by the applicant on 6, 12 and 15 March. 17. In a judgment of 13 May 1988, the Regional Court, composed of three members who had previously taken the above-mentioned decision of 20 April 1988, dismissed the appeal. As to his complaint described in paragraph 15 above, the judgment stated: "As a reply thereto, reference should be made to the prevailing legal opinion derived from Articles 451 and 452 of the Code of Criminal Procedure, according to which the trial judge in District Court proceedings may also undertake preliminary inquiries and a judge who has carried out such inquiries will therefore not be excluded from the trial ... . Equally, if a judge acts in a criminal case as a judge ... under a rogatory letter, this will not prevent him from participating at the trial ... . It is not necessary for the [Regional Court] in the present case to make a thorough examination of the extent to which this legal opinion, which is generally applied, corresponds to Article 6 (art. 6) of the Convention ..., since the accused, who became aware of the (alleged) ground of nullity at the latest at the beginning of the trial, did not ... immediately raise this ground before the Zell am Ziller District Court." 18. In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a complaint, the public prosecutor may have preliminary inquiries (Vorerhebungen) carried out by the investigating judge, the District Courts and the police authorities (Article 88 (1) of the Code of Criminal Procedure). Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he shall either apply for the institution of a preliminary investigation (Voruntersuchung) or file a formal accusation (Anklageschrift, Article 90 (1)). However, in District Court proceedings there is no formal process of investigation and no special procedure of committal for trial: all that is required is a written or oral application from the District Prosecutor seeking the imposition of a penalty on the person concerned (Antrag auf gesetzliche Bestrafung, Article 451 (1)). 19. Pursuant to Article 451 (1) and (4), taken together, the District Court may carry out preliminary inquiries, but not formal preliminary investigations like the Regional Court. When undertaking preliminary inquiries a District Court judge must in principle observe the same rules as those that apply to an investigating judge of the Regional Court during preliminary investigations. However, according to Article 452, which sets out exceptions to this principle, the District Court judge has narrower powers with respect to such matters as pre-trial detention, arrest and search for documentary evidence. Under Article 194 (1) of the Code of Criminal Procedure, the District Court judge may order the release of a person held on remand, subject to agreement with the District Prosecutor that the grounds for detention have ceased to exist. The District Court judge shall set a date for the hearing after such preliminary inquiries as may be necessary have been made (Article 451 (4)). 20. Article 68 (2) of the Code of Criminal Procedure, which provides that an investigating judge may not participate in the trial of the case, does not apply to District Court proceedings. In such proceedings, preliminary inquiries are, according to established court practice, carried out by the trial judge. 21. A judge who has acted under a rogatory letter in a case, but not as an investigating judge, is not thereby excluded from trying the same case (see the collection of Supreme Court decisions SSt 30/50). | 0 |
train | 001-4944 | ENG | AUT | ADMISSIBILITY | 1,999 | FIDLER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant, born in 1956, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. Bruckschwaiger, a lawyer practising in Vienna. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the father of two children, who were born out of wedlock in 1986 and 1988, respectively. On 27 January 1992 the Office for Youth and Family (Amt für Jugend und Familie), acting on behalf of the applicant’s children, filed a request with the Favoriten District Court (Bezirksgericht) that the monthly amount of maintenance to be paid by the applicant be raised from Austrian schillings (ATS) 2,500 to ATS 3,300 per child as of 1 January 1992. The applicant made a number of submissions opposing this request. On 19 October 1992 the applicant requested that the monthly amount of maintenance be reduced to ATS 1,000 per child as of 1 November 1992. He also requested legal aid. Subsequently, he requested that the amount be reduced to ATS 700 per child. On 8 March 1993 the applicant requested that he be released from his maintenance obligations for January to March 1993. According to the Government the applicant was heard in an informal manner on 5 February 1993. According to the applicant no such informal questioning took place. He submits that on that date he only handed in documents relating to his legal aid request. On 26 April 1993 the Favoriten District Court decided that the applicant had to pay ATS 3,300 in monthly maintenance per child for 1992. It reserved its decision as regards 1993, noting that further examination was necessary. On 11 May 1993 the applicant filed an appeal. He submitted that the District Court had disregarded his submissions and had failed to hear him. In particular, it had failed to take into account that, following his separation from the mother of his children, he had moved to an apartment which he had to renovate. The costs for this renovation had to be deducted from his income when calculating his maintenance obligations. Further, transport costs for reaching his work place, a newspaper publisher, which could during night shifts only be reached by taxi, also had to be deducted. On 29 June 1993 the Vienna Regional Civil Court (Landesgericht für Zivil-rechtssachen) quashed the District Court’s decision and referred the case back to it. The Regional Court noted that, according to constant case-law, necessary costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. It appeared from the file that the applicant and the mother of his children had lived together until February 1991. The applicant’s submissions that, subsequently, he had moved to another apartment which he had to renovate, thus, needed to be examined. In this respect the Regional Court ordered the District Court to hear the applicant in person and to request him to submit documentary evidence in support of his submissions. Further, it ordered the District Court to establish whether the applicant was unable to reach his workplace by public transport and, if so, what extra costs he incurred. On 30 August 1993 the District Court ordered the applicant to submit the said evidence. On 1 October 1993 the applicant handed in documents including, inter alia, the tenancy agreement relating to the apartment at issue. According to the Government he was informally questioned by a court clerk (Rechtspfleger) on that occasion. The applicant submits that no such questioning took place. On 18 November 1993 the District Court heard the mother of the children and the applicant’s father as witnesses. According to the Government the latter was heard at the applicant’s request. The applicant submits that his father was heard at the request of the children’s mother. On 19 November 1993 the District Court appointed Mr. H. as expert and ordered him to file an opinion as regards the monthly income the applicant could have achieved as of 1 January 1993. On 28 January 1994 the expert submitted his opinion, whereupon the District Court on 1 February 1994 requested to applicant to make comments, which he submitted on 10 March 1994. On 8 March and again on 29 March 1994 the Vienna Regional Civil Court dismissed the applicant’s applications for a time-limit to be set for the District Court’s decision (Fristsetzungsanträge). It noted that, according to the file, the District Court had not yet heard the applicant on the question whether he had to acquire and to furnish an apartment following his separation from the mother of the children concerned and as to the costs incurred. The Regional Court also noted the applicant’s submissions that he had on 1 October 1993 handed in the required documents and had been heard by a court clerk. However, there were no minutes in the file. In any case, such an informal hearing could not serve as a basis for establishing the relevant facts and could, therefore, not substitute a formal hearing. The applicant should in fact have applied for a time-limit to be set for his being summoned to a hearing. As this hearing was necessary for the examination of the case, the matter was not yet ready for decision. Thus, his requests for a time-limit to be set for the taking of a decision could not be granted. In any case, the Regional Court noted that, in view of the duration of the proceedings, the District Court was called upon to summon the applicant speedily to a hearing and to give a decision without further delay. On 13 October 1994 the District Court issued a new decision. It upheld its decision of 26 April 1993 as regards the applicant’s maintenance obligations for 1992 and further ordered him to pay varying amounts of maintenance for 1993 and the first trimester of 1994 as well as from 1 April 1994 onwards. All these amounts exceeded the monthly amount of ATS 2,500 per child which the applicant had had to pay previously. The District Court noted that it based its findings relating to the applicant’s actual or potential income on the file, the submissions of the parties and the expert opinion. The children’s maintenance claims had to be calculated as a certain percentage of the applicant’s income. It dismissed the applicant’s submissions that the costs for renovating his apartment had to be deducted from his income. In this respect the Court relied on the statements of the witnesses heard, namely the children’s mother and the applicant’s father, whom it considered to be credible. It noted that, according to them, the apartment in which the applicant was now living, had been transferred to the applicant’s mother upon her divorce from his father. It had been fully equipped and had not necessitated renovation. Moreover, the applicant had already used this apartment since 1988. As regards his income for 1992, when he had worked at a newspaper publisher, the District Court accepted that an amount of ATS 1,000 per month had to be deducted as extraordinary transport costs for reaching his workplace. Finally, the District Court, referring to the Regional Court’s decision of 29 June 1993, which had ordered it to hear the applicant and to request further documentary evidence, noted that the applicant had presented himself in court and had, after discussion of the factual and legal issues of the case, handed in the required documents. On 31 October 1994 the applicant filed an appeal. He complained in particular that the District Court had failed to summon or hear him. Further, he contested, in general terms, the credibility of the witnesses heard by the Court. He claimed he had lived with the mother of his children until February 1991. Following their separation he had moved to his present apartment, which had been in an extremely bad state, not even having the necessary sanitary equipment, and he was thus bound to carry out considerable renovation works. On 20 December 1994 the Vienna Regional Civil Court, sitting in camera in the absence of the applicant, partly upheld his appeal. It confirmed the applicant’s maintenance obligations for 1992, but reduced his maintenance obligations for 1993 and the first trimester of 1994 on the ground that he had been either on sick leave or unemployed during this period and had taken up new employment within a reasonable time. His maintenance obligations, thus, could not be based on the potential income established by the expert, but had to be based on the amount of the social security benefits he actually received. Further, the Court confirmed the applicant’s maintenance obligations for April to July 1994, but quashed the decision as regards maintenance from 1 August 1994 onwards and referred the case back to the District Court as the applicant had again become unemployed in July 1994. The Regional Court dismissed the remainder of the applicant’s appeal. It recalled that costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. The Regional Court found in particular that, according to the results of the second set of proceedings, the applicant had not acquired his present apartment following his separation from the mother of his children. His father had rented the apartment in 1964, had transferred it to the applicant’s mother in 1970 in the course of divorce proceedings and the latter had assigned her rights to the applicant who had the apartment at his disposal at least as of 1988. Costs for the renovation of an apartment which became periodically necessary were, according to the case-law, not deductible from income for the purpose of calculating maintenance obligations. In the present case, the costs for the renovation of the apartment had not been caused exclusively by the applicant’s separation from the mother of his children and by his leaving the common household. As the applicant no longer claimed that he had only acquired the apartment subsequently to this separation, it was not necessary to hear him as regards the costs of renovating the apartment at issue. Moreover, he had presented himself at the District Court and had submitted documentary evidence. In connection with the other results of the proceedings, this evidence formed a sufficient basis for the decision. On 7 February 1995 the applicant filed an appeal on points of law. He complained in particular that the District Court had, despite explicit orders of the Regional Court, failed to summon or hear him and that the Regional Court had arbitrarily ignored its earlier decisions when dismissing his appeal. On 27 February 1995 the Supreme Court (Oberster Gerichtshof) rejected the applicant’s appeal on points of law, finding that it did not raise any important legal issue within the meaning of S. 14 § 1 of the Non-Contentious Proceedings Act (Ausserstreitgesetz). In further proceedings, the applicant requested on 2 July 1996 that his maintenance obligations be reduced retroactively as of 1 July 1993 to ATS 700 monthly per child. Later, he requested further reductions. He invoked again the costs of renovating his apartment, as well as a change in his financial situation. In a first decision of 3 March 1997 the Favoriten District Court fixed the applicant’s maintenance obligations as of 1 November 1996. On 3 November 1997 the Favoriten District Court changed its decision and reduced the applicant’s maintenance obligations as fixed by the decisions of 20 December 1994 and 3 March 1997 for July 1993 onwards. The amounts fixed for the different periods varied according to the applicant’s financial situation. Further, without giving any specific reasons, the court found that an amount of ATS 2,200 per month for renovating the applicant’s apartment had to be deducted from his income when calculating his maintenance obligations. It does not appear from the file whether these proceedings are still pending. | 0 |
train | 001-6008 | ENG | AUT | ADMISSIBILITY | 2,001 | BAUMANN v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Roland Baumann, is a Austrian national, born in 1969 and living in Graz (Austria). The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 1996 the Leoben Regional Court convicted the applicant of murder and aggravated coercion and sentenced him to 18 years’ imprisonment. In assessing the penalty (Strafbemessung) the court considered as mitigating circumstances the applicant’s “neglected education” (vernachlässigte Erziehung) and his partial confession. As aggravating circumstances, the court took account of his criminal record and the fact that he was a recidivist. On 19 August 1996 the applicant, represented by counsel, filed a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung). In his appeal he complained that the penalty was too high. As to the mitigating circumstances, he maintained that his neglected education was not given sufficient weight. Moreover, the Regional Court should have taken into account his intoxication and his particular mental state at the time of the criminal act due to the fact that he had suspected the victim of having tried to prostitute his wife. The applicant did not make a request to attend the hearing before the Supreme Court. On 30 September 1996 the Supreme Court fixed the hearing date for the applicant’s plea of nullity and his appeal for 5 November 1996. The applicant received a notification, which stated that his counsel would be summoned to the hearing. As to the hearing of the plea of nullity, the notification informed him that he, being detained, could only appear through his counsel. As to the hearing of the appeal, he was informed that he would not be brought to court as the conditions set out in the relevant provisions of the Code of Criminal Procedure (Strafprozeßordung) were not fulfilled. On 5 November 1996 the Supreme Court, after having held a hearing in the absence of the applicant but in the presence of his defence counsel, Ms. S., dismissed his plea of nullity as well as his appeal. As regards the appeal, the court found that the concurrent nature of the offences (Zusammentreffen strafbarer Handlungen verschiedener Art) had to be taken into account as an additional aggravating circumstance. The Supreme Court ruled that a neglected education could not be considered as a mitigating circumstance in the applicant’s case, given that he was an adult and had already been imprisoned several times before. Nor could the applicant’s intoxication be considered a mitigating circumstance because, in view of his previous offences, he should have appreciated the effects alcohol had on him. As to his mental state at the time of commission of the offence, the court relied on an expert’s psychiatric opinion to the effect that the applicant’s personality was characterised by an aggressive attitude as well as coldness and hostility towards other people. Under these circumstances the applicant’s special mental state could not be considered to be a mitigating factor. Furthermore, the Supreme Court noted that the applicant had not put forward any new mitigating circumstances. | 0 |
train | 001-5733 | ENG | NOR | ADMISSIBILITY | 2,001 | LUNDE v. NORWAY | 4 | Inadmissible | Nicolas Bratza | The applicant is a Norwegian national, born in 1963. He is represented before the Court by Mr Christian B. Hjort, a lawyer practising in Oslo, Norway. The applicant is a sociologist and was at the material time employed by the Centre Against Racism (Antirasistisk senter) as a researcher. His application before the Court relates to the publication of a book in respect of which he was found to have defamed Ms I.-M.L. The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows. In the autumn of 1993 the Centre Against Racism published a book, of which the applicant was the author, entitled “At the extremity” (“Aller ytterst”) with the subtitle “Racist groupings in Norway” (“Rasistiske grupperinger i Norge”). It was presented as a product of scientific research conducted by a sociologist, listing and describing the most important racist groupings and persons in Norway and presenting in chart form the connections between the various groupings. This included the names of some 60 persons, one third of whom had been convicted of offences of assault, some of murder, and sentenced to long terms of imprisonment. The book comprised 9 Chapters entitled: 1. Neo-Nazism in Norway, 2. Neo-nazism in Norwegian, 3. The Race Warriors, 4. Norway is Ours, 5. To the Polls against Immigration, 6. Many Rivers Small, 7. Hitler’s Successors or just Silly People (this Chapter was divided into 5 sections: a. Many Differences but these are only Appearances, b. Contacts Abroad, c. Words and Contents, d. Methods, e. Consequences), 8. Society’s Response, and 9. But is that Something to be Concerned About? On the cover of the book, the following is stated about the book’s contents: “AT THE EXTREME is the first book to give an insight into current racist groupings in Norway. Four years ago people in Germany laughed at Neo-Nazis distributing leaflets stating: ‘Germany for the Germans - foreigners get out’. Today the laughter has calmed down. Since the reunification 68 persons have been killed by Neo-Nazis. Many people wonder whether the same could happen in Norway. Are the racist groupings in Norway Hitler’s successors or are they just a gang of silly fools? No other political issue in Norway has roused people to the extent of the debate on immigration. There are today more than twenty racist groupings which are against immigration. Who are they? What do they do? What consequences will this have for Norwegian society? The answers may be found in this book.” The book’s foreword includes the following statement: “Many call them racists. They call themselves Nazis, Neo-Nazis, racists, nationalists or patriots. The labelling may be practical but the substance is more important. The groupings mentioned in this book are described as racists because, by words and deeds, they discriminate and harass individuals and groups on grounds of their ethnic origin, culture or religion. People who form part of racist groups are not of any singular kind. They are not monsters, Hitler fans or mad. They are like ordinary people – almost. Their solution to problems of anxiety and discontent, a channel for their hatred – is to have somebody to blame: If we get rid of immigrants, we may also be able to get rid of social problems such as narcotics, rape, stabbing and social security fraud?” In Chapter 5, at page 60, a certain Ms I.-M.L. is mentioned as follows: “ACROSS PARTY LINES ELECTORAL INITIATIVE (Tverrpolitisk Velgerinitiativ – hereinafter referred to as “the TVI”) The above grouping is actually registered as a party. Its leader is Ms I.-M. L., and it operates from a mailbox at Bjølsen. It is a newsletter party which seldom appears publicly, except for Ms I.-M.L.’s participation in certain TV debates and her leaflets for The Norwegian Association (Den Norske Forening).” The introduction to Chapter 5 stated that there were two registered parties hostile to immigrants in Norway and that “today the parties emerge as an attempt to dress racism with a suit and a tie in order to lure people into believing that it is ‘an entirely ordinary party’ on the same line as other established parties.” In Chapter 7 a., at page 78, it is stated: “As usual in Norwegian society, it is men, in particular elderly men, who are the leaders, except for Ms H.S. (Najonaldemokratene) and Ms I.-M.L. (Tverrpolitisk Velgerforbund). The average age is lower within the militant groupings, but men lead these too. In the skin head milieus there is a stronger presence of young women than in other groups.” Contrary to what is stated above, the TVI was not a registered political party but a grouping of 5 to 6 persons. Under Section 17 of the Parliamentary, County, and Municipal Elections Act 1985 (Act of 1 March 1985 No. 3, Valgloven), the signature of at least 5,000 persons entitled to vote in Parliamentary elections is a prerequisite for the registration of a party by the competent authority, namely the notarius publicus in Oslo. The lists of registered political parties are publicised. At present, there are some 20 registered political parties in Norway. On 26 September 1994 Ms I.-M.L. instituted proceedings against the applicant before the Oslo City Court, claiming that the manner in which she had been mentioned in the applicant’s book constituted unlawful accusations of racism which were defamatory and warranted compensation. She felt particularly aggrieved and defenceless against such research, which was on a different level from ordinary public discussion. The risk of being described as a racist made it impossible to express one’s opinions in a public debate. Following the book’s publication, she feared reprisals from the far left and had had to bear derogatory remarks from neighbours. She was of the firm opinion that she was not a racist. By judgment of 22 May 1995, the City Court acquitted the applicant. While finding that the book had indeed labelled Ms I.-M.L. as a racist it considered that it had been justified. In the City Court’s view the classical lexical definition of racism, which related to the belief that one race was superior to another according to physical and mental distinctions, ought to be supplemented by a more modern understanding of the concept. Ms I.M.L. had, by her own words and public connections, handled questions of immigration policy in a manner which, she should expect, would spark off reactions. Ms I.-M.L. appealed to the Borgarting High Court (Lagmannsrett), which in a judgment of 18 October 1996 found unjustified defamation within the meaning of Article 247 of the Penal Code. The High Court observed that, given the book’s title, in particular its subtitle, the comments on its cover page and the foreword, Ms I.-M.L.’s group, the TVI, was to be perceived as a racist group by the ordinary reader. The description of that group contained no reservation such as that made with respect to the Progress Party. The accusation of racism not only concerned the TVI but also extended to Ms I.-M.L. She was mentioned as the leader of the group and her name was cited twice. The book’s own definition of the concept of racism stated in the foreword should be decisive for the ordinary reader’s understanding of the book. Given the text on the cover page, taking as a starting point German Neo-Nazis and mentioning that 68 people had been killed by such Nazis, the reader would get the impression that the book dealt with clearly racist groups. However, while Ms I.-M.L.’s remarks published by the Aftenposten on 24 August 1990 about the lack of common traditions between Norwegians and many immigrants or foreigners were deemed to border on racism, the High Court did not find that any of her published statements constituted proof of racism, even though they might be perceived as offensive by some immigrants. Her participation in a certain seminar (at which representatives of a number of racist groupings had been present) also fell within her freedom of expression and opinion. The same applied to the fact that, for a short time, she had held a post on the National Party’s interim governing board in Oslo. Since these matters did not justify describing her as a racist the applicant had failed to prove that the accusations made against her were true. Moreover, while the accusations – which encompassed allegations of discrimination and harassment on ethnic grounds – had been expressed in a book written by a researcher for ordinary sale and were serious, the applicant’s investigations into Ms I.-M.L. had been clearly deficient. The information contained in the book about Ms I.-M.L. and her group was erroneous, namely, the allegations that the group TVI had been registered as a political party, that Ms I.-M.L had taken part in television debates and that she had been involved in the distribution of leaflets for the Norwegian Association. It was clear that the applicant had in part confused Ms I.-M.L. with someone else. In the view of the High Court, had the applicant met the requirement of diligence that ought to apply, he would have avoided such errors, with the result that the TVI would have appeared as a particularly marginal group of little public interest. Probably, if the applicant had carried out reasonable research, this group would not even have been mentioned in the book. Considering the case as a whole, the High Court found that the accusation that Ms I.-M.L. was racist, according to the book’s own definition, must be deemed inappropriate, and constituted punishable defamation. Under Section 3-6 of the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969), the High Court ordered the applicant to pay 20,000 Norwegian kroner (NOK) to Ms I.-M.L. in compensation for non-pecuniary damage. The amount awarded took into account that, to the extent that she felt defamed, she had brought this largely on herself by her affirmations and recommendations. She had expressed views which had been offensive to many immigrants and which, if they were to be accepted, would make their situation difficult in Norway. Regard was also had to the fact that the book had brought the applicant little profit. Finally the applicant was ordered to pay NOK 60,000 for her costs before the City Court and the High Court. On 27 February 1997 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal. | 0 |
train | 001-80725 | ENG | POL | CHAMBER | 2,007 | CASE OF GLADCZAK v. POLAND | 4 | No violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1961 and lives in Gdynia. 5. On 28 October 1996 the applicant was arrested on suspicion of having committed armed robbery while acting in an organised criminal gang. 6. On 30 October 1996 he was brought before the Gdańsk Regional Prosecutor and charged with armed robbery, kidnapping and extortion. On the same date the Gdańsk District Court remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question while acting in an organised criminal gang. It held that there was a risk that the applicant might obstruct the proceedings or abscond. It further relied on the severity of the anticipated penalty. 7. Later, several other persons were detained and charged in connection with the same investigation conducted by the Department of Organised Crime of the Gdańsk Regional Prosecutor's Office. 8. On 16 January 1997 the Gdańsk Regional Court prolonged his detention until 28 April 1997. 9. On 16 April 1997 the Gdańsk Court of Appeal ordered that the applicant be kept in custody until 29 July 1997. It relied on the reasonable suspicion that the applicant had committed the offences in question and the gravity of the charges. It also had regard to the number of suspects and the need to obtain further evidence. 10. On 16 July 1997 the Court of Appeal extended the applicant's detention until 27 October 1997. It found that there was a reasonable risk that the applicant might go into hiding or obstruct the proceedings. It also relied on the severity of the anticipated penalty. Lastly, it noted that further prolongation of the investigation was not attributable to the prosecuting authorities, but resulted from the fact that further suspects had been identified and arrested. Furthermore, the prolongation was due to a delay in the preparation of some expert reports and the need to request legal assistance from the German authorities. 11. On 17 September 1997 the Supreme Court prolonged the applicant's detention until 31 December 1997. It found that there was a reasonable risk that the suspects might intimidate witnesses, given the nature of the charges against them. It further observed that the investigation could not be terminated on account of the prolonged preparation of an expert report and the need to hear a witness, W.B., who was serving his prison sentence in Germany. 12. On 28 November 1997 the prosecution filed a bill of indictment with the Gdańsk Regional Court. The applicant was charged with, inter alia, armed robbery, kidnapping, extortion and inflicting bodily harm which had been committed while being a member of an armed organised criminal gang. The bill of indictment specified that the applicant was a recidivist offender. There were 16 defendants in the case, all charged with numerous counts of armed robbery and extortion. 13. On 7 January 1998 the Gdańsk Regional Court ordered that the applicant be held in custody until 21 September 1998. In addition to the grounds previously invoked, it relied on the complexity of the case and the number of defendants. 14. On 24 February 1998 the trial court held the first hearing. It subsequently held some 56 hearings in the case. 15. On 17 September 1998 the Regional Court extended his detention on remand until 21 October 1998. 16. On 6 October 1998 the Supreme Court prolonged the applicant's pre-trial detention until 30 January 1999. It observed that the fact that the trial had not been terminated could not be attributed to the authorities, given the volume of evidence and the fact that some hearings had to be cancelled as the defendants' counsel or witnesses had not appeared. It further considered that the applicant had been charged with the commission of the crimes for which he was liable to a sentence of imprisonment exceeding 8 17. On 19 January 1999 the Supreme Court ordered that the applicant and his 9 co-defendants be kept in custody until 30 June 1999. It relied on the fact that witnesses had informed the trial court about having been threatened by the defendants. It also had regard to the severity of the anticipated penalty and the presumption established by Article 258 § 2 of the Code of Criminal Procedure. Furthermore, the Supreme Court considered that the prolongation of the detention beyond the statutory time-limit of two years was justified by the complexity of the case and the volume of evidence to be heard. In that respect, it also observed that in December 1998 the trial court had been prevented from hearing evidence on account of the absence of two defence counsel. 18. On 2 June 1999 the Supreme Court prolonged the applicant's detention until 31 December 1999. It noted that the trial was being efficiently conducted and that it had not been terminated for reasons which were attributable to the defendants and their counsel. It noted in particular that the defendants had attempted to intimidate witnesses and protract the trial. Further, it had regard to the nature of the charges and the severity of the likely penalty. 19. On 14 December 1999 the Regional Court convicted the applicant of armed robbery, kidnapping, extortion and inflicting bodily harm and sentenced him to 9 years' imprisonment and a fine. 20. Further decisions on the prolongation of the applicant's detention were given by the Regional Court on 21 December 1999 (ordering his continued detention until 30 June 2000) and 21 June 2000 (extending that period until 30 November 2000). 21. On 11 August 2000 the applicant was served with a copy of the Regional Court's judgment. He subsequently appealed against that judgment. 22. On 22 November 2000 the Gdańsk Court of Appeal prolonged the applicant's detention until 31 January 2001. On 17 January 2001 his detention was extended until 31 March 2001. 23. On 6 March 2001 the Court of Appeal held a hearing. 24. On 7 March 2001 the Court of Appeal quashed the first-instance judgment in respect of the applicant and remitted the case for retrial. 25. On 14 March 2001 the Court of Appeal ordered that the applicant and his 11 co-defendants be held in custody until 30 June 2001. Having regard to Article 258 § 2 of the Code of Criminal Procedure, it observed that the applicant might attempt to obstruct the proceedings given the likelihood of a severe penalty being imposed on him. It also relied on the nature of the charges. 26. On 19 June 2001 the Gdańsk Regional Court held the first retrial hearing. It subsequently held some 20 hearings. 27. On 19 June 2001 the Court of Appeal prolonged his detention until 30 September 2001. It noted that continuation of that measure was necessary in order to secure the proper conduct of the proceedings, given the severity of the anticipated penalty. 28. On 28 September 2001 the Gdańsk Regional Court ordered that the applicant and 11 of his co-defendants be kept in custody until 30 December 2001. It found that the applicant's continued detention was necessary in order to prevent the applicant from interfering with witnesses. On 10 October 2001 the Court of Appeal dismissed the applicant's appeal against that prolongation. Referring to Article 5 § 3 of the Convention, it observed that the applicant' crimes, and thus his continued detention was justified on public interest grounds. 29. On 28 December 2001 the Regional Court prolonged the applicant's detention until 30 March 2002. It held that following the Court of Appeal's instructions most of the witnesses who had given evidence at the original trial had to be heard again. In that case there was a reasonable risk that the defendants might interfere with witnesses. In addition, the court held that given the gravity of the charges and the likelihood that severe penalties would be imposed on them, the defendants might obstruct the proceedings by going into hiding. On 23 January 2002 the Gdańsk Court of Appeal upheld that decision. It considered, inter alia, that the Regional Court had attempted to examine the case within a reasonable time, but there had been significant delays in the trial which were attributable to the defendants or their counsel. In this respect, it pointed out to the obstructive conduct of all the defendants on 18 December 2001 which had prevented the Regional Court from holding a hearing on that day. On the other hand, the Court of Appeal instructed the Regional Court to assess the length of detention of each defendant separately. It pointed out that the further prolongation of the detention of those defendants who were not simultaneously serving prison sentences could not be accepted in the long term. 30. Subsequently, the Regional Court prolonged the applicant's detention on 15 March 2002 (until 30 June 2002) and 21 June 2002 (until 30 September 2002). It invoked the same grounds as in its previous decisions. The applicant appealed against the latter decision. 31. On 31 July 2002 the Court of Appeal altered the Regional Court's decision and ordered that the applicant be released. It underlined that the applicant's detention on remand had been exceptionally long and thus lost its provisional nature. Having regard to the current progress of the trial, the court observed that it was not possible to predict when the proceedings would be terminated. Furthermore, it noted that 7 out of 10 co-defendants were serving long-term prison sentences. 32. Prior to his release, the applicant filed numerous but unsuccessful applications for release and appealed, likewise unsuccessfully, against the decisions prolonging his detention. He maintained that the length of his detention was excessive. 33. It appears that the criminal proceedings against the applicant are still pending. 34. From 27 March 2000 to 15 November 2002 the applicant served a prison sentence imposed on him in a separate set of proceedings. 35. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) at the material time are stated in the Court's judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-45, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 2-23, 4 August 2006. | 0 |
train | 001-91704 | ENG | RUS | GRANDCHAMBER | 2,009 | CASE OF BYKOV v. RUSSIA | 2 | Violation of Art. 5-3;Violation of Art. 8;No-violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen | 8. The applicant was born in 1960 and lives in Krasnoyarsk. 9. From 1997 to 1999 the applicant was chairman of the board of the Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he was a major shareholder and an executive of a corporation called OAO Krasenergomash-Holding and a founder of a number of affiliated firms. He was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly. 10. In September 2000 the applicant allegedly ordered V., a member of his entourage, to kill S., the applicant's former business associate. V. did not comply with the order, but on 18 September 2000 he reported the applicant to the Federal Security Service of the Russian Federation (“the FSB”). On the following day V. handed in the gun which he had allegedly received from the applicant. 11. On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation in respect of the applicant on suspicion of conspiracy to murder. 12. On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence of the applicant's intention to murder S. 13. On 29 September 2000 the police staged the discovery of two dead men at S.'s home. They officially announced in the media that one of those killed had been identified as S. The other man was his business partner, I. 14. On 3 October 2000 V., acting on the police's instructions, came to see the applicant at his estate. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission. He was received by the applicant in a “guest house”, a part of the estate connected to his personal residence. In accordance with the instructions, V. engaged the applicant in conversation by telling him that he had carried out the assassination. As proof of his accomplishment he handed the applicant several objects taken from S. and I.: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S. and I. and 20,000 United States dollars (USD) in cash. At the end of the conversation V. took the cash, as suggested by the applicant. The police obtained a sixteen-minute recording of the dialogue between V. and the applicant. 15. On 4 October 2000 the applicant's estate was searched. Several watches were seized, including those belonging to S. and I. A chemical analysis was conducted and revealed the presence on the applicant's hands of the chemical agent which had been used to mark the feasibility study. The applicant was arrested. 16. On 27 February 2001 the applicant complained to the Prosecutor of the Severo-Zapadnyy District of Moscow that his prosecution had been unlawful because it involved numerous procedural violations of his rights, including the unauthorised intrusion into his home and the use of the radio-transmitting device. On 2 March 2001 the prosecutor dismissed his complaint, having found, in particular, that the applicant had let V. into his house voluntarily and that therefore there had been no intrusion. It was also found that no judicial authorisation had been required for the use of the radio-transmitting device because in accordance with the Operational-Search Activities Act, it was only required for the interception of communications transmitted by means of wire channels or mail services, none of which had been employed in the covert operation at issue. 17. Following the applicant's arrest on 4 October 2000, on 6 October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered his detention during the investigation, having found that it was “in accordance with the law” and necessary in view of the gravity of the charge and the risk that the applicant might influence witnesses. Further extensions were ordered by the competent prosecutor on 17 November 2000 (until 21 December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the applicant's continued detention were the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to a court. 18. On 26 January 2001 the Lefortovskiy District Court of Moscow examined the applicant's appeal against his continued detention on remand and confirmed the lawfulness of his detention. The court referred to the gravity of the charge and noted that this measure had been applied in accordance with the law. The applicant lodged a further appeal, which was also dismissed by the Moscow City Court. 19. In view of the forthcoming expiry of the term of the applicant's detention, its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. The applicant challenged the extensions before the court. 20. On 11 April 2001 the Lefortovskiy District Court of Moscow declared that the applicant's detention until 4 June 2001 was lawful and necessary on account of the gravity of the charge. The applicant lodged an appeal with the Moscow City Court, which was dismissed on 15 May 2001. The appeal court considered the applicant's detention lawful and necessary “until the bill of indictment had been submitted or until the applicant's immunity had been confirmed”. 21. On 22 May 2001 the Deputy Prosecutor General extended the applicant's detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation. 22. On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. On 7 September 2001 the court scheduled the hearing for 26 September 2001 and authorised the applicant's further detention without indicating any reasons or the length of the extension. On 3 October 2001 the Moscow City Court examined and dismissed an appeal by the applicant, upholding his continued detention without elaborating on the reasons. 23. On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant's further detention, citing no reasons. The court did not indicate the length of the prospective detention. It again reviewed the lawfulness of the applicant's detention on 4 January 2002 but found that it was still necessary owingAn appeal by the applicant to the Moscow City Court was dismissed on 15 January 2002. 24. Further applications by the applicant for release were examined on 23 January, 6 March, 11 March and 23 April 2002. As before, the Meshchanskiy District Court of Moscow refused his release, citing the gravity of the charge and the risk of his evading trial and influencing the witnesses. The applicant was released on 19 June 2002 following his conviction (see paragraph 45 below). 25. On 3 October 2000, immediately after visiting the applicant in the “guest house”, V. was questioned by the investigators. He reported on the contents of his conversation with the applicant and submitted that he had handed him the gun, the watches and the feasibility study. He was subsequently questioned on 12 October, 9 November, 8 December and 18 December 2000. 26. The applicant was questioned as a suspect for the first time on 4 October 2000. From October to December 2000 he was questioned at least seven times. 27. On 10 October 2000 the applicant and V. were questioned in a confrontation with each other. The applicant's legal counsel were present at the confrontation. The statements made by the applicant on that occasion were subsequently summarised in the indictment, of which the relevant part reads as follows: “At the confrontation between A.P. Bykov and [V.] on 10 October 2000 Bykov altered, in part, certain substantive details of his previous statements, as follows. [He] claims that he has been acquainted with [V.] for a long time, about 7 years; they have normal relations; the last time he saw him was on 3 October 2000, and before that they had been in contact about two years previously. He has never given any orders or instructions to [V.], including any concerning [S.]. When [V.] came to see him on 3 October 2000 he began to tell him off for coming to him. When he asked [V.] who had told him to kill [S.] he replied that nobody had, he had just wanted to prove to himself that he could do it. He began to comfort [V.], saying that he could help with his father; [he] did not suggest that [V.] flee the town [or] the country, and did not promise to help him financially. He did not instruct [V.] on what to do if [V.] was arrested; he asked him what was going to happen if he was arrested; [V.] said that he would tell how it all happened and would confess to having committed the crime, [and the applicant] approved of that. Concerning K., Bykov stated that this was his partner who lived and worked in Switzerland; he admitted de facto that he had spoken to him on the phone at the beginning of August ... but had given him no directions about [V.]” 28. On 13 October 2000 the applicant was charged with conspiracy to murder. Subsequently the charges were extended to include conspiracy to acquire, possess and handle firearms. 29. On 8 December 2000 two appointed linguistic experts examined the recording of the applicant's conversation with V. of 3 October 2000 and answered the following questions put to them: “1. Is it possible to establish, on the basis of the text of the conversation submitted for examination, the nature of relations between Bykov and [V.], the extent of their closeness, sympathy for each other, subordination; how is it expressed? 2. Was Bykov's verbal reaction to [V.]'s statement about the 'murder' of [S.] natural assuming he had ordered the murder of [S.]? 3. Are there any verbal signs indicating that Bykov expressed mistrust about [V.]'s information? 4. Is it possible to assess Bykov's verbal style as unequivocally aiming at closing the topic, ending the conversation? 5. Are there any identifiable stylistic, verbal signs of fear (caution) on Bykov's part in relation to [V.]?” 30. In respect of the above questions the experts found: – on question 1, that the applicant and V. had known each other for a long time and had rather close and generally sympathetic relations; that V. had shown subordination to the applicant; that the applicant had played an instructive role in the conversation; – on question 2, that the applicant's reaction to V.'s information about the accomplished murder was natural and that he had insistently questioned V. on the technical details of its execution; – on question 3, that the applicant had shown no sign of mistrusting V.'s confession to the murder; – on question 4, that the applicant had not shown any clear signs of wishing to end or to avoid the conversation; – on question 5, that the applicant had not shown any fear of V.; on the contrary, V. appeared to be afraid of the applicant. 31. On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file. 32. On 27 August 2001 the case was referred to the Tushinskiy District Court of Moscow. 33. On 22 October 2001 the Tushinskiy District Court declined jurisdiction in favour of the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that court's territorial jurisdiction. 34. On 16 December 2001 V. made a written statement certified by the Russian consulate in the Republic of Cyprus repudiating his statements against the applicant. He submitted that he had made those statements under pressure from S. Two deputies of the State Duma, D. and Y.S., were present at the consulate to witness the repudiation. On the same day they recorded an interview with V. in which he explained that S. had persuaded him to make false statements against the applicant. 35. On 4 February 2002 the Meshchanskiy District Court of Moscow began examining the charges against the applicant. The applicant pleaded not guilty. At the trial he challenged the admissibility of the recording of his conversation with V. and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination. Furthermore, he claimed that the recording had involved unauthorised intrusion into his home. He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with V. disclosed prior knowledge of a murder conspiracy. 36. During the trial the court dismissed the applicant's objection to the covert operation and admitted as lawfully obtained evidence the recording with its transcript, the linguistic expert report, V.'s statements, and the evidence showing that the applicant had accepted the feasibility study and the watches from V. It dismissed the argument that there had been an unauthorised intrusion into the applicant's premises, having found, firstly, that the applicant had expressed no objection to V.'s visit and, secondly, that their meeting had taken place in the “guest house”, which was intended for business meetings and therefore did not encroach on the applicant's privacy. The court refused to admit as evidence the official records of the search at the applicant's estate because the officers who had conducted the search on 4 October 2000 had not been covered by the authorisation. 37. The following persons were examined in the oral proceedings before the court: S. explained his relations with the applicant and their conflict of interests in the aluminium industry. He confirmed that he had participated in the covert operation; he also confirmed that in 2001 V. had told him that he had been paid off to withdraw his statements against the applicant. Twenty-five witnesses answered questions concerning the business links of the applicant, V. and S. with the aluminium plant and other businesses in Krasnoyarsk; the relations and connections between them; the existence of the conflict of interests between the applicant and S.; the events of 3 October 2000, namely the arrival of V. at the “guest house”, his conversation with the applicant and the handing of the documents and the watches to the applicant; and the circumstances surrounding V.'s attempted withdrawal of his statements against the applicant. Seven experts were examined: a technical expert gave explanations about the recording of data received by way of a radio-transmitting device; a sound expert explained how a transcript of the recording of the applicant's conversation with V. had been produced; two expert linguists submitted that they had used both the tape and the recording transcript in their examination; an expert psychologist answered questions concerning his findings (evidence subsequently excluded as obtained unlawfully – see paragraph 43 below); and two corroborative experts upheld the conclusions of the expert linguists and the sound experts. Seven attesting witnesses answered questions concerning their participation in various investigative measures: the receipt of the gun handed in by V., the copying of the video and audio tapes, the treatment of the material exhibits with a chemical agent, the “discovery of the corpses” in the operative experiment, and the house search. Four investigation officers were examined: an FSB officer submitted that on 18 September 2000 V. had written a statement in his presence that the applicant had ordered him to kill S., and had handed in the gun; he also explained how the operative experiment had been carried out; two officers of the prosecutor's office and one officer of the Interior Ministry also described the operative experiment and explained how the copies of the recording of the applicant's conversation with V. had been made. 38. On 15 May 2002 during the court hearing the prosecutor requested to read out the records of the questioning of five witnesses not present at the hearing. The statements made by V. during the pre-trial investigation were among them. 39. The applicant's counsel said that he had no objections. The court decided to grant the request, having noted that “the court took exhaustive measures to call these witnesses to the court hearing and found that ... V.'s whereabouts could not be established and he could not be called to the courtroom even though a number of operational search measures were taken by the FSB and an enquiry was made to the National Central Bureau of Interpol by the Ministry of the Interior ...”. These statements were admitted as evidence. 40. The court also examined evidence relating to V.'s attempted withdrawal of his statements against the applicant. It established that during the investigation V. had already complained that pressure had been exerted on him to repudiate his statements against the applicant. It also established that the witness D., who was present at the consulate when V. had repudiated his statements, was a close friend of the applicant. The other witness, Y.S., had arrived at the consulate late and did not see the document before it was certified. 41. It was also noted that both the applicant and V. had undergone a psychiatric examination during the investigation and both had been found fit to participate in the criminal proceedings. 42. Other evidence examined by the court included: expert reports produced by chemical, ballistics, linguistic, sound and technical experts; written reports on the operative experiment; V.'s written statement of 18 September 2000; a certified description of the gun handed in by V.; and records of the applicant's confrontation with V. on 20 October 2000. 43. The applicant challenged a number of items of evidence, claiming that they had been obtained unlawfully. The court excluded some of them, in particular the expert report by a psychologist who had examined the recording of the applicant's conversation with V. and the police report on the search carried out on 4 October 2000. The attempt to challenge the audio tape containing the recording of the applicant's conversation with V., and the copies of the tape, was not successful and they were admitted as lawfully obtained evidence. 44. On 19 June 2002 the Meshchanskiy District Court of Moscow gave judgment, finding the applicant guilty of conspiracy to murder and conspiracy to acquire, possess and handle firearms. The finding of guilt was based on the following evidence: the initial statement by V. that the applicant had ordered him to kill S.; the gun V. had handed in; the statements V. had made in front of the applicant when they had been confronted during the questioning on 10 October 2000; numerous witness statements confirming the existence of a conflict between the applicant and S.; and the physical evidence obtained through the covert operation, namely the watches and the feasibility study. Although the recording of the applicant's conversation with V. was played at the hearing, its contents did not feature among the evidence or as part of the court's reasoning. In so far as the record was mentioned in the judgment, the court relied solely on the conclusions of the linguistic experts (see paragraph 30 above) and on several reports confirming that the tape had not been tampered with. 45. The court sentenced the applicant to six and a half years' imprisonment and, having deducted the time already spent in pre-trial detention, conditionally released him on five years' probation. 46. The applicant appealed against the judgment, challenging, inter alia, the admissibility of the evidence obtained through the covert operation and the court's interpretation of the physical evidence and the witnesses' testimonies. 47. On 1 October 2002 the Moscow City Court upheld the applicant's conviction and dismissed his appeal, including the arguments relating to the admissibility of evidence. 48. On 22 June 2004 the Supreme Court of the Russian Federation examined the applicant's case in supervisory proceedings. It modified the judgment of 19 June 2002 and the appeal decision of 1 October 2002, redefining the legal classification of one of the offences committed by the applicant. It found the applicant guilty of “incitement to commit a crime involving a murder”, and not “conspiracy to murder”. The rest of the judgment, including the sentence, remained unchanged. 49. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (CCrP). 50. “Preventive measures” or “measures of restraint” included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89). A decision to detain someone on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96). 51. When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89). It also had to take into account the gravity of the charge, information on the accused's character, his or her profession, age, state of health, family status and other circumstances (Article 91). 52. Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the CCrP was amended to permit defendants to be remanded in custody if the charge carried a sentence of at least two years' imprisonment or if they had previously defaulted or had no permanent residence in Russia or if their identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence committed. 53. The CCrP provided for a distinction between two types of detention on remand: the first being “during the investigation”, that is, while a competent agency – the police or a prosecutor's office – was investigating the case, and the second being “before the court” (or “during the judicial proceedings”), at the judicial stage. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different. 54. From the date the prosecutor referred the case to the trial court, the defendant's detention was classified as “before the court” (or “during the judicial proceedings”). 55. Before 14 March 2001 the CCrP did not set any time-limit for detention “during the judicial proceedings”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during the 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. 56. The Operational-Search Activities Act of 12 August 1995 (no. 144FZ) provides, in so far as relevant, as follows: “In carrying out investigations the following measures may be taken: ... 9. supervision of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; ... 14. operative experiments. ... Operational-search activities involving supervision of postal, telegraphic and other communications, telephone interception through [telecommunication companies], and the collection of data from technical channels of communication are to be carried out by technical means by the Federal Security Service and the agencies of the Interior Ministry in accordance with decisions and agreements signed between the agencies involved. ...” “Operational-search activities involving interference with the constitutional right to privacy of postal, telegraphic and other communications transmitted by means of wire or mail services, or with the privacy of the home, may be conducted, subject to a judicial decision, following the receipt of information concerning: 1. the appearance that an offence has been committed or is ongoing, or a conspiracy to commit an offence whose investigation is mandatory; 2. persons conspiring to commit, or committing, or having committed an offence whose investigation is mandatory; ... Operative experiments may only be conducted for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons preparing, committing or having committed it. ...” “The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of wire or mail services, or with the right to privacy of the home, shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused. ... The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional right, or to refuse authorisation, indicating reasons. ...” “Information gathered as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection, evaluation and assessment of evidence. ...” 57. Article 69 of the CCrP provided as follows: “... Evidence obtained in breach of the law shall be considered to have no legal force and cannot be relied on as grounds for criminal charges.” The 2001 Code of Criminal Procedure of the Russian Federation, which replaced the CCrP of the Russian Soviet Federative Socialist Republic from 1 July 2002, provides as follows, in so far as relevant: “1. Evidence obtained in breach of this Code shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the [circumstances for which evidence is required in criminal proceedings]. ...” “... 5. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial. ...” | 1 |
train | 001-86794 | ENG | UKR | ADMISSIBILITY | 2,008 | KUMOK v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Mr Mykhaylo Volodymyrovych Kumok, is a Ukrainian national who was born in 1960 and lives in Melitopol. He was represented before the Court by Ms L. V. Opryshko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mrs V. Lutkovska, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the editor-in-chief of a daily newspaper Melitopolskiye vedomosti. On Friday 29 March 2002, a special issue of the newspaper was published in a local printing house. The issue was dedicated to the latest events in Melitopol relating to the imminent parliamentary and local elections. On 30 March 2002 the Regional Electoral Committee applied to the Melitopol City Court, seeking prohibition of the distribution of this special issue of the newspaper Melitopolskiye vedomosti. On the same day the court granted the application. The court stated that under the Elections Law, election campaigning must cease at 24.00 on the last Friday prior to the elections. The court found that three articles by journalists R and S in the above issue of the newspaper contained campaigning materials and, therefore, banned this issue from distribution. The judgment became final and binding immediately after its adoption. | 0 |
train | 001-93766 | ENG | POL | CHAMBER | 2,009 | CASE OF SMYK v. POLAND | 4 | No violation of Article 6 - Right to a fair trial | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1977 and lives in Łuków. 6. On 9 August 1996 the applicant commenced his compulsory military service, which lasted until 20 October 1997. During his service he suffered a serious spinal injury. A series of medical tests carried out by military doctors showed that the applicant’s disability had been caused by an ailment which he had had during his childhood. Difficult tasks which he had had to carry out during his military service had made his condition worse. 7. On 31 May 2000 the applicant requested the Social Security Authority (ZUS) to grant him a disability pension (renta inwalidzka). By a decision of 20 September 2000 the Social Security Authority refused. By a judgment of 13 March 2002 the Siedlce Regional Court dismissed the applicant’s appeal. The applicant appealed. 8. By an order of 11 April 2002 the court, having regard to certain formal shortcomings in the applicant’s appeal, requested him to rectify them. By a decision of 23 April 2002 the court rejected the appeal, finding that he had failed to indicate the grounds for his appeal despite having been summoned to do so. On 7 May 2002 the applicant lodged an interlocutory appeal against the decision, which was dismissed on 8 July 2002. 9. In January 1998 the applicant lodged an action with the Olsztyn Regional Court. He requested compensation for physical injuries and suffering which he had sustained during his military service and requested the court to grant him a permanent disability pension, having regard to the fact that he was now unfit to work. On 18 February 1998 the court exempted the applicant from court fees. In November 1998 a legalaid lawyer was assigned to the case to represent the applicant. 10. A first series of medical tests carried out by experts confirmed the findings of the military doctors and the conclusions reached in the reports prepared for the first set of the proceedings. The applicant refused to participate in a second series of medical tests, ordered at the defendant’s request. 11. The proceedings were subsequently stayed at the applicant’s request on 15 May 2000. They were resumed on 25 November 2002. 12. By a judgment of 25 April 2003 the Olsztyn Regional Court dismissed the applicant’s action. The applicant appealed. 13. By a judgment of 10 September 2003 the Appellate Court upheld the first-instance judgment. This judgment was served on the applicant’s legal- aid lawyer on 9 October 2003. 14. By a letter of 15 October 2003 the legal-aid lawyer informed the applicant that he had not found any legal grounds on which to prepare a cassation appeal. The letter read: “I hereby inform you that on 9 October I was served with a written grounds for the judgment of the Białystok Court of Appeal of 10 September 2003. Having examined the written reasons for the judgment, I am obliged to state that there are no legal grounds on which to prepare a cassation appeal. Cassation appeal is an extraordinary legal remedy which can be lodged where the court erred in the application of substantive or procedural law, if such an error could have affected the outcome of the case. In your case no such errors are disclosed. In addition, for a cassation appeal to be accepted for examination by the Supreme Court, it is necessary to demonstrate that legal issues justifying such examination obtain in the case. In your case it is the establishment of the facts by the courts which is in issue. Having regard thereto, I am forwarding to you a copy of the judgment as I cannot be of any further assistance in your case.” 15. On an unspecified later date the applicant requested the court to assign a new lawyer to the case for the purposes of lodging a cassation appeal. The court refused the request by a decision of 6 November 2003 which read: “The court ... decided to dismiss the plaintiff’s request for a legal-aid lawyer to be assigned to the case.” The decision did not contain reasons as under the relevant provisions of the Code of Civil Procedure no appeal was available against it and, in consequence, the court was not obliged to prepare any (see paragraphs 19 – 21 below). 16. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party’s acts or failures to act. 17. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. 18. Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case. 19. Decisions on legal aid are given in the form of interlocutory decisions. Article 394 of the Code of Civil Procedure guarantees a party to the proceedings the right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fees and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court. 20. The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No. 9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120). 21. Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision. 22. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings. 23. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected. 24. Article 393 1 of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law by its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 25. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 26. Article 393 4 read as follows: “A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).” 27. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part: “1. The Supreme Court may refuse to entertain the cassation appeal, if: i) there is no appearance of any significant legal issue in the case, ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case law, iii) the appeal is manifestly ill-founded. 2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.” 28. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant: “1. The Bar is established to provide legal assistance, co-operate in protecting a person’s rights and freedoms as well as to formulate and apply the law. 2. The Bar is organized as a self-governing association. 3. An advocate whilst executing his/her professional duties is accountable only to the law.” 29. Article 3 of the Act provides as follows: “The general tasks of the professional Bar Council are as follows: 1) creation of conditions for the statutory performance of the Bar’s tasks, 2) representation of the Bar and protection of its rights, 3) supervision over the observance of the rules regulating the practice of the profession, 4) development of professional skills and training of advocates, 5) determination and promotion of professional ethics and ensuring their observance, 6) management (...) of the Bar’s assets.” 30. Article 28 of the Act reads: “1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council. 2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.” 31. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has its office. 32. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court. 33. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her. 34. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive. 35. The court observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law. 36. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers’ obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created. 37. As a result, the scope of legal aid lawyers’ obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on the lawyers’ legal aid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts. 38. The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client’s wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment. 39. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action. 40. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request. 41. Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant: “3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.” 42. Pursuant to the case-law of the Supreme Court, if a party to civil proceedings is represented by a lawyer, the procedural time-limits set by the Code of Civil Procedure start to run on the date of the service of judicial decisions on him or her (III CRN 324/72; I UZ, 65/04). | 0 |
train | 001-5189 | ENG | POL | ADMISSIBILITY | 2,000 | SKRASKOWSKI v. POLAND | 4 | Inadmissible | null | The applicant is a Polish national, born in 1946 and living in Żarów. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's wife, born in 1947, had high blood pressure and suffered from a heart condition. On 19 February 1996 her physician referred her to a hospital. Apparently on the same date, doctors S. and S. in Żarów hospital examined her, gave her drugs against high blood pressure and refused admission. Allegedly, one of the physicians suggested that she should become his private patient. On 1 March 1996 she felt unwell and three times called an ambulance from the State-run emergency service. In the afternoon, during the first visit, she was given a prescription for certain drugs to reduce her high blood pressure. At midnight, during a second visit of the ambulance, a physician gave her an injection of the drug “Dexaven”. The applicant alleges that as a result of this injection her general condition worsened abruptly. The Government refute this allegation. The applicant insisted that she should be taken to a hospital, in particular in view of the referral of 19 February, but this was refused. She was taken to the hospital in the morning of 2 March 1996, where at 7.30 a.m., fifteen minutes after her admission, she died of myocardial infarction. The applicant requested that criminal proceedings be instituted concerning his wife's death. On 16 July 1996 the Świdnica District Prosecutor requested the Poznań Medical Academy to prepare an expert report concerning the causes of her death. The report was submitted on 18 December 1996. On 31 December 1996 the Świdnica District Prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The Prosecutor had regard to the expert report, prepared by three experts: two cardiologists and forensic medicine specialist. The applicant appealed against this decision. He stated that the decision was ill-founded and that, in view of her serious condition, his wife should have been taken to hospital much earlier. He complained that the investigations had lasted unreasonably long. Lastly, he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case. On 24 February 1997 the Wałbrzych Regional Prosecutor upheld the decision under appeal. He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts' conclusions. In view of the fact that the applicant had alleged that experts from Wrocław would have lacked impartiality, the District Prosecutor had requested that, in order to dispel any doubts as to the experts impartiality, the expert report be prepared by physicians from Poznań. It was true that the report had been submitted to the Prosecutor only on 18 December 1996, but, having regard to the heavy case-load of forensic medicine experts throughout Poland, this delay could not be considered abnormal. The report had been prepared by three experts - two cardiologists and one specialist in forensic medicine. The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant's wife. The Prosecutor further had regard to the conclusions of the experts. They had established in their report that during the second visit of the emergency services, doctor K.S. had administered to the applicant’s wife an injection of "Dexaven", but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition. They had emphasised that the applicant's wife had received adequate medical care. She had died of myocardial infarction, which must have occurred after the second visit of the ambulance. It had been only during the third visit that she had symptoms of a dyspnoea (difficulty in breathing), typical in cases of cardiac insufficiency, and the physician had taken the correct decision to take her to a hospital on that account. Given the sudden nature of myocardial infarction, it could have developed so quickly as to cause her death within a short time, without there being any medical negligence to contribute to it. The experts concluded that it could not be assessed with absolute certainty whether the applicant's wife could have survived had she been taken to the hospital at the second visit of the ambulance. Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant's wife case, which involved a rapid myocardial infarction, the prosecutor decided that the lower prosecutor's office had been correct in finding that the persons who had given the treatment to her had no case to answer. B. Relevant domestic law and practice The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians. The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989. Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of an alleged offence and written grounds. Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed. A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court. Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date. Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent's decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents, which are not covered by medical secrecy. Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities. | 0 |
train | 001-100005 | ENG | TUR | ADMISSIBILITY | 2,010 | SHAMSI v. TURKEY | 4 | Inadmissible | Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicant, Mr Maher Muhilddin Gazel Al Shamsi, is an Egyptian national who was born in 1966 and lives in Eskişehir. He was represented before the Court by Mr A. Baba, a lawyer practising in Istanbul. The applicant claims that he was accused of involvement in terrorism while in Egypt. He escaped prison in 1991 and subsequently fled the country. Thereafter he lived in Jordan, Syria and Lebanon respectively. He requested refugee status from the United Nations High Commissioner for Refugees (“the UNHCR”) in Beirut and his request was rejected. He fled to Turkey on 9 September 2007. On 16 November 2007 the applicant was arrested in Hatay. He claimed before the Court that his asylum requests were not taken into account at the time of his arrest. The Government asserted that the applicant had not initially claimed asylum. He had stated before the national authorities that he had left Egypt for economic reasons and had paid money to human smugglers to be brought to Istanbul where he aimed to find work. In support of their observations the Government submitted the applicant's statement taken on the day he was arrested. The document is signed, inter alia, by the applicant as well as a translator. On 18 February 2008 the applicant contacted a lawyer who works with the UNHCR in Turkey and stated that he was denied access to the asylum procedure. On 5 March 2008 he contacted the UNHCR office in Ankara and requested to be recognised as a refugee. On 20 March 2008 the applicant requested an interim measure from the Court under Rule 39 § 1 of the Rules of Court. He alleged that his deportation to Egypt would expose him to the risk of unfair trial and subsequent imprisonment, ill-treatment or even death. In this connection the applicant invoked Articles 2, 3, 5 and 6 of the Convention. On the same day the Court decided to indicate the interim measure until further notice. The Government were asked a number of questions and both parties were requested to submit relevant documents. On 25 March 2009 the UNHCR interviewed the applicant. The refugee status assessment proceedings are pending before the UNHCR. On 25 March and 9 April 2008 the applicant requested asylum from the Istanbul Security Directorate and the Governorship of Istanbul, respectively. On 5 May 2008 the authorities notified the applicant through the assistance of a translator that he was granted a temporary residence permit in Eskişehir. It appears from the case file that the applicant's wife and children who were in Syria joined him in Eskişehir and were issued with asylum seeker certificates by the UNHCR on 20 June 2008. The applicant's children were registered in local schools. | 0 |
train | 001-90358 | ENG | GRC | CHAMBER | 2,008 | CASE OF NERATTINI v. GREECE | 3 | Violation of Art. 6-2;Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1938 and lives in Samos. 6. On 17 August 2007 the applicant was arrested in flagrante delicto for receiving a package containing 71 grams of cannabis and remanded in custody. Following his arrest, the applicant’s house was searched. The investigating authorities found and seized a large number of Egyptian and Greek antiquities, including small statues, ancient coins, vessels and fossils. 7. On 18 August 2007 the applicant was brought before the Public Prosecutor of Samos who charged him with having received a package containing drugs. Concerning the antiquities found in the applicant’s house, the Prosecutor decided not to press charges unless new evidence was adduced. 8. On 20 August the investigating judge at the Samos Criminal Court, after questioning the applicant, remanded him in custody with effect from 17 August, the date of his arrest, on the grounds that there were serious prima facie indications that the defendant had committed the drug-related offence and that it was necessary to prevent him from absconding and to make sure that he would not commit further offences. 9. On 24 August 2007 the applicant applied for release on bail. 10. On 10 September 2007 the Indictment Division of the Samos Criminal Court rejected the applicant’s request (decision no. 49/2007). It held as follows: “... [the way that the packet was carefully prepared] reveals a dexterous and studied action, established by the choice of special means for the commission of the crime of drug trafficking, as well as a collective action. Furthermore, during the lawful search of the accused’s house ... a significant number of antiquities were found, including in particular, 41 coins from different periods, a small statue of Apollo, a small bronze statue of Bacchus, an ancient vessel, a fossil in lava from the volcano of Santorin, part of a fresco and numerous Egyptian antiquities, the possession of which demonstrates the perpetrator’s propensity to commit further offences relating to antiquities. In view of the above, there is very serious evidence of the applicant’s guilt and ... his request should be rejected since it is reasonably considered that even the replacement of his pre-trial detention by preventive measures would not be sufficient to ensure his appearance in court and the execution of any judgment the court may deliver.” 11. On 18 February 2008, the Public Prosecutor submitted to the Indictment Division of the Samos Criminal Court his proposal to prolong the applicant’s detention in compliance with Article 287 of the Code of Criminal Procedure (see paragraph 17 below), since the applicant had been in detention for six months. 12. On 7 March 2008 the Indictment Division of the Samos Criminal Court replaced the applicant’s pre-trial detention by preventive measures (decision no. 5/2008). In particular, it held that: “... the prolongation of the applicant’s pre-trial detention is not absolutely necessary since he has a known residence in Samos, and has family and property in Greece, he has not made preparations with a view to absconding, he has never been a fugitive in the past and it is improbable, on the basis of his criminal record and his social and professional status, that he will commit further crimes if he is released. In the light of the above and in view of the applicant’s old age and serious health problems ... the Indictment Division considers that the prolongation of the detention imposes on the applicant a disproportionate burden and that his appearance in court and the execution of any judgment the court may deliver can be ensured by the above preventive measures: (a) prohibition from leaving the country and (b) an obligation to report to his local police station twice a month. ...” 13. Subsequently, the Public Prosecutor laid supplementary charges against the applicant for misappropriation of antiquities. On 28 March 2008 the investigating judge questioned the applicant in that connection. 14. It appears from the case-file that the criminal proceedings against the applicant are still pending before the investigating authorities. 15. The applicant suffers from various health problems, including chronic duodenal ulcer, persistent urinary problems, inguinal hernia (when part of the intestine bulges through a weak area in muscles in the groin, the area between the abdomen and thigh) and degenerative spine disorders. He often complains of hemoptysis (coughing up blood), intense epigastric pain and melena. 16. The applicant was frequently hospitalised in the Prison Hospital in order to undergo medical examinations. On several occasions he was granted leave to be consulted by external doctors and undergo special examinations in Public Hospitals, including gastroscopy, echocardiography and chest X-rays. According to the medical certificates submitted by the applicant and the Government, the results of a number of medical examinations (kidneys, bladder and prostate ultrasound, chest computed tomography, bronchoscopy and heart triplex ultrasound) were imminent. The applicant was prescribed medication for his urinary and gastro-intestinal problems. Concerning the inguinal hernia, surgical treatment was advised. 17. Article 6 of the Greek Constitution reads as follows: “1. No person shall be arrested or imprisoned without a reasoned judicial warrant which must be served at the time he is arrested or remanded in custody, except when caught in the act of committing a crime. ... 4. The maximum duration of detention pending trial shall be specified by law; such detention may not exceed a period of one year in the case of felonies or six months in the case of misdemeanours. In entirely exceptional cases, the maximum durations may be extended by six or three months respectively, by decision of the competent judicial council.” 18. The relevant provisions of the Code of Criminal Procedure read as follows: “1. During the preliminary procedure, if there are serious indications of guilt, preventive measures may be imposed on a person accused of a felony or an offence punishable with a sentence of imprisonment of at least three months, and provided that these measures are considered to be strictly necessary .... ... 3. Detention on remand may be imposed instead of preventive measures, provided that the conditions of paragraph (1) are fulfilled, only if the accused is charged with a crime and does not have a known residence in the country or has made preparations with a view to absconding or has been a fugitive in the past ... or it is reasonably considered that if he is released, it is most probable, in the light of his previous conduct or the special circumstances of the incriminated act, that he will commit further offences. The gravity of the charge cannot by itself serve to justify the detention on remand.” “1. Where detention on remand has lasted six months in the case of felonies, or three months in the case of misdemeanours, the Indictment Division shall give a final, reasoned decision on the question whether to prolong detention or release the accused. ... 2. In all cases, and until adoption of the final decision, detention on remand in respect of a single offence shall not exceed one year for felonies or six months for misdemeanours. In exceptional circumstances these limits may be extended by six months or three months respectively by a reasoned decision, against which no appeal shall lie, of (a) the Indictment Division of the Court of Appeal ... (b) the Indictment Division of the Court of First Instance ...” | 1 |
train | 001-84011 | ENG | SWE | ADMISSIBILITY | 2,007 | TAHER v. SWEDEN | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Ibrahim M Taher, is a Swedish national of Iraqi origin who was born in 1953 and lives in Linköping. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 July 2000 the applicant arrived in Sweden from Iraq. On 28 September 2000 he was granted a permanent residence permit. He was not considered to be a refugee but a person “otherwise in need of protection”. He was granted Swedish citizenship on 10 August 2005. On 4 January 2001, Zamrod Jamil Abdulqadir, a woman born in 1956, and six children, allegedly born in 1985, 1985, 1986, 1988, 1990 and 1993, respectively, applied for residence permits at the Swedish Embassy in Tehran, on the grounds that they were the wife and children of the applicant. Ms Abdulqadir was interviewed at the Embassy on 3 April 2001 and 4 February 2002. She could not give a precise date of her alleged marriage with the applicant, only that it had been in the spring of 1982. No marriage certificate was submitted. She claimed that they had never thought that it was important to have their marriage registered. At the request of the interviewer, Ms Abdulqadir agreed to a bone age test of the four eldest children. This test, which was performed by a radiologist at the Iranian Medical Council No. 2692 on 5 February 2002, showed that all the children tested were at least 19 years old. In a letter to the Migration Board of 11 May 2001, the applicant claimed that his marriage to Ms Abdulqadir had not been registered as the war between Iraq and Iran had made it impossible to visit the relevant authorities. On 29 April 2002 the Migration Board (Migrationsverket) rejected the applications for residence permits. It found that the marriage between the applicant and the woman had not been registered in Iraq and considered that the four eldest children had to be considerably older than 18 years. Moreover, falsified documents and incorrect statements had been submitted by the woman and the children. The Board referred, inter alia, to their identity cards, all with the same registration and page numbers and containing information which was inconsistent with the claim that the marriage had not been registered. It stated that it could not be ascertained from the information submitted whether the applicant and the woman belonged to the same family, to different families or were in any way related. Noting that it was up to the persons requesting a residence permit to submit full and correct information, the Board concluded that the woman and the children had failed to show that they were related to the applicant. Ms Abdulqadir and the children appealed to the Aliens Appeals Board (Utlänningsnämnden). They submitted a marriage certificate, according to which the applicant and the woman had been married on 25 December 1982. They argued that there had been a misunderstanding regarding the question whether the marriage had been registered or not; the applicant and Ms Abdulqadir had only meant that the marriage certificate was missing. Furthermore, the applicant requested that a new bone age test be performed. On 8 January 2003 the Appeals Board informed the applicant that the Swedish authorities would not perform a new bone age test. However, he was invited to pay for a test himself and submit the test results. The applicant subsequently replied that he did not intend to have a new medical investigation performed. On 13 February 2003 the Appeals Board rejected the appeal. It noted that the applicant and Ms Abdulqadir, during the investigation at the Migration Board, had stated that they had not been able to register their marriage with the Iraqi authorities due to the war between Iraq and Iran. However, in their appeal, they had stated that the marriage had in fact been registered but that they had misunderstood the question put to them and had had the impression that the fact that they did not have a certificate meant that no registration had been made. The Appeals Board found their statements contradictory and concluded that the explanation given in the appeal was no more credible than the information given at first instance. It further stated that Iraqi identity documents had a low value as evidence and, as such, did not prove the identity of the holder. In conclusion, the Board considered that the documents submitted did not prove the alleged identities and family ties. Moreover, the age of the four eldest children had not been confirmed. On 2 April 2003 Ms Abdulqadir and the children filed new applications with the Swedish Embassy in Tehran. On 22 October 2003 the Embassy held a third interview with her and also briefly interviewed the children. She stated that the marriage certificate had been obtained in 2002 but had not been available at the time of her second interview at the Embassy. She had not obtained it earlier as the applicant had told her that it was not necessary for the first interview. On 16 June 2004 the new applications for residence permits were rejected by the Migration Board, which found that no new circumstances had emerged. In an appeal to the Aliens Appeals Board, new documents were submitted, including a certificate issued by the Iraqi Embassy in Stockholm on 3 August 2004. The certificate stated that, according to a marital contract issued by the Iraqi Ministry of Justice, the applicant and Zamrod Jamil Abdulqadir had been married on 25 December 1982. On 20 December 2004 the Appeals Board rejected the appeal. Notwithstanding the certificate from the Iraqi Embassy, it found no reason to change its previous decision. On 24 May 2006 the applicant submitted yet another application to the Migration Board on behalf of his alleged family members. In a letter of 15 June 2006, the Board requested that the applicant contact the family in order to make an appointment at a Swedish embassy abroad for an interview and to prove their identities. On 4 October 2006 the application was dismissed as the requested information had not been provided within the prescribed three-month period and the application had not been pursued. | 0 |
train | 001-82559 | ENG | CHE | CHAMBER | 2,007 | CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2) | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (ratione materiae);Remainder inadmissible;Violation of Art. 10 | Snejana Botoucharova | 4. The applicant association is dedicated to animal protection, campaigning in particular against animal experiments and battery farming. 5. In response to various advertisements produced by the meat industry, the applicant association made a television commercial lasting fifty-five seconds, consisting of two scenes. The first scene showed a sow building a shelter for her piglets in the forest. With soft music playing in the background, the voiceover referred, among other things, to the pigs’ sense of family. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The voiceover compared the conditions in which pigs were reared to concentration camps, and added that the animals were pumped full of medicines. The film concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!” 6. Permission to broadcast the commercial on the channels of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft) was refused on 24 January 1994 by the company responsible for television advertising (the Commercial Television Company (AG für das Werbefernsehen), now called Publisuisse SA) and, at final instance, by the Federal Court, which dismissed an administrative-law appeal by the applicant association on 20 August 1997. In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act pursued various aims; in particular, it was designed to prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters. 7. On 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention. 8. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 9. In a decision of 6 April 2000 the Court declared the application partly admissible. 10. In a judgment of 28 June 2001 the Court held that the refusal by the relevant Swiss authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by Article 10 of the Convention (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001VI). The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2. As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted, in particular, that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster’s independence, unduly influencing public opinion or endangering equality of opportunity among the different forces of society. On the contrary, it had simply intended to participate in an ongoing general debate on the protection and rearing of animals. Accordingly, in the Court’ The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay 20,000 Swiss francs (CHF – approximately 12,160 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage. 11. Subsequently, the applicant association again applied to Publisuisse SA for permission to broadcast an amended version of the commercial. In a letter of 30 November 2001 Publisuisse SA refused the application. 12. On 1 December 2001, on the basis of the Court’s judgment, the applicant association applied to the Federal Court for the final judgment given at domestic level to be reviewed, in accordance with section 139a of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 19 below). 13. In their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, the Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted that the application to reopen the proceedings should be dismissed. 14. In a judgment of 29 April 2002 the Federal Court dismissed the application to reopen the proceedings. It held that the applicant association had not provided a sufficient explanation of the nature of “the amendment of the judgment and the redress being sought”, a formal requirement imposed by section 140 of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 20 below). It observed, in particular, that the applicant association had been unable to show how redress was possible only through the reopening of the proceedings. It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial, which now appeared out of date almost eight years after it was initially intended to have been broadcast. Lastly, the Federal Court considered that the fact that Publisuisse SA, the competent authority in such matters, had again refused to sign an agreement to broadcast an amended version of the commercial should have formed the subject of separate proceedings. 15. On 3 March 2003 the Federal Office of Communication dismissed an appeal by the applicant association against Publisuisse SA’s decision of 30 November 2001 refusing permission to broadcast the amended version of the commercial. 16. The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the Swiss Government that the Federal Court had dismissed the application for review, concluded its examination of application no. 24699/94 on 22 July 2003 by adopting Resolution ResDH(2003)125, the relevant parts of which read: “... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; ... Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; ... Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case. Appendix to Resolution ResDH(2003)125: Information provided by the Government of Switzerland during the examination of the VGT Verein gegen Tierfabriken case by the Committee of Ministers As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20 August 1997. Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court. In addition, the Court’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération n.65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale n.8/2002. The Government of Switzerland considers that, given the information mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.” 17. In a letter of 12 December 2003 the applicant association informed the Council of Europe’s Directorate General of Human Rights of the Federal Court’s refusal to review the judgment of 20 August 1997 following the Court’s finding of a violation of Article 10. 18. On 12 January 2005 the Council of Europe’s Directorate General of Human Rights informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the Court’s consideration of the application lodged in July 2002 in the present case. 19. Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 January 2006, concerned, inter alia, the review of judgments of the Federal Court. Section 139a provided: 1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review. 2. If the Federal Court determines that a review is called for, but a lower court has jurisdiction, it shall refer the case to the lower court to reopen proceedings in the matter. 3. The cantonal court shall then also decide on the request for a review if cantonal law does not envisage such a ground for the reopening of proceedings.” 20. Section 140 of the Act provided: The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.” 21. On 2 March 1999, on the basis of that provision, the Federal Court granted, at least in part, an application for review of one of its judgments, after the Court had found a violation in the case of Hertel v. Switzerland (judgment of 25 August 1998, Reports of Judgments and Decisions 1998VI). It held: “... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139a of the Federal Judicature Act is met ...” 22. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces section 139a of the former Federal Judicature Act. It provides: An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) may be submitted if the following conditions are satisfied: (a) the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its Protocols; (b) compensation cannot remedy the effects of the violation; (c) the review is necessary to remedy the effects of the violation.” | 1 |
train | 001-68732 | ENG | LTU | CHAMBER | 2,005 | CASE OF KARALEVICIUS v. LITHUANIA | 3 | Violation of Art. 3;Violation of Art. 5-1 in respect of two periods of detention;No violation of Art. 5-1 in respect of one period of detention;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | David Thór Björgvinsson | 9. The applicant was born in 1952 and lives in Vilnius. 10. The applicant was suspected of having committed various fraudulent offences between October 1992 and October 1993. In 1994 criminal proceedings on three counts of cheating, suppression of documents and false accounting were instituted against him. As the applicant had absconded from the investigation, on 21 November 1994 the prosecutors declared him a wanted person. 11. On 24 September 1996 the applicant was arrested in Moscow on an extradition request by the Lithuanian authorities. He was extradited to Lithuania on 30 December 1996. 12. On 31 December 1996 the Šiauliai City District Court ordered the applicant's detention on remand until 31 January 1997 on suspicion of his suppressing documents. The court referred to the dangers of the applicant absconding and committing further offences. On 24 January 1997 the court extended the term to 31 March 1997, on 28 March to 31 May 1997 and on 30 May to 13 June 1997. 13. On 5 June 1997 the case was transmitted to the Šiauliai City District Court. On 6 August 1997 the court committed the applicant for trial. On the same date the court also authorised the applicant's detention, stating that his remand must remain unchanged. No term of the detention was specified. 14. On 10 September 1998 the Šiauliai City District Court convicted the applicant of cheating and suppressing documents but acquitted him of false accounting. He was sentenced to five years' imprisonment and his property was confiscated. The court ordered him to pay 615,264 Lithuanian litai (LTL) of damages in favour of a bank. 15. On 2 March 1999 the Šiauliai Regional Court amended the first instance judgment insofar as it concerned the damages against the applicant, reducing the amount to 476,000 LTL. 16. Upon the applicant's cassation appeal, on 29 June 1999 the Supreme Court quashed the above decisions and returned the case for a new first instance examination. No question relating to the applicant's remand in custody was mentioned by the Supreme Court in the decision. 17. On 30 July 1999 the Šiauliai City District Court ordered the applicant's detention on remand until 1 September 1999 on suspicion of his having cheated and suppressed documents. The court referred to the danger of the applicant absconding. The District Court also noted that on 29 June 1999 the Supreme Court had not ruled on the applicant's remand. On 31 August 1999 the term of the applicant's detention was extended until 15 November 1999. On 15 November 1999 the term was extended until 31 December 1999. On 30 December 1999 the Šiauliai District Court extended the term of the applicant's remand in custody “until a court judgment would be taken in the case”. 18. On 6 March 2000 the Šiauliai District Court convicted the applicant of suppressing documents and acquitted him of cheating. 476,000 LTL were awarded against the applicant in damages in favour of a bank. The sentence of five years' imprisonment was reduced by one third due to an amnesty law. The applicant was released in the courtroom as he was deemed to have already completed his sentence because of the time he had spent on remand. The court also ordered his release on bail, with home arrest, until the entry into force of the judgment. The applicant and his lawyer were present during the hearing. 19. On 4 May 2000 the Šiauliai Regional Court rejected the applicant's appeal. On that date the conviction took effect for the purposes of domestic law and the bail constraints ceased. The applicant and his representative were present at the appeal hearing. 20. On 24 October 2000 the Supreme Court examined the applicant's cassation appeal. The court amended the lower decisions, reducing the applicant's sentence to three years' imprisonment. The applicant and his defence counsel were present before the Supreme Court. That decision was final. 21. From 2 January 1997 until 22 September 1999 the applicant was held at the Šiauliai Remand Prison (Šiaulių tardymo izoliatorius). From 22 to 28 September 1999 he was held at a Kaunas police custody centre. On 28 September 1999 he was again detained at the Šiauliai Remand Prison until his release on 6 March 2000. 22. The applicant gave the following account of the detention conditions at the Šiauliai Remand Prison: Living space for one prisoner amounted to 1.5 square metres. The applicant states that he lived and slept in cells of less than 20 square metres where from 10 to 15 inmates were held. There was an open toilet in each cell. They lacked ventilation and had a strong smell due to the inmates' smoking and toilet use. The cells were very humid and cold, particularly during the winter. The insufficiency of the living space was aggravated by the scarce time for strolling in the prison yard (one hour daily). Prison bedding was in an awful and dirty condition. All washing had to be done by hand in a sink in the cell. There was a constant lack of hot and cold water. The applicant had access to a shower only once in 15 days. Food was prepared and served in awful conditions. Only 6 LTL per day were allocated for an inmate's catering. 23. The Government provided the following account of the applicant's detention conditions at the Šiauliai Remand Prison: From 2 January 1997 until 24 August 1998 the applicant was held at the cell no. 11 of the prison which accommodated 11 detainees at the time. The overall capacity of the cell was 16.65 square metres, i.e. 1.51 m² per detainee. From 24 August 1998 until 22 June 1999 he was held in the cell no. 86 which accommodated 9 inmates. The cell's capacity was 17.78 m², i.e. 1.98 m² per detainee. From 22 June 1999 until 28 December 1999 the applicant was held in the cell no. 87 which accommodated 10 inmates. The capacity of cell was 19.7 m², i.e. 1.97 m² per detainee. From 7 January 2000 until 12 January 2000 he was held in the cell no. 37 which had 4 inmates, including the applicant. The cell's capacity was 7.68 m², i.e. 1.92 m² per detainee. From 12 January 2000 until 3 March 2000 the applicant was held in the cell no. 34 which accommodated 2 inmates. The capacity of the cell was 7.9 m², i.e. 3.95 m² per inmate. The cells had toilets separated by 1.2 metres-high partitions. The cells also had windows, and the ventilation and lighting were adequate. Inmates were allowed to smoke, but persons could apply to the prison administration to be transferred to a no-smoking cell upon request. In 1997 the sanitation facilities were renovated. In 1998 a new heating system was installed. After the renovation in 1999-2000 of the prison bath, possibilities were afforded for each detainee to use the bath once a week. In 2000 industrial laundry facilities were procured, therefore allowing for adequate washing of inmates' clothes and bedding. 24. The applicant alleged that his letters to the European Commission of Human Rights of 12 and 13 October 1998, and to the European Court of Human Rights of 28 March, 13 July, 26 August, 5, 8 and 17 November, 26 December 1999, 15 and 30 January, 2, 7, 9, 13, 21, 25 and 29 February, 2 and 5 March 2000 had been censored by the administration of the Šiauliai Remand Prison. 25. The applicant also alleged that the letters addressed to him by the Registry of the European Court of Human Rights of 17 November 1998, 21 April, 9 and 10 August, 8 October, 14 December 1999, 17 January 2000, 1, 21 and 23 February, 3 and 9 March 2000 had been opened up and read in his absence by the administration of the Šiauliai Remand Prison. 26. Article 21 of the Constitution prohibits inhuman and degrading treatment. Conditions of detention of remanded persons are regulated by the Detention on Remand Act 1996. Article 18 of the Act provides that conditions of detention in remand centres shall not be inhuman or degrading, and that these conditions shall correspond to the relevant requirements and norms established by the Ministry of Health and other authorities. 27. The following is the summary of the provisions of the Code of Criminal Procedure applicable at the material time in relation to detention on remand. All these provisions have now been repealed as a result of the entry into force on 1 May 2003 of the new Code of Criminal Procedure. Article 10: “No one shall be arrested save by virtue of a decision of a court, or an order of a judge ...” Article 104: “Detention on remand shall be used only ... in cases where a statutory penalty of at least one year's imprisonment is envisaged. ... . The grounds for detention on remand shall be the reasoned suspicion that the accused will: (1) abscond from the investigation and trial; (2) obstruct the determination of the truth in the case [influence other parties or destroy evidence]; (3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274] [cheating,] 275 [embezzlement] of the Criminal Code ...” Article 104-1 (in force from 21 June 1996 to 24 June 1998): “... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the term of detention, or may vary or revoke the remand measure. ... After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.” The amended Article 104-1 (in force from 24 June 1998 until 1 May 2003) provided that the prosecutor and defence counsel must have taken part in the first judicial inquiry of the arrested person, unless the judge decided otherwise. The amended provision also permitted the court to extend the detention on remand before its expiry. Article 106 § 3 (in force from 21 June 1996 to 24 June 1998): “For the purpose of extending the term of detention on remand [at the stage of pre-trail investigation a judge] must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called.” The Code in force from 24 June 1998 to 1 May 2003 made obligatory the attendance of the detainee at the remand hearings. Article 109-1 (in force from 21 June 1996 to 24 June 1998): “An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the detention on remand ... . With a view to examining the appeal, there may be convened a hearing, to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing. The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal. A further appeal shall be determined when examining the extension of the term of the detention on remand.” Article 109-1 (as in force from 24 June 1998 to 1 May 2003) provided for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel. Article 226 § 6 (in force until 24 June 1998): “The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.” From 24 June 1998 to 1 May 2003 that period was no longer relevant for remand decisions. Article 372 § 4 (in force until 1 January 1999): “Decisions of courts ... ordering, varying or revoking a remand measure ... cannot be the subject of appeal ...” Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. Article 104-3 § 3 as amended on 21 December 1999 specified that all decisions of detention on remand became effective and were executed on the date when they were taken, regardless of the fact that an appeal was possible against any such decision under the amended Article 109-1 (in force from 24 June 1998 to 1 May 2003, see above). Article 250 § 1: “After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...” Article 277: “In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.” 28. Article 22 of the Constitution guarantees the right to respect for one's private life, family life and correspondence. According to Article 15 of the Detention on Remand Act 1996 and Rule 72 of the Remand Prisons Internal Rules 1996, which were applicable at the material time, remanded persons' letters could be subject to censorship. Rule 75 of the Remand Prisons Internal Rules provides that the remand centre administration cannot open letters of detainees addressed to the European Court of Human Rights if those letters were given to the administration to be sent in a closed envelope. Rule 83 provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within three days following receipt of the letter addressed to the detainee. Therefore, as a rule, all letters received by the detainees are not given to them and are kept in their files by the remand centre administration. | 1 |
train | 001-22989 | ENG | FIN | ADMISSIBILITY | 2,003 | SALONEN and STAHL v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Elina Salonen and Jirka Ståhl, are Finnish nationals, born in 1978 and 1976 respectively and living in Helsinki. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government are represented by Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 December 1997 the applicants and four other animal rights activists attempted to colour the fur of foxes kept at a farm in Orimattila, when its owner fired at them with a shot gun, injuring three of them, including the first applicant. They were apprehended by the police on 6 December 1997 at 3.30 a.m. on their way to hospital. One of them was later admitted for hospital care. On 9 December 1997 at 11.40 a.m. Senior Police Officer T.H. of the Central Criminal Police in Vantaa telephoned judge R. at the Lahti District Court (käräjäoikeus, tingsrätt) to convey a detention request concerning “four suspects”, including the applicants. The respective written requests received at the District Court in the afternoon of the same day stated the applicants’ name, address and identity number and indicated that they were under suspicion for having committed the following offences: one count of aggravated violation of domestic peace in Orimattila on 6 December 1997 at 2.40 p.m.; three counts of aggravated damage to property in the region of Pohjanmaa (Ostrobothnia) on 2-3 September 1997; and six counts of damage to property in Helsinki on 7-8 November 1997. The requests were accompanied by a memorandum by T.H. setting out the facts in more detail. The second applicant’s continued detention was considered by the District Court on 9 December 1997 from 7 to 8 p.m. and the first applicant’s detention was examined from 9 to 10 p.m. They received copies of the detention request immediately prior to the respective hearings. Before the District Court, defence counsel argued that the detention request concerning the second applicant was inadmissible as it had not been submitted in proper and lawful form before noon. According to the minutes from the hearing, T.H. contested counsel’s argument as he had informed the court before noon that the request concerned four arrested persons held in Lahti and connected to the events at the fox farm in Orimattila. In addition, T.H. had informed the court that their detention was being sought in respect of the acts committed in Ostrobothnia and Helsinki as well. In dismissing counsel’s objection the District Court found as follows: “Since the head of the investigation [T.H.] informed the court orally, on the third day before noon as prescribed by law, that he was going to request (ilmoittanut tulevansa vaatimaan) the detention of four persons in respect of one count of aggravated violation of domestic peace committed in Orimattila, three counts of aggravated damage to property and six counts of damage to property, and even though he did not at that stage indicate the names of those whose detention was being sought, [his] request was nevertheless confirmed in writing without delay. As there was no risk of any error occurring in respect of the persons and the offences in question, [the court] finds that the detention request was made in accordance with the law.” The District Court went on to dismiss the detention request in respect of all but the first applicant, who was ordered to remain in detention until 16 December 1997 on suspicion of having committed the three counts of aggravated damage to property and the six counts of damage to property, as indicated in the request. The District Court further ordered that the case-file, with the exception of the detention order and the legal provisions applied, be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed. The District Court applied section 9, subsection 3, of the 1984 Act on Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984). On 10 December 1997 the first applicant filed a procedural appeal (kantelu) with the Kouvola Court of Appeal (hovioikeus, hovrätt), contending that the detention request had not been made in accordance with the law as it had not been filed in writing without delay. The written request had been faxed to her counsel’s office only at 2.20 p.m. and counsel himself had received it around 4.00 p.m. In any case, the offences specified in support of the request did not correspond to those which T.H. had apparently communicated to judge R. over the telephone. In a written statement to the Court of Appeal judge R. explained that in his telephone call to the District Court which T.H. had placed on 9 December before noon he had first informed a court secretary that he was seeking the detention of four arrested persons connected with the events that had occurred at a fox farm in Orimattila. Immediately thereafter T.H. had informed judge R. that their detention was also being requested for the acts committed in Ostrobothnia and Helsinki. Although T.H. had not at that time specified the names of the four suspects in question, judge R. found that there was no uncertainty as to their identities and the offences of which they were suspected. She had therefore concluded that the detention request had been submitted in accordance with law. In its decision of 12 December 1997 the Kouvola Court of Appeal agreed with the District Court, finding that at the time when the detention request had been presented over the telephone there had been no uncertainty as to the fact that the request concerned, among others, the second applicant or as to the offences of which she was being suspected. The Court of Appeal maintained the District Court’s secrecy order and further ordered that its own decision, again with the exception of the operative part and the legal provisions applied, also be kept secret until the first hearing of the charges against the suspects or until the pre-trial investigation against them had been closed. The Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal on 25 February 1998. The decision bore a stamp indicating that it was “secret”. It contained the standard reasoning which the Supreme Court relies on when refusing leave to appeal, without referring to the applicable legal provision (see “Relevant domestic law”): “Leave to appeal is refused. The Court of Appeal’s decision therefore stands.” In the meantime, the first applicant’s detention had been prolonged. On 7 January 1998 the Vaasa Court of Appeal had ordered her release, having accepted her further procedural appeal of 2 January 1998. This appellate court, noting the progress in the pre-trial investigation, found that her continued detention was no longer necessary in order to secure an effective investigation and trial. According to Chapter 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslag 450/1987, as amended by Acts nos. 361/1990 and 693/1997), an arrested person and his or her legal counsel shall be notified without delay of a request for detention on remand (section 11). Such a request shall be made to the court without delay and not later than 12.00 hrs on the third day from the day of the apprehension of the suspect (section 13). The request shall be made in writing. It may also be submitted orally or by telephone but shall then be confirmed in writing without delay (section 12). According to an expert opinion relied on by the applicants, an oral or telephone request must identify the person, the offence of which he or she is being suspected as well as the ground for the detention (Helminen, Lehtola and Virolainen: Uusi esitutkintalainsäädäntö. Helsinki 1990). A request for detention on remand shall be considered by the court without delay and not later than four days from the moment the suspect was placed in custody (section 14). An arrested person shall be released immediately when the conditions for his or her arrest no longer exist. If his or her detention on remand is not requested, the release shall take place no later than at the expiry of the aforementioned period for submitting such a request (section 4). Chapter 1, section 27 of the Coercive Measures Act stipulates that a procedural appeal against detention on remand may be submitted at any time and shall be dealt with expeditiously. In its precedent no. 1995:180 the Supreme Court (by 11 votes 10) held that it was not prevented from introducing a leave requirement for such appeals. Under the 1951 Act on Publicity of Official Documents (laki yleisten asiakirjain julkisuudesta, lag om allmänna handlingars offentlighet 83/1951, as in force until repealed by Act no. 621/1999), official documents were in principle public (section 1). They included not only documents drawn up and issued by an authority but also documents submitted to an authority and which remained in its possession (section 2, subsection 1). A pre-trial investigation record, however, was not public until the matter had been brought before a court or the police investigation had been closed without charges being brought (section 4). The 1984 Act on Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång 945/1984, as amended by Act no. 1254/1988) affords the court the option of holding a hearing in camera, inter alia when examining a request for detention on remand to be dealt with prior to the actual trial, provided such a request has been made by the head of the pre-trial investigation or the suspect himself or if the court deems it necessary to exclude the public from the hearing (section 5a). If the suspects requests a detention hearing in camera, the public shall be allowed to attend only for a particularly weighty reason. If a detention hearing has been held in camera in whole or in part or if, during such a hearing, any confidential document or information has been submitted, the court may decide that all or part of the case material shall be kept confidential until the beginning of the trial or the discontinuation of the investigation. The operative part of the reasoning and the legal provisions relied on shall always be made public (section 9, as amended by Act no. 1254/1988). Under chapter 30, sections 2 and 3 of the Code of Judicial Procedure (Oikeudenkäymiskaari, Rättegångs Balk) the Supreme Court may only on certain circumscribed grounds grant leave to appeal against a decision or judgment rendered by a court of appeal in appeal proceedings. | 0 |
train | 001-109007 | ENG | GBR | ADMISSIBILITY | 2,012 | S.S. v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 1. The applicant, Mr S.S., is an Afghan national who was born in 1983 and lives in the United Kingdom. He was represented before the Court by Ms U. Sood, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office. 2. The facts of the case may be summarised as follows. 3. The applicant arrived in the United Kingdom on 25 July 2002 and claimed asylum the following day on the basis of his fear of General Dostum (a warlord of Uzbek ethnicity also referred to as “General Dostam” who currently holds the position of the Chief of Staff to the Commander in Chief of the Afghan National Army, President Hamid Karzai), his commanders and their sons. The applicant claimed that his father had worked as a local police commissioner in Saripool province in northern Afghanistan and as an adviser to General Malik (another warlord of Uzbek ethnicity who is considered to be General Dostum’s rival). The applicant claimed that in 1997, with his father’s assistance, General Malik had helped the Taliban attack General Dostum thereby killing many of his commanders and removing General Dostum from his position as the dominant power holder in the central area of northern Afghanistan. 4. The applicant also claimed that, in April 1998, he had been arrested by the Taliban and then released after the payment of a bribe. 5. Most significantly, the applicant claimed that, after he had been reappointed as military commander of most of the northern provinces of Afghanistan in January 2002, General Dostum had arrested and ill-treated the applicant and his father. The applicant had managed to escape but General Dostum had killed his father. The applicant had fled Afghanistan in fear not only of General Dostum but also his troops and the sons of the commanders who had previously been killed in 1997 by General Malik. He claimed that, while General Malik had security in Afghanistan as a member of the new Afghan Government, in contrast he would have no similar protection. 6. On 30 August 2002, the Secretary of State refused the applicant’s asylum application. The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Articles 2 and 3 of the Convention. 7. In a determination of the 10 January 2003, his appeal was allowed by an Adjudicator at the then Immigration Appellate Authority (“IAA”) who found that the applicant’s account of events had been consistent and that the applicant was a credible witness. The Adjudicator accepted that his father had been a high-ranking member of the military and that the applicant and his father had both faced difficulties and suffered ill-treatment in Afghanistan as a result of his father’s political opinion and activities for General Malik. The Adjudicator found that, given the objective country information and the fact that the applicant’s father had been a conspicuous high-ranking officer, the applicant would be at risk in Sheberghan (the capital of Jowzan province in northern Afghanistan and the most important Uzbek city in Afghanistan) from General Dostum and that the Afghan authorities would not be able to offer him adequate protection there. The Adjudicator also stated that, given the general insecurity and lawlessness of local warlords, he was minded to believe that there was, albeit marginally, a likelihood that the applicant would also be at risk in Kabul. Finally, he found that, even if no such risk arose in Kabul, given the applicant’s age and the general circumstances there it would be unduly harsh to expect him to relocate there upon return to Afghanistan. 8. The Secretary of State subsequently sought permission to appeal to the then Immigration Appeal Tribunal (the “IAT”). 9. On 5 December 2003, the IAT allowed the Secretary of State’s appeal and found that the Adjudicator’s findings on internal flight had been unsustainable. In coming to that conclusion, the IAT had before it a report prepared by Dr Antonio Giustozzi, an expert on Afghanistan, which had predicated the applicant’s safety in Kabul on the basis of his ability to maintain a low profile there. Dr Giustozzi had considered that, while it was not possible to establish with certainty that the applicant would be targeted by his father’s enemies, the applicant would have to take that possibility seriously. Dr Giustozzi had concluded that it was unlikely that the applicant would experience a serious threat from General Dostum or his political party but had considered that “some local commanders might [have an interest in him], depending on the past actions of [the applicant’s] father and especially if it was not possible to target the father directly, because he is already dead or because he has sought refuge elsewhere.” 10. After examining Dr Giustozzi’s report, the IAT found that “as the son of a person whose father was involved with General Malik, the risk today is very low unless General Dostum was unable to exact revenge on his father.” Due to the fact that the applicant’s father had already been killed by General Dostum, the IAT considered that revenge had been exacted, and the applicant would not therefore be at risk. 11. Furthermore, noting that General Malik himself was resident in Kabul, the IAT considered that the applicant could also safely internally relocate to Kabul where single young men would be relatively safe. The IAT found that the possibility of an attack upon the applicant by General Dostum or his followers in Kabul was “remote” and that anyone in Kabul on General Dostum’s behalf would not be interested in pursuing his former enemies because they were defending his office and leading members of his political party in the city. 12. Finally, the IAT did not accept that there was any evidence that General Dostum or his commanders would be interested in pursuing the family members of his former enemies. 13. On 16 January 2004, the applicant was refused permission to appeal to the Court of Appeal. 14. On 28 February 2006, the applicant was detained at Dungavel Immigration Removal Centre pending his removal from the United Kingdom. Removal directions to Afghanistan were cancelled for unknown reasons. On 30 May 2006, the applicant was admitted to hospital before being released to his home address. 15. On 8 July 2009, the applicant submitted further representations to the Secretary of State based upon a report dated 5 June 2009 by Dr Peter Marsden MBE, an expert on Afghanistan. That report summarised the background to and the security situation prevailing in Afghanistan at that time. In respect of the risk from General Dostum, the report stated, inter alia, that: “...the primary risk to S.S arises from the fact that his father may have facilitated the successful entry of General Malik into Mazar-e-Sharif through the provision of strategic, logistics and technical support, drawing on his experience gained while working within the Defence Ministry of the former People’s Democratic Party of Afghanistan Government of 1979-1992. General Dostam may, therefore, have good reason to continue to feel aggrieved over the actions of S.S.’s father and may, subject to considerations of his own power and influence within the current Afghan government, have an interest in targeting S.S., notwithstanding that S.S.’s father may already have been killed by his militia. It is important to note, in this regard, that General Dostam has a reputation for serious human rights abuses and for particular ruthlessness. He would, therefore, have no hesitation in killing S.S. if other considerations did not dictate otherwise. It should be noted in this regard that, although President Karzai has maintained a certain distance from General Dostam because of his human rights record, Dostam has sought respectability and this has been rewarded through various defence-related posts of a largely honorary nature. It is therefore difficult to assess whether General Dostam would risk undermining this by actively seeking S.S. It should nonetheless be noted that his decision to imprison hundreds of Taliban prisoners, in the autumn of 2001, in conditions which were likely to lead to their deaths and to do so under the watch of US forces showed little regard for his international reputation. It would also not be difficult for General Dostam to arrange for S.S. to be killed without this being traced back to him. On the other hand, some of his commanders may be influenced solely by their desire to avenge [General] Malik’s treachery and, while [General] Malik may be too well protected to represent an easy target, may see an opportunity through S.S.’s inability to protect himself, to act out their revenge. It should be stressed that it would be difficult for S.S. to escape detection if he was being actively targeted.” 16. The report commented that the applicant would be entirely vulnerable in Kabul if General Dostum or his supporters were to actively target him. In addition, the report commented upon the IAT’s findings of 5 December 2003 and did not agree that Dr Giustozzi’s report had necessarily indicated that the risk to S.S. was a low one. The report stated: “...it should be noted that there has been, for many decades, a pronounced labelling process in Afghanistan so that people have been identified with members of their families who have taken particular political positions or brought harm to others by virtue of the power they wielded. The individual is thus identified by association with his relatives and it is common practice for revenge attacks to be undertaken against male relatives if the original perpetrator of the action is no longer alive or to be found. It is also important to note that the desire to take revenge can pass through the generations, particularly if the original action which led to such a desire was especially serious. Given that the technical, logistics and strategic support provided by S.S.’s father may have been of significant benefit in enabling General Malik to capture and subsequently facilitate the entry of the Taliban into Mazar-e-Sharif, those who may seek to avenge his role may regard it as sufficiently serious to take revenge against S.S., as his son. I do not regard paragraph 7 of Dr Giustozzi’s report as necessarily indicating that the risk to S.S. of being actively targeted by some local commanders is a low one. As he notes, the wishes of such commanders to actively target S.S. is dependent on the past actions of his father. As these actions were of a potentially very serious nature, the risk to S.S. may be a high one.” 17. The report also set out that, in Dr Marsden’s view, S.S. may be at risk from the Taliban on account of the thousands of Taliban fighters who had died in Mazar-e-Sharif after General Malik had withdrawn his allegiance from the Taliban. However, Dr Marsden clarified that the possibility of a revenge attack upon the applicant from the Taliban had to be set against the fact that the Taliban had not killed him when he claimed that they had arrested him and imprisoned him during their period of control of Mazar-e-Sharif between 1998 and 2001. 18. On 20 January 2010, the Secretary of State refused the applicant’s representations as not amounting to a fresh asylum claim because some of the points he had raised had already been considered in his earlier claim and the remaining points would not have created a realistic prospect of success before an immigration judge. It was not accepted that the applicant had shown that the Taliban would have the motivation, means or opportunity to target him in Kabul, an area outside of their control, particularly in light of the fact that they had not harmed him when they had detained him in 1998. 19. It was further not accepted that General Dostum would still be interested in actively targeting the applicant due to, inter alia, the manner of his escape from detention in 2002; the passage of seven years since his arrest by General Dostum; the fact that General Dostum would now have other priorities; and the fact that General Dostum had already gained revenge by killing the applicant’s father. Furthermore, it was noted that the IAT had, six years earlier, assessed the risk to the applicant as low and it was considered that the risk to him six years later would be even lower. 20. In addition, relying on the reasoning of the IAT determination, the Secretary of State did not accept that, even if General Dostum was interested in the applicant, he would be able to harm him in Kabul. In particular, as General Malik reportedly lived in Kabul and was able to protect himself there, there was no reason to suggest that the applicant would not be able to do the same. It was therefore considered that the applicant had failed to show that his circumstances were more likely to cause him to be harmed than any other ordinary citizen. 21. Finally, it was not accepted that the applicant would be destitute in Kabul as he was no more vulnerable than any other citizen and had shown great resourcefulness in the United Kingdom where he had picked up transferable skills which would be of benefit to him upon return to Afghanistan. 22. On 1 February 2010, the High Court refused to grant the applicant permission to apply for judicial review, stating that it was not arguable that the Secretary of State’s decision not to treat the applicant’s further submissions as a fresh claim was unlawful or irrational, or that those submissions had not been given anxious scrutiny. 23. On 3 February 2010, the United Kingdom Border Agency’s Case Resolution Directorate, set up to consider unresolved asylum cases, gave further consideration to the applicant’s case and decided that it would not be appropriate for the applicant to be granted leave to remain in the United Kingdom bearing in mind, inter alia, his age (because it was not unreasonable to expect the applicant at 25 years of age to adapt to life back in Afghanistan); the fact that, even though he had been in the United Kingdom for seven years, he had been without valid leave to remain throughout that period; his lack of strong ties or family in the United Kingdom; his past failure to maintain contact with immigration authorities; and the lack of any compassionate or compelling circumstances in his case. 24. On 22 February 2010, the Secretary of State set removal directions to Afghanistan for the applicant scheduled to take place on 2 March 2010. Those removal directions were deferred when, on 1 March 2010, the High Court granted the applicant an injunction to prevent his removal from the United Kingdom, pending the hearing of his renewed application for judicial review at the High Court. 25. On 18 March 2010, the High Court refused permission to apply for judicial review further to the renewed permission hearing, thus discharging the injunction. Beatson J noted that there was no new evidence other than Dr Marsden’s report which was of a qualified nature and demonstrated only the conditional nature of the risk to which the applicant would be subject in Afghanistan. In that regard, he stated: “In particular, it was only a risk if General Dostum or his senior supporters decided to target the [applicant] in Kabul. [The applicant’s counsel] relied on the passage of time since the [IAT]’s decision, but it is significant that there is nothing in Dr Marsden’s report to suggest that what was said in the [IAT]’s decision about the risk being low, unless the General had been unable to exact revenge on the father, was changed. What Dr Marsden states is that he does not accept Dr Giustozzi’s report as necessarily indicating that the risk of actively being targeted by local commanders is a low one, and the risk of being targeted may be a high one. These are examples of the qualified nature of his report. Given those qualifications, and the limited extent to which the recent report departs from the earlier expert report submitted on behalf of the claimant, I do not consider that the Secretary of State’s decision that there was no realistic prospect of success before the Tribunal...was Wednesbury unreasonable or otherwise flawed on public law grounds.” 26. On 29 March 2010, the applicant lodged an application before the Court and requested an interim measure under Rule 39 of the Rules of Court to stop his removal to Afghanistan the following day. 27. On 30 March 2010, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government that the applicant should not be expelled until further notice. 28. It appears that, on 30 March 2010, the day after the applicant lodged his application before the Court, he applied to the Court of Appeal for an injunction to prevent his removal and permission to appeal against the High Court’s refusal to grant permission to apply for judicial review. On 30 March 2010, the Court of Appeal refused his application for an urgent injunction to stop his removal. 29. In support of his application, the applicant’s representatives had obtained a supplementary expert report from Dr Marsden dated 12 April 2010. Dr Marsden set out examples of human rights abuses committed by General Dostum and concluded that, if he sought to avenge the actions of an individual who had acted against his interests, he would have no hesitation in killing him or members of his family. 30. The report further set out the power struggle between General Dostum and General Malik and the significance of General Malik’s actions in removing General Dostum from his position of power in 1997. The report went on to state: “Whilst there is no objective documentation to establish whether S.S.’s father was instrumental in [General] Malik’s successful entry into Mazar-e-Sharif in May 1997, any such involvement, if it was significant to the final outcome would, in my view, be sufficient to justify a very considerable desire on [General] Dostum’s part for revenge. Given this, I would regard it as a reasonable possibility that [General] Dostum would seek to take revenge against S.S., even though revenge has already been exacted against the father. ... ...it should be noted that S.S. has provided evidence of a direct link, by virtue of his position as the son of his father, to a serious grievance which [General] Dostum will inevitably hold against [General] Malik. While it is never possible to provide evidence that the potential perpetrator of targeted violence will opt to give expression to a grievance that he hold, there is a reasonable probability in this case, based on the severity of the original grievance that, subject to S.S.’s father having played a significant role in facilitating the entry of [General] Malik into Mazar-e-Sharif in May 1997, [General] Dostum would have an interest in targeting S.S., who is clearly identified with a specific grievance, albeit indirectly through his father. ...it is not my experience, in monitoring developments in Afghanistan, that the passage of time will necessarily lessen the desire to exact vengeance.” 31. The report also considered that, in Dr Marsden’s view, the applicant would be particularly exposed to targeted violence from the Taliban if, as was likely, he was unable to afford accommodation in Kabul. It further stated that the Taliban may have an additional interest in the applicant given his association with General Malik. 32. On 30 July 2010, the Court of Appeal dismissed the applicant’s application for permission to appeal on the papers, taking the view that the supplementary expert report did not undermine Beatson J’s decision. Hallett LJ stated that: “The issue for me is whether Beatson J, in the light of the information then (and arguably now) available was wrong to refuse permission to review judicially the SSHD [Secretary of State for the Home Department]’s decision to certify. Unfortunately, to my mind, Dr Marsden’s latest report does not truly seem to be providing new material, post dating or undermining Beatson J’s decision. Rather this proposed appeal is an attempt to reargue the material available before Beatson J in a different form.” 33. On 18 January 2011, the Court of Appeal dismissed his renewed application for permission to appeal further to an oral hearing. Tomlinson LJ, with whom both Elias LJ and Ward LJ agreed, stated that he had given both Dr Marsden’s first and supplementary reports anxious scrutiny but did not consider that the supplementary report was any different in substance to his first report. He stated that: “It is true that later in the report...Dr Marsden uses the expression “reasonable probability” rather than “reasonable possibility”, but, looking at the substance of the matter, Dr Marsden is in my view doing no more than to repeat in different language the assessment of the risk that he had proffered in his first report. He relies upon no new developments in Afghanistan from which it is to be inferred that the enthusiasm of General Dostum to exact vengeance upon the applicant for the activities of his father is likely to have increased over time, rather than, as would perhaps be expected, to have waned as other priorities and imperatives have emerged. ... In my judgment Dr Marsden’s second report contains no material which could properly lead this court to reach a conclusion different from that reached by Beatson J.” 34. Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 35. Appeals in asylum, immigration and nationality matters were, until 4 April 2005, heard by Adjudicators at the IAA. Section 101 of the Nationality, Immigration and Asylum Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the Nationality, Immigration and Asylum Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal. 36. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. 37. Country guidance determinations of both the former IAT and Asylum and Immigration Tribunal (“AIT”) are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the IAT or AIT that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. 38. In the country guidance determination of PM and Others (Kabul – Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089, the AIT held, inter alia, that, subject to an individual’s personal circumstances, it was unlikely to be unduly harsh (or unreasonable) to expect them to relocate to Kabul if they had established a real risk of serious harm in (and restricted to) areas outside Kabul. 39. In the country guidance determination of RQ (Afghan National Army – Hizb-i-Islami – risk) Afghanistan CG [2008] UKAIT 00013, the AIT held, amongst other matters, that: “Where the risk to a particular appellant is confined to his home area, internal relocation to Kabul is in general available. It would not be unduly harsh to expect an appellant with no individual risk factors outside his home area to live in Kabul and assist in the rebuilding of his country. If an appellant establishes a wider risk, extending beyond the home area, internal relocation is not necessarily available and sufficiency of protection will depend on his individual circumstances and characteristics. In particular (a) internal relocation outside Kabul is unlikely to provide sufficiency of protection as the areas outside Kabul remain under the control of local warlords, and the population is suspicious of strangers; and (b) the safety of internal relocation to Kabul is a question of fact based on the particular history of an individual appellant and of the warlord or faction known to be seeking to harm him.” 40. In the country guidance determination of GS (Article 15 (c): Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044, promulgated on 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian’s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of Council Directive 2004/83/EC. 41. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows: “When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.” 42. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held: “Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.” 43. Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits. 44. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum-Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. 45. Those Guidelines observed: “UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as, supportive of the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari’a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds. ... UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary.” 46. The December 2010 Guidelines further stated: “The well-established practice of blood feuds is rooted in traditional Afghan culture. Blood feuds are conflicts between opposing families, tribes and armed factions, and are often initiated in reaction to perceived violations to the honour of women, property rights, and land or water issues. According to the practice, individuals associated with the family or tribe of the individual seen as the wrongdoer are targeted by the victim’s tribe or family members. Revenge is sought through killing, physically injuring or publicly shaming the perpetrator or individuals related by family or tribe. Blood feuds can be long-running conflicts, lasting for generations, with a cycle of retaliatory violence between parties. Solving a dispute through a formal justice mechanism does not normally put an end to a blood feud. Particularly among Pashtuns, blood feuds can be settled through a formal decision of a jirga – generally an all-male community-based dispute resolution mechanism. A peaceful compromise, such as a bad dadab marriage, may sometimes prevent a dispute from spiralling into a blood feud. In light of the foregoing, UNHCR considers that persons involved in, or targeted because of, a blood feud may, depending on the circumstances of the individual case, be at risk on account of membership of a particular social group. Claims by persons with the aforementioned profiles may, however, give rise to the need to examine possible exclusion from refugee status.” | 0 |
train | 001-100659 | ENG | RUS | CHAMBER | 2,010 | CASE OF KOROGODINA v. RUSSIA | 4 | Violation of Art. 2 (procedural aspect) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1931 and lives in Orel. 6. On 21 October 2000 the applicant called an ambulance for her son, who was forty-two years old at the time. He had a fever and was complaining of chest pains. The paramedic examined him, and, assuming that he was suffering from intercostal neuralgia, administered a pain-killing injection. 7. On 22 October 2000 Mr Korogodin was examined by a general practitioner, who believed him to be suffering from pyelonephritis and advised him to go to hospital. At the hospital Mr Korogodin underwent a medical examination including an ECG of his kidneys and liver and an Xray of his lungs. The doctors who examined him confirmed the diagnosis of intercostal neuralgia. Mr Korogodin was discharged from hospital. 8. On 23 October 2000 the general practitioner examined Mr Korogodin again and diagnosed him with osteochondrosis. Subsequently, M., a doctor whom the applicant's family knew, examined Mr Korogodin, diagnosed him with pneumonia and urged him to go to hospital. Upon arrival at the Zheleznodorozhniy Hospital in Orel, Mr Korogodin was taken to an intensive care unit. 9. On 27 October 2000 Mr Korogodin died in hospital. According to the autopsy, the cause of his death was cardiovascular deficiency provoked by pneumonia and purulent pleurisy. 10. On 24 November 2000 and 10 January 2001 the applicant asked the local prosecutor's office to open a criminal investigation into the matter, alleging that the doctors' negligent failure to diagnose her son correctly at the onset of his disease had caused his death. 11. In response to the applicant's complaints, the assistant prosecutor of the town of Orel, conducted an inquiry. Within its framework, the regional department of public health formed a commission which comprised specialists from the medical institutions where the applicant's son had undergone treatment. The commission questioned the doctors who had treated Mr Korogodin and concluded that the doctors had provided competent medical service. 12. On 21 January 2001 the applicant submitted Mr Korogodin's medical history file and X-ray examination results. An additional inquiry ensued. On 24 January 2001 the applicant lodged another complaint with the prosecutor's office. 13. On 6 March 2001 the assistant prosecutor refused to open a criminal investigation against the doctors for lack of corpus delicti. He noted that the death of the applicant's son had resulted from the rapid development of pneumonia coupled with weakened immunity. The assistant prosecutor referred to the findings made by the commission set up by the regional department of public health. The applicant appealed to a superior prosecutor. 14. On 16 April 2001 the regional prosecutor in charge of the investigation quashed the decision of 6 March 2001 and ordered a criminal investigation into the matter. The prosecutor noted, in substance, that the commission had not been impartial. He referred to the commission's findings as inconclusive and contradictory. 15. On 7 May 2001 the applicant was recognised as a victim of the crime under investigation. She was advised of her rights, including the right to submit a civil claim against the hospital. 16. On 19 June 2001 the investigator commissioned a forensic medical expert report to determine whether Mr Korogodin had received proper medical treatment. 17. On 16 July 2001 the investigator found it impossible to identify those responsible and suspended the investigation into the matter. On 4 February 2002 the district prosecutor declared the decision of 16 July unlawful and quashed it. 18. On an unspecified date the forensic medical experts completed the report and submitted their findings to the prosecutor's office. The experts discerned no causal link between Mr Korogodin's death and the treatment administered. 19. On 11 March 2002 the investigator discontinued the criminal proceedings for lack of corpus delicti. He based his findings on the medical expert report and statements made by the doctors who had treated Mr Korogodin. The applicant appealed to a superior prosecutor. 20. On 29 March 2002 the town deputy prosecutor quashed the decision of 11 March 2002. The deputy prosecutor found that the experts had failed to examine the issue of whether the medical treatment that Mr Korogodin had undergone had been adequate. He referred to the experts' statement that a prompt diagnosis at an early stage of a severe disease could prevent a patient's death. He further noted that the medical expert, P., opined that the X-ray examination had not been properly conducted. Finally, the prosecutor indicated which steps the investigator should now take, including, but not limited to, examining the circumstances of the X-ray examination that Mr Korogodin had undergone. 21. On 7 May 2002 the investigator yet again discontinued the criminal proceedings for lack of corpus delicti. 22. On 19 June 2002 the regional prosecutor in charge of the investigation quashed the decision of 7 May 2002 owing to the investigator's failure to fully determine the circumstances of Mr Korogodin' 23. On 7 August 2002 a new report was prepared by a forensic medical expert bureau in Kursk. The experts noted certain errors committed by the doctors prior to Mr Korogodin's committal to hospital. They further opined that he had received adequate treatment in hospital albeit that certain additional measures could have been taken by the hospital's personnel. 24. On 14 January 2003 the investigator found it impossible to identify those responsible and suspended the investigation into the matter. 25. On 21 April 2003 the inter-district prosecutor quashed the decision of 14 January 2003 as unsubstantiated. The investigation was resumed the next day. 26. On 21 May 2003 the inter-district prosecutor discontinued the criminal proceedings for lack of corpus delicti. His findings were based on witnesses' testimonies, including those provided by the applicant and the doctors who had treated Mr Korogodin, and the results of the medical expert reports. The prosecutor concluded that Mr Korogodin had not recovered from previous illnesses which had negatively affected his immune system and the rapid development of pneumonia could not have been prevented in the circumstances. 27. On 31 October 2003 the General Prosecutor's Office of Russia sent a letter to the Orel Regional Prosecutor noting that the investigation into Mr Korogodin's death had not been complete. It was further recommended that a new forensic medical evaluation be commissioned in order to reconcile the differences in the opinions contained in two earlier medical forensic expert reports. 28. On 18 November 2003 the regional deputy prosecutor quashed the decision of 21 May 2003. 29. On 24 December 2003 the investigator commissioned a new forensic medical expert report. 30. On 25 April 2005 the Russian Centre for Forensic Medical Expert Evaluations of the Federal Agency for Public Health and Social Development completed a comprehensive forensic medical expert report. The experts noted that Mr Korogodin had been wrongly diagnosed prior to his committal to hospital. They opined, nevertheless, that the errors in question had not been the cause of his death. Mr Korogodin had died as a result of the “severity, aggressiveness and rapid development of the disease”. Lastly, they did not discern that the doctors and paramedics at the medical institutions providing treatment to Mr Korogodin had failed to duly perform their professional duties. 31. On 6 July 2005 the investigator discontinued the criminal proceedings for lack of corpus delicti on the basis of the witnesses' testimonies and medical expert reports. The applicant appealed. 32. On 2 December 2005 the General Prosecutor's Office of Russia allowed the applicant's complaint and ordered the local prosecutor's office to resume the investigation into the matter. 33. On 12 December 2005 the regional deputy prosecutor found the investigation to be incomplete and quashed the decision of 6 July 2005. 34. On 11 January 2006 the investigator discontinued the proceedings for lack of corpus delicti. The investigator based his findings on statements made by twelve witnesses, including the applicant, the doctors who had treated Mr Korogodin, their superiors and the medical experts, and on medical documents, including three forensic medical expert reports. The applicant appealed. 35. Her complaints were dismissed by the Orel Regional Prosecutor's Office and the General Prosecutor's Office of Russia on 20 January and 11 October 2006 respectively. 36. On 4 March 2004 the applicant brought a civil claim for damages against the medical institutions where her son had undergone medical treatment. She alleged, inter alia, that her son had died due to the doctors' failure to diagnose him correctly. 37. On 21 September 2004 the court commissioned a forensic medical expert report. The report was completed on 28 June 2006. The experts concluded that there was no causal link between the deficiencies in the medical treatment Mr Korogodin had received and his death. They further opined that the medical treatment had not caused any harm to Mr Korogodin's condition. His death had resulted from the pathological development of pneumonia. 38. On 17 April 2006 the Sovetskiy District Court of Orel dismissed the applicant's claims. The court found that the doctors' failure to diagnose Mr Korogodin correctly on 22 October 2000 and a delay in his committal to hospital had not had an adverse impact on his condition. The diagnostics methods and treatment employed by the doctors had been correct but could not have prevented Mr Korogodin's death. The court based its findings on the testimonies given by the applicant, the medical professionals involved in her son's treatment, the four forensic medical expert reports and the materials of the criminal investigation. 39. On 14 June 2006 the Orel Regional Court upheld the judgment of 17 April 2006 on appeal. 40. On 27 January 2004 the applicant sued the Orel Regional Prosecutor's Office for damage caused allegedly by the inadequate and lengthy investigation into her son's death. 41. On 20 May 2004 the Sovetskiy District Court of Orel dismissed the applicant's claims. 42. On 7 July 2004 the Orel Regional Court upheld the judgment of 20 May 2004 on appeal. 43. The relevant provisions on liability provide as follows: Article 66. Grounds for health damage compensation Those liable for causing damage to persons' health shall pay the latter compensation for damage in the amount and pursuant to the procedure as set forth by legislation of the Russian Federation... Article 68. Liability of medical professionals and pharmacists for infringement of persons' rights in the domain of public health In the event of a violation of persons' rights in the domain of public health caused through the negligent failure of a medical professional or a pharmacist to carry out their professional duties and resulting in harm to health or death, compensation for damage shall be recovered in accordance with Article 66... The compensation of the damage shall not excuse the medical professionals and pharmacists from disciplinary, administrative or criminal liability as provided for in [federal and regional] legislation. 44. The general provisions on liability for damage read as follows: Article 1064. General grounds for liability for causing harm “1. Damage inflicted on a person or on the property of an individual... shall be compensated in full by the tortfeasor ... 2. The tortfeasor shall be released from liability to compensate the damage if he proves that the damage was inflicted through no fault of his own ...” 45. Article 109 § 2 of the Criminal Code provides that a person who negligently causes the death of another person through the failure to duly carry out his professional responsibilities, shall be criminally liable and may be sentenced to a restriction of liberty or imprisonment for up to three years with or without a forfeiture of the right to practise the profession during the said period. 46. If criminal proceedings are discontinued at the investigation stage, an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)). 47. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted for lack of corpus delicti (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in civil proceedings (Article 306 § 2). | 1 |
train | 001-5419 | ENG | SWE | ADMISSIBILITY | 2,000 | GOLDSTEIN v. SWEDEN | 4 | Inadmissible | Gaukur Jörundsson;Wilhelmina Thomassen | The applicant is a national of the United States of America, born in 1951 and living in Sweden. He is represented before the Court by Mr Sten De Geer, a lawyer practising in Stockholm. The applicant arrived in Sweden on 4 July 1997 and requested asylum. During lengthy interviews by the Swedish authorities, he stated that since 1990 he had worked actively to reveal police brutality and other misconduct by the police in the United States. In 1990 he had founded an association called “The Commission on Police Ethics” and in 1995 he had started another organisation called “The Standing Committee on Law Enforcement Development”. As a consequence of his activities, he had allegedly been subjected to systematic police persecution since 1993. By 1997 the persecution had reached serious proportions. Allegedly, there had been serious attempts to injure him, he had been subjected to surveillance, his property had been destroyed and he had been attacked with chemical substances. His reports to the police authorities had been to no avail. On 19 August 1997 the National Immigration Board (Statens invandrarverk) refused the applicant public legal counsel in the proceedings before the Board. The applicant appealed against this decision to the Legal Aid Board (Rättshjälpsnämnden). The applicant’s asylum application was rejected by the National Immigration Board on 24 September 1997. The Board found that there was no evidence to show that the United States police authorities had been persecuting the applicant. Thus, he was not in need of protection in Sweden. The applicant appealed against this decision to the Aliens Appeals Board (Utlänningsnämnden). On 20 October 1997 the Legal Aid Board upheld the National Immigration Board’s decision not to award the applicant public legal counsel. On 24 October 1997 the Aliens Appeals Board refused the applicant public legal counsel in the proceedings before the Board. It appears that this decision was not appealed against by the applicant to the Legal Aid Board. The National Immigration Board’s decision not to grant the applicant asylum in Sweden was upheld by the Aliens Appeals Board on 30 January 1998. The Board found that if the applicant had been subjected to the alleged maltreatment in the United States, it was the result of criminal acts committed by individuals and was not attributable to the State. No appeal lay against this decision. Subsequently, against the same background as initially, the applicant submitted a new request for asylum to the Aliens Appeals Board and also applied for legal aid. On 4 September 1998 the Board refused the applicant public legal counsel and also rejected his new application for asylum. No appeal lay against either of these decisions. | 0 |
train | 001-61143 | ENG | SVK | CHAMBER | 2,003 | CASE OF CHOVANCIK v. SLOVAKIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. On 8 February 1977 affiliation proceedings were brought in respect of the applicant before the then Košice City Court. 5. On 30 November 1988 the Košice Regional Court quashed the first instance judgment delivered on 15 September 1987. 6. The Košice II District Court, to which the case fell to be examined, experienced difficulties in obtaining the evidence. This was mainly due to the fact that the person who was supposed to be the applicant’s father was a Belgian national and that he had refused to co-operate with the court. 7. On 22 September 1995 the Constitutional Court found, in proceedings under Article 130 (3) of the Constitution, that the Košice II District Court had violated the applicant’s constitutional right to have the case examined without undue delays. 8. On 16 January 1996 the Košice II District Court dismissed the action. On 6 May 1997 the Košice Regional Court quashed the judgment and sent the case back to the first instance court. 9. On 16 June 2000 the Košice II District Court delivered a new judgment by which it dismissed the action. On 17 July 2000 the applicant appealed. 10. On 16 August 2002 the Košice Regional Court overturned the first instance judgment in that it found that the defendant was the applicant’s father. As to the remainder of the action including the maintenance and the court fee, the Regional Court quashed the District Court’s judgment and sent the case back to the latter. 11. On 5 November 2002 the defendant filed an appeal on points of law. The proceedings are pending. 12. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 13. Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated. 14. According to its case-law under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated. 15. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it founds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002). 16. According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48 (2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48 (2) of the Constitution. | 1 |
train | 001-67098 | ENG | ESP | ADMISSIBILITY | 2,000 | GARRIDO GUERRERO v. SPAIN | 1 | Inadmissible | null | The applicant [Mr José Antonio Garrido Guerrero] is a Spanish national who was born in 1941 and lives in San Fernando. He is a regular member of the armed forces (a ship's captain). He was represented before the Court by Mr G. Muñiz Vega, of the Madrid Bar. The facts of the case, as submitted by the parties, may be summarised as follows. In an order (auto de procesamiento) of 17 November 1993 investigating judge no. 1 of the Madrid Central Military Court (juez togado militar central) charged the applicant and another member of the armed forces with an offence against the Treasury (misappropriation for private use of fuel belonging to the navy, in breach of Article 195 § 1 of the Military Criminal Code). The investigating judge found, in particular, that there was evidence to warrant prosecution for an offence against the Treasury. The applicant appealed against the order to the Central Military Court which, in a decision (auto) of 21 March 1994, dismissed the appeal and upheld the impugned order. One of the judges on the bench that heard the appeal was D.R.G., a member of the armed forces' legal corps (vocal togado). In its decision the court pointed out the following: “According to the case-law established by the Constitutional Court ..., an order by means of which a person is charged is a provisional judicial decision of a purely procedural nature by which an accusation is made, and which must subsequently be the subject of adversarial proceedings and a judgment. Such a decision does not mean that the person charged is guilty, nor is it binding on the courts, which may decide not to proceed with the charges if the evidence on which they were based has ceased to exist.” Examining the facts of the case in which the applicant was involved, the court added: “... and, finally, the loss to the armed forces' budget, rationally amount to evidence of wilful conduct on the part of the accused, who was involved in acts of that nature. That conduct may at this initial stage be regarded as constituting the offence set out in Article 195 of the Military Criminal Code, without prejudice to such legal classification and reasoning as may subsequently be adopted when the merits are examined and a final judgment is delivered on the issue of guilt or innocence, regard being had to the fact that an order by which a person is charged is merely a provisional judicial decision of a procedural nature.” After the proceedings (juicio oral) began in the Central Military Court, P.G.B. was appointed as reporting judge and took various investigative measures. On 26 and 27 November 1996 the trial was held in public at the Central Military Court. The bench consisted of five judges: the presiding judge, D.R.G. and P.G.B. as judges from the armed forces' legal corps (vocales togados generales auditores), and two other members (vocales militares). In a judgment delivered on 13 December 1996 the Central Military Court found the applicant guilty as charged, sentenced him to one year's imprisonment and ordered him to pay damages to the State authorities in respect of his civil liability for an offence against the Treasury. The court held, inter alia, that the guilty verdict against the applicant had been based on a whole body of evidence that had been examined during the investigation and corroborated or adduced at the hearing – in particular, direct evidence such as expert reports, witness statements and documentary evidence. The applicant appealed on points of law to the Supreme Court. He submitted that the bench that had tried him could not be regarded as an impartial tribunal, firstly because D.R.G. had previously been a member of the bench that had ruled on his appeal against the order of 17 November 1993 in which he had been charged, and secondly because P.G.B. had, as the reporting judge, taken various investigative measures once the case had been sent for trial. The applicant also complained that the evidence had been assessed arbitrarily and that some of the prosecution evidence gathered during the investigation had not been produced at the trial but had been taken into consideration by the court, in breach of the adversarial principle and the presumption of innocence. In a judgment of 18 October 1997 the Supreme Court (Military Division) dismissed the appeal. With regard to the allegation that the trial court had been biased because D.R.G. had been one of the judges, the Supreme Court noted in its judgment that, according to the provisions of domestic law concerning the grounds on which judges might withdraw or be challenged and the relevant case-law, the fact that a judge had taken part in the adoption of a decision dismissing an appeal against a decision to bring charges could not in any way be regarded as an investigative measure capable of impairing (contaminar) the objective impartiality of the court which had to determine whether the person charged was guilty. As to the allegation that the court had been biased because P.G.B., as the reporting judge for the trial court, had taken certain investigative measures at the request of the prosecution, the Supreme Court observed that the judge had discharged the duties entrusted to him by law as the court's representative with a view to ensuring that direct evidence was obtained and that the court had direct knowledge of the investigative measures that needed to be carried out before the hearing. In respect of the complaint that there had been a breach of the adversarial principle and the presumption of innocence, the Supreme Court noted that at the hearing the applicant, who was assisted by his counsel, had examined the co-defendants, the witnesses and the experts and had put such questions as he had considered necessary for his defence. The Supreme Court found that his guilt had been established by the trial court on the basis of a whole body of evidence examined during the trial, in accordance with the principle that proceedings should be adversarial and public. The applicant then lodged an amparo appeal with the Constitutional Court, relying on his right to a fair hearing by an independent and impartial tribunal and on the principle of presumption of innocence (Article 24 of the Constitution). In a decision (auto) of 30 March 1998, served on the applicant on 6 April 1998, the Constitutional Court dismissed the appeal. As regards the complaint that the two judges in question had not been impartial, the court said that the applicant had been told the names of the judges on the trial bench (and thus those of the two judges in issue) and could have challenged them; having failed to do so, he had not exhausted domestic remedies. As to his other complaints, the Constitutional Court held that at the public hearing in the Central Military Court the defendants had appeared and given evidence, witnesses had been heard and various experts had given their opinions; the principle of presumption of innocence had been observed throughout. Article 24 of the Constitution provides: “1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests; in no circumstances may there be any denial of defence rights. 2. Similarly, everyone has the right to [be heard by] an ordinary judge determined beforehand by law; everyone has the right to defend himself and to be assisted by a lawyer, to be informed of the charge against him, to have a trial in public without unreasonable delay and attended by all the safeguards, to adduce the evidence relevant to his defence, not to incriminate himself or to admit guilt and to be presumed innocent. ...” The relevant provisions of Institutional Law no. 2/1989 of 13 April 1989 concerning grounds for challenge read as follows: “Judges, presiding judges and other members of military courts ... shall not take part in judicial proceedings if any of the grounds set out in section 53 applies; if they do take part, [they] may be challenged.” “[A judge] shall withdraw or, if he does not do so, may be challenged on any of the following grounds: ... 5. if he has acted as counsel for or has represented one of the parties, has as a lawyer drawn up a report in the proceedings or similar proceedings, or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness; 6. if he is or has been a complainant against or accuser of one of the parties; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection; ... 11. if he has taken part in the same proceedings in another capacity.” “... If the court or the judge considers that there is no justification for withdrawal, it or he shall order the person who has offered to withdraw to continue in the case, without prejudice to the parties' right of challenge. No appeal shall lie against such an order.” Section 56 provides that challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least forty-eight hours before the hearing unless the ground comes to light subsequently. With respect to orders by means of which an accused is charged (auto de procesamiento) and to appeals against such orders, the Act provides: “Where there is reasonable evidence of guilt on the part of one or more identified persons, the investigating judge shall charge them ... The charges shall be brought by an order [auto], in which shall be mentioned the punishable acts the accused is alleged to have committed, the presumed offence constituted by those acts and the [relevant] statutory provisions ... followed by the charges and the measures relating to the accused's release or detention pending trial ...” “... The accused and the other parties may lodge an appeal, which shall have no suspensive effect, against the order by means of which the accused is charged within five days of [its] being served ...” “... if the appeal against the order by means of which the accused is charged is allowed ..., an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include in the case file or which were referred to in the initial pleading on appeal.” In a judgment delivered on 14 November 1994 the Supreme Court gave a ruling on the circumstances in which a judge could be considered to have taken part in the same proceedings at an earlier stage for the purposes of a challenge under section 53(11) of the Military Court Proceedings Act. It held, inter alia: “A challenge to a judge [vocal] of a military court on the eleventh ground enumerated in section 53 of the Military Court Proceedings Act is only valid if the judge has taken investigative measures in connection with the case ... The mere fact of having dismissed an appeal against an order by means of which an accused is charged – a decision from which the only inference to be drawn is that the court does not disagree with the investigating judge's assessment of whether there is reasonable evidence of the accused's guilt – may not in any circumstances be regarded as an investigative measure capable of impairing the court's objective impartiality ...” | 0 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.