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train | 001-23409 | ENG | SVK | ADMISSIBILITY | 2,003 | KOREC v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Jozef Korec, is a Slovakian national, who was born in 1915 and lives in Uhrovec. The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 December 1993 the applicant filed an action for damages with the Topoľčany District Court. He claimed 4,345 Slovakian korunas (SKK) from his neighbour on the ground that snow which had fallen from the roof of the latter’s house had damaged his fence in 1991. The amount claimed was based on an expert’s opinion of 23 September 1993 elaborated at the applicant’s request. In his action the applicant stated that, upon the municipal office’s order of 7 January 1992, the neighbour had fixed the fence in a provisional manner. In the applicant’s view, the repair had not been carried out properly. He therefore considered himself entitled to compensation. On 24 January 1994 the Topoľčany District Court heard two witnesses. On 25 February 1994 the applicant challenged the judge. The Nitra branch office of the Bratislava Regional Court dismissed the request on 31 March 1994. On 1 July 1994 the judge examined the damaged fence in the presence of the parties. Hearings before the District Court were held on 22 August 1994 and on 8 September 1994. On 19 September 1994 the Topoľčany District Court dismissed the action with reference to witness statements according to which the defendant had repaired the applicant’s fence. The applicant appealed on 16 November 1994. On 25 May 1995 the Nitra branch office of the Bratislava Regional Court adjourned the case as the applicant had challenged the presiding judge. On 20 July 1995 the Supreme Court found that the judge concerned was not biased. On 28 September 1995 the Nitra branch office of the Bratislava Regional Court quashed the first instance judgment and instructed the District Court to appoint an expert with a view to determining the damage. On 11 December 1995 the District Court adjourned the case pending the submission of an expert opinion. On 12 December 1995 the applicant challenged the District Court judge. On 13 May 1996 the Nitra branch office of the Bratislava Regional Court found that the applicant’s request was unsubstantiated. On 26 June 1996 the District Court appointed an expert and instructed him to assess the damage. On 3 October 1996 the expert informed the District Court that the applicant had not allowed him to inspect the property in question. On 14 October 1996 the District Court informed the applicant that he was obliged to co-operate with the expert. On 1 January 1997 the case was taken over by a different judge following the transfer of the judge who had originally dealt with it to a different court. On 12 April 1997 the expert informed the District Court that the applicant had prevented him from entering his property. He was therefore not in a position to elaborate an opinion. On 13 June 1997 the District Court asked the police to assist the expert. This request was revoked after the applicant had informed the court, on 19 June 1997, that he did not wish to be disturbed by third persons entering his property. On 25 July 1997 the expert appointed by the District Court concluded in his opinion that the damage which the applicant had suffered amounted to SKK 5,900. The opinion was based on the material included in another expert opinion which had been elaborated at the applicant’s request in 1993. On 16 September 1997 the District Court delivered a decision on the expert’s fees. The applicant appealed and contended that the appointment of the expert had been superfluous and that the opinion submitted by the expert appointed by the court was erroneous. On 23 October 1997 the District Court delivered a judgment in which it ordered the defendant to pay compensation as claimed by the applicant, namely SKK 4,345. The compensation granted to the applicant was lower than the assessment made by the expert appointed by the court, as the District Court was bound by the applicant’s claim. On 3 December 1997 the applicant appealed. He claimed, with reference to the length of the proceedings, SKK 200,000 in compensation for non-pecuniary damage. The applicant also claimed the reimbursement of the fees of the expert whom he had asked to assess the damage in 1993. On 17 December 1997 the defendant submitted his observations on the applicant’s appeal. On 7 October 1998 the Nitra Regional Court rejected the applicant’s appeal against the judgment of 23 October 1997. It noted that under the relevant provisions of the Code of Civil Procedure a plaintiff lacked standing to appeal against a first instance judgement by which his or her claim was allowed in full. In the same decision the Nitra Regional Court upheld the District Court’s decision on expert’s fees of 16 September 1997. | 0 |
train | 001-112576 | ENG | BGR;ITA | CHAMBER | 2,012 | CASE OF M. AND OTHERS v. ITALY AND BULGARIA | 2 | Preliminary objection partially dismissed (Article 34 - Victim);Preliminary objection partially allowed (Article 34 - Victim);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect) (Italy);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) (Italy) | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre;Zdravka Kalaydjieva | 6. The applicants were born in 1985, 1959, 1958 and 1977 respectively and live in the village of Novo Selo in the Vidin region (Bulgaria). The applicants are of Roma ethnic origin. At the time of the events (May-June 2003), the first applicant was still a minor. The second and third applicants are her father and mother, and the fourth applicant is the first applicant’s sisterinlaw. 7. 8. The first, second and third applicants arrived in Milan on 12 May 2003 following a promise of work by X., a Roma man of Serbian nationality, residing in Italy, who accommodated them in a villa in the village of Ghislarengo, in the province of Vercelli, where he lived with his family. The third and the first applicants provided different versions on this point to the Italian authorities. In her declarations to the Italian police, on 24 May 2003, the third applicant maintained that she, her husband and her daughter, who lived in Bulgaria in a condition of extreme precariousness, moved to Italy in search of work; when they arrived in Milan they approached an individual who spoke their language, X., who proposed to them to work as domestic employees to take care of his big house. The first applicant, in her declarations to the public prosecutor on 11 June 2003, maintained that she had met X. in “Yugoslavia”, where she was with her mother in search of a job, and from there X. had driven them to Italy in his car after proposing a job. They remained in the villa for several days, during which time they undertook household chores. After a while, X. declared to the second applicant that Y., his nephew, wanted to marry his daughter (the first applicant). As the second and third applicants refused, X. threatened them with a loaded gun. Then the second and third applicants were beaten, threatened with death and forced to leave the first applicant in Italy and go back to Bulgaria. Although the applicants denied this, it seems from their initial submissions that the second and third applicants had been offered money to leave their daughter behind. On 18 May 2003, the second and third applicants went back to Bulgaria. On their return the second applicant was diagnosed with type 2 diabetes, which he alleged was a consequence of the stress endured. 9. The applicants submitted that during the month (following 18 May 2003) spent at the villa in Ghislarengo, the first applicant was kept under constant surveillance and was forced to steal against her will, was beaten, threatened with death and repeatedly raped by Y. while tied to a bed. During one of the robberies in which the first applicant was forced to participate, she had an accident and had to be treated in hospital. However, the Serbian family refused to leave her there to undergo treatment. The applicants submitted that they were not aware of the name and location of this hospital. 10. On 24 May 2003 the third applicant returned to Italy, accompanied by the first applicant’s sisterinlaw (the fourth applicant), and lodged a complaint with the Italian police in Turin, reporting that she and her husband had been beaten and threatened and that the first applicant had been kidnapped. She further feared that her daughter might be led into prostitution. They were settled in a monastery near Turin. Subsequently, the police accompanied them with an interpreter to identify the house in Ghislarengo. 11. Apparently frustrated with the police’s slowness in responding to the complaint, the second applicant lodged written complaints with many other institutions. A letter of 31 May 2003, addressed to the Italian Prime Minister, the Italian Ministers for Foreign and Internal Affairs, the Italian Ambassador in Bulgaria, the Prefect of Turin, the Bulgarian Prime Minister, the Bulgarian Minister for Foreign Affairs and the Bulgarian Ambassador to Italy, is included in the file. 12. It has been shown that, eighteen days after the lodging of the complaint, on 11 June 2003, the police raided the house in Ghislarengo, found the first applicant there and made a number of arrests. At about 2 p.m. that day, she was taken to a police station in Vercelli and questioned, in the presence of an interpreter, by two female and two male police officers. The applicants alleged that she was treated roughly and threatened that she would be accused of perjury and libel if she did not tell the truth. Allegedly she was then forced to declare that she did not wish her supposed kidnappers to be prosecuted, to answer “yes” to all other questions, and to sign certain documents in Italian, which she did not understand and which were neither translated into Bulgarian nor given to her. They also alleged that the interpreter did not do her job properly and remained silent in the face of the treatment being inflicted. The applicants further alleged that Y. was present during certain parts of the first applicant’s questioning. 13. Later that day, the third applicant was questioned by the police in Vercelli in the presence of an interpreter. The third applicant alleged that she was also threatened that she would be accused of perjury and libel if she did not tell the truth, and that the interpreter did not do her job properly. She claimed that, as she refused to sign the record, the police treated her badly. 14. At about 10 p.m. on the same day the first applicant was questioned again. The applicants alleged that no interpreter or lawyer was present and that the first applicant was unaware of what was recorded. The first applicant was then taken to a cell and left there for four or five hours. On 12 June 2003 at about 4 a.m., she was transferred to a shelter for homeless persons, where she remained until 12.30 p.m. 15. On the same day, upon their request, the first, third and fourth applicants were taken by the police to the railway station in Vercelli and travelled back to Bulgaria. They submitted to the Court that the facts were then investigated by the Italian authorities, but that no criminal proceedings were instituted in Italy against the first applicant’s kidnappers, or at least that they were not informed, nor were they able to obtain information about any ongoing criminal investigation. They also complained that the Italian authorities did not seek to question the second applicant in order to establish the facts, by means of cooperation with the Bulgarian authorities. 16. It appears from the file that, after June 2003, the applicants sent several letters and e-mails, most of which were in Bulgarian, to the Italian authorities (such as the Italian Prime Minister, the Italian Ministers for Justice and Internal Affairs, the General Prosecutor attached to the Court of Appeal of Turin, the mayor of Ghislarengo and the Italian diplomatic authorities in Bulgaria), with a request to provide them with information about the police raid of 11 June 2003 and to start criminal proceedings against the first applicant’s alleged kidnappers. They also complained that they had suffered threats, humiliation and ill-treatment at the hands of the police. They asked those authorities to forward their complaints to the Public Prosecutor in Vercelli and to the police department of the same town. 17. At the same time, the applicants also wrote to the Prime Minister of Bulgaria, the Head of the Consular Relations Division of the Bulgarian Ministry of Foreign Affairs (CRD) and the Bulgarian Consulate in Rome, requesting them to protect their rights and assist them in obtaining information from the Italian authorities. The Bulgarian Consulate in Rome provided the applicants with certain information. 18. The applicants did not provide the Court with any document regarding their questioning and the subsequent criminal proceedings against them (see below). Their representative claimed that, considering the circumstances, including the alleged refusal of the Italian Embassy in Bulgaria, it was impossible to submit any document. Apart from copies of the letters sent to the Italian institutions, they only submitted two medical reports, one dated 22 June 2003 establishing that the first applicant was suffering from post-traumatic stress disorder and one dated 24 June 2003 establishing that the first applicant had a bruise on the head, a small wound on the right elbow and a broken rib. It further stated that she had lost her virginity and was suffering from a vaginal infection. The medical report concluded that these injuries could have been inflicted in the way the first applicant had reported. 19. On 21 April 2009 and 30 July 2009, at the Court’s request, the Italian Government submitted a number of documents, among which the transcript of the first complaint lodged by the third applicant on 24 May 2003 with the Turin police, and the minutes of the interviews with the first applicant, the third applicant and some of the alleged kidnappers, which took place on 11 June 2003. 20. It appears from these documents that the transcript of the third applicant’s first complaint against the alleged kidnappers (lodged with the Italian police in Turin on 24 May 2003), as well as the applicants’ complaints sent by their representative to different Italian institutions, in the following days, were transmitted to the Italian police in Vercelli (on 26 May and 6 June 2003 respectively) and to the Public Prosecutor of the same town (on 4 and 13 June 2003 respectively). 21. More specifically, on 26 May 2003 the Turin Mobile Squad requested help from the Vercelli Mobile Squad to identify the location where the first applicant was allegedly being held. On 27 May 2003 the Vercelli Mobile Squad went to Ghislarengo to identify the location together with the third applicant. They inspected the location and the third applicant identified the villa she had mentioned in her complaint. On 4 June 2003 the Vercelli Police Headquarters transmitted the crime report (notizia di reato) to the Vercelli Public Prosecutor’s Office. From the communal registry it appeared that no person resided in the identified villa, but that it was owned by an individual who had a criminal record. In consequence, the police kept the place under surveillance. The police raided the villa on 11 June 2003, after having observed movement inside. During the search the police seized a number of cameras containing photographs of what appeared to be a wedding. 22. On 7, 11, 12 and 13 June 2003, the Ministry of Internal Affairs was informed by fax of developments in the case. 23. On 11 June 2003 at about 2.30 p.m., immediately after the raid, the first applicant was questioned by the Public Prosecutor of Vercelli, who was assisted by the police. As also transpires from the documents, the first applicant made allegations that showed a number of discrepancies with the complaint previously submitted by her mother, and which led the authorities to conclude that no kidnapping, but rather an agreement about a marriage, had in reality taken place between the two families. This conclusion was confirmed by photographs given to the police by X. after the raid, showing a wedding party at which the second applicant received a sum of money from X. When showed the photographs, the first applicant denied that her father had taken money as part of the agreement about the marriage. 24. At 8.30 p.m. the third applicant was questioned by the Public Prosecutor in Vercelli. She stated again that her daughter had not married Y. of her own free will, and claimed that the photographs were nothing but a fake, taken on purpose by the alleged kidnappers, who had threatened them with a gun, in order to undermine the credibility of their version of the facts. The Vercelli police also questioned X., Z. (a third party present at the wedding) and Y., who all stated that Y. had entered into a consensual marriage with the first applicant. 25. As a result of these interviews and on the basis of the photographs, the Public Prosecutor of Vercelli decided to turn the proceedings against unknown persons for kidnapping (1735/03 RGNR) into proceedings against the first and third applicants for perjury and libel. Later that evening, the first and third applicants were informed by the Vercelli and Turin police about the charges and invited to appoint a representative. They were then provided with a court-appointed lawyer. At about 11.30 p.m. the first applicant was transferred to a shelter for homeless people. On 12 June 2003 she was released into the custody of her mother. The applicants’ complaints sent to many Italian institutions during the following months were received by the Police Department in Vercelli, translated into Italian and forwarded to the Ministry of Internal Affairs. 26. Following information requests, the first dated 6 November 2003 by the Embassy of Bulgaria in Rome, the Italian authorities updated the Consul about the status of the criminal proceedings (mentioned below) on 7 and 19 November 2003, and 2 December 2003. 27. On 11 July 2003, the Public Prosecutor attached to the Juvenile Court of Piedmont and Valle d’Aosta started criminal proceedings (1838/03 RGNR) against the first applicant for false accusations (calunnia) in so far as she claimed that X., Y. and Z. deprived her of her personal liberty by keeping her in the villa, thus accusing them of kidnapping while knowing they were innocent. 28. On 28 November 2003 the first applicant was invited for questioning by the Public Prosecutor, but she was in Bulgaria and did not appear. 29. On 26 January 2005 the Investigating Magistrate of the Juvenile Court decided not to proceed with the charges in so far as the offences committed were one-off and not serious, and therefore “socially irrelevant”. 30. On 26 June 2003 the Public Prosecutor of Turin started criminal proceedings (18501/03 RGNR) against the third applicant for perjury and false accusations (calunnia) in so far as she claimed that X., Y. and Z. deprived her daughter of her personal liberty by keeping her in the villa, thus accusing them of kidnapping while knowing they were innocent. 31. On 22 July 2003 the Public Prosecutor of Turin concluded the investigation against the third applicant and sent the case to the Turin Criminal Court. 32. On 8 February 2006 the Turin Criminal Court acquitted the third applicant, on the ground that the facts of which she was accused did not subsist. The actual evidence consisting of the notes verbal of the questioning of the accused and her daughter, the photographic evidence and the policemen’s statements, were indicative and could not establish without doubt the guilt of the accused. The accused and her daughter’s statements were contradictory and the photos did not certify the circumstances in which they were taken. According to the police statements it could only be deduced that the daughter had been found at the villa and the persons who could have clarified the facts had availed themselves of the right to remain silent. The understanding of the facts was further complicated by the Roma tradition of selling, or paying a sum of money previously established to the family of the bride for the purposes of concluding a marriage, a matter which in the case of a dispute could have created consequences which it had been impossible to establish. 33. On the basis of the documents produced by the Italian Government, particularly the declarations made by X., Y. and Z., the Bulgarian Government considered the facts to be as follows. On 12 May 2003 the first three applicants arrived in Italy and were accommodated in the nomad camp in Arluno. It was there that X., Y. and Z. met them and that Y. chose the first applicant as his spouse. The first applicant agreed and therefore Z. and the second applicant bargained over the price of the bride. The second applicant initially demanded EUR 20,000, but eventually they agreed on the sum of EUR 11,000. Z. paid the second applicant EUR 500 in advance. After festivities the newlyweds retired to the trailer where they consummated the marriage and Y. confirmed that the first applicant had been a virgin. The two families then went to the nomad camp of Kudzhiono where they celebrated the marriage. At the end of the wedding X. paid the second applicant the remainder of the amount due, namely EUR 10,500, in the presence of both families and other witnesses, as proven by the photographs. After the festivities the bride’s parents were accompanied to the railway station and left for Bulgaria on 18 May 2003. 34. Once in Bulgaria it was only on 31 May 2003, thirteen days after their departure from Italy, that the second applicant complained to the CRD of Bulgaria. Following this first notification, the Bulgarian authorities took immediate action and on 2 June 2003 the claim was forwarded to the Bulgarian Embassy in Rome. Contact was made with the Italian authorities and a successful raid by the Italian police which freed the first applicant was carried out on 11 June 2003. 35. Subsequently, the first and third applicants were questioned by a prosecutor specialised in interaction with minors, in the presence of an interpreter. Following an investigation by the Italian authorities, criminal proceedings against the first and third applicants for perjury were initiated. The applicants did not inform the Bulgarian authorities of the latter proceedings. 36. According to Article 50 sub-articles 1 and 2 of the Code of Criminal Procedure, the Public Prosecutor undertakes criminal proceedings when the conditions for archiving a case are not fulfilled. When the complaint of the injured party or an authorisation to proceed is not required, criminal proceedings are undertaken ex proprio motu. According to Article 408 of the Criminal Code of Procedure, a request to archive a case is made if the notice of the crime (notizia di reato) is unfounded. Such a request is transmitted together with the relevant file and documents to the judge for preliminary inquiry. Notice of such a request is given to any victim who has previously declared his or her wish to be informed of any such action. The latter notice includes information about the possibility to consult the case-file and to submit an objection (opposizione), together with a reasoned request to continue the preliminary investigation. 37. Article 55 (1) of the Code of Criminal Procedure provides that the judicial police must, even on their own initiative, receive notice of crimes, prevent further crimes, find the perpetrators of crimes, take any measures necessary to ensure the sources of evidence and the collection of any other relevant material which might be needed for the application of the criminal law. 38. According to the Italian Criminal Code, at the time of the relevant facts, assault/battery (percosse), wounding and wounding with intent (lesione personale, lesioni personali colpose), kidnapping (sequestro di persona), sexual violence (including rape but not only) (violenza sessuale), private violence (violenza privata), violence or threat for the purposes of forcing the commission of an offence (violenza o minaccia per costringere a commettere un reato), and threats (minaccia) are crimes punishable by imprisonment for periods ranging from one day to six months for the more minor offence and to five years to ten years for the more serious offence. Moreover, some of these crimes are subject to higher prison sentences when the crime is committed against, inter alia, a descendant or wife, as for example in the case of kidnapping, or are subject to the application of aggravating circumstances when, as in the case of sexual violence, the victim is younger than fourteen years of age, the victim is younger than sixteen years of age and has been assaulted by an ascendant parent or tutor, or the victim was subject to limited personal liberty. 39. Article 572 of the Criminal Code provides for a prison sentence of up to five years for anyone found guilty of ill-treating a member of his or her family, a child under fourteen years of age, or a person under his or her authority or who has been placed in his or her care for the purposes of education, instruction, care, supervision or custody. 40. The Italian Criminal Code, at the time of the present case, also included specific provisions relating to minors, which, in so far as relevant, read as follows: “Whoever takes away from the parent having parental authority or the curator, without the latter’s consent, a minor over fourteen years of age with his or her consent is punished by imprisonment of a period of a maximum of two years upon the complaint of the said parent or curator. The punishment is diminished if the purpose of the taking away is marriage and increased if it is lust.” “A term of imprisonment of five to ten years is applicable for the offence of sexual acts not covered by the offence of sexual violence when the victim is: 1) Under twelve years of age, 2) Under sixteen years of age, if the aggressor is the ascendant, parent, or the latter’s cohabitee, tutor or any other person having the victim’s care for the purposes of education, instruction, care, supervision or custody and with whom the victim cohabits. Save for the circumstances provided for under the offence of sexual violence, the ascendant, parent, or the latter’s cohabitee, and the tutor who has abused his or her powers connected to his or her position and is guilty of sexual acts with a minor older than sixteen years of age, is punished by imprisonment of from three to six years.” 41. Law no. 154 of 2001 introduced a number of measures against violence in family relations. These included precautionary and permanent measures regarding the ousting of the accused from the family home upon a decree to this effect by a judge. 42. Italy adopted Law no. 228, namely the Law on Measures to Prevent Trafficking in Human Beings, on 11 August 2003. The latter has added a number of offences to the Criminal Code, which in so far as relevant read as follows: “Whoever exercises over a person powers corresponding to those of ownership, that is, whoever reduces or maintains a person in a state of continued subjection, forcing the person into labour or sexual services or begging, or in any event services involving exploitation, is punished by imprisonment of a period of eight to twenty years. The holding of a person in a state of subjection occurs when such conduct is carried out by means of violence, threats, deception, abuse of authority or taking advantage of a situation of physical or mental inferiority or of a situation of need, or through the promise or the payment of a sum of money or other advantage to the individual who has authority over the person. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” “Whoever commits human trafficking for the purposes of holding a person in servitude or slavery as mentioned in article 600 above and induces such person, by means of violence, threats, deception, abuse of authority or taking advantage of a situation of physical of mental inferiority or of a situation of need, or through the promise or donation of a sum of money or other advantages to the individual who has authority over the said person, to enter or stay or leave the territory of the state or to displace him or herself internally, is punished by imprisonment of a period of eight to twenty years. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” Article 602 (purchase and alienation of slaves) “Whoever, save for the cases indicated in article 601, purchases, alienates or sells a person in the situation laid down in article 600, is punished by imprisonment of a period of eight to twenty years. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” 43. Law no. 228 also included other changes to the Criminal Code in relation to the above articles when taken in conjunction with pre-existing ones, such as Article 416, whereby it provided for specific punishments if association to commit a crime was directed towards committing any of the crimes in articles 600 to 602. It further provided for administrative sanctions in respect of juridical persons, societies and associations for crimes against individual personality and made the relevant changes to the Criminal Code of Procedure, including its provisions regarding interception of conversations or communications and undercover agents, which became applicable to the new offences. Law no. 228 also created a fund for anti-trafficking measures and the institution of a special assistance programme for victims of the crimes under articles 600 and 601 of the Criminal Code, together with provision for preventive measures. In so far as relevant, articles 13 and 14 of the said law read as follows: “Save for the cases provided for under article 16-bis of legislative decree no. 8 of 15 January 1991, converted and modified by law no. 82 of 15 March 1991, and successive amendments, for the victims of the crimes under article 600 and 601 of the criminal code, as substituted by the present law, there shall be instituted ... a special assistance programme that guarantees temporary, adequate board and lodging conditions and health assistance. The programme is defined by regulation still to be adopted (...)” “In order to reinforce the effectiveness of the action on prevention of the crimes of slavery and servitude and crimes related to human trafficking, the Minister for Foreign Affairs defines policies of cooperation in respect of any States interested in/affected by such crimes, bearing in mind their collaboration and the attention given by such States to the problems of respecting human right. The said Minister must ensure, together with the Minister of Equal Opportunities, the organisation of international meetings and information campaigns, particularly in States from which most victims of such crime come. With the same aim, the Ministers of Interior, of Equal Opportunities, of Justice and of Labour and Social Policy, must organise where necessary training courses for personnel and any other useful initiative.” 44. Law No. 189 of 30 July 2002 amended earlier laws regarding immigration. Its Article 18 relates to stays for reasons of social protection and in so far as relevant reads as follows: 1. When the existence of situations of violence or serious exploitation in respect of a foreigner are established during police operations, investigations or proceedings regarding the crimes under article 3 of Law no. 75 of 20 February 1958 [crimes related to prostitution] or during assistance intervention by the local social services, and there appears to be a concrete peril for his or her safety as a result of his or her attempts to escape from the influence of the association engaging in any of the above-mentioned crimes, or the declarations made during the preliminary investigation or the proceedings, the Police Commissioner upon request of the Public Prosecutor or with a favourable suggestion by the said authority, releases a special residence permit to allow the foreigner to escape the said violence and influence of the criminal organisation and to participate in a programme of assistance and social integration. 2. The elements showing the subsistence of such conditions, particularly the gravity and imminence of the peril together with the relevance of the help offered by the foreigner for the identification and capture of those responsible for the said crimes, must be communicated to the Police Commissioner with the above mentioned request or suggestion. The procedure for participating in such a programme is communicated to the mayor.” The text states that the permit released for such purposes has a duration of six months and may be renewed for one year or for as long as necessary in the interest of justice. It also provides the conditions on the basis of which the permit may be revoked, what it entails, and who may issue it. 45. According to a Report of the Expert Group Meeting organized by the United Nations Division for the Advancement of Women, Department of Economic and Social Affairs (DAW/DESA), in collaboration with the United Nations Office on Drugs and Crime (ODC), of November 2002 entitled Trafficking in Women and Girls (EGM/TRAF/2002/Rep.1), in the first two years of implementation of this provision, 1,755 people – mostly women and girls – have been accepted in the programmes of assistance and social integration, and about 1,000 have received a residence permit. A hotline has been established, and more than 5,000 people have received concrete help in terms of information, counselling and health care. 46. The Bulgarian law on combating human trafficking entered into force on 20 May 2003. In so far as relevant the provisions read as follows: “This Law shall provide for the activities aimed at preventing and counteracting the illegal trafficking in human beings for the purposes of: a. Providing protection and assistance to victims of such trafficking, especially to women and children, and in full compliance with their human rights; b. Promoting co-operation between the governmental and municipal authorities as well as between them and NGOs for fighting the illegal trafficking in human beings and developing the national policy in this area.” “The diplomatic and consular posts of the Republic of Bulgaria abroad shall provide assistance and co-operation to Bulgarian nationals who have become victims of illegal trafficking for their return to the country in accordance with their powers and with the legislation of the relevant foreign country.” “(1) In compliance with the Bulgarian legislation and the legislation of the accepting country, the diplomatic and consular posts of the Republic of Bulgaria abroad shall distribute amongst the relevant individuals and the risk groups information materials about the rights of the victims of human trafficking. (2) The diplomatic and consular posts of the Republic of Bulgaria abroad shall provide information to the bodies of the accepting country regarding the Bulgarian legislation on human trafficking.” 47. Article 174 (2) of the Bulgarian Code of Criminal Procedure in force at the time of the events read as follows: “When aware of the commission of a criminal offence punishable by law, civil servants are duty bound to immediately inform the organ competent to undertake preliminary inquiries and to take the necessary measures to preserve the elements of the offence.” 48. Article 190 of the Bulgarian Code of Criminal Procedure states: “There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed.” 49. In so far as relevant the Bulgarian Criminal Code reads as follows: “Whoever coerces a person to contract a marriage, which is thereafter annulled on this ground, will be punished by imprisonment of a maximum period of three years. (2) Whoever kidnaps a woman with a view to coercing her to marry, will be punished by imprisonment of a maximum period of three years; if the victim is a minor, the punishment will be imprisonment for a period of up to five years.” “(1) A parent or any other relative who receives a sum of money in order to authorise the marriage of his or her daughter or a relative, will be punished by imprisonment of a maximum period of one year or by a fine of between 100 to 300 levs (BGN) together with a public reprimand. (2) the same punishment applies to whoever pays or negotiates the price.” “Whoever abuses his or her parental authority to coerce a child, not having attained sixteen years of age, to live as a concubine with another person, will be punished by imprisonment of a period of three years, or by a control measure without deprivation of liberty (пробация) together with a public reprimand.” “(1) All adults who without having contracted marriage are living as concubines with a female who has not attained sixteen years of age will be punished by imprisonment of a period of two years, or by a control measure without deprivation of liberty (пробация) together with a public reprimand. (...)” “The persons who select, transport, hide or receive individuals or groups thereof with the aim of using such individuals for the purposes of prostitution, forced labour or the removal of organs, or to maintain them in a state of forced subordination, with or without their consent, are punished by imprisonment of a period of from one to eight years and by a fine of a maximum of 8,000 levs (BGN). (2) When the offence in paragraph one above is committed 1) against an individual, who has not attained eighteen years of age, 2) with coercion or false pretences, 3) through kidnapping or illegal detention, 4) by taking advantage of a state of dependence, 5) by means of abuse of power, 6) through the promise, giving or receipt of benefits, the punishment is imprisonment for a period of two to ten years and a fine of a maximum of 10,000 levs (BGN).” “Whoever selects, transports, hides or receives individuals or groups thereof and transfers them by crossing the border of the country with the aim mentioned in sub-paragraph 159 (a) above, will be punished by imprisonment for a period of three to eight years and by a fine of a maximum of 10,000 levs (BGN). (2) if such an act takes place in the conditions mentioned in Article 159 (a) (2), the punishment will be imprisonment of a period of five to ten years and a fine of a maximum of 15,000 levs (BGN).” “If the offences mentioned in Article 159 (a) and (b) above are committed by a recidivist or are ordered by a criminal organisation, the punishment is imprisonment for a period of five to fifteen years and a fine of a maximum of 20,000 levs (BGN); the tribunal may also order the seizure of part or the entirety of the possessions of the actor.” 50. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the United Nations General Assembly resolution 40/34 of 29 November 1985, in so far as relevant reads as follows: “1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.” 51. An overview of the relevant international instruments pertaining to trafficking in human beings can be found in Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010. 52. The Palermo Protocol was ratified by Bulgaria on 5 December 2001 and by Italy on 2 August 2006, both States having previously signed the protocol in December 2000. The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was signed by Bulgaria on 22 November 2006 and ratified on 17 April 2007. It entered into force in respect of Bulgaria on 1 February 2008. It was signed by Italy on 8 June 2005, ratified on 29 November 2010 and entered into force in respect of Italy on 1 March 2011. 53. For easiness of reference the relevant definitions for the purposes of the Anti-Trafficking Convention are reproduced hereunder: a “Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; b The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in human beings” even if this does not involve any of the means set forth in subparagraph (a) of this article; d “Child” shall mean any person under eighteen years of age; e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article. 54. The explanatory report to the Anti-Trafficking Convention 16.V.2005 reveals further detail regarding the definition of trafficking. In particular in respect of “exploitation”, in so far as relevant, it reads as follows: 85. The purpose must be exploitation of the individual. The Convention provides: “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings. 86. The forms of exploitation specified in the definition cover sexual exploitation, labour exploitation and removal of organs, for criminal activity is increasingly diversifying in order to supply people for exploitation in any sector where demand emerges. 87. Under the definition, it is not necessary that someone have been exploited for there to be trafficking in human beings. It is enough that they have been subjected to one of the actions referred to in the definition and by one of the means specified “for the purpose of” exploitation. Trafficking in human beings is consequently present before the victim’s actual exploitation. 88. As regards “the exploitation of the prostitution of others or other forms of sexual exploitation”, it should be noted that the Convention deals with these only in the context of trafficking in human beings. The terms “exploitation of the prostitution of others” and “other forms of sexual exploitation” are not defined in the Convention, which is therefore without prejudice to how states Parties deal with prostitution in domestic law. The explanatory report continues to list the other types of exploitation, namely forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs and gives their definition according to the relevant international instruments and the ECHR case-law where available. 55. Following the General Assembly of the United Nations resolution 843 (IX) of 17 December 1954, declaring that certain customs, ancient laws and practices relating to marriage and the family were inconsistent with the principles set forth in the Charter of the United Nations and in the Universal Declaration of Human Rights, and calling on states to develop and implement national legislation and policies prohibiting such practices, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages was opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962. Italy signed the Convention on 20 December 1963, but has to date not ratified the Convention. The Bulgarian State has yet to sign the Convention. 56. The relevant provisions read as follows: “1. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law. 2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent.” “States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.” “All marriages shall be registered in an appropriate official register by the competent authority.” “1. The Parliamentary Assembly is deeply concerned about the serious and recurrent violations of human rights and the rights of the child which are constituted by forced marriages and child marriages. 2. The Assembly observes that the problem arises chiefly in migrant communities and primarily affects young women and girls. 3. It is outraged by the fact that, under the cloak of respect for the culture and traditions of migrant communities, there are authorities which tolerate forced marriages and child marriages although they violate the fundamental rights of each and every victim. 4. The Assembly defines forced marriage as the union of two persons at least one of whom has not given their full and free consent to the marriage. 5. Since it infringes the fundamental human rights of the individual, forced marriage can in no way be justified. 6. The Assembly stresses the relevance of United Nations General Assembly Resolution 843 (IX) of 17 December 1954 declaring certain customs, ancient laws and practices relating to marriage and the family to be inconsistent with the principles set forth in the Charter of the United Nations and in the Universal Declaration of Human Rights. 7. The Assembly defines child marriage as the union of two persons at least one of whom is under 18 years of age.” “24. The Assembly calls on the Roma community and its representatives to fight discrimination and violence against Roma women and girls in their own community. In particular, the problems of domestic violence and of forced and child marriages, which constitute a violation of human rights, need to be addressed also by the Roma community itself. Custom and tradition cannot be used as an excuse for human rights violations, but should instead be changed. The Assembly calls on member states to support Romani women activists who engage in debates within their community about the tensions between the preservation of a Romani identity and the violation of women’s rights including through early and forced marriages.” 57. More recently, at the Council of Europe High Level Meeting on Roma, Strasbourg, 20 October 2010, the member States of the Council of Europe agreed on a non-exhaustive list of priorities, which should serve as guidance for more focused and more consistent efforts at all levels, including through active participation of Roma. These included: “Women’s rights and gender equality (22) Put in place effective measures to respect, protect and promote gender equality of Roma girls and women within their communities and in the society as a whole. (23) Put in place effective measures to abolish where still in use harmful practices against Roma women’s reproductive rights, primarily forced sterilisation. Children’s rights (24) Promote through effective measures the equal treatment and the rights of Roma children especially the right to education and protect them against violence, including sexual abuse and labour exploitation, in accordance with international treaties. Combat trafficking (29) Bearing in mind that Roma children and women are often victims of trafficking and exploitation, devote adequate attention and resources to combat these phenomena, within the general efforts aimed at curbing trafficking of human beings and organised crime, and, in appropriate cases, issue victims with residence permits.” | 1 |
train | 001-61210 | ENG | FIN | CHAMBER | 2,003 | CASE OF THE FORTUM CORPORATION v. FINLAND | 3 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Nicolas Bratza | 9. The applicant is a multinational company specialising, inter alia, in the wholesale of petrochemical products, as was Neste at the time of relevance to the case. 10. In light of submissions lodged by another company in the field – Suomalainen Energiaosuuskunta (“SEO”) – the Competition Office (kilpailuvirasto, konkurrensverket), on 11 October 1993, initiated proceedings before the Competition Council (kilpailuneuvosto, konkurrensrådet), requesting that Neste be ordered to cease abusing its dominant position on the Finnish market for motor engine fuel. In the view of the Competition Office the reductions in Neste's wholesale prices discriminated against some of its clients, thereby violating the 1992 Act on Competition Restrictions (laki kilpailunrajoituksista, lag om konkurrensbegränsningar 480/1992). The Competition Office therefore requested that Neste be ordered to cease and desist from applying certain pricing criteria. 11. In a further submission of 11 February 1994 the Competition Office requested that an administrative fine (seuraamusmaksu, påföljdsavgift) be imposed. As a new fact the Competition Office referred to Neste's unwillingness to concede that it had been violating the relevant provisions and accordingly to change the price of fuel sold to SEO. 12. On 16 June 1994 the Competition Council held that Neste had abused its dominant position on the relevant market but found no reason to impose a fine on the company. Neste, SEO and the Competition Office all appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). Neste maintained that it did not hold a dominant position on the market in question and in any case had not been abusing it. SEO appealed in so far as the Competition Council had accepted certain of Neste's criteria for price differentiation. The Competition Office contended that a fine should have been imposed. 13. On 9 and 14 September 1994 Neste forwarded to the Competition Office its interpretation of the Competition Council's decision as to the pricing criteria to be applied in light of the latter's decision. On 17 October 1994 the Competition Office replied that its interventions were limited to questions of principle. It could therefore not pronounce itself on Neste's proposed interpretation regarding the acceptable pricing criteria. 14. On 14 and 30 November 1994 Neste again drew the Competition Office's attention to its difficulties in interpreting the Competition Council's decision. 15. In a submission to the Supreme Administrative Court dated 26 June 1995 Neste demanded equality of arms in the proceedings. Reference was made to a telephone conversation between Neste's representative and a legal officer of the Supreme Administrative Court from which it had transpired that a secret memorandum of the Competition Office dated 19 June 1995 had been filed with the Supreme Administrative Court. The memorandum discussed Neste's conduct following the Competition Council's decision. The document had been released to Neste by the Competition Office itself on 22 June 1995 in response to the company's request. 16. In a further submission to the Supreme Administrative Court dated 24 July 1995 Neste challenged the accuracy of the Competition Office's memorandum, including the conclusions drawn. Neste again objected to the Supreme Administrative Court's failure to hear it formally in respect of the Competition Office's observations and apparently other memoranda. 17. By decision of 30 November 1995 (reported in its 1995 Yearbook A, p. 246) the Supreme Administrative Court, without commenting on Neste's procedural objections of 26 June and 24 July 1995, upheld the Competition Council's decision in large part. The court found, inter alia, that Neste, being in a dominant position on the relevant market, could in principle have objectively justifiable grounds for treating its clients differently according to certain criteria. In the case under examination Neste had not, however, shown any convincing grounds for differentiating between its clients on any ground other than on the basis of the volume of fuel purchased. By applying other pricing criteria Neste had accordingly abused its dominant position. 18. Having concluded that a fine should have been imposed on Neste, the Supreme Administrative Court referred the fixing of its amount to the Competition Council. It further ordered that Neste's conduct after 16 June 1994, in respect of which the court had received “substantial new information”, was to be taken into account. The court declined to examine itself what significance should be given to that information. 19. The Supreme Administrative Court's case-file indicates that it deliberated on 22 and 30 May as well as on 14 June 1995. 20. On 4 December 1995 the Competition Council confirmed to the parties that the sole question which remained to be decided was the size of the fine to be imposed on Neste. In January 1996 the Competition Office proposed a fine in the amount of 100,000,000 Finnish Marks (FIM) (approximately 16,819,000 euros (EUR) ). This proposal was rejected by the Competition Council. The Competition Office then filed a new proposal in which the amount of the fine was maintained but on different grounds. 21. In the beginning of 1996 Neste's representative found in the Supreme Administrative Court's case-file a copy of further observations drawn up by the Competition Office and dated 6 March 1995. They bore a stamp indicating that they had been received by the Supreme Administrative Court on 8 March 1995. The Competition Office had forwarded a copy to the Competition Council but not to Neste. The observations sought to refute Neste's arguments by highlighting the salient points of a 1994 decision of the European Commission in the case Texaco v. Norsk Hydro which the Competition Office argued supported the Competition Council's decision of 16 June 1994. The Supreme Administrative Court had not heard Neste in respect of those observations. 22. Following an oral hearing the Competition Council, by decision of 30 October 1996, fixed Neste's fine at FIM 2,000,000 (about EUR 336,000). It noted that Neste's pricing practice from 1 January to 8 February 1993 had clearly discriminated against SEO and had been found to be unlawful under the 1992 Act. While the prohibited pricing practice had not been significant in nature, it had not been so insignificant as to justify a waiver of the fine. 23. As regards Neste's conduct from 17 June 1994 to 30 November 1995 the Competition Council found that it had not deviated to such an extent from its decision of 16 June 1994 as to justify the imposition of a fine. In addition, Neste's attempts to obtain approval of its amended pricing practice had been in vain, since the Competition Office had failed in its obligation to direct and supervise the implementation of that decision. Accordingly, no fine was imposed for Neste's conduct during that period. 24. On 5 July 2000 the Supreme Administrative Court refused, in extraordinary proceedings, the applicant company's request for an annulment of its decision of 30 November 1995 in the ordinary proceedings under the 1992 Act. The court found that no procedural error had taken place and reasoned, inter alia, that in so far as it had ordered that the fine to be imposed on Neste should take account of its conduct between the Competition Council's decision of 16 June 1994 and the court's decision of 30 November 1995, it had not become evident that the court had based itself on material in respect of which Neste had not been heard. Moreover, the court had expressly declined to draw any conclusion as to whether the supplementary information received by it should be taken into account when considering the amount of the fine to be imposed. 25. At the time of the proceedings before the Supreme Administrative Court, domestic law contained no general provisions on the manner in which parties to administrative proceedings were to be heard in writing. Even in the absence of such provisions it was considered an essential feature of fair administrative proceedings that all parties were properly heard. The hearing requirement was considered to include the right of a party to be informed of a matter affecting him or her, of the progress of the proceedings and of any evidence adduced. It entitled a party to submit observations on any evidence adduced by other parties but only if that evidence could affect the outcome of the case. Whenever such evidence had been adduced, the court could not rely on it unless the other party had been heard. A party needed not be heard when a certain claim was not examined on its merits or was rejected immediately. 26. The Act on the Supreme Administrative Court (74/1918) provided, inter alia, that the court could request an opinion or other observations for the purpose of seeking evidence. The cases were dealt with by respecting “lawful court procedure” (sections 14-15). 27. As from 1 December 1996 the Act on Administrative Court Procedure (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996) applies to proceedings before the Supreme Administrative Court. It contains explicit provisions on the hearing of parties. Provisions on parties' right to be heard can also be found in section 21 (2) of the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland 731/1999; section 16 (2) of the former Constitution as amended by Act no. 969/1995). 28. According to section 2, subsection 1 of the Act on Publicity of Official Documents (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet 83/1951), as in force at the relevant time, any document prepared and issued by an authority as well as any document sent or handed in to an authority and remaining in its possession was to be deemed an official document. Under section 9, however, a document could be ordered to be kept secret by Decree, for example when this was deemed necessary in order to safeguard business activities. 29. The Decree on Certain Exceptions to the Publicity of Official Documents (asetus sisältävä eräitä poikkeuksia yleisten asiakirjain julkisuudesta, förordning innefattande vissa undantag i fråga om allmänna handlingars offentlighet 650/1951) stipulated, inter alia, that documents containing information about commercial or industrial activities, the pursuit of a trade or profession or about the financial position of a private person were to be kept secret, unless the concerned company or person consented to disclosure (section 1). 30. On the one hand, a party within the meaning of section 19 of the Act on Publicity of Official Documents (whose interest, right or obligation the matter concerned) had the right to obtain information even from a document not designated as publicly accessible, if that information could influence, or could have influenced, the consideration of the case. On the other hand, it was possible to withhold from a party information appearing even in an document of the aforementioned nature, if disclosure thereof would have been contrary to a particularly important public or private interest. 31. The 1951 Act and Decree were replaced, on 1 December 1999, by a new Act on the Public Character of Activities Conducted by Public Authorities (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet 621/1999) which contains comparable provisions on private economic interests and on parties' right of access to documents. 32. According to the Act on the Competition Office (711/1988), the Office shall publish its findings to the extent deemed appropriate. Information regarded as a business or professional secret shall not be disclosed, unless the concerned party has consented thereto (section 3). | 1 |
train | 001-94931 | ENG | RUS | ADMISSIBILITY | 2,009 | ZENIN v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Valeriy Olegovich Zenin, is a Russian national who was born in 1971 and lives in Rostov-on-Don. He was represented before the Court by Mr B. Kudash, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In October 2001 the applicant was arrested and detained in remand centre no. 61/2 on suspicion of a customs offence. Several other persons were detained in relation to the above offence. The applicant’s detention was extended until 27 April 2002. On that date the criminal case was sent for trial before the Neklinovskiy District Court of the Rostov Region. On 26 June 2002 the trial court, having detected a number of procedural defects, returned the case to the prosecutor for further investigation. The court also held that “the preventive measure should remain unchanged” and the detainees “should be taken in charge by the Prosecutor’s Office of the Rostov Region”. Under the RSFSR Code of Criminal Procedure, in force at the time, after receiving the case file from the court the investigating or prosecuting authority was thus required inter alia to decide on the detention issue (see “Relevant domestic law” below). On 1 July 2002 a new Code of Criminal Procedure (CCrP) entered into force. Pursuant to the Law on Transitional Measures, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (see “Relevant domestic law” below). The applicant did not appeal against the detention order of 26 June 2002. However, the Prosecutor’s Office lodged objections to the remittal. On 27 August 2002 the Rostov Regional Court rejected them. The appeal court did not rule on the remand issue. On 4 September 2002 the Prosecutor’s Office received the case file. On 6 September 2002 the file was transmitted to an investigator. On the same date, the authorities applied to the Neklinovskiy District Court for an extension of the applicant’s detention. On 9 September 2002 the District Court declined jurisdiction in favour of the Leninskiy District Court. Having been notified of the outcome of the appeal proceedings in relation to the order of 26 June 2002, the administration of remand centre no. 61/2 ordered on 9 September 2002 the applicant’s transfer to remand centre no. 61/1 within the jurisdiction of the investigating and prosecuting authorities. On 13 September 2002 the Leninskiy District Court extended the applicant’s detention until 16 October 2002. On 27 September 2002 the Regional Court upheld the order. In the meantime, on 11 September 2002 the administration of remand centre no. 61/1 rejected the applicant’s request to be released considering that his detention continued to be authorised by the order of 26 June 2002. On 19 September 2002 the applicant’s lawyer brought proceedings in the Kirovskiy District Court of Rostov-on-Don against both remand centres accusing their respective administrations of “unlawful inaction”. In that connection, the applicant pleaded that after 27 August 2002 there should have been a new detention order issued by a court under the CCrP. He also alleged that the refusal to release him had been unlawful under section 50 of the Custody Act and section 4 of the Judicial Review Act (see “Relevant domestic law” below). The District Court examined the applicant’s claims under the RSFSR Code of Civil Procedure. By a judgment of 22 October 2002, it rejected them considering that the applicant’s detention after 27 August 2002 had been authorised under the order of 26 June 2002; after receiving in early September 2002 the information about the outcome of the appeal proceedings in relation to that order the administration of remand centre no. 61/2 had promptly ordered the applicant’s transfer within the jurisdiction of the investigating and prosecuting authorities to remand centre no. 61/1; the latter had no reason to release the applicant since the order of 26 June 2002 was valid. Lastly, the District Court noted that on 13 September 2002 the applicant’s detention had been extended. On 4 December 2002 the Regional Court upheld the judgment adding that the applicant’s claim had been confined to the alleged unlawfulness of the refusal to release him while the applicant had not claimed any specific redress, which would be intended to remedy the alleged violation of an individual right; in any event, by the time of the proceedings before the first-instance court the applicant’s detention had already been validly extended until 16 October 2002. Prior to 1 July 2002 criminal law matters were governed by the RSFSR Code of Criminal Procedure (the RSFSR CCrP). From 1 July 2002 it was replaced by the Code of Criminal Procedure of the Russian Federation (the CCrP). Under the RSFSR CCrP, the authority in charge of the case (inquirer, investigator, prosecutor or a court) could order detention of an accused (Article 89); the detention period could be extended by a prosecutor (Article 97). Following arrest the person is detained “pending investigation” until the day when the case is sent to a court for trial (Article 97 of the RSFSR CCrP, Article 109 § 9 of the new CCrP). From the date the prosecutor forwards the case to the trial court, the defendant’s detention was “during the trial” (Article 239-1 of the RSFSR CCrP). The trial court can vary or annul a preventive measure against the defendant (Article 260 of the RSFSR CCrP, Article 255 of the CCrP). Under the RSFSR CCrP, the trial court was empowered to remit the case for “further investigation” when procedural defects had been detected that could not be remedied at the trial (Article 232 § 1). When doing so, the court had to decide on the application of a preventive measure to the accused (Article 232 § 3). In such cases the defendant’s detention was again classified as “pending investigation”. The investigating and prosecuting authorities were required to comply with the remitting court’s order and to decide on the detention issue, if appropriate. As follows from Article 331 of the RSFSR CCrP, only a prosecutor had a right of appeal in relation to decisions taken by a first-instance court under Article 232 of the Code; no appeal lay against a court decision under Article 260 of the Code. On 2 July 1998 the Constitutional Court declared Article 331 of the Code unconstitutional. Under Article 108 § 11 of the existing CCrP, a detention order is amenable to review before a higher court by way of an ordinary appeal. Under Article 110 of the existing CCrP, the authority in charge of the criminal case (an inquirer, investigator, prosecutor or a court) can annul or replace a preventive measure with another one. Annulment of a preventive measure indicated by an inquirer, investigator or a prosecutor at the pre-trial stage of proceedings requires consent from the prosecutor. A preventive measure indicated by a court can be annulled or replaced only by a court. During the preliminary investigation a detainee can apply to the authority in charge of the criminal case (inquirer or prosecutor) with an application for release. The authority’s refusal is amenable to review by a court under Article 125 of the CCrP. Article 125 of the CCrP provides for judicial review of the decisions or (in)actions on the part of an inquirer, investigator or a prosecutor, which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint. Pursuant to the Law on Transitional Measures, as amended on 29 May 2002, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (section 10). Under Law of 15 July 1995 no. 103-FZ “On Detention of Persons Suspected and Accused of Criminal Offences” (the Custody Act), the prison governor should release the detainee, having received a court order or the prosecutor’s decision to this effect. The prison governor should notify the authority in charge of the criminal case and the prosecutor that the authorised period of detention expires within twenty-four hours. If the authorised period of detention has expired and no decision to extend it or release the detainee has been received, the prison governor should immediately release the detainee (section 50). The Act concerns all (in)action by a public authority except those for which there is a specific court procedure provided for by the legislation (section 3). Section 4 of the Act provides that a Russian citizen can bring a court action against a public authority, if the latter’s (in)action has violated his or her rights or freedoms. If the plaintiff’s claim is justified, the judge declares the impugned (in)action unlawful and requires the respondent authority to grant this claim, or otherwise remedies the violation of the person’s rights or freedoms (section 7). A subsequent claim for compensation arising out of the above decision should be examined with reference to the Civil Code (ibid). | 0 |
train | 001-78159 | ENG | POL | CHAMBER | 2,006 | CASE OF BUTA v. POLAND | 4 | No violation of Art. 5-3 | Nicolas Bratza | 5. The applicant was born in 1975 and lives in Poznań. 6. On 14 April 1999 the applicant was detained on suspicion of robbery and deprivation of liberty with aggravated violence. 7. On 15 April 1999 the Wałcz District Prosecutor’s Office requested the Wałcz District Court to remand the applicant in custody. He indicated that the crimes the applicant was charged with had been committed with exceptional cruelty and that there was a risk that he would influence the witnesses and his co-accused if released. 8. On 15 April 1999 the Wałcz District Court remanded the applicant in custody for 3 months. In its decision the court underlined that there was a strong likelihood that the applicant had committed the crimes and, moreover, had done so soon after he had been released from prison. In addition, since the applicant was charged with a crime against a person who had refused to testify in his favour, the court considered that there was a reasonable fear that the applicant would obstruct the proceedings. 9. On 9 July 1999 the District Court prolonged the applicant’s detention. In its reasons for this decision it stated, inter alia, that there was a need to extend the scope of the investigation in the applicant’s case and at the same time to prevent him from contacting other suspects. The applicant’s appeal against this decision was dismissed on 21 July 1999. The Poznań Regional Court found that the applicant’s detention pending trial was fully justified bearing in mind the severity of the charges, the likely penalty and the applicant’s recidivism. The court agreed with the District Court’s view that there was a possibility that the applicant would collude with his co-accused or try to influence witnesses. No grounds for release listed in the Code of Criminal Procedure were established by the court. 10. In the course of the investigation the suspects and 18 witnesses were heard. 11. On 29 October 1999 the investigation was closed and a bill of indictment against the applicant and four other persons was lodged with the Wałcz District Court. The applicant was charged with six offences. The prosecutor named 25 witnesses to be summoned for the hearing and 6 persons were identified as victims of the crimes. A local inquiry (wywiad środowiskowy) was concluded. 12. By decisions of 7 December 1999 and 12 April 2000 the applicant’s detention pending trial was further prolonged. The courts stated, inter alia, that the grounds for applying this measure remained valid. They found that there was a need to secure the proper conduct of the proceedings, bearing in mind the severity of the charges against the applicant, his recidivism and the fact that he had committed the offences within two months of his release from prison. The circumstances of one of the offences - deprivation of liberty - pointed to the risk that the applicant would attempt to pervert the course of justice. No special circumstances dictated the lifting of the detention. The court also took into account the complicated nature of the case, which related to numerous persons and criminal acts. On 24 May 2000 the decision of 12 April 2000 was upheld by the Poznań Regional Court. The court considered that the evidence gathered in the proceedings indicated a strong likelihood that the applicant had committed the crimes with which he had been charged. In addition, the applicant’s continued detention pending trial was found to be necessary, bearing in mind the seriousness of the charges, the severity of the anticipated penalty and the applicant’s criminal record. His attempts to influence the testimonies of a witness in another case and the fear of the applicant expressed by some of the victims justified the perceived risk of collusion. At the same time the Poznań Regional Court underlined that the trial court should make every effort to conduct the proceedings promptly and swiftly. 13. In a subsequent decision of 5 October 2000 prolonging the applicant’s detention the District Court indicated, inter alia, that despite the fact that the victims had already been heard there was still a risk of collusion and unlawful obstruction of the proceedings by the applicant, bearing in mind in particular his behaviour during the previous hearing. The court considered that police supervision would not be enough to secure the proper conduct of the proceedings. 14. In the reasons for the decision of 9 January 2001 prolonging the applicant’s detention for a further three months, the court underlined, inter alia, that there was a risk that the applicant would influence witnesses, especially bearing in mind his aggressive attitude during the hearings, and that no other preventive measure would sufficiently secure the proper conduct of the proceedings. The court also stressed the need to examine the witnesses requested by the applicant’s defence counsel. The applicant appealed against this decision on 19 January 2001. On 31 January 2001 the Poznań Regional Court upheld the decision and ruled that the District Court had correctly indicated both the general and specific circumstances which justified the extension of the applicant’s detention pending trial. At the same time the appellate court drew the trial court’s attention to the need to accelerate the proceedings. 15. On 27 March 2001 the District Court granted the co-accused’s request to undergo a psychiatric examination and at the same time decided to request the Poznań Court of Appeal to prolong the applicant’s detention until 12 October 2001. Since the applicant had reacted violently and declared that he too was mentally ill and should therefore be examined by a psychiatrist, the court decided to order a psychiatric expert opinion to be prepared on him. 16. In the reasons for the decision of 3 April 2001 on prolongation of the applicant’s detention the Poznań Court of Appeal considered, inter alia, that the conditions laid down in Article 263 § 4 of the Code of Criminal Procedure were met and that the prolongation of the detention pending trial was necessary in order to allow for the completion of the complicated procedure for the taking of evidence. It was also necessary because the applicant and the co-accused had deliberately prolonged the proceedings by requesting a psychiatric examination at a time when the proceedings had almost been concluded. The court also noted other important obstacles beyond the court’s control, such as the illness of the referring judge and the need to conduct the proceedings again. In the court’s opinion, the Wałcz District Court could not be held responsible for the excessive length of the proceedings. The applicant’s defence counsel appealed on 18 April 2001. On 8 May 2001 the Poznań Court of Appeal upheld the impugned decision. 17. In the course of the proceedings, the applicant lodged several applications for the lifting of his detention pending trial or the imposition of a more lenient preventive measure. His applications were dismissed by the court on 24 May, 2 September and 27 September 1999, 28 October, 30 November 2000, 14 February and 28 June 2001. The applicant unsuccessfully appealed against these decisions. 18. The hearings in the proceedings were held on 27 January, 15 May, 12 June, 21 August, 20 September 2000, 14 February, 27 March, 18 September, 25 October, 26 November 2001, 7 January, 6 February, 11 March, 23 May, 25 June, 5 September 2002, and 28 January, 4 March and 28 August 2003. 19. At a hearing held on 15 May 2000 three of the co-accused did not appear and in consequence it had to be adjourned. The court decided to remand the co-accused in custody for 3 months. In addition, the court received information that one of the witnesses had moved away and it ordered that her new whereabouts be established. The court also refused to allow the motions of the applicant’s and the co-accused’s counsel to have their cases examined separately. It observed that all the offences were closely linked and that the co-accused had acted together and in concert. Consequently, conducting the proceedings separately for each of the coaccused would be contrary to the principle of promptness of proceedings. 20. The applicant was released from detention on 12 October 2001. 21. On 6 September 2005 the Wałcz District Court found the applicant guilty of three of the four robberies with which he had been charged and one of the two kidnappings and acquitted him of the charge of drug trafficking. The applicant was sentenced to three years and six months’ imprisonment. 22. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 0 |
train | 001-110984 | ENG | ROU | ADMISSIBILITY | 2,012 | CASE OF HAŢEGAN v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 1. The applicant, Mr Constantin Haţegan, is a Romanian national who was born in 1952 and lives in Giurgiu. The applicant was granted leave to represent himself and to use the Romanian language in the proceedings before the Court (Rule 36 §§ 2 and 4 (a)). The Romanian Government (“the Government”) were represented successively by their Agent, Mr Răzvan-Horaţiu Radu, and their co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. 2. On 20 June 2006 a committee of three judges of the Court decided, pursuant to Article 28 § 1 (a) of the Convention, to strike the application out of the Court’s list of cases in accordance with Article 37 § 1 (a) of the Convention. On 14 November 2006, following a request received from the applicant, the same committee decided to restore the application to the Court’s list of cases by virtue of Article 37 § 2 of the Convention. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. By a prosecutor’s order of 30 July 2001 the applicant was detained at the Sibiu Police Department pending trial on murder charges. 5. By a final judgment of 13 February 2003 the Court of Cassation convicted the applicant of murder and sentenced him to sixteen years and six months’ imprisonment on the basis of forensic, documentary and testimonial evidence, including the testimony of S.E. and N.A. 6. The applicant remains in detention to date. 7. Between 30 July 2001 and 22 November 2010 the applicant’s medical condition was reviewed regularly by prison and civil hospitals and he received treatment for, inter alia, an antisocial personality disorder, epilepsy, syphilis, scabies, repeated headaches, diabetes, stomatological problems, hernia, obstructive chronic bronchitis, tuberculosis, arterial hypertension, varicose veins in his feet, chronic gastritis, and an old fracture of the left tibia following a gunshot wound received before 2001. It was recommended that he follow a diet for the chronic gastritis and diabetes, and avoid cold, damp and infections, and extended orthostatism. None of the medical reports produced during this period mentioned any injuries on the applicant’s body. 8. In his letters of 14 October 2005 and 7 April 2008 concerning Jilava Prison, and in his letter of 2 August 2010 regarding Giurgiu Prison, the applicant stated that the conditions of detention in those penitentiaries amounted to inhuman and degrading treatment because the two prisons were overcrowded and infested with parasites, the food and the general hygiene conditions were poor, he was refused a special diet for his diabetes, and he did not have access to appropriate bathroom or washing facilities. 9. By a final judgment of 18 August 2004 the Arad County Court dismissed the applicant’s action against the Arad Prison authorities for an injunction allowing him to access his medical file, on the ground that he had received a complete copy of his medical file, from which none of the documents had been missing. 10. By a final judgment of 7 April 2005 the Court of Cassation dismissed the applicant’s criminal complaint claiming abuse of power on the part of I.B. – one of the prosecutors who had investigated the murder charge against him – on the ground that no unlawful act had been committed. 11. By a final judgment of 29 January 2008 the Court of Cassation dismissed, on the basis of documentary, testimonial and medical evidence, the applicant’s action for ill-treatment against V.C., C.P. and O.V., all employees of the Aiud Prison, on the ground that there was no proof in the file attesting that the applicant had been ill-treated by those individuals. 12. By a final judgment of 22 January 2009 the Court of Cassation dismissed the applicant’s appeal against the order of the Bucharest Prosecutor’s Office of 14 July 2008 refusing to indict the masked guards in Jilava Prison who had allegedly beaten the applicant on 17 February 2005, on the ground that it was time-barred. 13. By a final judgment of 14 December 2010 the Bucharest District Court dismissed the applicant’s action to obtain an injunction in order to be heard by a pensions commission. The court held that the applicant had made fifty-two requests for copies of documents from his prison file which had all been approved by the prison authorities, and that he had been provided with the requested copies. Moreover, the prison authorities had approved the applicant’s requests to be heard by a pensions commission and to be provided with the relevant information for his pension file. He had been taken twice to the Ilfov and Bucharest District 5 Pension Rights Agencies and he had been provided with the requested information. 14. In the large majority of his letters addressed to the Court between 2003 and 2010 the applicant repeatedly referred to the Romanian President, the Members of the Romanian Parliament, the prison guards in all the prisons he was detained in, and the judges and prosecutors who examined and investigated his cases and complaints, as “communists”, “Mafia members”, “members of the former State Police (securişti)”, “terrorists, executioners, murderers and accomplices to ill-treatment”. 15. In his letters of 12 May and 21 August 2006, as well as on an unspecified date in 2007, the applicant accused members of the Registry, some of the judges and the Court of being “Mafia members”, of “plotting together with the terrorist Romanian State”, and of “being accomplices of members of the former State Police (securişti)”. 16. On 7 January 2011 the Government submitted their observations to the Court and argued, inter alia, that the language used by the applicant amounted to an abuse of the right of application and that his application should be dismissed. 17. In his letter of 25 January 2011 the applicant stated, inter alia, that he believed the Court had made a “genocide pact” with the “murderers” who hid behind the name of leaders of a rule-of-law State like Romania, because it had failed to examine his case. Moreover, he claimed that members of the Registry and certain judges had contributed to his physical and mental torture. 18. In a letter of 21 February 2011 containing the applicant’s observations in reply to those of the Government, the applicant stated that the “brutish” Romanian prison authorities had attempted to lie to the Court by sending false information about his detention conditions, and he asked the Court to inform the Government Agent that he was a liar. Moreover, he submitted that: “... by the false documents submitted to the Court by the Government Agent ... the Ministry of Foreign Affairs falsified the actual reality and lied ... the Government Agent is a liar.” 19. In a letter of 29 August 2011 the applicant called the Government Agents “brutish” and “buffoons” and stated that, together with the Romanian Government, they constantly misinformed the Court. 20. In a letter of 1 September 2011 the Government reiterated their request for the Court to dismiss the applicant’s case as an abuse of the right of application. They stated that the applicant continued to submit inappropriate letters using offensive language and making defamatory allegations concerning the activities of the Romanian authorities. | 0 |
train | 001-61935 | ENG | BGR | CHAMBER | 2,004 | CASE OF ZHBANOV v. BULGARIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 9. The applicant was born in 1950 and lives in Kiev, Ukraine. 10. On 16 February 1994 the applicant, who was then residing in Bulgaria, was questioned as a suspect in the embezzlement of 20,000 Bulgarian levs (BGL) from a cooperative farm in liquidation whose legal counsel he had been. 11. On 30 March 1994 criminal proceedings were opened against the applicant. 12. On 27 July 1994 he was questioned. 13. On 29 July 1994 a graphological expert report was drawn up. 14. On 12 December 1994 the applicant was charged with embezzlement, falsification of official documents and false accusation of another. He was ordered to post bail in the amount of BGL 2,000. Under the then applicable provisions of the Code of Criminal Procedure (“the CCP”), an accused on bail could leave the country only with the prosecutor’s or the court’s permission. 15. On 23 February 1995 the applicant’s apartment was attached by order of the investigator in charge of the case, apparently as a security for an impending civil claim by the victim of the offences alleged against the applicant. On the same date the applicant was allowed to consult the case file and was questioned. 16. On 15 March 1995 the applicant was detained. He was released on 21 March 1995. 17. On 15 March 1995 a technical expert report was drawn up. 18. On 27 March 1995 the applicant was questioned. 19. On 30 March 1995 another expert report was drawn up. 20. On 4 April 1995 the applicant was questioned. 21. On 5 April 1995 the investigator completed his work on the case and recommended that the applicant be indicted. 22. On 4 May 1995 the applicant was questioned. 23. On 2 June 1995 a prosecutor of the Popovo District Prosecutor’s Office presented the applicant with amended charges and questioned him. 24. By a decree of 28 March 1996 the Popovo District Prosecutor’s Office, finding that the applicant had not obstructed the criminal proceedings and that there was no danger of him absconding, allowed him to leave Bulgaria for one and a half months to visit his parents in Kiev, Ukraine. 25. The prohibition against the applicant leaving the country without prior permission by the prosecutor or the court was in force at least until 1 January 2000, when the CCP was amended. 26. On 12 September 2001 a prosecutor of the Popovo District Prosecutor’s Office presented all materials in the case file to the applicant. 27. On 14 September 2001 the Popovo District Prosecutor’s Office, noting that the relevant limitation period had expired, decided to drop the charges of falsification of official documents. On the same date it indicted the applicant for having embezzled BGL 20,000 and having falsely accused another of a serious offence. 28. On 15 December 2001 the applicant left Bulgaria and went to Ukraine, where he has resided ever since. 29. The first hearing in the applicant’s case, listed by the Popovo District Court for 17 December 2001, was adjourned because the applicant and several witnesses, despite being duly summoned, were absent. 30. A hearing fixed for 8 April 2002 was also adjourned because the applicant was not present. 31. A hearing listed for 3 June 2002 was likewise adjourned because of the applicant’s absence. 32. At the time of the latest relevant information from the parties (June 2002) the proceedings were still pending before the Popovo District Court. | 1 |
train | 001-59589 | ENG | ITA | GRANDCHAMBER | 2,001 | CASE OF FERRAZZINI v. ITALY | 1 | No violation of Art. 6-1;Inadmissible under Art. 14 | Luzius Wildhaber;Paul Mahoney | 9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy). 10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists (agriturismo), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due. 11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax (INVIM, imposta sull’incremento di valore immobiliare) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax (imposta di registro, ipotecaria e voltura), and the application of a reduction in the rate. 12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside. In a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list. In a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list. 13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days. On 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside. In two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999. In two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company. On 27 October 2000 A. lodged an appeal with the Regional Tax Commission. | 0 |
train | 001-83006 | ENG | SRB | CHAMBER | 2,007 | CASE OF MARČIĆ AND OTHERS v. SERBIA | 4 | Violation of P1-1 | null | 4. The applicants, Mr Srbislav Marčić (the “first applicant”), Mr Stevan Kostić (the “second applicant”), Mr Slavko Pešić (the “third applicant”), Mr Radoslav Pesić (the “fourth applicant”), Mr Časlav Stošić (the “fifth applicant”), Mr Sreten Stojanović (the “sixth applicant”), Mr Budimir Stajić (the “seventh applicant”), Mr Petar Pesić (the “eighth applicant”), Mr Slađan Stanisavljević (the “ninth applicant”), Mr Branko Dinić (the “tenth applicant”), Mr Saćip Demić (the “eleventh applicant”), Mr Dragan Živković (the “twelfth applicant”), Mr Dragan Nikolić (the “thirteenth applicant”), Mr Zoran Stanojević (the “fourteenth applicant”), Mr Mile Milenković (the “fifteenth applicant”), Ms Branka Mirčić (the “sixteenth applicant”) and Ms Ljiljana Petrović (the “seventeenth applicant”) were all, at the relevant time, citizens of the State Union of Serbia and Montenegro who lived in Vladičin Han, Surdulica, Relince, Suva Morava, Suva Morava, Prekodolce, Prekodolce, Vranje, Vladičin Han, Žitorađe, Prekodolce, Vladičin Han, Ravna Reka, Suva Morava, Surdulica, Vladičin Han and Vladičin Han, respectively. 5. In the 1980s all the applicants, except for the twelfth, sixteenth and seventeenth, were employed with “Mehanizacija”, an organisational unit (osnovna organizacija udruženog rada) of a State-owned company called “Erozija”, based in Vladičin Han, Serbia. 6. The father of the twelfth applicant and that of both the sixteenth and seventeenth applicants also worked for the same employer but they died in 1994 and 2001 respectively. 7. On an unspecified date the aforementioned employees issued civil proceedings against “Mehanizacija” before the Labour Court (Osnovni sud udruženog rada) in Vranje, seeking the payment of salaries which they had earned while working on a project in Iraq. 8. On 10 March 1988 the Commercial Court (Okružni privredni sud) in Leskovac opened insolvency proceedings (stečajni postupak) in respect of “Mehanizacija” (“the debtor”), its decision being published in the Official Gazette of the Socialist Federal Republic of Yugoslavia dated 8 April 1988. 9. Several days prior to this date, the same court appears to have instituted separate insolvency proceedings in respect of “Erozija”. 10. On 20 October 1988 the Labour Court informed the Commercial Court about the plaintiffs' claims which had been specified in US Dollars (“USD”). 11. On 15 October 1990 the Commercial Court recognised these claims as follows: USD 5,240.80 in respect of the first applicant; USD 4,980.80 in respect of the second applicant; USD 2,269.30 in respect of the third applicant; USD 3,244.95 in respect of the fourth applicant; USD 4,935.55 in respect of the fifth applicant; USD 839 in respect of the sixth applicant; USD 4,872.95 in respect of the seventh applicant; USD 4,181.20 in respect of the eighth applicant; USD 5,055.85 in respect of the ninth applicant; USD 5,003.55 in respect of the tenth applicant; USD 2,838.10 in respect of the eleventh applicant; USD 5,173.25 in respect of the twelfth applicant's father; USD 4,186.80 in respect of the thirteenth applicant; USD 4,768.40 in respect of the fourteenth applicant; USD 4,800.00 in respect of the fifteenth applicant; and USD 3,447.50 in respect of the father of the sixteenth and the seventeenth applicants. 12. On 27 December 1990, taking into account the currency exchange rate and the available assets converted into cash (deo unovčene stečajne mase za raspodelu), the Commercial Court adopted a formal decision specifying the exact amounts to be paid by the debtor in Yugoslav Dinars (“YUD”): YUD 2,139 to the first applicant; YUD 2,031 to the second applicant; YUD 925 to the third applicant; YUD 1,323 to the fourth applicant; YUD 2,013 to the fifth applicant; YUD 342 to the sixth applicant; YUD 1,988 to the seventh applicant; YUD 1,705 to the eight applicant; YUD 2,062 to the ninth applicant; YUD 2,041 to the tenth applicant; YUD 1,157 to the eleventh applicant; YUD 2,110 to the twelfth applicant's father; YUD 1,708 to the thirteenth applicant; YUD 1,945 to the fourteenth applicant; YUD 1,956 to the fifteenth applicant; YUD 1,406 to the father of the sixteenth and the seventeenth applicants. All sums were to be paid within fifteen days of the date when the decision of the Commercial Court became final. 13. On 12 February 1991 the Commercial Court's decision was upheld by the High Commercial Court (Viši privredni sud Srbije) and it thereby became final. 14. The claimants appear to have subsequently informed the Commercial Court that they would be willing to accept 40% of their claims in USD (see paragraph 11 above). 15. On 13 March 1996 and 28 August 2001, respectively, the Municipal Court (Opštinski sud) in Vladičin Han declared the twelfth, sixteenth and seventeenth applicants to be their fathers' legal heirs. 16. On 13 December 2004 the applicants sent a letter to the Commercial Court seeking access to the case file, a copy of the formal decision concluding the insolvency proceedings, proof that such a decision, if issued, was published in the Official Gazette and an additional copy of the “cover page” of the case file specifically indicating that the proceedings had ended. 17. In response, they received only a certified copy of the “cover page” without the prescribed indication that the proceedings in question had been concluded. 18. On 7 March 2005 and 1 April 2005 the applicants complained to the Commercial Court and the President of the High Commercial Court. They requested that the proceedings be expedited and noted that the case had been pending for more than 16 years but that they were yet to receive the amounts awarded. 19. It would appear that all the other creditors in the insolvency proceedings had their claims met by the debtor. 20. The Government provided a copy of a form issued by the Registry of the Commercial Court, containing, inter alia, the date “27 December 1990” next to the standard printed rubric entitled “on completion of all business arising from the insolvency proceedings”. 21. Articles 209 and 210, inter alia, stated that special symbols had to be placed next to the registered number of a case, indicating that the proceedings had been concluded. 22. The 2003 Rules repealed the 1993 Rules in July 2003. 23. Articles 236 and 237 of the 2003 Rules correspond, in the relevant part, to the aforementioned text of Articles 209 and 210 of the 1993 Rules. 24. In accordance with Article 146 of the Composition, Insolvency and Liquidation Act 1989 (Zakon o prinudnom poravnanju, stečaju i likvidaciji; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia - OG SFRY - no. 84/89, as well as in the Official Gazette of the Federal Republic of Yugoslavia - OG FRY - nos. 37/93 and 28/96) and Article 120 of the subsequent Insolvency Procedure Act 2004 (Zakon o stečajom postupku; published in OG RS no. 84/04), the insolvency court has to pay the creditors ex officio within fifteen days of/immediately after the decision on the division of the debtor's assets becomes final. 25. Under Article 99 of the 1989 Act and Article 73 of the 2004 Act, starting with the date of institution of the insolvency proceedings, no separate enforcement proceedings in respect of the creditors' main claims can be brought against the same debtor, while any such proceedings which might still be ongoing must be discontinued. 26. In accordance with Articles 149 and 151 of the 1989 Act, as well as Article 125 of the 2004 Act, the insolvency court shall adopt a formal decision upon the “conclusion” (zaključenje) of the insolvency proceedings. This decision shall then be published in the Official Gazette and forwarded to the State's competent “registration” body. 27. Article 20 provides that property can be acquired ex lege, through a legal transaction, by means of inheritance, or on the basis of a decision issued by the State in accordance with the law. 28. Article 36 provides that the deceased's property shall be transferred ex lege to the legal heirs, at the moment of death. 29. Article 130 of the Inheritance Act 1974 (Zakon o nasleđivanju, published in the Official Gazette of the Socialist Republic of Serbia - OG SRS nos. 52/74, 1/80 and 25/82) and Article 212 § 1 of the subsequent Inheritance Act 1995 (Zakon o nasleđivanju, published in OG RS no. 46/95) both provide that the deceased's estate shall be transferred ex lege to the legal heirs at the moment of death. 30. Article 371 provides that all claims shall become time-barred (zastarevaju) within ten years, unless this Act states otherwise. 31. Article 379 § 1 provides, inter alia, that all claims recognised by a final court decision shall become time-barred within ten years, including those claims which would otherwise have become time-barred within a shorter period of time. 32. Article 360 § 3 provides that courts shall not take into account whether a given claim is time-barred unless and until there is a specific objection by the debtor to this effect. 33. The relevant provisions of this Act are set out in the V.A.M. v. Serbia judgment (no. 39177/05, § 70, 13 March 2007). 34. The relevant provisions concerning the Court of Serbia and Montenegro and the succession of the State Union of Serbia and Montenegro are set out in the Matijašević v. Serbia judgment (no. 23037/04, §§ 12, 13 and 16-25, 19 September 2006). | 0 |
train | 001-106797 | ENG | CHE | CHAMBER | 2,011 | CASE OF EMRE v. SWITZERLAND (No. 2) [Extracts] | 2 | Violation of Art. 8+46;Remainder inadmissible;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 7. The applicant was born in 1980 and currently lives in Stuttgart (Germany). 8. He entered Switzerland with his parents on 21 September 1986. 9. On 1 June 1990 he obtained a one-year residence permit, which was subsequently renewed on a regular basis. 10. On 12 November 1997, 10 November 1999 and 13 August 2002 he received, respectively, a suspended prison sentence of two and a half months, a six-month suspended prison sentence and a sentence of five months’ imprisonment, for a number of offences committed between 1994 and 2000 (wounding, grievous bodily harm, assault, theft, robbery, damage to property, receiving stolen goods, proffering insults and threats, disturbance, a weapons offence and a serious breach of road traffic regulations). 11. In a decision of 2 June 2003 the Aliens Department for the Canton of Neuchâtel ordered the applicant’s administrative removal for an indefinite duration. His appeals against that decision were dismissed, first on 12 December 2003 by the Administrative Court for the Canton of Neuchâtel (the “Administrative Court”), then on 3 May 2004 by the Federal Court. 12. On 20 October 2004 the applicant was deported to Turkey. After returning to Switzerland illegally in May or June 2005, he was arrested and taken into custody on 1 July 2005 pursuant to arrest warrants issued on the basis of his criminal convictions. 13. After various procedural developments and two further prison sentences, of three months and two months respectively, for the improper use of a communication facility and for the offence of returning to Switzerland while banished, he was apparently sent back to Turkey on 1 November 2005. 14. In the meantime, on 20 November 2004, he had lodged an application with the Court submitting that his removal from Switzerland for an indefinite duration, as upheld by the Federal Court, entailed a violation of Articles 3 and 8 of the Convention. 15. In a judgment of 22 May 2008, which became final on 22 August, the First Section of the Court unanimously declared admissible the complaint under Article 8 and found that there had been a violation of that provision. On that basis, it held that Switzerland had to pay the applicant the sums of 3,000 euros (EUR) for non-pecuniary damage and EUR 4,650 for the costs and expenses he had incurred “in the domestic proceedings and before the Court”. The relevant passages of that judgment read as follows: “- Nature and seriousness of the offences committed by the applicant 72. The Court notes, at the outset, that the relevant date for an assessment of the above-mentioned criteria is, in the present case, 21 May 2004, the date on which the applicant was notified of the final judgment of the Federal Court confirming the withdrawal of his residence permit (see, mutatis mutandis, Yildiz v. Austria, no. 37295/97, § 34, 31 October 2002). 73. As regards, first, the ‘seriousness’ of the offences committed by the applicant, the Court notes that in 1997 and 1999 he was given a suspended prison sentence of two and a half months, and then a six-month prison sentence, for proffering threats and insults, a serious breach of road traffic regulations, wounding, assault, theft, receiving stolen goods, robbery, damage to property and other property-related offences. In 2002 he was given a further prison sentence of five months, to be followed by deportation and a five-year ban on re-entering Switzerland, for disturbance and a weapons offence committed in 2000. Lastly, in 2005 he was sentenced again on two occasions, to two and three months respectively. The total duration of his prison sentences (eighteen and a half months in all) is thus far from negligible. 74. The Court also notes that the criminal activities in question were spread over a wide period (from 1994 to 2004) (contrast Moustaquim, cited above, § 44) and that the two suspended sentences of 12 November 1997 and 10 November 1999 were activated in view of the further offences committed by the applicant. At the same time, the Court observes that some of the conduct attributed to the applicant dated back to his adolescence and some to a relatively young age (see, to the same effect, Moustaquim, cited above, § 44; Yildiz, cited above, § 45; and Yilmaz v. Germany, no. 52853/99, § 46, 17 April 2003). Moreover, the sentences of 12 November 1997 and 10 November 1999 were handed down by the Guardianship Authority for the District of Neuchâtel. Therefore, at least some of the offences in question were committed by the applicant in a juvenile delinquency context. In this connection, the Court notes that according to the United Nations, experience has shown that juvenile delinquency tends to disappear spontaneously in most individuals with their transition to adulthood (see sub-paragraph I, 5 (e) of the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), adopted and proclaimed by the General Assembly in its Resolution 45/112 of 14 December 1990). 75. As regards the ‘nature’ of the offences committed by the applicant, it is undeniable that the convictions for wounding weigh heavily against him. Concerning the weapons offence, however, it appears to have been constituted merely by the possession of a tear-gas canister. In addition, it has not been established that it was the applicant who stabbed a security guard with a knife during the attack on the discotheque on 5 March 2000 (Federal Court judgment, point 3.1; see paragraph 18 above). As to the road traffic offences, whilst they may well constitute a potential danger they should nevertheless be seen in the light of the relatively lenient penalties normally imposed in such matters (see, to this effect, Keles, cited above, § 59, and Yildiz, cited above, § 45). 76. Therefore, in the light of comparable cases, the applicant’s convictions should be assessed for what they really are, both in terms of their seriousness and of the penalties ultimately imposed (contrast Mokrani, cited above, § 32; Benhebba, cited above, § 34; C. v. Belgium, 7 August 1996, § 35, Reports 1996III; Dalia, cited above, § 54; Baghli, cited above, § 48 in fine; and Jankov v. Germany (dec.), no. 35112/97, 13 January 2000; Bouchelkia, cited above, §§ 50-53; Boujlifa, cited above, § 44; and Üner, cited above, § 18). - Length of the applicant’s residence in Switzerland 77. As regards the length of the applicant’s residence in the country from which he is to be deported, the Court notes that the applicant, who was born on 18 December 1980, arrived in Switzerland on 21 September 1986, before the age of six. At the time of the Federal Court’s judgment of 3 May 2004 he was twenty-three and a half. He had thus spent more than seventeen and a half years in Switzerland. - Time between the commission of the offences and the impugned measure, and the applicant’s conduct during that period 78. As regards the time that elapsed between the commission of the offences and the time when the impugned measure became final, and the applicant’s conduct during that period, the Court notes that his criminal activities were spread over a considerable period. Similarly, the domestic courts noted that he had not shown any awareness of his criminal activities and that he had refused to follow his psychotherapy (see, in this connection, Keles, cited above, § 60). - Strength of social, cultural and family ties with host country and destination country 79. As regards the applicant’s particular ties with his host country, the Federal Court noted that he had spent most of his life in Switzerland, including all his school years, and that his parents and brothers, one of whom had Swiss nationality, lived in the country. Whilst there is some debate between parties as to his professional integration in Switzerland (see above, paragraphs 44 and 58), the Court does not feel obliged to settle this question. 80. In comparison with the above factors, showing that the applicant is integrated to a certain extent in Switzerland, despite his criminal activity, his social, cultural and family ties with Turkey seem very tenuous. It can be seen from the case file that the applicant only stayed in that country for a month and a half in June and July 2002, and that only his grandmother is still living there. The Court is not convinced that his brief stay in Turkey after his first removal, a measure complained of in the present application, may be taken into consideration. Moreover, there is no certainty that the applicant is sufficiently fluent in Turkish. Even though relationships between parents and adult children would not attract the protection of Article 8 without ‘evidence of further elements of dependency, involving more than the normal, emotional ties’ (see, mutatis mutandis, Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000), the Court also notes that the Federal Court itself admitted that his family ties with Turkey were far less significant than those he had made with his host country. Moreover, that court did not call into question the fact that the applicant would ‘face major difficulties if returned to Turkey’. - Specificities of the case: the medical aspect 81. The Court notes that a report of the Neuchâtel psychiatric and social centre dated 14 January 2003 indicated that the applicant showed signs of ‘an emotionally labile personality disorder, with impulsive and borderline elements, together with a phobic anxiety disorder’ vis-à-vis the prospect of his deportation (Federal Court judgment, point 3.4.2; see above, paragraph 18). A letter from the family doctor dated 21 January 2003 moreover confirmed that the applicant had been brought up in a violent environment with little stimulation, and explained that deportation would distance him from the reassuring and structuring elements that he had built up in recent years (ibid.). 82. The views of the parties to the proceedings differ on this point. The applicant argued that his illness, having involved suicide attempts, could not be adequately treated in Turkey (see paragraph 42 above). The Government, for their part, claimed the contrary, considering that his family would still be able to support him financially from Switzerland. Moreover, they emphasised that the applicant had largely refused to undergo the psychiatric treatment prescribed for him (see paragraph 57 above). 83. The Court does not rule out the possibility that the applicant’s health problems could be treated adequately in Turkey. Neither does it disregard the fact that the applicant neglected the prescribed treatment, at least at the outset. At the same time, it finds that his disorders, which the Government have certainly not called into question, whilst they are not sufficient in themselves to form the basis of a separate complaint under Article 8, nevertheless constitute an additional aspect that would render even more difficult the applicant’s return to his country of origin, where his social network would be lacking. - The permanent nature of the expulsion 84. In order to assess the proportionality of the impugned measure, the Court must also consider whether the exclusion from Swiss territory was a temporary or permanent measure. 85. It notes that in the present case the Police Court and the Criminal Court of Cassation of the Canton of Neuchâtel ordered the applicant’s deportation for a period of seven years (see paragraph 11 above). However, his administrative removal was ordered by the Aliens Department for the Canton of Neuchâtel for an indefinite duration (see paragraph 15 above). The Court observes that the applicant’s application is directed against his administrative removal, the duration of which it finds particularly harsh (see, as an example of cases in which the permanent nature of the exclusion order was considered by the Court in concluding that the measure had been disproportionate, Ezzouhdi v. France, no. 47160/99, § 34, 13 February 2001; Keles, cited above, § 65; Yilmaz, cited above, § 48, and Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; and by contrast, for cases where the limited duration of the impugned measure contributed to a conclusion that it was proportionate, see Benhebba, cited above, § 37; Jankov, cited above, and Üner, cited above, § 65). As to the possibility for the applicant to request that the exclusion order be suspended temporarily or permanently rescinded, the Court finds that this possibility remains purely speculative at present. 86. In view of the foregoing, and particularly in consideration of the relative seriousness of the applicant’s convictions, the weakness of his links with his country of origin and the permanent nature of the removal measure, the Court finds that the respondent State cannot be regarded as having struck a fair balance between the interests of the applicant and his family, on the one hand, and its own interest in controlling immigration, on the other. 87. Accordingly, there has been a violation of Article 8.” 16. When asked what action it would take in response to the Court’s judgment, the Immigration Authority of the Canton of Neuchâtel (the “Cantonal Authority”), in a decision of 19 June 2008, refused to consider a request for leave to enter Switzerland on the ground that the matter had been dealt with on 3 May 2004 by a final judgment of the Federal Court. The Authority suggested that the applicant lodge a request for revision with that court. 17. In pleadings dated 19 November 2008, the applicant lodged a request for revision with the Federal Court, requesting it to annul its judgment of 3 May 2004 and the judgment previously delivered in the same case by the Administrative Court of the Canton of Neuchâtel on 12 December 2003. 18. The Federal Office of Migration submitted that the request for revision should be rejected. 19. In a judgment of 6 July 2009 the Federal Court upheld the request for revision and annulled its judgment of 3 May 2004. At the same time it quashed the 12 December 2003 judgment of the Administrative Court of the Canton of Neuchâtel, limiting the duration of the applicant’s exclusion to ten years from 2 June 2003. The reasoning of the judgment reads as follows: “... 3.2 In its judgment of 22 May 2008 the European Court observed that, in deporting Emrah Emre from its territory for an indefinite duration, Switzerland had breached his right to private and family life, as guaranteed by Article 8 ECHR. On that basis it awarded him EUR 3,000 in compensation for non-pecuniary damage under Article 41 ECHR. That provision gives the European Court the power to grant ‘just satisfaction’ to the injured party where the internal law of the State in question ‘allows only partial reparation to be made’ for the violation found. The payment of such compensation does not, however, necessarily release the State concerned from its obligation under Article 46 ECHR to comply with the judgments of the European Court. The respondent State, having been found responsible for a violation of the Convention or its Protocols, is thus obliged not only to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among other references, the judgment of the European Court of Human Rights in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland, no. 32772/02, §§ 46 and 47, 4 October 2007, and the numerous authorities cited therein). This is the principle of restitutio in integrum, which has the practical effect of limiting the freedom of States in the choice of means by which to remedy a violation of the Convention ... 4.1 Where, as in the present case, the Federal Court upholds a request for revision, it gives two separate decisions in succession, even though it generally does so in a single judgment. In the first, referred to as the rescindant, it annuls the judgment of which revision is sought; in the second, known as the rescisoire, it rules afresh on the application previously referred to it. The annulment decision puts an end to the revision procedure as such and leads to the re-opening of the previous proceedings. This has an ex tunc effect, such that the Federal Court and the parties are put back in the situation in which they found themselves at the time the annulled judgment was delivered, and the case will have to be adjudicated as if that judgment had never existed (see the above-cited judgment 1F_1/2007 of 30 July 2007, point 3.3). 4.2 In its judgment, the European Court found that, in view of the circumstances, and particularly of the applicant’s relatively serious convictions, the weakness of his links with his country of origin, and the permanent nature of the removal measure, Switzerland had failed to strike a fair balance between the interests (private and public) at stake (judgment cited above, para. 86). It specifically emphasised that the indefinite duration of the exclusion had been ‘particularly harsh’, taking the view that the possibility for the applicant to have the exclusion order suspended temporarily or permanently rescinded remained purely speculative at present (judgment, para. 85). In other words, it was not particularly opposed to the principle of the impugned measure but rather to its permanent nature. Generally speaking, in its most recent judgments, the European Court seems, moreover, to accord increasingly decisive weight to the latter criterion, refusing, with rare exceptions, to endorse permanent exclusions from a country, unlike bans of limited duration ... That being said, in the light of the circumstances prevailing at the material time, namely when the annulled judgment was delivered (on 3 May 2004), an immediate revocation of the removal measure was not a matter for consideration. Admittedly, the applicant’s links with Turkey were at that time weaker than those he enjoyed with Switzerland, such that a return to his country of origin appeared to be a relatively harsh measure for him. That obstacle had in fact been taken into consideration and discussed in the first judgment. However, the Federal Court had also observed, without being contradicted by the European Court on this point, that the applicant’s presence in Switzerland represented a particularly serious danger for public order and security, because his conduct and offences showed that his ‘mindset was hardly capable of resolving conflicts and frustrations otherwise than by violence, ready to impose his own rules, by himself or with the help of partners, without consideration for property or for the physical well-being of others, and openly contemptuous of the judicial authority’ (judgment cited above of 3 May 2004, point 3.2). Moreover, the Federal Court also emphasised, and there is nothing in the European Court’s judgment that would justify departing from this assessment, that the applicant had no awareness of the seriousness of his actions and that he thus presented a high risk of reoffending: he had committed further offences after his first convictions and had refused to follow psychiatric treatment during his detention (see the above-cited judgment of the Federal Court of 3 May 2004, point 3.3 in initio). In those circumstances, it was not possible for the applicant’s private interest in remaining in Switzerland, bearing in mind that he was an adult, was single and had no children, to prevail over the public interest in his expulsion, at least for a certain period of time. In other words, the only appropriate solution in order to alleviate the effects of the impugned measure against the deportee and comply with the judgment of the European Court of Human Rights would consist in limiting the duration of the exclusion. 4.3 Consequently, it is justified to limit the removal measure ordered against the applicant to a period of ten years with effect from the removal decision of 2 June 2003. After such time he will be able to lodge an application for leave to remain, which will be examined by the competent authority in the light of the applicable law and the circumstances then prevailing (the applicant’s family and personal situation; his conduct since his expulsion; etc.). 5. It follows from the foregoing that the request for revision must be upheld and the Federal Court’s judgment of 3 May 2004 annulled. Moreover, the judgment delivered on 12 December 2003 by the Administrative Court must be set aside, and the measure of removal banning the applicant from Switzerland for an indefinite duration is to be replaced by removal with a ban of ten years from 2 June 2003. ...” 20. On 11 September 2009 the applicant married a German national. As a result of that marriage he has obtained a German residence permit. 21. On 19 April 2010 he lodged with the Administrative Court for the Canton of Neuchâtel an application for reconsideration of a decision of 27 December 2005 of the Immigration Authority, which had refused the suspension of his removal, relying in particular on his new situation, namely his marriage to a German citizen. In a judgment of 20 August 2010, the court rejected the request and referred the matter back to the Immigration Authority. 22. The applicant transmitted additional documents to the Immigration Authority on 30 August 2010 and 24 November 2010. The response to his request for the revocation of the removal measure so that he could settle in Switzerland was negative. In a letter of 7 December 2010, the Immigration Authority for the Canton of Neuchâtel took the view that it could not rule on a request for reconsideration, in particular for the following reasons: “... Although the marriage solemnised on 11 September 2009 in Germany to a German national, together with the issuance of a German residence permit following that marriage, constitute new facts, we note that they do not by themselves constitute pertinent justification for the Immigration Authority to act upon the request for reconsideration. The nationality of the wife, by itself, does not have the effect of requiring the annulment of the removal or the granting of leave to remain in Switzerland. The wife would have to submit a request for leave to remain in Switzerland, to be in one of the situations covered by the Free Movement of Persons Agreement (ALCP), and to fulfil the conditions thereof, without being excluded by any public order or security grounds. The right to family reunification is always predicated on the existence of original leave to remain granted to an EC/EFTA national under the provisions of the ALCP. The right of abode conferred on family members is a correlative right of which the validity is in principle subject to the duration of the original leave to remain. ...” 23. According to the applicant, there was no possibility of challenging or complaining about the content of that letter. 24. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, provides as follows: “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.” 25. The relevant provisions of Annex I of the Agreement between the European Community and the Swiss Confederation on the free movement of persons (the “ALCP”) read as follows: “1. The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of Article 3 of this Annex and posted persons within the meaning of Article 17 of this Annex to enter their territory simply upon production of a valid identity card or passport. No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of Article 17 of this Annex who do not have the nationality of a Contracting Party. The Contracting Party concerned shall grant these persons every facility for obtaining any necessary visas. ...” “1. A person who has the right of residence and is a national of a Contracting Party is entitled to be joined by the members of his family. An employed person must possess housing for his family which is regarded as of normal standard for national employed persons in the region where he is employed, but this provision may not lead to discrimination between national employed persons and employed persons from the other Contracting Party. 2. The following shall be regarded as members of the family, whatever their nationality: (a) his spouse and their relatives in the descending line who are under the age of 21 or are dependent; (b) his relatives in the ascending line and those of his spouse who are dependent on him; (c) in the case of a student, his spouse and their dependent children. The Contracting Parties shall facilitate the admission of any member of the family not covered by the provisions of this paragraph under (a), (b) and (c), if that person is a dependant or lives in the household of the national of a Contracting Party in the country of provenance ...” “1. The rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order, public security or public health. ...” | 1 |
train | 001-57422 | ENG | BEL | CHAMBER | 1,983 | CASE OF ALBERT AND LE COMPTE v. BELGIUM | 2 | Violation of Art. 6-1;Just satisfaction reserved | C. Russo | 8. Dr. Alfred Albert is a medical practitioner. He was born in 1908, lives at Molenbeek and is a Belgian national. 9. By letter of 9 April 1974, the Brabant Provincial Council of the Ordre des médecins (Medical Association) notified him of the opening of an enquiry regarding him; it summoned him to appear before its Bureau on 8 May to answer questions in connection with a series of certificates of unfitness for work issued by him, asking him to bring with him the medical files of the patients concerned. The applicant appeared on the prescribed date. The Bureau of the Provincial Council informed him that he was accused of having issued spurious certificates. On 16 May, the President of the Provincial Council sent Dr. Albert a registered letter which read: "Dear Colleague, The Brabant Council of the Ordre des médecins requests the honour of your appearance before it on Tuesday, 4 June 1974 at 8.30 p.m., 32 Place de Jamblinne de Meux, in order to present your defence in connection with the following complaint, namely that of - having issued various certificates of unfitness for work, in particular: on 26.12.1973 to B..., on 7.1.1974 to T..., on 9.1.1974 to A..., without having satisfied yourself in a strict manner, by means of a sufficiently thorough examination, of the justification of the unfitness for work and while not possessing any medical record in relation to these patients, these facts having compromised the reputation, probity and dignity of the medical profession. The case-file concerning you may be consulted at the Council’s office on any working day from 9.00 a.m. until 11.30 a.m., and from 2.00 p.m. 5.00 p.m., except on Saturday afternoon, from 18 to 31 May inclusive. You may be assisted by one or more lawyers. Yours faithfully ..." On 4 June, the Provincial Council heard Dr. Albert and suspended his right to practise medicine for a period of two years. It found that Dr. Albert had "carried out no medical examinations such as to warrant finding a state of unfitness for work", that he had been unable to produce "any medical document whatsoever capable of establishing" such a state, and that neither had "his memory permitted him ... to come forward with any justification". It considered that "it ought to impose a very severe sanction" in view of "the very serious disciplinary record" of the applicant (two suspensions from practice following criminal convictions). Mr. Albert was notified of the decision on 11 June. 10. Dr. Albert appealed to the French-language Appeals Council of the Ordre on 18 June. The Provincial Council’s legal assessor did likewise on 26 June in order to have the penalty increased. On 19 November, the Appeals Council upheld the decision given at first instance. 11. By judgment of 12 June 1975, the Court of Cassation rejected the applicant’s appeal on a point of law alleging violation of the rights of defence and, in so far as relevant, of Article 97 of the Constitution. 12. Dr. Herman Le Compte, a Belgian national born in 1929 and living at Knokke-Heist, is a medical practitioner. 13. On 22 February 1974, the West Flanders Provincial Council of the Ordre des médecins informed him that an enquiry had been ordered concerning him for "improper publicity" (ongeoorloofde publiciteit) and "contempt (beledigingen) of the Ordre": he had given three interviews to magazines and sent a letter to the President of the Provincial Council. On 26 March, the applicant wrote to the said President to advise him of his intention to exercise his right, under sections 40 an 41 of the Royal Decree of 6 February 1970, to challenge the Provincial Council’s members as a whole. On 27 March, the Provincial Council, by decision rendered in absentia, rejected the applicant’s challenge and suspended his right to practise medicine for a period of two years. 14. The applicant entered an appeal on 5 April 1974. He alleged, amongst other things, violation of Article 6 para. 1 (art. 6-1) of the Convention: "This provision of the Convention guarantees to a litigant that his case will be dealt with at a public hearing by an independent and impartial tribunal. neither of these two guarantees was assured. (a) Cases before the Councils of the Ordre des médecins are not dealt with at a public hearing even though no reason of public policy exists for dealing with cases in camera or, at least, for pronouncing decisions in camera. Consequently, honest treatment in accordance with the principles of the European Convention is rendered impossible. (b) The Councils of the Ordre are, by reason of their membership alone, neither independent nor impartial since half of their members are other medical practitioners." (Translation from Dutch) The legal assessor of the Provincial Council did not avail himself of his own right to appeal. On 28 October, the Dutch-language Appeals Council rejected the grounds challenging its members and changed the applicants’ suspension into striking his name from the register of the Ordre. On 4 November, Dr. Le Compte lodged an objection (opposition) against this decision, which had been given in absentia. As he had been summoned to appear at a hearing on 16 December, he lodged a further challenge on 6 December against the Appeals Council’s members as a whole. On 6 January 1975, the Appeals Council rejected both the objection and the challenge. 15. The applicant thereupon appealed on a point of law to the court of Cassation, but his appeal was dismissed by judgment of 7 November 1975, which was notified to him on 25 November. 16. The striking of Dr. Le Compte’s name from the register of the Ordre took effect on 26 December. Under sections 7 para. 1 and 31 of Royal Decree No. 79 of 10 November 1967 and section 38 para. 1 of Royal Decree No. 78 of the same date, being struck off the register has the consequence of debarring him from practising medicine. 17. Belgian legislation on the Ordre des médecins, particularly on the organs of the Ordre and the procedure followed in disciplinary matters, is described in the Le Compte, Van Leuven and De Meyere judgment of 23 June 1981 (Series A no. 43, pp. 11-17, paras. 20-34). The Court refers back to this judgment in this connection. | 1 |
train | 001-113767 | ENG | TUR | CHAMBER | 2,012 | CASE OF ÇOŞELAV v. TURKEY | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque | 5. The applicants were born in 1957 and 1961 respectively and live in Istanbul. 6. On 29 December 2003 the applicants’ then sixteen-year-old son, Bilal Çoşelav, was serving a prison sentence in the juvenile wing of Kars Prison when he made an attempt to take his own life by hanging himself in the courtyard. Prison warders arriving at the scene resuscitated him and he was subsequently returned to his prison wing. In a statement taken by the prison governor, Bilal Çoşelav was reported as having explained that he was finding it difficult to adapt to prison life and that he was suffering from psychological problems. 7. Disciplinary proceedings were brought against Bilal Çoşelav for his attempted suicide but the disciplinary board decided not to impose a punishment. The board told him that “he was setting a bad example to other inmates”, and warned him that if he were to do “such things” again he would be treated more severely. 8. Bilal Çoşelav made another attempt to kill himself on 19 January 2004 by taking an overdose. He was taken to hospital for treatment and then on 28 January 2004 he was transferred to Erzurum Prison. 9. On 9 February 2004 a prisoner told the governor of Erzurum Prison that Bilal Çoşelav had been “behaving oddly”, had talked about hanging himself, and his behaviour had been causing concern in the juvenile wing. 10. On the same day, Bilal Çoşelav was transferred from the juvenile wing of the prison to another wing which housed adult prisoners from his home town. According to a report drawn up by prison officers, this had been at the request of Bilal Çoşelav, who had claimed that “although his identity card showed that he was seventeen years old, he was actually older” and could therefore be detained in an adult wing. 11. On 16 February 2004 Bilal Çoşelav told the prison governor that he wanted to be transferred to another wing because he did not get on with the people in his wing. 12. Between 27 February and 10 December 2004 Bilal Çoşelav sent twenty-two letters to the prison governor and the prosecutor of Erzurum Prison stating that he urgently needed to see the governor to discuss his personal problems. On the few occasions on which his requests were granted he told the governor that he wanted to be transferred to another wing in the prison. He also informed the governor that he had not been visited regularly by his family, that he did not have any money and that he wanted to work in the prison to earn some. 13. According to two reports drawn up by prison officers, on 15 December 2004 Bilal Çoşelav met with the deputy governor and asked to be transferred to another cell. When his request was refused he tried to attack a prison warder with a razor blade, kicked and broke the sink in his cell and set fire to his mattress. 14. According to another report drawn up by prison officers, on 17 December 2004, at approximately 10.00 a.m., Bilal Çoşelav injured his head by repeatedly hitting it against his cell walls and was then taken to the infirmary to have the injury treated. Later on the same day, he was brought back to the wing and placed in a cell on his own. 15. At around 1.30 p.m. that same day, Bilal Çoşelav hanged himself from the iron bars of his cell with his bed sheets. A doctor arrived and for five minutes tried unsuccessfully to resuscitate him, finally pronouncing him dead. 16. Later on the same day, the Erzurum prosecutor and a doctor arrived at the prison and photographed Bilal Çoşelav’s body. They then took the body to the local hospital where, on the same day, a post-mortem examination was carried out. According to the post-mortem report, the cause of death was asphyxia. Samples taken from the body were sent for further forensic examination. 17. Between 17 and 21 December 2004 prosecutors questioned the prison officers. Their statements agreed with the above-mentioned reports. The prisoners questioned by the prosecutors stated that they had not seen the incident. Both the prison officers and the prisoners claimed that they knew Bilal Çoşelav had problems. 18. It appears from a report that, on 30 December 2004, a prosecutor instructed the prison governor to inform the family of Bilal Çoşelav’s death. Later on the same day the prison governor obtained the telephone number of the second applicant (Bekir Çoşelav) from the prison records and informed him of the death of his son. 19. On 3 January 2005 the second applicant formally identified the body of his son. On the same day, the prosecutor released the body for burial. 20. On 7 January 2005 the second applicant met with the Erzurum prosecutor and told him that he had not been informed of the death of his son until 30 December 2004. He alleged that Bilal had not had any problems with his family and that he might have been killed by two prison warders with whom he had argued in the days leading up to his death. He also wanted the prison officers prosecuted for their failure to inform him promptly of his son’s death. 21. Proceedings were brought by the disciplinary board of the prison against two prison warders who had been on duty in Bilal Çoşelav’s wing on the day he committed suicide. On 3 February 2005 the disciplinary board decided to give formal warnings to these warders. It was noted in the disciplinary board’s report that the large number of cells in the wing had made it impossible for the warders to keep a constant watch on Bilal Çoşelav, who had been suffering from psychological problems. However, adequate precautions could have been taken by increasing the number of prison warders there, which would have ensured that he was under sufficient surveillance. 22. On 10 February 2005 both applicants, with the assistance of their legal representative, submitted a detailed complaint to the prosecutor claiming, inter alia, that the iron bars from which their son had allegedly hanged himself were too low - for a person of his height (180 cm) - to have been effective for this purpose. 23. The doctors who had examined the samples taken from Bilal Çoşelav’s body stated in their report of 29 March 2005 that his death had been caused by hanging. 24. On 29 April 2005 the Erzurum prosecutor decided to close the criminal investigation stating that, in his opinion, no one had incited or encouraged Bilal Çoşelav to commit suicide. 25. On 3 May 2005 the Directorate for Prisons informed the second applicant that disciplinary proceedings had been brought against the prison officers who had failed to inform the family of the suicide of their son. 26. The applicants filed an objection against the prosecutor’s decision to close the criminal investigation. They argued that the prosecutor had failed to carry out a thorough investigation into the facts surrounding their son’s death. 27. The objection was dismissed by the Oltu Assize Court on 7 February 2006. That decision was communicated to the applicants on 6 September 2006. 28. In the meantime, on 21 November 2005, the applicants wrote to the Ministry of Justice claiming compensation for the death of their son. In their letter the applicants argued, inter alia, that even assuming that their son had committed suicide, this was on account of the prison authorities’ failure to take adequate steps to protect his right to life. When the Ministry of Justice failed to respond to their letter, the applicants brought an action against the Ministry before the Erzurum Administrative Court on 8 February 2006. 29. On 29 December 2006 the Erzurum Administrative Court, by a majority of two to one, rejected the applicants’ case, with the majority considering that the prison authorities could not be blamed for Bilal Çoşelav’s suicide, which had occurred as a result of his family problems. The dissenting judge, however, noted in his separate opinion that Bilal Çoşelav was being held in an adult wing of the prison in breach of the applicable domestic law, which required that he be kept in a juvenile wing. The judge argued that the possibility that his detention with adults had contributed to his psychological problems could not be excluded. He added that the fact that Bilal had repeatedly asked to be transferred showed that he had been having problems with the adult prisoners in his wing. The dissenting judge concluded by arguing that Bilal Çoşelav should have been kept under constant observation, at least on that particular day when he had injured himself by hitting his head against the wall, some hours before he had succeeded in killing himself. 30. On 12 March 2007 the applicant lodged an appeal against the Erzurum Administrative Court’s decision. On 15 December 2010 the Supreme Administrative Court quashed the decision and held that the file should be returned to the Erzurum Administrative Court for reconsideration. In its decision the Supreme Administrative Court also referred to the prison disciplinary board’s conclusion (see paragraph 21 above), and concluded that the decision adopted by that disciplinary board proved that the prison authorities had acted in breach of their duties by failing to ensure an adequate watch on Bilal Çoşelav, who had been suffering from psychological problems. It also held that the prison authorities’ failure to inform the family in a timely manner of the death of their son must have contributed to the family’s suffering. According to the information provided by the applicants, the Ministry of Justice requested a rectification of the Supreme Administrative Court’s decision and the examination of that request is still continuing before the Supreme Administrative Court. 31. Article 107 (b) of the Regulations on Prison Administration and Execution of Sentences (which entered into force on 5 July 1967 and was repealed in 2006) stipulated that prisoners under the age of eighteen were to be kept separately from other prisoners. According to Article 106 of the Regulations, prisoners were to be given the opportunity to “inform prison governors, prosecutors and the Ministry of Justice of their complaints and requests”. 32. Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules of 11 January 2006 (“the European Prison Rules”) includes in its basic principles: “... 11.1 Children under the age of 18 years should not be detained in a prison for adults, but in an establishment specially designed for the purpose. 11.2 If children are nevertheless exceptionally held in such a prison there shall be special regulations that take account of their status and needs. ... 35.1 Where exceptionally children under the age of 18 years are detained in a prison for adults the authorities shall ensure that, in addition to the services available to all prisoners, prisoners who are children have access to the social, psychological and educational services, religious care and recreational programmes or equivalents to them that are available to children in the community. ... 35.4 Where children are detained in a prison they shall be kept in a part of the prison that is separate from that used by adults unless it is considered that this is against the best interests of the child. ...” 33. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410th meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Recommends the governments of member states to review, if necessary, their legislation and practice with a view: ... 7. to exclude the remand in custody of minors, apart from exceptional cases of very serious offences committed by older minors; in these cases, restricting the length of remand in custody and keeping minors apart from adults; arranging for decisions of this type to be, in principle, ordered after consultation with a welfare department on alternative proposals ...” 34. In the report pertaining to its visits carried out in Turkey between 5 and 17 October 1997 (CPT/Inf (99) 2 EN, publication date: 23 February 1999), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) expressed its serious misgivings “as regards the policy of having juveniles (i.e. 11 to 18 year olds) who are remanded in custody placed in adult prisons”. 35. In a report on its visit to Turkey between 16 and 29 March 2004 (CPT/Inf (2005) 18), the CPT stated the following: “[i]n the reports on its visits in 1997 and September 2001, the CPT has made clear its serious misgivings concerning the policy of having juveniles who are remanded in custody placed in prisons for adults. A combination of mediocre material conditions and an impoverished regime has all too often created an overall environment which is totally unsuitable for this category of inmate. The facts found in the course of the March 2004 visit have only strengthened those misgivings. Here again, the laudable provisions of the Ministry of Justice circular of 3 November 1997 (‘the physical conditions of the prison sections allocated to juvenile offenders shall be revised and improved to conform with child psychology and enable practising educative programmes, aptitude intensive games and sports activities’) have apparently had little practical impact.” 36. The 1989 United Nations Convention on the Rights of the Child (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 1 of the UN Convention states: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” Article 3(i) states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 (c) provides: “States Parties shall ensure that: (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” Article 40 provides in so far as relevant: “1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society. ...” 37. The relevant part of the Concluding Observations of the United Nations Committee on the Rights of the Child in respect of Turkey (09/07/2001(CRC/C/15/Add.152.)) provides as follows: “65. ... The fact that detention is not used as a measure of last resort and that cases have been reported of children being held incommunicado for long periods is noted with deep concern. The Committee is also concerned that there are only a small number of juvenile courts and none of them are based in the eastern part of the country. Concern is also expressed at the long periods of pre-trial detention and the poor conditions of imprisonment and at the fact that insufficient education, rehabilitation and reintegration programmes are provided during the detention period. 66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 39 and 40, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province...” 38. According to UNICEF, the juvenile justice system was in its infancy in Turkey in 2008. Judges were still learning about child-sensitive detention centres, alternative dispute resolution procedures and due process for children in conflict with the law. | 1 |
train | 001-108867 | ENG | ROU | CHAMBER | 2,012 | CASE OF SINDICATUL "PĂSTORUL CEL BUN" v. ROMANIA | 2 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria | 6. On 4 April 2008 thirty-five clergymen and lay staff of the Romanian Orthodox Church, the majority of them Orthodox priests in parishes of the Metropolis of Oltenia (a region of south-western Romania), held a general meeting at which they decided to form the Păstorul cel Bun trade union. The relevant parts of the union’s constitution read as follows: “The aim of the union of clergy and lay persons working in parishes or other ecclesiastical bodies within the administrative and territorial jurisdiction of the Metropolis of Oltenia shall be accepted voluntarily and concerns the representation and protection of the professional, economic, social and cultural rights and interests of clergy and lay members of the union in their dealings with the Church hierarchy and the Ministry of Culture and Religious Affairs. In order to achieve the above aim, the union shall seek to: (a) ensure respect for the fundamental rights of its members to work, dignity, social protection, safety at work, rest, social insurance, unemployment benefits, pension rights and other rights laid down in the legislation in force; (b) ensure that each of its members is provided with work corresponding to his professional training and skills; (c) ensure compliance with the statutory provisions concerning the duration of leave and days of rest; (d) promote initiative, competition and freedom of expression among its members; (e) ensure the implementation and strict observance of the statutory provisions concerning protection of employment and the rights deriving therefrom; (f) apply fully the provisions of Law no. 489/2006 on religious freedom and the legal status of religious denominations, the Statute of the Romanian Orthodox Church and the Holy Canons of the Romanian Orthodox Church; (g) negotiate collective and individual labour agreements with the Archdiocese and the Metropolis expressly setting out all the rights and duties of the clergy and laity; (h) afford protection to its President and representatives, both during and after their terms of office; (i) ensure that it is involved and represented at all levels and on all decision-making bodies, in accordance with the statutory provisions in force; (j) use petitions, demonstrations and strikes as means of defending its members’ interests and protecting their dignity and fundamental rights; (k) take legal action against any individuals or other entities that disregard employment legislation, trade-union law, the provisions of the collective agreement drawn up within the Metropolis or employment contracts, if it has proved impossible to resolve the disputes in question by means of negotiation; (l) ensure the observance and implementation of statutory provisions relating to remuneration and guarantees of decent living conditions; (m) secure to the clergy and laity the benefit of all the rights enjoyed by other sectors of society; (n) set up its own mutual-aid funds; (o) produce and issue publications providing information to its members and defending their interests; (p) establish and operate cultural, educational and research organisations in the trade-union sphere, as well as social and socio-economic institutions, in accordance with the relevant statutory provisions and in the interests of its members; (r) raise equity to support its members; (s) organise and fund religious activities; (ş) make proposals for elections to local Church bodies and put forward a priest from among its members to take part in the Holy Synod of the Romanian Orthodox Church; (t) ask the Archdiocese to submit a report on its revenues and expenditure to the Assembly of Priests; and (ţ) ask the Archdiocesan Council to notify it, on a quarterly or annual basis, of any decisions relating to appointments, transfers and allocation of budgetary resources.” 7. In accordance with the Trade Unions Act (Law no. 54/2003), the union’s elected president applied to the Craiova Court of First Instance for the union to be granted legal personality and entered in the register of trade unions. 8. The representative of the Archdiocese opposed the application. He acknowledged that the members of the union were employed by the Archdiocese on individual contracts, but argued that the internal regulations of the Orthodox Church, approved by Government Ordinance no. 53/2008, prohibited the establishment of any form of association without the archbishop’s prior consent. 9. The union’s representative pursued his application, pointing out that the statutory requirements for establishing a trade union, as set out in the Trade Unions Act, were fulfilled and that the Act in question did not bar the professional groups concerned in this case from forming a union. 10. The public prosecutor’s office supported the application, expressing the view that the establishment of the union was lawful and that the Church’s internal regulations could not prohibit it, as the priests and lay persons concerned were all employed by the Church and as such were entitled to form an association to defend their rights. 11. In a judgment of 22 May 2008 the court allowed the union’s application and ordered its entry in the register of trade unions, thereby granting it legal personality. 12. The court based its decision on the provisions of section 2 of Law no. 54/2003, Article 39 of the Labour Code, Article 40 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention on Human Rights. 13. It noted that the Religious Freedom Act (Law no. 489/2006) allowed religious organisations to operate independently as long as there was no threat to national security, public order, public health, morals and fundamental rights and freedoms. Noting further that it was not disputed that the union’s members were employed on contracts, it held that as a result, their right to organise, which was guaranteed by labour law, could not be made subject to their employer’s prior consent. 14. Regarding the Church’s internal regulations, the court held that the fact that priests had a duty of subordination and obedience vis-à-vis their employer under the Church’s Statute could not justify restricting a right guaranteed by labour legislation since such a duty did not constitute a measure that was necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. 15. Reviewing the union’s constitution, the court found that its establishment was not necessarily a manifestation of a dissident faction within the Romanian Orthodox Church with a disregard for hierarchy and traditions, but that, on the contrary, it might encourage employer-employee dialogue regarding the negotiation of employment contracts, observance of working and non-working hours and the rules on remuneration, protection of health and safety at work, vocational training, medical cover and the right to elect representatives and stand for election to decision-making bodies, in accordance with the special characteristics of the Church and its spiritual, cultural, educational, social and charitable purpose. 16. The Archdiocese appealed against the court’s judgment, submitting that the provisions of domestic and international law on which it had been based were not applicable to the present case. It argued that Article 29 of the Constitution guaranteed religious freedom and the autonomy of religious communities and that this principle could not be overridden by freedom of association. It further submitted that by acknowledging the trade union’s existence, the court had interfered with the traditional organisation of the Church, thus undermining its autonomy. 17. In a final judgment of 11 July 2008 the Dolj County Court allowed the appeal, quashed the first-instance judgment and, on the merits, refused the application for legal personality and for entry in the register of trade unions. 18. The County Court observed that the Constitution and Law no. 489/2006 guaranteed the autonomy of religious communities and their right to make their own organisational arrangements in accordance with their internal regulations. It further noted that there was no reference to the concept of a trade union in the Statute of the Orthodox Church, which provided that the establishment, operation and dissolution of religious associations and foundations were subject to the blessing of the Church’s Synod and that priests had a duty of obedience towards their superiors and could not undertake civil transactions, including those of a personal nature, without their prior written approval. 19. It held that the prohibition on setting up any form of association within the Church without the consent of the hierarchy was justified by the need to protect the Orthodox Christian tradition and its founding tenets, and that if a union were to be established, the Church hierarchy would be obliged to work together with a new body operating outside that tradition and the rules of canon law governing decision-making. 20. Lastly, it noted that under Law no. 54/2003, persons performing management functions were not allowed to form trade unions and, bearing in mind that under the Church’s Statute, priests assumed leadership of their parishes, concluded that they were covered by this ban. 21. The relevant provisions of the Constitution read as follows: “Citizens may freely associate to form political parties, trade unions, employers’ organisations and other forms of association.” “The right to work shall not be restricted. Everyone is free to choose his or her profession, trade or occupation and workplace. Employees are entitled to social protection measures. These concern employees’ health and safety, working conditions for women and young people, the establishment of a national gross minimum wage, weekly rest, paid annual leave, work performed in particular or special conditions, vocational training, and other specific situations as provided for by law. The normal average working day is a maximum of eight hours. For equal work, women shall receive equal pay to men. The right to collective labour bargaining and the binding force of collective agreements shall be guaranteed.” “Freedom of thought and opinion and freedom of religion shall not be restricted in any form. No one shall be compelled to embrace an opinion or religion contrary to his or her own beliefs. Freedom of conscience is guaranteed; it must be manifested in a spirit of tolerance and mutual respect. Religious denominations shall be free and religious communities shall be organised in accordance with their own regulations, subject to the conditions laid down by law. All forms, means, acts and actions of religious enmity shall be prohibited in relations between religious denominations. Religious communities shall enjoy autonomy in relation to the State and shall receive State support, including the provision of facilities offering religious assistance in the army, hospitals, prisons, asylums and orphanages.” 22. The relevant provisions of the Trade Unions Act (Law no. 54/2003) are worded as follows: “Anyone working on the basis of a contract of employment, including public officials, shall have the right to form or to join trade unions. The establishment of a trade union shall require a minimum of fifteen employees in the same occupation or branch of activity. No one shall be compelled to join, not to join or to leave a trade union.” “Persons performing management functions or functions involving the exercise of public authority, the judiciary, the military, the police and members of the special forces may not set up trade unions.” 23. Under the Religious Freedom Act (Law no. 489/2006), freedom to practise religious beliefs is guaranteed. The relevant provisions of the Act read as follows: “The Romanian State shall respect and guarantee the right to freedom of thought, conscience and religion of any person within the territory of Romania, in accordance with the Constitution and international treaties to which Romania is a party.” “Members of religious communities shall be free to choose the form of association in which they wish to practise their faith – religious community, association or group – in accordance with the terms and conditions of this Act. Religious communities, associations and groups shall be required to observe the Constitution and the law and not to threaten public safety, public order, health, morals and fundamental rights and freedoms.” “Recognised religious communities shall have the status of charitable corporations. Under the provisions of the Constitution and this Act, they shall be organised and shall operate independently in accordance with their own statutes or canons.” “The State shall contribute, on request, to the remuneration of clergy and lay staff of recognised religious communities, according to the number of worshippers and the actual needs of the communities.” “On a proposal by the Ministry of Culture and Religious Affairs, the Government shall grant the status of a State-recognised religious community to religious associations which, through their activities and number of members, are of public interest and of proven sustainability and stability. The State shall recognise statutes and canons to the extent that their content does not threaten public safety, public order, health, morals and fundamental rights and freedoms.” “Religious communities shall select, appoint, employ and dismiss staff in accordance with their own statutes, codes of canon law and regulations. Religious communities may impose disciplinary sanctions on their employees, in accordance with their own statutes, codes of canon law and regulations, for breaches of the community’s doctrine or moral principles.” “Employees of religious communities who are insured within the State insurance scheme shall be subject to the legislation on the State social-insurance system.” “Matters of internal discipline shall be exclusively subject to the provisions of internal regulations and canon law.” 24. The State-Funded Remuneration Act (Law no. 330/2009) contains provisions on the remuneration of the clergy and lay staff. It provides that the State is to contribute to the remuneration of clergy members and lay persons employed by recognised religious communities. Thus, the State pays clergy employed by recognised religious communities a monthly stipend equivalent to between 65% and 80% of the salary of a secondary-school teacher. The State also covers all social contributions payable by employers in respect of members of the clergy. 25. As regards lay staff, Law no. 330/2009 provides that they are to receive a monthly allowance equivalent to the national guaranteed minimum wage. This allowance and all social contributions payable by employers in respect of these employees are covered by local government budgets. Clergymen holding senior positions receive a higher stipend. 26. The Statute of the Romanian Orthodox Church, adopted by the Church’s Synod in November 2007 and approved by Government Ordinance no. 53 of 16 January 2008, replaced the previous Statute, which dated from 1949. The relevant provisions read as follows: “The Patriarchate is made up of dioceses and archdioceses, grouped into metropolises.” “The Holy Synod shall take decisions on the establishment, organisation and dissolution of national ecclesiastical associations and foundations ... It shall grant or refuse its blessing for the establishment, organisation and dissolution of Orthodox associations and foundations that operate in dioceses and have their own governing bodies.” “The parish is the community of believers, clergy and laity, within a specified geographical territory and subject to the canonical, legal, administrative and economic authority of the diocese or archdiocese. It is led by a priest appointed by the bishop.” “Without the bishop’s prior written consent, the priest may not represent the parish in court proceedings or in dealings with the authorities or third parties. By virtue of the oath of obedience taken at the time of their ordination, members of the clergy and monks may not take part in court proceedings save with the prior written permission of the bishop.” “Priests and other church staff have the rights and are bound by the obligations set forth in the Holy Canons, this Statute, church regulations and the decisions of the archdiocese.” “The bishop ... shall order the appointment, transfer or dismissal of clergy and lay staff in the various parishes ... He shall ensure the observance of discipline by members of the clergy and lay staff in his diocese, whether directly or through ecclesiastical bodies.” “Members of the clergy shall serve the diocese in accordance with the duties they have freely assumed and with the vows and the solemn public undertaking they have read out and signed prior to their ordination. Before commencing their pastoral functions, they shall receive a decision from the bishop setting out their rights and duties. Without the bishop’s blessing, no priests, deacons or monks may form, be members of or take part in associations, foundations or other organisations of any kind. The status of priest, deacon or monk is incompatible with the pursuit of any other personal activities of an economic, financial or commercial nature that are contrary to Orthodox Christian morals and the interests of the Church.” “By virtue of the autonomy of religious communities under the law, the ecclesiastical courts shall resolve matters of internal discipline. Their decisions are not subject to appeal in the civil courts.” 27. In a judgment of 19 September 2005 the High Court held that it had jurisdiction to review the lawfulness of the dismissal or enforced retirement of Orthodox priests, seeing that employees of the Orthodox Church were covered by the general social-security scheme and, as a result, the statutory provisions on social insurance. That position was confirmed in two judgments delivered by the Cluj and Iaşi Courts of Appeal on 3 February 1998 and 3 June 2008 respectively. 28. In its judgment of 3 June 2008 the Iaşi Court of Appeal was required to determine a case in which the appellant, an Orthodox priest, challenged his enforced retirement on grounds of age, arguing that the measure was motivated by his membership of the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy. It rejected the priest’s argument, observing that the decision on his enforced retirement had been taken before the union had been established. 29. In a judgment of 4 February 2010 the High Court of Justice and Cassation, on an appeal by an Orthodox priest against the refusal of the Labour Inspectorate to review the application of labour law by the diocese (his employer), upheld the refusal, holding that in matters of internal discipline, the provisions of internal regulations alone were applicable. 30. In a final judgment of 4 October 1990 the Medgidia Court of First Instance ordered the entry of Solidaritatea, a union of Orthodox clergy of the Archdiocese of Tomis (Constanţa), in the register of trade unions and granted it legal personality. 31. It further appears from the reasoning of the Iaşi Court of Appeal’s above-mentioned judgment of 3 June 2008 that the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy was entered in the register of trade unions and granted legal personality as a result of a final judgment delivered on 5 June 2007 by the Hârlau Court of First Instance. 32. Romania ratified the revised European Social Charter on 7 May 1999. Article 5 of the Charter, concerning the right to organise, is worded as follows: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 33. Article 12 § 1 of the Charter of Fundamental Rights of the European Union reads as follows: “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.” 34. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation reads as follows, in so far as relevant: “... (4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No. 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation. (5) It is important to respect such fundamental rights and freedoms. This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one’s interests. ... (24) The European Union in its Declaration No. 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity. ...” “1. ... Member States may provide that a difference of treatment which is based on [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ... Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.” | 1 |
train | 001-76295 | ENG | MDA | CHAMBER | 2,006 | CASE OF BOICENCO v. MOLDOVA | 3 | Violations of Art. 3;Violation of Art. 5-1;Violations of Art. 5-3;Failure to comply with obligations under Art. 34;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Nicolas Bratza | 6. The applicant was born in 1961 and lives in Chişinău. 7. On 20 May 2005 the applicant was arrested on suspicion of fraud by the Centre for Fighting Economic Crime and Corruption (CFECC). 8. At the time of his arrest he showed no apparent abnormality in his normal physical state. According to a medical file dating from March 2005 the applicant weighed 133 kilograms. 9. According to the reports drawn up on 21 May 2005 by the policemen who arrested him, he attempted to escape, verbally abused them and even attempted to resist by trying to reach for a pistol which he had on him and by throwing away the arrest order when presented with it. It does not appear from those reports that any force was applied to the applicant or that he was injured in any way during his arrest. The applicant denies having resisted arrest. 10. It appears from the police reports that the applicant was arrested at approximately 6.45 p.m. According to the applicant, he was arrested at 4.30 p.m. 11. It is alleged on behalf of the applicant that after being brought to the CFECC premises he was beaten up by the police officers, as a result of which he lost consciousness. The Government deny that. 12. According to a medical report drawn up at 8.34 p.m. on the same date by a doctor from the CFECC, the applicant was unconscious. The doctor noted in the report that, according to the police officers, he had lost consciousness due to “intense emotions”, and recommended that the applicant be seen by a cardiologist. It does not appear from the report that the applicant had been injured in any way during arrest. 13. One of his lawyers saw the applicant at approximately 10.20 p.m. at the CFECC and noted in the minutes of arrest (proces verbal de reţinere), which was drawn up by the police officers in his presence, that the applicant was unconscious. At the request of the lawyer an ambulance was called at 11.37 p.m. and at 1.30 a.m. on 21 May 2005 the applicant was taken to the Cardiology Hospital, still unconscious. 14. It appears from the medical records from the Cardiology Hospital that the applicant regained consciousness after being brought there, but it is not clear when that happened. According to the medical records, he was suffering from arterial hypertension and a syndrome of confusion of unclear origin. The applicant would not respond to questions and would not react to anything. He also suffered headaches and nausea. There is no information in the medical file concerning his weight at the time of his hospitalisation. The doctors recommended inter alia that the applicant be given a brain scan in order to exclude the possibility of the applicant having had a cerebral stroke. The doctors concluded that a final diagnosis would be possible only after the latter tests had been carried out. 15. On 24 May 2005 the applicant was transferred to a Prison Hospital. On 25 May 2005 he was seen by a neurologist, who wrote in the medical file that on 20 May 2005 he had suffered a head trauma followed by loss of consciousness. The neurologist recommended various forms of medical treatment but did not recommend a brain scan. On 26 May 2005 a doctor noted in the medical file that the applicant had pain in his kidneys and red urine. On 2 June 2005 the applicant was examined by a commission of senior doctors from the hospital, who established a final diagnosis of, inter alia, acute head trauma and concussion and recommended, inter alia, that the applicant undergo a psychiatric investigation. On 7 June 2005 a doctor made a note in the medical file to the effect that the applicant urgently needed medication, but none was available. 16. The applicant was kept in the Prison Hospital until 1 September 2005, when he was moved to a prison for fifteen days until his further transfer to the Psychiatric Hospital. According to the medical records, during his stay in the Prison Hospital he never got out of bed. He had not fed himself and had been spoon-fed by the paramedical personnel with liquid food. He did not go to the toilet and had been kept in incontinence pads and smelt strongly of excrement. On rare occasions he would answer the doctors’ questions in a very low voice or using gestures indicating headaches and pain in his kidneys. His urine was red. Most of the time he would not react to any questions and kept his eyes closed. On at least five occasions in May and August 2005 the medical personnel reported in writing to their superiors that, due to his state, the applicant was unable to swallow his medication. On at least seven occasions the doctors noted in the medical file that the applicant’s condition was satisfactory. On several occasions the doctors speculated in the medical file that the applicant’s condition was bogus. 17. On several occasions between May and September 2005 one of the applicant’s lawyers and his wife requested that an independent doctor be given access to the applicant, but they received no answer. 18. During the applicant’s stay in the Prison Hospital, his wife was able to visit him only once, on 5 July 2005, for ten minutes. His mother was not allowed to see him. On one occasion she wrote to the Buiucani District Court and to the Prison Hospital and asked inter alia for his picture; however, she received no answer. 19. On 1 August 2005 the Chief Doctor of the Prison Hospital recommended a psychiatric examination of the applicant in order to “confirm or exclude simulation”. On 3 August 2005 the Buiucani District Court ordered a forensic and a psychiatric examination of the applicant. 20. On 18 and 30 August and 6 and 13 September 2005 one of the applicant’s lawyers and his wife requested the Buiucani District Court and the Ministry of Justice to have the applicant transferred to the Psychiatric Hospital and to speed up the psychiatric investigation. They argued inter alia that due to the lack of a clear diagnosis, no appropriate medical care was possible at that moment. The applicant’s wife also offered to cover all the costs of his transportation, examination and medical care. No answer to these requests was received. 21. Following the court order of 3 August 2005, the applicant underwent three medical investigations. A forensic investigation was carried out on 28 October 2005 and the doctors’ report stated inter alia: “... On 20 May 2005 [the applicant] suffered a head trauma with loss of consciousness. At the time of hospitalisation he suffered headaches, dizziness, and noises in his head, nausea, and fatigue... pain in his lower back... Diagnosis: acute head trauma, concussion of average severity... No visible injuries on the applicant’s body have been found during his stay at either [the Cardiology Hospital or the Prison Hospital]; however, it was established that he suffered a head trauma. On 23 May 2005, the doctors from the Cardiology Hospital established a disorder of the central nervous system, the origin of which has not been determined due to the lack of modern clinical investigation (magnetic resonance, brain scan), and consequently no adequate medical treatment was possible. According to the medical records made by the doctors between 20 May 2005 and 1 September 2005 it appears that during that period of time [the applicant] was incapable of actively participating in a criminal investigation” 22. On 20 September 2005 a psychiatric investigation was conducted. However, the Buiucani District Court considered the report incomplete and ordered a supplementary investigation, which took place on 15 November 2005. The reports of 20 September and 15 November 2005 stated inter alia: “...The commission concludes that [the applicant] is not suffering from any chronic mental disease, but that he is suffering from the consequences of a head trauma, arterial hypertension... ... As from 26 May 2005 the [applicant] has stopped answering questions; he never gets out of bed; he is dirty and eats only liquid food.... He was brought to the hospital on a stretcher. He does not move, does not react to others... he lies with his eyes closed and with his hands on his chest. He has a pale and anaemic face with moist skin... He makes no resistance to medical investigations ..., he is indifferent, passive and does not cooperate with the doctors. He did not object when his mouth was opened but did not show his tongue. His arms and legs fall down lifeless when lifted. When the doctors attempted to check his pupils, he rolled his eyes up. His clothes are dirty; he wears incontinence pads and has a strong smell of urine.... He does not take care of himself... and is being taken care of (fed, washed and changed) by the medical personnel... ... The stress (the arrest, the criminal investigation) triggered a reactive psychosis with a depressive and stupor syndrome [mental sub-responsiveness not as severe as coma, in that the person can still be partially roused by some stimuli, such as pain] which deprived him of the use of reason and he needs treatment in conditions of rigorous supervision.” 23. On 15 September 2005 the applicant was hospitalised in the Central Psychiatric Hospital, Department of Judicial Investigations, where he is held to date. 24. It appears from the medical file submitted by the Government in December 2005 that, by that date, most of the time the applicant was in a state of stupor. He regained consciousness for a period of three weeks, between 2 and 24 October 2005, but then fell back into a state of stupor after being subjected to a body search in the cafeteria of the hospital. The Government submitted copies of bills for medication for the applicant for the months of October, November and December 2005. 25. The Court has no information as to whether the applicant has ever recovered from the state of stupor. It appears that on 23 December 2005 the Buiucani District Court ordered that the applicant be held in the Central Psychiatric Hospital for treatment until full recovery. 26. According to a medical report issued at the request of one of the applicant’s lawyers on 5 December 2005 by Dr. I. Berghi, Psychiatrist, untreated psychosis with a depressive and stupor syndrome triggered in traumatic conditions can have as a consequence the development of a chronic psychiatric disease. 27. According to a medical report issued at the request of one of the applicant’s lawyers on 6 February 2006 by the applicant’s family doctor, Dr T. Moraru, the applicant had, for a long period before his head trauma of 20 May 2005, suffered from diabetes and arterial hypertension. During his stay in the Prison Hospital he suffered malnutrition and lost 30-35 kilograms. Due to his state of stupor he could not be fed and therefore needed transfusions of glucose, amino acids, vitamins C and B and others. Due to this condition he ran a serious risk of developing a diabetic coma, a stroke or a heart attack. It appeared from the applicant’s medical file from the Prison Hospital that he was not provided with sufficient treatment and medical investigation. His stupor syndrome was discovered only four to five months later. 28. On 28 March 2005 the applicant’s lawyer Mr Gribincea was received by the Deputy Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who informed Mr Gribincea inter alia that at the time of hospitalisation in the Psychiatric Hospital, the applicant weighed less than 100 kilograms and that lately, after gaining some weight, he weighed about 100 kilograms. Mr Catrinici also informed the lawyer that the applicant had been given a brain scan two weeks earlier. The Government have not disputed this. 2. The applicant’s complaint about ill-treatment 29. On 27 May 2005, when the applicant temporarily re-gained consciousness, he told one of his lawyers, in the presence of a doctor, that he had been beaten up by the police and that he had severe headaches and pain in the region of his kidneys. The doctor informed the lawyer that the applicant had suffered a head trauma and some disorder in his kidneys. 30. On 31 May 2005 one of the applicant’s lawyers lodged a complaint with the Prosecutor General’s Office about the way the CFECC representatives had ill-treated the applicant and requested the institution of criminal proceedings. He informed the Prosecutor’s Office about what he had been told by the applicant and the doctor. 31. Similar complaints were lodged by the applicant’s wife on four occasions between June and August 2005. 32. On 10 August and 10 October 2005 the applicant’s lawyer asked the General Prosecutor’s Office whether his complaint of 31 May 2005 had been examined. He did not receive any reply. 33. Only on 23 December 2005, after repeated requests made during court hearings in the criminal proceedings against the applicant, the applicant’s lawyer was handed a decision dated 8 June 2005, by which his complaint of 31 May 2005 had been dismissed. The decision was signed by Mr Nicolae Catană, the same prosecutor who had lodged the charges against the applicant and applied to court for his remand in custody (see paragraphs 45-46 below). 34. Mr Catană argued inter alia in the above decision that since the lawyer’s complaint of 31 May 2005 did not contain any specific information concerning the circumstances of the alleged ill-treatment, and in order to clarify the situation, he had attempted to hear the applicant in person on 25 and 30 May 2005. However, the applicant had categorically refused to talk to him. Moreover, even the doctors had confirmed that the applicant would refuse to talk to investigators and prosecutors and would talk only to his lawyers and the doctors, and that he was faking his symptoms. Mr Catană concluded that in any event the applicant was presumed to have been intending to use a gun during his arrest. In such circumstances, the police officers were entitled to use force and their use of force could be treated as legitimate defence. 35. On an unspecified date the applicant’s lawyer lodged an appeal against the decision of the Prosecutor General’s Office dated 8 June 2005. 36. On 23 February 2006 Judge Gheorghe Morozan from the Râşcani District Court dismissed the appeal. He argued inter alia that the investigation had been carried out carefully and in an objective manner without any derogation from the law. He found that the applicant refused to talk to the prosecutor on 25 and 30 May 2005. Moreover, the applicant had not complained to the prosecutor about being subjected to torture and physical violence. Nor had the doctors said anything to the prosecutor about ill-treatment, even though they were under an obligation to inform him of such matters. The medical file did not disclose any visible signs of violence on the applicant’s body. 3. The complaints about lack of medical care 37. On 1 July 2005 the applicant’s wife complained to the Prosecutor General’s Office inter alia that she was not allowed to see her husband and to provide him with medical care. The policemen and the doctors from the Prison Hospital were keeping the applicant’s medical condition secret in order to hide signs of torture. She also complained that her request to allow an independent doctor to consult the applicant had been rejected. The Prosecutor’s Office never replied to this letter. 38. On 18 August 2005 one of the applicant’s lawyers complained to the Buiucani District Court that the psychiatric investigation ordered by it on 3 August 2005 would not be carried out for unknown reasons. In order to ensure proper medical care to the applicant the court was asked to order the authorities to allow a private doctor to consult the applicant and to speed up the psychiatric investigation. The Buiucani District Court never examined this request. 39. On 6 September 2005 the applicant’s wife complained to the Buiucani District Court that the psychiatric investigation would not be carried out. She informed the court that she had found out that the applicant would not be moved to the Psychiatric Hospital due to the lack of facilities for transporting unconscious people. She argued that her husband’s state of health would become worse and that due to the lack of a diagnosis no appropriate medical care would be possible. She offered to cover all the expenses related to the applicant’s transportation, medical investigation and medical care. This complaint was never examined by the Buiucani District Court. 40. On 6 September 2005 the applicant’s mother wrote to the Buiucani District Court and asked it inter alia to order the speedy psychiatric evaluation of her son, to stop the inhuman treatment and to provide him with medical care appropriate for a human being. This complaint was never examined by the Buiucani District Court. 41. On 13 September 2005 the applicant’s wife wrote to the Buiucani District Court, the Prosecutor General’s Office and to the Chief of the Prison Hospital. She complained inter alia that the psychiatric evaluation of her husband would be postponed on purpose by the police and by the persons who had ordered the criminal investigation of her husband and that this made it impossible to provide him with appropriate medical care. The applicant’s wife did not receive any answer to this complaint. 42. On 5 October 2005 one of the applicant’s lawyers wrote to the Buiucani District Court that following the psychiatric investigation of 20 September 2005 the applicant was diagnosed with a serious psychiatric condition. Since the Prison Hospital, where the applicant was detained until 1 September 2005, did not treat psychiatric diseases no diagnosis and thus no appropriate treatment was possible there. Accordingly he was deprived of medical care needed by a human being and was subjected to inhuman suffering. The Buiucani District Court never replied to this letter. 43. On 6 October 2005 the applicant’s wife complained to the Buiucani District Court inter alia that her husband was not provided with appropriate medical care while in the Prison Hospital. The court did not react to this complaint either. 44. On 24 November 2005 one of the applicant’s lawyers asked the Buiucani District Court for permission to have the applicant visited by a private doctor. He informed the court that for more than six months the applicant had not regained consciousness and that the treatment provided to him by the State was not effective. He also informed the court that the delay in answering his request would amount to inhuman and degrading treatment of the applicant by hindering his recovery. He also informed the court that all the expenses would be covered by the applicant’s family. The court has never examined this request. 4. The proceedings concerning the applicant’s detention on remand 45. On 23 May 2005, following a request by the Prosecutor Nicolae Catană, the Buiucani District Court issued a warrant for the applicant’s detention for 10 days. The reasons given by the court for issuing the warrant were that: “[the applicant] is suspected of having committed a very serious offence, for which the law provides imprisonment for more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law enforcement authorities or the court; he could obstruct the finding of the truth in the criminal investigation or re-offend”. 46. On 25 May 2005 an accusation was officially brought to the applicant by Prosecutor Nicolae Catană. 47. On 25 May 2005 the applicant appealed against the order of remand and argued inter alia that there was no evidence of a risk of his absconding, obstructing the investigation or re-offending. He argued that the criminal proceedings had been pending since February 2004 and that nothing in his behaviour since then could justify suspecting him of such intentions. Moreover, his medical condition was an important argument in favour of his release. 48. On 27 May 2005 the Chişinău Court of Appeal dismissed the appeal lodged by the applicant’s lawyers without giving any reasons. 49. The remand was prolonged by the Buiucani District Court on 30 May and on 22 June 2005 on the same grounds. The applicant’s appeals against the prolongations were dismissed by the Chişinău Court of Appeal on 3 and 30 June 2005 respectively. 50. On 23 July 2005 the detention warrant expired, but the applicant was not released. 51. On 25 July 2005 the Prosecutor’s Office submitted the criminal case-file to the competent court. 52. On 26 July 2005 one of the applicant’s lawyers asked the Buiucani District Court to release the applicant from detention because, inter alia, the detention warrant had expired several days earlier. The request was dismissed on 3 August 2005. 5. The examination by private doctors of the applicant and of his medical file after his transfer to the Psychiatric Hospital 53. The facts presented under this heading are based on the submissions of the applicant and the documents submitted by him. The Government have not disputed them. 54. After 16 November 2005, a private doctor had access to the applicant on only one occasion, in early January 2006. According to the applicant, the purpose of the doctor’s visit was to assess his medical condition and to evaluate the costs of future treatment. 55. After consulting the applicant, Doctor T. Moraru concluded that a number of investigations would be necessary in order for him to reach a conclusion. His written report was sent to the Psychiatric Hospital and to the Buiucani District Court and the applicant’s wife offered to bear all the medical costs. 56. In February 2006 Doctor T. Moraru attempted to visit the applicant again to examine him, but he was not allowed to do so. 57. On 8 February 2006 the applicant’s wife complained to the Buiucani District Court about the refusal of the Psychiatric Hospital authorities to allow a visit by Dr. T. Moraru, but it was dismissed by the court on 10 February 2006 on the ground that the court had no right to interfere with the applicant’s medical treatment by giving instructions to the doctors from the hospital. Similar repeated requests by the applicant’s wife and lawyer were rejected on 16 and 19 February 2006, the court adding that since the criminal proceedings against the applicant were suspended, it would be able to issue orders about him only once the proceedings had been resumed. 58. On an unspecified date the applicant’s wife asked permission from the Psychiatric Hospital to have her husband examined by a private doctor. On 16 February 2006 the Deputy Doctor in Chief of the Psychiatric Hospital wrote to the applicant’s wife that the applicant did not need to be seen by Dr. T. Moraru since he was receiving all necessary medical treatment from the hospital doctors. 59. The applicant’s wife made a similar unsuccessful request on 22 February 2006. 60. On 14 and 22 March 2006 one of the applicant’s lawyers (Mr Gribincea) called the Government Agent’s Office and asked Ms Lilia Grimaschi for assistance in obtaining access to the applicant and to his medical file for him and a private doctor. His request was unsuccessful. 61. On 20 and 28 March 2006 the applicant’s lawyers lodged with the Doctor in Chief of the Psychiatric Hospital two requests for access for Mr T. Moraru to the applicant and his medical file. They submitted in their requests that such access was needed in order to pursue the application before the Court and relied inter alia on Article 34 of the Convention. 62. On the same date the applicant’s lawyer, Mr Gribincea, had a meeting with the Doctor in Chief of the Psychiatric Hospital, Mr I. Catrinici, who verbally rejected his request and argued that no access to the applicant was possible without a court order. 63. On 31 March 2006 Mr I. Catrinici replied in writing to the letter of 28 March 2006 by a letter containing nothing but the text of section 9 of the Law on Psychiatric Assistance (see paragraph 69 below) in two languages, Romanian and Russian. 64. Article 25 of the Constitution of the Republic of Moldova, insofar as relevant, states as follows: “(4) Detention takes place on the basis of a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged, in accordance with the law, before a hierarchically superior court. The period of detention may be extended only by a court, in accordance with the law, to a maximum of twelve months.” 65. The relevant provisions of the Code of Criminal Procedure (‘the CCP’) read as follows: Section 176 “(1) Preventive measures may be applied by the prosecuting authority or by the court only in those cases where there are serious grounds for believing that an accused ... will abscond, obstruct the establishment of the truth during the criminal proceedings or re-offend, or they can be applied by the court in order to ensure the enforcement of a sentence. (2) Detention on remand and alternative preventive measures may be imposed only in cases concerning offences in respect of which the law provides for a custodial sentence exceeding two years. In cases concerning offences in respect of which the law provides for a custodial sentence of less than two years, they may be applied if ... the accused has already committed the acts mentioned in § (1). (3) In deciding on the necessity of applying preventive measures, the prosecuting authority and the court will take into consideration the following additional criteria: 1) the character and degree of harm caused by the offence, 2) the character of the ... accused, 3) his/her age and state of health, 4) his/her occupation, 5) his/her family status and existence of any dependants, 6) his/her economic status, 7) the existence of a permanent place of abode, 8) other essential circumstances. ... Section 177 ... (2) Detention on remand ... can be applied only on the basis of a court decision... Section 185. Detention on remand (1) Detention on remand means the detention of the suspect, accused or indicted person in a state of arrest in places and in conditions provided for by law. (2) Detention on remand may be applied to someone in the circumstances and in the conditions provided for in Article 176, as well as when: 1) the suspect, the accused or the indicted person does not have a permanent place of residence on the territory of the Republic of Moldova; 2) the suspect, the accused or the indicted person is unknown; 3) the suspect, the accused or the indicted person has breached the conditions imposed on him/her concerning other preventive measures. ... (4) The decision by which detention on remand is ordered can be challenged by way of an appeal before the hierarchically superior court. Section 186. The length of the remand and its prolongation (1) The duration of a person’s remand starts to run from the moment of his or her arrest, or, if the person was not arrested, from the moment of enforcement of the court decision ordering the remand. ... (2) The remand during the investigation stage of the proceedings, before the case file is sent to the competent court [by the prosecutor] shall not be longer than thirty days, except in cases provided for in the present code. The running of the duration of the remand during the investigation stage of the proceedings ceases on the date when the prosecutor sends the criminal case-file to a court and when the detention on remand is revoked or is replaced with another preventive measure which does not involve a deprivation of liberty. ... (5) Any prolongation of the detention on remand may not be for a period longer than 30 days. (6) If it is necessary to prolong the duration of the detention on remand of an accused, the prosecutor shall, not later than 5 days before the expiry of the remand order, make a request in that respect before the investigating judge. (7) When deciding on the prosecutor’s request about the prolongation of the remand, the investigating judge, or, as the case may be, the court, has the right to replace the detention on remand with home detention, release under judicial control or bail. (8) After the sending of the bill of indictment to a court all the requests concerning the detention on remand shall be examined by the court in charge of the criminal case. (9) The prolongation of the duration of remand for up to 6 months shall be decided upon by the investigating judge on the basis of a request of the district prosecutor. In case of a necessity to prolong the duration of the remand for over 6 months the request shall be lodged by the district prosecutor with the consent of the Prosecutor General or his deputies. (10) The decision concerning the prolongation of the detention on remand may be challenged by way of an appeal to the hierarchically superior court. Section 190 A person detained on remand under the provisions of Article 185 may request, at any time during the criminal investigation, his provisional release under judicial control or on bail. Section 191. The provisional release under judicial control of a remanded person (1) A provisional release under judicial control of a remanded person, or of a person in respect of whom a request for detention on remand has been made, may be granted by the investigating judge or by a court only in case of offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment. (2) A provisional release under judicial control may not be granted to an accused who has outstanding criminal convictions for serious, very serious or exceptionally serious offences or if there exists information that he or she will commit another offence, will try to influence the witnesses, will try to destroy evidence or will abscond. (3) A provisional release under judicial control of a remanded person shall be accompanied by one or more of the following obligations: 1) not to leave the town of residence except in the conditions set by the investigating judge or by the court; 2) to inform the investigation organ or the court of any change of address; 3) not to go to certain places; 4) to appear in front of the investigation organ or the court when summonsed; 5) not to make contact with certain persons; 6) not to commit acts capable of hindering the discovery of the truth; 7) not to drive cars or not to exercise any profession of the kind used for committing of the offence. ... Section 195 (1) A preventive measure applied may be replaced by a harsher one, if the need for it is proved by evidence, or by a lighter one, if by applying it the proper behaviour of ... the accused is ensured, with the aim of ensuring the normal course of the criminal investigation and of enforcing the sentence imposed. Section 329 (1) In examining a case the court, ex-officio or at the request of the parties and having heard their opinion, shall have the power to apply, revoke or discontinue the preventive measure applied to the accused. A new request for the application, replacement or revocation of a preventive measure may be submitted if there are grounds for such a request, but not earlier than one month from the date of entry into force of the last decision in this respect or if new circumstances have appeared. Section 345 (1) Within ten days from the date when the case was distributed for judgment, the judge or the bench, having examined the case-file, shall set a date for the preliminary hearing. The preliminary hearing in cases where the person is arrested shall be held urgently and with priority. ...(4) At the preliminary hearing the following issues shall be examined: ...6) preventive and protective measures. Section 351 ...(7) In setting a date for the examination of the case, the court shall order the maintenance, revocation or discontinuation of preventive measures, in conformity with the present Code.” 66. The explanatory judgment of the Plenary Supreme Court of Justice of 28 March 2005 states inter alia that release under judicial control can be granted by the investigating judge or by the trial court only to persons charged with offences committed through negligence or intentional offences punishable with less than 10 years of imprisonment. 67. The Commentary of the Code of Criminal Procedure, edited in 2005, the authors of which are amongst others the President and several judges from the Supreme Court of Justice and several senior law professors, states the following in respect of section 191: “The first paragraph of section 191 provides for the first condition of admissibility of release under judicial control which is determined by the gravity of the offence with which the accused is charged. This condition [the gravity of the offence] is determined in the documents issued by the investigation body or by the prosecutor, who establish the qualification of the offence... The investigating judge is not empowered with assessing whether the legal qualification of the offence is correct since he does not examine the evidence on which the qualification is made ... At the trial stage, the trial court can give a new qualification to the offence with which the accused is charged...” 68. In Drugalev v. the Ministry of Internal Afairs and the Ministry of Finance (final judgment of the Chişinău Court of Appeal of 26 October 2004), after being released, the applicant claimed and obtained compensation for having been held in inhuman and degrading conditions during his pre-trial detention, in the amount of approximately 950 euros (EUR). The court based its award directly on Article 3 of the Convention. 69. Article 53 of the Constitution reads as follows: “(1) A person whose rights are violated by a public authority through an administrative act or through the failure to examine a request within the statutory period, is entitled to obtain the recognition of the right claimed, the annulment of the act and compensation for damage. (2) The State bears pecuniary liability, according to the law, for harm caused through errors committed in criminal proceedings by the investigating authorities and courts.” 70. The relevant provisions of the Civil Code read as follows: “Section 1405. Liability of the State for damage caused by the actions of the criminal investigation organs, prosecution and courts (1) Damage caused to a natural person through illegal conviction, illegal prosecution, illegal application of preventive measures in the form of detention on remand or of a written undertaking not to leave the city, and illegal subjection to the administrative sanction of arrest or of non-remunerated community work, is to be fully compensated by the State, whether or not officers in the criminal investigation organs, the prosecution or judges were at fault. ...” 71. The relevant provisions of the Law No. 1545 on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts read as follows: “Section 1 (1) In accordance with the present law, individuals and legal entities are entitled to compensation for the moral and pecuniary damage caused as a result of: a) illegal detention, illegal arrest, illegal indictment, illegal conviction; b) illegal search carried out during the investigation phase or during trial, confiscation, levy of a distraint upon property, illegal dismissal from employment, as well as other procedural acts that limit the person’s rights; c) illegal administrative arrest or order to work for the community, illegal confiscation of the property, illegal fine; d) carrying out of unlawful investigative measures; e) illegal seizure of accounting documents, other documents, money or stamps as well as blocking of banking accounts. (2) The damage caused shall be fully compensated, irrespective of the degree of fault of the criminal investigation organs, prosecution and courts. Section 4 A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met: a) pronouncement of an acquittal judgment; b) dropping of charges or discontinuation of investigation on the ground of rehabilitation; c) adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation; d) adoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of the Government of the Republic of Moldova before the European Court of Human Rights. The friendly settlement agreement shall be approved by the Government of the Republic of Moldova; ...” 72. Section 9 of the Law on Psychiatric Assistance reads as follows: “Any information about mental diseases suffered by a person, his or her requests for psychiatric medical assistance and treatment in a psychiatric hospital, as well as any other information about his or her mental health constitutes a medical secret. With a view to realising his or her rights and interests, a person suffering from a mental disease or his or her legal representative can obtain any information about his or her psychiatric health and about the psychiatric assistance received.” | 1 |
train | 001-103287 | ENG | RUS | ADMISSIBILITY | 2,011 | SHUBIN v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | The application was lodged by Mr Fedor Ivanovich Shubin, a Russian national who was born in 1960 and lives in the town of Beloretsk, the Republic of Bashkortostan. He acts pro se before the Court. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr G. Matyushkin, the successive Representatives of the Russian Federation at the European Court of Human Rights. The facts, as submitted by the parties, may be summarised as follows. The applicant, who participated in the Chernobyl nuclear disaster relief operation, brought proceedings before the Beloretsk Town Court (“the Town Court”) against the local social security office seeking increase of his monthly monetary allowance. He also sought to recover the unpaid sum. On 30 October 1997 the Town Court awarded the applicant a lump sum in arrears and ordered that his monthly allowance be increased starting from November 1997. The Town Court also granted the applicant’s claim for non-pecuniary damage and costs. The judgment of 30 October 1997 was not appealed against and became final and enforceable. The lump sum awarded was paid to the applicant shortly after the judgment of 30 October 1997 had entered into force. Increased monthly allowance was being paid to the applicant until March 2002. Payment was then discontinued. For that reason the applicant lodged a claim with the Town Court complaining about non-enforcement of the judgment of 30 October 1997. On 4 August 2005 the Town Court held in the applicant’s favour and in addition awarded him a sum corresponding to the missing payments between 2002 and 2005. That judgment became final and was swiftly enforced. Subsequently, the applicant lodged a claim for compensation due to the failure to pay the monthly allowances between 2002 and 2005 in line with the judgment of 30 October 1997. On 28 March 2008 the Town Court allowed the applicant’s claim. With reference to the direct applicability of the Convention pursuant to the Russian Constitution and the reasonabletime requirement contained in Article 6 § 1 thereof, the Town Court acknowledged the lengthy non-enforcement of the judgment of 30 October 1997 in the applicant’s favour. It concluded that he had suffered nonpecuniary damage. The Town Court granted the applicant 200,000 Russian roubles (approximately 5,000 euros) in compensation. That judgment was upheld on appeal by the Supreme Court of the Republic of Bashkortostan on 24 April 2008. It was enforced on 22 August 2008. | 0 |
train | 001-110924 | ENG | SVK | CHAMBER | 2,012 | CASE OF LABSI v. SLOVAKIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Algeria);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award | Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi | 5. The applicant was born in 1969. At present he is detained in El Harrach prison in Algeria. 6. The applicant left Algeria for Italy in 1991. He subsequently spent time in Spain, Switzerland, Canada, Pakistan and Afghanistan. In 1999 the applicant arrived in the United Kingdom where he applied for asylum. His request was dismissed. 7. On 13 January 2001 the applicant was placed in custody in the United Kingdom as a result of several accusations made against him in different countries. The only one that was pursued was that of “association de malfaiteurs”. It was imputed to the applicant that, when living in Montreal, he had been involved in the supply of false documents which had been used by individuals in France when they had fled arrest for offences committed there. 8. The United Kingdom extradited the applicant to France. On 7 April 2006 he was found guilty by a French court of involvement, as a member of an organised group, in the preparation, between 1996 and 1998, of a terrorist act in France and several other countries and of forging identity documents. He received a five-year sentence and was excluded from the territory of France. The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition. On 11 April 2006 the applicant arrived in Slovakia. 9. In the meantime, on 1 June 2005, an Algerian court had convicted the applicant, in absentia, of membership of a terrorist organisation acting both in Algeria and abroad, and of forgery. He was sentenced to life imprisonment. 10. In January 2001 the applicant married a Slovakian national in London. A child was born to the couple on 2 August 2001. 11. With effect from 25 October 2007 the applicant’s wife was deprived of legal capacity to act. The child was entrusted to the care and custody of the applicant’s wife’s mother. On 29 May 2008 the latter, acting as guardian of her daughter, petitioned for divorce. The divorce proceedings are pending before the Bratislava IV District Court; it is not clear from the parties’ submissions whether a final decision has been given. 12. On 18 July 2006 the Migration Office dismissed the applicant’s first asylum request. The Bratislava Regional Court dismissed the applicant’s action challenging that decision. 13. On 24 September 2007 the Migration Office dismissed his second request for asylum. It held that there were no obstacles to the administrative expulsion of the applicant to Algeria. On 30 October 2007 the applicant’s lawyer waived the right to challenge that administrative decision. It thus became final on that date. 14. On 6 October 2008 the Migration Office dismissed the applicant’s third request for asylum. It further decided not to afford the applicant the status of “subsidiary protection” (doplnková ochrana) under the Asylum Act 2002. 15. On 4 February 2009 the Bratislava Regional Court quashed that decision. It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion. 16. On 5 June 2009 the Migration Office again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under the Asylum Act 2002. 17. It was found that the applicant’s fears were subjective in nature and unsubstantiated by objective facts, that he had failed to show that he was subjected to persecution and that such persecution was politically motivated. If returned to Algeria, the applicant could seek a retrial on the ground that he had already been convicted in France and had served the sentence imposed in that context. Moreover, the applicant represented a security risk to the Slovak Republic and to society. His arguments under Article 3 of the Convention could not be taken into account because the matter under review concerned his asylum status and not his extradition. 18. On 28 October 2009 the Bratislava Regional Court upheld the Migration Office’s decision on the applicant’s third asylum request. 19. The applicant appealed. He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to Algeria. The applicant also argued that he had family ties in Slovakia and that he wished to take care of his wife, who suffered from an illness, and their son. 20. On 30 March 2010 the Supreme Court upheld the Regional Court’s judgment of 28 October 2009. The Supreme Court held, in particular, that the applicant’s wish to maintain ties with his wife and child, who were Slovakian nationals, was not a relevant ground for granting him asylum. Furthermore, the applicant had been convicted in Algeria of criminal offences linked to the activities of the Salafist Group for Preaching and Combat, the aim of which was to establish, by violent means, a fundamentalist Islamic State in Algeria. Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant’s protection from persecution for political opinions within the meaning of the Asylum Act 2002. 21. As to the alleged risk of the applicant’s ill-treatment in Algeria, the Supreme Court held that the Court’s case-law under Article 3 of the Convention concerned cases of expulsion or extradition but not those relating to requests for asylum. 22. The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section 8 of the Asylum Act 2002, namely on the ground of his race, ethnic origin, belonging to a social group, for religious reasons or because of his political opinion. 23. In the Supreme Court’s view, the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from Slovakia in certain justified cases. However, such subsidiary protection was excluded, inter alia, where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the State in which he or she applied for asylum. Reference was made to Articles 12 and 17 of the Council of the European Union Directive 2004/83/EC and subsections 2(d) and (e) of section 13c of the Asylum Act 2002. 24. The applicant’s conviction in France, on 7 April 2006, of involvement in a terrorist organisation and his admission that he had been trained in Afghanistan in handling weapons and explosives, as well as other information gathered by the Office for the Fight Against Organised Crime, justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide. The decision not to grant subsidiary protection to the applicant was therefore lawful. That conclusion could not be affected by the express admission by the Migration Office, in the context of the asylum proceedings, that the applicant could be exposed to a real risk of inhuman treatment if returned to Algeria. 25. Finally, the Supreme Court noted that the applicant had unlawfully left for Austria while proceedings concerning his asylum request in Slovakia had been pending and that he had lodged an asylum request in Austria. It concluded that the applicant was not genuinely interested in protection by the Slovakian authorities. 26. The Supreme Court’s judgment was served on the applicant and became final on 16 April 2010. 27. On 20 July 2006, the Border and Foreigners Police Department in Bratislava ordered the applicant’s expulsion and banned him from entering Slovakia for ten years. The decision became final and binding on 12 October 2006. The applicant was expelled to Austria on the basis of the decision. 28. In May 2007 the Austrian authorities returned the applicant to Slovakia where he was placed under provisional arrest. On 20 June 2007 he was remanded in custody pending his extradition on a warrant in connection with the above-mentioned Algerian court’s judgment of 1 June 2005. 29. On 30 November 2007 the Bratislava Regional Court gave its consent to the applicant’s extradition to Algeria. On 22 January 2008 the Supreme Court approved that decision. On 13 March 2008 the Constitutional Court suspended the effect of the Supreme Court’s decision pending its decision on the applicant’s complaint that he would run the risk of ill-treatment if he were extradited to his country of origin. 30. On 26 June 2008 the Constitutional Court quashed the Supreme Court’s decision of 22 January 2008. It instructed the latter to re-examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to Article 3 of the Convention in the event of his extradition. 31. On 7 August 2008 the Supreme Court found that the applicant’s extradition to Algeria was not permissible. On the same date the applicant was released. 32. In its judgment the Supreme Court relied on a number of international documents, such as reports of the UN Human Rights Committee of 2007 and the UN Committee against Torture of 2008, a document prepared by the UNHCR, documents issued by Amnesty International, the United States Department of State, the British Foreign and Commonwealth Office, Human Rights Watch and the Court’s judgment in Saadi v. Italy [GC], no. 37201/06, ECHR 2008). 33. In particular, the Supreme Court referred to the broad powers of investigation of the Department of Intelligence and Security (DRS), documented reports on detention of suspects incommunicado in secret DRS centres, and numerous reports of torture and inhuman or degrading treatment of people at the hands of the DRS. The information available indicated that the DRS had systematically used torture and other forms of ill-treatment in respect of individuals deemed to have information about terrorist activities. 34. Furthermore, the law and practice in Algeria did not exclude the use in judicial proceedings of evidence which had been extracted under torture. The Algerian authorities had refused to co-operate with special rapporteurs or working groups established within the UN system and with non-governmental organisations with a view to clarifying the position. Similarly, the Algerian authorities had refused to allow monitoring the situation of people who had been returned to that country. 35. The Supreme Court noted that the relevant regulation did not list Algeria as a safe country of origin. It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to Article 3 of the Convention in the event of his extradition to Algeria. 36. Subsequently the applicant was apprehended and placed in a detention centre for foreigners in Medveďov on the basis of the Border and Foreigners Police decision of 7 August 2008. Reference was made to the above-mentioned decision of 20 July 2006 to expel the applicant and to exclude him from the territory of Slovakia for ten years. The decision stated that proceedings concerning the applicant’s expulsion were still under way. 37. On 17 October 2008 the applicant requested leave to stay in Slovakia (tolerovaný pobyt). The police dismissed the request. 38. On 3 February 2009 the applicant was released from the detention centre for foreigners in Medveďov. He was placed in an accommodation facility for asylum seekers in Opatovská Nová Ves and, later, in a similar facility in Rohanovce. During his stay in those facilities the applicant’s freedom of movement was restricted. He unsuccessfully sought redress before the Supreme Court and the Constitutional Court, which decided on his claim on 3 March 2009 and 16 December 2009 respectively. 39. On 19 December 2009 the applicant left the facility in Rohanovce and arrived in a centre for refugees in Austria. The Austrian authorities returned him to Slovakia on 11 March 2010. 40. On 22 April 2010 the Minister of the Interior informed the media that the applicant had been expelled from Slovakia and escorted to Algeria in accordance with the decision of the Border and Foreigners Police Department in Bratislava of 20 July 2006. The applicant’s representative learned about his expulsion from press articles. 41. A letter from the Algerian Ministry of Justice of 2 July 2007 indicated that the Algiers Criminal Court had convicted the applicant in absentia, on 1 June 2005, of belonging to a terrorist organisation acting both in Algeria and abroad and of forgery under Articles 87bis, 87bis §§ 3 and 6 and Article 222 of the Criminal Code. His extradition was requested with a view to re-trying him for the same offences. His previous conviction in absentia would lose effect upon his return to Algeria pursuant to Article 326 of the Criminal Code. In the event of his extradition the applicant would have an adversarial trial before the criminal court, the judgment of which could be appealed against to the Supreme Court. Assistance by legal counsel was mandatory in such proceedings. Under the Criminal Code the offences imputed to the applicant were not punishable by capital penalty. 42. In a letter of 25 September 2007 a representative of the Algerian Ministry of Justice indicated that his country had not yet ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights. Furthermore, the collaborators of the International Committee of the Red Cross had the possibility of visiting detained persons in private. Torture and other forms of ill-treatment were subject to heavy penalties under the Algerian Criminal Code. 43. In a letter of 22 September 2010 the Algerian Ministry of Justice indicated that the applicant’s conviction by the judgment of 1 June 2005 had lost effect following his return to Algeria. He was being detained in El Harrach prison under an order issued by the indictment chamber of the Algiers Criminal Court. The applicant had the right to meet an advocate in private, to receive visits by members of his family, to file complaints and to medical care. The applicant’s trial was scheduled for October 2010. He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in the Code of Criminal Procedure. Finally, the letter indicated that several persons suspected of terrorism had been extradited or expelled to Algeria from the United Kingdom, Spain or the United States and that all those persons had been treated in accordance with the law. 44. On 13 December 2010 the Slovakian Ministry of the Interior asked the Algerian Embassy in Vienna for a visit of the former’s State Secretary to be arranged during which he could discuss the applicant’s situation with the Algerian penitentiary administration. The Government submitted no further information as regards that initiative. 45. In a verbal note of 5 April 2011 the Algerian Embassy in Vienna informed the Slovakian Ministry of Foreign Affairs that the Algiers Criminal Court had convicted the applicant, on 12 January 2011, of having belonged to a terrorist group acting abroad. The trial had been public and covered by the media and the applicant had been defended by counsel of his choice. He had been sentenced to a three-year prison term with twelve months suspended and to a fine of 500,000 Algerian dinars. The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights. 46. The verbal note further stated that the charges of having belonged to a terrorist group acting within Algeria and of complicity in forgery and use of forgeries had not been upheld by the tribunal. Both the prosecution and the applicant’s counsel had appealed against the judgment on 17 January 2011. 47. No further information has been provided. 48. On 18 July 2008 the Acting President of the Court’s Chamber decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Algeria. 49. On 13 August 2008 the Acting President of the Chamber again decided to indicate to the respondent Government under Rule 39 that the applicant should not be expelled to Algeria. The measure was to remain in force “for a period of two weeks following the outcome of the asylum proceedings, the ensuing expulsion proceedings as the case [might] be and, as appropriate, of any complaint which [the applicant] lodge[d] with the Constitutional Court in respect of those proceedings.” 50. On 15 April 2010 the applicant’s legal representative requested the Court to clarify the conditions of the interim measure of 13 August 2008. The advocate explained that the applicant’s asylum case had been dismissed by the Supreme Court two weeks before and, in the absence of the written version of the judgment with reasons, the applicant had not had an opportunity to challenge it before the Constitutional Court. 51. On 16 April 2010 the Section Registrar informed the applicant that, in applying Rule 39, the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies. The relevant part of the letter reads: “The Rule 39 measure remains in force until the Constitutional Court has pronounced on the applicant’s constitutional complaint. It is clear that the applicant needs the reasons given by the Supreme Court for refusing his asylum case to enable him to lodge a complaint under Article 127 of the Constitution with the Constitutional Court. The two-week period referred to in the Registry’s letter of 13 August 2008 runs from the date on which the final decision is given with reasons and is intended to allow the Court, in the light of the reasons given by the Constitutional Court, to decide whether to lift or continue to apply Rule 39.” 52. A copy of the letter was sent to the Government with specific mention that the Rule 39 measure was still in force. 53. On 22 April 2010 the applicant’s representative informed the Court that it was impossible to contact the applicant and that, according to media reports, he had been expelled to Algeria earlier that week. 54. On 22 April 2010, on instruction by the President of the Section, the Section Registrar requested the Government to confirm or deny the reports of the applicant’s expulsion. 55. On 26 April 2010 the Government informed the Court that the applicant had been expelled on 19 April 2010. The expulsion had been carried out on the basis of the final and binding decision of the Border and Foreigners Police Department of 20 July 2006. Since the Supreme Court’s judgment in the asylum proceedings had become final on 16 April 2010, on the national level the applicant was considered to be a foreigner without permission to stay in Slovakia. 56. On 28 April 2010 the Registrar of the Court sent the following letter to the Government: “The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Mustapha Labsi to Algeria in disrespect of the Court’s interim measure adopted under Rule 39 of the Rules of Court. The President has noted in this connection that on 16 April 2010 your authorities were reminded in clear terms by the Registrar of Section IV of the Court that the Rule 39 measure, first applied on 13 August 2008, continued to remain in force. Nevertheless, the Government extradited the applicant to Algeria on 19 April. The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately. The President also notes that notwithstanding the Court’s request of 22 April 2010 for clarification of the circumstances surrounding Mr Labsi’s extradition, your letter of 26 April failed to explain why the Rule 39 measure was not complied with. The President expects your authorities to provide an explanation. He would in particular request your authorities to confirm or deny reports that the spokesperson of the Ministry of the Interior declared that his authorities were prepared to run the risk of being found to be in breach of the Convention and that other States which had failed to comply with a Rule 39 measure only had to pay ‘a few thousand euros’”. 57. In a reply dated 10 May 2010 the Vice-Prime Minister holding the post of the Minister of the Interior stated that all the relevant facts and legal issues had been taken into account prior to the applicant’s expulsion to Algeria, which had been carried out in accordance with the police decision of 20 July 2006. 58. The letter indicated, inter alia, that the offences of which the applicant had been convicted in absentia did not carry a capital penalty. The Algerian authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under Algerian law. 59. The applicant had been convicted and sentenced to five years’ imprisonment in France; he had also been banned from the territory of that State. Information about the applicant, including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by Algerian authorities, was entered in the Schengen information system. The Slovakian police’s decision to expel the applicant was also based on the obligation resulting from Council Directive 2001/40/EC of 28 May 2001, which requires the police in Slovakia to ensure the enforcement of an expulsion decision issued in one of the States within the European Economic Area where a foreigner was sentenced to a prison term of at least one year. 60. On the basis of all the information available the Slovakian police had concluded that the applicant represented a real risk to the security of the Slovak Republic and to society. The Supreme Court, in its decision concerning the applicant’s third request for asylum, had reached the same conclusion. 61. The Ministry of the Interior believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant’s expulsion had not been contrary to Slovakia’s undertakings under the Convention. The statements which the spokesperson of the Ministry of the Interior had made about the applicant’s case and the Court’s practice were to be interpreted in that context. 62. At the time of lodging the application the applicant was represented by Ms M. Kolíková, a lawyer practising in Bratislava. In a letter of 9 July 2010 Ms Kolíková informed the Court that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of State at the Ministry of Justice. The letter further stated that Mr M. Hrbáň, a lawyer practising in Bratislava, was prepared to take over the applicant’s representation before the Court. It was impossible to contact the applicant for practical reasons, but the necessary steps would be taken with a view to ensuring his proper representation. 63. On 30 July 2010 Mr M. Hrbáň confirmed that, upon agreement with Ms Kolíková, he undertook to protect the applicant’s rights and to submit a power of attorney from the applicant as soon as he could obtain one. 64. On 31 March 2011 and 5 September 2011 Mr Hrbáň informed the Court that he had sent three letters to the applicant in El Harrach prison in Algeria to which he had received no reply. The Ministry of the Interior of the Slovak Republic had refused to inform Mr Hrbáň of the applicant’s address on the ground that he had not produced a power of attorney to represent the applicant. Efforts were being made, in co-operation with Amnesty International, to obtain more information about the applicant’s whereabouts. 65. Mr Hrbáň stated, with reference to section 17 of the Bar Act 2003, that Ms Kolíková had appointed him as her substitute on the basis of their mutual agreement. The client’s consent and submission of a new power of attorney were not required in such circumstances. 66. In a letter of 11 April 2011 Mr Hrbáň submitted information about the applicant’s fresh trial and conviction in Algeria which he had obtained from representatives of Amnesty International, one of whom had talked to the applicant’s brother. That information corresponds to that which the Algerian Ministry of Justice had furnished to the respondent Government (see paragraph 45 above). 67. On 5 September 2011 Mr Hrbáň informed the Court that he had been unable to establish contact with the applicant. He maintained that he acted in good faith with a view to defending the applicant’s interests and that he had not modified the subject-matter of the application as submitted by the representative whom the applicant had appointed. He would continue in his efforts to contact the applicant in Algeria and asked the Court to consider his submissions as an amicus curiae intervention. 68. Section 13a entitles the Ministry of the Interior to grant subsidiary protection to unsuccessful asylum seekers. Except for cases where the Asylum Act 2002 provides otherwise, such subsidiary protection is to be granted where there are serious grounds to believe that an asylum seeker would be exposed to a real threat of serious lawlessness in the event of his or her return to the country of origin. 69. Pursuant to sub-sections (2)(e) and (d) of section 13c, the Ministry of the Interior should not grant subsidiary protection to an unsuccessful asylum seeker who represents a security threat to the Slovak Republic or a danger to society. 70. Pursuant to section 16(1) and (3), within the framework of a power of attorney issued by a client, a lawyer may ask a different lawyer to represent him or her. However, such substitution of lawyers is not permissible contrary to the client’s will. 71. Pursuant to section 17(1), an individually practising lawyer who encounters an obstacle preventing him or her from carrying out his or her duties is obliged, unless other steps are taken with a view to protecting the client’s rights and interests, to appoint a different lawyer as his or her substitute, based on an agreement with the latter and within one month at the latest. The client is to be informed of the arrangement without delay. Where an advocate fails to comply with that obligation, the Bar Association is to appoint a substitute lawyer to represent the client. 72. Section 20(1) provides that a request for proceedings to be started before the Constitutional Court must indicate, inter alia, the decision which the plaintiff seeks to obtain, specify the reasons for the request and indicate evidence in support. 73. Pursuant to section 50(2), a plaintiff has to enclose to his or her complaint a copy of the final decision, measure or the evidence of any other interference in issue. 74. Section 52(1) provides that the filing of a complaint has no automatic suspensive effect. Under subsection 2 the Constitutional Court can issue an interim measure, at the request of the plaintiff, suspending the enforceability of a final decision, measure or other interference. 75. Section 53(3) provides that a complaint to the Constitutional Court can be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the plaintiff’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a practical possibility of becoming aware of them. 76. In a statement published on 29 April 2010 the Secretary General of the Council of Europe expressed his regret that the Slovak authorities had extradited the applicant in disregard of the interim measure ordered by the Court. 77. In a separate statement published on the same day the chairpersons of two committees of the Parliamentary Assembly of the Council of Europe expressed their shock and concern at the decision taken by the Slovak authorities to extradite the applicant to Algeria. 78. The Human Rights Committee considered the third periodic report of Algeria submitted under Article 40 of the International Covenant on Civil and Political Rights and adopted its concluding observations on 1 November 2007. The relevant parts read as follows: “11. While noting the assurances given by the State party’s delegation on the periodic and unannounced inspections that the authorities and the International Committee of the Red Cross conduct in prisons, the Committee is concerned about the numerous reports from non-governmental sources pointing to the existence of secret detention centres located, allegedly, at Houch Chnou, Oued Namous, Reggane, El Harrach and Ouargla, among others, where persons deprived of their liberty are allegedly being held. (...) 15. The Committee takes note with concern of the information regarding cases of torture and cruel, inhuman or degrading treatment in the State party, for which the Intelligence and Security Department reportedly has responsibility. (...) 19. The Committee is concerned that confessions obtained under torture are not explicitly prohibited and excluded as evidence under the State party’s legislation.” 79. On 13 May 2008 the Committee against Torture adopted its concluding observations in respect of the third periodic report submitted by Algeria under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They comprise the following parts: “6. The Committee takes note of the State party’s assurances that Intelligence and Security Department officers are placed under the control of the Public Prosecutor’s Office, and that secure detention centres no longer exist as of November 1996. The Committee nevertheless remains concerned about reports of the existence of secret detention centres run by the Department in its military barracks in Antar, in the Hydra district of Algiers, which are outside the control of the courts. The Committee is also concerned about the lack of information showing that the competent judicial authority has taken steps to look into these allegations. (...) 10. While taking note of the information provided by the delegation of the State party concerning its efforts to provide human rights training for law enforcement personnel, the Committee nevertheless remains concerned at the many serious allegations which it has received of cases of torture and abuse inflicted on detainees by law enforcement officers, including officers of the Intelligence and Security Department. (...) 18. While noting the Algerian delegation’s assurances that confessions are used only for information purposes in legal proceedings, in accordance with article 215 of the Code of Criminal Procedure, the Committee remains concerned about the lack of a provision in the State party’s legislation clearly specifying that any statement that is proved to have been obtained as a result of torture may not be cited as evidence in any proceedings, in accordance with article 15 of the Convention. In addition, the Committee is concerned that article 213 of the Code of Criminal Procedure specifies that, ‘as with any evidence, the evaluation of confessions is a matter for the judge’, as well as information received that confessions obtained as a result of torture have been admitted in legal proceedings.” 80. The Working Group on the Universal Periodic Review, established in accordance with Human Rights Council resolution 5/1 of 18 June 2007, held the review of Algeria on 14 April 2008. 81. While presenting the national report the Minister of Foreign Affairs of Algeria stated that torture and similar practices were prohibited by the fundamental law in all places and circumstances. He also firmly denied the existence of secret detention centres in the country. 82. In the ensuing interactive dialogue it was acknowledged that progress had been made in respect of the criminalisation of torture, human rights training for police officers and improving standards in prisons, but reference was also made to information concerning cases of suspects detained for months or years without notification to the judiciary and without any possibility to communicate with their family or lawyers. 83. The recommendations included, among others, that Algeria should implement measures to protect detainees from torture, cruel, inhuman or degrading treatment, ensure that all cases of persons detained are brought to the attention of the judiciary without delay, and consider facilitating visits by the UN human rights mandate holders. 84. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment solicited an invitation to visit Algeria for the first time in 1997. The visit request is still pending. 85. The request by Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism to visit Algeria has been pending since 2006. 86. On 21 July 2010, those two Special Rapporteurs issued a press statement in which they expressed concern about, inter alia, transfer of Guantánamo Base detainees to Algeria without a proper assessment of the risks they could face in their country of origin. 87. A press release on the applicant’s case issued on 30 November 2007 (EUR 72/012/2007) contains the following background information: “Anyone in Algeria suspected of involvement in terrorist activities, or who is believed to possess information about terrorist activities, whether in Algeria or abroad, faces a real risk of secret detention and torture. Amnesty International has received dozens of reports of detainees treated in this way, among them people who had returned to Algeria from overseas, either voluntarily or at the hands of foreign governments. Under Article 51 of the Algerian Criminal Procedures Code, detainees suspected of “terrorist or subversive acts” may be held without charge for a maximum of 12 days. The arresting authorities must immediately give them the opportunity to communicate with their families and to receive visits from them. In addition, any detention beyond four days has to be authorized in writing by the public prosecutor. These requirements are routinely violated in the cases of people held by the Department for Information and Security (...) which specializes in interrogating those thought to have information about terrorist activities. Before they are either brought before the judicial authorities or released without charge, those arrested are systematically held incommunicado for up to 12 days, and sometimes longer. It is while they are in secret detention in barracks operated by the DRS that detainees are most at risk of torture and other ill-treatment. Amnesty International has received information on several cases where detainees were held by the DRS for months without contact with the outside world in violation of Algerian and international law, during which time they were reportedly subjected to torture and other ill-treatment. Algeria’s civilian authorities have no effective control over the activities of the DRS.” 88. In a briefing to the UN Committee Against Torture in respect of Spain, in November 2009, Amnesty International referred to the case of M.S., who had been returned to Algeria from Spain in November 2008. According to information received by Amnesty International, upon arrival in Algeria M.S. was arrested by the Department for Information and Security military intelligence agency and held incommunicado for approximately two weeks. He was subsequently released without charge. 89. In its briefing to the UN Committee Against Torture in respect of France, in April 2010, Amnesty International mentioned the case of Rabah Kadri who, upon his arrival in Algiers on 16 April 2008, was detained by plain-clothes security officers and held incommunicado for twelve days. He was released without charge on 27 April 2008. After his release he said that he had been interrogated about the activities which had led to his conviction and prison sentence in France. He also said that he had signed a statement saying that he had been treated well in detention before his release. Amnesty International noted that, in its experience, the fact that someone had just been released from DRS custody would weigh heavily on their mind when they spoke about their treatment in detention, in case this exposed them to possible reprisals. 90. In a public statement of 28 April 2010 Amnesty International condemned the actions of the Slovak authorities in forcibly returning the applicant from Slovakia to Algeria despite an order for the application of an interim measure from the European Court of Human Rights and the ruling of the Constitutional Court of June 2008. Amnesty International expressed a fear that, upon his arrival in Algeria, the applicant might have been arrested by the DRS. Reference was made to documented cases where suspects detained by the DRS had been held in unrecognised places of detention, usually military barracks, and denied any contact with the outside world, often for prolonged periods, in violation of Algeria’s international obligations as well as the Algerian Code of Criminal Procedure. Amnesty International was further concerned that Algerian courts continued to accept “confessions” extracted under torture or duress. 91. In a public statement of 17 May 2010 Amnesty International urged the Algerian authorities to immediately open an investigation into allegations that detainees in El Harrach Prison in Algiers had been subjected to ill-treatment. Reference was made to the lack of proper investigations into previous reports of abuse of detainees. The statement drew attention to the hunger strike of four detainees in El Harrach Prison. According to information obtained by Amnesty International, the strike had been provoked by actions of the prison guards, including routine verbal abuse of the detainees, all of whom were awaiting trial on terrorism-related charges, such as calling them “terrorists”, stripping them naked in front of other detainees and a large number of guards, seemingly to humiliate them, and occasionally slapping them. 92. The statement further indicated that there existed persistent reports of torture or other ill-treatment in Algeria, particularly at the hands of the Department for Information and Security but also at El Harrach Prison. One of the detainees concerned had reported being tied up, drenched in water and beaten with wooden sticks all over his body, including the soles of his feet, by prison guards in the office of the Director of the First Department of the El Harrach Prison on 30 March 2008. After the beating, he had been reportedly placed in solidarity confinement without water or access to the toilet for two days. Even though his lawyer had filed a complaint, no independent, full or impartial investigation had been conducted. 93. The Amnesty International Report 2011, in its relevant part, reads: “Officers of the Department of Information and Security (DRS), military intelligence, continued to arrest security suspects and detain them incommunicado, in some cases for more than the 12 days permitted by law, at unrecognized detention centres where they were at risk of torture or other ill-treatment. Impunity for torturing or otherwise abusing security suspects remained entrenched. (...) Mustapha Labsi was detained for 12 days by the DRS after he was forcibly returned to Algeria from Slovakia on 19 April [2010]. He was then transferred to El Harrach prison. At the end of 2010, he was awaiting trial on charges of belonging to a ‘terrorist group abroad’. (...) In April, security suspects held in El Harrach prison went on hunger strike to protest against alleged ill-treatment by guards who, they said, had insulted, slapped and humiliated them. No official investigation into their allegations was held. Suspects in terrorism-related cases faced unfair trials. Some were convicted on the basis of ‘confessions’ that they alleged were extracted under torture or other duress, including some who were sentenced to death by military courts. Some were denied access to lawyers of their choice. Other security suspects were detained without trial. (...) Hasan Zumiri and Adil Hadi Bin Hamlili were transferred to Algeria from US custody in Guantánamo By in January; Abdelaziz Naji was transferred in July. All three remained at liberty while investigations continued to determine whether they would face charges of belonging to a ‘terrorist group abroad’. Two former Guantánamo detainees, Mustafa Ahmed Hamlily and Abdul Rahman Houari, were acquitted of similar charges in February and November, respectively. Another former Guantánamo detainee, Bachir Ghalaab, was sentenced to a suspended prison term.” | 1 |
train | 001-114770 | ENG | LTU | CHAMBER | 2,012 | CASE OF TAUTKUS v. LITHUANIA | 3 | No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect) | András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 5. The applicant was born in 1972 and lives in Šiauliai. 6. In 1996 the Kaunas Regional Court convicted the applicant of soliciting for prostitution and the murder of a prostitute, committed in a particularly cruel way by a group of persons. The applicant was sentenced to fourteen years’ imprisonment. This was his first conviction. Eight of his accomplices were also sentenced to between eight and fifteen years’ imprisonment. 7. When the applicant arrived in Pravieniškės Prison to serve his sentence in May 1996, he was placed in Wing 4, Section 1 of the prison (IV būrys, 1 brigada). Subsequently, he was moved to Wings 8, 7, 13 and again to Wing 7. He spent roughly a year in each of those parts of the prison. 8. On 22 November 2001 the applicant was moved to Wing 2, Section 2 of the prison. He did not sustain any injuries while residing there, nor did he complain to the doctors about health issues that could have shown any traces of prison violence. 9. R.J., who was born in 1979, arrived in Pravieniškės Prison on 25 August 2000. He was placed in Wing 2, Section 2 of the prison. Notwithstanding R.J.’s three convictions for crimes ranging from theft (in 1995) and attempted murder (in 2000) to hooliganism (in 2001), he was considered as serving an imprisonment penalty for the first time, given that following his first conviction the court had suspended the imposed sentence and the sentences for the second and third convictions had been combined. 10. The five character reports drawn up by Pravieniškės Prison administration in 1997-2002 describe the applicant as tactful with other inmates and respectful to the guards; he was also said to have had “certain authority” with other prisoners. The authorities noted that the applicant had breached the prison’s internal rules fourteen times (for keeping his hands in his pockets in the presence of guards, being intoxicated, and staying at prison quarters he was not assigned to). Nonetheless, he had also been commended thirteen times for positive behaviour and good work in prison. As it appears from the documents submitted by the parties, in 2002 R.J. had been assessed twice by the prison administration. He was described as having authority among other inmates and tactful with them, capable of easily adapting in prison. 11. On 2 October 2002 at about 11 p.m., a fight broke out between the applicant and R.J. As a consequence, the applicant suffered severe head injuries; his skull was fractured. The next day he underwent an operation in a public hospital. He was later placed in the prison hospital in a coma. According to a doctor’s report, R.J. sustained an injury to his forehead and had blood on his face. His leg was broken and he had bruises on his arms. 12. On 4 October 2002 the prison governor started a pre-trial investigation into the incident. 13. On 12 May 2003 the Kaišiadorys District Court convicted R.J. of having caused the applicant severe bodily injury (sunkus kūno sužalojimas). The court established that on 2 October 2002, at around 10.50 p.m., R.J. had hit the applicant no less than five times over the head and other parts of the body while in their living quarters at the prison. R.J. confessed to the crime. Two guards who testified before the court stated that once they had learned of the fight, which happened at around 11 p.m., after the evening check-up, they had run to the applicant’s cell and found him lying on the floor with his head covered in blood. The guards also stated that R.J. had smelled of alcohol. 14. The transcript of the trial hearing states that R.J. testified that “the quarrel between me and the applicant had been spontaneous”, and “the fight had been short”. He also stated that he had punched and kicked the applicant’s body and head, and that as a result the applicant had fallen down and hit his head on an aquarium. Another inmate, Ž.L., had attempted to separate them. “Afterwards the guards had run in and it had all been over”. In answer to a question by a prosecutor, R.J. stated that “he had had no prior conflicts with the applicant”. He added that “everything had happened very fast; until the guards had run into the cell, the applicant had only managed to reach the bed and lie down”. Ž.L. testified that the conflict had taken place after the evening check-up. He said “I tried to separate R.J. and the applicant ... the conflict happened very fast”. 15. The medical report stated that R.J. had not been intoxicated when blood samples had been taken from him “on 3 October 2002”. The court therefore decided to remove from the charges against him the accusation that he had been intoxicated when the crime was committed. The doctor’s report reads that R.J. was tested for alcohol at 11.40 a.m. on 3 October 2002. The test showed 0,00% of alcohol in his blood. 16. When imposing the sentence, the court took into consideration R.J.’s young age and the fact that he had confessed to the crime. R.J. was sentenced to two years and six months’ imprisonment, with confiscation of all his property. The court added that term of imprisonment to his prior conviction, and R.J. was ordered to spend in total ten years and two months in prison. Upon a civil claim by a prosecutor, R.J. was also ordered to reimburse the costs which the State had paid for the applicant’s hospitalisation and treatment, which amounted to 9,021 Lithuanian litai (LTL). At that time the applicant had not submitted a civil claim for non-pecuniary damages from R.J. 17. By a ruling of 3 September 2003, the Kaunas Regional Court dismissed R.J.’s appeal. The court found that there were no grounds for lowering the sentence imposed on R.J. The crime was particularly grave, with very serious consequences. 18. In May 2003 a doctors’ commission declared the applicant Category I disabled (most severe condition of disability) and unfit to work. 19. On 3 June 2003 the Vilnius City Second District Court released the applicant from the remainder of his sentence. The court noted that after the incident of 2 October 2002, the applicant had become totally disabled. He could walk only by leaning on furniture and with the help of others and was unable to adequately assess his surroundings. Moreover, he had already served two thirds of his sentence. 20. After the incident, the applicant was treated in numerous hospitals and rehabilitation centres. According to a report from Šiauliai municipality of 28 November 2006, the applicant could not speak clearly, had poor balance, and had trouble shaving, washing himself and climbing stairs. He required constant care from his family. 21. On 16 April 2007 the applicant, who believed that he was eligible for pecuniary and non-pecuniary damages on account of his injury while in prison, lodged a civil claim against the State. He argued that the prison authorities were under an obligation to maintain order in the correctional facility and should have protected and defended him from the injury that nearly cost him his life. He submitted that there was a direct causal link between his injury and the prison authorities’ alleged failure to act and guarantee safe conditions in which to serve a sentence. R.J. was a third interested party in those proceedings, given that the outcome of the litigation for damages directly affected his pecuniary situation. 22. When the case was examined before the Vilnius Regional Administrative Court, the applicant’s lawyer also argued that the administration of Pravieniškės Prison had failed to observe prison rules stipulating that certain prisoners should be kept separately. In that context, the lawyer referred to a letter of 19 December 1994 in which the prosecutor said that R.J. had to be kept in isolation. The lawyer also argued that R.J., who had three convictions in total, was a more hardened criminal than the applicant, so the two should have been held separately. He also submitted that although, after the incident, R.J. had smelled of alcohol, blood samples had not been taken from him until twelve hours later. In the past the applicant had also been punished for consuming alcohol while in prison. The lawyer argued that the guards on duty had not kept the prisoners under constant observation, as they were obliged to do under the prison regulations. He also maintained that the administration’s decision to move an inmate from one section of the prison to another had to be justified, which had not happened in the applicant’s case. Lastly, the lawyer argued that his client had not started the proceedings for damages earlier because of his state of health. 23. R.J. testified before the Vilnius Regional Administrative Court that he had been serving his sentence in the same section of Pravieniškės Prison since 28 September 2000. In his view, “it was the State that should bear responsibility for the injuries the applicant had sustained”. He also argued that his relations with the applicant had always been tense, that “the applicant did not fit in [in Wing 2, Section 2]”, “the applicant was a ‘simple’ person and the other inmates in that section were ‘offenders’” and “the fight between the two of them would have occurred sooner or later”. In his opinion, “the prison administration could have foreseen the tension between him and the applicant if it had wanted”. R.J. did not answer the judge’s question about the reasons for the fight. Nor did he reply to her question whether he had been under the influence of alcohol at the time of the fight. He nevertheless submitted that prisoners could obtain as much alcohol in the prison “as they wanted”. The guards caught them with alcohol very rarely and, as far as R.J.’s recalled, the applicant had been sober at the time of the fight. R.J. also said that after the evening check-up, the guards carried out the first night-time check at around 11-12 p.m., and the second at a later time. 24. The Pravieniškės Prison administration and the Department of Prisons, the defendants in the case, asked the court to dismiss the civil claim, arguing that the fight had been spontaneous and the conflict could not have been foreseen. They submitted that the applicant had never informed the prison administration that he had been in danger. Accordingly, the State was not liable for the incident that had caused the applicant’s incapacity. The prison authorities also pointed out that the inmates should have been in bed by 10 p.m., and that at night the guards checked the sleeping quarters twice. 25. On 21 February 2008 the Vilnius Regional Administrative Court dismissed the applicant’s civil claim. It noted, firstly, that the applicant had missed a statutory three-year deadline for lodging a claim for damages. Nevertheless, the court proceeded with the examination of whether the complaint was founded. 26. As to the merits of the complaint, the Vilnius Regional Administrative Court held that there was no evidence, either written or factual, of the applicant having ever approached the authorities claiming that he was unsafe in Pravieniškės Prison, even though such a right was guaranteed by Article 50 of the Code of Correctional Works (see Relevant Domestic Law and Practice below). The court also emphasised that the prison administration had properly executed its duties as concerns the placement of inmates. Both the applicant and R.J. had been serving a prison sentence for the first time, so they could be held in the same wing and section. As to the suggestion by the applicant’s lawyer that the applicant had been moved from one part to another of the prison without a valid reason, the court held that “the applicant could have challenged those actions [but had failed to do so]”. Moreover, the applicant himself had not been an exemplary prisoner and had been punished a number of times for breaching internal rules (ranging from alcohol consumption to leaving his living quarters). The court found weighty the prison administration’s argument that the applicant had never approached them claiming, either verbally or in writing, that he was unsafe in prison in general or that he had had any conflicts with a particular inmate. Consequently, there were no grounds for finding the prison administration liable for not preventing the incident. According to the case-file, the fight was spontaneous and took place after the evening check-up, when all the inmates, including the applicant and R.J., should have been sleeping or at least in bed. Overall, there was no legal basis for granting the applicant’s civil claims. 27. The applicant appealed, invoking Article 3 of the Convention and reiterating his earlier arguments that the State had not protected him from serious injury in prison, as a consequence of which his health had been permanently damaged. He also submitted that the prison administration had failed to ensure that prisoners could not obtain alcohol, arguing that alcohol made prisoners unpredictable and aggressive. The Department of Prisons asked that the civil claim be dismissed as unfounded. They pointed out that there was no objective evidence that R.J. had been under the influence of alcohol during the incident. That fact had not been established in the criminal proceedings. 28. On 24 November 2008 the Supreme Administrative Court examined the applicant’s appeal but dismissed it on the merits. There was no evidence in the case file that any action or inaction on the part of staff at Pravieniškės Prison had contributed to the incident between the applicant and R.J. During the criminal proceedings, it had been established that it was R.J. who had injured the applicant, and R.J. had been convicted accordingly. Therefore, as it had not been possible to establish any illegal acts or failure to act on the part of the prison staff, the State could not be held responsible for the non-pecuniary damage the applicant had sustained. 29. The Code of Correctional Works (Pataisos darbų kodeksas), as in force at the relevant time, reads as follows: “The purpose of accommodating convicts separately or in isolation in correctional institutions is: to separate convicts who, due to the nature of their crimes or their character, might negatively influence other inmates; to facilitate the social rehabilitation of convicts; to help ensure the supervision and safety of convicts; to help safeguard the requirements of security and administration of the correctional institutions ... The following categories of convict should be isolated from each other within the same correctional institutions, or if possible placed in different institutions: convicts sentenced to imprisonment for the first time; those convicted for intentional and negligent crimes, ... very dangerous recidivists; those convicted for serious crimes ... If a convict, serving his sentence at a correctional prison, addresses the administration in writing with a request to be isolated from other inmates for important reasons, the director of the prison has a right to transfer the convict to a cell and to hold him in isolation or with other inmates transferred to the cell for the same reasons. The duration of such a transfer shall be fixed by the prison administration. A transfer to a cell is not considered as a penalty ...” “The main obligations of prison authorities are the following: where necessary, the isolation of convicts and their constant supervision; ... guaranteeing different conditions of custody for convicts having regard to the nature of their crime and their dangerousness, character of a convict and his or her behaviour.” “The convicts have the right to address the State and municipal officials ... submitting requests, proposals and complaints...” 30. The Internal Regulations of Correctional Institutions (Pataisos darbų įstaigų vidaus tvarkos taisyklės), approved by decision no. 172 of the Minister of Justice on 16 August 2000, read as follows: “4. Convicts must be treated in such a way as to safeguard their health ... 20. Prisons may be divided into sectors. In accordance with Recommendation No. R (87) 3 of the Committee of Ministers of the Council of Europe, the purposes of allocating prisoners to separate sectors are: 20.1. to separate from others those prisoners who, by reasons of their criminal records or their personality, are likely to benefit from that or who may exercise a bad influence; 20.2. to facilitate their treatment and social resettlement taking into account the management and security requirements ... 94. Psychologists, heads of wing, internal investigation officers, supervisors and staff ... conduct investigatory and explanatory work upon the arrival of new prisoners who are placed in quarantine ... While placed in quarantine, prisoners must be provided with adequate information about their rights, duties, prison regulations and the conditions in which their sentence will be carried out ... 122. In order to guarantee internal order at the correctional institution, safeguard the security of the institution, their personnel and prisoners, and also to ensure the discipline of prisoners, the latter are forbidden: (...) 122.10. to obtain, produce, consume and distribute alcoholic drinks, their substitutes, toxic, psychotropic and narcotic substances ... 493. Health care staff shall examine a convict who has sustained bodily injury and shall make a note of the nature of the convict’s injury, describing the circumstances (according to the convict’s statements) under which the injury was inflicted, also indicating place and time. The medical personnel shall make an entry in a special journal and inform the [prison administration].” 31. On 22 August 2000 the Minister of Justice issued an Instruction for the Security and Supervision of Detention Facilities, which sets out the measures prison authorities must take to ensure continuous supervision of prisoners, isolation where necessary and the implementation of regime requirements. Supervision is also aimed at preventing possible breaches of discipline and crimes. For that purpose, the guards watch and count the prisoners, and search the prisoners and premises. The guards supervise the prisoners and premises from their posts located throughout the prison and while moving around the prison. They must ensure that the prisoners obey the daily schedule and that they remain in the sectors allocated to them. The prisoners are counted three times a day. In order to find and collect prohibited items, the guards perform both scheduled and surprise searches of the inmates and premises. 32. Under the Civil Code, an abridged three-year statutory time-limit applies to claims for damages (Article 1.125 § 8). The Code also provides: “1. Civil liability shall arise from the non-performance of a duty established by law or by contract (unlawful failure to act), or from the performance of actions that are prohibited by law or by contract (unlawful action), or from the violation of the general duty to behave with care.” “1. Damage caused by the unlawful action of a public authority institution must be compensated by the State from the resources of the State budget, irrespective of any fault on the part of a particular public servant or other employee of the public authority institution ... 2. For the purposes of this Article, the notion ‘public authority institution’ shall mean any subject of public law (State or municipal institution, official, public servant or any other employee of these institutions, etc.), as well as a private person performing the functions of a public authority. 3. For the purposes of this Article, the notion ‘action’ shall mean any action (or inaction) by a public authority institution or its employees that directly affects the rights, liberties and interests of persons ... 4. Civil liability of the State or a municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees.” 33. Recommendation no. R(87)3 of the Committee of Ministers to member states on the European Prison Rules of 12 February 1987 (“the European Prison Rules”) includes in its basic principles: “11. 1. In allocating prisoners to different institutions or regimes, due account shall be taken of their judicial and legal situation (untried or convicted prisoner, first offender or habitual offender, short sentence or long sentence), of the special requirements of their treatment, of their medical needs, their sex and age. 2. Males and females shall in principle be detained separately, although they may participate together in organised activities as part of an established treatment programme. 3. In principle, untried prisoners shall be detained separately from convicted prisoners unless they consent to being accommodated or involved together in organised activities beneficial to them. 4. Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age ... 12. The purposes of classification or reclassification of prisoners shall be: a. to separate from others those prisoners who, by reasons of their criminal records or their personality, are likely to benefit from that or who may exercise a bad influence; and b. to assist in allocating prisoners to facilitate their treatment and social resettlement taking into account the management and security requirements. 13. So far as possible separate institutions or separate sections of an institution shall be used to facilitate the management of different treatment regimes or the allocation of specific categories of prisoners.” 34. Recommendation Rec(2003)23 of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long-term prisoners, adopted on 9 October 2003, reads as follows: “12. A careful appraisal should be made by the prison administration to determine whether individual prisoners pose risks to themselves and others. The range of risks assessed should include harm to self, to other prisoners, to persons working in or visiting the prison, or to the community, and the likelihood of escape, or of committing another serious offence on prison leave or release. 13. Needs assessments should seek to identify the personal needs and characteristics associated with the prisoner’s offence(s) and harmful behaviour (”criminogenic needs”). To the greatest extent possible, criminogenic needs should be addressed so as to reduce offences and harmful behaviour by prisoners both during detention and after release. 14. The initial risk and needs assessment should be conducted by appropriately trained staff and preferably take place in an assessment centre. 15. a. Use should be made of modern risk and needs assessment instruments as guides to decisions on the implementation of life and long-term sentences. b. Since risk and needs assessment instruments always contain a margin of error, they should never be the sole method used to inform decision-making but should be supplemented by other forms of assessment. c. All risk and needs assessment instruments should be evaluated so that their strengths and weaknesses become known. 16. Since neither dangerousness nor criminogenic needs are intrinsically stable characteristics, risk and needs assessments should be repeated at intervals by appropriately trained staff to meet the requirements of sentence planning or when otherwise necessary. 17. Risk and needs assessments should always be related to the management of risks and needs. These assessments should therefore inform the choice of appropriate interventions or modifications of those already in place.” “18. a. The maintenance of control in prison should be based on the use of dynamic security, that is the development by staff of positive relationships with prisoners based on firmness and fairness, in combination with an understanding of their personal situation and any risk posed by individual prisoners. b. Where technical devices, such as alarms and closed circuit television are used, these should always be an adjunct to dynamic security methods ... 19. a. Prison regimes should be organised so as to allow for flexible reactions to changing security and safety requirements. b. Allocation to particular prisons or wings of prisons should be based on comprehensive risk and needs assessments and the importance of placing prisoners in environments that, by taking account of their needs, are likely to reduce any risk posed. c. Particular risks and exceptional circumstances, including requests by prisoners themselves, may necessitate some form of segregation of individual prisoners. Intensive efforts should be made to avoid segregation or, if it must be used, to reduce the period of its use ....” | 0 |
train | 001-77827 | ENG | RUS | CHAMBER | 2,006 | CASE OF NELYUBIN v. RUSSIA | 2 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award | Christos Rozakis | 7. The applicant was born in 1948 and lives in Lipetsk. In 1994 he retired from military service. 8. In 2002 he sued the Military Service Commission of the Lipetsk Region (“the Military Commission”), seeking to recover the unpaid pension for the period from February 1994 to November 1998. 9. On 15 July 2002 the Pravoberezhniy District Court of Lipetsk granted him claim in full and awarded him 32,947.11 Russian roubles (“RUR”) in respect of the unpaid pension. In November 2002 the Military Commission paid him the amount awarded. 10. The applicant lodged a new claim against the Military Commission, seeking to recover damages incurred through belated payment of the pension. 11. On 27 January 2003 the Pravoberezhniy District Court granted his claim and awarded him RUR 145,835.69 in damages. 12. The Military Commission did not lodge an ordinary appeal against the judgment and it became binding and enforceable on 6 February 2003. 13. On 23 February 2003 the bailiffs’ service of the Pravoberezhniy District instituted enforcement proceedings. 14. On 20 May 2003 the Military Commission filed an application for supervisory review of the judgment, claiming that the civil-law provisions relating to compensation for damages were not applicable to pensions. 15. On 25 September 2003 the Presidium of the Lipetsk Regional Court held a supervisory-review hearing. It held that the first-instance court had correctly established the facts but erroneously applied the substantive law because the damages could only be recovered for the three years immediately preceding the judicial decision. On that ground it quashed the judgment of 27 January 2003 and rejected the applicant’s claim in full. 16. The Code of Civil Procedure of the Russian Federation provides as follows: “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) a violation or incorrect application of substantive or procedural law.” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.” 17. Interim Resolution Res DH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention... Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003; Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied... Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all; Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation; Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions; Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure... CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court’s judgments; ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final... ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular: - continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law... - to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case; - to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law; - to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...” | 1 |
train | 001-72048 | ENG | UKR | CHAMBER | 2,006 | CASE OF TRIBUNSKIY v. UKRAINE | 4 | Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award | null | 4. The applicant was born in 1946 and lives in the town of Dniprodzerzhynsk. 5. In 2000 the applicant instituted proceedings in the Bagaliyskyy District Court of Dniprodzerzhynsk (the “Bagaliyskyy Court”) against the Bagaliyskyy Municipal Housing Enterprise, seeking the recovery of salary arrears. 6. On 18 December 2000 the court found for the applicant and ordered the entity to pay him UAH 2543.49 (around 421 euros – “EUR”). 7. On 23 December 2000 the Bagaliyskyy District Bailiffs’ Service of Dniprodzerzhynsk instituted enforcement proceedings. 8. On 18 June 2002 the Bailiffs’ Service informed the applicant that the judgment was not enforced due to the large number of enforcement proceedings against the debtor and its lack of funds. 9. On 6 June 2002 the Bailiffs’ Service applied to the Bagaliyskyy Court to have the debtor in the enforcement proceedings replaced, as the latter’s property had been transferred to the Dniprodzerzhynsk Housing Municipal Enterprise (the “DHME”) pursuant to the decision of the Dniprodzerzhynsk Town Council. 10. On 17 June 2002 the court granted the request of the Bailiffs’ Service and ruled that the DHME was responsible for the payment of the judgment debt of 18 December 2000 to the applicant. 11. On 29 September 2004 the DHME transferred the amount of the award to the deposit account of the Bailiffs’ Service. 12. On 30 September 2004 the Bailiffs’ Service requested the applicant to provide them with his bank account details in order that they transfer the amount of the award. 13. According to the Government, the applicant failed to provide the Bailiffs with the information requested. 14. The applicant did not contest this submission. 15. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). | 1 |
train | 001-73256 | ENG | SVN | CHAMBER | 2,006 | CASE OF SOLESA 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 1968 and lives in Velenje. 6. On 7 June 1995 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company A. 7. On 28 December 1995 the applicant instituted civil proceedings against A in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 1,050,000 tolars (approximately 4,380 euros) for the injuries sustained. Between 14 August 1996 and 14 December 2001 the applicant lodged eight preliminary written submissions and/or adduced evidence. Between 26 November 1996 and 30 March 2001 he made seven requests that a date be set for a hearing. Of the four hearings held between 21 October 1996 and 9 January 2002, none was adjourned at the request of the applicant. During the proceedings, the court appointed two medical experts. At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 6 May 2002. 8. On 8 May 2002 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). A cross-appealed. On 15 October 2003 the court rejected the applicant’s appeal and partly upheld the A’s appeal, and accordingly decreased the damages awarded. The judgment was served on the applicant on 4 December 2003. 9. On 9 December 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). On 24 November 2005 the court upheld the applicant’s appeal in part. The judgement was served on the applicant on 13 February 2006. | 1 |
train | 001-81691 | ENG | POL | CHAMBER | 2,007 | CASE OF KUC v. POLAND | 4 | Violation of Art. 5-3 | Nicolas Bratza | 4. The applicant was born in 1936 and lives in Katowice. He is currently detained in Racibórz Prison. 5. On 2 June 1999 the applicant was arrested by the police on suspicion of having assisted an offender who was being sought pursuant to a “wanted” notice. He was subsequently brought before the Jastrzębie Zdrój District Prosecutor (Prokurator Rejonowy) and charged with having intentionally impeded the apprehension of an arrestable offender. The actual offender had been charged with homicide. The prosecutor applied to the Jastrzębie Zdrój District Court (Sąd Rejonowy) for the applicant to be detained pending the investigation. 6. On 4 June 1999 the District Court, after hearing evidence from the applicant, remanded him in custody for 3 months in view of the reasonable suspicion that he had committed the offence with which he had been charged. The court also considered that, given that the applicant had not confessed and that the evidence given by him contradicted the material gathered by the prosecution, there was a fear that he would induce witnesses to give false testimony or would otherwise obstruct the proper course of the proceedings. 7. The applicant’s appeal against the detention order, as well as his further appeals against decisions prolonging his detention and all his subsequent repeated applications for release and appeals against refusals to release him, were unsuccessful. In his applications and appeals, he argued that the charge against him was based on unreliable and contradictory evidence. He referred to his personal circumstances, in particular his age (he was 63 at that time). 8. In the course of the investigation, on 30 September 1999, the applicant was charged with attempted homicide and 2 counts of armed robbery. The decision setting out the charges against the applicant was further amended on four occasions. 9. Between 17 August 1999 and 15 November 2000 the courts prolonged the applicant’s pre-trial detention on 6 occasions. The relevant decisions were given, respectively, by the Katowice Regional Court (Sąd Okręgowy) on 17 August and 19 October 1999, the Katowice Court of Appeal (Sąd Apelacyjny) on 24 November 1999, 23 February and 15 November 2000 and the Supreme Court (Sąd Najwyższy) on 25 May 2000. The Supreme Court prolonged the applicant’s detention until 2 December 2000. 10. In all those decisions the courts relied on a strong suspicion that the applicant had committed the offences with which he had been charged, which was supported by evidence from witnesses and experts. They attached importance to the serious nature of those offences and the likelihood of a heavy sentence being imposed on the applicant. They further considered that the need to secure the proper conduct of the investigation, especially the need to verify evidence from the suspects and witnesses, justified holding him in custody. 11. In the course of the proceedings, the courts informed the prosecutor and the applicant’s lawyer about the dates of the sessions concerning the review of the applicant’s pre-trial detention. Nevertheless, the applicant’s lawyer failed to appear at the sessions. 12. The representatives of the prosecution participated in all court sessions relating to the prolongation of the applicant’s detention and were invited to state their position as to the necessity of keeping the applicant in custody. 13. In the meantime, the relevant penitentiary court had ordered that the applicant serve a sentence of imprisonment imposed in other criminal proceedings. He served that sentence from 2 June 1999 (the date of his arrest in the present case) to 27 July 2000. 14. At a session held on 15 November 2000, at which the applicant’s lawyer was present, the Katowice Court of Appeal prolonged the applicant’s detention until 2 March 2001, repeating the grounds that had been given in the previous decisions and – more particularly – relying on the need to secure and supplement evidence gathered in the investigation. That decision and the reasons therefor were upheld on appeal on 20 December 2000 at a session at which the applicant’s lawyer was present. 15. On 29 December 2000 the applicant was indicted before the Kielce Regional Court on charges of attempted homicide, armed robbery, burglary and having intentionally impeded the apprehension of an arrestable offender. The bill of indictment comprised 9 accused. In all, 49 charges were brought against them. The principal accused, a certain J.P., was charged with 4 counts of homicide, 6 counts of attempted homicide, several counts of incitement to homicide and several counts of armed robbery. The prosecution asked the court to hear evidence from 162 witnesses. 16. On 24 January 2001 the Kielce Regional Court ordered that the applicant and his 6 co-defendants be kept in custody until 2 June 2001. The court referred to a strong likelihood that he had committed the serious offences with which he had been charged and stressed that a heavy penalty might be imposed on him. It considered that the severity of the anticipated penalty could by itself be a sufficient ground for continuing the detention in order to secure the proper course of the proceedings. In that context, the court added that both the gravity of the charges and the applicable sentence justified the conclusion that the defendants, if released, would obstruct the trial for fear of having that sentence executed. 17. Subsequently, the case was referred to the Katowice Regional Court, within whose territorial jurisdiction the offences in question had been committed. 18. On 23 May 2001 the Katowice Regional Court, under Article 263 § 3 of the Code of Criminal Procedure, ordered that the applicant be kept in custody until 2 December 2001. It reiterated the grounds previously given for his detention. On 4 July 2001 the Katowice Court of Appeal, ruling on the applicant’s appeal, upheld the decision and added that it should be based on Article 263 § 4 since the applicant’s detention had already exceeded the statutory time-limit of 2 years laid down in that provision, it being immaterial that during most of that period he had served the earlier sentence of imprisonment. The Court of Appeal fully shared the lower court’s view that there were valid grounds for the applicant’s detention. 19. The applicant’s detention was subsequently prolonged under Article 263 § 4 of the Code of Criminal Procedure on many occasions. 20. The relevant decisions were given on the following dates. 21. On 26 November 2001 the Katowice Regional Court ordered that the applicant be held in custody until 2 March 2002. On 28 February 2002 that court ordered his continued detention until 2 July 2002 but then amended its decision and set the deadline for 8 April 2002. This was due to the fact that after the latter date only the Court of Appeal could prolong his detention beyond the term laid down in Article 263 § 3 of the Code of Criminal Procedure. 22. On 13 March 2002 the Katowice Court of Appeal prolonged the applicant’s detention until 30 November 2002. On 30 October 2002 it prolonged his detention until 30 April 2003. On 23 April 2003 it ordered that the applicant be kept in custody until 30 September 2003. The next decision was given on 17 September 2003; it extended the applicant’s detention until 30 December 2003. It was followed by the decision of 23 December 2003, whereby the Court of Appeal prolonged the applicant’s detention until 30 April 2004. 23. All the decisions reiterated the grounds previously given for the applicant’s detention, most notably the reasonable suspicion of his having committed the offences in question and the severity of the anticipated penalty which, in the courts’ opinion, justified keeping him in custody to secure the proper conduct of the proceedings. The Court of Appeal also held that the proceedings had not been unduly protracted and that the frequent adjournments had been caused by events for which the Regional Court could not be held responsible. 24. All appeals and applications for release filed by the applicant – who repeatedly contested the factual basis for the charges against him and invoked the principle of the presumption of innocence – were to no avail. 25. In the meantime, the court held a number of hearings scheduled for various dates, some of which were cancelled or adjourned due to the absence of the applicant’s co-defendants, some of whom had been released, or the fact that the defendants still in detention had not been brought to trial from prison. As of October 2002, the trial court had heard evidence from over 160 witnesses. 26. On 20 April 2004 the Katowice Regional Court gave judgment. The applicant was convicted and sentenced to fifteen years’ imprisonment. He appealed. The applicant’s detention was subsequently prolonged on three occasions. 27. On 1 June 2005 the Katowice Court of Appeal upheld the impugned judgment. The applicant failed to inform the European Court whether he lodged a cassation appeal with the Supreme Court. 28. Neither during the proceedings nor after their termination did the applicant make use of domestic remedies for the excessive length of judical proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 29. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision concerning the prolongation of detention on remand is to be taken. 30. A more detailed rendition of the relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 31. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII. | 1 |
train | 001-23562 | ENG | SWE | ADMISSIBILITY | 2,003 | AALTO v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Elvi Aalto, is a Finish national, who was born in 1935 and lives in Helsingfors, Finland. She is represented before the Court by Mr Pietikäinen, who lives in Johanneshov. The respondent Government are represented by their Agent Mrs Inger Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant worked full-time as a cleaning assistant from 1979 until 1993 when she had to stop due to pain in her neck, shoulders, right arm, knee joints, wrists and finger joints. In March 1995 she was granted a disability pension. Alleging that her disability was the result of harmful effects in her work the applicant claimed compensation (livränta). In this respect she and her counsel attended a meeting with the Social Insurance Office (Försäkringskassan) of the County of Stockholm. Apparently, the applicant’s request that her husband be heard as a witness was refused. An opinion of 29 April 1996 from one doctor, and an opinion of 6 June 1996 from another doctor, attached to the Social Insurance Office in order to assist with medical matters (förtroendeläkare; “insurance doctor”), were submitted. They both found that the permanent reduction of the applicant’s working capacity was not as such a result of a “harmful effect”, rather her suffering emanated from many years of hard work and her developed age. On 25 September 1996 the Social Insurance Office refused the applicant’s claim for compensation. On appeal to the County Administrative Court in Stockholm (Länsrätten i Stockholm), the applicant requested that an oral hearing be held since, alleging that it was impossible for her to obtain a detailed opinion from a doctor in Sweden, her counsel wanted to submit oral arguments on her case. By decision of 13 November 1996 the court stated as follows: ”The proceedings before the court are written. According to Section 9 of the Administrative Court Procedure Act (förvaltningsprocesslagen) the proceedings before the administrative courts may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case. An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing. Having regard to the nature of the case and the evidence submitted, the court finds an oral hearing unnecessary The court invites [the applicant] to submit no later that 16 December 1996 her final observations in the case. If no documents are submitted, the case will be determined on the basis of the available material”. The applicant made further submissions in the case. Also, she reiterated her request for an oral hearing, stating that she questioned the professional competence of the insurance doctor, and asserted that, without an oral hearing, her case would be adjudicated in an incompetent, unlawful and partial manner. She did not invoke any witnesses or other oral evidence. On 14 October 1997 the County Administrative Court refused an oral hearing and delivered its judgment confirming the Social Insurance Office’s decision in the light of the material submitted, including the statements from the said two doctors. As regards the question of an oral hearing, the court held as far as relevant: “Both [the applicant] and her representative were present at the meeting, after which the Social Insurance Office made their decision in the case. Moreover, she has described thoroughly in writing her place of work and the tasks assigned to her. In these circumstances, the court finds that the case has been clarified to the extent required. Therefore, an oral hearing is unnecessary.” The applicant requested leave to appeal and an oral hearing in the leaveto-appeal proceedings. In support of the latter she stated that she wanted to hear the insurance doctor as a witness, in order that he confirm his written opinion under oath, so that he would bear some responsibility for his statements, which in the applicant’s view lacked relevance. By decision of 29 April 1999 the Administrative Court of Appeal (Kammarrätten i Stockholm) refused an oral hearing, and gave at the same time the applicant an opportunity to submit within two weeks further observations she might wish to invoke regarding the leave-to-appeal issue. The applicant, reiterating her request for an oral hearing, stated that neither the Administrative Court of Appeal, nor the insurance doctor was adequately qualified. By decision of 18 June 1999 the Administrative Court of Appeal refused to grant the applicant leave to appeal against the County Administrative Court’s judgment of 14 October 1997. In her appeal to the Supreme Administrative Court the applicant stated that she considered the facts of the case to be clear due to her written observations and the fact that she had been present at the meeting with the Social Insurance Office. Nevertheless, her counsel wished to make oral submission on the appeal before the Administrative Court of Appeal. On 7 February 2000 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal against the decision of 18 June 1999. All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the Act on Industrial Injury Insurance (lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person’s place of work. Pursuant to chapter 8, Section 1 of the 1976 Act, an industrial injury shall immediately be reported to the employer, who shall report it to the Social Insurance Office. The office shall obtain a medical opinion concerning the injury. A physician shall be attached to the office in order to assist it in medical matters (the insurance doctor). The assessment of whether an injury qualifies as an industrial injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the insurance doctor’s assessment of those opinions and any other information pertaining to the matter. For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured persons’ health problems. What is meant by “harmful effect“ is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, the question whether a particular injury or illness incurred by the insured person was to be regarded as an industrial injury was subject to the following special rule of evidence. If the insured person had suffered an accident or had been subjected to some other harmful effect at work, his or her medical problems were presumed to have been caused by the accident or the harmful effect if there were substantial grounds in support of such a conclusion (chapter 2, Section 2 of the 1976 Act in its wording from 1 January 1993 until 30 June 2002). The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (förvaltningsprocesslagen, lag 1971:291 - hereinafter “the 1971 Act”). Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, and if it is not unnecessary and there are no particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party’s understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). | 0 |
train | 001-91126 | ENG | RUS | CHAMBER | 2,009 | CASE OF KHADISOV AND TSECHOYEV v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev | 6. The first applicant was born in 1956 and the second applicant in 1977. They live in Ingushetia. 7. The first applicant is married and has four children. Until 1999 he and his family lived in Grozny. In October 1999, because of the hostilities, they moved to the neighbouring republic of Ingushetia and settled in the village of Verkhny Alkun, Sunzhenskiy District, which is near the border with the Chechen Republic. There the first applicant and his family owned and tended several cows. 8. On 8 September 2001 the village elder and the head of the administration went to the military unit of the border troops stationed near the village to warn them that on the following day the villagers were going to cut grass for hay in the meadows, and to indicate that the servicemen should not shoot at them. The commander of the military unit gave assurances that there would be no shooting. 9. On 9 September 2001 the first applicant, together with his youngest son and other villagers (14 persons altogether, including women and children) went to the meadow to cut grass for hay. At about 10 a.m. the villagers were shot at from the nearby forest, where the troops were stationed. The first applicant’s nephew, Mr A.K., born in 1984, was wounded in both legs. The first applicant and other villagers tied his wounds to stop the heavy bleeding and started shouting to the soldiers, who were 100-200 metres away, that they should stop shooting and that a boy had been wounded. However the shooting and shelling continued for about an hour. 10. The first applicant and two women tied a handkerchief to a raised stick and walked up to the closest armoured personnel carrier (APC), shouting “Don’t shoot! There is a wounded person here!” An officer in the APC told the first applicant that he would ask the others not to shoot and told him to get the other men out of the field. The villagers got into the Gaz-66 minivan in which they had arrived at the meadow and went down the hill to the village. 11. At the edge of the village they were met by a group of servicemen, policemen and villagers of Verkhny Alkun. There they were told that the servicemen had been attacked and had fired in response. A local police officer told them that the injured should be taken to hospital, for which purpose he had called a car, and that the men should go and see journalists at the Sunzhenskiy District Department of the Interior (ROVD) in the village of Sleptsovskaya (also known as Ordzhonikidzevskaya) and tell them what had happened. 12. Once at the Sunzhenskiy ROVD, the first applicant and other men were placed in a cell and questioned. Seven men, including the applicant and his son A., were detained for three days, and released on 12 September 2001. While in the ROVD, the applicant and other men were questioned by unknown men wearing military camouflage and by M. B., the investigator of the Sunzhenskiy District Prosecutor’s Office. No documents were produced in respect of this detention. 13. Following the opening of a criminal investigation into the attack of 9 September 2001, on 11 October 2001 an investigator of the Prosecutor’s Office of Ingushetia informed Mr A.K. that on 11 September 2001 he had been granted victim status in criminal case no. 21600040. The first applicant submitted several statements by other villagers about the circumstances of the events of 9-12 September 2001. 14. On 22 February 2003 the head of the Verkhny Alkun village administration issued an explanation notice confirming the events of 9 September 2001 as presented by the applicant. 15. After his release the first applicant spent several days in the Sunzhenskiy District hospital in Sleptsovskaya village looking after the wounded Mr A.K. In the meantime, the police carried out a search in the first applicant’s house in Verkhny Alkun, of which he was informed by his wife. 16. On 23 September 2001 the applicant left the hospital while another relative, Mr S., remained to look after the injured man. That evening, upon his return to the hospital, he was told that Mr S. had been taken to the ROVD and that he too should go there in order to provide certain explanations. 17. The first applicant, who was afraid that he might be detained again, first visited the prosecutor’s office and talked to investigator M.B., who allegedly assured him that nothing would happen and that he would personally guarantee this. The first applicant, accompanied by his wife, then went to the Sunzhenskiy ROVD. There the applicant was separated from his wife and placed in a cell, in which there were already several detainees, including his relative Mr S. and the second applicant, whom he had not met before. 18. The second applicant is an agronomist by profession. In 2001 he worked as a mechanic in a boiler-house. He lived with his parents and siblings at 112 Dzerzhinskogo Street in the village of Ordzhonikidzevskaya. 19. On 23 September 2001 the second applicant was at home. He was planning to go with relatives to the construction site of their new house. His parents, sister, three brothers and a relative were at home at the time and produced detailed statements about the following events. 20. At about 10 a.m. a group of men in civilian clothes entered the house. The second applicant recognised M.Ye., the head of the Sunzhenskiy criminal police ,and two policemen whom he knew personally. The family members were ordered to go outside the house, where their identity documents were checked. The policemen searched the house. They then asked the second applicant to come to the Sunzhenskiy ROVD for a check. No documents were produced or submitted in respect of the search or the second applicant’s detention. 21. Once at the ROVD, the second applicant was questioned about what he had been doing on 9 September 2001. He understood from the questions that he was suspected of attacking Russian servicemen on that day near the village of Verkhny Alkun. The second applicant gave a written statement that on that day he had been working with his brother and father at the construction site of their new house, and that neighbours could confirm this. 22. The second applicant was then questioned for several hours by three men with Slavic features, who were wearing military camouflage, about the attack of 9 September 2001. They asked him, in particular, whether he knew any fighters. They told him that they suspected him of being a member of an illegal armed group, and that he would be sent to Khankala – the main Russian military base in the Chechen Republic. No records of the questioning were made. 23. On 24 September 2001 both applicants were taken to the Sunzhenskiy District Court, where the judge asked them for their personal details. The applicants later learned that they had been charged with resisting police officers and that they had been brought to the ROVD for that reason. On the same day a judge of the Sunzhenskiy District Court authorised the detention of both applicants for three days for violently resisting the police officers’ attempt to check their identity documents. 24. Later that day the applicants’ passports were returned to them and they thought that they would be released. Instead, a group of servicemen from the Special Forces unit of the Ministry of the Interior (“OMON”) arrived and took charge of the applicants. The servicemen had “OMON” inscriptions on their jackets. They put the applicants into a bus where they were forced under the seats, punched and kicked. 25. The bus arrived at the base of the Special Mission Division of the Ministry of the Interior (DON) no. 99, near Nazran, known to the locals as “the 58th army”. There the beating continued. The applicants were severely beaten with rifle butts, boots, metal rods and wrenches; they were also suffocated with plastic bags and strangled with belts. When they lost consciousness the bags were removed from their heads, and when they came round the beatings continued. The servicemen did not ask the applicants any questions, but told them that they were beating them in revenge for their killed comrades. 26. Then both applicants were thrown into a helicopter. The second applicant lost consciousness again and later awoke on the floor of the helicopter, with a bag over his head, a soldier’s feet on his back and a gun pointed at his head. The first applicant’s head was tightly wrapped with a cloth so that he could not see anything, but he was transported in a similar manner. 27. The applicants later learned that the helicopter had taken them to the Khankala military base. They were thrown into a large pit in the ground and beaten for about an hour. They were also subjected to other forms of torture: their hands were tightly tied with metal wire, and their ribs and hips were burned with cigarettes. The soldiers also took photographs in which they were shown placing their feet on the applicants’ heads. 28. The first applicant was later taken to another pit, where he was allowed to remove the cloth from his face. 29. The second applicant was taken somewhere for questioning, and for about an hour he was severely beaten on his head, ribs and on the heels of his feet. He was questioned about having some connection with fighters. He was then put into the same pit as the first applicant, where he was allowed to remove the bag from his head. 30. The applicants remained in the pit for five days. They described it as about 2.5 metres by 2.5 metres wide, and about 2.5 metres deep. It was roofed with a wooden cover and only a small opening was left, concealed by a camouflage net. The applicants suffered from humidity and cold, and were not given any food. 31. During the first four days of detention at Khankala the applicants were taken out for questioning, one after the other, into a room with wooden walls and electric lighting which had a sign marked “Chief of staff” on the wall. They were questioned about whether they had known any fighters and asked to give names. The interrogators also read out the list of wanted persons and asked if the applicants knew any of them. No official records were made during the questioning. 32. According to the applicants, they were subjected to the following forms of torture and ill-treatment: they were kicked and struck with rifle butts on different parts of their bodies, in particular on the soles of their feet; they were burned with cigarettes and forced to sit in a bucket while being beaten. As a result of the beatings the applicants could hardly walk, the skin on their feet peeled off, and their faces and bodies were bloated and covered with haematomas. The second applicant was forced to stand for hours with his forehead against the wall, with his hands tightly tied behind his back and legs spread widely apart. He still had clearly visible marks on his forehead one year after the events. The soldiers also threatened the applicants with execution and put guns to their heads. On one occasion both applicants were given a document to read which said that they had been caught trying to plant a mine on the road, that the mine had exploded and that both had died on the way to hospital. 33. On the fifth day of detention – the applicants believed it was 29 September 2001 – they were called one after the other to sign a document to the effect that they had no complaints and that they had not been subjected to any ill-treatment. The applicants first refused to sign it, but after the soldiers beat them they signed the document to avoid further beatings. They were then transferred by car, with bags over their heads, to the Sixth Department of the Organized Crime Unit (RUBOP) of the Staropromyslovskiy District of Grozny. The applicants spent fifteen days in that department. The conditions of detention were satisfactory and the applicants were given food. However, on several occasions the servicemen kicked them and threatened them with torture. 34. On 9 September 2001 in the forest on the outskirts of the village of Verkhny Alkun, Sunzhenskiy District, unidentified persons fired automatic weapons at servicemen of the federal forces. As a result two servicemen were killed and two other servicemen and a villager, Mr K., received shotgun wounds. 35. On the same day the Sunzhenskiy District Prosecutor’s Office opened criminal investigation no. 21600040 into the events. In the course of the investigation sixty persons, including the first applicant, his son A. and the second applicant were brought to the ROVD for enquiries concerning their possible involvement in the shooting. However, they were not detained. A search was conducted at the first applicant’s house. The second applicant’s house was not searched. 36. On 23 September 2001 the applicants were again brought to the ROVD for further enquiries. Since they did not follow the orders of the law-enforcement officers, on 24 September 2001 the Sunzhenskiy District Court ordered their administrative imprisonment for three days. 37. Later on 24 September 2001 the applicants were “transferred” to officers of the mobile detachment of the Ministry of the Interior for enquiries concerning their possible participation in illegal armed groups. 38. The Government submitted no information concerning the applicants’ place of detention in the subsequent period. They stated that, according to the results of the investigation, the applicants had not been held in facilities for either remand or administrative detention in the Chechen Republic. Nor was the fact of their detention at the Khankala military base confirmed. 39. On 12 October 2001 the applicants were released. They were not given any papers, and the servicemen told them that they should consider themselves lucky to be alive. At the gates of the RUBOP building they were met by the first applicant’s sister and the second applicant’s mother. The applicants were very weak and the second applicant could not walk without assistance. Both applicants were taken by their relatives to doctors for treatment. 40. The first applicant was diagnosed as suffering from pneumonia, the fracture of three ribs, burns from cigarettes, partial paralysis of the left hand and bruises. He submitted no copies of medical documents but a statement from his wife, who confirmed that he had suffered from the consequences of the beatings and could not work. 41. The second applicant was taken to Nazran hospital on 16 October 2001 and remained there until 19 October 2001. He was diagnosed with trauma to the lower back, concussion of the kidneys, chronic pyelonephritis and macrohaematuria. On 27 October 2001 the second applicant was again taken to a hospital in Malgobek by his relatives, and remained there until 19 November 2001. In addition to the previous findings, he was diagnosed with craniocerebral injury and concussion of the head and back. The doctors noted his complaints about his loss of sight, pain in the back and head and vertigo. The second applicant continued to suffer from pain, loss of sight, convulsions and other consequences of the ill-treatment for many months after his release. In February 2003 doctors advised him to undergo complicated kidney surgery, but he could not afford it. 42. The applicants and their relatives complained to various official bodies about the search, arrest and ill-treatment of the applicants. In response, they received very little substantive information concerning actions taken by the authorities further to their complaints. On several occasions, they received copies of letters from various authorities informing them that their complaints had been forwarded to the local prosecutors. 43. According to the applicants’ relatives, from 24 September to 12 October 2001 they were not informed about the applicants’ whereabouts, or the reasons for or places of their detention. By asking the military and police, they learned that at some point the applicants had been detained at the Khankala military base and then transferred to Grozny. However, this information was not official. 44. On 27 September 2001 the Prosecutor’s Office of Ingushetia forwarded a request from the second applicant’s father, seeking information on the reasons for the detention and whereabouts of his son, to the Sunzhenskiy District Prosecutor for investigation. 45. On 8 and 10 October 2001 the second applicant’s mother wrote to the Sunzhenskiy District Prosecutor’s Office and the Sunzhenskiy District administration respectively, asking about the whereabouts of her son after his arrest on 23 September 2001. 46. On 10 October 2001 the Sunzhenskiy District Prosecutor’s Office informed the applicants’ relatives that no official documents or reports existed in relation to the applicants’ arrest, detention or alleged transfer to the Chechen Republic. The letter further stated that any transfer to the Chechen Republic or another region had not been authorised by the prosecutor’s office, and that an investigation into possible breaches of correct procedure was underway. 47. On 11 October 2001 the second applicant’s mother again wrote to the Prosecutor’s Office of Ingushetia, complaining about her son’s illegal detention and alleged transfer to the military authorities in the Chechen Republic. 48. On 12 October 2001 the first applicant’s wife submitted a complaint to the Prosecutor’s Office of Ingushetia in person, asking to be informed of her husband’s whereabouts and the reasons for his arrest. 49. After the applicants’ release they themselves applied to the prosecutors, asking that an investigation be conducted into their allegations of ill-treatment and that the persons responsible be brought to justice. 50. Soon after his release from hospital (sometime in November 2001) the second applicant submitted a detailed account of his arrest, detention and ill-treatment to the Prosecutor’s Office of Ingushetia, indicating the names, ranks and descriptions of the servicemen who had participated in his arrest and the beatings in Ingushetia. 51. It appears that on 23 November 2001 the Sunzhenskiy District Prosecutor’s Office refused to open a criminal investigation into the actions of the officials from the Ministry of the Interior, on the ground of absence of corpus delicti. The applicants did not submit a copy of that document, but on 20 December 2001 the second applicant, assisted by a lawyer, appealed against the decision to the Prosecutor’s Office of Ingushetia. He sought the quashing of the decision and the opening of an investigation into his allegations of ill-treatment. The appeal also contained references to the identity of the servicemen involved and a detailed description of the events. 52. On 4 January 2002 the Prosecutor’s Office of Ingushetia informed the second applicant that on that date a criminal investigation had been opened into the complaint with regard to his arrest and beatings administered by unknown servicemen of the Ministry of the Interior, and that the investigation would be carried out by the Sunzhenskiy District Prosecutor’s Office. 53. On 27 February 2002 the applicants’ representative, the SRJI, wrote to the Chechnya Republican Prosecutor, asking him to open a criminal investigation into the ill-treatment of the applicants at the Khankala military base on 24-27 September 2001. On 10 April 2002 the SRJI again wrote to that prosecutor, but received no reply. 54. On 10 October 2002 the applicants talked to the SRJI representatives in Nazran, who filmed the interview. They have submitted a transcript of the videotape, in which the applicants displayed the scars still visible on their bodies and stated that they suffered from recurrent health problems. They also stated that no proper investigation had taken place into their complaints. 55. On 4 January 2002 the Prosecutor’s Office of Ingushetia opened a criminal investigation in case no. 22600008, following the second applicant’s complaint about alleged ill-treatment by officers of the federal forces. Criminal proceedings were instituted under Article 285 of the Criminal Code (abuse of official powers). 56. On 16 January 2002 the second applicant was questioned and granted victim status in the proceedings. According to the Government’s submissions, the second applicant stated that after he and the first applicant had been brought to the ROVD on 23 September 2001, they were transferred to unidentified persons in Nazran, Ingushetia, and then transported to Grozny. They had been ill-treated on the way to Nazran and in Grozny. They had been released a few days later. They would not be able to identify the persons who had ill-treated them. 57. On the same date K.D. and A.A., officers of the Sunzhenskiy ROVD, were questioned. 58. On 18 and 19 January 2002 A.M., M.Ts., S.Ts., V.Kh. and I.M., officers of the Sunzhenskiy ROVD, were questioned. 59. On 1 February 2002 the second applicant was confronted with officer K.D. 60. On 11 February 2002 the first applicant was questioned and granted victim status in the proceedings. He made statements similar to those of the second applicant. 61. On 15 February 2002 the first applicant was confronted with officer A.M. 62. On 19 February 2002 the second applicant was confronted with officer A.A. 63. On 21 February 2002 Mr D. was questioned. It is not clear who he was or why his statements could have been relevant. 64. On 27 February 2002 A.I., a senior officer of the Samogorskiy Department of the Khakasiya Ministry of the Interior was questioned. 65. On 13 March 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified. 66. Despite the suspension of the investigation, on 3 April 2002 investigator M. of the Zamoskvoretskiy Prosecutor’s Office of Moscow questioned S. Z., the commander of the mobile detachment of the Ingushetia Ministry of the Interior as a witness. 67. On 10 October 2002 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor. 68. On 20 October 2002 Mr T.Kh. and Mr A.-S.K. were questioned. On 29 October 2002 Mr M.E. was questioned. It is not clear who they were or why their statements could have been relevant. 69. On 10 November 2002 the investigation was suspended on the ground that the persons to be charged with the offence could not be identified. 70. On 15 April 2003 the decision to suspend the investigation was quashed by the Sunzhenskiy District Prosecutor. 71. On 17 April 2003 Mr U.Kh. was questioned. It is not clear who he was or why his statements could have been relevant. 72. On 15 May 2003 the investigation was suspended on the ground of absence of corpus delicti. 73. In July 2003 the materials concerning the applicants’ detention at the Khankala military base were separated from case no. 22600008 and transmitted to the military prosecutor’s office of the United Group Alignment (UGA) in the North Caucasus region. The results of an enquiry subsequently conducted did not support the applicants’ allegations that they had been detained at the base. On 8 August 2003 the UGA Prosecutor’s Office refused to institute criminal proceedings, invoking the absence of corpus delicti. According to the applicants, they were never notified of this decision. 74. On 7 June 2005 the decision to suspend the investigation of 15 May 2002 was quashed by the Deputy Prosecutor of Ingushetia. 75. On 6 July 2005 the applicants underwent forensic medical examinations. The examination ascertained that the second applicant had a blunt injury in the lumbar region with concussion of the kidneys, which represented significant injuries (вред здоровью средней тяжести). The first applicant had traces of injuries that were healing. However, because of the time that had elapsed, it was not possible to establish either how they had been caused or what degree of bodily harm they represented. 76. On 17 July 2005 the investigation was closed on the ground of absence of corpus delicti. The relevant parts of the decision read as follows: “The investigator of the Sunzhenskiy District Prosecutor’s Office ... has established the following: On 23 September 2001 officers of [the Sunzhenskiy ROVD] brought [the applicants] to the [ROVD] for an enquiry concerning their involvement in the attack on servicemen of the federal troops. Since [the applicants] disobeyed the police officers when being brought to the [ROVD], on 24 September 2001 the judge ... of the Sunzhenskiy District Court ordered their administrative imprisonment ... for three and two days respectively. On the same day [M.], the deputy head of the Department of the Interior for the Sunzhenskiy District Administration [ОВД администрации Сунженского района] handed over [the applicants] to [A.I.], the head of the criminal investigation department of the mobile detachment of the Ministry of the Interior [начальник уголовного розыска мобильного отряда МВД РФ по Ингушетии], who transferred them to servicemen of the federal troops. The latter transported [the applicants] in a helicopter to the village of Khankala in the Chechen Republic, where for a period of twenty days they tortured and beat them, forcing them to confess to being members of illegal armed groups. On 4 January 2002, following [the second applicant’s] application ... criminal proceedings were instituted... ... [A.I.], who was questioned, stated that on 24 September 2001, following an order from [S.Z.], commander of the mobile detachment of the Ministry of the Interior, he had transported [the applicants] from the Sunzhenskiy ROVD to the territory of a military unit in Nazran, where he had transferred them to servicemen who had arrived from Khankala. Lieutenant Colonel [A. Iv.] had given him a document stating that he had received [the applicants]. However, the Sunzhenskiy ROVD had not been informed that [the applicants] would be taken to Grozny. When [the applicants] were transported to the territory of a military unit in Nazran they had not been subjected to any physical coercion. During the preliminary inquiry [S.Z.], commander of the mobile detachment of the Ministry of the Interior, submitted that, following an order from the military unit in Khankala, he had ordered [A.I.] to convey [the applicants] from the Sunzhenskiy ROVD to the helicopter that had arrived from Khankala. However, during the investigation [S.Z.] refused to make any statement, invoking Article 51 of the Constitution [which guarantees the right not to incriminate oneself]. With regard to [S.Z.’s] refusal to make a statement it was decided not to institute criminal proceedings on the ground of [the expiry of the statutory time-limits for criminal prosecution]. From expert opinion no. 258 in respect of [the first applicant], it follows that he has two types of injuries: healing scars of burns and healing scars of deep abrasions. However, because of the time that has elapsed it is not possible to establish the degree of bodily harm. From expert opinion no. 359 in respect of [the second applicant], it follows that he sustained a blunt injury in the lumbar region with concussion of the kidneys, which amounts to significant bodily harm. Therefore, from the materials of the case it follows that [the applicants] were unlawfully detained and subjected to coercion in the territory of the Chechen Republic. The decision of the judge of the Sunzhenskiy District Court [concerning the applicants’ administrative imprisonment] was lawful and entered into force. Materials concerning [the applicants’] unlawful detention and the application of coercion towards them were separated into a different set of proceedings and have been transferred by reason of territorial jurisdiction to the Prosecutor of the Chechen Republic... ... Having regard to the foregoing, criminal case no. 22600008 should be closed on the ground of absence of corpus delicti ... in the actions of officers of the Sunzhenskiy ROVD. ...” 77. On 26 September 2005 the decision to close the investigation was quashed by the Deputy Prosecutor of Ingushetia. He stated, in particular, that it was necessary to question Lieutenant Colonel A.Iv. 78. On 29 October 2005 the investigation was again suspended on the ground of absence of corpus delicti. 79. On 27 December 2007 the Prosecutor’s Office of Ingushetia resumed the investigation in case no. 22600008. 80. On 15 March 2008 the investigation was suspended. The applicants were notified of the suspension in a letter which carried the date of 12 March 2008 but were not provided with a copy of the decision. The investigation failed to establish the applicants’ whereabouts from 24 September to 12 October 2001 when, according to the applicants, they were released. According to its findings, no criminal proceedings had been instituted against the applicants by the prosecuting authorities of the Chechen Republic. They had not been held in facilities for either remand or administrative detention in the Chechen Republic. 81. According to the Government, on an unspecified date the Prosecutor’s Office of Ingushetia applied to the Ingushetia Ministry of the Interior to take measures to bring to account those responsible for the unlawful transfer of the applicants, who were subject to administrative detention, to the head of the criminal investigation department of the mobile detachment of the Ingushetia Ministry of the Interior. As a result, the head of the criminal police of the Sunzhenskiy ROVD was dismissed and the officer of the Sunzhenskiy ROVD, who had been in charge of the detention facility on the relevant date, was reprimanded. 82. Despite specific requests from the Court on several occasions, the Government did not submit any documents from investigation file no. 22600008, apart from eight pages containing the decisions to grant the applicants victim status, the decision of 17 July 2005 to close the investigation and the decisions of 4 January 2002 and 26 September 2005 to reopen the investigation. They stated that disclosure of the documents would breach Article 161 of the Code of Criminal Procedure since the file contained information related to military operations and the personal data of participants in the criminal proceedings. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data of the witnesses], and without the right to make copies of the case file and transmit it to others”. 83. On 15 December 2002 the second applicant brought a civil claim before the Sunzhenskiy District Court for damages in respect of his allegedly unlawful detention and ill-treatment. He claimed 3,000,000 roubles (RUB) for non-pecuniary damage. 84. On 9 January 2003 the Sunzhenskiy District Court rejected the claim on the ground that the applicant had failed to comply with the procedure for out-of-court dispute resolution. The relevant part of the decision reads as follows: “The present claim cannot be examined for the following reasons. As shown in the information submitted by the Sunzhenskiy District Prosecutor’s Office ... the materials concerning the unlawful detention and ill-treatment of [the second applicant] were sent to the Prosecutor’s Office of the Chechen Republic for a decision concerning territorial jurisdiction. Until this matter is resolved, it is not possible to examine the case, since the procedure for out-of-court dispute resolution has not been complied with.” 85. The decision could be appealed against to a higher court. It appears that the second applicant has not appealed. 86. The first applicant made the following submissions concerning the events of January – March 2008 which, in his view, were related to his application to the Court. 87. On 22 January 2008 a plain-clothed man of Chechen origin visited him at his home and asked him to come to the Khankala military base. The first applicant complied with the request. At the Khankala military base he was taken to a room where an official was waiting for him. The official introduced himself as Major D., deputy head, senior investigator of the military investigative department of military unit no. 68797. Major D. read out excerpts from the first applicant’s application to the Court and questioned him in relation to his ill-treatment in Khankala in 2001. During the questioning he was typing something on his computer. Then he printed out a document and asked the first applicant to read it. The first applicant replied that he was “bad at reading” and that he had forgotten his glasses at home. Then, with the first applicant’s consent, Major D. himself read out the document, which was a record of the first applicant’s questioning, and asked the first applicant to sign it. The first applicant signed the document and then requested and was provided with its copy, which he submitted to the Court. 88. When the first applicant returned home, his wife read out the document for him. The record contained, in particular, the following statements allegedly made by the first applicant in the course of the questioning: “In the course of the questioning in Khankala I was not beaten. However, [the second applicant] was beaten...” The minutes... of my questioning on 11 February 2002 contain a wrong record to the effect that I was beaten in the “pit”. I meant that [the second applicant] and me had been beaten by... officers of the mobile detachment [of the Ingushetia Ministry of the Interior] who had conveyed us from ... the Sunzhenskiy ROVD to the helicopter. I have no complaints against servicemen of the Ministry of the Defence and of the internal troops of the Ministry of the Interior. I have complaints against officers of the mobile detachment of the Ingushetia Ministry of the Interior. I can also clarify that I lodged a complaint before the representative of the Russian Federation before [the Court] precisely in respect of the actions of ... officers of the mobile detachment of the Ingushetia Ministry of the Interior. I did not complain about actions of servicemen of the Ministry of the Defence and of the internal troops of the Ministry of the Interior.” 89. On 24 January 2008 the first applicant applied in writing to the head of military investigative department no. 505 of military unit no. 68797. He wrote, in particular, that in the course of questioning on 22 January 2008 he had never made the above statements and that the record of questioning had been forged in this part, which he had only discovered at home after the record was read out by his wife. He maintained that during the questioning he had confirmed that he had been beaten in Khankala. He had merely specified that the beatings he had received there had not been as severe as those suffered by the second applicant, and not as bad as those beatings administered against both of them by officers of the mobile detachment of the Ingushetia Ministry of the Interior. The applicant asked to disregard the record of his questioning on 22 January 2008. 90. On 15 February 2008 the first applicant’s wife was questioned by Major D. She provided her account of the events related to her husband’s detention in September-October 2001. No questions concerning the first applicant’s application to the Court were put to her. A copy of the record of the questioning was submitted to the Court. 91. On 14 March 2008 Major D. again questioned the first applicant, who was assisted by his counsel, Mr A. The first applicant stated that he largely confirmed his submissions set out in the record of his questioning on 22 January 2008, with certain exceptions. He clarified, in particular, that during questioning in Khankala in 2001 he had been kicked, punched and struck with sticks. He had been beaten by up to three men simultaneously. During his questioning on 22 January 2008 he had intended to say that he had not been beaten as severely as the second applicant in Khankala, and that the beatings there had been less severe than both had suffered in Nazran. Furthermore, the first applicant submitted that he had never stated that he had no complaints against servicemen. The complaints set out in his application to the representative of the Russian Federation before the Court related to all persons who had unlawfully detained and ill-treated him. He further stated that he had not read the record of the questioning on 22 January 2008 because he had not had his glasses with him. He had signed it after it was read out by the investigator and could not explain why his statements had been recorded inaccurately. The applicant signed the record of his questioning on 14 March 2008 and was provided with a copy, which he submitted to the Court. 92. Until 1 July 2002 criminal-law matters were governed by the 1960 Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic). On 1 July 2002 the old Code was replaced by the Code of Criminal Procedure of the Russian Federation. 93. Article 125 of the new CCP provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to a court. 94. Article 161 of the new Code of Criminal Procedure establishes the rule that data from the preliminary investigation cannot be disclosed. Part 3 of the same Article provides that information from the investigation file may be divulged with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation. It is prohibited to divulge information about the private life of the participants in the criminal proceedings without their permission. 95. In so far as relevant, the Constitution of the Russian Federation, adopted by referendum on 12 December 1993, provides: “1. Everyone has a right to liberty and personal security. 2. Arrest, detention and placement in custody shall be subject to a court decision. No one may be detained longer than 48 hours before the court decision is taken.” 96. The RSFSR Administrative Code (Кодекс об административных правонарушениях РСФСР), in force until 1 July 2002, contained the following provisions. 97. Under Article 239 the police and other competent authorities could subject a person to administrative detention in order to prevent an administrative offence, to establish a person’s identity, to draw up a report on administrative offence where such a report was necessary and could not be drawn up on the spot, and to ensure effective proceedings or the enforcement of administrative sanctions. 98. Article 240 provides that a report on administrative detention was to contain the date and place where it was drawn up, the name and position of the officials who prepared it, information on the detained person, and the exact time and reasons for the detention. It should be signed by the official and the detained person. Should the latter refuse to sign the report, a record to this effect was to be made in the report. At the request of the detained person, his relatives, his employer or educational institution was to be notified of the place of his detention. 99. Article 241 provides a list of competent authorities and circumstances where they could effect administrative detention. In particular, officials of the interior (policemen) could effect administrative detention for a failure to comply with a lawful order of a police officer. 100. Article 242 provides, in particular, that the term of administrative detention was not to exceed three hours, except for certain categories of offenders, including those who forcefully resisted the lawful order of the police. Those could be detained as long as necessary until their case was considered by a judge or a police superior. 101. Under Article 302, administrative imprisonment could be applied in exceptional circumstances by a judge as an administrative sanction in respect of certain administrative offences, for a term no longer than fifteen days. 102. Under Article 303 an order on administrative imprisonment was immediately enforceable. 103. Article 304 provides that persons subjected to administrative imprisonments should be held in facilities determined by authorities of the interior. The term of administrative detention was to be counted towards the term of administrative imprisonment. 104. Under Section 3 of the Regulations on the Internal Regime of Special Facilities for the Detention of Persons Subjected to Administrative Imprisonment of 6 June 2000 (Правила внутреннего распорядка специальных приемников для содержания лиц, арестованных в административном порядке, утвержденные приказом МВД РФ от 6 июня 2000 г. N 605дсп), individuals are placed in the special facilities on the basis of an order on administrative imprisonment issued by a competent authority. 105. Section 13 of the Regulations provides that persons delivered to the special facilities are to be registered in the facility’ register. A card is to be filled in respect of each detained person, with information on the detainee, the term of detention and the authority which ordered the detention, and the times of placement and release from the facility. Likewise, a personal file is to be kept in respect of each detainee. The file should contain the order on administrative imprisonment, the report on the search conducted upon the person’s admittance to the facility and other documents related to the detainee and his conduct in the facility during the detention term. Personal files should be stored for three years. | 1 |
train | 001-93109 | ENG | UKR | CHAMBER | 2,009 | CASE OF YEROSHKINA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1954 and lives in Odessa, Ukraine. 5. At the material time the applicant worked at the Odessa Naval College (“the ONC”), a State educational institution. According to the applicant, in July 1990 her family was provided by the ONC with an apartment. However, she was not provided with any documents certifying her title to this apartment. 6. In June 1997 the ONC instituted proceedings in the Zhovtnevy District Court of Odessa against the applicant, seeking eviction of her family. In this respect the ONC argued that the premises at issue were for administrative use only and that the applicant was occupying them without permission. The applicant lodged a counterclaim, seeking to acknowledge the habitable status of the disputed premises and her tenancy title thereto. She also sought to oblige the ONC to conclude a rent contract with her on the disputed premises. 7. On 9 September 1997 the court joined the local city administration to the applicant’s case as a third party. 8. From 25 September to 6 November 1997 and from 2 December 1997 to 15 January 1998 the proceedings were stayed due to the illness of the applicant. 9. On 16 April 1998 the court ordered a forensic examination of the premises at issue. The expert’s report was completed by 20 October 1998. 10. On 9 November 1998 the applicant lodged an additional claim, seeking compensation for non-pecuniary damage. 11. On 31 December 1998 the court found for the ONC and rejected the applicant’s counterclaims. Accordingly, it ordered eviction of the applicant’s family. 12. On 23 March 1999 the Odessa Regional Court (since June 2001 the Odessa Regional Court of Appeal) quashed this judgment on an appeal by the applicant, finding that the lower court had failed to identify the members of the applicant’s family and to join them to the proceedings as codefendants. Accordingly, it remitted the case for fresh consideration. 13. On 28 May 1999 the case was transferred for examination to the Leninsky District Court of Odessa. 14. From 9 June 1999 the court repeatedly requested the head of the military unit, the employer of the applicant’s husband, to provide documents necessary for the case. A reply was sent to the court only on 12 October 1999. 15. On 25 June 1999 the applicant’s husband and son were joined to the proceedings as co-defendants. 16. From 29 February to 26 April 2000 no hearing was held as the judge in charge was either away on business or ill. 17. On 26 April 2000 the court came to the same conclusions as the Zhovtnevy District Court of Odessa. 18. On 18 July 2000 the Odessa Regional Court quashed this judgment on the ground that the lower court had failed to address the statute of limitation issue in the case and the applicant’s claim for compensation. Accordingly, it remitted the case for fresh consideration. 19. Of the eleven hearings held between April 1999 and 18 July 2000 two were adjourned due to the applicant’s or her family members’ failure to appear before the court, and four due to the ONC representative’s failure to appear before the court. One of the hearings, on 20 December 1999, was adjourned as none of these persons attended. 20. In July-September 2000 the courts considered the applicant’s request to have her case examined on the merits by the panel of judges of the Odessa Regional Court of Appeal. This request was ultimately granted and the case transferred back to the Odessa Regional Court of Appeal which took it over on 20 September 2000. 21. Between 27 September and 21 November 2001 four hearings were adjourned due to the ONC representative’s failure to appear before the court or upon his requests. Four hearings held between 27 March and 13 May 2002 were adjourned due to the applicant’s failure to attend them. According to the applicant, she had not been duly summoned by the court and therefore those delays were not her fault. 22. On 29 May 2002 the Odessa Regional Court of Appeal found that the premises at issue were not habitable and were for administrative use only. It went on to say that these premises had been provided to the applicant on a temporary basis conditional upon her employment with the ONC and that the applicant was no longer working at the ONC. Accordingly, the court rejected the applicant’s claim and ordered the eviction of her family. 23. Of the twenty-four hearings held between July 2000 and 29 May 2002 two were adjourned due to the applicant’s and two due to the ONC representative’s failure to appear before the court, in addition to those mentioned before (see paragraph 21). Four hearings were cancelled because the judge in charge was either travelling on business or ill. 24. On 13 March 2003 the Supreme Court of Ukraine upheld the judgment. 25. Apparently, the judgment of 29 May 2002 has still not been enforced. | 1 |
train | 001-69774 | ENG | TUR | CHAMBER | 2,005 | CASE OF PEMBE AND OTHERS v. TURKEY | 4 | Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial awards;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | null | 4. The applicants were born in 1945, 1935, 1948 and 1938 respectively and live in İskenderun and Belen respectively. 5. In 1993 the applicants' plots of land in İskenderun were expropriated by the General Directorate of National Roads and Highways. A committee of experts assessed the value of these lands and the determined amounts were paid to them when the expropriation took place. 6. On 20 August, 10 October and 21 November 1996 respectively, the applicants filed separate actions for compensation with the İskenderun Civil Court of First Instance. 7. On 19 September 1997 the first-instance court ordered the administration to pay Mıstık Ateş 41,410,845,000 Turkish liras (TRL) plus interest at the statutory rate, running from 7 August 1996, the date on which the ownership of the property was transferred to the National Water Board. 8. On 25 September 1997 the first-instance court ordered the administration to pay Gülizar Pembe TRL 6,467,500,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board. 9. On the same day, the first-instance court ordered the administration to pay Yüksel Bozkaya TRL 80,274,368,000 plus interest at the statutory rate, running from 23 October 1996, the date on which the ownership of the property was transferred to the National Water Board. 10. On 7 October 1997 the first-instance court ordered the administration to pay İsmail Karapınar TRL 13,075,000,000 plus interest at the statutory rate, running from 11 September 1996, the date on which the ownership of the property was transferred to the National Water Board. 11. The Court of Cassation upheld the above-mentioned judgments of the İskenderun First Instance Court on 11 May, 20 May and 25 May 1998 respectively. 12. On 8 April, 13 April, 12 May and 4 June 1999 respectively, the administration paid the applicants the amounts due together with interest. 13. The relevant domestic law and practice are outlined in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, §§ 17-25), and Akkuş v. Turkey judgment of 9 July 1997 (Reports 1997IV, §§ 13-16). | 0 |
train | 001-76465 | ENG | HRV | CHAMBER | 2,006 | CASE OF VAJAGIC v. CROATIA | 3 | Violation of P1-1;Not necessary to examine length complaint under Art. 6;Violation of Art. 13;Remainder inadmissible;Just satisfaction reserved | Christos Rozakis | 4. The applicants were born in 1937 and 1942, respectively, and live in Virovitica. 5. In 1976 the local authorities expropriated the applicants’ property with a view to building a road. The property consisted of 622 square metres of land with a house, shed, garage, toilet, well and fence. 6. The proceedings concerning compensation for that property were pending before the competent judicial authority since 1977. Due to a change in legislation, in 1994 the case was transferred to the administrative authorities. 7. On 1 December 1995 the Property Affairs Office of the Town of Virovitica (Ured za imovinsko-pravne poslove; “the Virovitica Office”) acting as the first-instance authority granted the applicants compensation for their property in the amount of 158,049 Croatian kunas (HRK), including interests payable as of the date of the decision. On appeal, on 10 December 1996 the Ministry of Justice (Ministarstvo pravosuđa; “the Ministry”) quashed that decision and remitted the case. 8. On 5 May 1997 the Virovitica Office gave a new decision awarding the applicants compensation in the amount of HRK 184,763 with interests payable as of the date on which the decision on expropriation became final. 9. The Town of Virovitica filed an appeal against that decision, which the Virovitica Office declared inadmissible on 10 June 1997 because it had been submitted outside the statutory time-limit. However, on 2 July 1997 the Office admitted the appeal and reinstated the case. Subsequently, on 14 April 1998 the Ministry reversed the first-instance decision, determining a lower amount of compensation payable to the applicants. Both parties filed administrative actions against that decision. 10. On 13 October 1999 the Administrative Court (Upravni sud Republike Hrvatske) quashed the Ministry’s decision of 14 April 1998 and remitted the case. Consequently, on 12 March 2000 the Ministry quashed the first-instance decision of 5 May 1997 and remitted the case to the first administrative instance. It found that the amount of compensation was to be calculated in line with the current market prices of the expropriated property. 11. In the resumed proceedings, the Virovitica Office obtained an expert opinion assessing the value of the property and held a hearing. On 20 November 2000 the Virovitica Office gave a new decision determining the amount of compensation payable to HRK 197,097. On 12 March 2001 the Ministry again quashed that decision and remitted the case, ordering the first-instance authority to obtain an additional expert opinion on the value of the property. 12. The Virovitica Office accordingly obtained a new expert opinion and held another hearing. On 9 October 2001 it gave a new decision, awarding the applicants HRK 209,352 in view of compensation. On 15 October 2002 the Ministry quashed that decision, finding that the first-instance authority failed to determine the correct amount of compensation. 13. On 11 March 2004 the Virovitica Office gave a new decision awarding the applicants HRK 209,107. The applicants appealed and on 11 November 2004 the Ministry quashed that decision yet another time and remitted the case. The proceedings are still pending before the first-instance authority. 14. Meanwhile, on 22 April 2002 the applicants filed a motion for review of constitutionality (prijedlog za ocjenu ustavnosti) of certain provisions of the 1994 Expropriation Act. It appears that the Constitutional Court (Ustavni sud Republike Hrvatske) has not yet adopted a decision on their motion. 15. Section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske) as amended on 15 March 2002, Official Gazette nos. 29/2002 of 22 March 2002 and. 49/2002 (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.” 16. 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 25 and 26 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third action in the Administrative Court and the lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days. 17. The 1957 Expropriation Act (Zakon o ekproprijaciji, Official Gazette of SFRY no. 12/1957), which was a federal law of the former Yugoslavia, provided that a hearing should be held with a view to determining the amount of compensation only after the property had already been expropriated. The 1978 Expropriation Act (Zakon o ekproprijaciji, Official Gazette no. 30/1978), which was a law of Croatia as a federal unit within the former Yugoslavia, contained provisions on just satisfaction for expropriated property. The 1994 Expropriation Act (Zakon o izvlaštenju, Official Gazette nos. 9/94, 35/94 and 114/01), adopted after Croatia’s independence, provides that the decision on compensation should be given at the same time the actual expropriation takes place. Sections 8 and 33 provide that compensation for expropriated property should equal the market value of that property at the time of the issuance of the first-instance decision in the expropriation proceedings. | 1 |
train | 001-57675 | ENG | FRA | CHAMBER | 1,991 | CASE OF EZELIN v. FRANCE | 2 | Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | R. Pekkanen | 9. Mr Roland Ezelin is a French national who lives at Basse-Terre (Guadeloupe). He practises as a lawyer (avocat). 10. On 12 February 1983 a number of Guadeloupe independence movements and trade unions held a public demonstration at Basse-Terre to protest against two court decisions whereby prison sentences and fines were imposed on three militants for criminal damage to public buildings. The applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, took part and carried a placard. 11. The Chief Superintendent of the Basse-Terre police drew up a report on the very same day and sent it to the local public prosecutor. The report, which had eleven appendices, gave the following account: "While at the station, I was informed in a radio message that the demonstration being held today by various independence movements in the Champ d’Arbaud, Basse-Terre, from 9 a.m. onwards, whose progress we were monitoring, had taken the form of a procession in town. Demonstrators had set off at 10.30 a.m. and were marching through the streets of the town chanting slogans hostile to the police and the judiciary. During the procession graffiti were daubed in paint on various buildings, in particular the Institut d’émission d’Outre-mer, known as the ‘Central Treasury’. The group of 450-500 people which had left the Champ d’Arbaud had joined another group of 500 people, at the rue Schoelcher, forming a compact group of about a thousand people headed by the leaders, who announced over loudspeakers the slogans to be chanted. The following were recognised among these leaders: Roland Thesauros (University of West Indies-Guiana); Luc Reinette, leader of the MPGI (Popular Movement for an Independent Guadeloupe), a former member of the GLA, who came out of prison after 10 May 1981; Max Safrano, presumed head of the ALN (National Liberation Army), against whom criminal charges had been brought and who had been released from Basse-Terre Prison the previous day; Fernand Curier of the UTS/UGTG Trade Union, recently (1 February 1983) sentenced by the Basse-Terre Court of Appeal to 15 days’ imprisonment and a fine of 10,000 francs; the sister of Joseph Samson, another person given the same sentence on 7 February 1983 by the Basse-Terre Criminal Court; Rosan Mounien, another member of the UTA/UGTG Trade Union;Marc-Antoine, convicted by the Basse-Terre Court of Appealon 7 September 1983 along with Alexander, ... and others,known to be particularly fanatical and determinedextremists, including one Rupaire, etc ... This processionwas now in the Cours Nolivos and was entering the rue de laRépublique and would soon be arriving in front of the policestation. At this point I reported what was happening to the Chief Constable (call-sign ‘Polaire’), who was at the Law Courts with two squads of riot police which we had agreed to deploy at the bottom of the boulevard Félix-Eboué in order to bar access to the Law Courts and prevent any damage to the building and to the département council building. At ten past eleven the demonstrators reached the police station and assembled in front of it. While I made the necessary arrangements for countering any attack on the building, the demonstrators took up their position in front of the police station and were addressed by two leaders from outside the district who were unknown to the police officers present. The speakers, who spoke in Creole, urged the police officers to move up and join them. There followed a violent tirade against Police Officer Beaugendre, who was accused of betrayal, after which the crowd of demonstrators rhythmically chanted ‘BEAUGENDRE-MAKO! UN JOU OU KE PAYE’ (One day you will pay). The following were identified among the demonstrators: Roland Thesauros, Luc Reinette, Max Safrano, Fernand Curier, Rosan Mounien, Rupaire, Marc-Antoine, Samson’s family (see report no. 1) and Dr Corentin (see report no. 7) and Mr Ezelin, a barrister; the two last-mentioned displayed a banner with the words ‘LAWYERS - DOCTORS’ (see report no. 7). The majority of demonstrators, however, including the most worked up and the most aggressive ones, were people from outside Basse-Terre, most of them from Grande-Terre island, it seemed, and consequently unknown to the police. The demonstrators left the police station at about 11.30 a.m. and headed in the direction of the Law Courts and the council building. My Chief Constable, who was continuously kept informed of events, then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed, with the aim of preventing the demonstrators from approaching the two danger spots, the Law Courts and the council building - because the demonstrators’ numerical superiority was too great. The procession then went along the boulevard Félix-Eboué and eventually reached the Champ d’Arbaud, where it dispersed after having made two lengthy halts during which further speeches were made and slogans chanted by the crowd, firstly in front of the Law Courts in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants. After the demonstrators had gone past, it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green, red and black on the walls of the administrative buildings. The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings. According to information received, most of the graffiti were the work of girls who were not from Basse-Terre, no doubt to avoid recognition as far as possible. One of them was claimed to be a teacher from Pointe-à-Pitre, but this could not be positively established. The intelligence service (Renseignements généraux) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from Pointe-à-Pitre. They did not know their identities. I am accordingly sending you this report as it stands at present. The case is receiving my officers’ full attention, however. Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed." 12. A judicial investigation was commenced on 21 February 1983 into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary. 13. On 24 February, the Principal Public Prosecutor at the Basse-Terre Court of Appeal wrote to the Chairman of the Guadeloupe Bar as follows: "Please find enclosed a photocopy of a police report of 21 February 1983 from which it appears that Mr Ezelin, of the Guadeloupe Bar, took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code." [See paragraph 23 below.] "Would you kindly let me have your opinion of this case after hearing your colleague’s explanations." 14. In a letter of 14 March 1983 the Chairman of the Bar informed the Principal Public Prosecutor of the outcome of his investigations, as follows: "... Mr R. Ezelin [had] not [been] carrying a banner with another person but [had been] carrying a placard on his own which bore the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’. No act, gesture or words insulting to the judiciary [could] be attributed to him. His participation in a demonstration [had] therefore [been] confined to protesting at the use of the ‘Security and Freedom’ Act. ... ." And he concluded: "This being so, having regard to: (a) the facts: even assuming the worst as regards Mr Ezelin, the report by [the] Chief Superintendent ... does not accuse him of any insulting gesture, act or words; and (b) the provisions of Article 226 of the Criminal Code, it does not seem to me that my colleague Mr Ezelin can have incurred any liability in exercising his right to join a demonstration which had not been prohibited, carrying a placard with the words ‘Trade Union of the Guadeloupe Bar against the Security and Freedom Act’. ... ." 15. After a postponement, the applicant was summoned to appear before the investigating judge on 25 April 1983 in order to give evidence as a witness, and at the interview he stated that he had nothing to say on the matter. 16. On 19 May 1983 the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration. 17. On 1 June 1983 the Principal Public Prosecutor sent the Chairman of the Bar a complaint against the applicant, which read as follows: "Further to my letter of 24 February 1983 and our conversation of 31 May last, I wish to bring to your attention, under Article 113 of the Decree of 9 June 1972," - see paragraph 25 below - "the conduct of Mr Ezelin, whose name appears on the roll of the members of the Guadeloupe Bar. In my earlier letter I sent you a photocopy of a police report of 21 February 1983 which gave an account of Mr Ezelin’s participation in a demonstration at Basse-Terre on 12 February 1983. The aim of the demonstration was to protest against two court decisions, the first of which was given on 1 February 1983 by the Basse-Terre Court of Appeal against Fernand Curier and the other of which was given on 7 February 1983 by the Basse-Terre tribunal de grande instance against Gérard Quidal and Joseph Samson, who were charged with offences of criminal damage to public buildings. During the demonstration, a number of particularly offensive graffiti were daubed in paint on the walls of the Law Courts calling one of the judges who had taken part in one of the decisions a fascist and calling all the judges ‘MAKO’ [pimps]. The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events. The Basse-Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings, insulting the judiciary and aiding and abetting. All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or, at the very least, that they did not know who the people responsible were. Only Roland Ezelin refused to answer the questions. As the proceedings ended with a discharge order, I am sending you attached a photocopy of the record of his examination as a witness, the date of which had been delayed for more than a month in order to suit his convenience. This attitude therefore strengthens, in my opinion, the view that Mr Ezelin, who was acquainted with the purpose of the demonstration (cf. photocopies of the leaflets distributed during it), wanted, by taking part in it, to associate himself in exemplary fashion with a political organisation’s criticisms of the judiciary in Guadeloupe and that, at all events, neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister. His refusal to reply to the investigating judge as a witness displays, moreover, an attitude of contempt for justice. In these circumstances I consider that there has been in this case a breach under Article 106 of the Decree of 9 June 1972" - see paragraph 25 below - "and I accordingly would ask you to kindly bring disciplinary proceedings against Mr Ezelin before the Bar Council. ... ." 18. At a disciplinary hearing held under Article 104 of Decree no. 72-468 of 9 June 1972 (see paragraph 25 below), the Bar Council adopted the following decision on 25 July 1983: "... At the request of the Principal Public Prosecutor, the Chairman of the Bar has already given an opinion dated 14 March 1983 as to the first series of charges against Mr Ezelin. It appears both from that opinion and from further explanations obtained from Mr Ezelin that he took part in the relevant demonstration in response to a call by the Trade Union of the Guadeloupe Bar, of which he is one of the leaders, in order to protest against the use of the direct-committal procedure" - obviating the need for a preliminary judicial investigation - "and the continuation in force of the so-called Security and Freedom Act, which has since been repealed. It does not appear from the judicial investigation that Mr Ezelin committed a breach of Article 106 of the Decree of 9 June 1972 in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him. The inquiries made into these events have, moreover, been brought to an end with a discharge order that has now become final. As regards the second series of charges against Mr Ezelin, it appears both from the judicial investigation and from Mr Ezelin’s explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on Article 105 of the Code of Criminal Procedure" - see paragraph 24 below - "and a concern to comply with Article 89 of the Decree of 9 June 1972," - see paragraph 25 below - "as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer. It is true, as Mr Ezelin maintained, that in a letter of 24 February 1983 the Principal Public Prosecutor informed the Chairman of the Bar that Mr Ezelin ‘[had taken] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code’. Mr Ezelin, having been informed of this charge, was thus justified in relying on the provisions of Article 105 of the Code of Criminal Procedure. While it may seem regrettable that Mr Ezelin did not make clearer to the judge his reasons for refusing to make a statement, it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary. Moreover, if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question, the investigating judge would not have failed to avail himself of the provisions of Article 109 of the Code of Criminal Procedure" - see paragraph 24 below - "nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which Mr Ezelin had been summoned as a witness. Consequently, having regard to the evidence, to Mr Ezelin’s explanations and to his usual excellent professional conduct, the board considers that there is no occasion to impose any disciplinary sanction on Mr Ezelin, For these reasons, The Bar Council, acting in its disciplinary capacity and at first instance, Decides 1. There is no occasion to impose any disciplinary sanction on Mr Roland Ezelin on account of the matters of which it was seised by the Principal Public Prosecutor on 1 June 1983. 2. The board recommends the Chairman of the Bar to remind both Mr Ezelin and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved. ... ." 19. The Principal Public Prosecutor appealed to the Basse-Terre Court of Appeal against this decision. At the hearing he asked the Court to impose on the applicant the disciplinary penalty of a warning. 20. On 12 December 1983 the Court of Appeal reversed the Bar Council’s decision and imposed the disciplinary penalty of a reprimand on Mr Ezelin, a heavier penalty than a warning: "... It is established that on 12 February 1983 Mr Ezelin took part in a demonstration in the streets of Basse-Terre. The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration, which was organised by the independence movements in the département, was to protest noisily against the recent sentences of three militants to 15 days’ imprisonment and a FRF 10,000 fine for damage to administrative buildings." [There followed a summary of the report reproduced in paragraph 11 above.] "It is not alleged that Mr Ezelin took part in this demonstration any more actively than by his constant presence and by carrying a placard. Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings, insulting the judiciary and aiding and abetting. Mr Ezelin was summoned as a witness by the investigating judge, together with a number of other persons recognised by the police officers. After he had taken the oath, his examination is recorded as follows: ‘You explain to me the circumstances of the events which have given rise to this case. I have nothing to say on the matter. After an intervention: I repeat that I have nothing to say on the matter. Question: Were you present at the demonstration which took place on 12 February last in the streets of Basse-Terre? If so, did you see anybody painting anything on the walls of various buildings in the town? Answer: I have nothing to say on the matter. Read, confirmed and signed together with me and the registrar.’ It appears from the foregoing that Mr Ezelin, avocat at the Court of Appeal and member of the Bar Council, participated in the whole of the demonstration which took place in the aforementioned, undisputed circumstances. During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons, including a judge of the Court of Appeal, a well-known regional figure and the judiciary as a whole, and the walls of the Law Courts and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons. It is beyond doubt that Mr Ezelin, who formed part of the procession, notably when it halted in front of the police station, the Law Courts and the prison, could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of the Law Courts - the place of work of judges and barristers alike - and of the council building, and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people. He was there in his capacity as an avocat, since he carried a placard announcing his profession, and at no time did he dissociate himself from the demonstrators’ offensive and insulting acts or leave the procession. Such misconduct on the part of a member of the Bar publicly proclaiming his profession cannot be justified - as has been submitted on his behalf - by personal beliefs or trade-union instructions, and it amounts to a breach of discretion under Article 106 of the Decree of 9 June 1972. Furthermore, Mr Ezelin, when examined as a witness by the investigating judge, refused to give evidence about matters of which he had knowledge, without giving any reason. He thus contravened the provisions of Article 109, third paragraph, of the Code of Criminal Procedure, which are binding on all citizens and of whose requirements he could not, as a lawyer, be unaware. Seeing that Mr Ezelin contravened a statutory provision and showed a lack of discretion, he rendered himself liable to the disciplinary sanctions listed in Article 107 of the Decree of 9 June 1972." [See paragraph 25 below.] "Having regard to the unanimously favourable opinion of his professional conduct, the Court considers that the penalty should be a reprimand. For these reasons, Having regard to sections 22 et seq. of Act no. 71-1130 of 31 December 1971 and Articles 104 et seq. of Decree no. 72-468, Sitting in public as a full court, Sets aside the decision taken on 25 July 1983 by the Council of the Bar of the département of Guadeloupe at the Basse-Terre Court of Appeal, sitting as a disciplinary board, Sentences Mr Ezelin, of that Bar, to the disciplinary penalty of a reprimand; and Awards costs against him. ... ." (Gazette du Palais, 9 February 1984, jurisprudence, pp. 76-77) 21. The applicant appealed on points of law. He argued in particular that the disciplinary sanction imposed on him infringed Articles 10 and 11 (art. 10, art. 11) of the Convention. On 19 June 1985 the Court of Cassation (First Civil Division) delivered a judgment dismissing the appeal. It said, inter alia: "... The Court of Appeal ... did not hold [Mr Ezelin] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration, whose purpose was to protest noisily against recent criminal sentences, insults had been uttered and offensive graffiti daubed on all the walls of the Law Courts, directed against the judiciary as a whole and against a judge of the Court of Appeal by name and a well-known figure in the département who practised as a barrister. The Court of Appeal added that Mr Ezelin, who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of the Law Courts, the place of work of judges and barristers alike, did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts. It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence. ... ... ... Article 109 of the Code of Criminal Procedure lays a duty on any person heard as a witness to give evidence; and by Article 106 of the Decree of 9 June 1972, any infringement of statutes or regulations constitutes a disciplinary offence, irrespective of the investigating judge’s power to fine a witness who refuses to give evidence. The Court of Appeal found that in reply to the questions put by the investigating judge, and in particular the question: ‘Were you present at the demonstration in the streets of Basse-Terre on 12 February 1983?’, Mr Ezelin said merely: ‘I have nothing to say on the matter’. It added that Mr Ezelin gave no reason to explain this attitude. It was entitled to infer from this that Mr Ezelin, who had thus refused to give evidence without justifying his refusal on the basis of Article 105 of the Code of Criminal Procedure or of professional confidentiality, had committed a breach of the law and of discretion vis-à-vis the investigating judge and that these amounted to a disciplinary offence. The Court of Appeal thus justified its decision in law, and none of the limbs of the ground of appeal is well-founded ... ." (Gazette du Palais, 11-12 October 1985, pp. 16 and 17) 22. The following provisions of French law need to be set out: 23. "Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties." 24. "An investigating judge in charge of an investigation and judges and senior police officers (officiers de police judiciaire) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt." "Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality]. If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions. The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence. ... ." 25. "An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation." "The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats." "Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107." "The disciplinary penalties shall be: A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status. A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years. The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar’s premises." "The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council. If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter. ... ." 26. Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982: "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner." Before that Act came into force, the oath was worded as follows: "I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order." (Article 23 of the Decree of 9 June 1972) An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form. 27. In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat’s oath "also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...". (Juris-Classeur périodique 1964, II, no. 13797, note by J.A.) Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge. | 1 |
train | 001-90962 | ENG | POL | ADMISSIBILITY | 2,008 | HEUER v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Franz Heuer, is a German national who was born in 1941 and lives in Neu Isenburg. He was represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems. A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5, ECHR 2008-...). The applicant submits that he is an heir of Rudolf Graf von Ingenheim, who was the owner of an impressive art collection. According to the applicant, Mr von Ingenheim was killed by the Nazis in a mental hospital in 1943. At the end of the Second World War the paintings belonging to the Ingenheim collection were stored in different places which are now within the Polish territory. They were confiscated by the Polish State under the Decree of 8 March 1946 on Abandoned or Post-German Property (dekret o majątkach opuszczonych i poniemieckich – “the March 1946 Decree”) as property belonging to Germans. At present the paintings are exhibited in various museums in Poland. The most important part of the Ingenheim collection included the following paintings: 1) Alessandro Allori, Portrait of Francesco I de Medici. On 24 November 1944 the painting was taken to the Palace in Kuhna (at present Kunów in Poland). In 1946 the painting was transferred to the National Art Museum at the Wawel Royal Castle. 2) Sandro Botticelli, The Virgin with Child, St. John the Baptist and an Angel. In 1940 the painting was on loan to the Silesian Museum of Fine Arts in Breslau (at present Wrocław). On 2 June 1942 it was taken to Kamenz (at present Kamieniec Ząbkowicki). After the war the Polish authorities confiscated it under the March 1946 Decree. It was taken to the Warsaw National Museum. 3) Giovanni Filippo Criscuolo, Madonna with Child, Angels and Saints. Before the war the painting was in the Silesian Museum of Fine Arts in Breslau. In 1946 it was confiscated and taken to the Warsaw National Museum. 4) Fra Diamante, The Adoration of the Child and Crucifixion. On 2 June 1942 the painting was transferred to Kamenz. The Polish authorities confiscated it under the March 1946 Decree and took it to the Warsaw National Museum. 5) Josef Anton Koch, The Grindelwald Glacier in the Alps. The painting was on loan to the Silesian Museum of Fine Arts in Breslau. In 1942 it was transported to Kamenz. After the war the Polish authorities confiscated the painting and took it to Warsaw. In 1973 the painting was transferred to the National Museum in Wrocław. 6) Lorenzo Lippi, Archangel Raphael and Tobias. The painting was loaned out to the Silesian Museum of Fine Arts in Breslau. The Polish authorities confiscated it and took it to the Warsaw National Museum. At present the painting is stored in the National Museum in Wrocław. 7) Sebastiano del Piombo, The Scourging of Christ at the Pillar. The painting was on loan to the Silesian Museum of Fine Arts in Breslau. Since 1945 it has been exhibited in the National Museum in Wrocław. 8) Giovani Santi, Lamentation. The painting was loaned out to the Silesian Museum of Fine Arts in Breslau. Since 1945 it has been exhibited in the National Museum in Wrocław. 9) Portrait of a Family made by a Lombard painter in the 15th century. Before the war the painting was being restored in the Silesian Museum of Fine Arts in Breslau. After the war the Polish authorities confiscated it. It was taken to the Warsaw National Museum in 1946. 10) Della Vecchia, Portrait of a Doge. During the war the painting was stored in Kuhna Palace. After the war it was confiscated by the Polish authorities. In 1946 it was taken to the National Art Museum at the Wawel Royal Castle. Details concerning the former place of storage of other paintings are unknown. They were, however, recorded at the National Museum in Breslau as belonging to the former Ingenheim collection and are still there. The applicant submits that he did not apply for restitution since under Polish law there is no possibility of challenging the validity and lawfulness of the confiscation and expropriation. A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41). | 0 |
train | 001-70499 | ENG | CZE | ADMISSIBILITY | 2,005 | CBC-UNION, S. R. O. v. THE CZECH REPUBLIC | 4 | Inadmissible | null | The applicant, CBC-Union, s.r.o., is a private company with its headquarters in Karlovy Vary. It is represented before the Court by Mr Jiří Kozák, a lawyer practising in Liberec. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 May 1993 the applicant company acquired a building under construction from the Town of Teplice (Město Teplice) at an auction. The original lawful asking price, CZK 22,540,000 (EUR 751,333), was not reached and the bidding finally stopped at 1,409,000 (EUR 46,967). On 1 July 1993 the applicant company concluded a purchase contract whereby the purchase price was fixed at CZK 1,409,000. On 23 February 1994 the Finance Office issued a tax order against the applicant company ordering it to pay a gift tax of CZK 3,877,548 (EUR 129,252), the base of assessment being fixed at CZK 21,134,100 (EUR 704,470) by virtue of the Taxation Act. On 10 March 1994 the Finance Office, in reply to the applicant company’s letter of 7 March 1994, explained that the basis of the taxation had been the difference between the asking price and the final bid. On 19 December 1996, on the applicant company’s appeal, the Ústí nad Labem Finance Directorate (Finanční ředitelství) reduced the tax due to CZK 1,087,876 (EUR 36,263), taking into account a new expert assessment made of the taxation basis (CZK 8,488,200 (EUR 282,940)). On 10 February 1999 the Ústí nad Labem Regional Court (krajský soud) dismissed the applicant’s action against the tax order finding, in particular: “The transfer of the estate was effected in 1993, when [the Taxation Act], as amended by Act no. 18/1993, was in force. If the real estate was transferred for a lower price than that established by the expert ... the tax liability is shared between the assignor and assignee. Under section 10 the real estate-transfer tax base is the price of the estate legally established on the date of the acquisition of the whole real estate, or part of it if the transfer was effected partly free of charge. Gift tax under section 6(1) of the [Taxation] Act was payable on real estates acquired by an act in law other than the death of an owner, provided that the act in law was effected fully or partly free of charge. ... Under section 7(1) of [the Taxation Act], the base of the gift tax was the price of the estate minus the price which was paid if the act in law was effected partly free of charge. The [Taxation] Act did not take into account the current value of the estate and only considered the legally established price. The first-instance authority’s error in establishing the price and tax base was rectified by the [Finance Directorate] ... which requested that a new expert report be submitted on the price of the property at the date of its acquisition; it informed [the applicant company] about the findings of the expert, and discussed [the applicant company’s] comments with the expert, who issued another report, which was not challenged by [the applicant company].” On 10 April 1999 the applicant company lodged a constitutional appeal (ústavní stížnost) alleging, inter alia, a violation of Article 11 § 5 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). On 3 August 2000 the Constitutional Court (Ústavní soud) dismissed the applicant company’s constitutional appeal, endorsing the reasons on which the lower administrative and judicial authorities had based their decisions. Under section 5, persons liable to gift tax were those who had acquired property. Section 6(1)(a) provided that gift tax was payable on estates acquired by an act in law other than the death of an owner, provided that the act in law was effected fully or partly free of charge. Under section 7(1)(c), the gift tax basis was the price of the taxable property minus the price paid if the property was acquired partly free of charge. Section 8(1)(a) provided that persons liable to pay real estate-transfer tax were those who had assigned estates. Under section 9(1) real estate-transfer tax was payable on transfers of property rights to estates provided that the transfers were carried out fully or partly in return for payment. Section 10 provided that the real estate-transfer tax base was the price of the estate established under the relevant legal provisions on the day of its acquisition. “Real estate-transfer tax is assessed as a percentage of the price established in accordance with the law ... Parties to a purchase contract may, with reference to the Civil Code and Decree no. 393/91, ... agree on a higher price or ... a lower price. However, tax is based on the price calculated under Decree no. 393/1991, as amended. The purchase price or price agreed between the parties is not decisive ...” Under section 5 persons liable to gift tax are those who received estates. Section 6(1)(a) provides that gift tax is payable on estates acquired free of charge by an act in law other than the death of an owner. If the assignee acquired the estate partly free of charge, only the relevant part of the estate was taxable. Under section 7(1)(c) the gift tax base was the price of the taxable estate. Section 8(1)(a) provided that persons liable to pay real estate-transfer tax are those who have assigned or sold estates. Under section 9(1) real estate-transfer tax is payable on the transfer of an estate carried out in return for payment. Section 10 provides that the real estate-transfer tax base was the price established under the relevant legal provisions on the day of the acquisition of the estate, even if the price agreed between the parties is lower than the legally established price; the difference is not taxable under the provisions on gift tax. If the price agreed is higher than the legally established price, the price agreed constitutes the tax base. Under Article 11 § 5 taxes and fees may be levied only on the basis of law. Principle no. 5 “Gift tax was payable on movable and immovable items, debts, securities and other property rights acquired by an act in law other than the death of a citizen, provided that the act in law was effected fully or partly free of charge. ...” Principle no. 6 “The gift tax basis was the price of the acquired property ...” Principle no. 9 “The real estate-transfer tax base is the price of the property. If the payment is lower than the price established under special regulations, the transfer is considered to be carried out up to the amount of the payment in return for payment, and the transfer corresponding to the difference between the payment and the price established under the special regulation as the transfer free of charge, which is subjected to the gift tax.” Section 10 concerning the tax base provided that the real estate-transfer tax base is the price agreed, at least the price established under special regulations. In cases relating to facts which had occurred prior to the amendment of the Taxation Act, which entered into force on 1 January 1994, the domestic courts generally held that real estate-transfer tax had to be paid on transfers of real estates, which were carried out in return for payment. The courts considered that if the purchase price was lower than the legally established price, the estate was transferred partly free of charge. The difference between the prices constituted the gift tax base. In 1996 certain appellate courts expressed a different legal view. | 0 |
train | 001-5341 | ENG | POL | ADMISSIBILITY | 2,000 | A.K. and T.K. v. POLAND | 4 | Inadmissible | Georg Ress | The applicants are Polish nationals, born in 1950 and 1946 respectively. They are a married couple and live in Olsztyn, Poland. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 May 1988 the applicants bought for cash 3 shares in a joint stock company (spółka akcyjna) “C”. On 23 May 1989 the shareholders of the company decided that the share capital would be increased to 25,000,000 million old zlotys (PLZ) and approved a private placement of a new issue of shares. On 30 November 1989 the applicants signed before a notary a deed in which they agreed to acquire 500 shares in the “C” company in exchange for a contribution in kind. Their contribution consisted of an industrial estate situated in the Barczewo county. On the same date the company was registered as the owner of the property in the Olsztyn District Court real property register (Sąd Rejonowy Wydział Ksiąg Wieczystych). On 15 June 1990 the second applicant joined the company management board. Subsequently, he became unhappy with certain decisions of other company directors. As a result, on 6 April 1992 the applicants requested the company that their contribution in kind be returned to them. On 28 May 1992 the Olsztyn District Court allowed the company’s request and registered in the commercial register an increase in the share capital to PLZ 25,000,000. On 29 May 1992 the shareholders of the company adopted a resolution obliging the management board to conclude an agreement under which the property contributed by the applicants would be transferred back to them and they would return the company shares. At the same time, the shareholders approved the second applicant’s resignation from the board. Subsequently, the applicants requested the prosecution service to initiate criminal proceedings against certain members of the management board. In addition, they were involved in court proceedings concerning the property record in a real property register and bankruptcy proceedings relating to the “C” company. On 16 June 1993 the applicants lodged with the Olsztyn District Court an application under Section 21 of the Commercial Code. They requested the court to strike out two entries in the commercial register concerning the “C” company. The first contested entry stated that the share capital of the company amounted to PLZ 25,000,000. The second entry confirmed changes in the company by-laws. The applicants claimed that the entries had been based on untrue statements and inaccurate information and had been inadmissible in law. On 8 February 1994 the court held a hearing and took evidence from the parties. On 23 January 1995 the applicants complained to the Supreme Court (Sąd Najwyższy) about the inactivity of the Olsztyn District Court. They claimed that the proceedings in their case disclosed unreasonable delay even though their request could have been decided at the first hearing. On 24 February 1995 the Supreme Court notified the President of the Olsztyn District Court that the above complaint had been lodged and instructed the court of first instance to take further action in respect of it. On 23 March 1995 the Olsztyn District Court held a hearing during which it allowed the applicants' request of 16 June 1993. In particular, the court struck out two entries in the commercial register concerning an increase of the share capital and amendments of the by-laws. The court also ordered the management board that the amendments to the company by-laws be made to ensure their compliance with domestic legislation. In addition, it instructed the board to take several other measures required by the Commercial Code in relation to the increase in the share capital. B. Relevant domestic law The 1934 Commercial Code provides that a joint-stock company should be registered in the District Court commercial register. The Register contains records concerning inter alia a company name, registered office, business, officers, share capital, number of shares and contributions. A company is required to notify within 2 weeks any changes in the records. Section 21 of the Commercial Code, insofar as relevant, provides: "1. (...) where an application is made to rectify or strike an entry out of the commercial register on the grounds that it is unjustified, the court may order that a warning (wzmianka) [about the application] be made in the register. (…)” | 0 |
train | 001-4917 | ENG | TUR | ADMISSIBILITY | 1,999 | S.T. v. TURKEY | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Turkish national, born in 1971 and living in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a member of the Diyarbakır Bar and practises as a lawyer in Diyarbakır. On 18 January 1993 the applicant was arrested and taken to the Diyarbakır Security Directorate for interrogation. He was detained for a period of seven days before appearing before the State Prosecutor. On 25 January 1993 the prosecutor charged the applicant with being a member of an armed gang, the PKK (Article 169 of the Turkish Penal Code), and applied for him to be detained on remand. The applicant was also accused of participating in the activities of the PKK, forming committees on its behalf, trying to recruit new militants for their mountain guerrilla teams and possessing illegal documents and two guns. On the same day the applicant was detained on remand. At a hearing on 15 March 1993 before the Diyarbakır State Security Court, the applicant denied all the charges and claimed that he was forced to sign a confession statement prepared by the police while being blindfolded. He maintained that he was not a member of PKK. He stated that one of the guns in question belonged to his father who held a licence for it and that the other was unlicensed and belonged to him. He also submitted that it was not he but his brother who tried to recruit new militants for the PKK’s mountain guerrilla teams and possessed the illegal documents on behalf of the armed gang at their house. He stated that after his brother’s death, he still kept these illegal documents on account of his fear of the gang and his brother’s warnings that these documents should be delivered to the gang in the future. On 19 April 1993 the Diyarbakır State Security Court released the applicant on bail. In a judgment dated 31 December 1993, the court found the applicant guilty of an offence under Article 169 of the Turkish Criminal Code. It sentenced the applicant to three years’ and nine months imprisonment. It also decided to prohibit him from entering the public service for three years. The court held that although the applicant had denied all the accusations, he had confirmed before the court that he was in possession of documents in order to deliver them to the gang sometime in the future. The court considered this acknowledgement as evidence of the applicant’s aim of becoming a member of the armed gang. The applicant appealed against this judgment. He reiterated the defence which he had made before the State Security Court. On 26 October 1994 the Court of Cassation upheld the decision of the lower court. | 0 |
train | 001-23857 | ENG | AUT | ADMISSIBILITY | 2,004 | ROZSA v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Stefan Rozsa, is a German national who was born in 1945 and lives in St. Augustin. He was represented before the Court by Mr F. Kloevekorn, a lawyer practising in Bonn. The respondent Government were represented by their agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 February 1996 the applicant crossed the border between Hungary and Austria. A considerable amount of cigarettes which he had failed to declare to the customs authorities were found in his car. The cigarettes were seized and criminal proceedings were opened against him. According to the Government, the applicant, when he was apprehended, was cautioned in writing that he could request a hearing of his case by a trial board (Spruchsenat). In case of simplified proceedings the request would have to be made in the objection against the provisional penal order (Strafverfügung), in other cases it could be made at any time before the start of the oral hearing. On 13 March 1996 a provisional penal order was issued, finding the applicant guilty of attempted smuggling and attempted breach of the State's tobacco monopoly and imposing a fine on him. The order contained information stating that the applicant could file an objection against it and that he could request the further proceedings including the hearing to be held by a trial board. The applicant lodged an objection (Einspruch). He did not request that his case be heard by a trial board. On 4 December 1997 the Vienna Customs Office (Hauptzollamt), as tax offences authority of first instance, held a hearing. On 26 February 1998 the Vienna Customs Office issued a penal order (Straferkenntnis), finding the applicant guilty of attempted smuggling and of attempted breach of the State's tobacco monopoly. It imposed a fine of 28,000 Austrian schillings (ATS) on him with twenty-eight days' imprisonment in default. Further, it ordered the forfeiture of the cigarettes. The penal order informed the applicant of his right to appeal within a month from its service. Further, it stated that the appeal would be examined by the Finance Directorate for Vienna, Lower Austria and Burgenland (Finanzlandesdirektion) as tax offences authority of second instance. If the appellant so requested, the hearing of the appeal would be held and the decision be taken by the Regional Finance Directorate's appeals board (Berufungssenat). On 25 April 1998 the applicant appealed. However, he did not request that the appeal be heard by the appeals board. On 18 September 2000 the Regional Finance Directorate, as tax offences authority of second instance, dismissed the applicant's appeal. On 19 October 2000 the applicant, represented by counsel, requested the Constitutional Court (Verfassungsgerichtshof) to grant him legal aid for the purpose of filing a complaint against the Regional Finance Directorate's decision. As grounds for the complaint he submitted that none of the authorities which had dealt with his case qualified as a tribunal within the meaning of Article 6 of the Convention, as both, the Customs Office and the Regional Finance Directorate, were purely administrative authorities. Moreover, the criminal proceedings against him had lasted unreasonably long. On 23 October 2000 the Constitutional Court requested the applicant to supplement his legal aid request which the applicant did on 20 November 2000. On 18 December 2000 the President of the Constitutional Court dismissed the applicant's request for legal aid on the ground that the complaint lacked prospects of success. He noted that there was no indication that the decision at issue was based on an unlawful provision or that the application of the law in the present case raised an issue of constitutional law. This decision was served on the applicant's counsel on 28 December 2000. The letter accompanying it informed the applicant that he remained free to lodge a complaint with the Constitutional Court within six weeks. If he wished to do so he had to be represented by counsel of his own choosing. The applicant did not lodge a complaint with the Constitutional Court. Under Article 130 of the Federal Constitution (Bundes-verfassungsgesetz) the Administrative Court decides, inter alia, on applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide. Article 132 of the Federal Constitution, in its relevant part, reads as follows: “An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.” Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities' duty to decide. Its relevant part reads as follows: “(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged. (2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party's written request. ...” In proceedings under the Tax Offences Act an application for transfer of jurisdiction to the superior authority is excluded. Section 27 of the Administrative Court Act (Verwaltungsgerichtshof-gesetz) relating to the application against the administration's failure to decide read as follows: “An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration's failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months. ...” According to the Constitutional Court's judgment of 30 September 1989 (published in the official collection of that court's decisions, VfSlg 12167/89), the Administrative Court may receive applications against the administration's failure to decide under Article 132 of the Federal Constitution, taken in conjunction with section 27 of the Administrative Court Act, also where an authority of first instance has failed to give a decision within the statutory six-month time-limit, provided that no other remedy (such as a request for a transfer of jurisdiction) lies against the failure to decide (see Basic v. Austria, no. 29800/96, § 27, ECHR 2001-I). The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz). The relevant provisions, as in force at the material time, contained the following rules. Pursuant to section 58 § 1 (a) of the Tax Offences Act, the Customs Office, as a tax offences authority of first instance, is competent to conduct the proceedings concerning inter alia smuggling or breach of monopoly regulations. According to section 58 § 2 a trial board shall hold the hearing and give the decision where the relevant value exceeds a certain amount. As to other offences, it is up to the defendant to request a decision by the trial board. In case of so-called simplified proceedings such a request shall be made in the objection against the provisional penal order. Pursuant to section 62 § 1 an appeal will be decided upon by the Finance Directorate as tax offences authority of second instance. According to section 62 § 2 an appeals board shall hold the hearing and give the decision on the appeal, if it is directed against the decision of a trial board or if the appellant so requests. Section 66 regulates the organisation of the trial boards and the appeals boards. Its paragraph 1 provides that their members are not bound by any instructions. According to its paragraph 2, the trial boards consist of three members: a judge as chairperson, one member of the senior service of the tax authorities and one lay member. The appeals boards consist of four members: a judge as chairperson, one member of the senior service of the tax authorities and two lay members. Pursuant to section 67 members of the above boards are appointed by the Federal President upon nomination by the Federal Government. Their term of office is six years. Section 68 provides that each Regional Finance Directorate has to fix, for one year in advance, the number of trial boards and appeals boards, their chairpersons and members and the sequence in which members have to step in if a member is unable to sit. Each Regional Finance Directorate also has to allocate the business of the trial boards and the appeals boards for one year in advance. Meanwhile, on 1 January 2003, a reform encompassing the appeal procedures in all tax matters has entered into force BGBl. (Federal Official Gazette) no. 97/2000. A new body, the Independent Finance Panel (Unabhängiger Finanzsenat) has been created to hear appeals. As to proceedings relating to tax offences, the provisions on trial boards have not changed, whereas the appeals board is now part of the Independent Finance Panel and its composition has changed: it consists of one of the Presidents of the Independent Finance Panel, one full-time member of the latter and two lay members. The term of office of the President and the other full-time members of the Independent Finance Panel is indefinite. | 0 |
train | 001-60518 | ENG | CYP | CHAMBER | 2,002 | CASE OF AZINAS v. CYPRUS | 3 | Violation of P1-1;Just satisfaction reserved | Georg Ress | 8. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the Public Service, the applicant worked as Governor of the Department of Co-operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively due to the fact that on 8 April 1981 he was found guilty by the District Court of Nicosia of stealing, breach of trust and abuse of authority. He was sentenced to 18 months’ imprisonment. The applicant’s appeal against both conviction and sentence was dismissed by the Supreme Court on 16 October 1981. 9. The Public Service Commission held that the applicant had managed the resources of the above-mentioned Department as if it were his private property and spent them for purposes other than those of the Department. The disciplinary sentence of dismissal also resulted in the forfeiture of the applicant’s retirement benefits including his pension, according to section 79(7) of the Public Service Law No. 33/67, as from the date of his conviction by the District Court. 10. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant’s main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12(2) of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act. 11. On 21 December 1982 (according to the Government) or 5 January 1983 (according to the applicant), the Government filed their objections. On 19 April 1984 (according to the Government) or 15 September 1984 (according to the applicant), the applicant filed his observations, to which the Government replied on 10 December 1984 (according to them) or 19 December 1984 (according to the applicant). From then on, the hearing of the case was repeatedly adjourned and was only completed on 9 March 1988. Judgment was delivered on 12 June 1991, by which the Supreme Court rejected the applicant’s application and confirmed the Public Service Commission’s decision. 12. The Supreme Court stated that it could neither control the severity of the sentence imposed by a disciplinary organ, except if the latter exceeded the limits of its margin of appreciation, nor the manner in which the organ assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of the retirement benefits being the normal consequence of the particular sanction imposed by the Commission. As for the right not to be punished twice for the same act, the Supreme Court held that “criminal and disciplinary proceedings may be pursued simultaneously or in succession in respect of the same conduct, in recognition of the fact that the two proceedings are designed to serve separate and distinct purposes” and that “the same act may constitute both a criminal and a disciplinary offence; that this is so, is no obstacle to the institution of disciplinary proceedings, nor a conviction upon a disciplinary charge similar in nature to an offence created by the Criminal Code ...”. 13. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as an appeal court. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court, sitting as a first instance court, that the loss of retirement benefits was not contrary to Articles 23(1) and 23(2) of the Constitution. 14. The hearing was adjourned several times. It was fixed for 12 January 1996, but as the applicant appointed a new lawyer, a total of four adjournments were granted from that date until 18 November 1996, at the request of counsel for both sides. 15. On 18 November 1996 the applicant’s lawyer informed the Supreme Court that negotiations for a settlement of the applicant’s claims concerning his retirement benefits were in progress and invited the court to adjourn the case pending their outcome. The hearing was thus fixed for 3 February 1997. 16. However, on 6 December 1996, the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997 and directed for the amended notice of appeal to be filed within ten days. 17. From 3 February 1997 to 14 September 1998 the applicant requested and obtained six further adjournments pending the above-mentioned negotiations: on 9 May 1997, 6 October 1997, 4 November 1997, 9 January 1998, 10 March 1998 and 30 April 1998. 18. On 14 September 1998 in his opening address, the applicant’s lawyer stated that he would only deal with grounds 3 and 4 of the appeal, which also covered ground 5. In those grounds the applicant had challenged the findings that his dismissal and consequent forfeiture of his pension rights were not disproportionate to the gravity of the offence, and that the Public Service Commission had acted lawfully, within the limits of its discretion, in imposing these sanctions. He conceded the withdrawal of the other grounds of appeal. Subsequently, the lawyer declared that “he did not raise any other issue on this point (forfeiture of pension rights) as a separate and autonomous right because it was a very big issue”. However, it transpires from the pleadings that the applicant’s lawyer expressly stated that he would deal with grounds 3 and 4, which also implied ground 5. Ground 5 read as follows: “The finding of the First Instance Court that the loss of the applicant’s retirement benefits is not contrary to Articles 23(1) and (2) of the Constitution is erroneous.” Judgment was reserved. 19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. On 8 March 1999 the hearing was adjourned until 31 March 1999 due to a change in the composition of the court and then until 29 April 1999 because one of the judges was absent on sick-leave. On 21 April 1999 the applicant’s lawyer applied for a further adjournment due to another engagement. The hearing was fixed for 14 May 1999 but was adjourned again until 17 June 1999, owing to the absence of one member of the bench, and then until 9 July 1999 at the request of the applicant. Thus the appeal was heard for a second time on 9 July 1999 and judgment delivered on 20 July 1999, dismissing the appeal. 20. According to the Government, the Supreme Court invited the applicant’s lawyer to re-confirm his position, recorded during the first hearing, that all grounds of appeal, except ground 3 and 4 had been withdrawn, which he did. It was also confirmed that no issue as to the constitutionality of the provisions of the Public Service Law regarding the loss of retirement benefits was raised, but rather that this point was raised only in support of the applicant’s main allegation that, although the Public Service Commission had considered a number of mitigating factors, the impostion of the ultimate disciplinary sanction of dismissal upon the applicant was in flagrant violation of the principle of proportionality and an abuse of the limits of their discretion. 21. At the material time, section 79 of Public Service Law No. 33/67 read as follows: “1. In accordance with the present law, the following disciplinary penalties may be imposed: ... 1 reprimand 2 severe reprimand 3 disciplinary transfer 4 interruption of annual salary increase 5 suspension of annual salary increase 6 pecuniary penalty which cannot exceed three months’ salary 7 reduction in the salary scales 8 reduction to the ranks 9 compulsory retirement 10 dismissal. ... 7. Dismissal entails the loss of all retirement benefits.” 22. A revised version of section 79(7) of the Law is today in force in Cyprus and provides as follows: “Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.” 23. Under the provisions of the Public Service Law, the duties and responsibilities of posts in the public service are stipulated in the relevant “Schemes of Service”, approved by the Council of Ministers. According to the Scheme of Service for the post of the Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows: “Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the co-opertative movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Advisor to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.” 24. A public servant’s entitlement to a pension is governed by the Republic’s Pensions Law, Cap. 311. Section 6 of this Law, which was in force at the time of the applicant’s dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6 (f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows: 25. Article 166 § 1 of the Constitution reads as follows: “There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law (a) all pensions and gratuities for which the Republic is liable ...” | 0 |
train | 001-69939 | ENG | POL | CHAMBER | 2,005 | CASE OF ROSENZWEIG AND BONDED WAREHOUSES LTD. v. POLAND | 3 | Violation of P1-1;Just satisfaction reserved | null | 8. The first applicant, Bronisław Rosenzweig, is a German national, who was born in 1941 and lives in Berlin. The second applicant is “Bonded Warehouses Ltd”, a public company. 9. On 18 February 1994 the Main Customs Office granted a licence to run a bonded warehouse in Słubice to the applicant company “International Bonded Warehouses Ltd.”. 10. On 29 May 1995 the German customs office at Frankfurt/Oder stated in writing that the German customs authorities had no objections to the operation of the applicant company. 11. On 1 June 1995 a further permit was given for exporting merchandise via the border crossing in Słubice by the Director of the local Customs Office in Słubice. 12. The applicant submitted that it had been repeatedly suggested that the company should pay various bribes to the customs officials if it wished to continue its operation undisturbed. The Government did not respond to this submission. 13. By a letter of 22 November 1995 the Director of the local Duty Office in Słubice stated that from 27 November 1995 on he would revoke the permit of 1 June 1995 for exporting merchandise via the Słubice border crossing. It was argued that the permit of 1 June 1995 was not in conformity with an agreement with the Federal Republic of Germany regarding the border crossings and trans-border movements of goods and persons. 14. On 27 November 1995 the customs officers ordered that the headquarters of the applicant company be closed and affixed official seals on its door, preventing it thereby from conducting further business. On the same day the applicant company complained to the Main Customs Office, submitting that there were no legal grounds on which the permit should be revoked and that the letter of 22 November 1995 was not an administrative decision, which made it impossible to lodge a formal appeal against it. 15. In a letter of 21 December 1995 the applicant company reiterated its complaint and stressed that the director of the Słubice Customs Office had failed, despite the company's repeated requests, to give any legal basis for the revocation of the permit. It was argued that the revocation of the permit breached economic freedom as guaranteed by the Constitution, and clearly infringed the terms of a valid licence which the company had received from the Main Customs Office in February 1994. 16. On 9 February 1996 the applicant company lodged a complaint under Article 17 of the Supreme Administrative Court's Act about the Main Customs Office's failure to give a decision following the appeal of 27 November 1995. It was submitted that the company had a valid permit given under the provisions of customs law. However, the company's operation had been de facto rendered impossible by the letter of 22 November 1995 as it could not run the warehouse if it was not allowed to export merchandise. 17. In reaction to this complaint, on 14 February 1996 the Main Customs Office informed the applicant company that the permit of 1 June 1995 was of a temporary character. It was to remain valid only until a bridge in nearby Świeck was to be constructed. After the construction of this bridge had been terminated, the border crossing in Słubice was to be used only for small trans-border movement of goods and persons. This was to be understood as allowing for crossing of the border by persons, but taking merchandise out of the country via this crossing did not fall within the ambit of the notion of the “small trans-border movement of goods and persons” and therefore the permit of 1 June 1995 had to be revoked under Article 21 of the Customs Law. 18. The applicant company appealed, submitting that the revocation of the exporting permit would practically mean that the company had to stop its business operation, carried out under the valid licence of February 1994. On 21 August 1996 the applicant company and the Director of the Legal Department of the Main Customs Office concluded a settlement to the effect that the applicant company would withdraw the appeal it had lodged with the Supreme Administrative Court against the position taken by the Office in its letter of 14 February 1996 and the President of the Office would set aside the decision of the Director of the Słubice Customs Office of 22 November 1995. 19. On 21 December 1996 the Main Customs Office set the decision of 22 November 1995 aside and ordered that the question be re-examined by the Director of the Słubice Customs Office. 20. By a letter of 31 January 1997 the German customs office at Frankfurt/Oder confirmed that the German customs authorities had no legal objections whatsoever against the operation of the applicant company. 21. On 28 May 1997 the Rzepin Customs Office revoked the permit for exporting merchandise by the applicant company via Słubice, stating that the Słubice border crossing was under Polish law designed only for the socalled “small trans-border movement of goods and persons” and that, therefore, no merchandise could be exported via this crossing. 22. The applicant company appealed. 23. On 20 August 1997 the Main Customs Office quashed the decision of 28 May 1997 and discontinued the proceedings, considering that the impugned decision had been in breach of applicable provisions of procedural law since it had not been given in any of the types of proceedings on the merits provided for by the Code of Administrative Procedure. 24. The applicant company requested that the legal meaning of this decision be interpreted. It emphasised that it was important for it to have clarified whether the original permit of 1 June 1995 was still valid. This, on the plain meaning of the text of this decision, was unclear. 25. In an interpretative decision of 23 September 1997 the Main Customs Office explained that the fact that the decision of 28 May 1997 had been set aside was to be understood in such a way as to mean that the legal situation existing before this decision had been given still obtained. 26. The applicant company requested that this issue be re-examined, asking whether the quashing of the decision of 28 May 1997, revoking the permit of 1 June 1995, was to mean that this permit was still valid. 27. In a decision of 14 November 1997 the Main Customs Office held that the purpose of the decision of 23 September 1997 was not to decide whether the permit of 1 June 1995 was still valid. It upheld the decision of 23 September 1997. 28. The applicant company appealed to the Supreme Administrative Court, arguing that the decisions of the Main Customs Office lacked clarity. The Office had set aside the revocation of the permit, but did not confirm whether the original permit was valid. Therefore it was impossible to establish what was the actual legal situation of the company as far as the validity of its permits was concerned. The applicant company emphasised that it was de facto treated by the customs authorities as if the export permit of June 1995 had been effectively revoked. 29. In a judgment of 2 April 1998 the Supreme Administrative Court quashed the decisions of 23 September and 14 November 1997. The court found that the decision of 23 September lacked clarity in that it did not allow the applicant company to elucidate the fundamental uncertainty as to the legal consequence of this decision. Neither were these doubts dispelled by the decision of 14 November in which the Main Customs Office had failed to explain what was the legal situation of the applicants' permit to run their business, and in particular, whether it could still rely on the permit of 1 June 1995. 30. By a decision of 5 June 1998 the Main Customs Office stated that the decision of 20 August 1998 was to be understood in such a way that the applicant's rights stemming from the decision of 1 June 1995 remained intact. 31. On 20 June 1998 the Main Customs Office instituted proceedings in order to have the licence to run the warehouse of 18 February 1994 set aside, considering that the applicant company had not been conducting its business for a period longer than three months, without having informed the competent authorities thereof, as required by law. 32. On 30 November 1998 the Main Customs Office set aside the 1994 licence to run the warehouse, having found that after 20 August 1997 the applicant company had ceased its business activities. Under the provisions of the Customs Code, the customs authorities were obliged to withdraw the licence to run the bonded warehouse if the company enjoying such licence was not exercising it for a period longer than three months. 33. The applicant company appealed. It argued inter alia that it could not have run the warehouse after 20 August 1997, given that the Słubice Customs Office had withdrawn its permit for exporting merchandise by the applicant company via Słubice, which had made it impossible to continue its business operation. 34. On 5 March 1999 the Main Customs Office, having re-examined the case, discontinued the appellate proceedings. The office observed that the applicant was wrong in confusing the proceedings regarding the validity of the June 1995 permit with the present proceedings, in which it was the validity of the earlier licence, granted in 1994, which was at issue. The validity of the 1994 licence had not been questioned in the previous proceedings and therefore there were no grounds on which to accept that the applicant was prevented to run its business. 35. It further noted that the proceedings had to be discontinued since on 1 January 1998 a new Customs Code had entered into force. It provided that various customs licences issued under the old Customs Act were to remain valid for twelve months, during which companies having such licences could lodge new requests to have new licences issued. The applicant company had not submitted such request and the validity of its 1994 licence had consequently expired on 31 December 1999. Therefore the proceedings would not serve any purpose and should be discontinued. 36. The applicant company appealed. It argued, inter alia, that when giving the contested decision, the Main Customs Office had breached the law in that it entirely failed to take into consideration all circumstances relating to the proceedings concerning the withdrawal of the permit to export. These proceedings, which had lasted from August 1997 until June 1998, had rendered it impossible for the company to continue its business operation. Therefore it was unreasonable to revoke the 1994 licence on the ground that the company had ceased its business activities. 37. On 5 November 1999 the Supreme Administrative Court quashed the decision of 5 March 1999 as not being in compliance with law. It considered that the Main Customs Office had incorrectly held that the proceedings had become devoid of purpose. At the time when they had been instituted, i.e. on 20 June 1998, the applicant company's licence was still valid. It therefore had a legal interest in clarifying its legal situation and to confirm whether it was still authorised to run its business. 38. On 23 March 2000 the Main Customs Office, having regard to the judgment of 5 November 1999, set aside the decision of 30 November 1998, revoking the 1994 licence to run the warehouse. 39. The applicant company did not resume its operations afterwards. The first applicant submitted that as a result of the withdrawal of the permit and the licence to run the company, described above, it was impossible for him as the principal shareholder and, likewise, for the applicant company, to resume their business operations. It is the withdrawal of those decisions authorising the company to run its business which constitute the basis of the applicant's claims of pecuniary damage under Article 41 of the Convention. The Government did not respond to this argument. | 0 |
train | 001-89013 | ENG | POL | ADMISSIBILITY | 2,008 | DE PELLIER v. POLAND AND UKRAINE | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Edmund Rudolf de Pellier, is a Polish national who was born in 1931 and lives in Warsaw. He was represented before the Court by Mr M. Kanawka, a lawyer practising in Gdańsk. Before the Second World War the applicant's family owned real property in the eastern provinces of pre-war Poland, the so-called “Borderlands” (Kresy). Those regions included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. In September 1939 the regions were invaded by the USSR. Following the end of the war, when the Polish eastern border was redrawn westwards and fixed along the Bug River, the Borderlands acquired the name of the “territories beyond the Bug River” (ziemie zabużańskie). On an unspecified date following 9 September 1944 the applicant's family, like some 1,240,000 other Polish citizens who were at various dates from 1944 to 1953 subject to repatriation from the territories beyond the Bug River, was repatriated to Poland under the provisions of the so-called “Republican Agreements” (umowy republikańskie). A more detailed account of the historical background and the relevant provisions of the Republican Agreements and other related treaties and laws can be found in the Court's judgment in the pilot case of Broniowski v. Poland (see, in particular, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45). On 30 March 1947 the Gdańsk District Court (Sąd Rejonowy) gave a declaratory judgment stating that the applicant had owned real property of substantial value in the territories beyond the Bug River. The property consisted of, in particular, four factories, two hotels, and one cinema, all located in Lwów. On 12 March 1991 the Braniewo Distric Office (Urząd Miasta) informed him that his claim for compensation had been entered in the relevant register as claim no. 105 but its realisation depended on the adoption of future measures by Parliament in respect of Bug River claims. The applicant's subsequent attempts to acquire State property were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims. This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski, cited above, §§ 48-61, 69-87 and 168-176). In 1996 the applicant wrote letters to the Polish Consulate in Lwów, and to the President of Lwów asking for help in obtaining compensation for the property. In 2002 the applicant wrote a letter to the President of Ukraine complaining about his situation. A detailed description of the relevant domestic law and practice concerning the Bug River property is set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v. Poland (merits), cited above §§ 39-120; and Broniowski v. Poland (friendly settlement), cited above, §§ 14-30) and the decisions given in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland, cited above, §§ 24-25 and §§ 28-29 respectively. The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23 and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 2227. | 0 |
train | 001-22617 | ENG | CZE | ADMISSIBILITY | 2,002 | MANOUSSOS v. THE CZECH REPUBLIC AND GERMANY | 4 | Inadmissible | null | The applicant, Mr Andreas Manoussos, is a Greek national who was born in 1964. He is serving a prison sentence in the Rýnovice prison (Czech Republic). The Government of the Czech Republic were represented by Mr E. Slavík, their Agent, succeeded by Mr V. Schorm. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 June 1996 the applicant was apprehended by the Czech police. He was heard in the presence of an interpreter and accused of forging public documents and of the attempted forgery of bank notes. Several other persons were accused in the same context on the basis of information submitted by the Office for the Suppression of Organised Crime and by German authorities. According to that information, the applicant and four other persons had forged Eurocheques with a view to distributing them abroad, in particular in Germany. They were linked to an organised criminal group in Germany. In addition, the accused had fabricated German identity cards. The applicant refused to have a lawyer assigned to him ex officio and stated that his brother and girl-friend should appoint a lawyer to represent him. On 12 June 1996 the police investigator requested that the applicant be remanded in custody. On the same day the Prague 6 District Court appointed Mr P.M. to represent the applicant ex officio. On 13 June 1996 a judge of the Prague 9 District Court heard the applicant in the presence of an interpreter. The judge remanded the applicant in custody. The decision stated that all the accused, but for one, were foreigners and that the actions imputed to them had been committed in several countries. The judge concluded that the accused could abscond and jeopardise the investigation. According to the Czech Government, on 13 June 1996 a lawyer, Mr E.B., accepted to represent the applicant upon the request of the latter’s girl-friend. This is contested by the applicant who alleges that Mr E.B. was appointed by his girl-friend on 11 June 1996. According to the applicant, Mr E.B. was only able to visit him eleven days after he had been appointed. On 10 July 1996 the City Court in Prague dismissed the applicant’s complaint against the remand decision. On 23 October and 27 November 1996 the applicant was heard in the presence of his lawyer and an interpreter. On 10 December 1996 the Prague 9 District Court extended the applicant’s detention on remand until 11 April 1997. On 2 April 1997 the applicant’s detention was extended until 11 August 1997. The court noted that the case was complex, that the German authorities had been asked for legal assistance and that the damage which the accused had allegedly caused amounted to approximately ten million Deutschmarks (DEM). Several expert opinions were necesssary with a view to establishing the relevant facts. On 23 April 1997 the applicant was heard in the presence of his lawyer. On 19 May 1997 the head physician in Prague-Pankrác prison submitted a certificate according to which the applicant’s state of health was good despite the fact that he had staged several hunger strikes. The doctor expressed the view that the applicant was fit to face the criminal proceedings. On 21 May 1997 the applicant was heard in the presence of his lawyer. On 24 July 1997 the Prague 9 District Court extended the applicant’s detention on remand to 11 February 1998. The court noted that the length of the proceedings was due to the complex character of the case, the need to obtain further expert opinions, the wide range of acts imputed to the accused and the fact that the alleged crimes had been committed in several States. On 22 September 1997 the applicant appointed Ms E.S. to represent him in the proceedings. On 25 November 1997 Ms E.S. informed the police that she would no longer represent the applicant. On 28 November 1997 several documents of a religious nature were taken away from the applicant on the ground that the volume of documents which he had in his cell was excessive. On 5 December 1997 the Prague 9 District Court appointed Mr E.B. to represent the applicant ex officio. On 16 December 1997 the applicant was examined. On 28 January 1998 he filed a request for release. On 4 February 1998 the Prague 9 District Court extended the detention of the applicant and of his co-accused to 12 April 1998. The decision stated that a considerable time was still required to study the case-file and prepare the indictment. In the court’s view, there was a risk that the accused could abscond, jeopardise the investigation or, possibly, commit further offences. On 8 April 1998 the public prosecutor indicted the applicant and four other persons for the forgery of notes and public documents in the context of organised crime. A hearing before the Prague City Court was held on 20 May 1998. The applicant, who was represented by his lawyer, complained that he had not been provided with a translation of the indictment into German. The court decided to allow the applicant more time to prepare his defence and adjourned the case until 4 August 1998. The City Court further dismissed the applicant’s request for release. On 28 May 1998 the Ministry of Justice of the Czech Republic requested assistance from the German authorities. On 2 and 15 June 1998 the applicant requested the Prague City Court to appoint a different lawyer to represent him in the proceedings. On 4 June 1998 the High Court dismissed the applicant’s complaint against the City Court’s refusal to release him. On the same day the High Court extended the detention of the applicant and his co-accused to 31 January 1999. On 16 January 1998 the applicant requested that a different lawyer be appointed to represent him ex officio. On the same day the applicant filed a “criminal complaint” with the Constitutional Court in which he alleged that the police investigator, the public prosecutor as well as the judges dealing with his case had violated his rights. On 14 July 1998 the Prague City Court appointed a different lawyer, Mr I.P., to represent the applicant ex officio. On the same day the applicant asked the High Court to assign a German lawyer to him. On 21 July 1998 the applicant informed Mr. I.P. that he could not accept his assistance as he wished to be represented by a different lawyer. On the same day the German authorities informed the Czech authorities that criminal proceedings had been brought against the applicant in Germany. The Prague City Court proceeded with the case on 4 and 5 August 1998. The applicant requested that a different lawyer be assigned to him. He also challenged the City Court judges. The case was adjourned. On 8 September 1997 the High Court dismissed the applicant’s complaint about the City Court judges’ lack of impartiality. It further refused to appoint a different lawyer to represent the applicant ex officio and noted that the applicant was free to appoint a lawyer of his own choice. A hearing before the City Court was held on 16 and 17 September 1998. The applicant requested that further evidence be taken. The case was adjourned. On 14 October 1998 the Prague City Court convicted the applicant of forgery on several counts as a member of a criminal association and sentenced him to eleven years’ imprisonment. The applicant appealed. On 4 December 1998 the applicant requested that Mr I.P. should no longer represent him ex officio. On 7 and 11 December 1998 Mr I.P. requested that he be released from the obligation to represent the applicant as no confidence existed between him and his client. On 4 January 1999 the Prague City Court allowed the request and appointed a different lawyer, Mr J.K., to represent the applicant ex officio. On 12 January 1999 the High Court extended the applicant’s detention on remand to 30 June 1999. On 22 January 1999 the presiding judge of the High Court put a note in the case-file according to which the applicant had corresponded with one of his co-accused without authorisation. On 25 January 1999 the applicant complained to the High Court that his correspondence was monitored. On 1 February 1999 the applicant stated that he no longer wished to be represented by Mr J.K. He complained that the lawyer’s visits were sporadic, that he had not responded to the applicant’s letters and that he also acted, in different cases, as an official interpreter for the City Court. The applicant therefore expressed doubts about the lawyer’s impartiality. In his letter the applicant further stated that one of his previous lawyers had declared that the State had not paid his fees for the past five years. He requested that a lawyer practising in Rumburk be assigned to him. On 8 and 16 February 1999 the applicant complained to the High Court that all the lawyers who had been assigned to him had failed to represent him in an appropriate manner. On the latter date the applicant also informed the High Court that he was on a hunger strike. On 18 February 1999 Mr J.K. informed the High Court that he had studied the case-file, that he had contacted the applicant, translated the first instance judgment into German and given it to the accused. At the lawyer’s request, the applicant’s relatives paid the costs of the translation. A hearing before the High Court was held on 9 March 1999. The applicant, who was on hunger strike, collapsed when he was about to be brought to the court room. The High Court therefore decided to deal with the charges against the applicant separately. On 4 May 1999 another hearing was held before the High Court. The applicant was represented by Mr J.K. and he was also assisted by an interpreter. Representatives of the media were present. A report established by the prison medical service indicated that the applicant was able to take part in the hearing. The High Court quashed the first instance judgment and convicted the applicant, as a member of an organised group, of the forgery of notes and public documents. The High Court established that the applicant and several other persons had forged Eurocheques and German identity cards. The High Court did not share the Prague City Court’s view that the applicant had committed the offences as a member of a criminal association. The applicant was sentenced to eleven years’ imprisonment in a high security prison, and to expulsion from the Czech Republic. At the hearing the applicant stated that he had not been provided with due legal assistance and that he had not been able to prepare his defence. He also complained that he could not question several witnesses who had been heard by German authorities and whose statements had been read out at the hearing before the first instance court. The High Court found that the City Court had established all relevant facts and that its reasoning was relevant and sufficient. It noted that the witnesses heard by German authorities had been invited to the hearing at first instance, but had failed to appear. The fact that their statements were read out by the court after they had failed to appear at the hearing was not contrary to the relevant provisions of the Code of Criminal Procedure. In addition, the statements of those witnesses were corroborated by the statements of other witnesses and the applicant’s co-accused, as well as by comprehensive documentary evidence including expert opinions. The High Court further noted that the lawyers representing the applicant had changed six times due to the applicant’s objections. The applicant’s presumption that he was free to choose the lawyer who should be appointed to represent him ex officio was erroneous. On 24 May 1999 the applicant complained to the Supreme Court that the High Court judges had been biased. The Supreme Court rejected the complaint as being both unsubstantiated and lodged out of time. According to the applicant, there was an interference with his correspondence whilst he was detained on remand. For example, in a letter of 27 July 1998 addressed to the Czech Bar Association, the applicant complained that a letter sent to a German lawyer had been opened. In another letter of 20 April 1999 and addressed to a German law firm, the applicant alleged that his correspondence had been delayed between 1 June 1996 and 15 October 1998 due to the fact that it had been monitored. In a letter of 17 July 1998 and addressed to the United States Embassy in Prague, the applicant alleged that his correspondence addressed to various foreign diplomatic representations had been monitored. The Government contend that the applicant’s allegations are unsubstantiated and affirm, with reference to the relevant law, that the correspondence between the applicant and his lawyers had neither been monitored nor delayed. While he was detained on remand, the applicant was placed in an 8m² cell with two other persons in which there was no hot water. He was allowed to take a shower once a week and could not practice sport. On several occasions he was not allowed to meet with persons from outside the prison. On 4 May 2001, while he was serving the prison term, the Prague City Court allowed the applicant’s request that an interpreter be assigned to him so that he could study the criminal file concerning his case. In letters of 8 February and 23 March 1998 the applicant asked the Constitutional Court to provide him with information about the provisions of the Constitution of the Czech Republic. On 27 March 1998 the vice-president of the Constitutional Court informed the applicant that the Constitutional Court could not entertain his submissions as they were not a formal request for proceedings to be instituted. The applicant was further advised that he had to be represented by a lawyer if he wished to file a constitutional appeal. On 15 February 1999 the applicant complained to the Constitutional Court about the alleged unfairness of the criminal proceedings against him. He claimed that the City Court had refused to grant his request for several witnesses to be heard and that his conviction had been arbitrary. The applicant further complained that the High Court had refused to provide him with a translation of the first instance judgment and that the lawyer appointed to represent him ex officio, Mr. J.K., was willing to translate it only if the applicant paid him DEM 600. The letter stated that Mr J.K. had expressed the view, on 6 February 1999, that the applicant had no chance of succeeding before the Constitutional Court. The applicant concluded that he had no confidence in that lawyer. On 22 February 1999 the applicant sent another letter to the Constitutional Court in which he complained that the High Court had refused, on 9 February 1999, to appoint a lawyer of his own choice to represent him ex officio. He also complained that he had not enough time to prepare his defence in the appellate proceedings. As the complaints did not satisfy certain formal requirements, a Constitutional Court judge requested the applicant, on 25 March 1999, to rectify the shortcomings and, in particular, to appoint a lawyer to represent him in the proceedings within sixty days. The applicant was advised that he could appoint a lawyer of his own choice or ask the Czech Bar Association to assign a lawyer to him if he did not trust his representative from the criminal proceedings. On 29 March 1999 the applicant requested the Czech Bar Association to assign a lawyer to him. On 31 March 1999 and on 6 April 1999 the applicant was informed that Mr J.S., a lawyer practising in Prague, had been assigned to represent him in the proceedings before the Constitutional Court. On 2 April 1999 the applicant complained to the Czech Bar Association that Mr J.K., the lawyer appointed ex officio, had failed to represent him in an appropriate manner. The applicant alleged that the lawyer disregarded his interests and that he had failed to take appropriate action to defend the applicant effectively. In particular, the applicant maintained that the lawyer deliberately disregarded the fact that the constitutional complaints had to be filed urgently with a view to protecting his defence rights in the on-going criminal proceedings. In a letter of 14 April 1999 the applicant complained to the Constitutional Court that his defence in the criminal proceedings had been impaired by the Czech secret services and that he had no confidence in the Czech Bar Association or the lawyers by whom he had been represented ex officio. He asked the Constitutional Court to provide him with a reliable lawyer and to prevent the High Court from holding the hearing scheduled for 4 May 1999. In a letter addressed to the High Court in Prague on 16 April 1999 the applicant pointed out, inter alia, that Mr J.K. had informed him that a constitutional complaint about the criminal proceedings could only be filed after the delivery of the final decision. On 21 April 1994 Mr J.S. informed the applicant, after consultation with the presiding judge of the High Court and the representatives of the Czech Bar Association, that his assignment had been unlawful. The lawyer explained that Mr J.K. was the applicant’s legal representative appointed ex officio and that the relevant regulations excluded that a second lawyer be assigned by the Bar Association in such a case. The letter stated that the Bar Association had not had at its disposal all the relevant information. The applicant was advised to seek assistance from Mr J.K. In a letter of 26 April 1999 the Czech Bar Association confirmed the revocation of Mr J.S.’s assignment. On 8 June 1999 the Constitutional Court rejected the applicant’s constitutional appeal on the ground that the applicant had failed to appoint a lawyer, as required by the relevant law, despite the fact that he had been requested to do so within sixty days on 26 March 1999. The decision stated that the applicant had challenged the Prague City Court’s judgment of 14 October 1998 and the conduct of the proceedings before the appellate court without having specified the relevant facts or the rights allegedly violated. On 23 August 1999 the head of the Control Department of the Czech Bar Association dismissed the applicant’s complaint of 2 April 1999 about Mr J.K. as being unsubstantiated. On 5 May 1999 the applicant started serving his prison sentence in the Prague-Pankrác prison. On 10 May 1999 he was transported to the prison in Bělušice. On 10 August 1999 he was transferred to the Valdice prison for medically prescribed dietetic reasons. On 7 March 2000 the applicant was taken to the prison in Plzeň. On 24 April 2001 he was brought to the prison in Rýnovice. Most of the relevant facts which occurred while the applicant served his sentence are disputed between the parties. According to the applicant, a letter sent by the Court’s Registry on 14 June 1999 and handed to him on 28 June 1999 had been opened and subsequently closed. The applicant further submits that another letter sent to him by the Court’s Registry on 12 July 1999 was transmitted to him opened on 15 July 1999. The envelope of a letter from the Court’s Registry which was dispatched on 28 September 1999 was handed to the applicant damaged. It was closed with yellow tape and the applicant was infomed that it had reached the Czech post office damaged. Another letter from the Court’s Registry dated 31 August 1999 was handed to the applicant on 9 September 1999. The envelope was taped and bore a post stamp indicating that it had arrived damaged. According to the applicant, a letter from the Court’s Registry sent on 26 February 2001 was handed to him opened. The Government deny the applicant’s allegations that his correspondence with the Court was monitored, and maintain that the applicant did not complain of the above facts to the prison administration. The applicant’s other correspondence has been monitored. The letters which he wished to send out were returned to him on several occasions with the explanation that the stamps on them were either insufficient or damaged. This resulted in several days’ delay in sending out the applicant’s correspondence. On 28 December 2001 the applicant received a letter from the German Federal Constitutional Court. He refused to accept it from the prison officer as it had been opened and monitored. The applicant was not allowed to photocopy documents. He alleges that he was refused carbon paper on several occasions and that he was only allowed to use a typewriter sporadically. The Government contend that the applicant could use his typewriter in the Rýnovice prison and that he had always been allowed to buy carbon paper if he had enough money in his account. In 1999, while he was detained in the Bělušice prison, the applicant was not allowed to send an urgent telegram to the European Court of Human Rights in which he wished to complain about the violation of his human rights. On 9 August 1999, when he was informed about his transfer to another prison, the applicant was distressed. He was not allowed to send a telegram to the Greek Embassy which read “S.O.S., I get psychologically tortured, please alert Strasbourg”. The applicant was told that the telegram could not be sent as his account had been blocked due to his transfer to another prison. In November 1999 and on 4 January 2000 the applicant was not allowed to telephone the Registry of the Court or a German lawyer with a view to resolving the problem of his legal representation in the proceedings before the Court. On 13 January 2000 the Valdice prison administration, which had been requested by the Government Agent to comment on the applicant’s various allegations, asked the applicant to specify his complaints against the Czech Republic as his submissions had been of a general character. Reference was made to the Government Regulations on Dealing with Complaints, Submissions and Petitions of 1958 (“the Regulations”). The applicant refused to comment as the prison administration was not a party to the proceedings before the Court. On 18 February 2000 the applicant sent a telegram to the Court reading “SOS torture”. On 4 January 2001 the Plzeň prison administration invited the applicant to specify his complaints to the Court on the ground that his submissions were unclear and that the Agent of the Government had asked the administration to submit comments on the applicant’s complaints. According to the record which was drawn up pursuant to section 9 of Regulation no. 150/1958, the applicant stated that he disaproved of the conditions in the prison, that his right to have visits was restricted, that he was not allowed to make photocopies or to have telephone conversations in English with the Registry of the Court. The applicant also stated that he feared that money which his relatives would send him could be used for paying his debts without his consent. On 11 May 2001 the applicant was allowed to make a 30 minute telephone call to the Registry of the Court. By a letter of 28 May 2001, the applicant informed the Court that the prison administration had recorded the conversation and that the recording had been handed over to the public prosecutor. The applicant further informed the Court that the prison officers had read a letter from Mr W.F., a German national assisting the applicant in the proceedings before the Court. The prison administration explained to the applicant that Mr W.F. had not been duly appointed as the applicant’s representative and that the covering envelope did not indicate that the correspondence was exempted from control due to its special nature. On 5 January 2001, on 30 May 2001 and on 10 December 2001 the applicant was not allowed to send telegrams in which he wished to inform the Court about disciplinary sanctions imposed on him. Subsequently, the applicant was able to submit the relevant information to the Court by ordinary mail. On several occasions the applicant’s documents and belongings were searched and returned to him disordered. The applicant submits that the conditions in which he has served his prison term have been inhuman and degrading. In particular, he maintains that the prisons have been overcrowded, that he was placed in cells without an electric power socket or hot water, that he has only been allowed to have a walk for an hour a day and that he has not been provided with vegetarian food. The applicant suffered from eczema on his hands. On 19 June 2000 the prison doctor refused to administer an ointment with corticoids to him, explaning that such treatment was subject to a supplementary payment. The doctor arranged for the applicant’s examination by a dermatologist on 1 August 2000. According to the applicant, the latter refused to treat him as he considered that the applicant was not suffering from any disease. The applicant further submits that he has not been provided with adequate health care as he has no sickness insurance in the Czech Republic. The Government contest the applicant’s allegations and submit that all prisoners are provided with adequate health care, the cost of which is born, when a prisoner is indigent, by the prison administration. They also refer to the conclusions of a medical commission according to which there were no shortcomings in the health care offered to the applicant. The prison authorities refused to provide the applicant with a taperecorder and other facilities which he requested so that he could study foreign languages. In accordance with the prison regulations, the money which the applicant had on his prison account was used, to the extent that it exceeded the statutory minimum reserved to cover a prisoner’s basic needs, to pay the applicant’s debts relating to the criminal proceedings and the enforcement of the prison sentence. The applicant claims that his right to contact persons outside the prison and to receive visitors was unduly limited. This is contested by the Government who maintain, with reference to a letter from the Director General of the Prison Administration dated 26 January 2001, that the applicant’s requests for visits by his legal representative, members of his family and other persons close to him had always been granted. On 12 February 2001 Mr W.F., a German national assisting the applicant in the proceedings before the Court, informed the Court that the applicant had been subjected to inhuman treatment as a reprisal for his complaints to the Court. The letter indicated that on 5 January 2001 the applicant had had to undress in a cold room and was searched by several prison officers. Subsequently the applicant was disciplined by confinement in a special cell for three days where the conditions were inhuman. After filing a written complaint about this with the prison director, he was disciplined with a further three days’ confinement in the special cell. During this period, the authorities searched and removed the applicant’s belongings. The Government contest these allegations. They maintain, with reference to the relevant prison documents and statements by the prison officers, that the applicant was disciplined on 5 January 2001 by being placed in a closed prison wing for three days except when participating in the collective activities organised within the prison. The disciplinary sanction was imposed as the applicant had been late for breakfast on 4 January 2001. The applicant wrote a remark on the disciplinary form, explaining that he had not known that he could not go to the dining room after the expiry of the breakfast period. The form, which the applicant refused to sign, indicates that he did not file a complaint against the decision within the statutory three day time-limit. The sanction was enforced from 12 to 15 January 2001. On 29 March 2001 the prison administration deleted it from the applicant’s prison record in view of his subsequent good behaviour. Following the Court’s decision to communicate this part of the application to the respondent Government, the applicant was asked on 19 April 2001 to explain his complaints to the Court. Reference was made to Regulation no. 150/1958. The prison administration drew up a record of the ensuing meeting which was signed by the applicant, according to which the applicant denied the aforementioned allegations by Mr W.F. and stated that he was no longer in contact with him. The applicant also stated that his complaints were sufficiently clear and specific and that he would make no further comments on them to the prison administration. The Government deny that any documents were taken away from the applicant by the prison administration in the context of the disciplinary sanction imposed on him. They refer to written statements by two prisoners indicating that the applicant had left his documents with them before he was placed in the closed wing and that he had recuperated them afterwards. The documents were neither read nor removed by anybody, and the applicant never made any remarks about this to the prisoners concerned. On 30 May 2001 the applicant was disciplined with five days’ imprisonment in the closed wing for repeatedly disobeying a prison officer who had asked him to move to a different cell. The applicant filed a complaint which was dismissed by the prison administration on 4 June 2001. The applicant was placed in the closed wing on 30 May 2001 at 9.30 p.m. According to him, he was distressed and collapsed when he was put in the cell which was insalubrious. The prison officers failed to call a doctor. These allegations are denied by the Government. They refer to a record drawn up by the the prison officer who had placed the applicant in the closed wing on 30 May 2001, according to which the applicant had refused to co-operate in drafting a list of his belongings which were to be stored separately. The prison officer checked on the applicant several times during the night and the applicant had not complained of any pains, or shown any signs of illness. The officer categorically denied the applicant’s allegation that he had lost consciousness. On 31 May 2001 the applicant repeatedly refused to participate in the elaboration of a list of his belongings which was to be drawn up, in accordance with the regulations, in the context of his placement in the closed wing. Four prison officers therefore drew up and signed such a list indicating where the applicant’s items had been placed. The applicant refused to sign it. On 1 June 2001 the applicant asked the prison officers to send a telegram to the Court which read: “S.O.S! Torture! Punished again!”. The request was dismissed with the explanation that the applicant’s means did not suffice for paying the postage. As the telegram indicated that the applicant had been tortured, the prison administration handed the case over to the police. The applicant refused to co-operate with the latter, alleging that they were a part of the system against which he complained. Subsequently an investigation was carried out by the competent public prosecutor which did not disclose any violation of the applicant’s rights. On 4 June 2001 a disciplinary sanction of five days in the closed wing was imposed on the applicant for failure to co-operate in preparing the list of his belongings. The applicant did not file a complaint. On 5 June 2001 the applicant was hospitalised in the prison ward as he had health problems. According to a record of 6 June 2001, the applicant’s belongings were sealed in the presence of eight prison officers and placed in storage until their withdrawal by the applicant. In a letter of 21 August 2001 the applicant informed the Court that his documents had been returned to him in disorder. On 9 August 2001 the prison authorities asked the applicant to provide more detailed information about the object of his complaints with reference to Regulation no. 150/1958. According to the record which was signed by him, the applicant stated that he would not comment on his complaints to the Court as they were directed against the Czech Republic. The applicant concluded that it was for the Czech Government to submit their reply to the Court. In a letter delivered on 14 January 2002 the applicant informed the Court that, on 10 December 2001, the prison officers had checked his belongings and that he had subsequently been taken to the closed wing where he was kept for 48 hours. According to the applicant, he was not provided with toilet paper, soap or a tooth brush. The applicant states that his files and documents were “devastated” and cannot be used anymore. On 7 May 1996 the German authorities informed the Czech State Attorney’s Office that several persons including the applicant were suspected of offences and asked the Czech authorities for assistance. On 25 August 1998 the Leipzig public prosecutor informed the applicant that the German authorities could not provide him with legal assistance in respect of the criminal proceedings against him in the Czech Republic. The letter further stated that the prosecutor would decide whether or not he would issue an international arrest warrant against the applicant and request his extradition to Germany after the delivery of the final decision by the Czech courts. Subsequently, the German authorities requested that the applicant be extradited to Germany. In a letter of 30 August 2001 the applicant’s father was informed that the Czech Minister of Justice had agreed to the applicant being extradited to Germany after serving his prison sentence. On 14 May 2001 the applicant complained to the German General Prosecutor’s Office that his prosecution in Germany would be contrary to the principle of ne bis in idem. Following the applicant’s accusation of fraud and other offences, the Leipzig Regional Prosecutor appointed a lawyer on 8 August 2001 to represent the applicant ex officio in the proceedings in Germany. Article 10 provides that the ratified and promulgated international treaties on human rights and fundamental freedoms, by which the Czech Republic is bound, shall be applicable as directly binding regulations having priority over the law. According to Article 3 § 1, fundamental human rights and freedoms are guaranteed to everybody irrespective of sex, race, colour of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership of a national or ethnic minority, property, birth, or other status. According to Article 8 §§ 1 and 2, personal liberty is guaranteed. Nobody shall be persecuted or deprived of their liberty save for reasons and in a manner prescribed by law. Article 10 §§ 1 and 2 provides inter alia that everybody is entitled to the protection of his or her human dignity or personal integrity, and against unauthorised interference with private or family life. According to Article 13, nobody may violate the confidentiality of correspondence or other papers and records, whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law. Article 31 guarantees inter alia to everybody the right to the protection of his or her health. Article 36 provides that everybody can claim his or her rights in a prescribed manner before an independent and impartial tribunal or, in certain cases, before another organ. According to Article 38, everybody is entitled to a fair and public hearing within a reasonable time, in his or her presence, and to comment upon all the evidence submitted. Section 72(1)(a) provides that a constitutional appeal may be introduced by any natural person who claims to be the victim of a breach of the fundamental rights or freedoms recognised in a constitutional law or an international treaty (Article 10 of the Constitution) by a legitimate decision taken in proceedings to which he or she was a party, and being a measure or interference by ‘a public authority’. According to paragraph 2, a constitutional appeal shall be submitted within a period of sixty days. If the law affords a remedy for the protection of rights, this period starts to run on the day when the final effective decision becomes enforceable or, if no such remedy exists, on the day on which the impugned events occurred. According to section 75(1), a constitutional appeal is inadmissible if the person concerned failed to exhaust all the procedural remedies available in law for the protection of his or her rights. Section 30(1) provides that the appellant must be represented by an advocate, a commercial lawyer or a notary to the extent provided for in the relevant special law. Section 34(1) provides that a constitutional appeal shall be submitted in writing to the Constitutional Court. The appeal shall include the following information: the person who is making the appeal, the matter to which it relates, and its object. The appeal must be signed and dated. Furthermore, it shall include a true description of the crucial facts, indicate the evidence which the appellant will introduce, and specify the claim. The appeal shall contain the other elements required by this Act. According to paragraph 2, the appeal shall be submitted in a sufficient number of copies so that the Constitutional Court as well as each party to the appeal may have a copy. According to section 82, in its judgment the Constitutional Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or partially allows and partially dismisses it. If the court allows the constitutional appeal, it shall inter alia declare in its judgment which of the constitutionally guaranteed rights or freedoms or which provision of a constitutional act or an international treaty were violated, and what act by a public authority perpetrated the violation. If it allows the constitutional appeal of a natural person, the court shall annul the contested decision of the public authority, or, if a constitutionally guaranteed fundamental right or freedom has been violated as a result of an action by a public authority other than a decision, the court shall order the authority to discontinue the violation and order it, to the extent possible, to restore the situation to that which existed prior to the violation. Article 41 provides that a lawyer is obliged to provide legal assistance to the accused person, to use effectively all lawful means of defence and, in particular, take care that all relevant facts be established which prove the accused person’s innocence or attenuate his or her culpability. Pursuant to section 17(3), correspondence between a prisoner and inter alia a lawyer appointed to represent him or her, public authorities of the Czech Republic or an international organisation which is competent to examine submissions concerning the protection of human rights on the basis of an international treaty by which the Czech Republic is bound, shall not be subjected to any control. Such correspondence shall be sent to the addressee and delivered to the prisoner without delay. Section 18 provides that a prisoner shall be allowed, in justified cases, to use a telephone with a view to contacting a close person. When it is in the interests of his or her rehabilitation or for other serious reasons, the prisoner may also be allowed to contact other persons by telephone. The costs of such calls are to be born by the prisoner and the prison administration is authorised to control the contents of the conversation. Under section 25(4), a prisoner who has failed to pay inter alia the costs and expenses relating to the criminal proceedings against him or her, or damage caused to the prison administration in the course of the enforcement of the prison sentence, may only use his or her money deposited with the prison for buying basic hygienic items, for paying such debts or judicial and administrative fees, or for the cost of health care. Section 26(1) provides that a prisoner has a right to file complaints and requests to the competent authorities in order to enforce the rights and interests protected by law. Pursuant to Section 26(3), a prisoner is entitled to assistance by a lawyer. The latter shall be allowed to correspond with the prisoner, within the limits of his authority, and to talk to him or her in the absence of another person. Section 35(1) provides that a convicted person is obliged to pay the costs of the enforcement of his or her prison term. If need be, the prison administration may use the prisoner’s money deposited in the prison for this purpose. According to section 79, the medical expenses in respect of an uninsured prisoner are to be met by the prison service. Section 34(1) and (2) provide that a prisoner has a right to submit complaints and requests to national authorities or such international authorities and organisations which are considered, on the European and world level, to be part of the process of gathering and examining information concerning violations of human rights including the European Court of Human Rights. Pursuant to section 16(1), an advocate is obliged to defend the justified interests of his or her client and to respect the latter’s instructions unless they are contrary to the law or the rules of the legal profession. In such a case, the advocate shall advise the client accordingly. Under Section 16(2), an advocate shall act honourably and in good faith. He or she shall consistently use all lawful means available which, according to his or her belief, may be to the client’s benefit. Section 18(2) provides that everyone has the right to legal representation. Those who cannot find legal representation may ask the Bar Association to appoint an attorney. According to section 12, the Bar Association may decide that the remuneration of the lawyer’s fees shall be reduced or waived if it assigns a lawyer to a person who could not find legal services and his or her social and financial situation justifies such a decision. Government Regulations on Dealing with Complaints, Submissions and Petitions (Decree no. 150/1958) Section 6(1) provides that all complaints shall be examined thoroughly and without delay. Pursuant to section 9, a written record shall be drawn up of the oral examination of a complaint. It shall comprise the names of all persons present, a summary of the conversation and its outcome, and also indicate that the persons present were acquainted with the record. It shall be signed by the persons involved who may, if need be, indicate in writing that they disagree with the contents and state the reasons therefor. | 0 |
train | 001-59535 | ENG | CHE | CHAMBER | 2,001 | CASE OF VgT VEREIN GEGEN TIERFABRIKEN v. SWITZERLAND | 1 | Preliminary objection rejected (abuse of right of petition);Violation of Art. 10;No violation of Art. 13;No violation of Art. 14;Costs and expenses partial award | Christos Rozakis | 8. The aim of the applicant association is the protection of animals, with particular emphasis on animal experiments and industrial animal production. 9. As a reaction to various television commercials of the meat industry, the applicant association prepared a television commercial lasting fifty-five seconds and consisting of two scenes. 10. The first scene of the film showed a sow building a shelter for her piglets in the forest. Soft orchestrated music was played in the background, and the accompanying voice referred, inter alia, to the sense of family which sows had. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The accompanying voice stated, inter alia, that the rearing of pigs in such circumstances resembled concentration camps, and that the animals were pumped full of medicaments. The film concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!” 11. On 3 January 1994 the applicant association, wishing this film to be broadcast in the programmes of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft), sent a videocassette to the then Commercial Television Company (AG für das Werbefernsehen, now called Publisuisse) responsible for television advertising. 12. On 10 January 1994 the Commercial Television Company informed the applicant association that it would not broadcast the commercial in view of its “clear political character”. The company pointed out that an alternative solution would be a film showing the merits of a decent rearing of animals and informing viewers that they were free to enquire into the origin of the meat which they were buying. 13. By a letter of 10 January 1994 the applicant association requested a decision against which it could file an appeal. On 13 January 1994 the Commercial Television Company replied that it was not an official authority giving decisions which could be contested. Nevertheless, it would be willing to convene a meeting to discuss other possibilities in the presence of a legal adviser. 14. By a letter of 14 January 1994 the applicant association stated that it was not prepared to accept changes to its commercial. It requested a statement of the reasons for the decision and information as to the supervisory authority with which an appeal could be filed. 15. By a letter of 24 January 1994 the Commercial Television Company declined the applicant association’s requests as follows: “As you have refused the discussion which we have proposed, we see no reason to enter into your propositions as set out in your letters of 14 and 20 January 1994. We regret this development as it serves neither you nor us. We confirm that we cannot broadcast your commercial in the proposed form as it breaches section 14 of the Radio and Television Ordinance [Radio- und Fernsehverordnung] as well as our general conditions of business [Allgemeine Geschäftsbedingungen]. In addition, the Commercial Television Company cannot be obliged to broadcast commercials which damage its business interests and involve its editorial rights.” 16. On 4 February 1994 the applicant association filed a complaint with the Independent Radio and Television Appeal Board (Unabhängige Beschwerdeinstanz für Radio und Fernsehen), complaining of the refusal to broadcast the commercial. The latter informed the applicant association on 10 February 1994 that it could only deal with appeals complaining about programmes which had already been broadcast, but that it would transmit the complaint to the Federal Office of Communication (Bundesamt für Kommunikation). The Federal Office informed the applicant association on 25 April 1994 that within the framework of the broadcasting provisions the Commercial Television Company was free to purchase commercials and choose its contractual partners as it wished. It further stated that it considered the complaint to be a disciplinary report, and that it saw no reason to take proceedings against the Swiss Radio and Television Company. 17. On 6 July 1994 the applicant association filed a complaint with the Federal Department of Transport, Communications and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement), which was dismissed on 22 May 1996. In its decision, it found, inter alia, that the Swiss Radio and Television Company was the sole institution to provide information in respect of home news (Inlandsberichterstattung). In respect of commercial broadcasts, however, the company was in competition with local, regional and foreign broadcasters, and the applicant association was not obliged to have its commercial broadcast over the channels of the company. Moreover, the company acted in matters of advertising as a private entity and did not fulfil a duty of public law when it broadcast commercials. The Federal Department concluded that the Swiss Radio and Television Company could not be ordered to broadcast the commercial at issue. 18. The applicant association’s administrative-law appeal (Verwaltungsgerichtsbeschwerde), filed by a lawyer and dated 18 June 1996, was dismissed by the Federal Court (Bundesgericht) on 20 August 1997. The court noted, with reference to Article 13 of the Convention, that the Federal Office of Communication should have formally afforded the applicant association the opportunity to institute complaints proceedings which, if necessary, could have remedied the matter. As the case was ready for decision, the Federal Court undertook the decision itself. It then balanced the various issues at stake. 19. The judgment proceeded to explain the position of the Swiss Radio and Television Company in Swiss law. The company no longer enjoyed a monopoly and was increasingly subject to foreign competition. However, this did not alter the fact that, according to the applicable law, the Swiss Radio and Television Company continued to operate in the area of programming within the framework of public-law duties with which it was entrusted. The law itself granted it a licence for the broadcasting of national and linguistic regional programmes. 20. The Federal Court further considered that Article 55 bis § 3 of the Federal Constitution (Bundesverfassung); in the version applicable at the relevant time, ensured the independence of radio and television broadcasting as well as autonomy in programming. However, advertising fell outside the programming obligations of the Swiss Radio and Television Company, the programming activity presupposing an assessment of the informative content by an editor. Only programming activities were covered by Article 55 bis of the Federal Constitution and section 4 of the Federal Radio and Television Act (Bundesgesetz über Radio und Fernsehen). Viewers should not be influenced in their opinions by one-sided, unobjective or insufficiently varied contributions which disregarded journalistic obligations. Commercials, on the other hand, were by their very nature one-sided as they were in the interest of the advertiser, and were by definition excluded from a critical assessment. For this reason, pursuant to section 18(1) of the Federal Radio and Television Act, they had to be clearly separated from programmes and recognisable as such. Indeed, the Federal Radio and Television Act dealt with advertising and financing, rather than with programming. Furthermore, no right to broadcast a commercial could be derived from the principle of the diversity of programmes or the fact that a competitor’s commercial had already been authorised. The judgment continued: “Until 1964 [advertising] was completely prohibited on radio and television. Subsequently, it was allowed on television, although it was subject to restrictions in the interests of an optimal implementation of programming duties and to protect other important public interests (youth, health, diversity of the press). Section 18 of the Federal Radio and Television Act today assumes in principle that advertising is admissible but subject to certain limitations. Thus, section 18(5) of the Federal Radio and Television Act prohibits religious and political advertising as well as advertising for alcoholic beverages, tobacco and medicaments. The Federal Council may enact further advertising prohibitions for the protection of juveniles and the environment ... On this basis, section 18 of the Federal Radio and Television Act was given a more concrete form in sections 10 et seq. of the Radio and Television Ordinance. These provisions contain no obligation whatsoever to broadcast commercials, and do not declare that advertising is a public-law duty of the broadcaster.” 21. 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 served various purposes: “It should prevent financially powerful groups from obtaining a competitive political advantage. In the interest of the democratic process it is designed to protect the formation of public opinion from undue commercial influence and to bring about a certain equality of opportunity among the different forces of society. The prohibition contributes towards the independence of the radio and television broadcasters in editorial matters, which could be endangered by powerful political advertising sponsors. According to the Swiss law on communication the press remains the most important means for paid political advertising. Already, financially powerful groups are in a position to secure themselves more space; admitting political advertising on radio and television would reinforce this tendency and substantially influence the democratic process of opinion-forming – all the more so as it is established that with its dissemination and its immediacy television will have a stronger effect on the public than the other means of communication ... Reserving political advertising to the print media secures for them a certain part of the advertising market and thereby contributes to their financing; this in turn counteracts an undesirable concentration of the press and thus indirectly contributes to the pluralistic system of media required under Article 10 of the Convention ...” 22. The Federal Court observed that the applicant association had other means of disseminating its political ideas, for instance in foreign programmes which were broadcast in Switzerland, or in the cinema and the press. The Commercial Television Company had offered the applicant association other possibilities and was also willing to convene a meeting to discuss them with it in the presence of a legal adviser. 23. In respect of the applicant association’s complaint about discrimination, the Federal Court found that it was complaining of two situations which were not comparable with each other. Promotions by the meat industry were economic in nature in that they aimed at increasing turnover and were not related to animal protection. On the other hand, the applicant association’s commercial, exhorting reduced meat consumption and containing shocking pictures, was directed against industrial animal production. The applicant association was frequently active in the media in order to pursue its aims. In 1992 it had filed a disciplinary complaint in this respect with the Swiss Federal Parliament. The matter became a political issue early in 1994 when the Swiss Federal Council commented on the matter. 24. Article 55 bis of the Swiss Federal Constitution, in the version applicable at the relevant time, provided: “1. Legislation on radio and television ... comes within the jurisdiction of the Confederation. 2. Radio and television shall contribute to cultural development and the free expression of opinions as well as to the entertainment of the audience. They shall consider the particularities of the country and the requirements of the cantons. They shall describe facts objectively and fairly reflect the variety of views. 3. Within the framework of paragraph 2, the impartiality of radio and television as well as autonomy in the creation of programmes shall be guaranteed. ...” 25. These provisions have been enshrined in Article 93 of the Federal Constitution currently in force. 26. The Federal Radio and Television Act, referring to Article 55 bis, in principle requires a licence to broadcast radio and television programmes. Section 26 of the Act grants the licence for national and linguistic regional programmes to the Swiss Radio and Television Company. Section 4 stipulates that the programmes shall be objective and fairly reflect the plurality of events and opinions. 27. The Swiss Radio and Television Company has transferred all aspects of the acquisition and organisation of television advertising to the Commercial Television Company (now called Publisuisse), which is a company established under private law whose activities do not depend on a licence. 28. Commercials are broadcast between programmes at various times of the day. In respect of advertising, the Federal Radio and Television Act provides as follows: “Section 18 Advertising 1. Advertising shall be clearly separated from the rest of the programme and shall be clearly recognisable as such. The permanent programme staff of the broadcaster shall not participate in the broadcasting of commercials ... 5. Religious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.” 29. In its message (Botschaft) of 28 September 1987 to the Swiss Parliament, the Federal Council explained that the prohibition of political advertising “should prevent financially powerful groups from obtaining a competitive political advantage” (Bundesblatt 1987, vol. III, p. 734). 30. Section 15 of the Radio and Television Ordinance provides as follows: “Section 15 Prohibited advertising The following shall be prohibited: (a) religious and political advertising; (b) advertising for alcoholic beverages and tobacco; (c) advertising for medicaments in respect of which public advertising is not authorised by medical law; (d) untrue or misleading advertising or advertising which constitutes unfair competition; (e) advertising which profits from the natural credulity of children or the lack of experience of youth or abuses their feelings of attachment; (f) subliminal advertising ...” | 1 |
train | 001-5057 | ENG | ITA | ADMISSIBILITY | 2,000 | ANGELI v. ITALY | 4 | Inadmissible | Christos Rozakis | A. The applicant is an Italian national, born in 1966 and living in Florence. The applicant is the owner of an apartment in Florence, which he had let to V.T. In a writ served on the tenant on 29 April 1992 the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate. By a decision of 8 February 1993, which was made enforceable on 19 March 1993, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 8 February 1994. On 21 May 1994, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself. On 9 March 1995, and again on 25 October 1995, 13 March 1996 and 13 July 1996, the applicant served notice on the tenant requiring him to vacate the premises. On 23 July 1996, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 6 September 1996. On 6 September 1996, 15 January 1997 and 13 May 1997, the bailiff made attempts to recover possession of the apartment. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. On 4 December 1997, the tenant vacated the premises. B. Relevant domestic law The relevant domestic law is described in the Immobiliare Saffi v. Italy judgment of 28 July 1999, to be published in the Court’s official reports, §§ 18-35. | 0 |
train | 001-61679 | ENG | BGR | CHAMBER | 2,004 | CASE OF IORGOV v. BULGARIA | 3 | Violation of Art. 3;No separate issue under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1957. He is currently serving a sentence of life imprisonment without parole eligibility. 9. On 9 May 1990 the applicant, who had three previous convictions and prison sentences, was convicted of the murder on 17 July 1989 of three children, aged 8, 10 and 12, attempted rape of one of them, attempted rape of a woman in 1984 and attempted illegal crossing of the State border in August 1989. The court imposed the capital punishment. 10. The applicant's conviction and sentence were upheld on appeal on 24 October 1990 by the Supreme Court. 11. On 8 April 1994 a five-member chamber of the Supreme Court dismissed the applicant's ensuing petition for review (cassation). 12. Article 375 § 5 of the Code of Criminal Procedure as in force at the time, provided that no execution could be carried out prior to the President's decision whether or not to exercise his power of pardon. 13. The last executions of persons sentenced to the capital punishment were carried out in Bulgaria in November 1989. 14. Following a period of a de facto moratorium on executions, on 20 July 1990 the Parliament adopted a decision “on deferral of the execution of death sentences” which read: “The execution of death sentences which have entered into force shall be deferred until the resolution of the question regarding the application of the capital punishment in Bulgaria.” 15. Since the capital punishment remained in the Penal Code, the courts continued sentencing convicted persons to death or - as in the applicant's case - upholding on appeal death sentences delivered before 20 July 1990. 16. Although no explicit undertaking by Bulgaria to abolish the death penalty was made at the moment of Bulgaria's accession to the Council of Europe on 7 May 1992, such a requirement was regarded as implied in the general undertaking to comply with Article 3 of the Statute of the Council of Europe (see the reports of the Parliamentary Assembly's commission on Bulgaria's compliance with its obligations and undertakings (report of 2 September 1998, Doc. 8180, §§ 5 and 12529 (urging the abolition as an implied obligation), and report of 17 January 2000, Doc. 8616, § 110 (noting with satisfaction the abolition of the death penalty)). 17. On 10 December 1998 Parliament abolished the death penalty replacing it by life imprisonment without parole eligibility. 18. By decision of 25 January 1999 the applicant's death sentence was commuted to life imprisonment without parole eligibility. 19. On 29 September 1999 Bulgaria ratified Protocol No. 6 to the Convention. 20. The death penalty was an issue often debated between 1990 and 1998. A number of members of Parliament expressed views in support of reintroducing executions whereas others sought the abolition of the death penalty. The media periodically discussed the topic. It was widely known that the abolition of the death penalty was urged by the Council of Europe and other international organisations and was a step towards Bulgaria's European integration. 21. During the relevant period the Penal Code was amended several times. Some amendments expanded the scope of the death penalty. At the same time, work started on a draft Penal Code which excluded the death penalty. In 1995 an amendment to the Penal Code introduced for the first time life imprisonment. 22. The following attempts to reintroduce executions were made by supporters of the death penalty: 23. On 27 May 1992 the Chair of the Parliamentary Legislative Committee and another member of Parliament introduced a motion proposing the annulment of the Parliament's decision of 20 July 1990. 24. On 22 November 1993 a similar proposal was introduced in Parliament by a minority parliamentary group, the New Democracy Alliance. Two parliamentary committees discussed the issue and voted against reintroducing executions. On 1 February 1994 the Legislative Committee held a hearing on both proposals which were defeated. 25. The issue of reintroducing executions was discussed several times in the Parliament elected at the end of 1994. There were four motions: two for a parliamentary vote on restarting executions and two for calling a referendum. 26. The first proposal was discussed by the Parliamentary Committee on Government Institutions, which supported the idea of reintroducing executions by a majority of seven votes to six. Thereafter, a member of Parliament on several occasions unsuccessfully sought to have the motion discussed by a plenary session of the Parliament. On one occasion the motion gathered the required number of votes to be entered on the weekly agenda, but eventually was not discussed. Most proposals to include the issue on the agenda of the Parliament's plenary session were defeated through abstention votes. 27. The first motion for a referendum was defeated on a procedural ground as the proposed date in 1995 did not allow sufficient organisation time. The second proposal for a referendum, filed on 5 December 1995, was considered by the Human Rights and Religions Committee on 6 March 1996 and was defeated by eight votes to two, with two abstentions. 28. On 29 January 1996 a proposal for restarting executions was introduced by opposition deputies. It was discussed by the Human Rights and Religions Committee and was defeated on 13 March 1996 by eight votes to three. 29. According to section 130 of the Execution of Sentences Act, as in force at the relevant time, persons awaiting execution were to be detained in complete isolation, correspondence and visits being only possible if permitted by the competent prosecutor. 30. On 2 August 1990 the Deputy Director of Central Prisons Board instructed prisons administrations that the Parliament's decision suspending executions also suspended by implication this restrictive regime of detention. 31. The instruction stated, in so far as relevant, that persons sentenced to death should be held in individual cells or together with other persons sentenced to death or detained under a “special regime” (the regime of detention of recidivists and, after 1995, persons sentenced to life imprisonment: sections 43 and 127b of the Execution of Sentences Act as in force at the time). Inmates should have a bed, bedcover, a bed-side piece of furniture and a centrally operated radio loudspeaker. They should be allowed unlimited correspondence, newspapers and books, one visit per month, one hour of daily outdoor walk without contact with other categories of prisoners and the receipt of one food parcel every six months and a small amount of money. If possible, they could work in the cell. 32. On 26 July 1996, the Director of the Central Prisons Board and a prosecutor of the Chief Public Prosecutor's Office issued an instruction which stated that, “in view of the continuing moratorium on executions”, persons sentenced to death should be allowed unlimited correspondence, one hour daily outdoor walk, one visit per month and the receipt of two food parcels and 30 packs of cigarettes per month and small amounts of money. 33. The applicant was detained in the Sofia prison, in a wing for prisoners under the “special regime” provided for by section 56 of the Regulations on the Application of the Execution of Sentences Act, approximately twenty inmates. He changed cells several times but stated that all cells in the relevant prison wing measured 2 by 4 metres. 34. Following a period of solitary confinement, on an unspecified date in 1990 the applicant was transferred to a cell where he lived with two or three other detainees. 35. The applicant alleges that on 21 June 1995 he and eight other deathsentence prisoners were moved to independent cells, where each of them was alone. It appears that the applicant remained in this cell at least until the end of 1998. 36. According to the Government, the cell floor measured 2 by 3 metres. The ceiling was 3.30 metres high. According to the applicant, until October 1998, when new larger windows were installed in all cells, the cell window was small and did not allow sufficient light or fresh air. As a result, in summer it was very hot. Moreover, in winter it was very cold because the heating, covered by a bricks layer, was not working properly. 37. There was one 60-Watts electric bulb in the cell. As it was installed on the wall above the door, its light was insufficient which made reading tiring for the eyes. It appears that the light was on all night. 38. The applicant alleged that between June 1995 and January 1997 he had been sleeping on a plank-bed. In his recollection, a centrally operated radio loudspeaker was installed in March 1996. A proper bed and a bedside piece of furniture were provided in January 1997. After April 1998 the applicant possessed a portable radio receiver which was sent to him in a parcel. 39. The Government provided photographs, apparently made in the summer of 1998, of the applicant's cell. It is visible that the cell's furbishing consisted of a bed, a bed-side piece of furniture and a small table. A loudspeaker and hangers were suspended on the wall. Books, a metal bowl, plastic bottles, clothes and blankets are visible on the photograph. 40. Inmates were given one hour out-of-cell time in the morning in an open yard. There they could walk together with other inmates from the high security wing. The applicant could also leave his cell once again, in the evening, to use the sanitary facilities. During the remaining part of the day, he had to use a bucket full of water which served as a chamber pot. As a result, there was allegedly a constant stink in his cell. 41. Inmates could have a shower once per week, for several minutes. 42. One or two visits of one-half hour were allowed per month. Visits by lawyers were not limited. For the period 1990-1998 the applicant had thirtyfive visits. 43. During the relevant period there was no limitation on correspondence. Between 1990 and 1 August 1998 the applicant received eighty-three food parcels and fifty-six money orders. He was also entitled to a small amount of money per month, which he used to buy toilet items and food from the prison shop. Nevertheless, he was often lacking items such as tooth paste, shaving cream, razors, cigarettes and coffee. 44. The applicant received the same medical service as all other prison inmates. The Government submitted a copy of his medical record according to which he had been seen by a doctor or a dentist almost every month during the period 1990-1998. The infirmary was opened eight hours per day. The applicant was treated repeatedly in respect of back pain, including by physiotherapy. According to one of the medical doctors at the Sofia prison, the applicant was known for his frequent and unwarranted complaints. 45. In February 1996 the applicant signalled a medical problem which turned out to be a swollen salivary gland. In April 1996 a medical doctor recommended surgery, but the applicant was only operated in July 1998. The applicant maintained that he had been refused timely surgical help despite his suffering. His medical records disclose that the swollen salivary gland problem persisted throughout 1997 and 1998, when the applicant underwent several examinations, including by external medical doctors. The applicant was treated with medicines. Twice during the relevant period, medical doctors noted in the applicant's medical record that surgery was not necessary at the particular stage, whereas other entries with illegible signatures indicate that the problem was noted as being acute. According to the director of the Sofia prison, all necessary measures had been taken. The applicant had been treated according to the doctors' recommendations. In July 1997 he had been admitted to hospital for examinations but had been sent back to the prison as he had behaved rudely with the medical staff. A disciplinary punishment had been imposed in that connection on 6 August 1997. The applicant submitted that as a result the operation of his gland had been postponed. According to the medical records, the applicant was again brought to the hospital for examinations and treatment in October 1997, but the applicant alleged that he had been quickly returned back to his cell. As of March 1998 the one doctor's opinion was that surgery was not yet necessary. The swollen salivary gland was eventually operated in July 1998. Tissue of the size of an egg was removed and examined but proved benign. 46. During the relevant period the applicant sent numerous complaints in respect of the conditions of his detention to the Director of the Sofia Prison, to the Director of the Central Prisons Board, the Chief Public Prosecutor's Office and to other institutions. His complaints concerned the food in prison, allegedly insufficient heating, allegedly lost correspondence and other matters. He received answers to only a part of his complaints. With the exception of a request to use a radio receiver and some of the requests for medical treatment, all other complaints allegedly did not bring about any improvement of his situation. 47. On an unspecified date in 1999 the applicant was moved to the Pleven prison. 48. The CPT has not visited the Sofia prison where the applicant was detained. 49. In 1995 it visited, however, two inmates sentenced to death and detained in the Stara Zagora prison facilities and described the conditions of detention there as follows: “The material conditions in the cells left a great deal to be desired: mediocre access to natural light and weak artificial lighting; inadequate heating; cell furnishings in a poor state of repair; dirty bed linen, etc. As regards out-of-cell activities, they were limited to 15 minutes per day for use of the sanitary facilities, one hour outdoor exercise (which the prisoners alleged was not guaranteed every day) and one visit per month. The two prisoners were not allowed to work (not even inside their cells), nor to go to the library, the cinema room or the refectory (their food was brought to the cell). In short, they were subject to an impoverished regime and, more particularly, were offered very little human contact. The latter consisted essentially of the possibility to talk to each other during outdoor exercise (which they took together), and occasional dealings with prison officers. Practically the only forms of useful occupation at their disposal were reading newspapers and books, and writing letters. The above-described situation is in accordance with the rules concerning prisoners sentenced to death, adopted after the moratorium on the execution of the death penalty... Nevertheless, in the CPT's view it is not acceptable. It is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. The delegation found that the regime applied to prisoners sentenced to death in Stara Zagora Prison did not provide such stimulation. The CPT recommends that the regime applied to prisoners sentenced to death held in Stara Zagora Prison, as well as in other prisons in Bulgaria, be revised in order to ensure that they are offered purposeful activities and appropriate human contact. Further, the CPT recommends that steps be taken to improve the material conditions in the cells occupied at Stara Zagora Prison by prisoners sentenced to death.” 50. In paragraphs 127133 of its 1999 report on Bulgaria, the CPT stated, inter alia: “[H]ealth care in Bulgarian prisons is provided by the Ministry of Justice ... Prison health-care staff are recruited by and administratively subordinated to the Main Prison Directorate, whose Medical Division is responsible for supervising their work. The prison health-care services apply general health guidelines and regulations issued by the Ministry of Health; further, arrangements can be made for hospitalising prisoners in need of urgent treatment in Ministry of Health establishments. However, it emerged that in the Ministry of Health's view, given the division of responsibilities, the issue of health care for prisoners lay outside its remit... A similar situation is found in many other countries in Europe, where the provision of health care is the responsibility of the authority in charge of prison establishments. However, the CPT believes that a greater involvement of the Ministry of Health in the provision of health care in the prison system would help to ensure optimum health care for prisoners, as well as implementation of the principle of the equivalence of health care in prison with that in the outside community... This approach is clearly reflected in Recommendation No R (98) 7 concerning the ethical and organisational aspects of health care in prison, recently adopted by the Committee of Ministers of the Council of Europe. [I]n order to guarantee their professional independence and quality of medical work, it is important that prison health-care staff be aligned as closely as possible with the mainstream of health-care provision in the community at large... The CPT also wishes to stress again that whatever institutional arrangements are made for the provision of health care in prisons, it is essential that prison doctors' clinical decisions should be governed only by medical criteria and that the quality and effectiveness of their work should be monitored by a qualified medical authority. [Some improvements since 1995 were reported.] Full-time doctors had been appointed, and posts for psychiatrists created, at all prisons, and steps were being taken to employ full-time trained nurses. Further, the shortage of medicines within the prison system had been overcome... [T]he delegation heard complaints from prisoners at [the prisons visited, in Burgas and Stara Zagora] about delays in gaining access to the doctor. Prisoners who wished to be medically examined announced that to the officer on duty during the morning roll-call. Such requests were meant to be entered in a special register kept on each unit and presented to the doctor every morning. Such a system is unexceptionable. However, the CPT must stress that all requests to see a doctor should be brought to the attention of the prison doctor; it is not for prison officers to screen such requests.” 51. Historically, most Member States of the Council of Europe approached the question of the abolition of the death penalty by suspending executions pending debate on a final abolition. States which became members of the Council of Europe during the 1990s were urged by the Parliamentary Assembly to introduce moratoria on executions as a first step towards the abolition of the death penalty (see Report on the abolition of the death penalty in Europe, PA Doc. 7589 (25 June 1996)). 52. The Committee has held that “in the absence of further compelling circumstances” prolonged detention on death row per se does not constitute a violation of Article 7 of the International Covenant on Civil and Political Rights (prohibition of cruel, inhuman or degrading treatment) (see Hylton v. Jamaica, Views of 16 July 1996, communication no. 600/1994, Errol Johnson v. Jamaica, Views of 22 March 1996, communication no. 588/1994; and Michael Wanza v. Trinidad and Tobago, Views of 26 March 2002, communication no. 683/1996). 53. The Commission, when examining complaints by persons on death row, has found violations of Article XXVI of the American Declaration of the Rights and Duties of Man (prohibiting cruel, infamous or unusual punishment of persons accused of offences) and Article 5 §§ 1 and 2 of the American Convention on Human Rights (right to humane treatment and prohibition of torture, cruel, inhuman or degrading punishment or treatment) mainly on the strength of facts concerning irregularities in the sentencing process, the material conditions and regime of detention and ill-treatment in prison, while also taking into account the length of the period spent on death row (Andrews v. the United States of America, Case No. 11.139, Report No. 57/96, OEA/Ser/L/V/II.98, §§ 17883; Joseph Thomas v. Jamaica, Case No. 12.183, Report 127/01). 54. The Privy Council, examining cases from Caribbean Commonwealth States, had to decide whether the execution of a person following long delay after his sentence to death could amount to inhuman punishment or treatment contrary to those States' Constitutions. Initially, the Privy Council considered that a condemned person could not complain about delay of his execution caused by his resort to appellate proceedings (de Freitas v. Benny [1976] A.C. 239, Abbott v. Attorney-General of Trinidad and Tobago [1979] 1 W.L.R. 1342), or indeed about any delay, “whatever the reasons”, including a temporary moratorium on executions which had been lifted (Riley v. Attorney-General of Jamaica [1983] 1 A.C. 719). 55. In 1993, departing from its earlier decisions, the Privy Council held that to execute the appellants, who had spent almost fourteen years on death row and had on three occasions lived through last minutes stays of execution, would be unlawful as being inhuman punishment and therefore advised that their death sentences should be commuted to life imprisonment (Pratt and Morgan v. The Attorney General for Jamaica and another [1994] 2 A.C. 1). 56. In Pratt and Morgan, part of the relevant period was taken up by a temporary moratorium on executions. “[P]olitical debate on the desirability of retaining the death sentence in Jamaica ... resulted in a resolution of the Senate on 9th February 1979 to suspend all executions for a period of eighteen months pending the report of a Committee of inquiry. The Committee of Inquiry was appointed in June 1979. Before the Committee reported, an execution took place on 27th August 1980 which drew a protest to the Jamaican Privy Council from the Chairman of the Committee. No further executions took place before the Committee reported in March 1981. On 12th May 1981 executions were resumed” (Pratt, § 16). 57. The judgment in Pratt and Morgan stated, inter alia: “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. What gives rise to this instinctive revulsion? The answer can only be our humanity; we regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time. But before their Lordships condemn the act of execution as 'inhuman or degrading punishment or other treatment' within the meaning of section 17(1) [of the Jamaican Constitution] there are a number of factors that have to be balanced in weighing the delay. If delay is due entirely to the fault of the accused such as an escape from custody or frivolous and time wasting resort to legal procedures which amount to an abuse of process the accused cannot be allowed to take advantage of that delay for to do so would be to permit the accused to use illegitimate means to escape the punishment inflicted upon him in the interest of protecting society against crime... In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence... There may of course be circumstances which will lead the Jamaican Privy Council to recommend a respite in the carrying out of a death sentence, such as a political moratorium on the death sentence, or a petition on behalf of the appellants to [international human rights bodies] or a constitutional appeal to the Supreme Court. But if these respites cumulatively result in delay running into several years an execution will be likely to infringe section 17(1) and call for commutation of the death sentence to life imprisonment.” 58. Further, calculating the normal length of relevant appellate proceedings in Jamaica and taking into consideration the time necessary for examination of applications to the Inter American Commission of Human Rights and the UN Human Rights Committee, the Privy Council held that: “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute inhuman or degrading punishment or ... treatment”. 59. In cases which followed the Privy Council accepted a claim that a period of four years and ten months also warranted a finding in favour of the appellant (Guerra v. Baptiste and Others [1996] 1 A.C. 397) but dismissed appeals concerning shorter periods (Henfield v. The Attorney General of the Commonwealth of The Bahamas [1997] A.C. 413; Fischer (No. 1) v. The Minister of Public Safety and Immigration and Others (Bahamas) [1998] A.C. 673; and Higgs and David Mitchell v. The Minister of National Security and Others (Bahamas) [1999] UKPC 55) and held that save in exceptional circumstances, periods of pre-sentence detention should not be taken into account since, inter alia, “the state of mind of the person ... during this earlier period is not the agony of mind of a man facing execution, but ... anxiety and concern of the accused”(Fisher, § 14). In Higgs and David Mitchell, the Privy Council stated, inter alia: “If a man has been sentenced to death, it is wrong to add other cruelties to the manner of his death... In Pratt ... the [Privy Council] held that the execution after excessive delay was an inhuman punishment because it added to the penalty of death the additional torture of a long period of alternating hope and despair. It is not the delay in itself which is a cruel and unusual punishment..., 'it is the act of hanging the man that is rendered cruel and unusual by the lapse of time”. 60. The Supreme Court of India found that execution following inordinate delay after sentence of death violated Article 21 of the Indian Constitution which provides that “no one shall be deprived of his life or personal liberty except according to procedure established by law” and that the reasons for the delay were immaterial (Vatheeswaran v. State of Tamil Nadu [1983] 2 S.C.R. 348, Sher Singh and Others v. the State of Punjab [1983] 2 S.C.R. 582 and Smt. Treveniben v. State of Gujarat [1989] 1 S.C.J. 383). 61. The United States' Supreme Court has refused to accept claims that lengthy detention on death row violated the prohibition, contained in the Eight Amendment to the Constitution of the United States of America, of cruel and unusual punishment, emphasising that the delay is due to the convicted person's own decision to make use of all possibilities to appeal (Knight v. Florida, 528 US 990). 62. The Supreme Court of Canada has held that Canadian constitutional standards did not bar extradition to the United States of America of a defendant facing the death penalty (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779). However, in 2001 it changed its approach and held that if the person being extradited could face the death penalty, constitutional standards required that in all but exceptional cases assurances must be sought from the United States of America that the death penalty would not be imposed or, if imposed, would not be carried out (United States v. Burns, [2001] 1 S.C.R. 283). | 1 |
train | 001-104963 | ENG | HUN | CHAMBER | 2,011 | CASE OF CSULLOG v. HUNGARY | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 13+3;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | 5. The applicant was born in 1964 and lives in Budapest. 6. The applicant was arrested on 7 February 2005. In 2006 he was convicted of conspiracy to murder and sentenced to five years’ imprisonment in a strict-regime prison. Following the delivery of a non-final judgment, on 24 April 2006 he was transferred to Sopronkőhida Strict and Medium Regime Prison, where he was placed in a special security cell. On 28 April 2006 the applicant’s defence counsel filed a request for transfer with the Ministry of Justice. On 27 June 2006 the Head of the Penitentiary Administration Unit of the Detention Affairs Department of the National Headquarters of the Penitentiary Service (“the Penitentiary Administration”) authorised the applicant’s transfer to Vác Strict and Medium Regime Prison. 7. Upon a subsequent decision of the Committee for Ordering Special Detention (“the “Committee”), on 17 August 2006 the applicant was transferred to Sátoraljaújhely Strict and Medium Regime Prison in order to be placed in a special security department. In this context the Government submitted that the prison authorities had been informed that his escape had been under preparation; that under Section 30(3) of Act no. CVII of 1995 on the Penitentiary Service this kind of information relating to the security of detention could not be communicated to the detainee; that, besides, further criminal proceedings were being conducted against him; and that these elements had warranted his placement in an appropriate, closed institution and his separation, as far as possible, from his accomplices. The applicant’s placement in a special security department was also supported by information received from the National Bureau of Investigation, classified as a State secret. The information which served as the basis for the decision has never been revealed to the applicant. None of the applicant’s accomplices were placed in a special security department. 8. Between 17 August 2006 and 23 September 2008 the applicant was detained as a “Grade 4 security” inmate in Sátoraljaújhely prison’s special security department (“KBK”), apart from the period between 15 February and 27 March 2007, which he spent in similar circumstances in Budapest Prison. His classification as a “Grade 4 security” inmate and his placement in the “KBK” department were reviewed and prolonged at regular intervals, but without any reasoning. His complaints about the conditions of detention to the National Commander of Penitentiaries, the Borsod-Abaúj-Zemplén County Public Prosecutor’s Office and the Attorney General’s Office were to no avail. Upon the applicant’s enquiry, on 25 June 2007 the County Public Prosecutor’s Office stated that “decisions concerning placement in KBK departments falls within the jurisdiction of the National Headquarters of the Penitentiary Service, therefore the County Public Prosecutor’s Office is not entitled to take measures in this regard.” The Public Prosecutor’s Office found that all the measures taken by the prison authorities had a proper legal basis. 9. The rules pertaining to the conditions prevailing in the KBK departments are outlined in the chapter on Relevant domestic law (see paragraphs 13 to 16 below). The applicant submitted that there was only artificial light in his cell, the ventilation was insufficient, the toilet had neither a seat nor a cover, and he had to endure full cavity searches on a daily basis. Moreover, the range of objects he was allowed to possess in his cell was very restricted: no watch, pen, comb, plastic cutlery, teabag or stationery was allowed, and he could have only a limited number of books or newspapers. 10. Subsequently, the applicant was transferred to Budapest Prison. His detention continued under the “Grade 4 security” regime, although he was no longer placed in a KBK department. He was accommodated in a special security cell located in the basement level of the institution. 11. Having served his sentence, the applicant was released on 10 February 2009. “(2) Inmates shall have the right to access, with the exceptions specified in subsection (3), all the data related to them and to request the rectification of any incorrect data and the deletion of unlawfully kept data. Such requests of the inmates shall be complied with. (3) Data relating to the security of detention and originating from an action which the detainee must tolerate under the law shall not be communicated to the inmate. On release, such data shall be communicated to the inmate upon request, unless they contain service or State secrets.” “(1) Unless provided otherwise under the law, matters relating to an inmate’s detention shall be decided on – upon request or ex officio – by the head of the designated unit of the penitentiary institution in which the inmate is residing for the purpose of serving the punishment or measure imposed on him. In matters relating to his detention, the inmate may, without indicating the subject matter of his request ..., request the head of the unit or the governor of the penitentiary to hear him in person, or submit a written request. (2) Inmates may file a complaint to the governor against a ruling, measure, decision or omission occurring in the context of subsection (1). Where the decision has been taken by the governor ..., the complaint shall be examined by the national governor. (3) Where, in cases specified under the law, the inmate’s case was decided on ... by the national commander, the complaint shall be examined by the Minister ...” “(1) Inmates shall be classified by the Reception and Employment Committee ... as belonging to the ‘Grade 1, 2, 3 or 4 security groups’ on the basis of the increasing threat level which their detentions pose. (2) When assigning inmates into a security group, the following elements shall be taken into consideration: a) the offence committed (its nature and circumstances), the duration of the imprisonment and the prison regime imposed, the portion of the sentence not yet served, and the date of parole, b) the inmate’s personality, previous record, health and physical state and contacts, c) – if other criminal proceedings have been instituted against the detainee – the nature and circumstances of the act giving rise to those proceedings, d) the characteristics of the penitentiary institution and the security aspects of the inmate’s occupation. (3) On the basis of the elements specified in subsection (2): ... d) Inmates who are expected with good reason to commit an act severely violating the order of the penitentiary, to escape, or to endanger their own life or limb or that of others, or who have already committed such acts and whose safe detention may only be guaranteed by close guarding or – exceptionally – by strict surveillance shall be classified as “Grade 4 security” prisoners. (4) If the facts or data necessary for the security group classification are incomplete, inmates shall be classified as ‘Grade 3 security’ prisoners until the missing facts or data are obtained.” “(1) ... ‘Grade 4 security’ classification is to be reviewed by the reception committee every three months. (2) If a change occurs in the circumstances underlying the inmate’s classification, the reception committee ... shall modify it, irrespective of the time-limit[s] specified in section (1).” “(1) Classification into security groups shall not affect statutory inmate rights; the manner and order of exercising those rights under the various security regimes shall be regulated in the prison rules. (2) The reasons underlying the classification of an inmate into a certain security group shall only be communicated to him if such communication does not endanger the security of detention.” “(1) An inmate classified as ‘Grade 4 security’ prisoner may be placed in a special security cell or department. (2) An inmate may also be placed in a special security cell or department if the protection of his life or limb cannot be secured otherwise. (3) An inmate placed in a special security cell or department shall: a) be under constant surveillance, b) move around on the premises of the institution only with permission and under supervision, and his cell shall be kept locked, c) work only inside the special safety department or at a place designated by the governor, d) not participate in inmates’ associations, e) participate in educational, sport and spare-time group activities only inside the special security department or with the governor’s permission; he, however, may practice self-education, f) not wear his own clothes – except for inmates placed in a special security cell or department pursuant to subsection (2), g) possess only a limited range of personal objects. (4) The implementing rules concerning inmates placed in special security cells or departments shall be laid down in the prison rules. (5) Placement in a special security cell shall be ordered by the reception committee for a period of maximum three months which can be prolonged twice, each time for a period of maximum three months. Placement in a special security cell for a period exceeding these periods shall be ordered by a committee designated by the national commander... The justification for continued placement shall be reviewed by the committee every six months. (6) Placement in a special security department shall be ordered by the committee for a period of maximum six months. This period can be prolonged if reasons for such placement continue to exist. The justification for placement in a special security department shall be reviewed by the committee every six months. (7) Placement in a special security cell or department shall immediately be terminated when the underlying reasons cease to exist. (8) For the purposes of this Decree: a) ‘special security cell’ means specially built and equipped premises operating under special rules where inmates specified under subsections (1) and (2) shall be placed alone. The cells of the penitentiary institutions operating as special security cells shall be designated by the national governor... b) ‘special security department’ means a purpose-built, segregated part of the penitentiary institution designated by the national governor, which consists of special security cells and adjoining premises, where inmates specified under subsections (1) and (2) can be placed irrespective of the prison regime imposed on them.” “(1) Inmates shall have the right: ... g) to submit a statement of public interest, a complaint, a request or a legal declaration to the penitentiary institution, or to another organ independent of the penitentiary service;” The rules governing the conditions prevailing in “KBK” departments can be summarised as follows. Inmates under the “KBK” regime receive their visitors in special security rooms and have their meals on their own. They can exercise their right to periods in the open-air one person at a time in a special area; they may not participate in cultural or sport events together with other inmates; they may only watch television, listen to the radio, read, practise sport or observe their religion alone in their cells. Before and after every removal from the cell, the inmate must be body-searched and stripped if necessary. Such inmates shall undergo medical examinations, shave and wash themselves in their cells. Inmates under the “KBK” regime may be removed from the “KBK” department only if handcuffed and if it is ensured that they will not encounter other inmates. For medical examinations, such inmates must be handcuffed. At any given time, a maximum of two such inmates can benefit simultaneously from open-air periods or sports; however, they must not see or have contact with each other. “51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.” “52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. 52.3 Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety. 52.4 It shall be possible for prisoners to contact staff at all times, including during the night. 52.5 National health and safety laws shall be observed in prisons.” “53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.” “70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.” 18. The Commentary to the draft Rule 70 of the above Recommendation reads as follows: “This Rule does not attempt to prescribe an exclusive model of a complaints procedure but sets out the basic requirements such procedures should comply with lest they be considered to represent effective remedies in terms of art. 13 of the ECHR (see: Van der Ven v. The Netherlands (appl. nr. 50901/99 – 04/02/2003)). What is important is that the complaint procedure ends with a final binding decision taken by an independent authority. The member states are free to designate the independent authority that has the power to handle complaints. This can be an ombudsman or a judge (enforcement magistrate or executing or supervisory judge), supervising prosecutor, court, or a Public Defender (CPT/Inf (2002) 14 – Visit to Georgia in 2001).” “94. In every country there will be a number of so-called “dangerous” prisoners (a notion which covers a variety of types of person) in respect of whom special conditions of custody are required. This group of prisoners will (or at least should, if the classification system is operating satisfactorily) represent a very small proportion of the overall prison population. However, it is a group that is of particular concern to the CPT, in view of the fact that the need to take exceptional measures concerning such prisoners brings with it a greater risk of inhuman treatment than is the case with the average prisoner. 95. The dangers involved in this area are well described in the following extract from the Explanatory Memorandum to the Recommendation (No. R(82)17) on the custody and treatment of dangerous prisoners adopted by the Committee of Ministers of the Council of Europe on 24 September 1982: “43. Human dignity is to be respected notwithstanding criminality or dangerousness and if human persons have to be imprisoned in circumstances of greater severity than the conventional, every effort should be made, subject to the requirements of safe custody, good order and security and the requirements of community well-being, to ensure that living environment and conditions offset the deleterious effects – decreased mental efficiency, depression, anxiety, aggressiveness, neurosis, negative values, altered biorhythms – of the severer custodial situation. In the most serious instances prisoners regress to a merely vegetative life. Generally the impairment may be reversible but if imprisonment, especially in maximum security, is prolonged, perception of time and space and self can be permanently and seriously impaired – ‘annihilation of personality’.” 96. ... The status of Grade 4 prisoners is reviewed every six months. However, it would appear that the reasons underlying the decision for placement/prolongation of a Grade 4 measure are not disclosed to the prisoner concerned. 97. It is axiomatic that a prisoner should not be held in a special security regime any longer than the risk which he presents makes necessary. This calls for regular reviews of the placement decision. Further, prisoners should as far as possible be kept fully informed of the reasons for their placement and, if necessary, its renewal; this will inter alia enable them to make effective use of avenues for challenging that measure. 98. Consequently, the CPT recommends that: – a prisoner who is placed in a Grade 4 regime by the judicial or prison authorities or whose placement in such a regime is renewed be informed in writing of the reasons for that measure (it being understood that the reasons given could exclude information which security requirements reasonably justify withholding from the prisoner); – a prisoner in respect of whom such a measure is envisaged be given an opportunity to express his views on the matter; – the placement of a prisoner in such a regime should be as short as possible and reviewed at least every three months. 100. Firstly, the delegation observed at Budapest Remand Prison that means of restraint (such as handcuffs and/or anklecuffs) were routinely applied to Grade 4 prisoners. ... The practice of routinely handcuffing and/or anklecuffing prisoners when outside their cell is highly questionable, all the more so when it is applied over a prolonged period of time in a secure environment. ... 101. Secondly, some Grade 4 prisoners were kept for some considerable time in isolation and had particular difficulties to receive visits and have access to a telephone, allegedly for security reasons.” “64. ... The CPT calls upon the Hungarian authorities to take steps to implement its previous recommendations concerning the provision to prisoners placed in a Grade 4 regime of written information on the reasons for the measure as well as the opportunity to express their views on the matter. It is equally important to provide such prisoners with written information on the possibilities to contest the decision. More generally, the Committee recommends that the Hungarian authorities review and refine the system of classifying prisoners as Grade 4 with a view to ensuring that this grade is only applied – and retained – vis-à-vis prisoners who genuinely require to be accorded such a status.” “66. ... The CPT must reiterate its view that there can be no justification for routinely handcuffing prisoners outside their cells, all the more so when this measure is applied in an already secure environment. The application of restraints while the prisoner is inside a secure exercise yard is clearly an unacceptable practice. As regards the handcuffing of prisoners during medical consultations, in the CPT’s view, such a practice infringes upon the dignity of the prisoners concerned and prohibits the development of a proper doctor-patient relationship (and is possibly detrimental to the establishment of an objective medical finding). The CPT calls upon the Hungarian authorities to review without further delay their current policy with regard to the application of means of restraint to prisoners placed under a special security regime (Grade 4 prisoners).” | 1 |
train | 001-60687 | ENG | DEU | CHAMBER | 2,002 | CASE OF STAMBUK v. GERMANY | 3 | Violation of Art. 10 | Ireneu Cabral Barreto | 8. The applicant was born in 1943 and lives in Blaubeuren. 9. On 25 October 1995 the Tübingen District Disciplinary Court for Medical Practitioners (Bezirksberufsgericht für Ärzte) imposed a fine amounting to 2,000 German marks (“DEM”) upon the applicant, an ophthalmologist, for disregarding the ban on advertising under the relevant provisions of the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council (Berufsordnung der Landesärztekammer) and the Act on the Councils for the Medical Professions (HeilberufeKammergesetz). 10. In its reasoning, the Disciplinary Court found that the applicant performed medical operations with a laser technique. In the house where he had his consultation rooms, his wife ran an “excimer-laser-centre”. In May 1994 the journalist Ms K. of the newspaper Schwäbische Zeitung had visited the applicant, upon appointment, in his consultation rooms and discussed his new laser operation technique. Moreover, a photograph was taken of the applicant at his place of work. On 26 September 1994, there had appeared in the said newspaper an article signed by Ms K. and entitled “Cornea under fire – laser restores full vision. In Blaubeuren, the ‘photorefractive keratotomy’ has been applied since three years – operation risks are low - expenses are partly reimbursed by the insurances” (“Die Hornhaut unter Beschuss – Laser gibt dem Auge die volle Sehkraft zurück. In Blaubeuren wird seit drei Jahren die ‘Photorefraktive Keratektomie’ angewandt – Operationsrisiken sind gering – Kosten werden teilweise von den Kassen übernommen.”). In the article, it had been inter alia stated that, according to his indications, the applicant had treated more than 400 patients having defective vision with a laser technique and that in no case had any subsequent corrective measures been necessary and that accordingly he had a success rate of 100%. The article had also reported the applicant’s statement that the long-term success of an operation depended upon the experience of the medical practitioner and on the selection of the patients. The article had been illustrated by a photograph of 12x19 cm in size which showed the applicant at his computer pointing to the monitor. It had the caption: “On the occasion of the ‘mapping’ Dr Miro Stambuk sees on the monitor of his computer whether or not the patient can be treated with the laser technique” (“Beim ‘mapping’ sieht Dr. Miro Stambuk auf dem Monitor seines Computers, ob ein Patient mit dem Laser behandelt werden kann.”). 11. The Disciplinary Court considered that the applicant had thereby disregarded sections 25(2) and 27 of the Rules of Professional Conduct of the Medical Practitioners’ Council (see below, Relevant domestic law, paragraph 20). Thus, according to section 25(2), a medical practitioner should not allow for picture-stories to be published in respect of his professional activities which had an advertising character, indicated the name and showed a photograph. According to section 27, the cooperation of a medical practitioner in informative publications in the press was only permissible if these publications were limited to objective information and if the person and the activities of the practitioner were not presented in the form of an advertisement. In press interviews, the medical practitioner was held to “responsible objectivity” (“verantwortungsbewusste Objektivität”). 12. According to the Court, the applicant had disregarded these rules in that he had, in the interview, stressed having treated more than 400 patients and had had a success rate of 100%. He had thereby mainly aimed at giving prominence to his own person. This was confirmed by his remark about his professional experience. Likewise, the large photograph, showing the applicant in his medical coat posing as lecturer in front of his computer, went beyond the permissible limits of objective information, as, together with the self-praise found in the text, the message was conveyed that the applicant was a particularly experienced medical practitioner. The applicant should have negotiated with the reporter the objective character of the publication and the size of the photograph in order to comply with the ban on advertising. 13. On 15 June 1996 the Stuttgart Disciplinary Appeals Court for Medical Practitioners (Landesberufsgericht) dismissed the applicant’s appeal. The Appeals Court confirmed the facts established by the District Court and its legal reasoning. 14. The Appeals Court considered in particular that in order to give effect to the ban on advertisement as laid down in section 25(1) of the Rules of Professional Conduct, cooperation with the press had to be prohibited to the extent that publications had an advertising character (section 25(2)). No less restrictive measure was available. The wording of a publication could disguise its advertising character and thus be a means to circumvent the ban on prohibition. 15. Having regard to the circumstances of the interview and the presentation of the article, the Appeals Court further considered that the applicant had not only tolerated that an article was published which would go beyond objective information on a particular operation technique, but had deliberately acted so as to give prominence to his own person. The Appeals Court also stated that, having regard to the interests of his colleagues, the ban on advertising outweighed the applicant’s freedom to exercise his profession . 16. On 7 May 1997 the Federal Constitutional Court refused to admit his constitutional complaint. The decision was served on 22 May 1997. 17. In the Federal Republic of Germany, the medical profession is governed partly by Federal law and partly by the law of the Länder. The principal rules relevant for the present case are to be found in the Federal Medical Practitioners’ Act (Bundesärzteordnung) of 1953 in the version of 16 April 1987 (amended in 1988, 1990, 1992 and 1993), the Baden-Württemberg Act on the Councils for the Medical Professions (Gesetz über die öffentliche Berufsvertretung, die Berufspflichten, die Weiterbildung und die Berufsgerichtsbarkeit der Ärzte, Zahnärzte, Tierärzte, Apotheker und Dentisten – Heilberufe-Kammergesetz) of 16 March 1995 (amended in 1999 and 2000), and the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council in the version of 23 February 1994, as amended in September 1996 (in force at the material time – recent amendments in 1998, 2000 and 2001). 18. According to section 1 of the Federal Medical Practitioners’ Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole; he exercises a liberal profession and not a trade or business. 19. The medical practitioners practising in Baden-Württemberg constitute the Baden-Württemberg Medical Practitioners’ Council, which is a public-law association (sections 1, 2 and 7 of the Baden-Württemberg Act on the Councils for the Medical Professions). The functions of the Medical Practitioners’ Council include defending the interests of its members and ensuring that they meet their professional obligations (section 4 of the said Act). The Council adopts decrees concerning inter alia the Rules of Professional Conduct (section 9 of the said Act). 20. As regards professional communications, the Baden-Württemberg Rules of Professional Conduct of the Medical Practitioners’ Council, as in force at the material time, provided as follows: Section 25 “(1) A medical practitioner is not allowed to advertise his own services or those of other medical practitioners. He shall not instigate or tolerate such prohibited advertising by others. ... (2) A medical practitioner shall not tolerate the publication of reports or picture-stories on his professional activity with an advertising character, stating his name, showing his photograph or indicating his address.” Section 27 “Medical publications or the cooperation in informative publications in press, broadcasting or television are permissible if and to the extent that these publications or the medical practitioner’s cooperation are limited to objective information and neithr the medical practitioner himself nor his activities are presented in the form of an advertisement. In such instances, the medical practitioner is held to ‘responsible objectivity’. The same shall apply to public lectures on medical issues.” 21. Sections 55 to 69 of the Baden-Württemberg Act on the Councils for the Medical Professions govern the disciplinary powers of the Councils. According to section 55(1) and (2), members of these Councils face disciplinary action for professional misconduct (berufsunwürdige Handlungen), i.e. conduct offending their professional duties as members of the Chamber concerned. Pursuant to section 58, the following disciplinary penalties may be imposed in disciplinary court proceedings: warning, reprimand, a fine of up to DEM 100,000, a loss of membership of the Council organs and of other representative bodies or committees of subordinate entities for a period not exceeding five years, loss of the right to vote and to stand for elections to such organs for a period not exceeding five years. Disciplinary proceedings are, at first instance, conducted before the district disciplinary courts (section 60); an appeal lies against the decision of the district disciplinary court and must be lodged with the disciplinary appeals court (section 61). | 1 |
train | 001-112434 | ENG | TUR | COMMITTEE | 2,012 | CASE OF HAYRETTİN DEMİR v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre | 5. The applicant, Mr Hayrettin Demir, is a Turkish national who was born in 1971 and is currently detained in Diyarbakır prison. 6. On 8 March 1995 the applicant and a number of suspects were arrested in the context of an operation led by security forces in Mardin on suspicion of membership of Hizbullah, an illegal organisation. Prior to being taken into police custody, the applicant was examined by a doctor who observed no sign of illtreatment on his person. 7. The applicant alleges that during his questioning by the police he was tortured and compelled to sign incriminating statements in the absence of a lawyer. 8. On 4 April 1995 the applicant was examined by a doctor who found no injuries on his person. 9. On 5 April 1995 the applicant was taken to the public prosecutor and the investigating judge, before whom he alleged that he had been ill-treated while in police custody. He claimed that he had been hung by his arms, given electric shocks and beaten by police officers. Later on the same day, the investigating judge placed the applicant in pre-trial detention. 10. On 11 April 1995 the applicant and twelve co-suspects, arrested in the same security operation conducted against Hizbullah, lodged a complaint with the Mardin public prosecutor, alleging that they had been ill-treated in police custody. 11. On the applicant’s request to the prison authorities to obtain another medical examination, on 12 April 1995 he was examined by a doctor in a public health clinic, who observed bruises on the inner part of the applicant’s lower arms, between his wrists and elbows. 12. The public prosecutor took statements in respect of the allegation of torture from a number of suspected police officers, who denied the accusations. They maintained that the bruises on the applicant’s arms, which were detected in a medical report obtained later, must have been caused after his release from police custody. 13. On 30 May 1995 the Mardin public prosecutor refused to commit the police officers for trial, taking into account the medical reports drafted at the beginning and end of the applicant’s detention in police custody, which had recorded no injuries on his body. In this regard, the prosecutor found that the applicant’s allegation of having been ill-treated in police custody was unsubstantiated. This decision was notified to the applicant on 13 July 1995. 14. In the meantime, on 23 May 1995, the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and twenty-four other persons, charging them with the membership of an illegal organisation and involvement in a number of illegal activities on behalf of the organisation, such as murder, assault and arson. 15. On 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge. 16. Following the entry into force of Law no. 5190 of 16 June 2004, the criminal proceedings were transferred to the Diyarbakır Assize Court. 17. During the proceedings the Diyarbakır Assize Court reviewed the lawfulness of the applicant’s detention on a regular basis in accordance with Article 108 of Law no. 5271 and found that his pre-trial detention should be continued on account of the severity of the offences, the reasonable grounds of suspicion that he had committed those with which he was charged, and the state of the evidence in the case file. 18. On the basis of the range of evidence, namely confiscated documents of the illegal organisation, ballistic and autopsy reports, statements taken before the police, public prosecutor and judges, the medical reports drawn up at the beginning and end of police custody, statements taken during the trial from witnesses and other co-accused, on 31 March 2005 the Diyarbakır Assize Court established that the applicant, as a member of Hizbullah, had been involved in a number of terrorist activities, including the murder of numerous people. Subsequently, the trial court convicted the applicant of attempting to undermine the constitutional order of the State, as proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment. 19. On 1 June 2005 the new Criminal Code entered into force. 20. On 11 December 2006 the Court of Cassation quashed the judgment, holding that it should be revised in the light of the provisions of the new Criminal Code. 21. On 9 November 2007 the first-instance court once more convicted the applicant under Article 146 of the former Criminal Code and sentenced him to life imprisonment. 22. On 19 January 2009 the Court of Cassation upheld that judgment. | 1 |
train | 001-5135 | ENG | SWE | ADMISSIBILITY | 2,000 | BLOM v. SWEDEN | 4 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is a Swedish national, born in 1947 and living in Huddinge. She is represented before the Court by Mr Georg Antal, a lawyer practising in Stockholm. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant applied for disability benefits in November 1991. Additional information was requested from her and she was asked to fill out the appropriate form. Her formal application for a disability allowance (handikappersättning) under Chapter 9, Section 2 of the 1962 Social Insurance Act (lagen om allmän försäkring; hereinafter “the 1962 Act”) was lodged on 26 February 1992. Six different medical opinions and also medical records from a hospital were enclosed. The applicant invoked back problems and problems relating to incontinence. She stated, inter alia, that she was unable to use public transportation. The Social Insurance Office (försäkringskassan) of the County of Stockholm requested the opinion of two other medical doctors who were attached to the Office in order to assist in medical matters (förtroendeläkare; ”insurance doctor”). After having studied the documents in the case, the insurance doctors came to different conclusions. One doctor, T.A., considered that the applicant was unable to use public transportation and the other doctor found that the available documents failed to substantiate this contention. On 10 February 1993 the Office rejected the application, finding that the applicant’s needs or costs did not attain the level required under the above Act. Doctor T.A.’s statement had not been included among the documents which formed the basis of the Office’s decision, nor had the applicant been informed of the statement. After the applicant had made a complaint in these respects, the Parliamentary Ombudsman (Justitieombudsmannen) levelled serious criticism against the Office’s handling of the case. The applicant appealed against the Office’s decision to the County Administrative Court (länsrätten) of the County of Stockholm. Before this court as well as during the following court proceedings she was represented by legal counsel. She requested the court to hold an oral hearing and to obtain the opinion of a medical expert. She gave no explicit motive for her request for an oral hearing. On 4 May 1994 the court informed the applicant as follows: (Translation) “Having regard to the available material, the [court] finds no need to hold an oral hearing. In your submission of 11 March 1993 you have also requested the court to obtain a certificate from a medical doctor with special neurological knowledge regarding the need to use a car for transport to and from work and the need for help with heavy domestic duties. Doctor [I.O.-L.] has in a certificate of 22 April 1992 made an assessment of [the applicant’s] need of a car for transports to and from work. [The court] therefore considers further material unnecessary as regards that issue. [The court] invites you to submit whether you maintain your request. [The court] hereby gives you the opportunity to make in writing, no later than 18 May 1994, your final submissions in the case. If you maintain your request for an oral hearing in the case, you are required to submit to [the court], within the same time, a statement of evidence indicating the evidence you want to invoke and what you want to prove with each separate piece of evidence. [...] If no response is submitted to [the court], the case will be determined on the basis of the available material.” No submission of evidence was made by the applicant. Instead she responded by informing the court that she regarded the court’s notification as a decision of, inter alia, her request for an oral hearing. By judgment of 23 June 1994, the County Administrative Court, taking into account the medical certificates and the other evidence in the case, rejected the applicant’s appeal with extensive reasons. The court, referring to most of the medical certificates available in the case, found no evidence from the documentation supporting that the applicant in her everyday life needed assistance from another person to such an extent as to qualify for benefits. Neither did the court find that the applicant needed continuing assistance in order to be gainfully employed. Lastly the court found nothing to substantiate that the applicant due to a functional impairment was prevented from using public transportation to and from work, for which reason she was not entitled to benefits in order to cover any extra expenses. The applicant then appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm, submitting yet another medical certificate. She again requested that the opinion of a medical expert be obtained. She did not request the appellate court to hold an oral hearing, and the court did not hold a hearing on its own motion. By decision of 16 September 1994 the court rejected her request for a further medical opinion and instructed her to submit concluding arguments in writing. On 7 October 1994 the Administrative Court of Appeal, after having rejected the applicant’s renewed request for a further medical opinion, upheld the County Administrative Court’s judgment with substantial reasons. The court referred to the new medical certificate and found that the functional impairments described therein did not prevent the applicant from using public transportation. The applicant made a further appeal to the Supreme Social Insurance Court (Försäkringsöverdomstolen). She requested that an oral hearing be held and that the opinion of a medical expert be obtained. She also complained about the lack of oral hearings before the lower courts and their refusal to obtain a further medical opinion. By letters of 15 March and 25 April 1995, the Supreme Social Insurance Court informed the applicant that it did not intend to request a further medical opinion or to hold an oral hearing. The applicant was given the opportunity to submit further observations on the question of leave to appeal. On 12 June 1995 the Supreme Social Insurance Court refused the applicant leave to appeal against the judgment of the Administrative Court of Appeal. B. Relevant domestic law According to Chapter 9, Section 2 of the 1962 Act, a person who is ill or handicapped may receive disability benefits provided that he or she is insured and registered with a Social Insurance Office and has reached the age of 16. A further requirement is that the insured person before turning 65 years of age has become functionally impaired for a considerable time and to such a degree that he or she is in need of more time-consuming assistance from another person on a daily basis, is in need of continuing assistance in order to be gainfully employed or otherwise has considerable extra expenses. All Swedish nationals and other residents in Sweden are automatically insured in accordance with the 1962 Act. It is the total need of support and assistance that determines whether an insured person is entitled to disability benefits and, should that be the case, the amount of compensation. When making this assessment, it is necessary to look into the insured person’s whole situation and to add together the need for different types of assistance and extra expenses. A medical report is required when it comes to the assessment of the functional impairment itself. As far as extra expenses are concerned, the extent to which other measures from the social services compensate also have to be taken into account, for instance assistance benefit (when the handicapped person has his or her own personal assistant). When it comes to costs for transportation to and from work by car, it also has to be considered whether it is possible to use public transportation service for the disabled. Furthermore, at the time of relevance for the present case, protection aids against incontinence were provided free of charge. Disability benefits are not subject to taxation. They are granted on a yearly basis with 69, 53 or 36 per cent of the yearly basic amount for national security purposes (“the basic amount”), depending on the extent to which the insured person is in need of assistance and the amount of extra expenses caused by the handicap. The basic amount was 33,700 Swedish kronor (SEK) during 1992 when the applicant applied for disability benefits. In 1993, when her application was rejected by the Social Insurance Office, the amount was SEK 34,400. A decision by the Social Insurance Office in accordance with the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and, at the relevant time, to the Supreme Social Insurance Court. The latter court was the highest social insurance court prior to 1 July 1995. The Supreme Social Insurance Court was abolished with effect from this date and its tasks were taken over by the Supreme Administrative Court (Regeringsrätten). The Supreme Social Insurance Court could not examine a case on its merits without first granting leave to appeal. According to the provisions in force after 1 July 1993, the Court could grant leave to appeal in two different situations: if it was of importance for guidance in application of the law that the Court examine the case; and if there were extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground existed for the re-opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake. The procedure in the administrative courts is governed by the provisions of the 1971 Administrative Court Procedure Act (förvaltningsprocesslagen; hereinafter ”the 1971 Act”). The same Act also regulated the proceedings before the Supreme Social Insurance Court. According to Section 9 of the Act, the proceedings consist of a written procedure. However, the proceedings may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted. According to the third paragraph of Section 9, an oral hearing shall take place before a County Administrative Court and an Administrative Court of Appeal on the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it. Thus, the opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Social Insurance Court. According to the travaux préparatoires to the 1971 Act (Government Bill 1971:30, p. 353) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in two respects, mainly. First of all, in order to hear a witness, an expert witness or a party, or when it is difficult for a party to present the case in writing. Secondly, in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. When the Act was drafted, it was also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely as a complement to it. The reference in Section 9 of the 1971 Act to the promotion of a rapid determination of the case was added in 1983. The purpose was to make it clearer that an oral hearing could, and should, be held in order to further a more rapid and effective examination of the case. The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts (cf. Government Bill 1982/83:134). In connection with the enactment of the 1971 Act it was stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration. However, the party would not be allowed to have a decisive influence in the matter. The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case. Other circumstances can, however, also be of relevance, for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party’s understanding of a future decision in the case. A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake (cf. Government Bill 1971:30, p. 537). | 0 |
train | 001-99898 | ENG | RUS | CHAMBER | 2,010 | CASE OF LOPATA v. RUSSIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 6-1+6-3-c;Violation of Art. 34;Non-pecuniary damage - award | Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Josep Casadevall;Luis López Guerra | 6. The applicant was born in 1963 and resided before his arrest in the village of Akhunovo, in the Bashkortostan Republic. 7. On 3 August 2000 the applicant was arrested along with several other village residents and placed in the temporary detention centre of the Uchaly police station (ИВС Учалинского ГРОВД, “the police station”). He was allegedly beaten and pressurised to confess to the murder of a certain Mr D. in the village of Akhunovo. The applicant remained in detention for fourteen days; the legal basis for his detention remains unclear. After fourteen days of detention he was released. 8. On 5 September 2000 the applicant was again arrested and taken to the police station. On the same day he was questioned by Kh.A., an investigator at the Uchaly district prosecutor's office (“the district prosecutor's office”), V.G., a senior operational officer of the Ministry of the Interior of the Bashkortostan Republic, Ya.M., the deputy head of the police station, and I.M., head of the criminal police. According to the applicant, throughout the interview they put pressure on him to confess to D.'s murder. In particular, V.G. explained to him in detail why he had killed D, saying that the applicant had committed the crime because he had found his daughter and D. making love. The applicant denied having murdered D. 9. According to the Government, on 5 September 2000 Kh.A. formally explained to the applicant the rights of an accused, including the right to free legal assistance, and assigned a certain Ur. to represent him. A copy of the related record produced by the Government is signed by Kh.A. and does not bear the signature of either the applicant or Ur. 10. On 6 September 2000 the applicant retained private defence counsel, A.A., to represent him. It appears that on that day and on the following day she visited him in the police station. 11. On 8 September 2000 Kh.A., who was in charge of the investigation into D.'s murder, authorised the applicant's detention on remand. The applicant was accused of murdering D., a friend of the applicant's daughter, on the night of 29-30 July 2000. 12. In a six-page typed and undated attachment to the supervisory review application lodged with the Supreme Court of the Russian Federation in April 2001, the applicant presented the following description of the ill-treatment to which he had allegedly been subjected on 8-9 September 2000. His submissions may be summarised as follows. 13. At about 3 p.m. on 8 September 2000 the applicant was brought to an office in the Uchaly police station where V.G. and Ya.M. were already present. Kh.A. was not there. VG. and Ya.M. pressurised the applicant to write a voluntary “confession statement” (явка с повинной) and promised in exchange to ask the investigator to reclassify the applicant's offence as involuntary manslaughter in a fit of passion. The applicant did not admit to being guilty and refused to make any statements to that effect. 14. Ya.M. and V.G. started beating the applicant. They hit his head against the wall, twisted his arms, punched his neck and kicked him in the groin. The beatings alternated with admonitions to him to confess. On three occasions the applicant was placed with his hands against the wall, legs wide apart, and V.G. hit his ankles so that the applicant's legs slid apart and the applicant fell. The applicant refused to confess and told the police officers that he would not tell them anything in the absence of his lawyer, which triggered a new series of beatings. The applicant was then taken back to his cell for a respite. 15. At about 9 p.m. R.Kh., deputy head of the criminal police, took the applicant from his cell to I.M.'s office on the second floor. Officers Ya.M. and V.G. were in the room and R.Kh. stayed outside. The applicant was shown a confession statement written by someone else and was ordered to confess too. After he refused, police officers switched on the television and started punching him in the face and kicking his ankles. This lasted for approximately twenty minutes, then V.G., using the remote control unit, set the television to switch on in one hour; this signalled an hour-long pause in the beatings. The applicant was handcuffed and taken back to the cell by R.Kh. who had waited outside. 16. An hour later the applicant was taken back to the office. This time I.M. joined V.G. and I.M., while R.Kh. stayed outside. The applicant refused to write a confession statement. The officers then turned the applicant to face the wall, took a truncheon out of a cupboard, pulled the applicant's trousers down and threatened to rape the applicant with the truncheon. Once the applicant lowered his arms to pull his trousers up, he received a series of truncheon blows to his head, back and legs. He fell and broke his lip against the cupboard. After a series of punches and kicks the officers set the timer for one hour and I.M. placed the applicant in the cell, having hit his head against the cell door. 17. When the applicant was brought back again, the officers were drinking beer and offered one to the applicant. The applicant had a drink and then he was sent back to the cell to “think about [his] confession”. 18. Later on, the applicant was taken out of the cell several times and led to different offices where Ya.M., I.M., V.G. and R.Kh., taking turns, tortured him in various ways. The applicant's handcuffed hands were twisted so that he strangled himself, and he received strong blows to his left ear. In particular, V.G. put his hand on the applicant's right ear and with another hand started punching him, with force, on the left ear. After the third punch the applicant felt liquid flowing out of his left ear. 19. At about 5 a.m. on 9 September 2000 police officers escorted the applicant to the investigator's office in the centre and told him to write down what he had been doing on 29 July 2000. It appears that the applicant did something wrong and the officers stuffed the “spoiled” sheet of paper in his mouth and twisted his limbs in all directions. 20. Finally, the applicant gave in and wrote a confession statement along the lines described to him by V.G. during the first interrogation on 5 September 2000. The officers read the statement and continued to beat him to get a more detailed account. The applicant wrote that at about 1.30 a.m. on 30 July 2000 he had gone out to look for his daughter and discovered her having sex with a man, his daughter lying on the ground under the man. The applicant had taken a log, hit the man on the head and had then sent his daughter back home. The applicant had not been able to hide the body immediately because his scooter had been broken. 21. On 9 September 2000 at about 6.30 a.m. the applicant was escorted to the cell. On the same day at 11 a.m. Ya.M. and V.G. woke the applicant up and told him that he would be transported to a detention facility in Ufa. He objected to the trip; his right ear was blocked and his left ear oozed blood and other fluids. At about 4 p.m. Kh.A. called the applicant and asked him whether he was ready to testify. The applicant refused to speak without his counsel, A.A. The investigator told the applicant that it was complicated to find the applicant's lawyer because it was Saturday. The applicant was escorted back to the cell. 22. On 10 September 2000 the applicant stayed in the cell. 23. On 11 September 2000 I.M., V.G. and the director of the temporary detention centre took the applicant in a private car, a light coloured Zhiguli, to remand centre SI-1/2 of Beloretsk. The applicant was not examined by a medical officer and was placed directly in cell no. 13k, from which he was transferred to cell no. 43k. He remained there for three days. Three days later he was placed in cell no. 30k. According to the applicant, he was taken to the remand centre in a private car in order to hide his injuries. 24. The applicant's description also gave further details on the layout of the rooms, doors, furniture and objects in the police station where the ill-treatment allegedly took place. 25. In his application form to the Court of 8 June 2001 the applicant gave a similar, albeit more concise, description of the treatment allegedly inflicted on him in the police station. 26. The copy of the applicant's medical record produced by the Government reads, in so far as relevant: “...11 September [2000]. Complaints about pain in the left acoustic meatus... Cutaneous coverings: clean. Underwent delousing. State [of health] satisfactory. Ds[diagnosis]: acute chronic otitis on the left [side] [обострение хронического отита слева]... ... 25 October 2001. ...The left ear does not hear from a distance of 5 m[etres]. Ds: deafness in the left ear.” 27. According to forensic report no. 1060 dated 18 September 2000 and issued following investigator Kh.A.'s request for the applicant's medical examination (see below), on 14 September 2000 expert G. examined the applicant in the presence of A.M. with a view to establishing whether the applicant had any injuries. The report, in its relevant part, reads: “...present during the examination: convoy [officer] A.M. .. Examination started 14 September 2000. Examination finished 18 September 2000. ... Circumstances of the case: ...from the decision ordering the examination it follows that [the applicant] submitted that police officers had applied physical force to him. Complaints: about pain in the left ear. Objectively: at the time of examination no bodily injuries established.... Conclusions At the time of examination no bodily injuries were established, thus it is impossible to comment on the degree of damage to health...” 28. On 21 September 2000 the applicant's lawyer complained to the district prosecutor's office that the applicant had not received treatment for pain in his left ear. On the following day the district prosecutor ordered the applicant's immediate transfer to the Uchaly town hospital for examination by an otolaryngologist and eventual treatment. 29. On 26 September 2000 the applicant's lawyer requested the town hospital to provide her with all relevant information and medical records in connection with the treatment of the applicant's allegedly broken eardrum, with a view to submitting those documents to the court. In particular, she asked the hospital to indicate the exact diagnosis, the treatment received and the consequences of the disease for the applicant's health. 30. In an undated reply the hospital's head doctor informed the applicant's lawyer that the applicant had been examined by an otolaryngologist who had diagnosed him with acute suppurative left-side “tubotympo-palpitis” [туботимпопальпит] and otitis media. The letter further stated that in order to provide further information, in particular, on the duration of the treatment and the consequences of the diseases for the applicant's health, he needed to be examined by the otolaryngologist in person. 31. According to a medical certificate of 7 February 2005 from the Akhunovo village hospital, the applicant did not apply to the hospital for medical assistance in the period from 1997 to 2000. 32. A certificate from the head of colony UYe-394/3 Mr M., dated 8 January 2004 and compiled on the basis of the applicant's medical file, in so far as relevant, reads: “Upon admission to facility [SI-2 in Beloretsk] on 11 September 2000 [the applicant] was examined by the duty medical officer, Sh., to whom the former complained about pain in his left ear; according to a record in the [applicant's] medical file, he was diagnosed with acute chronic otitis on the left [side]...; at the time of the examination cutaneous covering were clean and the state of health satisfactory. [The applicant's name] does not appear at the relevant period in the medical records, the log of injuries and the log on accidents and crimes.” 33. The applicant submitted a written statement by I.R., dated 21 April 2001, which reads: “...I, I.R[]., was held in SI-1/2 under investigation, when on 11 September 2000 [the applicant] was placed in my cell. On his face were visible cut lips and a bruise under the left eye; the left ear was swollen and oozed blood. I asked [the applicant] what had happened to him. He answered that officers of the Uchaly police station had obtained his confession in that way. [The applicant] undressed and showed bruises on his body. There were many bruises on his body, on the front and back. In sum, he had been beaten up very severely. From a conversation with [the applicant] I understood that he heard almost nothing because his left ear had been damaged. Until this moment nobody asked me about those events. However, since [the applicant] has asked me now, I consider it my duty to confirm that [the applicant] had traces of beatings which were visible to the naked eye. I can confirm this statement afterwards. Written in my own hand. [Signature]” 34. A written statement of 24 April 2001 by V.Z., addressed to the Supreme Court of the Russian Federation and produced by the applicant, reads: “...In September 2000 I, V.Z.[], was held under investigation in SI-1/2 in cell no. 13. I remember that on 11 September 2000 [the applicant] was put in our cell. He had been beaten up, which was visible to the naked eye. R., who was also present, asked him what had occurred to him. [The applicant] answered that this was the way confessions were obtained in the Uchaly police station. His lip was cut, his left ear oozed matter, he had a bruise under the left eye. Then he showed bruises on his body and his legs. Written in my own hand. [Signature].” 35. In her complaint to the district prosecutor's office about the applicant's alleged ill-treatment, dated 14 September 2000 (see paragraph 39 below), A.A. submitted: “...On 12 September 2000 ... I ... went to remand centre SI-1/2 in Beloretsk and saw injuries and traces of torture on [the applicant]. Bodily injuries: abrasions between the right eye and the ear, below the lower lip on the right; left ear oozes liquid with blood; a bruise of 15-17×8-10 cm in the area of the solar plexus; bruising and swelling to the left foot; bloody abrasion at the right knee; marks from handcuffs; a bruise underneath the right eye; a lip cut/split on the inside...” 36. In her complaint to the Uchalinskiy Town Court dated 17 September 2000 (see 40 below) the applicant's lawyer mentioned the following injuries: “...on 12 September I saw abrasions on the [applicant's] face, a cut inside lip, a bruise under the right eye, bruising and swelling on the left foot, a huge bruise in the abdomen area, a bruise on the back in the kidney area, a bloody abrasion on the right knee; he also complained that his eardrum had been broken, that blood with matter and liquid is flowing constantly, and that all muscles, ligaments and bones hurt because he had been subjected to the so-called “lastochka” (“swallow”) treatment – having placed him on his abdomen, [they] pulled his hands and legs towards the spine.” 37. According to a written statement by the applicant's brother, in June 2004 he visited the applicant for two days in colony UYe-393/4 in Ufa. The applicant complained to him about recurring pain in his right collarbone, deafness in the left ear, and dull pain in the kidney area. The applicant associated those health problems with his beatings at the Uchaly police station in September 2000. According to the applicant's brother, he saw a bump of a size of a hazelnut on the applicant's collarbone. The collarbone frequently ached at night and when the weather changed. The applicant could not hear with his left ear and had recurrent purulent discharge from it. He also complained about recurring pain in his kidneys and, according to the applicant's brother, went to the toilet frequently. 38. On 13 September 2000 the applicant, questioned by Kh.A. in the presence of his lawyer, stated that he had not murdered D. and that his confession had been obtained from him under duress by officer Ya.M., “a police officer from Ufa”, “a police major” and “a chubby police officer”. 39. On 14 September 2000 the applicant's lawyer complained to the district prosecutor's office, requesting that a criminal case for torture be opened against I.M., Ya.M. and two other unidentified police officers. She indicated that on seeing the applicant on 12 September 2000 she had noticed numerous injuries on his body and described them in detail (see paragraph 36 above). She also submitted that the applicant had been tortured by pulling his hands and feet back towards the spine. She stressed that the police officers had intentionally taken the applicant to remand prison SI-2 in Beloretsk on 11 September 2000 to hide his injuries and to hide her client from her and that the investigator in the murder case had colluded with the perpetrators in hindering her access to her client by pretending that on that day the applicant had been at an “on-site verification of his statements” in order to make her believe that he was still in Uchaly and not in Beloretsk. Lastly, she requested a medical examination of the applicant. 40. On 17 September 2000 the applicant's lawyer asked the Uchalinskiy District Court (“the District Court”) to release the applicant. In her complaint she also referred to his alleged ill-treatment in police custody, reiterating in detail the injuries she had noticed on him on 12 September 2000. She emphasised that the police officers had hidden her client from her and on 11 September 2000 had taken him to SI-2 in Beloretsk where no medical officer had examined him upon admission. She submitted that although on 15 September 2000 prosecutor G. had ordered the applicant's medical examination, she had serious doubts about its outcome because forensic expert F. was on holiday and thus the examination would be carried out in Beloretsk, whilst police officers from the Uchaly police station had already visited the applicant in the remand prison in Beloretsk and had threatened him with “grave complications” if he “misbehaved”. 41. On an unspecified date the district prosecutor's office launched an inquiry into the applicant's allegations of ill-treatment. In the course of the inquiry the district prosecutor solicited written explanations from officers I.M., Ya.M., R.Kh. and V.G. 42. In a written explanation to the district prosecutor, dated 21 September 2000, Ya.M. submitted that on 9 September 2000 he and “other officers” had conducted “a conversation” with the applicant at the temporary detention centre. During the conversation the applicant wrote a confession, describing in detail the circumstances of the murder committed by him. 43. In his written statement dated 22 September 2000 I.M. submitted that on 9 September 2000 he and other officers had “a conversation” with the applicant in the isolation ward of the police station, in the course of which the applicant had voluntarily written a confession. According to I.M., the police officers had not gone to the isolation ward on 8 September 2000 and had not “worked with the applicant” on that date. 44. In an undated written statement to the district prosecutor V.G. submitted that on 9 September 2000, during a conversation with the applicant in the isolation ward, the latter had written a confession after V.G. and other police officers had presented him with “certain information”. 45. In his written explanation dated 23 September 2000 R.Kh. submitted that he had not “worked with the applicant” and had not taken a confession statement from him. He stated that he had had dealings with the applicant earlier, when the latter had been arrested in connection with an administrative offence. 46. All of the police officers denied having used “unlawful methods” or torture against the applicant and claimed that his allegations had been libellous. 47. By a decision of 24 September 2000 the deputy district prosecutor refused to institute criminal proceedings against the police officers who had allegedly ill-treated the applicant. The decision read as follows: “On 14 September 2000 lawyer A.A. complained to the Uchaly district prosecutor's office that from 3 p.m. on 8 September 2000 until 7 a.m. on 9 September 2000 her client had been beaten up by police officers in the premises of the Uchaly police station. The inquiry established that [the applicant] had, indeed, been held in the Uchaly police station as an arrestee from 8 to 9 September 2000. However, it has not been established that physical violence was applied to him. Despite [the applicant's] submission that police officers had severely beaten him on practically all parts of his body, the officers questioned [in that connection] submitted that they had not applied any violence to him; moreover, according to the forensic expert's report of 14 September 2000, no injuries had been found on [the applicant]. Thus, [the applicant's] allegations about his beating by police officers raise serious doubts as to their truthfulness.” 48. Lastly, it was stated that the decision was to be notified to the applicant and that he was to be informed of his right to appeal against it to a higher-ranking prosecutor or a district court. 49. By a letter of 4 October 2000 the deputy district prosecutor replied to the applicant's lawyer that he had examined her complaint about the applicant's alleged ill-treatment and that on 24 September 2000 he had refused to institute criminal proceedings in that connection. The letter further stated that it was open to the applicant to challenge the refusal before a higher-ranking prosecutor or a district court. 50. On an unspecified date the applicant's lawyer lodged with prosecutor of the Bashkortostan Republic a further complaint about the applicant's ill-treatment and the continuing threats to him by officers V.G. and I.M. 51. On 3 October 2000 the applicant's lawyer complained to the prosecutor of the Bashkortostan Republic about various violations of the applicant's rights at the pre-trial stage, reiterating the ill-treatment complaint. She further claimed that the forensic expert who had failed to discover any physical injuries on the applicant's body during the examination on 14-18 September 2000 had committed a criminal offence because, apart from the obviously visible physical injuries, the applicant's kidneys and bladder had also been damaged during the beatings. Lastly, she mentioned that although she had asked the district prosecutor for a correct medical examination of the applicant, she had not succeeded in obtaining this. 52. According to the applicant's counsel, on 8 September 2000 she obtained permission from the head of the Uchaly police station to visit the applicant. However, after a phone call by A.M., she was refused access to her client. On the same day she complained about that situation to the district prosecutor's office. 53. Following A.A.'s complaint, the district prosecutor's office questioned convoy officer Zh.G. and officer Ya.M. The former submitted in an undated written explanation that at about 11.30 a.m. on 8 September 2000 A.A. had come to the temporary detention centre and picked a permission form to visit the applicant. The applicant being with investigator Kh.A., Zh.G. and other convoy officers refused to allow her to visit her client without the investigator's permission. A.A. then went to see the investigator and did not come back. In his undated written explanation Ya.M. denied having refused the applicant's lawyer access to her client and submitted that since the applicant was under the district prosecutor's office responsibility, his lawyer should have obtained Kh.A.'s permission to visit her client. 54. On 25 September 2000 the deputy district prosecutor responded to the applicant's lawyer, stating that he had examined the matter and that no irregularities had been observed. 55. In her complaint of 3 October 2000 to the prosecutor of the Bashkortostan Republic the applicant's lawyer claimed that the hindrance of her visit to the applicant had breached his defence rights. In particular, she submitted as follows: “... On 8 September [2000] I personally went to the prosecutor's office to find investigator Kh.A., because I was not allowed to visit [the applicant] without his permission. The prosecutor exclaimed that he himself was looking for Kh.A... I told [the prosecutor] that I was not allowed to see my client in the temporary detention centre but no reaction followed. Moreover, the deputy prosecutor who received my related complaint on the same day disregarded it and reacted to it only on 25 September 2000. [In his reply ] it is alleged that I went to the temporary detention centre at 11 a.m. and then left. However, I have a record to the effect that head of the police authorised me to visit my client; at the same time, while I was already in the temporary detention centre, [convoy officers] refused to escort [the applicant] to me, referring to the lack of permission from investigator Kh.A. However, there is a record that the investigator had a “conversation” with [the applicant] from 4 to 9 p.m. on that day. During that period, on the night from 8 to 9 September, from 3 to 7 a.m., [the applicant] was severely beaten up by officers Ya.M., I.M., R.Kh. and V.G., an officer of the Ministry of the Interior of Bashkortostan, the latter having applied the most sophisticated methods”. 56. There is no indication that the applicant's lawyer received any reply to her complaint. 57. On an unspecified date the applicant's case was sent for trial to the Uchalinskiy District Court of the Bashkortostan Republic (“the District Court”). 58. According to the hearing transcript, at the first hearing on 4 January 2001 the applicant's lawyer complained that the applicant's confession had been obtained under duress. She further averred that she had been refused access to her client on 8 September 2000 and that his confession had been obtained in her absence. She requested the court, among other things, to obtain from the prosecutor's office the case file concerning the inquiry into the applicant's alleged ill-treatment; to question the police officers allegedly involved in the applicant's beatings and the expert who had examined the him on 14 September 2000, arguing that it had hardly been possible that he had found no traces of ill-treatment whereas she had seen them on the applicant; to obtain from the police station the detainees' interrogation log; to establish how many times the applicant had been brought for questioning from his cell on 8-9 September 2000, and to obtain from remand centre SI-1/2 documents concerning the applicant's medical examination upon admission there. The court granted the request in respect of the inquiry file, the questioning of the police officers and the interrogation log and dismissed the remainder. 59. At trial the applicant pleaded not guilty. He denied having murdered D. and claimed that his confession statement had been given as a result of ill-treatment. He submitted that from 3 p.m. on 8 September 2000 to 7 a.m. on 9 September 2000 officers I.M., Ya.M. and “a police officer from Ufa” had beaten him up and had stuffed his mouth with paper so that his screaming would not be heard. On 11 September 2000 he had been brought to remand prison SI-2 in Beloretsk where he had not been examined by a medical officer. On 14 September 2000 the applicant was brought for a medical examination but the expert had compiled his report on the basis of written documents, without examining him. 60. The applicant's underage daughter also revoked her statements given on 5 September 2000 in the presence of M., a child-protection inspector of the Uchaly education department. On that day she had testified that on the night of 29 July 2000 they had been sitting together with D. on a beam. She had been sitting on his nap and they were having sex. When her father had suddenly appeared, she had pretended that she had been simply sitting near D. Having seen her, her father had chased her home and she left. On the following day her father had been nervous and mentioned to her mother that apparently a corpse had been discovered. At trial M. testified before the court that the applicant's daughter had given her testimony voluntarily, without any pressure from the investigator. Following a court-ordered handwriting examination, the expert confirmed that the signature on the applicant's daughter's interview transcripts was hers. 61. The court heard thirty-one persons. Witness N., who gave a statement opposing the prosecution's version of the events, in that she stated that she had seen a private car near the crime scene on the night of the murder, claimed that a “police officer from Ufa” had threatened that if she gave statements exculpating the applicant, she would be thrown in jail. Witness Kh., who claimed to have seen a group of persons at the crime scene on the night of the murder, throwing something on the ground, and a car parked nearby, submitted that she had been summoned to the police station and that a certain officer S. asked her whether the applicant's wife had bribed her for her deposition. Kh. also claimed that she had been offered money if she was silent about what she had seen on the night of the murder. Officer Z. confirmed that on 1 August 2000, that is on the day after the discovery of D.'s corpse, the crime scene had been cleaned on the order of the village administration. 62. The court interviewed officers I.M., R.Kh. and V.G. Officer I.M. stated that on 9 September 2000 he had been on leave and had not been present during the applicant's questioning. V.G. stated as follows: “...I was not present when [the applicant] was questioned; I only joined the others when they were questioning him... ... I saw [the applicant]; talked to him about D.'s murder... ... I don't remember whether I visited him in the temporary detention centre. Probably, I did visit him and talk to him...” 63. It appears that R.Kh. did not deny having questioned the applicant and that the court did not question Ya.M. as a witness. All of the police officers flatly denied having used any “unlawful methods” on the applicant. 64. In her final statement the applicant's lawyer drew the court's attention to various discrepancies in the prosecution case. She also stressed that the police officers accused by the applicant of ill-treatment had lied: whilst in court they had claimed that on 9 September 2000 they had not interviewed the applicant and that there were no records in the relevant logs about them taking him from his cell for questioning, yet in their statements in the course of the prosecutor's inquiry they had expressly submitted that they had talked to the applicant on 9 September 2000 and that he had confessed to them on that day. She stated that the applicant had not been examined by a medical officer on his transfer to remand prison SI-2 in Beloretsk, although he had complained about pain in his ear and had had bruises on his face. Furthermore, investigator Kh.A. and expert G., who had examined the applicant, had previously worked together in Beloretsk and were friends; consequently, despite the fact that the latter had seen the injuries, he had compiled his report as indicated to him by Kh.A. 65. By a judgment of 15 January 2001 the District Court found the applicant guilty of D.'s murder, referring, in the first place, to his confession, which it found to be corroborated by the pre-trial statement of his daughter, statements by witnesses and the forensic evidence. In particular, the court referred to a statement of L., who mentioned having heard the voices of D. and the applicant's daughter close to the crime scene on the night of the murder; a statement of G., who testified to having seen D. and the applicant's daughter kissing on that night, and the victim's post mortem report establishing several injuries to his head. 66. The court dismissed the applicant's allegation that his confession had been obtained as a result of ill-treatment, referring to the statements by police officers I.M., Ya.M. and V.G. and expert report no. 1060, which had not recorded any injuries on the applicant's body. 67. The trial court did not address the applicant's argument that his confession had not only been obtained under duress but also in the absence of his lawyer. The applicant was sentenced to nine years' imprisonment. 68. The applicant appealed against the conviction. In his statement of appeal he submitted, in particular, that his confession statement was inadmissible as obtained under duress and in the absence of a counsel. He submitted that officers I.M., Ya.M. and V.G. had committed perjury before the trial court. Furthermore, he claimed that he had been secretly transferred to remand centre SI-1/2 where he had not been properly examined by a doctor in order to hide the marks of beatings. The applicant's transfer had permitted the police officers to deprive him of access to counsel and to delay his medical examination. Moreover, the expert who had performed his examination on 14 September 2000 had been on friendly terms with the investigator and had issued the expert opinion which the latter had needed. 69. On 15 March 2001 the Supreme Court of the Bashkortostan Republic dismissed the appeal. As regards the use in evidence of the applicant's confession allegedly obtained under duress, the Supreme Court held that the investigators and the trial court had carefully examined the applicant's allegations and had correctly dismissed them as unfounded. In particular, the trial court had questioned the police officers, who had denied any use of violence against the applicant, and the expert had concluded that he had not had any injuries. The confession had been written by the applicant in his own hand; he had in his own hand certified that it had been given without any physical or psychological pressure. The appellate court's judgment was silent on the applicant's complaint that his confession had been obtained in the absence of his lawyer. 70. On 15 October 2003 the Court gave notice of the application to the respondent Government. 71. On 18 January 2004 the Court received a faxed letter from the applicant's brother (who had initially represented the applicant before the Court) in which he indicated that the applicant had been intimidated and forced to withdraw his application. In a letter of 21 January 2004 the applicant's brother provided further details. His description ran as follows: “...I have to inform you about a conversation between [my brother] and a Captain of the Department who did not show his documents and did not identify himself. It took place on 6 January 2004. The Captain first asked [my brother] and then ordered [him] to describe in writing the events of 2000. He said: 'You must write it in the way I want you to. [My brother] answered: 'I won't write or sign anything without a lawyer. Captain: 'I don't care about you or your lawyer; it will be as I say. You are pawns. I will arrange it so that you die here in two weeks but you will give me the statement I want'. We are very concerned about one issue. Why did the representatives [to the European Court] not come from Moscow themselves, and why did a Captain show up and ask [the applicant] to write [an explanation]?” 72. On 13 February 2004 the Court requested comments from the respondent Government. 73. On 5 April 2004 the Government informed the Court that on 6 January 2004 Captain G., an employee of the Federal Service for Execution of Sentences in the Bashkortostan Republic (“the regional department of the FSES”), had had a “conversation” with the applicant “in order to clarify the circumstances that had given rise to his application to the European Court”. Without providing any further details, the Government enclosed a copy of applicant's written explanation of 3 March 2004, addressed to the head of the regional department of the FSES. 74. The explanation, in so far as relevant, reads: “I arrived in facility SI-2 in Beloretsk on [illegible] September 2000. I arrived in IK-3 [UE 394/3] in May 2001 and have been serving my sentence in brigade no. 4, I am working as a welder....I have no complaints about officers of the [prison] administration and of the penitentiary system of the Bashkortostan Republic. I was not subjected to physical or psychological pressure by penitentiary officers of the Bashkortostan Republic.” 75. On 17 November 2004 the applicant retained lawyers of the European Human Rights Advocacy Centre (EHRAC) to represent him before the Court. 76. It appears that on 8 July 2005 the applicant's wife concluded an agreement with Ch.M., a lawyer, under which the latter was to visit the applicant in prison and to interview him about his conversation with Captain G. 77. On 16 July 2005 the applicant's representatives forwarded to the Court the applicant's written statement of 11 July 2005 which, in so far as relevant, reads: “..On 6 January 2004, after lunch, I was called for a conversation to an office located in the industrial zone of the furniture department where I was working. The person present in the office introduced himself as Captain G. (I don't remember his name or patronymic). From our conversation I realised that he was aware of my application to the European Court. He explained his presence by saying that he could help me... He said that if I was lucky, my case would be examined and he would possibly come back for a conversation with me. I told him in brief about the essence of my complaint [to Strasbourg], in particular, that I had been ill-treated on 8-9 September 2000 at the Uchaly police station by four police officers. I specified that I had been brought to SI-2 in Beloretsk in a private car and that I had been admitted there while the head of the facility had been absent (at lunch) [and] that no medical examination had been conducted. [G.] wanted me to write down that I had undergone a medical examination on admission to SI-2 in Beloretsk. I told him that that was not true and pushed away the piece of paper. He did not like it. He started threatening me, saying “I will make life hell for you!” I answered that I would not write anything along the lines indicated by him and wrote down that I had not killed anyone to which he said: “I don't need that”. He destroyed the first piece of paper, which I had drafted to his dictation, and kept the second. ... During our conversation which lasted for about 30-40 minutes [G.] asked me when I had been arrested, whether I had been beaten up in SI-2 in Beloretsk, [and] whether I had been brought to Ufa and beaten there. He was mostly interested in the time spent by me in SI-2 in Beloretsk because I had not been examined there, although I had numerous visible injuries and I had been hidden from my counsel at that time. I have not seen [G.] since our conversation. 78. The applicant's statement went on to mention that on 3 March 2004 he was visited by a certain lieutenant colonel and a lieutenant from the regional office of the FSES. They asked him how he had managed to send the application to the European Court and about its contents, in particular, the circumstances of his alleged ill-treatment and whether he had been examined by a medical officer in SI-2. The applicant provided the relevant explanations in writing. They concerned only the beatings in 2000 and contained no complaints about detention facility UE-394/3. After the departure of the two persons the applicant had to quit his job and was transferred to basement no. 14, where conditions were worse than in other parts of the colony. 79. According to the applicant's statement of 11 July 2005, on 3 March 2004 he received a further visit by a prosecutor, for whom he also wrote an explanation concerning the circumstances of his ill-treatment at the Uchaly police station. The prosecutor reassured him that he would examine the matter. 80. On 5 July 2005 the applicant received yet another visit by a prosecutor who did not introduce himself. He interviewed the applicant about the same events as his previous visitors. 81. Lastly, the applicant noted that he felt uncomfortable in connection with his application to the Court and feared that it would have repercussions on his further stay in facility UE-394/3. 82. An undated written statement by Ch.M. produced by the applicant's representatives, in so far as relevant, reads as follows: “I, Ch.M., lawyer of the Bashkortostan Bar Association, on 8 July 2005 concluded an agreement with [the applicant's wife] with a view to visiting her husband in colony 394/3. On 11 July 2005 from 9.30to 11.30 a.m. I had a conversation with [the applicant], during which I asked him... about intimidation in connection with his application [to the Court]. During our conversation [the applicant] behaved in a constrained manner, asking me not to refer to many circumstances in my explanation; sometimes he began whispering. He explained his behaviour by the presence (during the whole of our conversation) of two officers from the internal security department who did not conceal their interest in our conversation. ...Bearing this in mind I consider it necessary to clarify and supplement his written statement by the details which he did not include therein. During the conversation [the applicant] explained that Mr G., who had visited him on 6 January 2004, interviewed him about the reason for his application to the Strasbourg Court, to which [the applicant] replied that the thrust of his complaint was that on 8-9 September 2000 he had been severely beaten by officers of the Uchaly police station. During the beating he had been instructed to write a confession, which he had refused to do, and the beatings had continued. G. expressed doubts that the police officers had acted in that way, saying that they could not have inflicted bodily injuries on [the applicant]. G. had also asked him in what condition he had been brought to SI-2 in Beloretsk. [The applicant] explained that he had had numerous bodily injuries... The officers of remand centre SI-2, in particular the doctors, had seen his injuries but, following instructions from certain persons, had intentionally failed to examine him and had not opened a medical record in respect of the applicant. G. replied that that was impossible because [the applicant's] medical record did not refer to any bodily injuries. [The applicant] explained that he had not been examined on admission to SI-2 and at that point G. became angry and started pressuring [the applicant], saying that he should not write about it. During the conversation with G., [the applicant] started compiling the first explanation. G. had been instructing him what to write, in particular that the police officers had not beaten him up and that he had been examined on admission to SI-2 in Beloretsk. Having heard that, [the applicant] pushed away the papers, saying that what G. had been telling him to write was not true. G. had not liked [the applicant's] behaviour and started threatening him with reprisals, saying that he would make life hell for him and that it would happen soon. However, [the applicant] had said that he would not sign the explanation along the lines indicated by G. and would write his own, which he had done, adding at the end of the explanation that he had not killed anyone. G. again threatened [the applicant] with reprisals, after which he had to take the last explanation. ... [The applicant] explained... that after his withdrawal from work he had been feeling lonely, offended and cut off from communication with other persons. Even when he had later been re-admitted to work, he had been still stressed by the fear of losing it again...” 83. In a letter to his relatives, dated 24 July 2005, a copy of which had been produced by his representatives, the applicant submitted, among other things, that on 19 July 2005 he had been summoned to the colony special purpose unit and handed, against signature, a refusal to prosecute the police officers allegedly involved in his ill-treatment. During the conversation the applicant had allegedly been told that he was the one who should be criminally prosecuted for giving false statements. 84. On an unspecified date in 2005 the Internal Security Department of the Ministry of the Interior of the Bashkortostan Republic initiated an internal inquiry into the applicant's allegations of ill-treatment. In the course of the inquiry officers V.G., I.M. and R.Kh. gave written explanations. In their explanations, dated 4 July 2005, V.G. and R.Kh. denied having applied unlawful methods to the applicant. 85. I.M.'s statement of 4 July 2005, in so far as relevant, reads: “...Neither I nor any other officer applied unlawful methods [to the applicant]. .. I remember that [the applicant's] medical examination was carried out in Beloretsk and not in Uchaly with a view to having it objectively conducted, otherwise [the applicant's] defenders would subsequently have complained about the “biased” conclusions of the 'local' expert.” 86. In an explanation of 4 July 2005 A.M. submitted that in 2000 he had been the head of the Uchaly temporary detention centre in the Uchaly police station. In September 2000, following investigator Kh.A.'s order, A.M., driver S. and “another police officer” collected the applicant in SI-2 in Beloretsk and escorted him for a medical examination. In a forensic bureau in Beloretsk, in the presence of A.M., S. and the third police officer, an expert had removed the applicant's clothes and examined him, while asking him all relevant questions. They had stayed in the bureau for about an hour. A.M. had not seen any visible injuries on the applicant. 87. On 30 June 2005 the deputy head of the Minister of the Interior of Bashkortostan discontinued the inquiry, having found no indication of a violation of the applicant's rights under Article 3 of the Convention. 88. By a decision of 4 July 2005 the Uchaly district prosecutor's office refused to initiate criminal proceedings against expert G. in connection with the applicant's medical examination no. 1060, having found no evidence of crime in his acts. The decision, in so far as relevant, read: “G. personally carried out examination [no. 1060]. Despite the fact that from 28 August to 30 September [2000] he was supposed to be on leave, he had to come back to work due to the absence of expert B. on 13-18 September 2000. During the above period of time and in addition to [the applicant's] medical examination, G. carried out medical examinations of a further 14 persons and 16 postmortem examinations, which follows from the relevant registration logs and G.'s own explanation. [The applicant's] and his lawyer's submissions that G. intentionally compiled a false report attesting to the lack of injuries are unsubstantiated.” 89. It is not entirely clear what prompted the initiation of the inquiry concerning the applicant's medical examination and whether the applicant was informed of its results. 90. Article 21 § 2 of the Russian Constitution prohibits torture. 91. The RSFSR Code of Criminal Procedure (“RSFSR CCP”, in force at the material time) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own motion (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or request that the proceedings be re-opened. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. 92. A prosecutor, investigator or judge was obliged to consider complaints and information about any crime committed and to initiate or refuse a criminal investigation, or to transmit the case to a competent authority (Article 109). A prosecutor's refusal to initiate a criminal investigation could be appealed to a higher prosecutor; a judge's refusal could challenged at a higher court (Article 113 § 4). 93. On 29 April 1998 the Constitutional Court of the Russian Federation invalidated Article 113 § 4 of the CCP in so far as it did not allow judicial review of a prosecutor's or investigator's refusal to institute criminal proceedings. The Constitutional Court ruled that Parliament was to amend the legislation on criminal procedure inserting a possibility of such judicial review. It also held that until such amendments, the national authorities, including courts, should apply directly Article 46 of the Constitution requiring judicial review of administrative acts, including a refusal to initiate criminal proceedings. The ruling was published in May 1998. 94. In a ruling of 14 January 2000 the Constitutional Court declared unconstitutional several provisions of the RSFSR CCP authorising the courts to initiate, of their own motion, criminal proceedings. In the same ruling the Constitutional Court reiterated that a court could carry out judicial review of the lawfulness and reasonableness of an investigating authority's decision to open a criminal case, to refuse to initiate criminal proceedings or to discontinue such proceedings, in particular, upon a complaint of a person who considered that his or her constitutional rights had been breached by such a decision. The ruling was published in February 2000. 95. Under Article 47 § 1 of the Code, in force at the material time, counsel could be admitted to the proceedings from the moment of announcing/listing charges, or – for an arrested or detained suspect – from the moment of giving him or her access to the arrest record or detention order. If a privately-retained counsel did not appear within twenty-four hours, the authority in charge of the case was allowed to suggest that the person retain another counsel, or to appoint counsel (Article 47 § 2). On 25 October 2001 the Constitutional Court indicated that Article 47 § 4 did not require any special permission for meetings with counsel. In the same decision the Constitutional Court invalidated one provision of the 1995 Custody Act in so far as the authorities applied it as requiring counsel who wanted to see his client to obtain special leave from the authority in charge of the criminal case. 96. Article 51 of the Russian Constitution provides that no one may be required to incriminate himself or herself and his or her spouse and close relatives. 97. Article 111 of the RSFSR CCP required that a confession statement be recorded in detail in a separate document, signed by the person who gave the confession and by the investigator or prosecutor who took the confession. 98. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, in so far as relevant, reads: “1. Court judgments and decisions which have become final are to be quashed and proceedings in a criminal case are to be re-opened in the event of new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; (c) other new circumstances.” 99. For a summary of the relevant international documents on access to counsel see Pishchalnikov v. Russia (no. 7025/04, §§ 39-42, 24 September 2009). | 1 |
train | 001-68204 | ENG | NLD | ADMISSIBILITY | 2,005 | NARCISIO v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Giovanni I. Narcisio, is a Netherlands national who was born in 1970. He is currently detained in Bon Futuro prison (formerly named Koraal Specht) on Curaçao (Netherlands Antilles). He is represented before the Court by Ms B.E. Paasman, a lawyer practising in Rotterdam. The respondent Government are represented by Mr R.A.A. Böcker and Ms J. Schukking of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 November 1998 an investigating judge (rechter-commissaris) based in Curaçao, on an application by the local public prosecutor (officier van justitie), issued an order for the applicant to be taken into initial detention on remand (bewaring) on murder and firearms charges. In relevant part, this order read as follows: “... A serious danger is apparent that the suspect may flee, since it appeared that the suspect was not resident in the Netherlands Antilles. A serious public safety reason requiring the suspect's immediate deprivation of liberty is apparent, namely: the legal order has been seriously upset by the crime presumably committed; it is, after all, considered unacceptable in society that in case of a criminal act such as the present the suspect should be allowed to remain at large while awaiting trial; the crime presumably committed carries a temporary prison sentence of six years or more; there is a real possibility that the suspect will commit a crime which, according to its statutory definition, carries a prison sentence of six years or more; detention on remand should reasonably be considered necessary for the purpose of establishing the truth through means not including statements of the suspect; namely, it should be made possible to hear witnesses who must be able to give evidence without any possibility of its content being influenced by the suspect. ... [The suspect shall undergo] detention on remand in the Remand Centre [i.e. Koraal Specht prison] or if need be, but in that case for as short a time as possible, in a police station on Curaçao. ” The applicant was arrested in Rotterdam, Netherlands, on Thursday 21 January 1999 at 2.10 a.m. by an arresting team of the Rotterdam-Rijnmond regional police force. The following day, Friday 22 January 1999, at 10.15 a.m. the applicant was brought before the Rotterdam public prosecutor, to whom he made a statement denying all knowledge of the matters charged. He was then brought before the investigating judge of the Rotterdam Regional Court (arrondissementsrechtbank), before whom he was assisted by a lawyer. The applicant again denied all knowledge of the case and stated that he did not wish to be sent to Curaçao. His lawyer suggested, referring to conditions of detention in Koraal Specht prison, that for humanitarian reasons it would be preferable for the applicant to be tried in the Netherlands. That afternoon at 2.20 p.m. the investigating judge informed the applicant that he did not find the applicant's arrest and detention unlawful. He added that he lacked competence to decide where the applicant should be tried. That evening at around 8.02 p.m. the applicant's lawyer sent a fax to the Minister of Justice and the Rotterdam public prosecutor, with a copy to the standing committee on justice (vaste commissie voor justitie) of the Lower House of Parliament. This fax read as follows: “THE NETHERLANDS JUSTICE AUTHORITIES HAVE ANNOUNCED THEIR INTENTION TO HAVE A PERSON SUSPECTED OF A CRIMINAL ACT, ARRESTED ON 21 JANUARY 1999 IN ROTTERDAM, DEPORTED TO CURAÇAO ON MONDAY 25 JANUARY 1999, WHERE HE WILL BE SUBJECTED TO THE PRISON REGIME OF THE KORAAL SPECHT PRISON, OR A COMPARABLE REGIME WHICH RUNS COUNTER TO THE HUMAN VALUES LAID DOWN IN INTERNATIONAL TREATIES TO WHICH THE NETHERLANDS, AMONG OTHER STATES, HAS CONSENTED TO BE BOUND. THIS RELATES TO SERIOUS INTERFERENCES WITH HUMAN DIGNITY, INCLUDING RAPE, VIOLENCE, DISEASE, MURDER, ANARCHY, PHYSICAL DOMINATION, GANGSTERISM AND INHUMANE CONDITIONS OF DETENTION IN TOO CRAMPED CELL SPACES WITH TOO MANY PEOPLE. THE KINGDOM OF THE NETHERLANDS WITHIN EUROPE MAY NOT MAKE ITSELF AN ACCOMPLICE TO THIS AND SHOULD PREVENT THIS IMMINENT THREAT OF A VIOLATION OF AN INDIVIDUAL'S HUMAN RIGHTS MATERIALISING. Your Excellency, In the above matter I represent the interests of Giovanni Inocente NARCISIO, born on 14 November 1970 on Curaçao. My client has been arrested on Thursday 21 January 1999 in Rotterdam on suspicion of acts proscribed by Articles 302 and 300 of the Criminal Code of the Netherlands Antilles, at the request of Mr F.P. Wiel, investigating judge on Curaçao. His arrest is based on Articles 36 and 40 of the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk), read in conjunction. My client has Netherlands nationality. The public prosecutor in charge of the case here, Ms A.M. Zwaneveld, has announced her intention to have my client flown to Curaçao on Monday 25 January 1999, to be taken into the initial detention on remand (bewaring) ordered there. I have made clear my client's objections to this course of action, but the public prosecutor is of the opinion that there are no reasons to prevent the applicant's return to Curaçao. There is thus a threat of a serious and possible irreversible violation of the applicant's civil rights, so that an immediate measure is called for. The Public Prosecutor's decision is devoid of legal foundation. The request of the Public Prosecutor comprises a request for his arrest for the purpose of transferring him to the competent authorities in the Netherlands Antilles. However, Article 40 of the Charter for the Kingdom only mentions judgments and orders and the request does not fall within the scope of that Article. The order for initial detention on remand given by the investigating judge does come within the scope of this Article, but in that connection it should be noted that this order has already been carried out and that the suspect's transfer to Curaçao has not been ordered, nor is it indicated. The investigating judge, according to the wording of his order, considers that: 'detention on remand should reasonably be considered necessary for the purpose of establishing the truth through means not including statements of the suspect; namely, it should be made possible to hear witnesses who must be able to give evidence without any possibility of its content being influenced by the suspect.' Since this is the main reason for the order, the need for the suspect's transfer [to Curaçao] cannot be understood. He can serve his initial detention on remand, and if necessary his extended detention on remand (gevangenhouding), in the Netherlands without any problem, which will answer the purpose of the criminal investigation. The decision of the public prosecutor to proceed to deportation is not only incorrect but also not based on the decision of the investigating judge. Another requirement stated in Article 40 of the Charter is that the legal provisions of the country approached should be respected. That is not the case here. As a result of the public prosecutor's decision my client is likely to be exposed to the prison system of Curaçao which, as was found recently by members of the Lower House of Parliament, is in an extremely deplorable condition and does not meet internationally agreed standards. Article 3 of the European Convention on Human Rights, which provides that no one may be subjected to torture or to inhuman or degrading treatment or punishment, is thus contravened. In addition, it involves a contravention of Article 26 of the Prison Act (Beginselenwet Gevangeniswezen), which provides that persons who have not been convicted (onveroordeelden) should not be subjected to any limitations other than those which are strictly necessary for the purpose of their detention or in the interest of maintaining order. It also involves a contravention of Article 26bis, second paragraph, which contains rules relating to the regime. As has recently been found by members of the Lower House of Parliament, the prison system on Curaçao quite fails to live up to reasonable minimum requirements and no improvement is to be expected in the coming few years. In any event, the applicant (betrokkene) is entitled by virtue of Article 13 of the Convention to an effective remedy before a national authority before deportation to the Curaçao prison system takes place. It is on these grounds that I ask you to deprive the decision of the Public Prosecutor of its force and give (or delegate to) her the order not to allow the deportation of my client to Curaçao to proceed, or to interrupt it immediately, or reverse his deportation, and/or to order every measure that would result in enabling my client to undergo his detention on remand here, in accordance with the provisions of the Charter for the Kingdom of the Netherlands and the legislation applicable here. I request the Public Prosecutor, to whom I am also sending a copy of this message, to delay the execution of the decision until the Minister of Justice has decided on this request. Finally, I am sending a copy of this message to the standing parliamentary committee for information.” The public prosecutor replied by a letter dated 25 January 1999 (the following Monday), transmitted to the applicant's lawyer by fax at 1.03 p.m., in the following terms: “Referring to your telefax message of 22 January last, which was received at my department at 8.02 p.m., requesting a delay of the transportation of your client Narcisio to Curaçao until the Minister of Justice had reacted to your request, I can inform you as follows. Having consulted the Ministry of Justice and the department of the Procurator General to the Court of Appeal (Parket-Generaal), I have decided that there is no call to delay your client's transportation. The reason for this lies in the circumstance that an indication from the Minister for transportation to be delayed has not been received at my department.” The applicant was flown to Curaçao the same day on a flight scheduled for 2.05 p.m. The applicant states that he spent the first twenty-three days after his arrival on Curaçao in a police cell. He was then taken to Koraal Specht prison, where he has remained ever since. The applicant wrote to his lawyer on 24 June 1999. He stated that as of that date, he was deprived of the most basic necessities, such as access to running water and proper sanitary facilities. He also stated that there was a structural lack of furniture for the prisoners. Finally, he stated that he was not able to contact his family from Koraal Specht because there was no access to a telephone that worked. Delegations of the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (the CPT) visited the Netherlands Antilles in 1994, 1997, 1999 and 2002. On each occasion it inspected, in addition to other establishments, Koraal Specht prison. In their report of the visit made from 26 to 30 June 1994 (CPT/Inf (96) 1, published on 18 January 1996), the CPT delegation noted “a pernicious combination of overcrowding, a regime which offered very few activities and a poor level of cleanliness and hygiene”, compounded by “the generally run-down state of the establishment”. Specific problems noted included an insufficiency of the quality and quantity of food, problems with the water supply, insufficiently trained prison staff and a lack of sufficient medical care. In their opinion, to subject prisoners to such conditions of detention amounted to inhuman and degrading treatment. The second visit of a CPT delegation to the Netherlands Antilles took place from 7 to 11 December 1997. The report of this visit (CPT/Inf (98) 17) was published on 10 December 1998. It mentioned the frequent incidence in Koraal Specht of acts of violence against prisoners, committed not only by prison staff, but also by other prisoners, which staff did not do enough to prevent. Despite attempts by the authorities to alleviate the situation, including improvements in the food supply, conditions were still insanitary and overcrowding remained a serious problem. In the CPT's opinion, “many inmates at Koraal Specht Prison continued to be held under conditions which could fairly be described as inhuman and degrading”. The third visit of a CPT delegation to the Netherlands Antilles, from 25 to 29 January 1999, took place shortly before the applicant's arrival in Koraal Specht. The report of this visit was published on 25 May 2000 (document CPT/Inf/2000-9). It contains the following in relation to Koraal Specht (emphasis in the original): “A. Situation at Koraal Specht Prison 1. Preliminary remarks 8. As compared to the situation found in December 1997, the CPT's delegation observed some improvement at Koraal Specht Prison as regards certain aspects of the material conditions of detention, attributable in great measure to the decrease in the total number of persons held in the establishment. On the first day of the visit, the establishment was accommodating 434 inmates, all categories included; in December 1997, it had accommodated some 550 persons. Not unrelated to this, the general atmosphere had improved, and some – albeit very limited – improvements had been made as regards the provision of activities (work, education, sport) for prisoners. Moreover, reports of ill-treatment of inmates by staff had apparently declined of late. 9. Nevertheless, Koraal Specht Prison still suffers from a number of serious shortcomings which pose a threat to the basic rights of prisoners (including the right to life and to physical integrity) and put at risk the stability of the institution to the detriment of both prisoners and staff. 2. Ill-treatment 10. Reported cases of ill-treatment by prison staff had apparently diminished in the months prior to the visit. However, a new phenomenon had appeared in the meantime, namely ill-treatment of prisoners by police personnel (be it the riot police or the voluntary corps of Curaçao – VKC) called upon to perform duties which are properly those of prison officers. Further, inter-prisoner violence continues to be of much concern. According to statistics produced by the prison's doctors, between January and June 1998, 17 cases of violence were recorded in the prison: 3 apparently involved alleged ill-treatment of inmates by staff and 14 of inter-prisoner violence. In addition, one inmate was beaten to death by fellow prisoners during that period (on the night of 26 February 1998, when prisoners were supposed to have been locked in their cells). Further, as had been the case in 1997, health care staff insisted that many cases of violence go unreported and it would appear that efforts to keep a precise record of cases of violence waned during the second half of 1998. 11. The delegation was particularly concerned to hear of an incident which occurred on 14 July 1998, where all the information gathered suggests that police officers beat prisoners who had already been brought under control: the prisoners were apparently naked and handcuffed behind their backs. The delegation was all the more concerned by the fact that the matter had not immediately been reported by prison staff present to their own hierarchical superiors (the director of Koraal Specht Prison) nor to the Landsrecherche [i.e. the criminal investigation department of the Netherlands Antilles]. More than half a year later, investigations into the conduct of the police officers involved and the prison officers who failed to discharge their duty to protect the prisoners under their care were still at an embryonic stage. Moreover, it appeared that those very police officers continued to be deployed in the prison. Further, the delegation interviewed two prisoners who alleged that - while the delegation was in the prison - they had been struck by VKC officers using batons. It would appear that in one of those cases, the prisoner concerned, instead of following instructions to return to his cell, tried to explain that he had been called to the visiting facilities; the account given by him was corroborated by a prison officer who also received a baton blow, apparently when he intervened to protect the prisoner in question. 12. As for inter-prisoner violence, in addition to the prisoner killed in February 1998, a further two prisoners died and several required hospital treatment in late December 1998, apparently following the ingestion of a poisoned beverage prepared by fellow inmates. Other forms of inter-prisoner violence – including, according to staff and management, rape – continue to be commonplace at Koraal Specht Prison. By way of example, between 11 and 28 January 1999, health care staff had treated five prisoners for injuries apparently resulting from inter-prisoner violence, the last two cases during the delegation's stay in Curaçao. 13. Clearly, a great deal still needs to be done to tackle the problem of violence at Koraal Specht Prison. In the report on the December 1997 visit, the CPT recommended that immediate steps be taken to draw up a comprehensive strategy to combat violence in all its forms at Koraal Specht, and that this strategy be vigorously implemented without delay. It also indicated that this should involve a review of the tasks of the prison's Mobiele Eenheid and the methods used by its members in the performance of their duties, and that interventions by that riot squad should be reduced to a minimum. In order to permit this, prison officers as a whole should have received training in the handling of violent incidents. The prison's riot squad had been disbanded in December 1997 and, in its place, police officers had been deployed to take over what are essentially prison officers duties. In the meantime, prison officers had received little further training in modern methods of control and restraint. 14. The CPT wishes to stress that the use of police officers or other law enforcement officials instead of prison officers in order to perform ordinary tasks within a prison inevitably leads to high risk situations. This danger is compounded when the police uniform does not permit the identification of individual officers, which was the case at the time of the visit. 15. Nevertheless, the CPT has noted that certain measures have been adopted which can contribute (and would appear to have already contributed) to the decrease and ultimately to the prevention of ill-treatment of prisoners by staff. By a Decree of 2 November 1998, an independent Commission was established (the Kleinmoedig Commission) to guarantee the integrity of persons deprived of their liberty and to investigate any abuse which might occur. The Commission has itself set out the measures that are to be taken in case of alleged ill-treatment, which include: immediately notifying the President of the Commission of any such allegations; promptly interviewing the person making the allegations and other relevant persons; a thorough medical examination of the person concerned by the prison doctor, who is required to note the allegations and make a detailed record of any injuries and conditions observed; taking, in appropriate cases, photographs of the relevant parts of the body of the person making the allegations; referral to hospital for more detailed examinations; the requirement that a record be made of the doctors' conclusions in the light of the allegations and medical findings. Further, the members of the Commission seem to be making themselves visible to prisoners and to staff, and accessible to them. In addition, inquiries have been initiated into certain of the incidents which have occurred in the prison in recent times. More generally, on 30 November 1998, standing orders were issued (Dienstorder [Service order] GWC No. 010-98) for the reporting of cases of violence. However, this reporting system was apparently not fully operational at the time of the visit, and did not involve the recording of relevant information in appropriate central registers (e.g. in the health care service and the office of the director). 16. In the context of inter-prisoner violence, some steps have been taken to address the question of the appropriate classification and distribution of inmates, e.g. through the development of a department of detainees' affairs, and further measures are envisaged. More particularly, a 28-place reinforced security unit (EBA) has been established in Koraal Specht Prison; at the time of the visit, this unit was being used to accommodate on a temporary basis prisoners suspected of having abused or assaulted fellow inmates or staff. 3. Staff and management issues 17. In the report on the December 1997 visit, the CPT indicated that the deplorable conditions of detention which prevailed at Koraal Specht Prison were certainly an important factor in the culture of violence in the establishment. However, it stressed that the problem of violence also stemmed in large part from shortcomings as regards staff and management. In paragraph 17 of that report, the CPT stated that: “The fundamental requirement is to ensure that prison officers are placed in a position to exercise their authority in an appropriate manner. Prison officers will not be able to carry out their duties satisfactorily if they fear for their own safety. In such a situation, staff are likely to be prone to abuse or ill-treat prisoners in their charge; moreover, they will be poorly placed to protect prisoners from violence from other inmates. Consequently, the level of staffing must be sufficient to enable prison officers effectively to support each other in the exercise of their supervisory tasks. Adequate staffing levels must be accompanied by a clear message to prison officers that the ill-treatment of prisoners is unacceptable and will be severely punished. Further, if complaints of ill-treatment by staff do emerge, the prison's management and other relevant authorities must take swift and effective action to address them. More generally, it should be underlined that ready access to an efficient complaints system, preferably with an independent element, is crucial to ensure the maintenance of good order in prison. Tackling the phenomenon of inter-prisoner violence requires of a prison's staff that it be alert to signs of trouble and both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.” 18. However, at the time of the January 1999 visit, the problem of unauthorised staff absences continued to be acute at Koraal Specht Prison. The very high incidence of staff absenteeism resulted in levels of prison officer presence on the wings being considerably lower than necessary for the proper and safe functioning of the establishment. This problem was compounded by what appeared to be a large number of staff deployed in the administration building or employed in duties that kept them quite apart from inmates. The overall morale and confidence of prison officers continued to be low, demotivation being enhanced by a number of factors, not least by the continued deployment of police personnel to perform prison officer duties. In this connection, the CPT has noted that the measures so far adopted to address the problem of absenteeism have failed and that no target date has been set for strengthening the enforcement of those measures; further, it would appear that, at the time of the visit, no alternative policy was being considered. 19. Recruitment efforts in the recent past had served to make up for staff departures, without a significant increase in staffing levels. Nonetheless, the CPT has noted with interest that it is now envisaged to recruit between 25 and 50 additional staff for Koraal Specht Prison. 20. In paragraph 17 of the report on the 1997 visit, the Committee also stressed that: 'If prison officers as a whole receive training in the handling of violent incidents, it should be possible to reduce to a minimum interventions by a “riot squad”. Certainly, such a squad should not be routinely involved in such operations as the counting of prisoners and searches. Further, any such squad should be suitably trained and equipped; it should be resolutely committed to using the minimum degree of force necessary through recourse to modern intervention techniques. Such techniques do not include meeting violence with violence.' 21. Further, any achievements will be short-lived if Koraal Specht Prison is not provided with appropriate management. This question has already been addressed in the previous visit reports. In paragraph 15 of the report on the 1997 visit, the CPT indicated that: 'Only a governor, possessing the necessary authority, competence and experience and supported by a closely-knit team, would be in a position to instil the right tone and atmosphere into the establishment and be sufficiently motivated to develop policies and plans for the future. In the absence of real management, the establishment will tend to drift. Such an environment is a propitious one for the growth of undesirable practices.' In that report, the Committee reiterated the recommendation that the Netherlands Antilles authorities provide the prison with a management team possessing the above-mentioned qualities. 22. The appointment of a specific Location Director (Lokatiedirekteur) for Koraal Specht Prison is a positive development. However, the potential benefits of such a measure have been curtailed by a number of factors: insufficient experience of the Location Director on prison matters; temporary nature of the appointment (for six-month periods); apparent absence of suitably equipped and structured middle management; lack of powers and resources required effectively to manage the prison; insufficient support and guidance from hierarchical superiors. The CPT wishes to add that in the past the recruitment process has not always been successful in identifying the right persons for senior posts. By contrast, the CPT has noted that the Kleinmoedig Commission has apparently been given the necessary authority (and means) to address urgent problems, something which the prison's management at both local and central level has, for different reasons, not been capable of doing in the past. That is, in itself, an indictment of the prisons' management at the most senior level. 23. As regards more particularly middle management, it should be rendered effective through careful selection and suitable training. Further, the current arrangements concerning middle management at Koraal Specht Prison need to be reviewed and, possibly, reorganised. Precise job descriptions should exist for each post, setting out clearly the areas of responsibility, powers and accountability arrangements. Suitable middle management would relieve the Director of part of his current functions, permitting him visibly to be involved with staff and prisoners on a regular basis, and to participate in drawing-up longer term plans and strategy for the establishment. 24. Staff organisational structure at other levels also requires attention. On the one hand, the nature of the work involved in the case of certain posts should be clarified (and perhaps some officers re-deployed to other functions). On the other hand, the current system of promotion by length of service will not encourage good performance and does not, at present, seem to imply any extra responsibility. It is clear that this promotion system will not serve to identify suitable candidates for posts involving additional responsibility, e.g. to lead teams of officers working in specific accommodation units or involved in the different areas serviced by prison staff (workshops, education, sport, visits and escorts). 4. Conditions of detention 25. The CPT has noted and welcomes the efforts made to improve the material environment at Koraal Specht Prison. In the course of the visit, the delegation observed that the premises had been freshly painted; work had been done to keep the prison in a better state of repair than that observed at the time of the previous visits; efforts had been made to improve the provision of water and the sanitation in the detention areas; and work continued as the Committee visited the prison. These factors have led to improved conditions of detention at Koraal Specht Prison. As already indicated, much of that improvement is due to the decrease in the number of persons being held in the prison, a reduction of about 20% as compared to the establishment's population in 1994 and 1997. 26. Notwithstanding this, the prison continued to suffer some degree of overcrowding. By way of example, certain cells regarded by the CPT as being suitable for accommodating half a dozen persons were holding between 8 and 10 inmates, and cells which should ideally accommodate one or, at most, two inmates were being used to hold up to three prisoners. Consequently, efforts should continue to be made to bring the occupancy levels of prisoner accommodation into line with the criteria expressed by the CPT in paragraph 95 of the report on the CPT's 1994 visit. In this context, the CPT welcomes that the current plans for the expansion of the prison provide for an adequate amount of cell space per prisoner. Indeed, the delegation was told that some 288 new cells, designed to accommodate one prisoner each, will be built; this will allow existing cell occupancy levels to be reduced markedly. Moreover, following its expansion, the prison's capacity will apparently be calculated on the basis of some 7 m² of cell space per prisoner held in collective accommodation. However, the CPT is far from convinced that providing additional accommodation will alone offer a lasting solution to overcrowding. Additional measures, including at a statutory level, may well be required to limit or modulate the number of persons being sent to prison. 27. Even the present level of occupation would permit further improvements to be made in the short-term. This should involve, in particular, a more developed regime of activities for all prisoners, placing special emphasis on those serving longer sentences. Prisoners should be offered a variety of constructive activities involving a significant part of the day. As already indicated, as compared to the situation observed in the course of previous visits, some improvements had been made as regards the provision of activities to prisoners; in particular, the sports hall had been brought back into service, some prisoners were offered work in the workshops and in the prison's services and, on occasion, educational activities were organised. Nevertheless, as regards the vast majority of prisoners, not even the modest target of six hours of activities per week was being met. In order to succeed in developing prisoners' regime, the active participation of the relevant staff will be required, and the necessary facilities should be provided. In this connection, the delegation was told that funds have been made available by the Netherlands authorities to develop the regime for prisoners, and provision is also made for prisoners' activities in the prison's own budget. Apparently, these funds have not been fully utilised. More generally, it would appear that the total budget for Koraal Specht Prison for the last two years has been considerably underspent. This reflects badly on the prison service management, particularly if regard is had to the prevailing situation at Koraal Specht Prison. Furthermore, the delegation heard allegations that some officers did not facilitate the attendance of inmates at the courses which were organised. 28. Priority must continue to be accorded to providing prisoners with the most basic necessities, such as adequate access to running water and to proper sanitary facilities (a matter which is long overdue), and with a hygienic environment. Further, there can be no justification for failing, for whatever reason, to provide them with adequate food at regular times and ready access to drinking water. Problems in these areas persist at Koraal Specht Prison. In addition, all prisoners should be supplied with a bed and bedding. In this latter respect, certain prisoners interviewed complained that they had not received a mattress. The delegation was subsequently told that there was a shortage of mattresses, despite the fact that the budgetary means were available. 29. As for the question of buildings, this may be thought the most straightforward way of resolving Koraal Specht's problems. However, new buildings do not necessarily produce new attitudes. Motivated and well trained staff and prisoners who are kept occupied can tolerate poor buildings, at least for some time. In respect of construction efforts, since new buildings are likely to be used for a long time and involve a significant investment, efforts should be made to get them right at the outset. Provided that: first, the current level of occupation in the prison's accommodation facilities is not surpassed (preferably reduced further to comply fully with the criteria set out in paragraph 95 of the 1994 visit report); secondly, the basic needs of prisoners are satisfied; and thirdly, the programme of activities is developed somewhat, the Netherlands authorities will have the time required to ensure that efforts and financial resources are not wasted, and that new buildings adequately meet the current and future needs of Curaçao's prison system. However, the time at their disposal will not be unlimited and it is crucial that the planning process maximises the opportunity available to those authorities. To be fully effective, this process requires a combined effort by all relevant parties (planners, management, staff), a guarantee that finance is available, a team retained and committed to work until the completion of the project, an efficient procedure for considering the plan and responding to it, and an agreed realistic timetable for its implementation with strict monitoring of compliance. 30. The plans for the improvement of conditions at Koraal Specht Prison and for the expansion of its facilities were well advanced and seemed adequate. However, those responsible for the plans appeared not always to have a full understanding of what other people involved in the process were doing. Similarly, the system for securing final decisions on aspects of the plans and overall approval was not immediately clear. Thus, for example, it was very difficult to establish clear timeframes for the implementation of the plans which were being developed. 31. As already indicated, the Kleinmoedig Commission has been given the authority and the means to address urgent problems. This possibility is to be welcomed, not least because it is the first sign seen by the CPT that good intentions might in effect be translated into real action leading to the bettering of conditions of detention and the treatment of persons deprived of their liberty. However, this effective trouble shooting should not cloud the need to develop a coherent strategy. The development of longer-term plans to address the underlying issues at Koraal Specht should not be overlooked. ... 5. Health care services 34. At the time of the visit, the health care team at Koraal Specht Prison had not been reinforced as compared to the position in December 1997. In fact, the situation had worsened given the temporary absence of one of the nurses. This resulted in a very heavy workload and responsibility for the only nurse currently working full-time at the prison. Further, medical screening on reception and access to a doctor in non-emergency situations continued to suffer significant delays. As had been the case during previous visits, the delegation received many complaints from prisoners as regards the provision of health care. Moreover, the shortcomings concerning dental care had not yet been resolved. Nonetheless, the delegation was led to believe that certain changes in the above respects were imminent, inter alia by the employment of four additional full-time nurses and a doctor. These developments concerning staff should permit the implementation of at least certain of the recommendations made by the CPT in previous reports concerning the health care service at Koraal Specht Prison. ... B. Further measures required and proposed timetable 36. Controlling overcrowding will be a crucial factor in improving the treatment of persons held in Koraal Specht Prison, and has a bearing on all aspects of life in the prison. Consequently, the current level of occupation in Koraal Specht Prison must not be surpassed and, preferably, additional measures (including at a statutory level) should be taken to reduce further the number of persons held in the prison. The objective should be to ensure that the inmate population is kept at an acceptable level pending the implementation of the improvement and expansion plans. 37. The reporting system for cases of violence should be rendered effective without delay. This should be accompanied by the introduction of central registers containing relevant information to be kept in the health care service and the office of the director. Similarly, the procedure laid down by the Kleinmoedig Commission for the investigation of allegations of ill-treatment should be made fully effective in practice. ... 43. Means should be made available as of now to ensure that the basic needs of prisoners are satisfied (e.g. prisoners should be guaranteed food at appropriate times and ready access to drinking water, and they should be supplied with a bed and bedding), and that all of them are offered at least one hour of outdoor exercise every day. Further, efforts should be redoubled to ensure that prisoners are accommodated in a hygienic environment, and have suitable access to proper sanitary facilities and running water. The CPT has noted that progress has been made in this regard and understands that the water supply problem should have been resolved within the three weeks following the visit. The Committee would appreciate receiving confirmation that this task has been successfully completed. Further, an ongoing maintenance programme should be elaborated without delay and the resources made available to ensure that repair work is carried out as and when it becomes necessary. ... 46. Reinforcement of the health care team is long overdue. The CPT understands that although three candidates for nursing posts had been identified, at the time of the visit no concrete date had been fixed for them to commence employment. The CPT would like to receive further information on this subject. As regards increasing doctors' presence in the establishment, it looks forward to receiving confirmation of the employment of an additional doctor and information about the actual time the doctor is present in the prison.” By a letter dated 13 August 1999, the Permanent Representative of the Kingdom of the Netherlands to the Council of Europe transmitted to the president of CPT the response of the Government of the Netherlands Antilles. Dated July 1999, this described, in relevant part, various measures aimed at improving the situation in Koraal Specht. These included, inter alia, changes in the composition of the riot team and the way it operated, improved investigation of violent incidents, improvements in the motivation and training of prison staff and an increase of their number; improved activity and work programmes; improvements in food supply; and the provision to the prisoners of clean running water. The number of medical staff had been increased in accordance with CPT recommendations. The number of prisoners allowed had been set at a maximum. Some of these improvements, such as the recruiting and training of new staff, had already begun to be implemented at the time of CPT's visit. A CPT delegation carried out a visit to the Netherlands Antilles from 17 to 27 February 2002. They noted significant improvements in the material living conditions at Koraal Specht (which by this time had been renamed Bon Futuro); in particular, extensive renovation and construction had taken place and the severe overcrowding problem had been brought to an end. A new water supply system had been installed, as had new public telephones. Medical care had improved; so had the sanitary situation, although cockroaches and rats were still a problem in some parts of the prison. There was still a shortage of proper beds and bedding, although not to the same degree. Violent incidents involving prison staff were no longer stated to be a problem. However, inter-prisoner violence appeared to have continued as a result of prison staff, who were still insufficient in number, stepping back from awkward situations, thereby effectively abandoning control to inmates: a stabbing incident actually took place during the visit of the CPT delegation. (See the CPT's report of 15 November 2002, CPT/Inf(2002)30.) “Netherlands, the Netherlands Antilles and Aruba, Noting that the Netherlands, Suriname and the Netherlands Antilles declared of their own free will in 1954 that they wished to receive a new legal order in which they take care of their own interests independently and take care of their common interests and provide mutual assistance on an equal footing, and have decided jointly to draw up the Charter for the Kingdom; Noting that the bond under this Charter with Suriname has been terminated with effect from 25 November 1975 ...; Noting that Aruba has declared of its own free will that it accepts this legal order as a country; Have decided jointly further to determine the Charter for the Kingdom as follows.” “The Netherlands, the Netherlands Antilles and Aruba shall give each other aid and support.” “Judgments given by a court in the Netherlands, the Netherlands Antilles or Aruba, judicial orders and executory copies of official documents (grossen van authentieke akten) drawn up there can be executed throughout the Kingdom, with due regard to the legal provisions of the country where execution takes place.” “1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their own affairs independently. 2. The affairs of the Kingdom shall also concern the countries.” In relevant part, Article 59a of the Code of Criminal Procedure (Wetboek van Strafvordering) of the Netherlands provides as follows: “... 4. At the time of his interrogation [by the investigating judge], the accused may request the investigating judge to release him [from police custody]. 5. If the investigating judge considers the police custody unlawful, he shall order the accused's immediate release. Otherwise, the investigating judge shall make a note of his decision in the official record of the interrogation or, if the suspect has made a request for his release, the investigating judge shall reject it. ...” At the time of the applicant's transfer to Curaçao (January 1999), Article 289 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) of the Netherlands provided, in relevant part: “1. In all cases where, considering the interests of the parties to the case, an immediate provisional measure is needed as a matter of urgency, the case can be brought at a hearing which shall be held by the President [of the Regional Court] on the working days to be determined by him. 2. In case of circumstances requiring even greater speed, the summons can be ordered for the day and the hour, including the Sunday, to be determined in each case by the President [of the Regional Court] on oral application by the interested party. He can then also order that the hearing shall be held in his home. ...” At the relevant time, section 5 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) of the Netherlands provided as follows: “The officers (ambtenaren) of the public prosecution service (openbaar ministerie) shall obey the orders given them in their official capacity by the competent powers in the name of the Monarch.” The Government have drawn the Court's attention to a judgment given in summary proceedings under the present Article 254 of the Code of Civil Procedure (which since 1 January 2002 replaces the former Article 289) by the Provisional Measures Judge (Voorzieningenrechter) of the Regional Court of The Hague – the successor, as regards summary civil proceedings, to the President of the Regional Court – on 26 November 2002 (case number KG 02/1439). That judgment contains the following reasoning (emphasis in the original): “3.1. The question before us is whether the State commits a tort against the plaintiff, taking into account his state of health, by executing the order for his initial detention on remand (bewaring) and co-operating in his transfer to the Netherlands Antilles, there to be placed in detention on remand (voorlopige hechtenis). ... 3.3. The Provisional Measures Judge will proceed on the following basis. The initial detention on remand order (...) given by the [Curaçao] investigating judge cannot be called into question (in summary proceedings), since there is no legal remedy against such an order. The plaintiff can therefore be taken into detention on remand in a remand centre, in the present case the Bon Futuro prison. To that extent the State is therefore obliged, in view of Articles 36 and 40 of the Charter for the Kingdom of the Netherlands, to co-operate in the plaintiff's transfer to the Netherlands Antilles there to undergo detention on remand. 3.4. It is established that the plaintiff has not been interrogated within the framework of his being brought before the [Curaçao] investigating judge and the order for his initial detention on remand because of the physical distance. However, when being thus interrogated a suspect has the possibility to request the suspension of his detention on remand, for example on the ground that his state of health does not admit of his detention. In our provisional opinion the plaintiff has sufficiently made out a prima facie case that his transfer to the Netherlands Antilles – considering also Article 3 of the European Convention on Human Rights – constitutes a tort. It is noted in this connection, in the first place, that the sole fact that the plaintiff would be detained in the Bon Futuro prison does not entail the risk of treatment as referred to in Article 3 of the Convention. Nor does the fact that transfer to the Netherlands Antilles for detention is generally stressful so entail. However, the applicant has made out a sufficient prima facie case that special circumstances concerning him particularly imply that his transfer (tomorrow afternoon) to the Netherlands Antilles constitutes a tort. The plaintiff is a cardiac patient and it appears from two medical statements, including one by the cardiologist who is treating him, that if the plaintiff will run a life-threatening risk to his health – not only because of the stress caused by the said transfer [itself] and the stay in the Bon Futuro prison but also because of the climatic conditions – should he be transferred to the Netherlands Antilles. The foregoing is all the more persuasive given that it appears from the CPT report of February 2002 which has been submitted that the medical provisions in the Bon Futuro prison may have improved but still fall short of desirable standards. In view of this life-threatening health risk, this involves, for the plaintiff, a risk of treatment that, for him, would be inhuman. Since, at this time, there is reasonable (medical) doubt as to whether [the plaintiff's] state of health permits the applicant's transfer tomorrow afternoon to the Netherlands Antilles to be placed in detention on remand there (in the Bon Futuro prison) and [he] thereby runs the risk of being subjected to what, for him, would amount to inhuman treatment, since it concerns, in the present case, a life-threatening health situation, the State's co-operation in transferring the plaintiff to the Netherlands Antilles now constitutes a tort. ... 3.5. The Provisional Measures Judge considers it important to note in this connection that the initial detention on remand order has not lost its force by reason of this order for a provisional measure in summary proceedings (that is, for the time being, no transfer to the Netherlands Antilles), [nor does this order imply] a suspension of detention on remand. ...” | 0 |
train | 001-104543 | ENG | POL | CHAMBER | 2,011 | CASE OF TOMASZ KWIATKOWSKI v. POLAND | 4 | Violation of Art. 6-1+6-3 | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva | 5. The applicant was born in 1948 and lives in KonstancinJeziorna. 6. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates. 7. On an unspecified date the applicant, who was an advocate, declared that he had not collaborated with the communistera secret services. 8. On an unspecified date in 2000 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services. 9. On 27 June 2002 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration. The operative part of the judgment was served on the applicant. However, the reasoning was considered “secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of that court. 10. The applicant lodged an appeal in which he maintained, in particular, that his rights had been breached because he could not freely consult the reasoning of the judgment. 11. On 16 May 2003 the Warsaw Court of Appeal, acting as the secondinstance lustration court, upheld the impugned judgment. 12. The applicant lodged a cassation appeal against the judgment. 13. On 9 December 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly illfounded. The applicant was removed from the Bar Association with the result that he is unable to practise as an advocate for a period of ten years in application of the 1997 Lustration Act. 14. The judgment was notified to the applicant’s representative on 17 January 2005. 15. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 2739, ECHR 2007V. | 1 |
train | 001-103226 | ENG | UKR | CHAMBER | 2,011 | CASE OF DUSHKA v. UKRAINE | 4 | Violation of Art. 3 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen | 6. The applicant was born in 1985 and lived in Bilgorod-Dnistrovsky. 7. In the early morning on 18 November 2002, responding to P.'s complaint about having been robbed, the police arrived in a bar and arrested the applicant, a minor at the material time, and V., his acquaintance, and took them to the police station for questioning. The applicant explained that he knew nothing about the robbery and left the police station. It is unclear whether he was officially released. 8. At about noon on 18 November 2002 the applicant was arrested when walking down a street. According to the applicant, he was seized by force by two policemen dressed in civilian clothes, without any explanations. According to the police officers, they invited him for questioning concerning P.'s robbery and he swore at them and attempted to escape, making it necessary to arrest him by force. 9. On the same date the applicant was charged with refusal to comply with the lawful demands of the police officers, presented before the Bilgorod-Dnistrovsky Court without his parents being informed or a lawyer being appointed, and sentenced to seven days' administrative detention. 10. On 19 November 2002 the police formally initiated criminal proceedings concerning P.'s robbery. 11. On 21 November 2002 the Bilgorod-Dnistrovsky Court reviewed the applicant's sentence after an objection from the Bilgorod-Dnistrovsky Prosecutor, reduced it to three days' detention and ordered the applicant's release. Subsequently (on 4 January 2003) the President of the Odessa Regional Court of Appeal quashed the decisions of 18 and 21 November 2002 by way of supervisory review, having found that the applicant should not have been subjected to administrative detention as he was a minor. He did find, however, that the applicant's malicious insubordination rendered him liable to a fine of 136 hryvnias (UAH). 12. Before his release on 21 November 2002, the applicant was questioned concerning P.'s robbery, in the presence of his mother and a lawyer appointed by the police, and confessed to having participated in the robbery. 13. Following his release, the applicant hired a new lawyer and retracted his confessions. He alleged that he had neither participated in, nor witnessed P.'s alleged robbery and that his previous confessions had been made under duress. He further explained that on 21 November 2002 he had confirmed his confession in presence of his mother and the advocate because the police had threatened that otherwise he would not be released from detention. 14. In December 2003 the applicant was committed for trial on charges of robbery. On 3 May 2005 the Bilgorod-Dnistrovsky Court remitted his case for additional investigation. The parties did not provide any further information concerning the outcome of the criminal proceedings. 15. According to the applicant, while he was serving his administrative detention sentence he was severely ill-treated by police officers, who tried to make him confess to participating in P.'s robbery. In particular, he was handcuffed to a radiator and beaten on the head and body with a plastic water bottle. On several occasions the applicant lost consciousness. As a result of the ill-treatment, on 18 and 19 November 2002 the applicant, who had not been given access to either a lawyer or his parents, wrote self-incriminating statements, dictated by the police. By way of evidence that he was so questioned, the applicant presented copies of his confession statements dated 18 and 19 November 2002. These documents contained his and the law-enforcement officers' signatures only (no signatures of an advocate or a minor's legal representative) and a seal of the BilgorodDnistrovsky Prosecutor's Office. 16. According to the Government, no investigative actions in the applicant's respect took place during his administrative detention. 17. According to the applicant, on 22 November 2002 he complained to the Bilgorod-Dnistrovsky and Odessa Regional Prosecutors' Offices that he had been ill-treated by the police, but he was denied referral to a forensic expert to assess his injuries. 18. On 23 November 2002 the Internal Security Service of the Ministry of the Interior agreed to provide the applicant with the necessary referral. On the same day the applicant underwent a forensic examination and was found to have minor bodily injuries. In particular, the expert found that the applicant suffered from abrasions and bruises on different parts of his body, a haematoma, situational neurosis, cephalalgia and a possible kidney contusion, which could have been sustained on 18 November 2002. 19. Between 26 November and 20 December 2002 the applicant received in-patient treatment for his injuries and stress in the BilgorodDnistrovsky District Hospital. Subsequently (in 2003-2004) the applicant also underwent medical treatment for depression and chronic pyelonephritis, conditions which, according to him, were caused by head and kidney injuries sustained at the hands of the police and related stress. 20. On various dates between 22 November 2002 and 1 April 2003 the applicant's mother complained about his ill-treatment to various authorities, including the ombudsman and the President of Ukraine, in various informal ways. However, it appears that no formal action followed. 21. On 1 April 2003 the applicant lodged an official request with the Bilgorod-Dnistrovsky Inter-District Prosecutor's Office to institute criminal proceedings in respect of his ill-treatment. 22. On 11 April 2003 the prosecutor's office refused to initiate the criminal proceedings, having found that there was no evidence of illtreatment. It noted, in particular, that on the morning of 18 November 2002 the applicant had left the police station without authorisation and that at noon on the same day he had refused to follow the police officers who invited him to report for questioning, had sworn at them, pushed them and attempted to escape. His arrest and the bringing of insubordination charges had therefore been justified. Moreover, during his detention the applicant had never requested medical assistance and upon his release he had signed a document stating that he had no claims against the police. No investigative measures in the applicant's respect had been taken during the period of his detention. 23. On 15 April 2003 the Deputy Head of the Bilgorod-Dnistrovsky Department of the Ministry of the Interior conducted an internal investigation and concluded that there was no ill-treatment case to answer. In particular, the only force applied to the applicant had been during his arrest and in response to his attempt to escape. He further noted that during the applicant's detention no investigative action had been taken in his respect. On 18 September 2003 and 1 April 2004 two other internal investigations were carried out and similar conclusions were reached. 24. On 10 January 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision refusing to initiate criminal proceedings concerning the applicant's ill-treatment complaint. It noted that the applicant had fallen to the ground on several occasions while trying to escape. It made no conclusions, however, as to whether or not these falls were the cause of the applicant's injuries. On the same date that decision was quashed by the Odessa Regional Prosecutor's Office and the case was remitted for additional investigation. 25. In the meantime, having been notified of the decision of 11 April 2003 in October 2003, the applicant appealed against it before the BilgorodDnistrovsky Court. He noted, in particular, that the prosecutor's office had not questioned him, his relatives or any witnesses to his arrest concerning the events in question. It also failed to respond to his allegation that there was no legal basis for the demand to appear for questioning and his ensuing arrest at noon on 18 November 2002. If the police officers had wanted to question him about P.'s robbery, according to the applicable law they should have issued a summons and informed his parents. This procedure had not been complied with; the police had unlawfully demanded that he follow them, so he should not have been convicted of insubordination. Further, the prosecutor's office had not reacted to the fact that the applicant's administrative detention had been unlawful as he had been a minor at the material time. In addition, the authorities had wrongly stated that no investigative action involving the applicant had been taken during his detention. In particular, on 18 and 19 November 2002 he had made self-incriminating statements. 26. On 15 January 2004 the Bilgorod-Dnistrovsky City Court annulled the decision of 11 April 2003. It stated, in particular, that the investigation had been perfunctory and that the prosecution had failed to establish the cause of the applicant's injuries. It further noted that the allegation that the applicant had not been questioned concerning P.'s robbery during his detention contradicted the factual evidence contained in the case-file materials. 27. On 9 February and 2 March 2004 the Bilgorod-Dnistrovsky Prosecutor's Office again refused to institute criminal proceedings into the applicant's ill-treatment allegations, relying on essentially the same arguments as above. 28. On 20 February and 6 March 2004 respectively those decisions were set aside by the Odessa Regional Prosecutor's Office and the General Prosecutor's Office, and the case was remitted for further investigation. The General Prosecutor's Office noted, in particular, that the investigation had not determined what legal basis there had been for the police officers' initial demand of 18 November 2002 that the applicant report for questioning, or whether the applicant's reaction vis-à-vis the police necessitated his arrest and the use of force against him. Further, the authorities had not questioned the applicant or the medical expert who had examined his injuries and had not verified the police officers' version that the applicant had fallen several times while trying to escape. 29. On 22 March 2004 the Odessa Regional Prosecutor's Office also addressed a letter to the Bilgorod-Dnistrovsky Prosecutor, alerting him that the investigation was perfunctory and one-sided. In particular, it was largely based on the explanations given by the police officers, without any other measures being taken to establish the real facts. It further invited the Bilgorod-Dnistrovsky Prosecutor to facilitate “a proper and professional investigation”. 30. On 5 April 2004 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, which was set aside by the Odessa Regional Prosecutor's Office on 15 November 2004 and followed by a new refusal on 14 December 2004. 31. On 27 January 2005 the Odessa Regional Forensic Experts Bureau re-assessed the applicant's injuries as being of 'intermediate gravity'. In particular, it concluded that his depressive disorders and pyelonephritis could be connected to a traumatic experience in November 2002. It further concluded that, in view of their number and location, the injuries concerned could not have been sustained as a result of a single fall. It was likely that the injuries at issue had been caused by multiple impacts with blunt objects, such as a fist, a foot or the like. 32. Following this assessment, on 5 September 2005 the BilgorodDnistrovsky District Court set aside the decision of 2 March 2004 refusing to initiate criminal proceedings (which had already been annulled by the General Prosecutor's Office on 6 March 2004) and ordered further investigation. 33. On 23 March 2006 the Bilgorod-Dnistrovsky Prosecutor's Office refused to comply with the court's instructions, finding that further to the annulment of the decision of 2 March 2004 by the General Prosecutor's Office, it had already carried out additional investigations, and its last decision of 14 December 2004 was valid. 34. On 26 May 2006 the Odessa Regional Prosecutor's Office annulled that decision and ordered further investigation. 35. On 5 June 2006 the Bilgorod-Dnistrovsky Prosecutor's Office took a fresh decision not to institute criminal proceedings, relying essentially on the same arguments as in its previous refusals. 36. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007). | 1 |
train | 001-83788 | ENG | GBR | GRANDCHAMBER | 2,007 | CASE OF DICKSON v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Not necessary to examine Art. 12;Non-pecuniary damage - financial award;Costs and expenses partial award | Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Javier Borrego Borrego;John Hedigan;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi | 9. The applicants were born in 1972 and 1958 respectively. The first applicant is in prison and the second applicant lives in Hull. 10. In 1994 the first applicant was convicted of murder (kicking a drunken man to death) and sentenced to life imprisonment with a tariff of fifteen years. His earliest expected release date is 2009. He has no children. 11. In 1999 he met the second applicant, while she was also imprisoned, through a prison pen-pal network. She has since been released. In 2001 the applicants married. The second applicant already had three children from other relationships. 12. Since the applicants wished to have a child, in October 2001 the first applicant applied for facilities for artificial insemination. In December 2002 the second applicant joined this application. They relied on the length of their relationship and the fact that, given the first applicant’s earliest release date and the second applicant’s age, it was unlikely that they would be able to have a child together without the use of artificial insemination facilities. 13. In a letter dated 28 May 2003 the Secretary of State refused their application. He first set out his general policy (“the Policy”): “Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances. In reaching decisions particular attention is given to the following general considerations: – whether the provision of artificial insemination facilities is the only means by which conception is likely to occur – whether the prisoner’s expected day of release is neither so near that delay would not be excessive nor so distant that he/she would be unable to assume the responsibilities of a parent – whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination – whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner’s release – whether there is any evidence to suggest that the couple’s domestic circumstances and the arrangements for the welfare of the child are satisfactory, including the length of time for which the child might expect to be without a father or mother – whether having regard to the prisoner’s history, antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case.” He then gave his reasons for refusal in the present case: “... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release. Your wife will be 51 years of age at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small. It is noted that Mrs Dickson has three children from an earlier relationship. In the light of your wife’s age, the Minister has looked with very great care at both you and your wife’s circumstances, ... The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially. He also recognises the commitment which you and your wife have shown to one another. However, he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of daily life. A reasoned and objective assessment cannot be made as to whether your relationship will subsist after your release. Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived. In addition, there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived. It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood years. While recognising the progress which you have made in addressing your offending behaviour, the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour, the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment. It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison.” 14. The applicants sought leave to apply for judicial review of the Secretary of State’s decision. On 29 July 2003 the High Court refused leave on the papers. The applicants renewed their application and on 5 September 2003 leave was again refused after an oral hearing. On 13 October 2003 the applicants introduced an application to this Court and it was declared inadmissible on 15 December 2003 on the basis that they had failed to exhaust domestic remedies (application no. 34127/03). The applicants then applied to the Court of Appeal for leave to appeal. 15. On 30 September 2004 their application was unanimously rejected by the Court of Appeal. Auld LJ relied in principle on the judgment of the Court of Appeal in R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533. He pointed to the similarity of the arguments put by the applicants in the present case and in the Mellor case. Auld LJ relied on the conclusion of Lord Phillips, Master of the Rolls, in the Mellor case (see paragraphs 23-26 below) and commented: “... Lord Phillips clearly had in mind, and he set it out in the course of his judgment, the provisions of Article 8.2 of the Convention setting out various matters that may justify interference with the right to respect for private and family life, including the protection of health or morals and the protection of the rights and freedom of others. It seems to me that concern, not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside, and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved, are highly relevant circumstances for the purposes of Article 8.2 ... Accordingly, in my view, it is not open to [the applicants] to seek to re-open the validity of the Secretary of State’s policy which this court has held in Mellor is rational and otherwise lawful. As Lord Phillips made clear in his judgment in that case, although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether, the finishing point is whether there are exceptional circumstances for not applying the policy ...” He then noted that on occasions the Secretary of State had “dis-applied” the Policy when the circumstances had merited it: he referred to a letter from the Treasury Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of State had informed the court that there had been other such instances. 16. Auld LJ then applied the Policy to the present case: “To the extent that [the applicants have] suggested that [the] Secretary of State has irrationally misapplied his own policy to the circumstances, or has otherwise acted disproportionately in applying it, I would reject the suggestion. There is no basis for saying that the Secretary of State’s approach can be equated, as [the applicants] suggested, with the extinction of a fundamental right. It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided, an exercise of discretion and proportionality in respect of which, in my view, the Secretary of State cannot be faulted on the circumstances as presented to him.” 17. The other judges also relied on the judgment in Mellor. Mance LJ said the following: “The case of Mellor is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that, in addition to the European authorities specifically mentioned in paragraph 42 by Lord Phillips, the Commission, in its decision in Draper v. the United Kingdom [no. 8186/78, Commission’s report of 10 July 1980, DR 24, pp. 81-82, §§ 61-62], also recognised the potential relevance of more general considerations of public interest.” 18. On 19 December 2006 the first applicant was transferred to the open side of another prison as a Category D prisoner. In principle, he was eligible for unescorted home leave after six months should he retain his Category D status (Rule 9 of the Prison Rules 1999, as implemented by Chapter 4.3 – “Temporary Release for Life Sentence Prisoners” – of Prison Service Order 6300). 19. The Secretary of State is empowered to make rules for the management of prisons by section 47 of the Prison Act 1952, the relevant parts of which provide as follows: “The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein ...” 20. The relevant rules are the Prison Rules 1999 (SI 1999 No. 728). Rule 4 provides as follows: “Outside Contacts (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.” 21. The Policy was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years’ imprisonment to serve. His wife was 25 years old. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case. 22. They sought leave to apply for judicial review of the Policy itself, rather than its application to their case, arguing that it was an unjustified interference with their Article 8 rights. They distinguished the Policy from that concerning conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The government argued that the Policy was justified in that (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single-parent families. The High Court refused leave and the applicants appealed. 23. The Court of Appeal (Lord Phillips delivering the main judgment) noted that the Secretary of State’s decision pre-dated the incorporation of the Convention into English law and continued: “It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant’s case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either.” 24. Having examined relevant Commission jurisprudence (no. 6564/74, Commission decision of 21 May 1975, Decisions and Reports (DR) 2, p. 105; no. 8166/78, Commission decision of 3 October 1978, DR 13, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission’s report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission’s report of 10 July 1980, DR 24, p. 72; and E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 1997, DR 91-A, p. 61), Lord Phillips summarised five Convention principles he considered thereby established: “(i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights. (ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12. (iii) This restriction is ordinarily justifiable under the provisions of Article 8(2). (iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right. (v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.” 25. Lord Phillips went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances. As to the first justification, he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and, indeed, that that statement did no more than restate the Policy in that it indicated that it was a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”. On the second justification, he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison. Lord Phillips agreed that public perception was a legitimate element of penal policy: “Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. ... When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.” As regards the third justification which concerned the alleged disadvantage of single-parent families, he commented: “I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.” 26. Lord Phillips then concluded: “For those reasons [the Mellors] failed to make out [the] case that the [Policy] ... is irrational. [The Mellors] accepted that there were in this case no exceptional circumstances, and [they were] right to do so. It follows that the question of whether each of the six general considerations set out in [the Secretary of State’s] letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether. For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.” 27. Responsibility for making artificial insemination arrangements is with the health-care department in the relevant prison in consultation with the local primary care trust. Since the level of health-care provision varies from prison to prison, it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose. The prisoner would be expected to meet any costs incurred. 28. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe’s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release. 29. Article 10(3) of the International Covenant on Civil and Political Rights (“the ICCPR”) provides that the “penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. The General Comment of the Human Rights Committee on Article 10 further states that “no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner”. 30. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles: “57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation. 58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life. 59. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.” 31. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that: “The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.” The latest version of those Rules adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with three principles: “Rule 2: Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. ... Rule 5: Life in prison shall approximate as closely as possible the positive aspects of life in the community. Rule 6: All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems – “the CDPC”) noted that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights: in fact restrictions should be as few as possible. Rule 5, the commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”. 32. The first section of Part VIII of the 2006 Rules is entitled “Objective of the regime for sentenced prisoners” and provides, inter alia: “102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” In these respects, the CDPC commentary explains that Rule 102: “... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism. ... The new Rule is in line with the requirements of key international instruments including Article 10(3) of the [ICCPR], ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term, “rehabilitation”, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives. In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.” 33. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community. 34. The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences. 35. The preamble to Recommendation (2003)23 on the management by prison administrations of life-sentence and other long-term prisoners provides that: “ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other;” The aims of the management of long-term prisoners in paragraph 2 of the Recommendation included the following: “– to ensure that prisons are safe and secure places for these prisoners ...; – to counteract the damaging effects of life and long-term imprisonment; – to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.” The recommendation also outlined five linked principles (paragraphs 38) for the management of long-term prisoners: – account to be taken of the personal characteristics of prisoners (individualisation principle); – prison life to be arranged so as to approximate as closely as possible to the realities of life in the community (normalisation principle); – the opportunity to be accorded to exercise personal responsibility in daily prison life (responsibility principle); – a clear distinction should be made between the risks posed by life and long-term prisoners to themselves, to the external community, to other prisoners and to those working or visiting the prison (security and safety principle); – prisoners should not be segregated on the basis of their sentence (nonsegregation principle); and – the planning of an individual prisoner’s long-term sentence should aim at securing progressive movement through the prison system (progression principle). The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system “from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community”. There should also be participation in prison activities that “increase the chances of a successful resettlement after release” and conditions and supervision measures that are “conducive to a law-abiding life and adjustment in the community after conditional release”. 36. The second relevant Committee of Ministers’ recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that “research has shown that detention often has adverse effects and fails to rehabilitate offenders”. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as: “– the payment of compensation or the making of reparation to victims; – entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime; – working or following some other approved occupational activity, for instance, education or vocational training; – participation in personal development programmes; and – a prohibition on residing in, or visiting, certain places.” | 1 |
train | 001-98318 | ENG | BGR | ADMISSIBILITY | 2,010 | TSENOV v. BULGARIA | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Tseno Hristov Tsenov, is a Bulgarian national who was born in 1941 and lives in Sofia. He was represented before the Court by Mr K. Mihalkov, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 June 2002 the applicant brought an action against his brother before the Botevgrad District Court. He contended that he and his brother were co-owners of a plot of land and a house in Botevgrad. As his brother possessed the land and the house, the applicant sought the division of the property and compensation. On 12 June 2002 Judge T. of the Botevgrad District Court instructed the applicant to indicate the manner in which he had acquired ownership of the property at issue and to present a plan of it and a tax valuation report. On 28 June 2002 the Botevgrad District Court issued a certificate authorising the applicant to receive a certified copy of the plan of the property from the local municipality. In reply to Judge T.’s instructions of 12 June 2002, on 8 July 2002 the applicant explained in writing that he and his brother had inherited the property from their parents. His father had died in 1963. In 1969 his mother had transferred the title of the property to his brother but in the applicant’s view this contract had been null and void because his mother had not been the sole owner. In 2001 the applicant’s brother had conveyed the title of the property to his son, the applicant’s nephew. In addition to his initial claims for division and for compensation, the applicant requested that the 2001 contract whereby the property at issue had been acquired by his nephew be declared null and void. The applicant enclosed with the statement of 8 July 2002 a photocopy of a plan of the property issued on 1 April 2002, and a photocopy of a tax valuation report. In another statement, also dated 8 July 2002, the applicant requested the Botevgrad District Court to provide him with a certificate authorising him to obtain a certified copy of the plan and the original tax valuation report of the property from the local municipality. On 8 July 2002 Judge T. issued new instructions to the applicant to further clarify his claims. She decided not to issue any decision in respect of the applicant’s request for a court certificate until those clarifications were provided. In written statements of 19 and 25 July 2002 the applicant made the necessary clarifications in respect of his claims. In an additional statement of 29 July 2002 he requested that the District Court examine solely his claim concerning the nullity of the 2001 donation contract and withdrew the remaining claims. He urged the court to examine that claim, pointing out that the documents he had submitted contained all the relevant information. On 2 September 2002 Judge T. made a handwritten note on the applicant’s statement of 25 July 2002 with instructions to the Botevgrad District Court’s registry to issue a certificate in respect of the plan of the property. At the same time, she instructed the applicant to provide a certified original copy of the plan and an original tax valuation report. The applicant failed to comply with those instructions. On 16 October 2002 Judge T. adopted a decision whereby the proceedings were discontinued since the applicant’s statement of claim had not been completed with the necessary documents. The applicant appealed. He argued that he had been unable to obtain a certified copy of the plan and an original tax valuation report of the property. On 19 December 2002 the Sofia Regional Court upheld the decision to discontinue the proceedings. Following a further appeal by the applicant, in a final decision of 19 May 2003 the Supreme Court of Cassation upheld the lower courts’ decisions. It pointed out that the plan had been necessary in order to identify the property exactly, and the tax valuation report in order to calculate the court fee due. Since the applicant had failed to provide these documents, the proceedings had rightly been discontinued. Articles 98 and 99 of the Bulgarian Code of Civil Procedure 1952, in force at the relevant time, set out the procedural requirements for the validity of statements of claim. In particular, Article 98 § 2 specified that all relevant written evidence had to be submitted with the statement of claim. Article 100 §§ 1 and 2 of the Code provided that where a statement of claim did not comply with the said requirements, the plaintiff was to be instructed to rectify the deficiencies, including to submit any relevant documents. In the event of failure to do so, by a decision of the respective court the statement of claim and the documents submitted were to be returned to the plaintiff and the proceedings discontinued. That decision was subject to appeal. By Article 148 of the Code, the courts could issue certificates to be used by the parties to obtain documents from other state institutions. For certain types of civil claims, such as claims for division of property or claims for the nullification of contracts concerning real property, court fees are determined as a percentage of the value of the property at issue, calculated on the basis of its tax valuation. Property plans and tax valuation reports are official documents issued by local municipalities. There is no statutory limitation in time for seeking that a contract be declared null and void. | 0 |
train | 001-84452 | ENG | RUS | CHAMBER | 2,008 | CASE OF RYAKIB BIRYUKOV v. RUSSIA | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1977 and lives in Togliatti, Samara Region. 6. In May 1999 the applicant was injured in a road accident; in particular, his arm was broken. Immediately after the accident he was taken to hospital, where he was given first aid. Several days later his arm was amputated. 7. In October 1999 the applicant brought proceedings for damages against the hospital before the Nikolaevskiy District Court of the Ulyanovsk Region. He claimed that the hospital’s medical staff had failed to provide him with appropriate medical care and that their negligence had led to the loss of his arm. 8. On 2 April 2001 the court examined the case in a public hearing at which the applicant, his representative and the defendant were present. It heard the parties and witnesses and examined other evidence. 9. At the close of the hearing the court read out the following operative part of the judgment: “On 2 April 2001 the Nikolayevskiy District Court, composed of ..., having examined in an open court session a civil case which originated in an application by Biryukov Ryakib Ismailovich against the Nikolaevskaya [Hospital] for compensation for bodily harm, on the basis of Article 1064 of [the Civil Code of the Russian Federation] and being governed by Articles 14, 50, 191, 194-97 of [the Code of Civil Procedure of the Russian Soviet Federative Socialist Republic], decided: To reject the claims by Biryukov Ryakib Ismailovich against the Nikolaevskaya Central District Hospital of the Ulyanovsk Region for compensation for bodily harm. An appeal or a protest against the judgment to the Ulyanovsk Regional Court can be lodged with the Nikolayevskiy District Court within ten days.” 10. A copy of the reasoned judgment was served on the applicant on 6 April 2001. It stated that, according to Article 1064 of the Civil Code, harm inflicted on the person or property of an individual is to be reimbursed in full by the person who inflicted the harm. After a description of the evidence examined by the court, the judgment contained the court’s finding that there had been no malpractice on the part of the hospital staff and no causal link between the treatment and the amputation of the applicant’s arm. For those reasons the applicant’s claims were rejected. 11. The applicant appealed, inter alia, on the grounds that the district court had not read out the full text of the judgment at the hearing. 12. On 3 July 2001 the Ulyanovsk Regional Court examined the case on appeal at a public hearing. Having heard the parties, it dismissed the applicant’s appeal and upheld the judgment. It noted that by reading out the operative provisions of the judgment at the hearing and providing the applicant with a copy of the reasoned judgment within the established timelimit the district court had fully complied with the Code of Civil Procedure, notably Article 203. 13. According to the Government, the Regional Court read out the operative provisions of its decision at the hearing in the applicant’s presence and later served a copy of its reasoned decision on the applicant. 14. Article 9 of the Code of Civil Procedure of 1964, in force at the material time, provided: “... Judgments shall always be pronounced publicly.” 15. Article 203 of the Code read: “Judgment shall be delivered immediately after the examination of a case. In exceptional circumstances, in extremely complex cases, the preparation of a reasoned judgment may be postponed for not more than three days, providing that the operative part of the judgment is pronounced at the same hearing in which the examination of the case has ended. At the same time the court shall announce when participants to the proceedings and representatives may become acquainted with the reasoned judgment. The announced operative part of the judgment shall be signed by all judges and included in the case file.” 16. Under Article 197 of the Code, judgments were to include an introductory part (the time and place of the delivery of judgment, the name and composition of the court in question, the registrar, parties, the subject matter of the dispute, etc.), a descriptive part (the claims and parties’ submissions), reasons (the circumstances of a case as established by the court, the evidence on which the court based its conclusions, the reasons for which the court rejected one or another piece of evidence, and the statutes by which the court was governed) and an operative part (the court’s conclusion whether to grant or reject the suit, instructions as to how court costs should be divided and explanations concerning an appeal against the judgment). 17. Under Article 213 of the Code, copies of judgments were sent to parties and other participants in proceedings who were not present at the court hearing. Those persons who were present and participated in the examination of the case could receive copies of judgments if they so requested (paragraph 18 of Resolution no. 7 of the Plenary Session of the Supreme Court of the USSR of 9 July 1982 “On court judgments”). 18. Under Article 301 of the Code, the examination of a case on appeal begins with a report by one of the judges, who gives an account of the the first-instance court’s judgment, points of appeal and observations in reply, the content of new materials submitted to the court and any other information necessary for assessment of the judgment. 19. By virtue of sections 30 and 31 of the federal law of 1996 on the judicial system of the Russian Federation and sections 1 and 6 of the federal law of 1998 on the Courts Administration Office at the Supreme Court of the Russian Federation, the Courts Administration Office at the Supreme Court provides administrative support for district and regional courts. In particular, it organises their clerical work, including archives. Thus, at the material time, the clerical work in a district court was governed by the Courts Administration Office’s Instruction no. 8 of 29 January 1999. 20. Paragraph 181 of the Instruction set out an exhaustive list of persons who could consult a case file in a court building. It was limited to the parties to the proceedings, their representatives, other participants in the proceedings, judges and officers of higher courts, public prosecutors and officers of the Courts Administration Office. 21. Paragraph 184 of the Instruction set out an exhaustive list of persons who could be given, at the discretion of a president of a court or a judge, a copy of documents from a case file. It included the parties to a civil case, an accused person, a convicted person, an acquitted person and a victim in criminal proceedings, and their representatives. 22. By a final decision of 3 April 2003, the Supreme Court of the Russian Federation refused to examine an appeal lodged by two individuals who were seeking to have the Instruction declared void. It found that the Instruction, as an instrument which concerned human rights, freedoms and obligations, had not been registered at the federal Ministry of Justice and officially published and could not therefore be considered an instrument issued by a federal authority, the lawfulness of which would fall within the jurisdiction of the Supreme Court. 23. Instruction no. 169 of the Courts Administration Office of 28 December 1999 (paragraphs 16.1 and 16.4) concerning regional courts and the new Instruction no. 36 of the Courts Administration Office of 29 April 2003 (paragraphs 12.1 and 12.4) concerning district courts, which are currently in force, contain provisions identical to those of paragraphs 181 and 184 of the above-mentioned Instruction no. 8. 24. These two Instructions were challenged in the Supreme Court by a journalist, who argued that they violated the principles of open and public administration of justice, in that they restricted public access to court decisions and other court documents in case files. In its decision of 2 November 2004, the Supreme Court found that the Instructions complied fully with the Code of Civil Procedure of 2002 and the Code of Criminal Procedure, which vested a right to consult a case file and receive a copy of court decisions and other documents only in the participants in the proceedings. It noted that journalists could have access to court documents to the extent and in the order prescribed by the relevant legislation. The journalist argued that the existing order did not ensure free access to court documents and that some court officers prevented journalists from exercising their right of access to information. The Court replied that in such instances the journalist was free to complain by way of an appeal to a court. It dismissed the application. On 13 January 2005 the decision was upheld by the Cassation Division of the Supreme Court. 25. Under the Mass Media Act of 27 December 1997 (sections 40 and 58), restrictions on journalists’ access to information are not allowed and entail responsibility, save in cases concerning State secrets, commercial secrets or other confidential information protected by law. 26. Under the Information, Computerisation and Protection of Information Act of 20 February 1995, in force at the material time, and Presidential Decree no. 188 of 6 March 1997, information about the facts, events and circumstances of an individual’s life which makes it possible to identify that individual is confidential. Under the Decree, confidential information further includes information containing the secrecy of the investigation and court proceedings, and official, professional (medical secrecy, information protected by lawyer-client privilege, etc.) and commercial secrecy. 27. Article 1064 of the Civil Code of the Russian Federation provides: “1. Harm inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the harm. A law may oblige a person who is not a tortfeasor to reimburse the harm. A law or a contract may establish an obligation of a tortfeasor to pay the victim compensation in addition to the reimbursement of the harm. 2. The person who inflicted the harm shall be liable for it unless he proves that the harm was inflicted through no fault of his. A law may provide for the reimbursement of harm in the absence of the tortfeasor’s fault. 3. Harm caused by lawful actions shall be subject to compensation in cases provided by law. Reimbursement of harm may be refused if the harm was caused at the request or with the consent of the victim, and the torfeasor’s actions do not violate the moral principles of society.” | 1 |
train | 001-96885 | ENG | SWE | ADMISSIBILITY | 2,010 | DIALLO v. SWEDEN | 3 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 1. The applicant, Ms Fatoumata Binta Diallo, is a French national who was born in 1976. She is represented before the Court by Jonas Lundberg, a lawyer practising in Gothenburg. The Swedish Government (“the Government”) were represented by their Agent, Ms Charlotte Hellner of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Upon the applicant’s entry into Sweden (Gothenburg) on 24 February 2006, the customs authorities found her to be in possession of 988.6 grams of heroin, wrapped in two parcels in her suitcase. 4. She was interrogated from 4.05 p.m. until 4.35 p.m. by a customs officer (AS). According to the report, the interview was held in French and the applicant did not wish a lawyer to be present. No interpreter was present. The applicant explained that the parcels had been given to her by a named female friend (YB) at Charles de Gaulle Airport to be delivered to YB’s brother, who lived in Stockholm, and whom the applicant had met several times in Paris. The brother was supposed to pick her up in his car and take her to Stockholm. The applicant was to stay in his apartment over the weekend. The purpose of her stay in Sweden was tourism. The packages contained a product to wash money. She did not know that the parcels contained drugs. 5. Subsequently, at 4.50 p.m. the applicant was arrested. 6. The applicant was interrogated again in the customs office from 7.45 p.m. until 8.45 p.m. by a customs officer (SR). The interview was held in French with the assistance of an authorised interpreter on the telephone. The applicant added various details, for example that she did not have the address of the said brother, but had his telephone number on her telephone. The applicant also made changes to her previous statement, notably that she could not get a place on the plane from Paris to Stockholm, so she had to go to Gothenburg. From there she intended to go to Stockholm by train and the said brother was supposed to pick her up at the railway station in Stockholm. She was supposed to stay in a hotel in Stockholm. The brother was supposed to show her the town. The applicant also stated that YB had told her that the parcels contained a product to be used to wash discoloured notes. The record stated that it was read out to the applicant and approved by her. 7. The following day, from 2.35 p.m. to 3.40 p.m. a third interview was held with the applicant and SR, during which a lawyer and a French-speaking interpreter were present. During that interview SR reminded the applicant about the statement provided during the second interview, including her statement that she thought that the content of the packages was a product to be used to wash discoloured notes. The applicant added that she had heard YB, who was actually a man, speak to two other men at the applicant’s workplace about a product to be used to wash discoloured notes and for this reason she believed that the packages contained such a product. The applicant intended to visit her cousin in Stockholm, but the cousin did not know about her visit. At the restaurant where the applicant worked, YB had heard her mention her forthcoming trip and the day before her trip, she bought the ticket, and by chance YB called her the same day and asked her to take the parcels to the named person in Stockholm. YB came to the airport in Paris on 24 February 2006 and gave her the parcels. She had not asked what they contained because she trusted YB. According to the record, the statement was read out to the applicant who approved it. 8. Criminal proceedings were initiated against the applicant before the District Court (Mölndals tingsrätt) and the applicant was heard with the assistance of an interpreter during various pre-trial hearings about whether she should remain in detention on remand. During the trial hearing on 26 May 2006, with the assistance of an interpreter, the applicant stated, inter alia, that she had been going to visit her cousin in Stockholm. She had mentioned her forthcoming trip to YB who was a respectable and regular customer at the restaurant where she worked. It was he who had asked her to take the parcel to the named person in Stockholm. The latter, whom the applicant had seen a few times at the restaurant, was supposed to call her when she arrived in Stockholm. She had had no idea that the parcel contained drugs. When the customs officers had told her this, she could not believe it and proposed that it could be anything, for example “a product to wash money”. She had been misunderstood during the first interview because no interpreter had been present, and during the second interview, the interpreter had “not been good either”. 9. A customs officer, GE, was heard as a witness. She described the applicant’s reaction when passing through customs. She added that since the applicant could not speak English or Swedish and the customs officers at the customs desk could not speak French, they had had to use sign language. Thereafter, SA was summoned and interviewed the applicant. 10. By a judgment of 26 May 2006 the District Court found the applicant guilty of drug trafficking. It found it established that she was aware that the packages contained narcotics, but did not find it substantiated that the applicant had known what kind of narcotics the packages contained or that she had a precise idea of the quantity. The applicant was therefore sentenced to one year and six months’ imprisonment. In addition she was expelled from Sweden for five years. 11. Both the applicant and the prosecution appealed against the judgment to the Court of Appeal (Hovrätten för Västra Sverige), before which both the applicant and the witnesses, GE and AS, were heard. AS was of the view that she and the applicant had communicated well during the first interview held on 24 February 2006 and that there had been no need for an official interpreter. She had spoken clearly and slowly and asked the applicant several questions in order to make sure that they had understood each other. AS considered herself sufficiently skilled to conduct the interview in French, which she had learned at school. Moreover, she had lived in a French-speaking home for eight years because her former husband was French and spoke French to their children. AS maintained that, during the first interview, the applicant had said that the packages contained a product to wash money. At the same time the applicant had rubbed her hands as if washing them with soap. The applicant insisted that she had never said anything about washing money and that AS must have misunderstood her in that respect. What she had intended to say was that she needed to go to the toilet. The applicant also alleged that the parcels had been on top of her clothes in her suitcase. GE maintained that they had been found among the applicant’s clothes. 12. By judgment of 26 July 2006 the Court of Appeal convicted the applicant of drug trafficking with heroin and sentenced her to nine years’ imprisonment. Moreover, the ban on her entry into Sweden was set to expire on 1 July 2016. In its reasoning, the following was stated: “The Court of Appeal initially notes that the packages were not so large or heavy that they could not easily have been sent via normal post. Compared to normal postal services, the manner in which the packages were sent entailed a great deal more work and expense. [YB] had to travel to Charles de Gaulle airport to hand over the packages to [the applicant] [who in turn] - in a country with which she is not familiar – had to contact a person whom she had indeed seen on two occasions as a guest at the restaurant, but for whom she had no address and whom she could only contact by calling the number she had been given. Any reasonable person would have wondered about the reason for such an odd procedure. [The applicant] has stated that she did not know what the bag with the packages contained. The question, then, is how far we can trust her statements. The investigation has revealed that the packages were discovered packed separately in amongst the clothes that were in the luggage. Therefore, [the applicant’s] statement that she had placed the plastic bag with its contents at the top of the bag is incorrect. In view of the fact that the packages were not found packed together in a plastic bag when the inspection was carried out, she must - as the District Court found - also have held the packages themselves in her hands. Moreover, the interview conducted by [AS] revealed that [the applicant], when questioned following the customs check, claimed that the packages contained a substance used for washing money. This makes her story contradictory, as she herself claimed not to know anything about the contents. The fact is that there is no reason to assume that [AS], who says that she asked several control questions, could have misunderstood what [the applicant] said. [The applicant] has said that she received a telephone number for [the contact person in Stockholm] at Charles de Gaulle airport. The investigation of her mobile telephone revealed, however, that she had already received a call lasting just over one minute from the same telephone number in October 2005. [The applicant] has confirmed that she received this call, as the investigation has shown, but claims that no conversation whatsoever took place. The circumstances suggest that [the applicant] has had more extensive contact with [the contact person in Stockholm] than she is willing to admit. [The applicant], who says that she is not acquainted with Sweden and that she was going to visit a relative in Stockholm at an address she did not know, has been extremely vague about why she travelled specifically to Gothenburg. In the light of the information given above, [the applicant’s] statements cannot be trusted. Instead, the circumstances surrounding the import of these packages are such that [the applicant] must have realised that there was a very high risk that she was involved in drug smuggling. The Court of Appeal refers here, above all, to the remarkable way in which the two smallish packages were imported into Sweden, and to the fact that both [YB] and [the contact person in Stockholm] were people of whom [the applicant] had little knowledge. Despite this, she failed to ask what the packages contained and took them with her to Sweden hidden in her luggage. No information has emerged that suggests that she would have refused to take the packages if she had known that they contained drugs, or if she had known that they contained as dangerous a drug as heroin. In this case, it must be assumed that she was indifferent to whether the packages contained heroin, and she is therefore to be regarded as having had the intention of carrying out the act of which she is accused. This is to be judged as drug smuggling, an aggravated offence.” 13. Leave to appeal was refused by the Supreme Court (Högsta domstolen) on 5 October 2006. 14. Section 3 of the Act on Penalties for Smuggling (lagen om straff for smuggling, SFS 2000:1225; hereinafter “the 2000 Act”) provides that a person who imports goods which are subject to a specific prohibition or condition for import, and who intentionally contravenes the prohibition or condition by failing to report the goods for customs clearance, shall be sentenced for smuggling to a fine or imprisonment for a period not exceeding two years. Where such smuggling relates to drugs, a sentence of imprisonment for a period not exceeding three years shall be imposed (section 6, paragraph 1). In the case of the offence being judged as aggravated, a sentence of imprisonment should be imposed for a period of at least two years and not exceeding ten years (section 6, paragraph 3). Particular consideration shall be given to whether the act related to a particularly large quantity of narcotics, whether the act formed part of a step in an activity that was conducted on a large scale or professionally, or whether the activity or act was otherwise of a particularly dangerous or unscrupulous nature (ibid). 15. Chapter 5, section 1 of the Swedish Code of Judicial Procedure (rättegångsbalken, SFS 1942:740; hereinafter “the 1942 Code”) set out that with some exceptions, Swedish is the language to be used in Swedish courts. There is no express prohibition on the use of a foreign language during part or the whole of a main hearing. However, to hold a hearing in a language other than Swedish would be contrary to the rule that court hearings shall be open to the public (see Chapter 5, section 1). Chapter 5, section 6 of the 1942 Code contains rules on the use of interpreters in court, which are considered to apply by analogy to preliminary crime investigations in general. The provision states, inter alia, the following. If a party, a witness, or any other person who shall be heard by the court is incapable of understanding and speaking Swedish, an interpreter may be engaged to assist the court. If a public interpreter for the language in question serves at the court, he shall be assigned. Otherwise, the court shall assign a suitable person to assist as interpreter in the case. 16. In crime-fighting activities by analogy the Swedish Customs apply section 8 of the Administrative Procedure Act (förvaltninglagen; SFS 1986:223; hereinafter “the 1986 Act”), which states that when an authority is dealing with someone who does not have a command of the Swedish language, or who has a severe hearing impairment or speech impediment, the authority should use an interpreter when needed. During their basic training, all customs officers are informed about section 8 of the 1986 Act and how it applies to the activities of the Swedish Customs. In practice, the assessment of the need for assistance by an interpreter is made on a case-by-case basis having regard to relevant circumstances such as the nature of the case, its level of importance to the individual and the customs officer’s knowledge of the foreign language at issue. Immediately after a seizure (beslag) has been made, a short initial hearing is often held by one of the customs officers in connection with the customs control at the border. If a non-Swedish speaker is involved, the customs officers present at the time decide among themselves whether any of them has sufficient skills in the relevant language to conduct the hearing. The purpose of this initial hearing is primarily to inform the person in question about the suspicions against him or her and his or her right to be represented by defence counsel. After the initial hearing, the case is normally taken over by a customs investigator. It is only in rare cases that such an investigator holds a hearing that involves the use of a foreign language without the assistance of an authorised interpreter. Authorised interpreters are engaged, directly or indirectly, via established and approved interpreting agencies. | 0 |
train | 001-118605 | ENG | RUS | CHAMBER | 2,013 | CASE OF AZIMOV v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 6. The applicant was born in Tajikistan in 1979. In recent years he has lived most of the time in Russia, in the Moscow Region. He is currently detained in the Lukhovitsy Detention Centre for Aliens in the Moscow Region. 7. The applicant lived in Tajikistan. His family owned a fruit farm near the town of Isfara in Tajikistan and about 10 hectares of orchards. They dried fruits and exported them to Russia. In 2002 the applicant moved to Russia, where he sold dried fruit at a market near Moscow. Every year he returned for two or three months to Tajikistan and helped his relatives with the harvest. He also sent money to his home town. He states that he has two wives: his first wife lives in Tajikistan with his children; his second wife moved to Russia, but after the applicant’s arrest (see paragraph 21 below) returned to Tajikistan. 8. According to the applicant, members of his family were victims of politically motivated persecution in Tajikistan. Thus, the applicant’s elder brother, Barot, took part in the 1992-95 civil war in Tajikistan on the opposition side. In the applicant’s words, Barot was one of the leaders of the United Tajik Opposition. He was arrested in 1995. Following his arrest, thousands of people, including members of the applicant’s family, demonstrated on the streets of Isfara demanding his release. The police used firearms while dispersing the demonstration. In the years which followed, the applicant’s brother was tried and sentenced for anti-constitutional conspiracy, first in 1997 and then again in 2003. According to the applicant, Barot told him that he had been tortured while in detention. 9. The applicant alleged that the Tajikistani authorities continued to persecute his family. On several occasions their family house was searched in the night; the applicant and his wife had to sleep fully dressed in fear of being apprehended. The authorities repeatedly and arbitrarily disconnected water and electricity supplies from his house. The local law-enforcement officers extorted money from him and forced the applicant to pay them part of his earnings in Russia. In addition, in 2007 the applicant had a quarrel with a local police officer. 10. According to the applicant’s submissions, during his stays in Tajikistan he attended some opposition political gatherings. 11. In November 2009 (the exact date of his arrival was disputed in the domestic proceedings in Russia) he arrived in Moscow from Tajikistan for the last time and started working at the Dorgomilovskiy food market in Moscow. In 2009 the applicant joined an opposition movement, Vatandor (“The Patriots”), which united Tajikistani nationals living abroad and wishing to see certain reforms in the country. The applicant took part in meetings of Vatandor members in Russia. The applicant’s name was put on the membership list of that organisation; however, he was not given any documents confirming his membership of Vatandor. 12. On 26 March 2009 the Tajikistani authorities opened a criminal case against the applicant. He was accused of anti-government armed conspiracy. Specifically, the applicant was accused of being a member of several opposition movements responsible for armed riots – first, the “Bay’at” group and then the “Islamic Movement of Uzbekistan” (“the IMU”). His brother Barot was sentenced to imprisonment twice for membership of those groups and involvement in the riots. According to the Tajikistani authorities, in October 2007 the applicant took part in the construction of a military base in the mountains in Kyrgyzstan, near the border with Tajikistan, where the IMU kept firearms and ammunition. He took an oath of allegiance to the movement. The applicant was also involved in propagating the ideas of the movement amongst local youth. 13. On 30 March 2009 a formal statement of charges was issued against the applicant. He was additionally charged with supporting the IMU with the money he earned in Russia. The applicant was also accused of being involved in dealing in stolen cars in Moscow and the forgery of car documents. He sent the proceeds of this activity to Tajikistan to finance subversive activities there. 14. The applicant noted that there were two versions of the decision of 26 March 2009 to open a criminal case against him, as well as of the statement of charges of 30 March 2009. One version of the documents contained information apparently concerning another presumed member of the opposition, a Mr A. Abdulkhalikov. Furthermore, one version of the statement of charges against the applicant mentioned “stolen cars”, “forged documents” and “financing terrorist activities”, whereas another version did not contain that information. 15. On 30 March 2009 the Tajikistani authorities ordered the applicant’s detention on remand in absentia. In the detention order personal data of the applicant contained information apparently concerning Mr Abdulkhalikov. The detention order did not mention stolen cars, forged documents, or financing of terrorist activities. 16. On 22 March 2010 the Tajikistani authorities placed the applicant’s name on the international wanted list. In the international search request thus created the Tajikistani authorities placed the applicant’s own name in the column concerning his presumed accomplices. 17. On 3 September 2010, in the town of Khudjand, three police officers were killed and several people wounded in a terrorist attack. On 6 December 2010, in a press interview concerning the applicant’s arrest in Russia (see paragraph 21 below), the Minister of Internal Affairs of Tajikistan mentioned the applicant as one of the perpetrators of that terrorist attack. The applicant was defined as amir (the leader) of a terrorist cell operating from Russian territory. 18. In 2009-10 other suspected participants in the conspiracy were arrested in Tajikistan and stood trial there. Fifty-three people were convicted. One of them, Mr. Ismanov, was convicted inter alia of setting up “criminal contacts” with the applicant, and of transmitting “prohibited information” from the applicant in Russia to Tajikistan. 19. During the trial several of the accused complained to the court of illtreatment by law-enforcement officers in the course of the preliminary investigation. The applicant referred to the case of Mr I. Boboyev, who died during questioning at the police station in the applicant’s home town, and who he stated was his cousin. The applicant also cited the case of Mr S. Marufov, a member of the Islamic Revival Party, who he said had been tortured to death by police officers in the applicant’s home town. The applicant lastly stated that a Mr I. Ismanov had been tortured. The wife of Mr Ismanov had seen the traces of torture, and was prepared to testify to it before the national court, but the court refused to hear her. 20. On 8 December 2010 the Tajikistani authorities sent an extradition request to the Russian authorities. The extradition request was accompanied by assurances that the applicant would not be subjected to torture or cruel, inhuman, degrading treatment or punishment. He would have all opportunities to defend himself in Tajikistan, including the right to legal assistance. He would not be persecuted on political grounds, or because of his race, religion, nationality or political views. In addition, assurances were given that the applicant would be prosecuted only in relation to the crimes mentioned in the extradition request, that he would be able to leave Tajikistan freely after standing trial and serving a sentence, and that he would not be expelled, transferred or extradited to a third State without the Russian authorities’ consent. 21. On 3 November 2010 the applicant was arrested in the town of Dolgoprudniy in the Moscow Region, in connection with the international search warrant against him. He was questioned by the officers of the antiextremism department of the Russian police. 22. During the questioning he explained that he had come to Russia in November 2008 for work and that he had not applied for Russian nationality or sought political asylum. His documents were not in order; he claimed that he had lost his Tajikistani passport. The applicant alleged that his criminal prosecution in Tajikistan was politically motivated because of his membership of the Vatandor opposition movement. 23. On 4 November 2010 the Dolgoprudniy Town Court remanded the applicant in custody pending examination of the extradition request. 24. On 13 December 2010 the applicant requested the General Prosecutor’s office not to extradite him to Tajikistan, referring to imminent risk of ill-treatment there. He relied on reported cases of torture by lawenforcement agencies in Tajikistan and the relevant case-law of the Court. The applicant argued that, being connected to the political opposition, he belonged to a vulnerable group and that his criminal prosecution in Tajikistan was politically motivated. 25. On 22 December 2010 the Dolgoprudniy Town Court extended the period of the applicant’s detention pending extradition until 3 April 2011. 26. On 25 December 2010 the applicant appealed, claiming in particular, that his detention was not justified, because the asylum proceedings he had initiated earlier (see paragraph 38 below) had a suspensive effect and he could not have been extradited before the completion of those proceedings. Therefore, there was no reason to detain him. 27. On 28 December 2010 the Ministry of Foreign Affairs of Russia informed the General Prosecutor’s Office that they did not see any obstacles to the extradition of the applicant to Tajikistan. 28. On 14 January 2011 the Moscow Regional Prosecutor wrote a letter to the immigration authority in connection with the applicant’s request for asylum. In this letter he asked the Migration Authority to keep him informed of developments in the applicant’s case, and indicated that the applicant’s extradition was “under the control of the President of the Russian Federation”. 29. On 27 January 2011 the Federal Security Service informed the General Prosecutor’s Office that they did not object to the extradition of the applicant to Tajikistan. 30. On 8 February 2011 the applicant’s appeal was examined and dismissed by the Moscow Regional Court. 31. On 29 March 2011 the Dolgoprudniy District Court extended the applicant’s detention until 3 July 2011. On 1 April 2011 the applicant appealed against the extension. The applicant alleged, in particular, that if extradited he could be subjected to treatment contrary to Article 3 of the Convention. On 19 April 2011 the Moscow Regional Court confirmed the extension of the applicant’s detention. 32. On 23 June 2011 the Deputy Prosecutor General of Russia decided to extradite the applicant to Tajikistan. 33. On 29 June 2011 the applicant was informed of that decision. On the same day the Dolgoprudniy Town Court decided to extend the applicant’s detention pending extradition until 3 November 2011. 34. On 30 June 2011 the applicant appealed against the extradition order. 35. On 2 July 2011 the applicant appealed against the extension of his detention. 36. On 13 July 2011 Amnesty International issued a statement expressing concerns about the possible extradition of the applicant to Tajikistan. 37. On 16 July 2011 the Moscow Regional Court upheld the extension of the applicant’s detention. 38. On 10 November 2010 the applicant applied for asylum in Russia. In the application form he indicated that he belonged to the Vatandor opposition political movement. During the asylum interview he specified that he was not an active member of Vatandor and did not attend their gatherings, but simply “shared their political views”. 39. On 2 December 2010 he supplemented his application for asylum and put forward the same arguments as in the extradition proceedings. 40. On 23 March 2011 his application for asylum was refused by the Migration Authority (“the MA”), on the ground that the applicant’s fears of persecution on political grounds in his home country were unfounded. He was formally notified of that decision on 5 April 2011. The MA concluded that the applicant had committed crimes on the territory of Tajikistan. The applicant belonged to organisations which had been banned by a decision of the Supreme Court of Tajikistan in 1993; therefore, his presence at the demonstration in 1995 in support of his arrested brother had been of itself a criminal act. The applicant’s allegation that one-third of the population of the town of Isfara had been prosecuted for their political views was, in the view of the MA, absurd, since there were not enough police officers in Tajikistan to prosecute so many people. The MA also concluded that the applicant’s membership of Vatandor was merely passive, and therefore that he was not at risk of ill-treatment in this connection. The MA found, in particular, that “it was certain that the applicant did not belong to any political, religious or civic organisations”. 41. On 25 April 2011 the applicant appealed, putting forward the same arguments as in the extradition proceedings. 42. On 17 June 2011 the applicant’s appeal against that decision was rejected by the Federal Migration Service. 43. On 9 September 2011 the Basmanniy District Court of Moscow dismissed the applicant’s appeal against the decision of the MA not to grant him the refugee status in Russia. 44. The District Court noted, in particular, that in the previous ten years he had been travelling freely between Russia and Tajikistan, and that every year he returned to Tajikistan to visit his relatives in Isfara. The applicant had applied for asylum only after his arrest in Russia and not immediately at border control. The applicant’s closest relatives lived in Tajikistan undisturbed and did not leave the country. The court concluded that this demonstrated that the applicant had not been a victim of political persecution as he alleged. 45. As regards the applicant’s membership of Vatandor and his brother being a former leader of the United Tajik Opposition, the court noted that the applicant’s political involvement was not official, that he only shared their political opinions and did not attend meetings, nor did he engage in agitation. The mere fact that he had political views which were different from the government’s official position did not give him the right to claim asylum. 46. The court further noted that Tajikistan was a member of many international conventions, had an ombudsman, and respected human rights. As regards the references to other sources which cast doubt in Tajikistan’s human rights record, that information had been obtained from the mass media, was opinionated, and was therefore not objective. 47. The court held that he had not produced sufficient evidence of the risk of persecution for political reasons at home, and that Tajikistan complied with its international obligations in the human rights area. 48. The applicant appealed. On 30 November 2011 the Moscow City Court upheld the judgment on appeal in a summary fashion. 49. On 16 September 2011 the Moscow Regional Court examined the applicant’s appeal against the extradition order. At the hearing the applicant was represented by a lawyer of his choice. The applicant denied committing the offences imputed to him and presented an alibi. The defence also claimed that if extradited to Tajikistan the applicant would be tortured, as many others accused of “religious extremism” had been. The defence referred in this respect to the relevant case-law of the Court and to numerous reports of international human rights NGOs and UN bodies competent in the field. The applicant also claimed that he had learned about the criminal prosecution against him only at the moment of his arrest in Russia. He also referred to numerous inconsistencies in the documents submitted in support of the extradition request by the Tajikistani authorities (see paragraphs 14-16 above). 50. The prosecution did not contest that the applicant belonged to the opposition movement and had been present at political gatherings. However, they drew the court’s attention to numerous inconsistencies in his submissions, cast doubt on the reliability of the sources of information relied on by the applicant, and stressed that the applicant was involved in a terrorist organisation. 51. Having heard the parties, the Regional Court upheld the extradition order. The Moscow Regional Court’s reasoning can be summarised as follows. The court observed that the applicant faced serious criminal accusations and that the acts imputed to him would in principle qualify as “crimes” under Russian law. It was not the task of the Russian court to establish whether the applicant was guilty of the impugned crimes. The court held that the inconsistencies in the Tajikistani documents were “technical errors” and did not affect the validity of the extradition request. 52. It was impossible for the court to establish when exactly the applicant had entered the territory of Russia for the last time, since the applicant’s own submissions in this respect were inconsistent, and there was no official information on the matter. However, the court found that it certainly had not been in November 2009, as the applicant had alleged. According to his original statement to the prosecutor, the applicant had been residing permanently in Russia since 2008. He had not applied for political asylum in Russia before his arrest. Although the applicant had lost his passport in 2010, he did not contact the embassy of Tajikistan to obtain a new one. During the interview the applicant was unable to indicate his exact address in Russia. 53. The applicant had a family in Tajikistan, which included his brother’s family and his first wife and children. They all lived in their family house. He regularly spoke to them on the telephone, and it was impossible that they would not tell him about the criminal prosecution. The court concluded that the applicant had been living in Russia permanently since 2008, that he had been aware of the criminal proceedings against him in Tajikistan, and that he had been hiding from the Tajikistani authorities in Russia. 54. The court did not find any evidence that the applicant’s case was “political”. At the first questioning he mentioned that he had come to Russia to find work, not out of fear of persecution. At the hearing the applicant stated that he had attended a political gathering in 1995, but that his role had been limited to giving a lift in a car to his relatives and taking them to the venue of the gathering. He denied having been involved in any political anti-governmental activity in Tajikistan. His activity in the Vatandor political movement was minimal: he simply shared their political opinions. The court observed that the applicant’s brother, Mr B. Azimov, was serving a prison sentence in Tajikistan; however, other members of his family, including his elder brother Mr R. Azimov, were all living in Tajikistan. The applicant’s first wife lived in Tajikistan with their five children and his second wife had been able to leave Tajikistan freely and come to Russia. His family owned ten hectares of orchards near a recreational zone. He was able for many years to maintain himself and his family with his earnings from selling dried fruit in Russia. The authorities thus did not interfere with his business interests or those of his family, despite the allegedly political underpinning of the case against him. His own testimony about the political nature of the prosecution was inconsistent. He first stated that the criminal case against him resulted from personal animosity between him and the chief of the local police following a quarrel in a café. Later in the court proceedings the applicant suggested that the criminal prosecution had been instituted so that his family’s land could be taken away. 55. The court also examined letters received from Amnesty International in support of the applicant’s cause, and noted that they did not contain anything which would point to the existence of a risk of ill-treatment to him personally. 56. The court finally analysed the institutional and legislative guarantees against ill-treatment which existed in Tajikistan, as well as its international obligations, and concluded that they were sufficient to guarantee that the applicant would not be subjected to any ill-treatment. 57. On 1 November 2011 the Moscow Regional Court ruled that the applicant’s detention would not be extended pending extradition, because the period of the applicant’s detention had reached the maximum established by law (twelve months). At the same time, the court indicated that since the applicant had been residing in Russia without papers, he could have been subjected to expulsion (administrative removal) proceedings and detained on that ground. 58. On 9 November 2011 the Supreme Court confirmed the validity of the extradition order and upheld the reasoning of the lower court. 59. On 2 November 2011 the prosecutor’s office forwarded the relevant documents in respect of the applicant to the police, who drew up a report on his illegal stay in Russia, which amounted to an administrative offence under Article 18.8 of the Code of Administrative Offences (“the CAO”). 60. On the same day, the Dolgoprudniy Town Court of the Moscow Region examined the case against the applicant and found him guilty. The court established that the applicant had unlawfully resided in Russia from February 2010 until his arrest on 3 November 2010 with a view to extradition. The court imposed an administrative fine on the applicant, ordered his expulsion (administrative removal) from Russia and placed him in detention pending expulsion because of the gravity of the offence and because the applicant had no stable income in Russia. No specific time-limit for the applicant’s detention was given by the court. The court did not address his arguments about the risk of ill-treatment in the event of his deportation to Tajikistan. 61. On 3 November 2011 the public prosecutor ordered the applicant’s release from detention pending extradition, because the maximum term prescribed by law had expired. In the release order the prosecutor noted that an extradition check was in progress. The applicant was not released but was transferred to the Serpukhov Detention Centre for Aliens in the Moscow Region, according to the detention order issued in the course of the expulsion proceedings. 62. On 6 November 2011 the applicant’s lawyers appealed against this order to the Moscow Regional Court. They submitted that the court had refused to consider the applicant’s arguments concerning the possibility of ill-treatment in Tajikistan. 63. According to the applicant, during the night of 17 November 2011 he was visited in the detention centre by two police officers from the antiextremism department of the Ministry of Interior. They offered the applicant the opportunity to leave Russia for Tajikistan voluntarily, with a plane ticket provided by them. He was also photographed. It appears that the Dolgoprudniy Town prosecutor in charge of his case was not informed of that visit. Nor were the applicant’s lawyers informed thereof. The applicant declined the offer and was returned to his cell. 64. On 22 November 2011 the Moscow Regional Court adjourned the hearing concerning the expulsion order due to the failure of one of the witnesses, a police officer who had issued the administrative offence report, to appear. 65. On 6 December 2011 the Moscow Regional Court examined the appeal. The police officer did not appear at the hearing, but the court decided to proceed with the case. The applicant was not present at the hearing either, since the police had not arranged for him to be transferred from the detention centre to the court; however, his lawyer was present. According to the applicant’s lawyer, the judge told her that the court had no obligation to arrange for the applicant to attend in person. The court confirmed the validity of the expulsion and detention orders. The court did not address the arguments concerning the risk of the applicant being illtreated in Tajikistan. The court did not specify the period of the applicant’s detention with a view to expulsion. 66. On 4 May 2012 the applicant was transferred to the Lukhovitsy Detention Centre for Aliens in the Moscow Region. 67. On 1 August 2012, at the applicant’s representative’s request, the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) expressed the following opinion on the risk of ill-treatment the applicant faces in Tajikistan: “In accordance with numerous reports of international organisations as well as generally accessible information on the Republic of Tajikistan, because of mass violations of human rights and basic principles of international law by the Tajikistani authorities, including the principle of prohibition of torture, in particular, widespread practices of torture and ill-treatment by law-enforcement bodies, especially to extract confessions in criminal proceedings, violations of fair trial provisions, such as denial of access to legal counsel and lack of an independent judiciary, taking into account the fact that in Tajikistan the applicant is to be prosecuted in connection with criminal offences, the UN Refugee Agency considers that there exists a real risk of torture for the applicant in the event of his expulsion to Tajikistan.” 68. Chapter 54 of the Code of Criminal Procedure (“the CCrP”) of 2002 governs the procedure to be followed in the event of extradition. 69. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that case the extradition order should not be enforced until a final judgment is delivered (Article 462 § 6). 70. A court is to review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4). 71. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in applicable international and domestic law (Article 463 § 6). 72. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the following should be refused extradition: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the statute of limitations or under another valid ground in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1 (5)). Finally, extradition should be refused if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)). 73. Article 109 of the CCrP regulates, inter alia, periods of detention with a view to extradition (Directive Ruling of the Plenary Session of the Russian Supreme Court no. 22 of 29 October 2009, § 34). The maximum statutory period of detention in connection with serious offences is twelve months (Article 109 § 2). 74. In its Directive Ruling no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture or inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to illtreatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by the relevant United Nations institutions and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 75. Article 18.8 of the CAO provides that a foreign national who infringes residence regulations of the Russian Federation, including by residing on the territory of the Russian Federation without a valid residence permit or by failing to comply with the established procedure for residence registration, is liable to punishment by an administrative fine of 2,000 to 5,000 Russian roubles (RUB) with or without administrative removal from the Russian Federation. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 requires such a report to be transmitted within one day to a judge or to an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation shall be made by a judge of a court of general jurisdiction. The statute of limitations for administrative offences listed in Article 18.8 is one year from the date the relevant offence was committed (Article 4.5 § 1). 76. Article 3.10 provides for two types of administrative removal, namely “controlled independent exit” and controlled forced removal. 77. Article 32.10 § 5, as in force at the material time, allowed domestic courts to order a foreign national’s detention with a view to administrative removal. 78. Article 27.3 § 1 provides that administrative detention can be authorised in exceptional cases if it is necessary for the fair and speedy determination of the administrative charge or for execution of the penalty. Federal Law no. 410-FZ of 6 December 2011, which amends certain provisions of the CAO, introduced Article 27.19, which specifies that administrative detention can be authorised in the case of controlled forced removal. 79. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or a higher court. Article 30.5 § 3 provides that an appeal against an administrative removal order must be examined within one day of submission of the appeal. 80. Article 31.9 § 1 provides that a decision imposing an administrative penalty may not be enforced after the expiry of a two-year period from the date on which this decision became final. 81. Article 3.9 provides that an administrative offender can be penalised with administrative arrest only in exceptional circumstances, with a maximum term of thirty days. 82. Section 20 § 2 (2) of Federal Law no. 109-FZ of 18 July 2006 provides that a foreign national temporarily residing in Russia must register with a local migration authority within seven days. 83. In judgment no. 6-P of 17 February 1998 the Russian Constitutional Court held, with reference to Article 22 of the Russian Constitution, that detention of a person with a view to removing him from Russia requires a court decision if that detention exceeds forty-eight hours. That decision must establish whether the detention is necessary for the purposes of enforcing the removal. The court should also assess the lawfulness and reasons for detention. Detention for an indefinite period of time is not acceptable, since it may become a form of punishment, which does not exist in Russian law and which is incompatible with the provisions of the Constitution. 84. In October 2012 a group of Russian NGOs (including the Public Verdict Foundation, the Civic Assistance Committee, the Memorial Human Rights Centre, Soldiers’ Mothers of Saint Petersburg, the Independent Psychiatric Association, and several others) prepared a ‘Shadow Report on the Observance of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by the Russian Federation for the period from 2006 to 2012’. Paragraph 133 of that Shadow Report reads as follows: “In recent years, the Russian authorities have increasingly relied on administrative expulsion in its efforts to transfer persons to states requesting their extradition. Expulsion decisions are taken by courts of general jurisdiction ... Courts ... refuse to examine arguments concerning the person’s risk [of being] subjected to torture in the country of destination, assuming that these arguments are not relevant in cases dealing with a foreigner’s violation of immigration rules in Russia. The government claims that such arguments cannot be considered by courts in ... administrative proceedings since their duration is very short and “... the alleged risk of ill-treatment ... [is] not a legally relevant fact, [so there is] no obligation to ascertain it” ... They fail to take into account the fact that the consequences of administrative expulsion and extradition are identical for the applicant, since in both cases s/he falls into the hands of the state requesting his/her return. It is important to note that in some cases such attempts [have been] made by explicit instructions from the Prosecutor General’s Office, indicating that the latter ignores the risk of the deportee’s [being subjected to] prohibited treatment in the country of destination ...” 85. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows: “1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” 86. The Refugees Act (Law no. 4258-I of 19 February 1993) defines a refugee as a person who is not a Russian national and who, owing to a wellfounded fear of persecution for reasons of race, religion, nationality, ethnic origin, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such a fear, is unwilling to return to it (Article 1 § 1 (1)). The migration authority may refuse to examine the application for refugee status on the merits if the person concerned has left the country of his nationality in circumstances falling outside the scope of Article 1 § 1 (1), and does not want to return to the country of his nationality because of a fear of being held responsible for an offence (правонарушение) committed there (Article 5 § 1 (6)). 87. Persons who have applied for or been granted refugee status cannot be returned against their will to the State of which they are a national where their life or freedom would be imperilled on account of their race, religion, nationality, membership of a particular social group or political opinion (Article 1 § 1 (1) in conjunction with Article 10 § 1). 88. Having received a refusal to examine an application for refugee status on the merits, and having decided not to exercise the right of appeal under Article 10, the person concerned must leave the territory of Russia within one month of receiving notification of the refusal if he has no other legal grounds for staying in Russia (Article 5 § 5). Under Article 10 § 5, having received a refusal to examine the application for refugee status on the merits or a refusal of refugee status, and having exercised the right of appeal against such refusals, the person concerned must leave the territory of Russia within three days of receiving notification of the decision on the appeal if he has no other legal grounds for staying in Russia. If, after the appeal has been rejected, the person concerned still refuses to leave the country, he is to be expelled (Article 13 § 2). 89. If the person satisfies the criteria set out in Article 1 § 1 (1), or if he does not satisfy the criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (Article 12 § 2). Persons who have been granted temporary asylum cannot be returned against their will to the country of which they are a national or to the country of their former habitual residence (Article 12 § 4). 90. The conclusions and recommendations of the UN Committee against Torture in respect of Tajikistan issued in 2006 were cited in Gaforov v. Russia, no. 25404/09, § 93, 21 October 2010. 91. In May 2012 the UN Special Rapporteur on torture, Mr Juan E. Méndez, visited Tajikistan. In his preliminary findings of 18 May 2012, he noted that “pressure on detainees, mostly as a means to extract confessions is practiced in Tajikistan in various forms, including threats, beatings and sometimes by applying electric shock”. He underscored that “confessions extracted by violence remain the main investigatory tool of law enforcement and prosecutorial bodies”. He also expressed his concerns at the lack of safeguards against illegal extradition or rendition from and to other countries, as “there seems to be no meaningful opportunity for judicial review of these measures that are generally conducted by the law enforcement bodies under the direction of the Prosecutor General. The Minsk Convention on Legal Assistance in civil and criminal matters of 1993, other agreements between CIS countries ... offer general language about protection against abuse, but they operate more meaningfully as international cooperation in law enforcement. The result is that international law prohibitions on refoulement to places where a person may be subjected to torture or cruel, inhuman or degrading treatment are not guaranteed in fact” (End-of-mission Statement by the UN Special Rapporteur on Torture, Juan E. Méndez. Preliminary findings on his country visit to the Republic of Tajikistan 10-18 May 2012). 92. The report by Amnesty International entitled “Shattered Lives: Torture and other ill-treatment in Tajikistan”, released on 12 July 2012, in so far as relevant, reads as follows: “... Amnesty International’s research shows that practices of torture and other illtreatment remain widespread in all types of detention facilities in Tajikistan. Detainees at the early stages of detention were found to be at particular risk, subjected to torture or other ill-treatment by law enforcement officers in order to “solve” crimes by obtaining confessions of guilt and also to obtain money from torture victims or their relatives. The general climate of impunity keeps police abuse virtually unchecked ... 2. The scale of torture and other ill-treatment in Tajikistan In Tajikistan torture and ill-treatment occur in a climate of secrecy. [T]he perpetrators are rarely brought to justice... [T]orture and other ill-treatment occur particularly in pre-trial detention... Domestic law has significant shortcomings when it comes to safeguards against torture. In addition, those crucial safeguards that do exist in law, such as access to a lawyer immediately after apprehension, are rarely applied in practice ... 2.1 Torture and other ill-treatment by police [T]he routine use of torture results from the lack of technical capacity to investigate crimes... A local independent human rights observer told Amnesty International that: “people may get away without beatings in less serious cases, but in cases involving grave crimes – if they don’t confess, they get beaten”, adding that police “won’t hesitate to resort to violence ... 2.2 Torture and other ill-treatment used in the context of national security and counter-terrorism The fight against terrorism and threats to national security are often invoked by the Tajikistani authorities as key to securing national and regional stability. However, ... frequently human rights are violated in the pursuit of groups perceived as a threat to national security ... [The] research indicates that particular targets are Islamic movements and Islamist groups or parties, and that people accused of being Islamist extremists are at particular risk of torture and other ill-treatment in Tajikistan ... In September 2010 an explosion occurred at the office of the [police] in Khujand, resulting in several deaths and injuries to over two dozen people. Following this the Tajikistani authorities redoubled their efforts to find members of Islamic movements and Islamist groups or parties who they alleged were responsible. Law enforcement officers came under increased pressure to solve cases with national security implications ... 8. Torture and other ill-treatment upon return to Tajikistan ... Amnesty International is concerned at a series of recent cases where the Tajikistani authorities have made extradition requests based on unreliable information for people alleged to be members of banned Islamic groups, who have subsequently alleged being tortured on their return. Many of these extradition requests have been issued for people in the Russian Federation.” 93. In January 2012 Human Rights Watch released its World Report 2012, in which the relevant chapter on Tajikistan states: “Torture remains an enduring problem within Tajikistan’s penitentiary system and is used to extract confessions from defendants, who are often denied access to family and legal counsel during initial detention. Despite discussions with the International Committee of the Red Cross (ICRC) in August, authorities have not granted ICRC access to places of detention. With rare exceptions, human rights groups are also denied access. While torture is practiced with near impunity, authorities took a few small steps to hold perpetrators accountable... Under the pretext of combating extremist threats, Tajikistan continues to ban several peaceful minority Muslim groups... Local media continued to report on prosecutions of alleged members of Hizb ut-Tahrir and the Jamaat Tabligh movement.” 94. On 27 June 2011 a group of non-governmental organisations including international NGOs (Amnesty International, the International Federation for Human Rights (FIDH), Penal Reform International (PRI) and the World Organisation Against Torture (OMCT)) as well as Tajikistani NGOs (the Bureau of Human Rights and Rule of Law, the Centre for Children’s Rights, the Collegium of Advocates of the Soghd Region, the Sipar Collegium of Advocates of the Republic, and several others) released a joint statement: “Tajikistan: A coalition of non-governmental organisations is calling on the government to end torture and fulfil its international obligations” which, in so far as relevant, reads as follows: “In Tajikistan police have in many cases been accused of torturing or beating detainees to extract money, confessions or other information incriminating the victim or others. This abuse has mostly taken place in the early stages of detention; in many cases victims are initially detained without contact with the outside world ... Torture practices reported in Tajikistan include the use of electric shocks; attaching plastic bottles filled with water or sand to the detainee’s genitals; rape; burning with cigarettes. Beating with batons, truncheons and sticks, kicking and punching are also believed to be common. ... [S]afeguards against torture enshrined in domestic law are not always adhered to. For example, while the new Criminal Procedure Code stipulates that detainees are entitled to a lawyer from the moment of their arrest, in practice lawyers are at the mercy of investigators, who can deny them access for many days. During this period of incommunicado detention, the risk of torture or other ill-treatment is particularly high. The new Criminal Procedure Code also introduced remand hearings within 72 hours of a suspect’s arrest. However, they often take place with a delay, and judges in many cases ignore torture allegations and the injuries presented to them in the courtroom. Usually they rely on the version of events given by [those] accused of the torture. There are no routine medical examinations when detainees are admitted to police stations and temporary detention facilities. Upon transfer to pre-trial detention facilities under the jurisdiction of the Ministry of Justice they undergo a medical examination. However, when medical personnel suspect that a detainee [has undergone] torture or other ill-treatment they ... usually return them to the temporary detention facility until the signs of injury have faded. Victims rarely lodge complaints ... for fear of repercussions, and impunity for abusive officers is the norm. Often relatives and lawyers are reluctant to file complaints, so as not to worsen the situation for the detainee. Prosecutor’s offices are tasked with investigating allegations of torture. Sometimes close personal and structural links between prosecutor’s offices and police undermine the impartiality of prosecutors. The authorities have not published comprehensive statistics on prosecutions of law-enforcement officers relating specifically to torture or other ill-treatment, rather than broader charges such as “abuse of power“ or “exceeding official authority”. Judges [regularly] base verdicts on evidence allegedly extracted under duress... Tajikistan has not given the International Committee of the Red Cross access to detention facilities to carry out monitoring since 2004. It has not ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for a system of regular visits to places of detention carried out by independent international and national bodies.” 95. The joint statement of a group of NGOs of 27 June 2011 (see paragraph 94 above) also reported particular cases of unpunished torture of several individuals, including Mr Abdumuqit Vohidov, Mr Ruhniddin Sharopov and Mr Ilhom Ismonov, all of them accused of IMU membership. 96. The Annual Report 2012 by Amnesty International in respect of Tajikistan, in so far as relevant, reads as follows: “The trial against Ilhom Ismonov and 52 co-defendants began on 11 July 2011 at Soghd Regional Court in northern Tajikistan. All were accused of membership of the Islamic Movement of Uzbekistan and of participating in organized crime. On 19 July 2011, he and several others told the judge that they had been tortured in pretrial detention. On 16 September 2011, Ilhom Ismonov told the judge that he had been pressurized by officials to retract his earlier allegations of torture and other illtreatment. He had not dared speak out earlier, fearing retaliation from law enforcement agencies. The judge ignored his statement. His confession, allegedly obtained under torture, was used as evidence against him ...” 97. A research paper by Christian Bleuer entitled “Instability in Tajikistan? The Islamic Movement of Uzbekistan and the Afghanistan Factor”, published in Central Asia Security Policy Brief No. 7 (15 February 2012), in so far as relevant, reads as follows: “In terms of government actions related to the IMU, during 2011 the Tajik government arrested 86 IMU suspects, and sentenced 53 to jail terms. In December 2011 the Tajik courts were particularly busy, sentencing 43 accused IMU members to prison for a September 2010 suicide car-bombing in northern Tajikistan – claims of torture being used to extract confessions notwithstanding. Indeed, the systematic practice of torture being used to ensure confessions by police and security officers casts doubt on the actual affiliations – if any – of suspects in custody. In regards to the suicide bombing – a September 2010 attack on a police station in Khujand that left two dead – a new group called Jamaat Ansarullah claimed responsibility. However, the government charged 53 accomplices to the bombing with being members of the IMU – all of whom confessed during the investigation amidst allegations of torture being used to secure confessions.” 98. On 12 October 2012 the Coalition against Torture and Impunity (a group of Tajikistani NGOs) prepared a report on Tajikistan’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It contains a detailed description of the case of Ilhom Ismonov and fifty-two co-defendants: “Criminal case number # 23578 on the accusation of terrorism and extremism ... On 3 September 2011 there was a massive explosion ... in the building ... of the Regional Office for Combating Organised Crime (ROCOP) ... The blast killed the ... [purported] suicide bomber ... three employees of ROCOP, 26 officers of ROCOP and five residents of Khujand Region [suffered] injuries of various degrees. On 3 September 2010 the Soghd Regional Prosecutor’s Office ... initiated a criminal case under Part 3 of Article 179 (Terrorism) of the Criminal Code of the Republic of Tajikistan ... [On the basis of] the results of ... blood tests the suicide bomber was identified as Mr. Akmal Karimov ... Later, the brothers and close relatives of the alleged suicide bomber ... were arrested. [The trial] in the criminal case was opened on 9 July 2011. There were 53 people in the dock, mostly residents of [the] Isfara, Spitamen, and Istravshan regions ... ... 10 defendants are charged [with the terrorist attack] in the building [of the] Soghd Regional Office for Combating Organised Crime, the rest were charged with membership [of] the Islamic Movement of Uzbekistan and other extremist organisations (Dzhamiyati Tablig etc) ... All of them were [charged with] ... terrorism, [running a criminal organisation], forcible seizure of power, forgery, unlawful possession of firearms, murder, abuse of authority, illegal crossing of state borders, etc. There were also those who are accused of failing to report the crime or its concealment. According to the materials of the criminal case, 38 of those on trial declined the services of an advocate, however in the course of the [appeal] hearing ... they state[d] that all [their] refusals of legal representation had been written under duress and dictated by officials from law-enforcement agencies. According to [the] lawyers [as well as] relatives of the defendants and [the defendants’] statements ... during the trial almost all the defendants [were subjected to] various kinds of physical [torture] ([such as] beating, pulling out nails and beards, electric current, [and] rape ...) and psychological [torture] ([such as] threat[s] to rape wi[ves], sister[s], ... mother[s], ... the torture of others in [their] presence, ... and other methods) ... [Various] methods were used not to allow lawyers to see their defendants ... The lawyers met ... their clients in the presence of the investigating authorities. Statements [relating to] torture have been made in the course of the trial, where the defendants described ... the torture [in detail] and [identified the officers] who ... tortured them[: these were stated to be officers] of the Interior Ministry, of the State Committee of National Security, and of the Prosecutor’s Office. However, neither the court nor the prosecutor [took those statements into consideration] ... The first few hearings were [public], but then at the request of the prosecution the judge [decided to conduct proceedings in camera]. It is assumed (according to lawyers and relatives) that the reason [for closing the proceedings was the allegations of torture] ... On 27 July 2011 relatives of the defendants [made a written representation] to the Chairman of Soghd District Court, Mr. Mansurov ..., but [received no response]. On 23 December 2011 in [Khujand prison no. 2 the court rendered its judgment sentencing some of the defendants to life imprisonment] ... On 6 August 2012 [an appeal hearing took place at] ... Investigative Detention Centre no. 9/1 [in Dushanbe] ... [In their statements of appeal the defendants complained of the] use of torture ... during interrogation and preliminary investigation ... Advocates S. Romanov and A. Sharipov, who [were] representing [Mr] Dodoev, made several attempts to meet ... their client, however ... the head of [the Detention Centre Mr] Rakhmonov, refused to [allow a meeting without authorisation from] the Main Administration of the Implementation of Criminal Punishment (Prison Administration) ... The actions of the head of [the Detention Centre] ... were appealed [against] to the Prison Administration, however no answer was received. The advocates and defendants drew the attention of the [appeal court] to the presence of ... traces [of torture] on the defendants’ bodies, presented [information on] medical treatment at the medical unit of the Detention Centre ... in Khujand. The advocates requested [that] each defendant [be subjected to a medical examination]. The advocates [submitted requests for the] testimony of the defendants [which had been obtained] ... through the use of torture [to be excluded] ... [These requests were left] ... without consideration ... [On] 17 August 2012 the [appeal court ruled that there should be an] investigation [of] the use of torture, [charged] the General Prosecutor’s Office with carrying out this investigation, and announced [an adjournment in the proceedings]. [On examination of] the testimony of the defendants the following should be highlighted: All defendants during the [trial] complained about ... [the] use of torture ..., however in the [judgment all complaints were dismissed with the following] formulation[:] “complaints of defendants made during judicial proceedings about the use of torture were unconfirmed”. In relation to 19 persons, administrative arrest was applied for a period of 5 to 15 days, during which they were held in ... buildings [belonging to] the security services and ... subjected to torture. As a result, they confessed to ... crimes ... The majority of defendants declined to use the services of advocates in the first days following [the] arrest[s], though ... their refusals were [written] without the presence of an advocate, in [contravention of] part 1, Article 52 of the Criminal Procedure Code of the Republic of Tajikistan. 38 persons signed documents refusing the services of advocates, and approximately 10 people did not see their court-appointed advocates during [the] entire period of their detention ... [the proceedings concerning their detention pending trial], and the preliminary investigation. [The remaining defendants met] their lawyers periodically, however, many investigative actions were conducted without the participation of advocates. 10 court-appointed advocates asked their defendants to sign procedural documents without reading them ... On 27 September 2012, the [appeal court] ... resumed consideration of the criminal case. The state prosecutor had announced that ... [there was] no evidence of crime in the actions of members of [the] investigation group who [had carried out the criminal investigation] ... [According to the defence] ... the medical examination [during the trial had been] carried out by [an] expert who [had not] been trained on the standards of the Istanbul Protocol, [did] not know what the “torture” means, and who ... admitted that in the course of the examination he [had seen signs of a] fracture, but [that it was outside] his competence to identify timing and ... [circumstances in which] the injury [had been] received. The defendants claimed that medical records [in the prison] contain[ed] information [that some detainees had] arrived [at the prison] with injuries. The lawyers demanded ... the medical records of all [the] prisoners ... Lawyers were provided with [the prisoners’] medical records; however the [pages] were not numbered; [furthermore, some pages were missing – they had been] torn out of medical records. The defence lawyer Sharipov ... [contested the results of the official investigation of the allegations of ill-treatment]. Lawyers requested [access to the materials of the prosecutor’s case file concerning that investigation]. The prosecutor agreed, and [the appeals panel] ... granted the lawyers [access] to the documents. [It appears from the documents that] the defendants ... had no complaints of torture; [this however] contradicted their testimony ... during the trial. According to the five defendants sentenced to ... life imprisonment, during the investigation they [informed the] medical [experts] and prosecutors about ... methods of torture ... however [their detailed testimony was not reflected in the conclusions of the expert and the prosecution]. The records also include explanations [by employees who were] members of the investigative task force, who claim that they [had respected the law] and that] no one [had been] tortured. On September 28, 2012 during the trial [the] lawyers requested [a fresh investigation] and appointment of a [mixed investigative] commission [which would include] ... the lawyers. The court left [that] request unanswered. [The appeal proceedings before the Supreme Court of the Republic of Tajikistan are currently pending.]” 99. Concluding observations on the fifth periodic report of the Russian Federation, issued by the UN Committee against Torture on 11 December 2012 (CAT/C/RUS/CO/5), in so far as relevant, reads as follows: “Non-refoulement and diplomatic assurances 17. The Committee is concerned about reports of extraditions and expulsions of foreign nationals by the State party to members of the Commonwealth of Independent States in Central Asia, when those extraditions or expulsions expose the individuals concerned to a substantial risk that they will be subjected to torture in their countries of origin. The Committee is also concerned by the reliance of the State party on diplomatic assurances in such cases ...” 100. Other Relevant United Nations’ and Council of Europe’s documents concerning the use of diplomatic assurances were summarised in Ismoilov and Others v. Russia, no. 2947/06, § 25, §§ 96-100, 24 April 2008 and Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, §§ 141 et seq., and §§ 188-89, ECHR 2012). 101. By a decision of 14 February 2003 the Supreme Court of Russia classified as terrorist a number of organisations, including the Islamic Party of Turkestan (also known as the Islamic Movement of Uzbekistan). The Supreme Court prohibited the activity of these organisations on the territory of Russia. It held that the Party aimed to overthrow non-Islamist governments and to establish “Islamist governance on an international scale by reviving a Worldwide Islamist Caliphate”, in the first place in the regions with predominantly Muslim populations, including Russia and other members of the Commonwealth of Independent States. | 1 |
train | 001-69542 | ENG | EST | ADMISSIBILITY | 2,005 | DAVYDOV v. ESTONIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Andrey Davydov, is a Russian national who was born in 1969 and lives in Narva. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1978 the applicant settled, together with his parents, in Estonia. In 1991 he married a Russian national (born in Ivangorod, Russia) who holds a permanent residence permit in Estonia. Their son, born in the same year, is a Russian national and holds a permanent residence permit. The family lived in the city of Narva, separated by the border river Narva from the Russian city of Ivangorod. In the beginning of the 1990s, having failed the Estonian language exam required for acquiring Estonian nationality, the applicant opted for Russian citizenship. From 1994 to 1997 he was employed in Ivangorod where he also had his registered residence. From 1994 (according to the applicant) or 1996 (according to the Estonian authorities) to 1997 he visited his family in Estonia. The applicant's parents live in Ivangorod, Russia; they are Russian nationals. On 12 December 1997 the applicant was taken into custody on a criminal charge. On 24 March 1998, he was convicted of the unlawful possession of a firearm and sentenced to one year's imprisonment by the Narva City Court (Narva Linnakohus). On 16 June 1998 the Viru Court of Appeal (Viru Ringkonnakohus) reduced the sentence to six months' imprisonment, upholding the rest of the judgment. On 8 February 1999 the applicant was convicted of aggravated hooliganism involving the use of a weapon, causing serious bodily injury in excess of self-defence and intentionally causing light bodily injury by the Narva City Court. He was sentenced to two years' imprisonment. On 24 May 1999 the Narva City Court convicted the applicant of extortion and of the repeated offence of unlawful possession of a firearm. He was sentenced to two years and seven months' imprisonment. The aggregate sentence of imprisonment, which included the unserved part of the previous sentence, was set at three years, one month and 14 days. On 4 January 2000 the Viru Court of Appeal quashed the City Court's judgment of 24 May 1999 in part. On 28 March 2000 the Supreme Court (Riigikohus) partly quashed the appeal court's judgment and referred the case back to the Court of Appeal. On 16 June 2000 the Court of Appeal quashed the City Court's judgment of 24 May 1999 in part and determined that the period of two years, six months and five days, during which the applicant had been detained on remand should be considered as having been served. The sentence still to be served was seven months and nine days. In sum, the applicant was held in preliminary detention and detained after conviction in three separate criminal cases from 12 December 1997 to 26 January 2001. His wife visited him in prison. On 27 November 2001 the Minister of the Interior refused a request by the applicant for a temporary residence permit in Estonia because of his criminal convictions. The Minister relied on sections 12(4)(5) and 12(4)(8) of the Foreigners' Act (Välismaalaste seadus). The Minister also referred to the fact that the applicant had maintained ties with his country of nationality and that all members of his family were Russian nationals, having a possibility to move to that country. In February 2002 the applicant's wife gave birth to their second child. The family lives in Narva together with the parents of the applicant's wife in the parents' apartment. On 14 June 2002 the Tallinn Administrative Court (Tallinna Halduskohus) annulled the order of the Minister of the Interior. On 29 November 2002 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the Minister's appeal. It found that the refusal to grant a residence permit had been lawful. On 5 February 2003 the Supreme Court refused the applicant leave to appeal. Section 12(4) of the Foreigners' Act lists the instances in which a residence permit cannot be issued or extended. Section 12(4)(5) provides that a permit cannot be issued or extended, if the foreigner applying for it has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding one year and his or her criminal record has neither expired nor been expunged, or the information concerning the punishment has not been expunged from the punishment register. According to section 12(4)(8), a residence permit is denied to persons who have been repeatedly punished for intentional criminal offences. Section 12(5) of the Foreigners' Act, however, provides that, as an exception, a temporary residence permit may be issued or extended for the foreigner concerned, if this is not excluded on any other ground listed in the same provision. | 0 |
train | 001-90099 | ENG | RUS | CHAMBER | 2,008 | CASE OF MIRILASHVILI v. RUSSIA | 3 | Violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1960 and is currently serving a prison sentence in correctional colony YuK-25/8, Orenburg Region. 7. On the morning of 7 August 2000 the applicant’s father, an important businessman, was kidnapped from his car in St Petersburg. The abduction was organised by Mr Kervalishvili and Mr Berkadze, known within the Georgian criminal milieu, with a view to receiving a ransom for his life. 8. Mr Kogan, the personal driver of the applicant’s father, managed to escape from the kidnappers. He contacted the police and the applicant’s relatives and told them what had happened. The police immediately started an investigation. 9. On the afternoon of 7 August 2000, having received the information about his father’s abduction, the applicant flew from Israel to Russia. As regards the following events, the parties’ accounts differ. 10. According to the applicant, once he arrived in St Petersburg he went to his office, where he met his brother and a group of his employees. In the presence of an unidentified police officer, the applicant’s brother assured the applicant that the best policemen had been deployed to find and release his father. 11. On the same evening the applicant was contacted by Mr Berkadze (an accomplice to the kidnappers), who offered his services to locate the applicant’s father. On the following morning Mr Berkadze called Ms Margvelashvili from the applicant’s office and asked her to assist in finding the applicant’s father. In exchange, Mr Berkadze offered to facilitate the release of her friends, Mr Dvali, Mr Kakushadze and Mr Grigolashvili, who had been arrested by the police earlier that evening. The applicant spoke to Ms Margvelashvili by telephone as well. He asked for help in finding his father. 12. On the evening of 8 August the applicant’s father was released by his abductors. 13. According to the prosecution authorities’ account, on arrival in St Petersburg the applicant, acting through his bodyguards (namely Mr Kazimirchuk and several others), ordered several unidentified individuals to go to Ms Margvelashvili’s flat on the basis that she had allegedly been involved in the abduction of the applicant’s father, and to kidnap members of her family, in order to exchange them for his father. The information that Ms Margvelashvili might have been implicated in the abduction of the applicant’s father had been received earlier that day from the police officers in charge of the official investigation into the event. 14. Early in the morning of 8 August 2000 the applicant’s men, posing as uniformed police officers, broke into Ms Margvelashvili’s flat, kidnapped Mr Dvali and Mr Kakushadze and took them to the applicant’s office. Ms Margvelashvili and her minor son remained in the flat under the surveillance of two “policemen”. Since Mr Dvali and Mr Kakushadze were unable to indicate the whereabouts of the applicant’s father, the applicant ordered the kidnapping of another person, Mr Grigolashvili, who allegedly knew where the applicant’s father was detained. 15. In the applicant’s office, Mr Dvali, Mr Kakushadze and Mr Grigolashvili were questioned and beaten by six of the applicant’s employees, including Mr Kazimirchuk, the applicant’s chief bodyguard. It appears that the applicant and his brother took part in their questioning and that the applicant hit Mr Grigolashvili in the face at least once. The applicant invited his father’s driver, Mr Kogan, to his office and showed him Mr Dvali, Mr Kakushadze, and Mr Grigolashvili. However, the driver stated that none of those people had taken part in the abduction of the applicant’s father. 16. In the afternoon of 8 August 2000 the applicant called Ms Margvelashvili and threatened her and her son with death if she did not tell him who had been behind the abduction of his father. Fearing for her life and the lives of those detained by the applicant, Ms Margvelashvili, via her friend Ms Avaliani, contacted Mr Kervalishvili, the abductor of the applicant’s father, and informed him of the developments. The latter called the applicant and they agreed to “exchange hostages”. 17. In the evening of 8 August 2000 Mr Kervalishvili released the applicant’s father, and the applicant ordered the release of Mr Grigolashvili, Ms Margvelashvili and her son. 18. As to Mr Dvali and Mr Kakushadze, they had been so badly beaten by the applicant’s men that he ordered that they be killed. Mr Dvali and Mr Kakushadze were suffocated and their bodies were dismembered and buried in an empty water cistern situated on the premises of a service station (garage) belonging to a certain Mr Sidler. 19. In September 2000 Mr Kervalishvili, the leader of the criminal group which had abducted the applicant’s father, left Russia. He moved to Georgia, where he was arrested on suspicion of having killed a policeman and was later charged with other crimes, not related to the events of 7 and 8 August 2000. 20. On an unspecified date in 2000 the Russian police opened a criminal investigation into the abduction of the applicant’s father. However, the investigation was later closed on the ground that Mr Kervalishvili and his group had voluntarily released the applicant’s father. In September 2001 that decision was quashed by the Vyborgskiy District Court of St Petersburg and the proceedings against Mr Kervalishvili were reopened. There is no information available about the results of that investigation. 21. On 11 July 2000 (before the events described above), in connection with an unrelated inquiry carried out by the St Petersburg police, the President of the St Petersburg City Court ordered that the telephone lines at the flats of Mr Grigolashvili and Ms Margvelashvili be tapped. As a result, the police recorded all telephone calls to and from these flats. One of the voices recorded by the police belonged to an unknown man, calling on 8 August 2000 from the applicant’s office, who threatened Ms Margvelashvili with death in connection with the disappearance of the applicant’s father. 22. On 21 September 2000 Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, informed the police of the latter’s disappearance. The prosecutor’s office opened an official investigation into the disappearance of Mr Kakushadze. 23. On 22 September 2000 Mr Grigolashvili was questioned by the investigator. During the questioning he showed the police the place where he had been taken in the morning of 8 August 2000. It happened to be one of the office buildings belonging to the firms owned by the applicant. Mr Grigolashvili told the police that in that building he had been questioned by several persons in connection with the disappearance of the applicant’s father. Mr Grigolashvili had described one of those persons as a Georgian of 30 – 32 years of age who was “a son of Mr Mirilashvili-senior” (for more details see the summary of Mr Grigolashvili’s deposition in paragraph 49 below). 24. On 29 November 2000 the prosecutor’s office received thirteen audiotapes from the police containing recordings of telephone conversations made as part of a surveillance operation at the flats of Ms Margvelashvili and Mr Grigolashvili. These audiotapes contained no recording of the period between 5 p.m. on 7 August and 1.40 p.m. on 8 August 2000. In March 2001 the investigator in charge of the case requested that the police produce the missing recordings, but the police informed him that this part of the recording “had been lost for technical reasons”. 25. Over the following months the investigator questioned a number of other persons, including Ms Margvelashvili and Ms Avaliani. Their written testimonies were added to the case file relating to the disappearance of Mr Kakushadze. 26. On an unspecified date Mr Grigolashvili left Russia and settled in Kutaisi, Georgia. Ms Margvelashvili also moved to Georgia. In November 2000 Mr Grigolashvili was questioned by the Georgian prosecution authorities in connection with the investigation into the disappearance of Mr Kakushadze, at the request of the Russian prosecution authorities. On 5 April 2001 the Georgian prosecution authorities also questioned Ms Margvelashvili within the same criminal proceedings. Both witnesses confirmed the depositions they had made earlier in Russia. 27. In December 2000 Mr Tsartsidze transmitted to the investigative authorities two audiotapes, alleging that they contained a recording of a conversation between him and Mr Grigolashvili, made without the latter’s knowledge, on 19 September 2000. The conversation concerned the events of 7 and 8 August 2000. During the conversation Mr Grigolashvili confirmed, at least in substance, that those who had abducted Mr Dvali, Mr Kakushadze and himself had been acting on the applicant’s orders. 28. On 23 January 2001 the applicant was arrested and placed in custody. He denied his involvement in the abduction and murder of the persons concerned. The applicant requested a confrontation with the witnesses against him, in particular Ms Margvelashvili, Mr Kervalishvili and Mr Grigolashvili, but the investigative authorities rejected that request. 29. On 31 January 2001 the applicant was formally charged with ordering the abduction of Mr Dvali and Mr Kakushadze. 30. On 14 July 2001 the bodies of Mr Dvali and Mr Kakushadze were discovered on the premises of the service station. On 16 July 2001 the investigation ordered the forensic examination of their bodies. 31. On 21 July 2001, in order to identify the voice of a man who had telephoned Ms Margvelashvili’s flat on 8 August 2000, the investigator commissioned a phonological analysis of the audiotapes made by the police as part of the surveillance operation. A team of three experts was employed for this purpose. The experts were provided with test audiotapes containing samples of the applicant’s voice. 32. On 9 August 2001 Mr Kervalishvili was questioned by the Georgian prosecution authorities. On 24 January 2002 he was questioned again. He testified that the applicant was behind the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili. 33. On 20 September 2001 the expert team submitted a report on the audio recordings. Two Russian-speaking experts, Mr Koval and Mr Zubov, confirmed that the voice on the audiotapes belonged to the applicant. Ms Kikalishvili, a Georgian-speaking expert, came to the opposite conclusion (the conversation between the man and Ms Margvelashvili was conducted in Georgian, whereas on the “sample” audiotapes the applicant was speaking in Russian). 34. On 5 and 8 October 2001 the applicant was charged with ordering the murder of Mr Dvali and Mr Kakushadze, abducting a third person, Mr Grigolashvili, and threatening Ms Margvelashvili and her child with death. Several other persons were also charged as part of the same criminal investigation, including Mr Kazimirchuk, the applicant’s bodyguard, and Mr Sidler, who, according to the prosecution authorities, had helped to hide the bodies of Mr Dvali and Mr Kakushadze. 35. On 26 February 2002 the applicant, referring to Article 6 § 3 (d) of the Convention, requested a face-to-face confrontation with the witnesses for the prosecution. In a letter of 15 March 2002 the investigator in charge of his case replied that the applicant would have an opportunity to confront witnesses during the trial. 36. In April 2002 Mr Grigolashvili wrote a letter to the prosecution authorities in Russia and Georgia. In this letter he withdrew his earlier statements concerning the applicant’s involvement in his abduction (see paragraphs 23 and 26 above). On an unspecified date a Deputy City Prosecutor of St Petersburg requested that the Georgian authorities re-examine Mr Grigolashvili, in order to elucidate discrepancies in his earlier testimony to the Russian and Georgian investigative authorities. 37. On 2 April 2002 the prosecution reformulated the charges against the applicant and informed him about that decision. 38. According to the Government, on 3 June 2002 the preliminary investigation was completed. On 5 June 2002 the applicant and his lawyers obtained access to the case file. 39. On an unspecified date the applicant complained to the Oktyabrskiy District Court of Saint-Petersburg about the refusal of the investigative authorities to carry out face-to-face confrontation with Mr Grigolashvili and Mrs Margvelashvili. On 19 June 2002 the court dismissed that complaint. It held that under the Code of Criminal Procedure the investigator was free to decide whether a face-to-face confrontation of a witness with the accused was necessary. It also held that Mr Grigolashvili and Mrs Margvelashvili, as victims of the alleged crimes, were not bound to testify. According to the court, Ms Margvelashvili refused to participate in the face-to-face confrontation with the applicant, whereas Mr Grigolashvili had left Russia out of fear of reprisals from unidentified persons. In such circumstances the decision of the investigator not to hold face-to-face confrontations with the applicant was justified. The defence appealed against that decision. There is no information about the outcome of the appeal. 40. On 25 June 2002 Mr Grigolashvili was questioned by the Georgian authorities (see paragraph 36 above). Mr Grigolashvili testified that he had falsely accused the applicant under threats from Mr Tsartsidze and a relative of the deceased Mr Kakushadze. Mr Grigolashvili was shown a photo of the applicant; after having examined that photo he explained that it was not the men who had questioned and slapped him on the night of the events. His written submissions were transmitted by the Georgian authorities to the Russian prosecution authorities. According to the applicant, those documents were not added to the case file. 41. On 1 July 2002 the defence informed the prosecution that they had finished studying the material in the case file. On 19 July 2002 the City Prosecutor approved the bill of indictment; a copy of that bill was handed to the applicant. 42. According to the indictment, the prosecution charged the applicant with having organised, through his bodyguards, the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, the illegal detention of Ms Margvelashvili and her minor son, and the murder of Mr Dvali and Mr Kakushadze. 43. Mr Kazimirchuk and several other people who had previously worked for the applicant were also brought to trial as his accomplices. According to the prosecution, on 7 August 2000 the applicant had ordered Mr Kazimirchuk and five other co-accused (Mr Polunin, Mr Demenko, Mr Kuzmenko, Mr Petrov and Mr Mogutov) to find his father’s abductors and bring them to him. In turn, Mr Kazimirchuk and his colleagues had delegated that task to a group of men who remained unidentified by the investigation. Those men, acting as police officers, had kidnapped Mr Dvali, Mr Kakushadze and Mr Grigolashvili and brought them to the applicant’s office. Acting on the applicant’s orders, those unidentified men had also murdered Mr Dvali and Mr Kakushadze. 44. In addition to the charges relating directly to the events of 7 and 8 August 2000, a number of auxiliary charges were also brought by the prosecution against the applicant’s co-accused. Thus, Mr Petrov, one of the applicant’s employees, was charged with illegal possession of ammunition for a firearm. Mr Sidler, who owned the service station where the bodies of Mr Dvali and Mr Kakushadze had been discovered, was charged with concealing a crime. 45. In support of the charges against the applicant, the prosecution authorities referred to the written statements obtained from Ms Margvelashvili, Mr Grigolashvili, Mr Tsartsidze, Ms Avaliani and Mr Kervalishvili in 2000 and 2001 during the official investigation. Their depositions are summarised below. 46. Ms Margvelashvili testified that on the evening of 7 August 2000 a group of men who introduced themselves as police officers had broken into her house and abducted Mr Dvali and Mr Kakushadze. She was left in her house under the surveillance of two intruders. Some time later, on the following morning, the applicant had telephoned her and threatened her and her son with death if she did not say where his father was. The applicant allowed her to speak on the telephone to Mr Dvali and Mr Grigolashvili, who were being held in the applicant’s office. Mr Dvali and Mr Grigolashvili told her that the applicant had threatened them with death if his father was not found safe and unharmed. 47. On 8 August 2000 Ms Margvelashvili contacted Ms Avaliani, her friend, and informed her of the events of 7 August 2000. She asked her to find Mr Kervalishvili, who had organised the abduction of the applicant’s father, and to describe the situation to him. 48. On the evening of 8 August 2000 Mr Grigolashvili was released by the applicant. The applicant then called Ms Margvelashvili and offered an apology for the offensive language he had used the previous night. He also informed her that Mr Dvali and Mr Kakushadze had been released. However, they never returned home. 49. According to Mr Grigolashvili’s statement, on the morning of 8 August 2000 he was abducted by a group of men who claimed to be police officers. He was taken to a building which he later identified as the applicant’s office. There, he was questioned by several people, including, allegedly, the applicant (Mr Grigolashvili was not sure of that person’s identity, since he had never met the applicant and only identified him from a photo). They beat him up and threatened him with death if he did not indicate the whereabouts of the applicant’s father. One of the men forced him to call Ms Margvelashvili and tell her that she should contact the alleged abductors of the applicant’s father in order to save his life and that of Mr Dvali. On the evening of 8 August 2000, after the applicant’s father had been set free, Mr Grigolashvili was released. Before he left, one of the men from the applicant’s office gave him documents belonging to Mr Dvali and Mr Kakushadze. Later Mr Grigolashvili returned the documents to Mr Tsartsidze, the cousin of Mr Kakushadze. 50. Mr Kervalishvili confirmed that on 7 August 2000 his employees, one of whom had been disguised in police uniform, had kidnapped the applicant’s father for the purpose of obtaining a ransom. The applicant’s father was kept in a flat which had been rented for that purpose. On the following day Mr Kervalishvili was approached by Ms Avaliani, who informed him about the abduction of Mr Kakushadze, Mr Dvali and Mr Grigolashvili, and about the threats to Ms Margvelashvili and her son. Mr Kervalishvili then called the applicant and agreed to release his father if the applicant released the three men. During that conversation Mr Berkadze, who had also been involved in abducting the applicant’s father and was at that point in the applicant’s office, confirmed to Mr Kervalishvili that all the hostages taken by the applicant were alive. The applicant also threatened to kill the hostages if his father was not returned safely. 51. Ms Dzhimshiashvili, Mr Grigolashvili’s wife, testified that early on the morning of 8 August 2000 several “policemen” had taken her husband away. In the evening he had returned home; he was seriously injured and she had provided him with elementary medical assistance. He did not tell her what had happened to him; he simply explained that he had been beaten up by the police. 52. The prosecution further referred to a verbatim record of the conversation between Mr Grigolashvili and Mr Tsartsidze on 19 September 2000 (see paragraph 27 above), and a verbatim record of thirteen audiotapes made by the police as part of the surveillance operation (see paragraphs 11 and 24 above). 53. The prosecution also relied on the reports by Mr Koval and Mr Zubov, who had identified the applicant’s voice on the audiotapes (see paragraph 33 above). A considerable amount of circumstantial evidence and hearsay witness testimony was also referred to in the indictment. 54. As Mr Sidler, one of the co-accused, was a serving military officer, the case was examined by a military court. On 28 August 2002 the military court held a preparatory hearing. The applicant was present at the hearing; he was assisted by several lawyers. Those lawyers represented him throughout the subsequent proceedings. 55. The trial commenced on 5 November 2002. The court was composed of Mr Popovich, the professional judge, and two lay judges. 56. The applicant and the other co-accused pleaded not guilty. According to the applicant, the abductions in question had been carried out by real policemen, together with Mr Berkadze, who had then decided to shift the blame onto the applicant and his men after Mr Dvali and Mr Kakushadze had disappeared. 57. On 25 November 2002 the applicant’s lawyers questioned Mr Grigolashvili and Ms Margvelashvili in Georgia, in the presence of their lawyers, and through an interpreter. On an unspecified date in 2003 the lawyers also questioned Mr Kervalishvili. A verbatim recording of those questioning was made. The lawyers further obtained written statements by Mr Kervalishvili, Ms Margvelashvili, Ms Dzhimshiashvili and Mr Grigolashvili concerning the events of 7 and 8 August 2000. Those statements were addressed to the Georgian authorities, to the Military Court of Leningrad Command, and to the applicant’s lawyers. In 2003 the defence lawyers submitted the above written testimonies and statements to the Military Court; they were added to the case file. 58. All of the above witnesses withdrew their previous testimony to the police, which had incriminated the applicant. In particular, Ms Margvelashvili explained in her statement of 25 November 2002 that, although she did not speak Russian, she had signed written depositions drafted in Russian by the prosecution authorities. She explained that the “policemen” who had abducted Mr Dvali and Mr Kakushadze from her flat had been led by Mr Berkadze, one of those who had kidnapped the applicant’s father. Ms Margvelashvili testified that the man who had called and threatened her in the morning of 8 August 2000 was not the applicant but Mr Berkadze. 59. In his written submissions of 25 November 2002 Mr Grigolashvili indicated that the person who had questioned and beaten him in the applicant’s office had introduced himself as “a son of the kidnapped businessman”, but that it had not been the applicant, and that he had not seen the applicant at all on that day. 60. In his written deposition of 22 March 2002 Mr Kervalishvili declared that everything he had said to the prosecution authorities about the applicant was a lie (cf. paragraph 32 above). 61. The defence lawyers also questioned the applicant’s brother, who lives in Israel and who confirmed the applicant’s account of events. The transcript of that interview was also produced to the court. 62. The defence commissioned an expert analysis of the recording of the telephone conversations at Ms Margvelashvili’s flat. The phonological analysis of the audiotapes submitted by the defence concluded that the recording of the telephone conversations on 7 and 8 August 2000 did not contain the applicant’s voice. This report was admitted by the court as evidence. 63. The court examined two out of the thirteen audiotapes made by the police in the flats of Ms Margvelashvili and Mr Grigolashvili (audiotapes nos. 13462 and 14123), and examined the verbatim records of the remaining eleven audiotapes made by the police. The defence requested access to all thirteen audiotapes in order to be able to compare them with the verbatim record, but the court rejected that request. 64. The defence also requested the court to obtain from the prosecution the recordings made between 5.30 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000. The defence stressed that during that period the applicant had had a telephone conversation with Ms Margvelashvili. In its submission, the disclosure of the content of that conversation could have proved his innocence. 65. The defence lawyers asked the court to disclose the materials authorising the telephone tapping of Ms Margvelashvili’s flat and, in particular, the court decision authorising that surveillance. At the hearing of 12 September 2002 Judge Popovich, after having examined briefly a file produced by the State prosecutor, dismissed the request “on the grounds of secrecy”. He explained that he was satisfied with the explanation provided by the prosecution as to the lawfulness of the telephone tapping. It appears that the lay judges did not see the materials submitted by the prosecutor to the presiding judge. 66. On 4 January 2003 the defence repeated their request for the disclosure of the materials authorising the wiretapping. In particular, they sought the disclosure of the request for the wiretapping by the police and the court’s order of 11 July 2002 authorising the wiretapping (see paragraph 21 above). In an interim decision of the same date the court, composed of Judge Popovich and the two lay judges, dismissed that request on the ground that the materials at issue, relating to the operational and search activities of the police, contained State secrets, and therefore could not be shown to the defence. The court referred to subsection 4 of section 12 of the 1995 Operational and Search Activities Act (see “Relevant domestic law” below), which did not provide for the disclosure of the information on such activities of the police to the lawyers. 67. The court questioned a number of policemen involved in the wiretapping of telephone conversations at Ms Margvelashvili’s flat. They submitted that the police had been keeping an eye on Mr Kervalishvili and persons around him, including Ms Margvelashvili, since March 2000. Ms Margvelashvili’s flat had been under surveillance since July 2000, and when the applicant’s father was kidnapped the police had known that Ms Margvelashvili’s friends or relatives might be involved in some way. The witness explained that all telephone conversations within that period had been recorded. However, the recording covering the period between 5.30 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000 had been lost “for technical reasons” (see paragraph 24 above). 68. On 25 December 2002 the court started the examination of the expert report of 20 September 2001 by Mr Koval and Mr Zubov. The applicant insisted that the conclusions of the above-mentioned two experts were wrong, and that the man’s voice on the audiotapes did not belong to him. Further, he claimed that the translation from Georgian was inaccurate. 69. On 29 January 2003 the court questioned the experts who had prepared the report, Mr Koval and Mr Zubov. They testified that at the request of the investigator they had analysed four audiotapes. They had not detected any traces of editing on those audiotapes. In their view, the voice on five recordings belonged to the applicant. 70. The presiding judge asked Mr Koval whether he had worked with the Georgian language before. Mr Koval replied that, for the purposes of a phonological analysis, knowledge of a particular language was not necessary. He also confirmed that, although the conversation recorded on the audiotapes was in Georgian, he and his colleague only had samples of the voice of the applicant speaking Russian. However, in his opinion that did not make much difference. 71. On 5 January 2003 the applicant asked the court to order an new expert examination of the voices on the audiotapes. The defence submitted that the voice on the audiotape was not the applicant’s but that of another person, allegedly Mr Berkadze. 72. In order to rebut the findings of the expert report relied on by the prosecution, the defence lawyer asked the court to call two phonologists, Ms Rossinskaya and Ms Galyashina. They were summoned to court and on 29 January 2003 they testified that the methods of phonological analysis employed by Mr Koval and Mr Zubov were questionable and that their conclusions were unreliable. In their submission, Mr Koval and Mr Zubov had not used State-approved methods of voice recognition but had relied on their own method, which was unreliable. They produced to the court a report criticising the findings of Mr Koval and Mr Zubov; that report was added by the court to the case file. 73. On 12 February 2003, in view of the contradictory nature of the conclusions reached by Mr Koval, Mr Zubov and Ms T. S. Kikalishvili, the court ordered an additional analysis of the audiotapes. The defence lawyers asked the court to include Ms Galyashina in the expert team, but the court rejected that request on the ground that she had already given her opinion on the subject in the capacity of a “specialist” (специалист). The court assigned four experts, including Mr Koval, the same expert who had drafted the first report, proposed by the prosecution, and Mr Serdyukov, proposed by the defence. Two experts were appointed on the court’s initiative: Mr Yakushev and Ms Kikalishvili (the latter had also taken part in the first analysis). 74. The defence contested the appointment of Mr Koval and Mr Yakushev. The defence cast doubt on the impartiality of these experts, in that Mr Koval’s wife had previously worked for the applicant and had been fired by him, and Mr Yakushev was a member of the Russian security service. 75. On 15 April 2003 the court heard evidence from the experts Mr Koval, Mr Serdyukov and Ms T. S. Kikalishvili. The court also heard two witnesses, namely Mr Bazunov and Mr Korobetskiy. Mr Bazunov confirmed that he had known Mr Koval and his wife since 1999. She had worked at the reception desk at a casino owned by the applicant. In September 1999 she had been fired on the direct orders of the applicant. Mr Bazunov had then called Mr Koval and explained that her dismissal had not been his decision, but that of the applicant. Mr Korobetskiy confirmed the statement by Mr Bazunov about Mr Koval’s wife and her dismissal from the casino. 76. The court refused to discharge Mr Koval and Mr Yakushev. As a result of the new analysis, Mr Koval and Mr Yakushev found that the voice on the audiotape belonged to the applicant. The two other experts came to the opposite conclusion. 77. On 24 June 2003, at the prosecutor’s request, the court ordered a third expert analysis of the audiotapes, with a view to eliminating discrepancies in the earlier findings. The analysis was entrusted to Mr Koval, Mr Yakushev and Mr Serdyukov, who had participated in the previous examination, and two new experts: Mr Kurdiani, a Georgian-speaking expert, proposed by the defence, and an anonymous expert, proposed by the prosecution, whose name was given only as “A. P. Ivanova”. The defence asked the court to disclose the identity of “A. P. Ivanova” or to dismiss her from the expert team, because in such circumstances it was unable to challenge her credentials. 78. The next hearing was held on 25 June 2003. The court and the parties questioned several witnesses, namely the experts Mr Kurdiani, Mr Yakushev and “Ms Ivanova”. The latter was questioned through a system of audio teleconferencing. The applicant was present at that hearing and was able to put questions to the witnesses. The defence challenged Mr Koval, alleging that he was biased, but the court refused to grant their request. 79. On 27 June 2003 the court decided to discontinue the phonological examination of the audiotapes. The court noted that since Mr Kurdiani was a Georgian national he could not be held legally responsible for false testimony and could not therefore act as an expert in the proceedings. The court also observed that the defence lawyers could not ascertain the personal credentials and professional competence of “A. P. Ivanova”. 80. On 2 July 2003 the court declared that the examination of evidence was over and asked the parties how much time they needed to prepare their final submissions. The defence requested one day; the prosecution requested twelve days. The court decided to start hearing the final submissions on the morning of 15 July 2003. 81. On 15 July 2003 at 10 a.m. the prosecutor submitted an additional phonological analysis of the audiotapes prepared by the same anonymous expert, “A. P. Ivanova”. Despite the objections raised by the defence, the court admitted the report in evidence and included it in the case file. However, the court refused to reopen the examination of evidence. The report of “A. P. Ivanova” was added to the case file without examination by the parties. The court rejected a request by the applicant’s lawyers to disclose the contents of the report. At 11.05 a.m. the court discontinued the examination of evidence and proceeded to hear the parties’ final submissions. 82. The court also heard the audio recording of a conversation between Mr Grigolashvili and Mr Tsartsidze, made by the latter (see paragraph 27 above). The court had ordered an expert examination of the recording in order to identify the voices on the audiotapes, but it later cancelled the examination. 83. Several witnesses for the prosecution, including Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, did not appear at the hearing. At the beginning of the trial the court asked the parties whether the proceedings should continue in the absence of the above witnesses. The prosecutor supported the idea of continuing the proceedings in the absence of those witnesses. The applicant’s counsel, Mr Afanasyev, did not oppose the commencement of the proceedings, but asked the court that the witnesses be summoned through the channels of international judicial cooperation. 84. On 12 November 2002 the Military Court of Leningrad Command sent a letter rogatory to the Georgian authorities asking them to assist in summoning several witnesses, namely Mr Grigolashvili, Ms Margvelashvili, Ms Dvali, Ms Dzhimshiashvili and Mr Kervalishvili. On 9 March 2003 the Deputy Minister of Justice of Georgia informed the President of the Leningrad Circuit Military Court that Mr Grigolashvili, Ms Margvelashvili and Ms Dzhimshiashvili were not able to go to Russia to appear before the court. The Deputy Minister also explained that they had all retracted the statements they had previously given to the Russian prosecution authorities. 85. At the hearing of 19 March 2003 the prosecutor requested leave to read out written depositions by Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili, made to the investigator at the pre-trial stage (see paragraphs 46 – 51 above). The defence objected, referring, inter alia, to Article 6 § 3 (d) of the Convention. They submitted that the applicant had been deprived of his right to cross-examine witnesses against him. The defence stressed that they had asked the investigator to carry out face-to-face questioning of these witnesses but that the investigator had refused. In those circumstances, the written depositions by those witnesses should have been declared inadmissible. Despite that objection, on 20 March 2003 the court decided to admit the written depositions and to read them out at the trial. 86. In the course of the trial the court questioned several other witnesses, in particular Mr Tsartsidze, Ms Avaliani and Mr Kogan. Their testimony can be summarised as follows. 87. According to Mr Tsartsidze, on 8 August 2000 Ms Margvelashvili called him and informed him of the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili, which, in her opinion, was related to the kidnapping of the applicant’s father a day earlier. 88. On 11 August 2000 Mr Tsartsidze met Mr Grigolashvili, who gave him more details of what had happened to him and to others. Mr Grigolashvili handed over to Mr Tsartsidze documents belonging to Mr Dvali and Mr Kakushadze, explaining that he had received them in the applicant’s office on 8 August 2000. These documents were later seized by the police. 89. On 19 September 2000 Mr Tsartsidze met Mr Grigolashvili again and suggested that he file a complaint with the police about the events of 7 and 8 August 2000. Mr Grigolashvili refused, allegedly for fear of reprisals by the applicant and his family. Knowing that Mr Grigolashvili might refuse to tell the police the true story of his abduction, Mr Tsartsidze recorded their conversation on two audiotapes using a dictaphone. In December 2000 Mr Tsartsidze gave those tapes to the police (see paragraph 27 above). 90. Ms Avaliani testified that on 8 August 2000 her friend Ms Margvelashvili had called her, explained the situation and asked her to find Mr Kervalishvili. Ms Avaliani met Mr Kervalishvili and relayed the information. During their conversation Mr Kervalishvili confirmed that he had masterminded the abduction of the applicant’s father. He then called the applicant and they agreed to exchange the applicant’s father for the hostages taken by the applicant, namely Mr Dvali, Mr Kakushadze, Mr Grigolashvili, Ms Margvelashvili and her son. 91. Mr Kogan, the applicant’s father’s driver, who had been present at the time of the latter’s abduction by Mr Kervalishvili’s and Mr Berkadze’s men testified that the applicant’s father had been kidnapped from his car on the morning of 7 August 2000. In the evening the driver was invited to the applicant’s office, where he was shown “three Georgian men” and asked whether he recognised any of the men who had abducted the applicant’s father. He replied that he did not. 92. Ms Volkova, a former girl-friend of Mr Kakushadze, and her mother, testified that they had heard from other relatives that Mr Dvali and Mr Kakushadze had been abducted on the applicant’s orders. A statement in similar terms was given by Ms M.A. Kikalishvili, a relative of Mr Tsartsidze. 93. Mr Mirilashvili senior, the father of the applicant, testified before the court. He described the circumstances of his kidnapping by Mr Kervalishvili. He also confirmed that Mr Kervalishvili had spoken to his son, the applicant, by telephone. 94. The court heard evidence from a number of policemen who had visited the applicant’s office on 7 and 8 August 2000. The court was told that during the night of 7 August 2000 the applicant had spoken on the telephone with the deputy chief investigator of the Vyborgskiy District of St Petersburg. On the following morning that police officer, together with a colleague, had arrived at the applicant’s office. However, the policemen denied that they had been involved in the abduction of Mr Dvali and others. 95. The court questioned six of the applicant’s employees, who, according to the prosecution, had assisted him in the abduction and murder and had found the men who had abducted Mr Dvali, Mr Kakushadze and Mr Grigolashvili. The applicant’s employees testified that on 7 August 2000 the police had provided them with certain information about the progress of the official investigation. The applicant’s employees also submitted that they had been in permanent contact with the police officers in charge of the investigation throughout 7 and 8 August. However, they all denied that they had been involved in the abduction, beating and murder of the victims. They submitted that they had never instructed anyone to abduct Mr Kakushadze, Mr Dvali and Mr Grigolashvili, or to detain Ms Margvelashvili and her son, and had never received any such instructions from the applicant. They also denied that they had seen the victims in the applicant’s office. 96. The court questioned several other indirect witnesses. However, their statements were not used against the applicant. 97. On 1 August 2003 the Military Court of the Leningrad Command gave judgment in the applicant’s case. 98. The court started by describing the applicant’s own account of the events at issue. However, in the court’s opinion, that account was rebutted by other evidence. In support of that conclusion it referred, firstly, to the statements by Ms Margvelashvili, Mr Grigolashvili, Mr Kervalishvili and Ms Dzhimshiashvili obtained by the investigator and read out at the trial (see paragraphs 46 – 51 and 85 above). In the court’s opinion, those statements confirmed the applicant’s guilt. 99. As to the written statements by Ms Margvelashvili, Mr Grigolashvili and Mr Kervalishvili, submitted by the defence (see paragraphs 57 – 60 above), the court declared that evidence inadmissible as having been obtained in breach of the domestic legislation. The court noted that those persons had already been questioned by the investigator as witnesses. In the court’s view, their subsequent examination by the defence lawyers could not therefore be recognised as “lawful collection of evidence” within the meaning of the domestic legislation. Consequently, the court declared those statements inadmissible. The court further noted that the statement by the applicant’s brother had been obtained by his defence lawyers in accordance with the law. However, the court noted that the veracity of the statement could not be confirmed in accordance with the Code of Criminal Procedure, namely at an oral hearing before the court. On that basis the court declared this evidence inadmissible. 100. Secondly, the judgment referred to the testimonies of Ms Kikalishvili and Mr Tsartsidze, the relatives of Mr Kakushadze. They testified about what Mr Grigolashvili had told them about the events of 7 and 8 August 2000. Thirdly, the court referred to the recordings of the conversation between Mr Grigolashvili and Mr Tsartsidze, made by the latter in September 2000. Fourthly, the judgment referred to the testimony of Ms Volkova, the former girl-friend of Mr Kakushadze. She testified before the court about what Mr Tsartsidze had told her about the events. Fifthly, the court analysed the testimony of Ms Avaliani, who had heard the telephone conversation between the applicant and Mr Kervalishvili, and who had spoken to Ms Margvelashvili and Ms Kervalishvili about the applicant’s involvement in the abduction of Mr Grigolashvili, Mr Dvali and Mr Kakushadze. 101. Finally, the court referred to the phone calls recorded at Ms Margvelashvili’s flat on 7 and 8 August 2000, The court accepted the conclusions of the experts for the prosecution (Mr Koval, Mr Zubov and Mr Yakushev), who identified the voice on the audiotape as belonging to the applicant, and rejected the findings of the other experts. In particular, the court discounted the arguments of Ms Galyashina, Ms Rossinskaya, Ms Kikalishvili and Mr Serdyukov as unreliable. The judgment contained no reference to the findings of the anonymous expert “A.P. Ivanova”. 102. The judgment also contained references to various other items of hearsay and circumstantial evidence, such as the testimonies of the police officers and reports of the examination of the personal belongings of one of the victims. 103. As a result, the Military Court found the applicant guilty of unlawful entry into a house and the abduction and illegal detention of Mr Grigolashvili, Mr Dvali and Mr Kakushadze, and sentenced him to twelve years’ imprisonment. The applicant was acquitted on other counts, including the charges of murder. The court fully acquitted the applicant’s co-defendants, including Mr Kazimirchuk and Mr Sidler. Mr Petrov was found guilty of illegal possession of firearms. 104. On 11 August 2003 the applicant’s lawyers lodged an appeal against the judgment of 1 August 2003. On 18 September and 21 October 2003 they filed additional written observations with the appeal court. Their grounds of appeal may be summarised as follows. 105. The defence lawyers indicated that the court had misinterpreted or even distorted the testimony of many witnesses, as well as the content of the telephone conversations recorded by the police. Nothing in Mr Grigolashvili’s and Ms Margvelashvili’s testimony indicated that the applicant had organised the abduction of Mr Dvali, Mr Kakushadze and Mr Grigolashvili. On the contrary, Ms Margvelashvili and Ms Avaliani had on many occasions in their testimony referred to “coppers” and “the nick”, which suggested that the police had been involved in the case. Both Ms Margvelashvili and Ms Avaliani mentioned that the “cops” had arrived at Ms Margvelashvili’s flat in the company of Mr Berkadze, and that it was Mr Berkadze who had called and threatened Ms Margvelashvili with death. The defence also pointed to certain logical discrepancies in the testimony of various witnesses and challenged their credibility. 106. The defence complained that the court had failed to summon Mr Kervalishvili, Mr Grigolashvili, Ms Dzhimshiashvili and Ms Margvelashvili. At the same time the court declared inadmissible written statements by those witnesses, obtained by the defence, in which they had retracted their previous statements to the investigative authorities. The defence also indicated that the court had refused to obtain from the prosecutor’s office the results of the questioning of Mr Grigolashvili, which had been carried out by the Georgian authorities at the request of the Russian prosecution authorities on 25 June 2002. That information had been added to the case file by the prosecution during the trial, without the defence having been informed (see paragraph 40 above). 107. As regards the evidence obtained as a result of wiretapping, the defence complained that they had had no opportunity to challenge its admissibility, because the court had refused to give them access to the materials authorising the wiretapping. The defence further indicated that the prosecution had produced only a selective record of the relevant telephone conversations. Firstly, the defence had had access to only two out of the thirteen audiotapes made by the police, whereas the prosecution had submitted the verbatim record of all thirteen tapes. Secondly, a period of more than twenty hours of wiretapping (between 5 p.m. on 7 August 2000 and 1.40 p.m. on 8 August 2000) was missing, whereas the police had recorded all the conversations which had taken place within that period. In its decision the court had not mentioned the testimony of the police officers involved in the wiretapping operation, which was of crucial importance for the case. 108. The defence also contested the court’s findings as to the identity of the man who had threatened Ms Margvelashvili and her son with death in the telephone conversation of 8 August 2000. The court concluded that the voice on the tape belonged to the applicant. That conclusion was based on the findings by the Russian experts Mr Koval, Mr Zubov and Mr Yakushev. The defence pointed out that those experts did not speak Georgian and had had at their disposal only samples of the applicant’s voice when speaking in Russian; moreover, the impartiality of those experts was open to doubt for the reasons adduced by the defence before the court. The defence further complained that the court had disregarded the opinion of those experts proposed by the defence, had refused to entrust the analysis of the audiotapes to Ms Galyashina and had discharged Mr Kurdiani. In their opinion, the court’s assessment of the contradicting expert opinions was significantly affected by a report by an anonymous expert, “A. P. Ivanova”, to which the defence had had no access during the trial. 109. With regard to the audiotapes recorded by Mr Tsartsidze in September 2000, the defence lawyers indicated that the court had failed to establish whether the recorded voice actually belonged to Mr Grigolashvili. No analysis had ever been carried out to that effect. Moreover, Mr Tsartsidze could not explain to the court why he had handed over to the investigative authorities only copies of the audiotapes, and not the original records. In those circumstances the court ought to have disregarded the contents of those tapes. 110. In addition to the grounds of appeal submitted by the applicant’s lawyers, Mr Grigolashvili, as a victim, lodged a separate appeal against the judgment. Mr Grigolashvili submitted that he had never seen the applicant or spoken to him. According to Mr Grigolashvili, he had spent some time in the applicant’s office on 8 August 2000, but he had not seen Mr Dvali or Mr Kakushadze there. The man who had hit him in the applicant’s office was not the applicant. He submitted that the story he had told Mr Tsartsidze, as recorded on the audiotape, was untrue and that he had recounted it under serious pressure from Mr Tsartsidze, a cousin of the deceased Mr Kakushadze, and his relatives. He had been instructed what to say by Mr Tsartsidze and by the investigators. 111. Ms Margvelashvili, as a victim, lodged a similar appeal. She indicated that her initial statements, referred to by the trial court as evidence incriminating the applicant, had been given under duress. She explained that Mr Dvali and Mr Kakushadze had been arrested at her flat by police officers who were led by Mr Berkadze. Later that night a police officer in uniform had come to her flat and taken documents belonging to Mr Dvali and Mr Kakushadze. On the morning of 8 August 2000 she had spoken to Mr Berkadze by telephone, not the applicant. No one had ever mentioned the applicant’s name in connection with the abduction of Mr Dvali and Mr Kakushadze. She had given testimony against the applicant because she had been persuaded by the investigators that the applicant had ordered the killing of Mr Dvali and Mr Kakushadze, but she now understood that the applicant was innocent. 112. On 5 November 2003 the Supreme Court of the Russian Federation upheld the conviction in the main, excluding several aspects on formal grounds (in particular, the episode concerning the abduction of Mr Grigolashvili, and the illegal entry into Ms Margvelashvili’s house). As a result, the sentence was reduced to eight years’ imprisonment. 113. Ms Margvelashvili appeared before the appeal court as a victim of the crimes of which the applicant was accused. She repeated the arguments stated in her grounds of appeal. However, the appeal court upheld the findings of the first-instance court, referring again to the written depositions given by Mr Grigolashvili, Ms Margvelashvili and Mr Kervalishvili at the pre-trial stage, the recording of the telephone conversation of 8 August 2000 between Ms Margvelashvili and the applicant, the recording of the conversation between Mr Tsartsidze and Mr Grigolashvili, written and oral submissions by Ms Avaliani and Mr Tsartsidze and certain pieces of circumstantial evidence produced by the prosecution. The court of appeal noted that the wiretapping of the telephone line of Ms Margvelashvili’s flat had been lawfully authorised by the President of the St Petersburg City Court for the period between 7 and 17 August 2000. As regards the depositions submitted by the defence, which were declared inadmissible by the trial court, the appeal court noted that “the trial court [had made] the correct legal assessment” and declared them inadmissible. Further, the appeal court dismissed the complaint regarding the trial court’s failure to summon Ms Galyashina and its discharge of Mr Kurdiani. The appeal court further noted that the first-instance court had not referred to the report prepared by the anonymous expert “A. P. Ivanova” and had not breached any procedural rules by accepting her report. It also noted that the report had been admitted to the case file before the end of the trial. As to the grounds of appeal by Ms Margvelashvili and Mr Grigolashvili, the court of appeal held that “their arguments ... were untenable, since their testimony had been thoroughly examined by the [first instance] court, it analysed them in its judgment, the findings of the [first instance] court are duly reasoned”. 114. The Federal Operational and Search Activities Act of 1995 sets down the rules for “operational and search activities” (“OSAs” – such as collecting information, infiltrating the criminal milieu, conducting undercover surveillance and intercepting correspondence) by the law-enforcement bodies, in particular the police. One of the permitted forms of OSA is the wiretapping of telephone conversations. 115. Section 12 of the 1995 Act is entitled “Protection of information concerning the bodies involved in the OSA”. The first subsection of that section provides that information about, inter alia, undercover operations, their methods and agents who infiltrate criminal groups is a State secret. Disclosure of such information can only be authorised by the head of the law-enforcement body involved in the OSA. 116. The second subsection of section 12 provides that information about undercover agents and informants can be disclosed only with their written consent and in cases defined in federal law. 117. The third subsection of section 12 provides that a court decision authorising an OSA, as well as other materials in support of that decision, are to be kept by the body conducting the OSA. 118. The fourth subsection of that section provides that documents containing information about the results of the OSA may be submitted to the judge, to the prosecutor supervising the legality of the OSA, to the investigative authority in charge of a criminal case, to other law-enforcement bodies, and in other cases set out in the Federal Act and in accordance with established procedure. 119. Article 89 of the Code of Criminal Procedure of 1960 (“the old CCrP”), in force until 1 July 2002, provided that unlawfully obtained evidence had no legal force and could not be used during a trial. 120. Article 75 of the Code of Criminal Procedure of 2002 (“the new CCrP”) provides that evidence obtained in breach of the provisions of the Code is inadmissible. 121. The old CCrP provided that the duty to obtain evidence fell to the investigative bodies; however, the defence had the right to produce evidence to the investigative authorities and the courts (Article 70). Article 86 of the new CCrP formulated the rules on collecting evidence as follows: “1. In the course of the criminal proceedings evidence shall be collected by ... the investigator, the prosecutor and the court by means of investigative measures. 2. [An accused] ... and his representatives may collect and produce written documents ... to be added to the case file as evidence. 3. The defence lawyer may collect evidence by: (1) obtaining objects, documents and other information; (2) questioning persons with their consent; or (3) requesting ... documents from the authorities ... and other organisations which are obliged to produce such documents or their copies.” 122. Article 89 of the old CCrP provided that the results of the OSA should not be used as evidence if they had been obtained in breach of the Code. 123. Article 360 of the new CCrP (applicable at the time of the appeal proceedings in the present case) provides that the court of appeal should examine the case within the scope of the grounds of appeal. 124. As a rule, the court of appeal does not examine evidence directly. However, under Article 377 of the new CCrP, the court of appeal may examine evidence, at the request of one of the parties. 125. Under Article 377 of the Code, the parties may submit “additional materials” to the court of appeal. However, those “materials” cannot be obtained by means of an investigative measure. 126. In its ruling of 5 March 2004 the Plenum of the Supreme Court of Russia (the highest judicial authority) held that the court of appeal could directly examine only the evidence from the case file – that is, the evidence which had been already assessed by the first-instance court. As examples of such evidence the Supreme Court referred to the records of questioning of witnesses and to expert reports. It also cited several examples of “additional materials” which could be examined by the court of appeal, such as: personal characteristics, certificates concerning governmental decorations, disability certificates and copies of other court decisions that had taken effect. The Supreme Court also explained that there was no need to keep records of hearings before the courts of appeal. | 1 |
train | 001-57441 | ENG | SWE | CHAMBER | 1,987 | CASE OF BODÉN v. SWEDEN | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | Gaukur Jörundsson | 7. The applicant, Mr. Gunnar Bodén, was born in 1939. He is a Swedish citizen resident in Falun and a car driver by profession. He owned, together with his brother Mr. B. Bodén, the properties Källviken 1:18, 1:25 and 1:26. 8. On 30 June 1977, the Falun Municipal Council (kommunfullmäktige) adopted an area plan (områdesplan) with a view to the development of a housing estate in an area including the applicant’s properties. On 9 February 1978, the Municipal Council decided to apply to the Government for an expropriation permit for this area. 9. The applicant objected to the expropriation in respect of two of the three properties concerned, because, as he submitted to the Government, he doubted that they were needed for the development contemplated and, further, he wanted to live with his mother in his parents’ home situated on one of the properties. He claimed that, when working out and adopting the area plan, the Municipal Council had not taken his interests sufficiently into account, something that would have been possible within the framework of a somewhat modified plan. However, the Government, taking the view that the Municipal Council had shown the need to include the applicant’s properties, concluded that the conditions laid down in the Expropriation Act 1972 (expropriationslagen 1972:719 - "the 1972 Act") were satisfied. On 1 March 1979, they issued an expropriation permit. 10. The decision indicated that the issue of the permit had to be followed by the institution of proceedings by the Municipality before a real estate court not later than 3 March 1980. An action, the object of which was to settle the terms of the expropriation (see paragraph 15 below), was commenced on 28 February 1980 before the Real Estate Court at the Falun District Court (tingsrätten). 11. The applicant, his brother and the Municipality were involved in negotiations for a settlement until 2 July 1984. On that date, before the main hearings started, they finally concluded an agreement: the applicant and his brother were to sell the properties to the Municipality, which was to lease back to the applicant for a period of five years, with a possibility of prolongation, a house situated thereon. On 17 August, the Real Estate Court struck the case off its list since, as a result of the settlement, the Municipality had withdrawn its claim for expropriation. 12. On 17 December 1986, after the present case had been brought before the European Court of Human Rights, the Municipality of Falun concluded an agreement with the applicant for the repurchase by him of the properties for 235,000 Swedish crowns, the same amount as it had paid for them in 1984. 13. The Building Act 1947 (byggnadslagen 1947:385 - "the 1947 Act") is the main legal instrument governing planning in respect of the use of land for construction and urban development. It provides for the drawing up of a master plan (generalplan), which establishes within a municipality the framework for other and more detailed plans, namely city plans (stadsplaner) and building plans (byggnadsplaner). As in the present case, a municipal council may draw up an area plan, instead of a master plan. The manner in which area plans are elaborated and their content are not expressly governed by the 1947 Act but general principles of administrative law are, of course, applicable. 14. The issue of expropriation permits is governed by the 1972 Act. Under Chapter 3, section 1, such a permit is normally granted by the Government. For cases like the present, the grounds justifying the issue of a permit are stated in Chapter 2, section 1, of the 1972 Act (as amended by the Act of 1976:46), which reads as follows (translation from Swedish): "Expropriation is allowed in order to enable a municipality to acquire rights over land which is needed, as a result of future societal requirements, for urban development (tätbebyggelse) or constructions in connection with such development. ... Within areas of urban development expropriation is allowed only if there is reason to assume that, within a foreseeable time, the area will be subject to building or other construction activities which are deemed important in the general interest, or if there is an urgent necessity for the municipality to acquire rights over the land for the furthering of planned building or for any other similar reason. ..." However, a permit must not be granted if the purpose of the expropriation can be attained by other appropriate means, or if the disadvantages of the expropriation would outweigh, from general and individual points of view, its advantages (Chapter 2, section 12, of the 1972 Act). 15. Under Chapter 3, section 4, of the 1972 Act, the sole effect in law of the issue of an expropriation permit is to confer on its holder an entitlement to acquire the designated property. Consequently, the issue of a permit leaves legally intact the owner’s right to use, sell, let or mortgage his property (see also paragraph 17 below), and does not automatically lead to expropriation. Before the expropriation can be finalised, its terms - such as the compensation to be paid to the owner and the boundaries of the expropriated area - have to be settled in proceedings before a real estate court. Moreover, the expropriation is not completed until the compensation - in principle equivalent to the market value - has been paid. 16. The proceedings before the real estate court have to be instituted by the holder of the permit within the time-limit which it specifies, failing which the permit will lapse (Chapter 3, section 6, of the 1972 Act). The 1972 Act is silent as to the length of this time-limit and as to the criteria upon which it is to be fixed. However, Chapter 3, section 6, provides that it may be extended in special circumstances, or reduced if the owner so requests and establishes that the inconvenience for him in the expropriation remaining pending has increased significantly. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit. 17. Some reasons for restricting the time-limit and, hence, the duration of the validity of expropriation permits were stated in the Bill 1972:109, page 227, which led to the 1972 Act (translation from Swedish): "Naturally, the mere issue of an expropriation permit often places [the owner] in a state of uncertainty. In practice, his opportunities for disposing of his property by selling it, assigning the use thereof or having premises erected thereon are considerably restricted. He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation. The disadvantages resulting from an expropriation permit are evidently increased if the judicial proceedings are not set in motion for a long time." 18. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts entertain proceedings against the State only in contractual matters, on questions of extra-contractual liability and, under some statutes, in respect of administrative decisions. Judicial review of the administration’s acts is therefore primarily a matter for administrative courts. These courts comprise three levels: the county administrative courts (länsrätterna); the administrative courts of appeal (kammarrätterna); and the Supreme Administrative Court (regeringsrätten). They are composed of independent judges and enjoy, as a rule, wide powers which enable them not only to set aside administrative acts but also to vary or substitute them. There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government (see paragraph 20 below). 19. Chapter 7, section, 1 of the Municipal Act of 1977 (kommunallagen 1977:179) provides for and regulates, in a general way, the right to appeal (kommunalbesvär) against decisions by municipalities. This Act enables residents of the municipality to challenge, for instance, a municipal council’s decision to adopt an area plan or apply for an expropriation permit. At the relevant time, this remedy was exercisable before the County Administrative Board (länsstyrelsen), but only on the following grounds: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the complainant’s own rights, or other unfairness. The appeal had to be filed within three weeks from the date on which approval of the minutes of the decision had been announced on the municipal notice-board. The County Administrative Board’s decision could, within three weeks from its notification to the complainant, be the subject of an appeal to the Supreme Administrative Court. These provisions were slightly amended in 1980, with effect from 1 January 1981, in that the first appeal now has to be made to the Administrative Court of Appeal and not to the County Administrative Board. 20. Swedish law contains no provision for appeals to the ordinary or the administrative courts against the Government’s decisions to issue expropriation permits. Accordingly, such decisions are in principle not subject to court review. However, there is a limited possibility to file a petition before the Supreme Administrative Court for re-opening of the proceedings (resningsansökan). Further particulars of this remedy appear in the Sporrong and Lönnroth judgment of 23 September 1982 (Series A no. 52, pp. 19-20, § 50). 21. The 1972 Act does not in principle provide for compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter 5, section 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings before a real estate court (see paragraphs 15-16 above). 22. According to Chapter 3, section 2, of the Civil Liability Act 1972 (skadeståndslagen 1972:207), acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence. However, under section 7, an action for damages will not lie in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court or the National Social Security Court. | 1 |
train | 001-119704 | ENG | HUN | CHAMBER | 2,013 | CASE OF N.K.M. v. HUNGARY | 3 | Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions);Pecuniary and non-pecuniary damage - award | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen | 5. The applicant was born in 19... and lives in Budapest. 6. The applicant, civil servant for thirty years, had been in the service of a government ministry. On 27 May 2011 she was dismissed, with effect from 28 July 2011. Her dismissal was part of a wave of similar measures throughout the entire civil service. 7. On dismissal, the applicant was statutorily entitled to two months’ salary for June and July 2011 during which time she was exempted from working. In addition, she was to receive severance pay amounting to eight months’ salary in application of section 19(2) g) of Act no. XXIII of 1992 on the Status of Civil Servants, as well as to an unspecified sum corresponding to unused leave of absence. These benefits – in so far as they did not represent compensation for unused 2011 leave of absence – were subsequently taxed at 98% in their part exceeding 3.5 million Hungarian forints (HUF). The exceeding part was HUF 2.4 million. This represented an overall tax burden of approximately 52% on the entirety of the severance, as opposed to the general personal income tax rate of 16% in the relevant period. The tax amount in question was never disbursed to the applicant, but was withheld by the employer and directly transferred to the tax authority. 8. Section 19 of Act no. XXIII of 1992 on the Status of Civil Servants provides as follows: “(1) A civil servant ... shall be entitled to severance if his service relationship is terminated by ordinary dismissal ... . (2) The amount of severance shall be, if the civil servant’s service has been at least: ... g) 20 years: eight months’ salary ...” 9. On 22 July 2010 Parliament adopted Act no. XC of 2010 on the Adoption and Modification of Certain Economic and Financial Laws (“the Act”). The Act, which was published in the Official Gazette on 13 August 2010, introduced inter alia a new tax on certain payments for employees of the public sector whose employment was terminated. Consequently, severance pay and other payments related to the termination of employment (such as compensation for unused leave of absence) exceeding HUF 2 million became subject to a 98% tax. However, income tax and social security contributions already paid could be deducted from the tax. Notwithstanding the limit of HUF 2 million, the statutory provisions on the sum of severance pay – in some cases amounting to twelve months’ remuneration – were not modified. The bill preceding the Act justified the tax with reference to public morals and the unfavourable budgetary situation of the country. 10. The Act entered into force on 1 October 2010; however, the tax was to be applied to the relevant revenues as from 1 January 2010. Simultaneously, the Constitution was also amended establishing retroactive tax liability in respect of the given tax year concerning “any remuneration against good morals” paid in the public sector. 11. The Act was challenged before the Constitutional Court within the framework of an abstract ex post facto control. This court found the relevant provisions unconstitutional in decision no. 184/2010. (X.28.) AB on 26 October 2010. According to the Constitutional Court, revenues earned solely on the basis of relevant statutory provisions (that is, the overwhelming majority of the revenues concerned by the disputed legislation) could not be regarded as being against good morals, and therefore not even the constitutional amendment justified a retroactive 98% tax. The Constitutional Court pointed out that it reviewed the rate or amount of taxes only exceptionally; however, it held that a pecuniary burden was unconstitutional if it was of a confiscatory nature or its extent was clearly exaggerated, i.e. was disproportionate and unjustified. Considering also the “fifty per cent rule” (Halbteilungsgrundsatz) set out by the German Federal Constitutional Court – according to which the overall tax load on assets must be limited to 50-60% of the yield on those assets – the court found that the 98% tax was excessive and punitive, yet it equally applied to severance pay earned in a fully untainted manner. The tax was levied on or deducted from the revenues concerned even if their morally doubtful origin could not be established. The Constitutional Court annulled the relevant provisions retroactively, that is, from the day of the Act’s entry into force. It relied on the above arguments, rather than on considerations about the protection of property, to which its scrutiny did not extend in the case. 12. The Constitutional Court’s decision contained in particular the following considerations: “5.2. ... [The Act] applies to ... payments originating in unconditional statutory entitlements and defined by objective criteria, that is, to those ... received from any source specified in the Act and exceeding the [relevant] amount .... The Act does not apply only to budgetary institutions but to other, State-owned employers as well. The use of private resources depends on the citizens’ relatively free choices and autonomous decisions. However, decisions concerning public funds are different. [The impugned legislation] relates to public funds, and determines – at least indirectly – the use of public resources. 5.3. ... Depending on the circumstances, [the] 98% tax may apply to payments which derive from the obligatory application of cogent legal provisions. ... In these cases, the special tax does not function as a regulatory instrument, given its inescapable factual basis. Nor does it aim to prevent abusive payments; its purpose is rather to levy almost the entire income [in question] for the central budget. ... The volume of public duties is considered unconstitutional if they have a confiscatory nature or amount to an evidently excessive rate of the kind which can be regarded as disproportionate and unjustified. ... The material case concerns a substantial punitive tax which also applies to payments which are received, by virtue of law and within the limits of the proper exercise of rights, upon the termination of employment in the public sector. The Act would be applied also in cases where no infringement of law can be established in connection with the payments concerning the termination of a legal relation. It would deprive the taxable persons of incomes originating in unconditional statutory entitlements. ... To increase budgetary revenues and secure a general and proportionate distribution of public burden is only the secondary and eventual purpose of the legislator when introducing such a tax. The direct purpose of the legislator in this case is to set a certain barrier on incomes by using the means of tax law. However, imposing a tax or other similar duty is no constitutional means to achieve such purpose. Several constitutional instruments are at the disposal of the legislator to accomplish its objective. It may reduce or even abolish some State allowances falling under the scope of the Act for the future, or transform the allocation system so that in the future it should not be possible to acquire further entitlements to allowances above a certain limit. Nonetheless, the discretion of the legislator only prevails in the framework of international and European community law.” 13. Upon a new bill introduced on the same day as the date of the Constitutional Court’s decision, on 16 November 2010 Parliament re-enacted the 98 % tax with certain modifications, according to which this tax applied from 1 January 2005; however, for the majority of those affected (excluding some senior officials) it only applied to revenues above HUF 3.5 million. The new legislation was published in the Official Gazette of 16 November and entered into force on 30 December 2010. 14. At the same time, Parliament again amended the Constitution, allowing retroactive taxation going back five years. Furthermore, the Constitutional Court’s powers were limited: the amended articles of the Constitution contained a restriction on the Constitutional Court’s right to review legislation on budgetary and tax issues. This restriction – which has also been maintained in the new Basic Law in force from 1 January 2012 – allows for constitutional review only in respect of violations of the right to life and human dignity, the protection of personal data, freedom of thought, conscience and religion, and the rights related to Hungarian citizenship. 15. Upon a petition for an abstract ex post facto control, on 6 May 2011 the Constitutional Court annulled – notwithstanding its limited powers – the five-year retroactive application of the 98% tax in decision no. 37/2011 (V.10.) AB, relying on the right to human dignity. However, the reasoning of the decision underlined that only the taxation of revenues gathered before the 2010 tax year constituted a violation of the right to human dignity. The Constitutional Court did not find unconstitutional as such the Act’s presumption that the relevant revenues infringed good morals; however, it ruled that this presumption should be susceptible to a legal challenge. In view of its limited jurisdiction, it did not consider the substantive aspects of the tax. 16. The Constitutional Court’s decision contained in particular the following considerations: “1. ... The Constitutional Court has held that the retroactive effect of the Act does not only apply to incomes earned contra bonos mores, but also to incomes originating in unconditional statutory entitlements. Payments of statutory amounts [which have not been abolished] cannot be regarded as being contra bonos mores. As regards the prospective provisions of the Act, the Constitutional Court has pointed out that the tax in issue is also applicable to payments received legally and within the limits of proper exercise of rights upon termination of employment in the public sector, and that it deprives the persons concerned of incomes originating in unconditional statutory entitlements. However, in this case the legislator interpreted the “special rate” as an entire withdrawal of the income, by which it overstepped its constitutional mandate and breached the amended constitutional rule of distributing public burden. 2. In pursuit of decision [no. 184/2010 (X.28.) AB], Parliament amended the rules on the Constitutional Court’s competence as well as the provision of the Basic Law determining the distribution of public burden, and re-enacted the special tax. ... 2.2. ... [The new legislation] contains no reference to the notion “contra bonos mores”, and allows for retroactive law-making with regard to the fifth tax year in arrears as well as for [any] imposition falling short of [the total] deprivation of income. ... 4.1.1. ... The legal relations falling under the scope of the special tax are typically regulated by the so-called “legal status” Acts [i.e. the Acts concerning the legal status of civil servants]. [In this context, the] salary is specified by the so-called “pay scale”, which is independent from the parties and obligatory for them. [Moreover,] the personal scope of the special tax also includes employers and employees, mainly those who belong under the Labour Code, who can significantly influence the amount of the allowance received upon the termination of employment. ... In this respect, the special tax is a tax whose purpose is not to generate [State] revenue. It is, in this connection, a regulatory instrument. ... Certain taxes may serve not only the purpose of increasing State revenue, but also function as regulatory instruments. Secondarily, but not insignificantly, [this] taxation can be also seen as part of the State’s economic policy. In this regard the legislature is afforded an exceptionally broad constitutional margin of discretion. ... 4.1.4. ... The special tax is not a general income tax applicable to all types of income, but rather a particular tax levied on non-repetitive, non-regular payments which relate to certain factual circumstances (i.e. the termination of a legal relation) and which exceed a certain limit. ... Such a tax with ex nunc effect cannot be considered to violate the right to protection of human dignity or to constitute an improper interference by the State with individual autonomy. Taking into account its base, the incomes not belonging in that base and their amounts, the special tax cannot be considered as completely dispossessing the tax subjects. ... The individual’s acquisition of the income subject to the special tax is restricted by a public-law limitation originating in that tax ... 4.2.4. ... In case of misuse of public resources, the limitation on payments might even have retroactive effect, [under] section 70/I (2) of the Constitution. The Constitutional Court has already emphasised in its decision [no. 184/2010 (X.28.) AB] that a retroactive special tax may be imposed on unfairly high payments, on certain types of severance pay or on compensation for significant periods of unused vacation time accumulated over years; the Act aiming at preventing abuses and endorsing the society’s sense of justice is not unconstitutional in itself, but must remain within the framework of the amended Constitution. 4.2.5. However, to impose tax on incomes [lawfully] acquired during the tax year ... cannot be considered as the implementation of the new paragraph (2) of section 70/I of the Constitution, but rather interference by a public authority with individual autonomy going to such lengths that cannot have constitutional justification, and therefore violates the taxpayers’ human dignity. ... The special tax does not provide for a fair and just assessment of individual circumstances; its retroactive rules apply to everyone [with two exceptions mentioned above] without differentiation. Nor does it take into account objective circumstances concerning a wide range of taxpayers, such as the economic crisis or emergency situations, which may disadvantageously influence the individuals’ circumstances. ...” 17. On 9 May 2011 Parliament again re-enacted the retroactive application of the 98% tax. The amendment to Act no. XC of 2010 was published in the Official Gazette on 13 May and entered into force on 14 May 2011. It provided that only relevant revenues earned after 1 January 2010 should be subject to the tax. The amended legislation did not contain any remedy available to those affected. 18. The Act, as in force as of 14 May 2011, provides (in sections 8-12/B) that the special tax rules are applicable to incomes received on 1 January 2010 or after. Incomes shall be subject to a 98% special tax where the private individual has worked at an economic operator or an organisation operating from public money, the payment is effected on account of the termination of the private individual’s work relationship, and the amount of the income exceeds HUF 3,5 million (in certain cases HUF 2 million). Incomes received between 1 January 2010 and 29 December 2010 were declared by private individuals by means of self-assessment, in tax returns submitted until 25 February or 10 May 2011 (depending on the taxpayer group). The tax was payable by the same dates. 19. Members of Parliament, vice mayors and Members of the European Parliament declared their income earned in 2010 and subject to the special tax in a different manner, in a separate tax return submitted until 31 July 2011. They paid the special tax until the same date. Persons subjected to the payment of special tax declared their taxable incomes earned between 1 January 2011 and 13 May 2011 by way of tax returns submitted until 25 February or 20 May 2012 (depending on the taxpayer group), and paid the tax by the same dates. In all other cases, the special tax is deducted by the payment issuer as withholding tax, and the deduction is indicated in the private individual’s tax return for the given revenue year. Any charges paid by or deducted from the private individual including, in particular, personal income tax or individual contributions shall be regarded as tax advances paid on the special tax. 20. The Charter of Fundamental Rights of the European Union provides as follows: “1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.” 21. The European Court of Justice held in Case C-499/08 Andersen v. Region Syddanmark, [2010] ECR I-09343 as follows: “29. The aim pursued by the severance allowance of protecting workers with many years of service in an undertaking and helping them to find new employment falls within the category of legitimate employment policy and labour market objectives provided for in Article 6(1) of Directive 2000/78.” 22. European Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (2009/384/EC) provides as follows: “1. Excessive risk-taking in the financial services industry and in particular in banks and investment firms has contributed to the failure of financial undertakings and to systemic problems in the Member States and globally.... 5. Creating appropriate incentives within the remuneration system itself should reduce the burden on risk management and increase the likelihood that these systems become effective. Therefore, there is a need to establish principles on sound remuneration policies.” | 1 |
train | 001-93115 | ENG | UKR | CHAMBER | 2,009 | CASE OF GAVRYLYAK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1962 and lives in Lviv. 5. The applicant owns 99% of shares in a limited liability company “Sykhiv” (“the Sykhiv company”) and is the sole owner of a private company “Sykhiv-MB” (“the Sykhiv-MB company”). 6. In February 1997 the “Ukrsotsbank” bank (“the U. bank”) granted the Sykhiv-MB company a sum in credit that had to be paid back within a year. The credit was secured by the company’s real estate. 7. In September 1997 the “Prominvestbank” (“the P. bank”), granted credit to the Sykhiv company, also with the latter’s property as security. The criminal proceedings against the applicant would later establish that this contract was provided on the basis of fictitious transactions and in fact was aimed at raising funds for repayment of the Sykhiv-MB company’s debt vis-à-vis the U. bank (see paragraph 11 below). 8. In October-November 1997, according to the applicant, the State Tax Administration and the police seized certain financial documents of both the Sykhiv and Sykhiv-MB companies. 9. The Sykhiv-MB company failed to pay back the debt owed to the U. bank in a timely manner. Therefore, in March 1998 the notary who had certified the pledge contract securing the credit issued a writ of execution for the sale of the pledged property. In May 1998 the Galytskyy District Court of Lviv (“the Galytskyy court”) ordered the seizure of that property, which in June 1998 was sold at a public auction. 10. On 18 March 1997 the Lychakivskyy District Department of the Ministry of the Interior in Lviv opened a criminal investigation against the applicant on suspicion of embezzlement of State (or collective) property. On 9 May 1997 the proceedings were discontinued as the action in question had ceased to be a criminal offence. 11. On 12 February 1999 the Lviv Regional Prosecutor opened a new criminal investigation against the applicant on a charge of financial fraud. He was suspected of having provided a bank with false information regarding his company’s financial situation in order to obtain credit, which had allegedly caused considerable damage to the bank. 12. The parties’ versions of events during this period varied. 13. According to the applicant, he was not aware of the investigation opened against him on 12 February 1999 until August 2003. He alleged, however, that in early May 2000 he had discovered from a letter of the Lviv Regional State Administration that a criminal investigation against him on a financial fraud charge had been opened on 24 February 1999 and subsequently discontinued on 15 October 1999. This was not disputed by the Government. 14. In May-July 2000 the applicant complained to the Lviv Town Prosecutor, Regional Prosecutor and Prosecutor General that the criminal investigation against him had been improper, and that he had not been informed of the grounds for its opening and closure, nor had been involved in any investigative activities. The outcome of the applicant’s complaints is unknown. 15. According to the Government (see also paragraph 13 above), following the opening of the criminal investigation on 12 February 1999, he was summoned several times by the investigating officer for questioning, but failed to appear. 16. According to the documents submitted by the Government, on 29 May 1999 the “criminal case against the applicant on a charge of fraud ... [was] ... stayed pending identification of the persons who had committed the crime”; in August-December 2000 the investigator issued three warrants to the police to ensure the applicant’s appearance for questioning as a witness; and on 12 March 2001 the investigator issued another warrant for the applicant’s obligatory appearance, but that time as an accused. 17. On 14 March 2001 the investigator found the applicant to be absconding and put him on a wanted list. 18. The Government submitted that the preliminary investigation was stayed four times pending establishment of the applicant’s whereabouts. The applicant maintained that he had been permanently staying at his ordinary residential address at which he had not received any summons. In support of that argument he referred to the fact that in May 2000 he had filed a number of complaints with the prosecution authorities, some of those in the course of his personal meetings with their officials. 19. On 12 June 2003 the Galytskyy court authorised a search of the applicant’s dwelling. 20. On 5 August 2003 the police apprehended the applicant and conducted a search in his flat. As a preventive measure pending trial, he was placed under an undertaking not to abscond. 21. On 17 November 2003 the applicant was notified about completion of the pre-trial investigation and was provided with access to the case file. 22. On 24 November 2003 he was officially indicted and his case file was sent to the court. 23. On 8 December 2003 the Galytskyy court held a preliminary hearing. On 19 December 2003 the next hearing was adjourned owing to the applicant’s and the witnesses’ failure to appear. 24. On 19 January 2004 the applicant sought the withdrawal of the bench dealing with his case. 25. On 21 January 2004 the hearing was adjourned pending a decision on that matter. The case was referred to the Sykhivskyy District Court of Lviv (“the Sykhivskyy court”), which held a preliminary hearing on 1 March 2004. Another eleven hearings then followed. There were some seven adjournments, including three because of failures on the part of the witnesses and the prosecutor to appear and one because the judge was ill. Another adjournment was caused by a motion of the applicant on the summoning of witnesses. 26. On 20 May 2005 the Sykhivskyy court ruled that the case be returned for additional investigation, having found that the one already conducted had been flawed and superficial. Both the prosecutor and the applicant appealed: the former held that the case file already contained conclusive evidence of the applicant’s guilt, while the applicant maintained that he was clearly innocent and that no further investigation was required. On 11 October 2005 the Lviv Regional Court of Appeal upheld the above ruling in the main. On 26 January 2006 the Supreme Court rejected as unsubstantiated the applicant’s request for leave to appeal in cassation. 27. According to the Government, in December 2005 and later on in April-September 2006, the investigation was stayed five times on account of the applicant’s illness. The applicant denied this. 28. In March 2006 the applicant complained to the Regional Prosecutor about a lack of any visible progress in the additional investigation ordered by the court. In response, he was informed that the investigating officer in charge had been disciplined for some procedural violations. 29. On 29 August 2006 a warrant was issued for seizure from the bank of certain classified financial documents relevant for the investigation, and in September 2006 the seizure took place. 30. On 30 August 2006 the investigator issued a ruling on finding the whereabouts of some witnesses. 31. On 19 October 2006 the applicant was notified about the completion of the pre-trial investigation and was provided with access to the case file. 32. On 30 October 2006 the case was referred to the Galytskyy court. 33. On 10 November 2006 the court held a preliminary hearing, for which the applicant and the plaintiff failed to appear. 34. The case was subsequently referred to the Sykhivskyy court, which held some ten hearings. According to the information provided by the Government, there were nine adjournments: three owing to the prosecutor’s failure to appear, three caused by the applicant’s motions, and three for other reasons. The applicant submitted that the prosecutor had failed to appear for hearings more than ten times. 35. On 17 April 2008 the applicant unsuccessfully sought the withdrawal of the bench of the Sykhivskyy court. 36. On 18 April 2008 he also unsuccessfully complained about the bench of the Regional Court of Appeal before the Supreme Court, alleging that it had been involved in a “robbery” against him. 37. On 22 April 2008 the Sykhivskyy court found the applicant guilty of financial fraud and sentenced him to two years’ imprisonment and to a one-year disqualification from holding certain administrative and commercial positions. He was, however, released from serving the sentence under the statute of limitations. The court also found unsubstantiated the prosecution’s statement about the applicant’s absconding during the pre-trial investigation, having noted that he had been addressing various authorities with complaints during that time and that there were thus no reasons to consider him to have been avoiding the investigation. 38. On 30 April 2008 the applicant challenged the verdict by a complaint, which he considered to be a cassation appeal, while the Court of Appeal regarded it as an ordinary appeal. As the applicant insisted that it was a cassation appeal to be considered by the Supreme Court, on 8 July 2008 the Court of Appeal ruled to leave it without consideration. 39. On 26 February 2009 the Supreme Court rejected the applicant’s request for leave to appeal in cassation as unsubstantiated. 40. In July 1998 the Sykhiv-MB company lodged a claim with the Lviv Regional Arbitration Court against the U. bank, seeking the return of part of its property allegedly in excess of the collected debt (see paragraph 9 above). 41. In August 2002 the company made some modifications to its claims. 42. On 26 September 2002 the Regional Commercial Court ruled to discontinue the proceedings, having found the modified claims to be beyond the scope of the commercial procedure. 43. On 14 October 2002 the Lviv Commercial Court of Appeal rejected the company’s request for leave to appeal on account of procedural flaws which had not been rectified. 44. On 14 January 2003 the Higher Commercial Court ruled that the company’s cassation appeal be left without consideration for having been lodged out of time. 45. On 10 April 2003 the Supreme Court rejected the company’s request for leave to appeal in cassation as unsubstantiated. 46. The Sykhiv-MB company complained to the Galytskyy court about the bailiff in charge of the auction at which its property had been sold. 47. On 4 March 1999 the court ruled to leave that complaint without consideration, having found that it had to be considered within a contentious civil procedure, which the company could initiate by lodging an appropriate claim. On 29 March 1999 the Lviv Regional Court upheld the above ruling. Apparently, the Sykhiv-MB company did not lodge such a claim. 48. On 26 July 2004 the applicant’s father died. In a judgment of 27 August 2004 the Rogatyn Town Court recognised the entitlement of the applicant’s brother D. to a house bequeathed to him by his – and the applicant’s – deceased father. 49. On 14 September 2004 the applicant requested the court to review the above judgment under newly discovered circumstances. 50. On 17 November 2004 the court found against the applicant. 51. On 8 February 2005 the Ivano-Frankivsk Regional Court of Appeal upheld the judgment. 52. The applicant lodged an appeal in cassation which apparently remains undecided. 53. The applicant complained several times to the police and prosecution authorities about arson attempts on his flat, threats to his and his family’s life by “state officials”, alleged misconduct of the police during his apprehension in August 2003, and the fact that he had been “robbed” by the court which had passed the judgment against him. | 1 |
train | 001-22690 | ENG | GBR | ADMISSIBILITY | 2,002 | ALLEN v. THE UNITED KINGDOM | 1 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Brian Roger Allen, is a United Kingdom national, who was born in 1948 and is currently serving a sentence of imprisonment in HM Prison Coldingley, Surrey. He is represented before the Court by Mr Newman and Mr Kessler, lawyers practising in London. The facts of the case, as submitted by the applicant, may be summarised as follows. On 9 May 1991, the applicant was served by the Inland Revenue with a Notice pursuant to section 20(1) of the Taxes Management Act 1970, which, inter alia, required the applicant to provide a certified statement of his assets and liabilities as at 31 January 1991. On 13 August 1991, when the applicant had failed to comply, he was summonsed to appear before the General Commissioners. The summons warned him that failure to comply with the notice rendered him liable to a penalty not exceeding 50 pounds sterling (GBP) pursuant to section 98(1) of the 1970 Act. (The penalty had in fact been increased to GBP 300). On 30 October 1991, the applicant still having failed to comply was presented with a “Hansard Warning.” This involved the reading out to him of the reply of the Chancellor of the Exchequer to a Parliamentary question on 18 October 1991. This outlined the practice of the Inland Revenue in cases of fraud indicating that it might accept a money settlement instead of instituting criminal proceedings and that its decision as to whether to accept a settlement or institute criminal proceedings would take into account whether the taxpayer had inter alia given full facilities for investigation into his affairs. On or about 3 April 1992, the applicant delivered to the Inland Revenue a schedule of his assets as at 31 January 1991 as required by the notice. The applicant was later charged with 13 counts of cheating the public revenue of income tax and corporation tax. Count 11 specified: “STATEMENT OF OFFENCE Cheating Her Majesty the Queen and the Commissioners of Inland Revenue, contrary to common law. PARTICULARS OF OFFENCE [The applicant] on or about 3 April 1992 with intent to defraud... cheated Her Majesty the Queen and the Commissioners of Inland Revenue of public revenue, namely, income tax, by delivering... to an Inspector of Taxes a schedule of assets as at 31 January 1991 in respect of his assets and the assets of his minor children which was false, misleading and deceptive in that it omitted to disclose divers assets which were owned by him. Particulars of the omitted assets are – his beneficial interest in shares issued by off-shore companies, his beneficial interest in properties held in the names of off-shore companies and his beneficial interest in bank accounts held in the United Kingdom and in Jersey in the names of off-shore companies.” The applicant was convicted of all counts on 19 February 1998. On 20 February 1998, he was sentenced to 13 concurrent terms of seven years’ imprisonment and a confiscation order made in the sum of 3,137,165 pounds sterling (GBP). This sum was calculated as being the lesser of the two sums, namely the amount of benefit from the offences (GBP 4 million) and the applicant’s total realisable assets (GBP 3,137,165). On 7 July 1999, the Court of Appeal dismissed his appeal against conviction and on 11 October 1999, dismissed his appeal against sentence. In relation to the applicant’s argument that he remained liable to pay the outstanding unpaid tax, it noted the undertaking given by the Inland Revenue on 20 February 1998 that it would not pursue the applicant for pre-existing tax liabilities out of any income which he might acquire in future. On 10 October 2000, the House of Lords, reversing an earlier refusal, allowed his petition for leave to appeal from the Court of Appeal on a number of points and also permitted him to raise a new point relating to Article 6 of the Convention as concerned his conviction on count 11. On 11 October 2001, the House of Lords dismissed his appeal. Lord Hutton giving judgment noted the applicant’s arguments under the Convention in which he relied in particular upon the cases of Funke v. France and Saunders v. the United Kingdom, that the prosecution case against him breached his right to a fair trial as he had been compelled under threat of penalty to incriminate himself by providing the schedule of assets and found as follows: “... the present case is one which relates to the obligation of a citizen to pay taxes and to his duty not to cheat the Revenue. It is self evident that payment of taxes fixed by the legislature is essential for the functioning of any democratic state. It is also self-evident that to ensure the due payment of taxes the State must have power to require its citizens to inform it of the amount of their annual income and to have sanctions available to enforce the provision of that information ...” He proceeded to review the tax legislation which required taxpayers to make tax returns. “It is clearly permissible for a State to enact such provisions and there could be no substance in an argument that there is a violation of Article 6 § 1 if the revenue prosecuted a citizen for cheating the revenue by furnishing a standard tax return containing false information. Similarly, in the present case, viewed against that background that the State, for the purpose of collecting tax, is entitled to require a citizen to inform it of his income and to enforce penalties for failure to do so, the section 20(1) notice requiring information cannot constitute a violation of the right against self-incrimination. The present case is therefore clearly distinguishable from Saunders on that ground ...” | 0 |
train | 001-59081 | ENG | TUR | CHAMBER | 2,000 | CASE OF GÜL v. TURKEY | 3 | Preliminary objection rejected (non-exhaustion);Violation of Art. 2 in respect of death of applicant's son;Violation of Art. 2 in respect of failure to carry out effective investigation;Violation of Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 10. The facts of the case, particularly concerning events on 8 March 1993 when Mehmet Gül, the applicant’s son, was shot dead by police officers firing through the door of his apartment during a search operation in Bozova, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara from 15 to 19 February 1999. These included the applicant; Filiz Gül, his daughter-in-law and widow of his deceased son; Mustafa Gül, his son; Mustafa Gül, the applicant’s nephew; two neighbours, Mustafa Hakkı Ocakoğlu and Ömer Kaya; Erhan Güder, the Bozova district gendarme commander, who set up the operation on 8 March 1993; Fahrettin İlgun, leader of the special operations team which opened fire; Murat Sönmezyurt, Enis Ünlü, Lüfti Demirtürkoğlu, Recep Doğan and Şener Karamurat, members of the team; Mehmet Meral, Bozova police superintendant, and police officers Mehmet Toprak, Şahin Yakut, Mehmet Telçi and Ömer Avcı, who attended the scene of the incident; Kamil Çetinkaya and Fikret Yılmaz, Bozova public prosecutors involved in the investigation; Ali Rıza Uytun, Şanlıurfa public prosecutor, who attended the autopsy; Ömer Koçaslan, Şanliurfa public prosecutor involved in the criminal trial of the three police officers who opened fire; Güven Sağban, gendarme lieutenant who gave an expert opinion to the court in the criminal trial; Güner Kalkendelen, a police operations expert who gave an opinion in the trial; and Teyfik Ziayeddin Akbulut, the provincial governor of Şanlıurfa, who authorised the operation. 11. The Commission’s findings of fact are set out in its report of 27 October 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). 12. Bozova was a small town, of about 15-16,000 people, located about 36 km from Şanlıurfa in the south-east region of Turkey. It was close to the Atatürk dam which was perceived as a possible target for the PKK (the Kurdish Workers’ Party). A company of commandos was stationed there. There was no evidence that PKK activity was particularly prevalent in Bozova itself or that there were any significant security problems. 13. The applicant, a business-man and an official in the local branch of the True Path Party, was well-known in Bozova and a respected citizen, unsuspected of any illicit activities. His son Mehmet Gül was less well-known, running a petrol station for him. There was no evidence prior to the events of 7-8 March 1993 that he was suspected of involvement with the PKK. 14. On 7 March 1993, Major Güder, the provincial gendarme commander, received a telephone call from an informant, naming three to four terrorists and indicating the addresses in Bozova where they could be found. Major Güder informed the provincial governor Ziyaeddin Akbulut at about 19.00 to 19.30 hours. The governor authorised the search operation proposed by Major Güder to locate the terrorists and the allocation of personnel from Şanlıurfa to assist, who were to be chosen by the Şanlıurfa police chief Mustafa Cebe. 15. A meeting was held on the night of 7 March 1993, at about 20.30 hours, at the district gendarme headquarters to plan the search operation, attended by the district governor, Major Güder the district gendarme commander, the deputy police chief of Bozova (Fatih Güner) and possibly a number of other local police officers. The information given at the meeting did not clearly emerge in the evidence before the Commission - the names and code names of the terrorists who had been seen were mentioned and a number of addresses. As a large number of addresses were searched during the night, the search was wider than the addresses originally mentioned by the informant. The basis on which those addresses were chosen was not established. Mehmet Gül had not been named as one of the terrorists by the informant and the reason why his apartment was to be searched was not provided in any of the written or oral evidence. 16. Between 22.00 and 23.00 hours, a special operations team of twelve officers, assigned by the Şanlıurfa police chief, arrived in Bozova. The acting team leader was Fahrettin İlgun. The team members were briefed by their leader. Their recollection of what they were told varied considerably. It appeared however that they had been given a strong indication that PKK terrorists would be likely to be present at the address. No instructions were given to them about the use of their weapons or the tactics to be used to gain entry to the apartment if there was resistance. No details were given concerning the other people who lived in the Gül apartment block. The Commission found insufficient evidence to support the allegation of the applicant that the special operations team was assigned and instructed for the purpose of carrying out a “point operation”, namely, an operation in which it was planned to use lethal force against an identified target in an extra-judicial execution-type raid. The Commission commented that the lack of contemporaneous documentary evidence concerning the planning of the operation hampered its assessment of this aspect of the case. 17. The house searches had begun before the arrival of the special operations team. A search report indicated that by 23.20 hours eight searches had been carried out. The house of Mustafa Gül, the applicant’s nephew, who lived 150 metres from the applicant’s apartment block was searched between 22.00 hours and 23.00 hours by local police officers, and proceeded in a polite, unaggressive manner. Nothing was found which supported the information given by the informant earlier in the day. 18. Shortly before 01.00 hours, the special operations team arrived at the applicant’s apartment block with the intention of carrying out a search of Mehmet Gül’s flat. 19. The Gül apartment block had streets on three sides and a garden on the fourth. On the ground floor, there were commercial premises; on the first floor, Mustafa Gül and his family lived in a flat on the left-hand side while Mehmet Gül and his family lived in a flat on the right-hand side. There were stairs leading up to the first floor from both the left and right corners of the side of the house facing the garden. The applicant occupied the flat on the second floor which was reached by a flight of stairs, which descended onto the balcony outside Mehmet Gül’s apartment. There was a partition separating the balcony into two areas in front of the two flats respectively. The stairs on each level were open, with railings. The area outside the flat was described as a balcony but there were differing descriptions of its dimensions and, particularly, whether it was a closed or open space. Videotapes provided by the parties did not elucidate the matter as there had been extensive alterations to the building since the events in issue. The videotapes did show that the stairwell to the second floor was located in the area in front of Mehmet Gül’s front door. 20. The entrance to Mehmet Gül’s flat was an iron door, which was secured by a lock, which was turned by a key, and also by a bolt. The door opened inwards. Outside, on the left of the door, was the kitchen window. Inside, on entering the flat, a hall ran straight ahead 5 metres to the sitting room. Leading from left of the hallway was the kitchen, then a WC and bathroom. On the right of the corridor, there was a bedroom where the children slept, then a spare bedroom and furthest from the entrance the bedroom where Mehmet Gül and his wife slept. 21. As the search operation at the flat commenced, two police officers, Meral and Avcı, were in position outside the house, in the street where they could see who entered and left the building. Six of the special operation team ensured the security of the house - Cahıt İnal, Sadık Ergüler, Hasan Söylemez, Bülent Torent, Murat Avan and Nurettin Yıldız. None of these men were in a position in which they had a view of the first floor of the house. Six of the special operations officers (Fahrettin İlgün, the team leader, Murat Sönmezyurt, Recep Doğan, Enis Ünlü, Lüfti Demirtürkoğlu, Şener Karamurat) went up the stairs to the first floor. The positions of these officers were obscure. Their oral and written evidence was in many instances inconsistent. It appeared that Fahrettin İlgun, in position near the door of Mustafa Gül’s flat was not able to see clearly what occurred in front of Mehmet Gül’s flat. Murat Sönmezyurt was either on the stairs leading to the second floor or the ground floor and also unable to see what occurred. Şener Karamurat claimed that he was watching up the staircase towards a window and did not see anything, as he was behind an iron partition to the right of the door. There was however general agreement that Enis Ünlü was on the left side of the door to Mehmet Gül’s flat, while Recep Doğan and Lüfti Demirtürkoğlu were nearby, providing him with cover. 22. Many of the details surrounding what occurred next were in dispute. The Commission found considerable difficulties attaching to the evidence of the three special team officers at the door, who alleged that, after Enis Ünlü had knocked on the door giving loud warnings to open up, the door had swung abruptly open, Mehmet Gül had fired a shot through the door with a pistol and closed the door again. They had then opened fire on the door with a view to forcing it open, accidentally inflicting multiple wounds on Mehmet Gül who was behind the door. The Commission found their testimony lacking in reliability and credibility and that it was in some respects incredible. Their account gave an impression of being embroidered to present as exculpatory a picture as possible. On the other hand, it found the evidence of Filiz Gül and Mustafa Gül, who were immediate witnesses of events, to be on the whole consistent, credible and convincing. Their accounts were in many respects supported by the testimony of the applicant and the other non-official witnesses. 23. On the basis of its assessment of the evidence, the Commission found that there was no prolonged knocking on the door or any verbal warning given to those inside the flat. Mehmet Gül came to the door in answer to a light knocking. It was highly probable that the officers outside started firing through the door, as Mehmet Gül was in the process of opening the lock. It was possible that the click of the key turning sounded like a gun being cocked and that this triggered their reaction. The intensity of the firing destroyed fingers on Mehmet Gül’s right hand and inflicted numerous wounds. As he turned away from the door, a bullet struck him in the back inflicting a fatal injury. He staggered back up the corridor, leaving blood stains against the wall. His wife, Filiz Gül, collided with him in the doorway of the bedroom and he collapsed on a sofa bed in that room. Meanwhile, in the flat next door, Mustafa Gül had heard the shooting and after opening his door briefly, he realised that it was the police and came out. He was forced onto the ground with a gun to his head. When the applicant came downstairs, he saw Mustafa on the ground held at gunpoint by a security officer. He also saw that the lights were out and switched the mains switch back on. The applicant and Mustafa participated in the efforts to open the door by physical force as the lock had jammed under the force of the bullets and Filiz Gül had been unable to open it from the inside. When the door was kicked open, the applicant and Mustafa entered the flat to find his injured son at the same time as, or shortly after, police officers entered. 24. The applicant and other members of the family carried the severely injured Mehmet Gül downstairs and carried him to the local health centre in the applicant’s car. There, he was transferred to an ambulance which took him to Şanlıurfa hospital. He died however prior to his arrival. His body was taken to the morgue. 25. Meanwhile, a search was carried out at Mehmet Gül’s flat. An incident report, and numerous statements of police officers, recorded that two guns were found in the flat - a Browning cocked with a bullet in the barrel and a French 10 rounder - and that a 9 mm empty cartridge was found in the corridor near the front door. These documents did not identify which of the signatories in fact witnessed the finding of these objects. The oral testimonies of the officers were confused and contradictory. No one was able to say who had found the French 10 rounder as alleged in a wardrobe. While Telçi claimed to have found the Browning, he was unable to recall whether it was bloodstained or not. There was no evidence that any precautions were taken in handling the guns with a view to preserving any forensic evidence. The finding of the guns was not properly recorded. They were not delivered to the public prosecutor until 12 March, three days later. The photograph taken of the guns shows them sitting on a desk, either at the police station or the prosecutor’s office. The Commission did not find it established that the guns were found in the flat as alleged by the officers. 26. The special operations team returned to Şanlıurfa after the search. They were not required to hand in their guns for examination or to account for the bullets expended during the operation. 27. The body of Mehmet Gül was examined by a doctor at Şanlıurfa hospital at about 02.00 hours in the presence of the Şanlıurfa public prosecutor Ali Rıza Uytun. The report which was drawn up was brief. It did not number the injuries on the body, giving only a general reference to grazes, cuts and erosions. No sketch was made of the location of injuries nor were any photographs taken. His family - Mustafa Gül the son and Mustafa Gül the nephew - described the body as showing numerous bullet injuries, from the waist downwards. There was no full autopsy carried out, nor any X-rays taken. The public prosecutor Uytun considered that this was unnecessary as the cause of death - the bullet injury to the right kidney - was clear. He considered it was evident from the body that there were no bullets or fragments of bullets inside and that it was not necessary to give details of the grazes as these did not contribute to the death. The Commission found the report to be seriously deficient - it failed to describe the extent of Mehmet Gül’s injuries and to provide any useful medical or forensic detail for the purpose of assessing the proportionality of the force used by the security forces, the necessity for which evidence should have been apparent to the public prosecutor in the case of the killing of an individual by police officers. 28. In addition to the lack of proper recording of the finding of the guns and cartridge at the scene of the incident (i.e. no photographs, sketch map or record of the officers who found them), the procedures at the scene were deficient in a number of other respects. Although the public prosecutor noted 50-55 bullet holes in the door, only 30 cartridges were found. Though the Browning was tested to see if it had been recently fired, no testing was carried out to establish that it had been fired by Mehmet Gül, i.e. by way of fingerprinting or analysis of blood traces. If the gun had been used by Mehmet Gül as alleged, there was a high probability that blood traces would have been present (he was right handed, his right hand was shattered by bullets and blood smears were evident throughout the apartment where he had come into contact with walls and furniture). The photograph of the guns showed no visible stains however. Nor were Mehmet Gül’s hands tested for traces of firing. Though it was alleged by prosecutor Uytun that this test was pointless, this assertion did not accord with the practices adopted in other Turkish cases examined by the Commission and utilised by police forces in other member States. The explanations given variously for not employing these tests (shortness of time, the desire to avoid upsetting the family) were not convincing. While the body was buried rapidly, there was nothing to stop the prosecutor delaying the release of the body to the relatives until the necessary tests had been carried out. 29. Though it was alleged that Mehmet Gül had fired a shot at the officers, no steps appeared to have been taken to check for a strike mark outside the flat or to find the bullet. The evidence before the Commission including the videotapes indicated that the staircase to the second floor was at the front of the balcony and potentially in the line of fire depending on the angle. The Commission was not convinced by the explanation that, assuming the bullet was fired into an open space over the balcony or stairway, it was not worth searching the garden for it. The fact that the gathering of forensic evidence was frequently a time-consuming and painstaking task did not relieve the authorities of the responsibility to make efforts to locate and preserve such evidence. 30. As regarded the gathering of evidence from witnesses, the public prosecutor in Bozova took statements from the applicant, family members and neighbours shortly after the events. They maintained that there had been no warnings given and that Mehmet Gül had not fired any gun at the officers. However, no statements were taken from any of the police officers involved until 8 May 1993, two months later. No statements were taken from any gendarme officers involved, nor the other persons who might have been involved in the planning of the operation. No enquiries were made of the special operations team department as to the weapons used or number of bullets expended on the operation. 31. On 17 March 1993, the Bozova public prosecutor issued a decision of lack of jurisdiction, which indicated the applicant as complainant, the members of the special operations team as the defendants and the offence as unintentional homicide. It stated that based on intelligence that members of the PKK could be located in certain residences in Bozova, a number of searches were carried out at about 20.30 hours. At 00.01 hours special team officers intended to carry out a search at Mehmet Gül’s house. After giving warning, “Police. Open the door”, they fired at the metal door to gain entry. At that moment, Mehmet Gül was behind the door. He died from the wounds received. During the search of his house, there was found an illegal 7.65 mm French pistol, a Belgian Browning pistol with its hammer drawn back and a bullet in the barrel, 13 bullets and a cartridge. The applicant, father of the deceased, had lodged a criminal complaint. However, as it appeared that the defendants were special team officers and the offence carried out while they were performing their duties, the public prosecutor decided that he lacked jurisdiction and sent the file to the Provincial Governor for the necessary action. 32. On 29 March 1993, the Şanlıurfa provincial governor requested the appointment of an inspector to carry out an investigation into the incident on behalf of the provincial administrative council. A police inspector, Salih Dost, was appointed. He took statements from the applicant and other family members, the neighbours Omer Kaya and Mustafa Ocakoğlu, the local police officers involved in the search operations that night and all the members of the special operations team. All the statements, save that of Mehmet Telci taken on 11 August 1993, were taken from 8 to 10 May 1993. 33. On 3 September 1993, the inspector issued his report. It concluded that the officers had not fired to kill but had shown lack of care, which could justify charges being brought against them for causing death from lack of care and precautions, and recommended a disciplinary sanction of 16 months’ suspension. However, a decision not to prosecute was endorsed by the provincial administrative council on 21 October 1993 on the basis that the officers had not intended to kill anyone, that they had only fired after a shot had been fired at them and that they had given a warning. This decision was not communicated to the applicant. 34. On 18 April 1995, some sixteen months later, the Supreme Administrative Court quashed the decision on 18 April 1995 and ordered the trial of the three officers who had fired at the door – Enis Ünlü, Recep Doğan, Lüfti Demirtürkoğlu. 35. The three officers were tried for causing death by lack of attention and due precaution (Art. 455 of the TPC). They were not represented by a lawyer during the proceedings, which lasted from 5 July 1995 to 9 September 1996 before Şanlıurfa Criminal Court No. 2. During the trial, the three officers appeared. They maintained their written statements, and only Recep Doğan made any additional comments. No other witnesses were heard. 36. On 26 February 1996, the court appointed a gendarme lieutenant Güven Sağban as expert. He submitted a report dated 28 February 1996. This stated that from the file it was understood that the officers had called out warnings at the house, that the deceased had come out, fired one shot and shut the door again and that the officers fired at the lock to open it. The deceased, in the line of fire, was wounded and died. A subsequent search revealed the gun which had been fired and another, both unlicensed. It was noted that the complainants and other witnesses essentially disputed the statements of the security officers. It concluded that the defendants were members of a special operations team and had received serious and strict security training. During the incident and operation, conducted on the basis of intelligence information, the deceased fired a shot and the defendants were therefore “preconditioned”. They were primarily concerned to open the door and also to protect themselves and their colleagues. For those reasons, they fired at the lock. The photographs indicated that the defendants’ firing was concentrated round the lock to break it. Also the deceased’s firing was intended to attack more than to defend. This indicated that although the defendants showed the care and attention expected from them, the incident occurred. No fault or ill-intention could be attributed to them. 37. On 3 April 1996, the court decided to send the file to the Ankara Criminal Court for expert lecturers from the Ankara Police Academy to be selected to prepare a detailed report on the use of weapons and the intention behind the use of weapons. 38. On 16 July 1996, three experts (Chief Inspectors Güner Kalkendelen and Yılmaz Yaşar and Dr Vahit Bicak, a research fellow at the police academy) issued a report. This stated that they had been requested to give their opinion on the fault, if any, of each accused individually based on the court file. It listed as fact that the security forces acting on intelligence about the presence of PKK members surrounded Mehmet Gül’s house at about 24.00 hours on 7 March 1993. The officers knocked on the door, warning, “Police. Open the door”. The door was slightly opened from the inside, a gun was fired and the door closed. The officers fired aiming at the lock to enter. The deceased who was behind the door was injured. The opinion of gendarme officer Adnan Kulaksiz stated that the 9 mm hand gun found was set to fire and recently used. The report analysis stated that it was believed that the security forces opened fire after the deceased fired due to the stress caused by the situation in the south-east and the psychological tension of the operation. It was significant that they did not shoot wildly but concentrated on the lock of the door. The fatal bullets were in the kidney and intestinal area, the same level as the lock, showing further that there was no intention to injure or kill. It concluded that the deceased was injured by chance and that the accused could not be charged with negligent conduct. 39. None of the experts visited the scene or requested any further information or evidence but based themselves on the statements in the file. 40. On 9 December 1996, the court referring to the expert report of 16 July 1996 concluded that the defendants were not at fault and acquitted the three officers. The Commission noted that there was no indication that in any of the proceedings consideration had been given as to whether the accounts of the family were in any respect accurate or on what basis the version of events given by the security forces was to be preferred. It is not apparent that the applicant was informed of the criminal proceedings or afforded the opportunity to join as a party. 41. The applicant’s son Mehmet Gül was killed during an armed operation intended to effect the arrest of PKK terrorists. That night, having been informed that some PKK terrorists were being sheltered in some houses, including the applicant’s house, security forces arrived at the house at about 01.00 hours to arrest the terrorists believed to be inside. They knocked on the door and asked the occupants to open the door. The door suddenly opened, a gunshot was heard and the door immediately closed again. Upon this, the officers fired three or four shots towards the lock of the door. After these shots, a woman’s voice was heard asking for help. When she tried to open the door, she told those outside that the lock had been jammed. Since it was understood that the matter was urgent, the officers told her to move aside and fired directly on the lock. Then they opened the door, carried out a rough search and let in the applicant. The security forces assisted the applicant and his son Mustafa in carrying the injured Mehmet Gül to a police car, which took him to the local health centre. 42. Two guns were later found in Mehmet Gül’s apartment, as well as a 9 mm cartridge near the door. 43. The death of Mehmet Gül was caused accidentally. The three officers who shot at the door were acquitted by the criminal court on the basis that they had not acted negligently. 44. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows. 45. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of 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 or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 46. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. 47. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 48. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 45 above) or with the offender’s superior. 49. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 50. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review ... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 51. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 50 above), provides: “No criminal, financial or legal liability may be asserted against … the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 52. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations). | 1 |
train | 001-75219 | ENG | TUR | ADMISSIBILITY | 2,006 | HIZLI v. TURKEY | 4 | Inadmissible | null | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M.A. Kırdök, Mr Özcan Kılıç and Mr Hasan Kemal Elban, lawyers practising in Istanbul. The facts of the cases, as submitted by the applicants, may be summarised as follows. Until October 1994 the applicant lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık, complaining about the burning down of his house by security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 22 March 2000 and 16 August 2001 the applicant filed petitions with the Governor’s office in Istanbul for submission to the Governor’s office in Tunceli and requested permission to return to his hamlet. He received no response to his petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli, where he owns property. It is to be noted that the title deeds to the property that the applicant used in Kızılveren bear his father’s name. In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On an unspecified date the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until 1994 the applicants lived in the Karataş village, in the Ovacık district in Tunceli, where they own property. It is to be noted that the title deeds to the property that the applicants used in Karataş bear the names of Hüseyin Lazım and Hüseyin Levazım. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. Hüseyin Lazım and Nazım Lazım lodged petitions with the Public Prosecutor’s office in Ovacık on 6 October 1994 and on 10 October 1994 respectively complaining about the burning down of their house by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 17 October 1994 Ağa Lazım filed a petition with the District Governor’s office requesting alternative residence. He received no response to his petition. On an unspecified date Ağa Lazım filed a petition with the Prime Minister’s office requesting permission to return to his village. On 4 March 1999 he filed a further petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 5 April 1999 the Prime Minister’s office sent the following reply to him: “Your petition containing a request of permission to return to your village has been transmitted to the Ministry of Interior for examination.” On 14 June 1999 the District Governor’s office in Ovacık sent the following reply to Ağa Lazım: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On 17 September 1999 Ağa Lazım, Ahmet Lazım and Hüseyin Lazım lodged a petition with the Ministry of the Interior requesting alternative residence and expropriation of their property in Karataş. On 12 November 1999 the Governor’s office in Tunceli refused the applicants’ requests stating: “When the villages are secure and suitable for residence, you can return and reside in your village. There is no legal ground for expropriation of your property.” On an unspecified date Ağa Lazım filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed a further petition with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. Until 1994 the applicants lived in the Karataş village, in the Ovacık district in Tunceli, where they own property. It is to be noted that another person, Munzur Kol, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On 6 October 1994 Zabıt Kul lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On an unspecified date the Ovacık Public Prosecutor’s office sent the case-file to the District Governor’s office in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 Yusuf Kul filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following response to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 6 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 the applicant filed a petition with the Governor’s office in Istanbul to be referred to the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district in Tunceli, where they own property. It is to be noted that the title deeds to the property that the applicants used in Karataş bear the names of Ali Boztaş, Selvi Boztaş and Şemsi Boztaş. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. Ali Boztaş, Alettin Boztaş and Mazlum Boztaş lodged petitions with the Public Prosecutor’s office in Ovacık on 6 October 1994, 7 October 1994 and 10 October 1994 respectively complaining about the burning down of their houses by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued decisions of non-jurisdiction and sent the case-files to the Ovacık Administrative Council. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 Mazlum Boztaş filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following response to him: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district in Tunceli, where they own property. It is to be noted that another person, Bıra Kırmızıtaş, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. Sabri Kırmızıtaş and Müslüm Kırmızıtaş’ wife lodged petitions with the Public Prosecutor’s office in Ovacık on 6 October 1994 and on 13 October 1994 respectively complaining about the burning down of their house by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On an unspecified date Sabri Kırmızıtaş and Teslim Kırmızıtaş filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. On 14 February 2000 Nazmi Kırmızıtaş, Müslüm Kırmızıtaş and Nihat Kırmızıtaş filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants: “Your petition containing a request of permission to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed further petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district, in Tunceli, where they own property. It is to be noted that other persons with the family name “Kırmızıtaş” appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On 6 October 1994 Halit Kırmızıtaş, lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On an unspecified date, the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Ovacik Administrative Council decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 Halit Kırmızıtaş a filed petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district in Tunceli, where she owns property. It is to be noted that the title deeds to the property that the applicant used in Karataş bear her father’s name In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and her family then moved to Istanbul where they currently live. On 7 September 1999 the applicant filed a petition with the Ministry of Interior requesting permission to return to her village. On 12 November 1999 the Governor’s office in Tunceli sent the following reply to the applicant: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On an unspecified date, the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to her village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 27 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to her village. She received no response to her petition within the 60-day period prescribed by Law no. 2577. Until 1994 the applicants lived in the Karataş village, in the Ovacık district in Tunceli, where they own property. It is to be noted that İbrahim Karataş and another person, Bıra Karataş, appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. İbrahim Karataş and Elif Karataş’s husband, Bıra Karataş, lodged petitions with the Public Prosecutor’s office on 6 October 1994 and on 10 October 1994 in Ovacık respectively complaining about the burning down of their house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicants’ allegations as the perpetrators of the alleged acts could not be identified. On 8 March 1999 Cengiz Karataş and İbrahim Karataş filed petitions with the District Governor’s office in Ovacık requesting permission to return to their village. On 14 June 1999 the District Governor’s office in Ovacık sent the following reply to the applicants: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On 7 September 1999 İbrahim Karataş filed a petition with the Ministry of Interior requesting permission to return to his village. On 18 October 1999 the District Governor’s office in Ovacık sent the following reply to him: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On 13 August 2001 Nurettin Karataş, Elif Karataş and Cengiz Karataş filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. On 24 August 2001 and 27 August 2001 Halil Karataş and İbrahim Karataş respectively filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district, in Tunceli, where they own property. It is to be noted that the title deeds of the property submitted to the Court bear the name of “Hüseyin Elmas”, the husband of Saher Elmas, the father of Kerem Elmas and the father-in-law of Nuray Elmas. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On 6 October 1994 Nuray Elmas and Hüseyin Elmas lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their house by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 Saher Elmas and Nuray Elmas filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicants: “Your petition containing a request of permission to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 10 August 2001 Nuray Elmas filed a further petition with the Governor’s office in Tunceli requesting permission to return to her village. She received no response to her petition within the 60-day period prescribed by Law no. 2577. On 13 August 2001 Saher Elmas and Kerem Elmas filed further petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that other person, Hamo Elmas, appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 6 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On an unspecified date the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Ovacik Administrative Council decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 13 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October1994 the applicant lived in the Karataş village, in the Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 10 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district in Tunceli, where he owns property. It is to be noted that the applicant did not submit any certificate to the Court attesting his ownership of the property in Karataş. On 14 February 2000 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following response to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 14 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to their petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that other persons, Mehmet Boztaş and Gazi Boztaş, appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 6 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 25 October 1995 the Administrative Council sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following response to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 10 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district, in Tunceli, where they own property. It is to be noted that Mahmut Bozoğlu appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On 6 October 1994 Seydo Bozoğlu and Aziz Bozoğlu lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On 10 October 1994 Mahmut Bozoğlu, lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council sent letters to the applicants stating that there would not be an investigation into their allegations as the perpetrators of the alleged acts could not be identified. On 14 February 2000 the Yakup Bozoğlu and Seydo Bozoğlu filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following response to the applicants: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” On 13 August 2001 the applicants filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district, in Tunceli, where they own property. It is to be noted that other persons with the family name “Aktaş” appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On 4 November 1994 Sait Aktaş filed a petition with the District Governor’s office in Ovacık requesting an alternative residence. He received no response to his petition. On 10 October 1994 Hüseyin Aktaş lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 17 September 1999 Sait Aktaş filed petitions with the District Governor’s office in Ovacık and the Ministry of Interior requesting alternative residence and expropriation of his property in Karataş. On 20 October 1999 the District Governor’s office in Ovacık sent the following reply to the applicant: “... The struggle against terrorism in our region has been continuing intensively and positive result is being achieved. Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor’s office when it is possible to return to the villages...” On 21 October 1999 the Governor’s office in Tunceli refused Sait Aktaş’ request stating: “When the villages are secure and suitable for residence, you can return and reside in your village. There is no legal ground for expropriation of your property.” On an unspecified date Sait Aktaş filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. On 11 April 2000 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to the Village and Rehabilitation Project.” Hüseyin Aktaş and Sait Aktaş filed petitions with the Governor’s office in Tunceli on 13 and 24 August 2001 respectively requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district, in Tunceli. It is to be noted that the applicant submitted two documents dated 1972 and 1980, certifying the ownership of property. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 6 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council sent a letter to the applicant stating that there would not be an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 13 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that the title deeds to the property that applicant used in Karataş bear his father’s name. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 13 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Karataş village, in the Ovacık district, in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 17 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicants lived in the Karataş village, in the Ovacık district, in Tunceli, where they own property. It is to be noted that Cafer Ağgül appears to be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Karataş on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. Cafer and Hüseyin Ağgül, filed petitions with the Governor’s office in Tunceli on 13 and 15 August 2001 respectively, requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. Until October1994 the applicant lived in the Yazıören village, in the Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Ovacık where they currently live. On 10 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by the security forces. On 9 December 1994 the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On an unspecified date the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October1994 the applicant lived in Elgazi village, in Ovacık district in Tunceli, where she owns property. In October 1994 security forces forcibly evacuated Elgazi on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and her family then moved to Ovacık where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complained about the burning down of her house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 14 August 2001 the applicant applied to the State Emergency Department of the District Governor’s office in Ovacık and requested permission to return to her village. She was told by a police officer that her petition would not be registered and that she would not be replied. The applicant and four other witnesses drafted a note on this statement. This note is attached to the applicant’s application to the Court. The applicant did not submit any official document to the Court certifying the statement made by the police officer in question. On 15 August 2001 the applicant filed a further petition with the Governor’s office in Tunceli requesting permission to return to her village. She received no response to her petitions within the 60-day period prescribed by Law no. 2577. Until October1994 the applicant lived in Tepsili village, in Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Tepsili on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 20 August 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October1994 the applicant lived in the Ulukale village, in the Çemişgezek district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Ulukale on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to the Toratlı village in Çemişgezek where they currently live. The applicant filed petitions with the District Governor’s office in Çemişgezek and the Prime Minister’s office on 5 October 2001 and on 15 October 2001 respectively requesting permission to return to his village and compensation for the damages he suffered. On 16 October 2001 the Prime Minister’s office informed the applicant that his petition had been transmitted to the Ministry of Interior. On 13 November 2001 the District Governor’s office in Çemişgezek sent a letter to the applicant stating that the applicant had left his property voluntarily on account of disturbances in the region and had been granted financial aid by the District Collaboration and Solidarity Foundation (İlçe Sosyal Yardımlaşma ve Dayanışma Vakfı). Until October1994 the applicant lived in Kızılveren, a hamlet of the Hanuşağı village in the district of Ovacık in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Kızılveren on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to the Hanuşağı village where they currently live. On an unspecified date the applicant lodged a petition with the Public Prosecutor’s office in Ovacık and complained about the burning down of his house by the security forces. On an unspecified date the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to the office of the Administrative Council in Ovacık. On 23 June 1995 the District Governor’s office in Ovacık decided not to conduct an investigation into applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 22 November 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his hamlet. On 18 January 2002 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October1994 the applicant lived in the Yazıören village, in the Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 10 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor’s office issued a decision of non-jurisdiction and sent the case-file to Administrative Council in Ovacık. On 25 October 1995 the Administrative Council in Ovacık decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 5 October 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October1994 the applicant lived in the Yazıören village, in the Ovacık district in Tunceli, where he owns property. In October 1994 security forces forcibly evacuated Yazıören on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 10 October 1994 the applicant lodged a petition with the Public Prosecutor’s office in Ovacık complaining about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 1995 the Ovacık Administrative Council decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified. On 20 September 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 31 October 2001 the State of Emergency Department of the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 14 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district, in Tunceli, where he owns property. It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicant’s property. The applicant and his family then moved to Istanbul where they currently live. On 14 August 2001 the applicant filed a petition with the Governor’s office in Tunceli requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district in Tunceli, where he owns property. It is to be noted that the Mustafa Rakip appears be the owner of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On an unspecified date Mustafa Rakip lodged a petition with the Public Prosecutor’s office in Ovacık complained about the burning down of his house by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 23 June 1995 the Ovacık Administrative Council decided not to conduct an investigation into the applicant’s allegations as the perpetrators of the alleged acts could not be identified. On 22 May 1998 Mustafa Rakip filed a petition with the District Governor’s office in the district of Zeytinburnu in İstanbul to be referred to the District Governor’s office in Ovacık requesting permission to return to his village. He received no response to his petition within the 60-day period prescribed by Law no. 2577. On 2 October 2001 Mustafa Rakip filed further petitions with the District Governor’s office in Ovacık, the Governor’s office in Tunceli and the Ministry of Interior requesting permission to return to his village. On the same day he lodged a further complaint with the Public Prosecutor’s office in Ovacık requesting permission to return to his village. On 9 October 2001 the Public Prosecutor issued a decision of non-jurisdiction and sent the case-file to the Administrative Council in Ovacık. On 25 October 2001 the State of Emergency Department of the Governor’s office in Tunceli sent the following reply to the applicant: “Return to the Cevizlidere village is forbidden for security reasons. However, you can return and reside in Mollaaliler, Çakmaklı, Gözeler, Güneykonak, Havuzlu, Konaklar and Yoncalı villages. Furthermore your petition will be considered under the ‘Return to Village and Rehabilitation Project’.” On 31 October 2001 the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to return to your village has been received by the District Governor’s office and will be considered under the ‘Return to village and Rehabilitation Project’.” On 18 January 2002 Selim Rakip filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 20 January 2002 the District Governor’s office in Ovacık sent the following reply to the applicant: “Your petition containing a request of permission to your village has been received by the District Governor’s office and will be considered under the ‘Return to Village and Rehabilitation Project’.” Until October 1994 the applicant lived in the Cevizlidere village, in the Ovacık district in Tunceli where they own property. It is to be noted that İbiş Topuz, Hamza Topuz and other persons with the family name “Topuz” appear to be the owners of the property in question on the documents submitted to the Court. In October 1994 security forces forcibly evacuated Cevizlidere on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Istanbul where they currently live. On unspecified dates Haydar Topuz and Hamza Topuz lodged petitions with the Public Prosecutor’s office in Ovacık complaining about the burning down of their houses by security forces. On 9 December 1994 the Ovacık Public Prosecutor issued a decision of non-jurisdiction and sent the case-files to the Administrative Council in Ovacık. On 23 June 1995 the Ovacık Administrative Council decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified. Hamza Topuz and İbiş Topuz, filed petitions with the District Governor’s office in Ovacık on 22 August 2001 and on 25 August 2001 respectively, requesting permission to return to their village. They received no response to their petitions within the 60-day period prescribed by Law no. 2577. On 24 September 2001 Haydar Topuz and İbiş Topuz filed petitions with the Governor’s office in Tunceli requesting permission to return to their village. They received no response to their petition within the 60-day period prescribed by Law no. 2577. The official records indicated that the inhabitants of Hanuşağı, Ulukale, Tepsili, Elgazi, Karataş, Yazıören and Cevizlidere had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. In this connection, in a letter of 15 October 2002 the District Governor of Ovacık informed the applicants that they could return to their villages and resume their economic activities if they wished. He further noted that all villages were open for re-settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
train | 001-5923 | ENG | NLD | ADMISSIBILITY | 2,001 | VAN DEN HOOGEN v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm | The applicant is a Dutch national, born in 1943 and living in Kerkrade. He is represented before the Court by Mr J.J.M. Goltstein, a lawyer practising in Kerkrade. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died in 1980. At that time, the applicant was employed in Germany. He did not, at that time, apply for a widower’s pension under the Netherlands Widows and Orphans Benefits Act (Algemene Weduwen- en Wezenwet; “AWW”). On 27 October 1980, the applicant had a traffic accident resulting in his becoming incapacitated for work. In a decision taken on 7 December 1988, the Central Appeals Tribunal (Centrale Raad van Beroep) determined that also widowers were entitled to benefits under the AWW. On 12 March 1989, the applicant applied for a pension under the AWW and, in its decision of 23 June 1989, the Maastricht Social Insurance Bank (Sociale Verzekeringsbank) awarded him an AWW pension. In accordance with Article 25 § 3 of the AWW, the starting date of the pension was fixed at one year prior to the first date of the month in which the applicant had filed his request for AWW benefits. Although Article 25 § 5 of the AWW provided for the possibility to grant a pension with retroactive effect on grounds of special circumstances, the Social Insurance Bank held that no such circumstances existed in the applicant’s case. Consequently, the applicant was entitled to AWW benefits as from 1 March 1988. On 22 November 1991, the Social Insurance Bank informed the applicant that it was withdrawing his AWW pension and, on 14 February 1992, issued a decision terminating the applicant’s AWW benefits as from March 1992 under the application of an arrangement according to which his pension would be gradually reduced to nil by reducing it each month with 100 Netherlands Guilders. In view of his personal circumstances he was further not required to repay any benefits already paid to him until that time. The reason given was that, as the law stood at the time of the death of the applicant’s wife, no entitlement under the AWW could arise because the applicant was then employed outside the Netherlands and covered by German social insurance. That being so, his wife was ipso facto excluded from the insurance scheme set up under that Act. On 6 March 1992, the applicant lodged an appeal against this decision with the Roermond Regional Court (Arrondissementsrechtbank). In its judgment of 7 December 1992 the Regional Court held that the statutory provision at issue was discriminatory and, therefore, contrary to the Netherlands Constitution and Article 26 of the International Covenant on Civil and Political Rights. Although that statutory provision excluded the wife of a Netherlands resident who was employed abroad and covered by foreign social security from the insurance scheme set up under the AWW, it did not so exclude the husband of a Netherlands resident similarly employed and covered. The Regional Court referred obiter dictum to a directive of the Council of the European Communities (79/7/EEC of 19 December 1978), which could not, however, apply directly since it did not cover social insurance payable upon the death of one spouse to the survivor. On 13 January 1993, the Social Insurance Bank appealed to the Central Appeals Tribunal (Centrale Raad van Beroep), which overturned the judgment of the Regional Court on 2 July 1997, holding that according to its case-law married men could not derive any entitlement from the AWW before 23 December 1984. Although admittedly this placed men whose wives had died before that date in a disadvantageous position, this was due to the fact that married women simply were not insured under the AWW before then. The Central Appeals Tribunal declined to rule as to whether this “[could] be seen as a form of unequal treatment of men and women, or otherwise”. In the light of a judgment handed down on 26 August 1998 by the Supreme Court (Hoge Raad) in which it was held that employment abroad did not constitute a ground for excluding a married woman from insurance under the AWW, the Social Insurance Bank reconsidered the applicant’s case and decided on 4 May 1999 to withdraw its decision of 14 February 1992 and to award him a AWW pension as from 1 March 1988 as well as interest for the period between March 1992 and May 1999. He was further informed that he could file an objection (bezwaar) against this decision within six weeks. The applicant did not avail himself of this possibility. The AWW, which has been replaced on 1 July 1996 by the General Act on Surviving Dependents (Algemene Nabestaandenwet), provided for benefits for the widow and child(ren) of a deceased person who was insured under this Act. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsory insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands. AWW benefits were, in principle, granted to widows younger than 65 from whom it could not be expected that they would provide for themselves and, in case there were any, their child(ren) by working. AWW benefits stopped when the widow attained the age of 65. Benefits for children were in principle stopped when they reached the age of 16 but could be prolonged until the age of 27 where the child was studying. The AWW did not provide for any benefits for widowers. This situation changed on 7 December 1988, when the Central Appeals Tribunal handed down a decision in which it held that also widowers were entitled to benefits under the AWW (Rechtspraak Sociale Verzekering 1989/67). Entitlement to an AWW pension was not dependent on the level of contributions paid as, contrary to a social security scheme based on employment (werknemersverzekering), it was a general social security scheme (volksverzekering). The level of benefits was linked to the statutory minimum wage. On 19 December 1978, the Council of the European Communities issued Directive 79/7/EEC concerning the gradual implementation of equal treatment between men and women in the field of social security based on employment, allowing member states a period of six years until 23 December 1984 within which to make any amendments to legislation which might be necessary in order to bring it in conformity with the directive. Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published. With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the Convention, which was ratified by Act of 28 July 1954, and the ICCPR of 1966 which, as regards the Netherlands, entered into force on 11 March 1979. Article 26 of the ICCPR provides as follows: "All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The Supreme Court recognised in its judgment of 2 February 1982 (Nederlandse Jurisprudentie (“NJ”) 1982, no. 424 [corrected in NJ 1982, no. 475]), that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts. | 0 |
train | 001-80395 | ENG | GEO | CHAMBER | 2,007 | CASE OF MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH'S WITNESSES AND OTHERS v. GEORGIA | 2 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief);Violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought, conscience and religion;Article 9-1 - Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | null | 9. The applicants are 97 members of the Gldani Congregation of Jehovah’s Witnesses (“the Congregation”), together with Mr Vladimer Kokosadze, Ms Nino Lelashvili, Mr Alexi Khitarishvili and Ms Leila Dzhikurashvili, who are also members of the said congregation and live in Tbilisi. It appears that Mr Vladimer Kokosadze is also the Congregation’s spokesperson. 10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. During a religious meeting on 17 October 1999, the Congregation, composed of 120 persons, was attacked by a group of Orthodox believers led by Mr Basil Mkalavishvili (“Father Basil”). Father Basil had been a priest in the autocephalous Orthodox Church of Georgia prior to being defrocked by that denomination on 31 July 1995 following his adhesion to the League of Separatist Priests of Greece. The Synod also accused him of various acts of physical aggression against members of the Orthodox Church, and of insulting the Catholicos-Patriarch of All Georgia. 12. Towards noon on 17 October 1999 one of the applicants, Mr Mirian Arabidze, saw Father Basil’s group, made up of several dozen individuals, arriving at the service entrance of the theatre in which the Congregation was holding its meeting. 13. Ms Nunu Gviniashvili, an applicant, has described the fear experienced by members of the Congregation who had previously seen television broadcasts showing acts of aggression by Father Basil and his supporters against Jehovah’s Witnesses. 14. The attackers, some of whom wore cassocks, were shouting and advancing with large iron crosses and sticks in their hands. One of the attackers (Ms Lia Akhalkatsi, according to the applicants) was filming their progress. When the attackers reached the back door of the meeting room, several Jehovah’s Witnesses, including Mr M. Arabidze, tried to hold the door closed until the other participants could leave the room by the main entrance. In the meantime, however, some of Father Basil’s supporters had also arrived at the building’s main entrance, and the Jehovah’s Witnesses found themselves trapped between two groups of attackers. Only a few were able to take refuge in the cellar and called the police from their mobile telephones. 15. In the meeting room, about 60 Jehovah’s Witnesses were beaten and struck with crosses, sticks and belts. 16. Mr Mirian Arabidze was also beaten and, when he fell to the ground, his attacker (Mr Mikheil Nikolozishvili, according to the applicants) told him that he was “going to die for Jehovah!”. The recording of the attack (see paragraph 35 below) shows that several stick-wielding men surrounded the applicant, who immediately covered his head with his hands but fell to the ground under their blows. He was subsequently kicked in the head and back. 17. Ms Roza Kinkladze, applicant, was struck on the face, head and back. Ms Natela Kobaidze, applicant, was struck on the face and her lips started bleeding. She also sustained a sprained thumb. Ms Nino Dzhanashvili, applicant, was struck and pushed in the stairs. Having fallen to the ground, she saw Ms Nino Gnolidze, Ms Nino Lelashvili and Ms Nora Lelashvili, applicants, lying on the ground unconscious. Ms Lia Bakhutashvili, applicant, was attacked by three women and a young priest, who kicked her, tore her clothing and pulled her by the hair. The same priest used a cross and a stick to beat applicant Ms Nora Lelashvili, who fainted. Her daughter, Nino Lelashvili, was dragged along the ground, kicked in the face and flogged with a belt until she lost consciousness. Mr Merab Zhizhilashvili, applicant, was hit with sticks and punched. Having fallen to the ground, he was kicked and his clothing was torn. Ms Ia Chamauri, applicant, was struck on the head with a belt. Mr Vladimer Kokosadze, applicant, was also beaten ruthlessly by six men. Nonetheless, he successfully negotiated with Father Basil and his right-hand man, Mr P. Ivanidze, to obtain permission for thirty women and children, who were locked inside the theatre director’s office, to leave the building. They were allowed to leave but were followed and attacked in the street. 18. Mr Alexi Khitarishvili, applicant, was beaten, then trampled on when he fell to the ground. His glasses were broken. The recording of the attack (see paragraph 35 below) shows that several men held this applicant upright and shaved his head while pronouncing “in the name of the Father and of the Son and of the Holy Ghost!” Having been unable to shave him completely, the exasperated attackers continued to insult and strike him. The applicant, who could hear his mother screaming in the distance as she was attacked by a group of women, lost consciousness. 19. The blood-spattered men, women and children ran from the building. 16 victims were immediately admitted to hospital. 20. Applicant Ms Patman Tabagari sustained permanent damage to the retina of one eye on account of the kicks she received to the head. She was kept in hospital from 17 to 21 October 1999. On admission to hospital she was bleeding from the eye. According to the medical report drawn up between 29 October and 2 November 1999, she was suffering from concussion and had sustained bruising and injuries as well as contusion of the right eye. 21. Extracts from the medical records of certain applicants, updated during their hospitalisation, were submitted to the Court. They contain the following observations: - Mr Ilia Mantskava – pain in the forehead and left eye; - Mr Vladimer Kokosadze – a cranial injury, subcutaneous haematoma on the forehead and contusion on the chest; - Mr Alexi Khitarishvili – subcutaneous haematoma on the back and chest; his back was bleeding on admission to hospital; - Ms Nino Lelashvili – a cranial injury and subcutaneous haematoma on the neck; headaches and backache; - Ms Ia Chamauri – a cranial injury, swollen left side of the head, subcutaneous haematoma and headaches; - Mr Mirian Arabidze – a cranial injury, contusion on the right hand, contusions on the upper lip, headaches and congestion around the eyes; - Ms Zaira Dzhikurashvili – a cranial injury, subcutaneous haematoma and headaches; - Mr Merab Zhizhilashvili – a cranial injury at facial level, swollen eyes and headaches; - Ms Nora Lelashvili – a cranial injury, subcutaneous haematoma around the eyes and congestion of the right ear. 22. 14 of the 15 applicants mentioned in paragraphs 16-18, 20 and 21 above (with the exception of Ms Nino Gnolidze), and 44 others have described the facts surrounding the attack against them on 17 October 1999. 23. Their witness statements indicate that Mr Nodar Kholod, Mr Tenguiz Dzhikurashvili, Ms Bela Kakhishvili, Ms Lia Mantskava, Ms Khatuna Kerdzevadze, Ms Elene Mamukadze, Ms Nana Pilishvili, Ms Makvala Mamukadze, Ms Ether Chrelashvili, Ms Lamara Mchedlishvili, Ms Nana Kapanadze, Ms Pikria Tsarielashvili, Ms Nani Kobaidze and Ms Lili Kobesova were also beaten. 24. As to the other applicants, Ms Izolda Purtseladze was pulled along by the hair; Ms Ia Vardanishvili was struck on the back and, like her children, pulled along by the hair; Mr Dzhumber Bgarashvili was struck on the head and sustained a nose injury; Ms Leila Mchedlishvili was elbowed violently and began tottering in the stairwell; she was also struck on the head; Ms Leila Tsaritov was pulled along by the hair; Ms Raisa Maisuradze was pulled along by the hair and her attackers twisted her arm behind her back before striking her; meanwhile her son was seriously injured and pushed into the stairwell; Ms Ketino Kimeridze was dragged by the hair and struck; Ms Amalia Ardgomelashvili was pulled by the hair and fainted after the attack; Ms Natia Milashvili was struck and received violent blows to the head; Ms Iza Khitarishvili, surrounded by seven women, was dragged by the hair and beaten; Mr Shota Maisuradze was beaten by several men. 25. The vast majority of witness statements indicate that Kakha Koshadze, the son of Ms Lia Bakhutashvili (see paragraph 17 above), was severely beaten in the head and stomach and lost consciousness. The doctors at Tbilisi Hospital no. 1 subsequently noted that Kakha Koshadze had an injured skull and broken ribs. 26. According to Ms Lamara Arsenishvili, Ms Elene Dzhodjua, Ms Ketevane Dzhanashvili, Ms Tina Makharashvili, Ms Dodo Kakhishvili, Ms Lali Khitarishvili, Ms Nunu Gviniashvili, Ms Neli Giorgadze, Ms Eka Kerdzevadze, Ms Daredzhan Kotranova, Ms Lia Sidamonidze, Ms Cecile Gagnidze, Ms Shakhina Sharipov, Mr Romiko Zurabashvili, Mr Amiran Arabidze, Mr Zakro Kochishvili, Mr Dzhambul Arabidze and Mr Dato Gvaramia, applicants, they escaped physical aggression. However, Ms Lia Sidamonidze’s and Ms Cecile Gagnidze’s children were beaten by the attackers. 27. Without claiming that she herself had been physically attacked, Ms Leila Dzhikurashvili complained that her ten-year-old daughter had been dragged along by the hair, her eleven-year-old son had been slapped and punched in the head and her seven-year-old disabled son had been attacked. 28. Mr Amiran Arabidze claimed that, when the attack began, he managed to leave the building and went to the police. Ms Eka Kerdzevadze stated that, after escaping from the attack, she and her husband went to the police in Gldani micro-district III and informed the police officers that the Jehovah’s Witnesses were being subjected to a violent attack in the theatre building. The police merely recorded this statement but chose not to intervene. Ms Lia Sidamonidze also claimed that she had gone to the same police station with several other Jehovah’s Witnesses. The head of the police station replied that “in the attackers’ place, he would have given the Jehovah’s Witnesses an even worse time!” While escaping from the site of the attack, Mr Vladimer Kokosadze met three police officers on the road; after listening to his request to take action, they replied that they “didn’t get involved in that type of incident”. 29. However, according to Ms Leila Mchedlishvili, Ms Dodo Kakhishvili, Ms Makvala Mamukadze and Ms Shakhina Sharipov, it was only when the police arrived on the scene that the Jehovah’s Witnesses who were still trapped in the theatre were able to escape. According to Ms Shakhina Sharipova, one of the victims rushed up to a police officer, showing him the hand which Father Basil had wounded with a blow from a cross, and said: “Look what Basil has just done to me!” 30. All the applicants testified that when the victims managed to escape from the building they were confronted by a cordon of Father Basil’s supporters, gathered in front of the exit. These women had been instructed to restrain the victims and push them back inside the building, where the attacks were continuing. In addition, they carried out body-searches of the victims, emptying their pockets and bags. Bibles, religious literature and tracts were then confiscated and thrown into a nearby fire. The victims were forced to remain in front of the fire and watch it. During the search, handbags were torn and thrown on the ground. Ms Makvala Mamukadze, applicant, had her handbag taken from her: it contained money, the keys of her flat, a Bible and her watch. These objects were never returned to her. The attackers allegedly also stole other personal effects belonging to the victims, such as jewellery and cameras. 31. Without exception, all 58 applicants (see paragraph 22 above) complained that they were mocked, insulted, called every name imaginable - including “traitors” - and accused of “selling out the motherland for a bag of rice”. The majority of applicants claimed that the attackers smelled of alcohol. 32. The above-mentioned applicants (see paragraphs 23, 24, 26 and 27) confirmed the acts of aggression against the 15 of their companions who had been attacked with the greatest violence, listed in paragraphs 16-18, 20 and 21 above. 33. The police who arrived at the scene decided to take Mr Mirian Arabidze to the police station, where he was insulted by police officers. Father Basil and his supporter Mikheil Nikolozishvili, who were also at the police station, attempted to attack the victim again. 34. The recording of the Gldani attack was broadcast on the national television channels Rustavi-2 and Kavkasia on 17, 18 and 19 October 1999. Father Basil, Mr P. Ivanidze and other members of their group were clearly identifiable from these recordings. Their names were also submitted to the relevant authorities by the victims. 35. The recording of the news broadcast of 18 October 1999 on the Rustavi-2 channel, submitted to the Court by the applicants, illustrated the facts of the attack as set out above. It does not appear that the applicants responded to the acts of violence to which they were subjected. The recording shows a fire containing burning books, and Father Basil and his supporters praying and singing. It also includes an extract from an interview with Father Basil who, standing with the fire in the background, explains the validity of his actions and expresses satisfaction at their outcome. 36. In several subsequent interviews Father Basil claimed that, before going to a particular place, he would alert the police and the State security services, so that the latter would not intervene. This complicity was also noted by the non-governmental organisations which issued a joint statement on 13 March 2001 (see paragraph 76 below). 37. Interviewed after the attack on the applicants, the Georgian President stated that he condemned any form of pogrom and that an investigation should be conducted to ensure that the perpetrators of the attacks were prosecuted in criminal proceedings. 38. Between 17 and 29 October 1999, about 70 victims of the Gldani attack, including the 58 applicants listed in paragraphs 16-18 (with the exception of Ms Nino Gnolidze), 20, 21, 23, 24, 26 and 27 above, lodged a complaint with the Tbilisi Public Prosecutor and asked that their attackers be punished. 39. Criminal proceedings were instituted by the investigation unit of the Gldani District of the Ministry of the Interior, but the proceedings were suspended, initially on 13 September and again on 3 December 2000, on the ground that the perpetrators of the attack had not been identified. When the proceedings resumed for the last time in March-April 2001 (see paragraph 63 below), the investigating officer, Mr K., indicated to the victims that they should not expect an outcome anytime in 2001. In spite of five reminders addressed to the Georgian Procurator General, the last of which was dated 8 March 2001, no action was taken on these complaints. 40. The applicants set out the proceedings in chronological order. By orders of 22, 25 and 27 October and 5 December 1999, only eleven applicants were recognised as civil parties by the Gldani District Ministry of the Interior’s investigation unit (criminal case no. 0999140) – Mr Mirian Arabidze and Ms Nora Lelashvili for physical and non-pecuniary damage, Mr Ilia Mantskava for physical and pecuniary damage, Ms Makvala Mamukadze for pecuniary damage, Ms Zaira Dzhikurashvili for pecuniary and non-pecuniary damage, Ms Natela Kobaidze, Ms Patman Tabagari, Ms Nino Lelashvili, Ms Ia Chamauri and Mr Shota Maisuradze for physical damage and Mr Vladimer Kokosadze for physical, non-pecuniary and pecuniary damage. 41. On 9 December 1999 the case was referred back to the Tbilisi police for further investigation. On 25 December 1999 it was referred to the public prosecutor’s office in Gldani District. On 14 January 2000 it was submitted to the Tbilisi public prosecutor’s office. 42. On 26 January 2000 the lawyer for Ms Natela Kobaidze, Ms Patman Tabagari, Ms Nino Lelashvili, Ms Ia Chamauri, Ms Nora Lelashvili, Ms Zaira Dzhikurashvili, Mr Mirian Arabidze, Mr Vladimer Kokosadze, Mr Merab Zhizhilashvili, Mr Alexi Khitarishvili, Mr Ilia Mantskava and Mr Dzhumber Bgarashvili complained to the Tbilisi prosecutor, alleging that their case had been unnecessarily sent from one department to another. He also complained that the public prosecutor’s office had not kept him, as their lawyer, informed of developments. 43. On 31 January 2000 the same lawyer submitted a complaint to the Tbilisi city prosecutor and to the Procurator General about the failure to bring criminal proceedings against the perpetrators of the attack. He claimed that this impunity was encouraging other acts of violence. 44. On 31 January 2000 the Tbilisi city prosecutor’s office referred the case to the city police. The police investigator, Mr Kh. stated that he was an Orthodox believer and could not be impartial in the case. 45. Nonetheless, on 20 April 2000 Mr Kh. proceeded with identification and cross-examination of four individuals, including Mr Mikheil Nikolozishvili, applicant Mirian Arabidze’s presumed attacker. During questioning, Mr Nikolozishvili again threatened this applicant, who identified Mr Nikolozishvili and another individual as the persons who had attacked him. 46. On 13 June 2000 Mr Kh. informed Mr Mirian Arabidze that, by a decision of 9 June 2000, he himself had been placed under investigation on a charge of participation in the attack. 47. On the same day, two of Father Basil’s supporters (Ms Tsiuri Mrebrishvili and Ms Despin Shoshiashvili) were also placed under investigation on suspicion of having burnt religious literature. 48. On 13 September 2000 the criminal proceedings instituted following the Gldani attack were suspended by the Gldani District investigation unit on account of a failure to identify its perpetrators. This decision was not served on the applicants, which meant that it was impossible for them to challenge it before the courts 49. On the same date, the lawyer mentioned in paragraph 42 sent a letter to the Procurator General complaining that the perpetrators of the attack had still not been punished, one year after proceedings had been instituted. 50. On 24 October 2000 the decision of 13 September 2000 was set aside by the Tbilisi prosecution service and the criminal proceedings were resumed. The applicants were not informed. 51. On 3 December 2000 the proceedings were again suspended, on the ground that it had proved impossible to identify the presumed perpetrators. The applicants were not informed. On 6 December 2000 that decision was approved by the Procurator-General’s Office. 52. In the meantime, having been placed under investigation (see paragraph 46 above), Mr Mirian Arabidze was accused of having committed acts endangering public order during the attack in question. In particular, he was charged with having “used an object as a weapon” against another person. 53. On 16 August 2000 the criminal trial of Mr Mirian Arabidze and two of Father Basil’s supporters (see paragraph 47 above) began at the GldaniNadzaladevi Court of First Instance in Tbilisi. One of the defendants confirmed that she had burned books, as her faith and Father Basil had directed her to. She asserted that she was prepared to kill on behalf of the Orthodox faith. 54. In the afternoon a group of believers led by Father Basil burst into the courtroom. They assaulted the Jehovah’s Witnesses, journalists and the foreign observers who were present in the courtroom. The attackers were equipped with iron crosses and used them as weapons. They took control of the courtroom. The court imposed no penalties on the believers who had occupied the courtroom by force. 55. This attack was filmed and the recording was broadcast on the Rustavi-2 and Kavkasia channels. The recording of a television news programme, broadcast on 16 and 17 August 2000 (and submitted by the applicants to the Court) shows that, on the first day, the attacks took place within the courtroom. Father Basil can be seen entering the court during the hearing with several dozen of his supporters (80, according to the reporter), who are carrying a large white cross, icons and a bell which one of the attackers (Mr Z. Lomthathidze, according to the applicants) is pealing, while the others attack the Jehovah’s Witnesses, their lawyers and the foreign observers. The victims are punched out of the courtroom. On the following day Mr D.P. and Mr G.B., two human rights activists, were kicked outside the courtroom and Mr Mirian Arabidze’s lawyers were attacked. 56. At the close of this trial on 28 September 2000, Mr Mirian Arabidze was found guilty of having committed acts endangering public order during the attack against the Congregation on 17 October 1999 and given a suspended sentence of three years’ imprisonment for having caused minor injuries to Mr M. Nikolozishvili and to another member of Father Basil’s group. 57. On the same date, the judge decided not to determine the guilt of Father Basil’s two supporters and to return the part of the case which concerned them for further investigation, particularly with a view to determining the ownership and value of the literature which was destroyed, and the legal status of the entity which had assembled the Jehovah’s Witnesses for the meeting on 17 October 1999. 58. On 14 May 2001 the Tbilisi Court of Appeal overturned the judgment convicting Mr Mirian Arabidze and sent the case back for further investigation. 59. On 11 October 2001 the Georgian Supreme Court quashed the appeal court’s judgment and acquitted Mr Mirian Arabidze. In its judgment, the Supreme Court considered it “established” that, on 17 October 1999, Father Basil’s group had gone to the Gldani premises on its own initiative and that a confrontation had taken place between “persons of differing religious convictions. During that confrontation, several individuals had been injured and religious literature belonging to the Jehovah’s Witnesses had been burnt”. The Supreme Court found that the Gldani meeting had not represented any danger to public order. It established that the authorities had not imposed any restrictive measure in that connection and that, consequently, Father Basil had had no grounds for interfering with Mr Mirian Arabidze’s exercise of his right as guaranteed by Article 9 of the Convention and Article 19 of the Constitution. 60. In the meantime, on 13 February 2001, 14 volumes of petitions demanding protection for Jehovah’s Witnesses were delivered to the administration of the Georgian President. The attack against the applicants and other acts of religiously-motivated violence were brought to the attention of the Head of State. By an order of 22 March 2001, the President ordered the Procurator-General, the Ministry of the Interior and the Ministry of State Security to take special measures to put an end to religiouslymotivated crimes, identify their perpetrators and punish those responsible. 61. On 15 March 2001, after examining the complaints concerning acts of violence perpetrated “for years” by Father Basil and Mr P. Ivanidze, the Procurator-General’s Office decided to join them and ordered that the case file (no. 0100118) be investigated. On 30 March 2001 Father Basil was placed under investigation on a charge of organising collective actions which endangered public order and of participating in such actions (Article 226 of the Criminal Code), and on a charge of illegally preventing the conduct of religious rites (Article 155 § 1 of the Criminal Code). 62. On 2 April 2001 the investigator responsible for the case applied to the Vake-Saburtalo Court of First Instance seeking to have Father Basil placed in pre-trial detention. The court did not allow this application and imposed a less onerous preventative measure, namely judicial supervision. 63. Following a letter of 8 March 2001 in which the applicants’ lawyer requested information as to which department held the case file and what progress had been made with the case, the applicants’ lawyer was informed on 26 April 2001 that the proceedings had again been resumed. He learned at this point that they had been suspended on 3 December 2000 (see paragraph 51 above). On the same date, Ms Patman Tabagari and Mr Vladimer Kokosadze, applicants, were also informed in writing that the proceedings had been resumed. 64. On 8 May 2001 the investigator informed the victims’ lawyer that he would not have time to examine the case before December 2001. 65. On 4 October 2001 several cases were severed from case file no. 0100118 in order to be investigated under file no. 1001837 (an attack in the Ombudsperson’s office, an attack against the newspaper Rezonansi and others). Father Basil and Mr P. Ivanidze were charged by the Tbilisi prosecutor’s office in connection with those cases. 66. The applicants stated that, in the programme “60 minutes”, broadcast on “Rustavi-2” in September 2000, a journalist interviewed Father Basil and commented that he had been seen entering the building of the State Security Ministry on several occasions. Father Basil replied: “... No, not the KGB... Except in connection with an attack against the Jehovah’s Witnesses. They thought I was going to do something else, so I went to explain that it had been to go to Marneuli to attack the Witnesses. That was the only time... I always warn them in advance. Of course I do, and if they are brave enough, they join me. If they don’t support me, they will get what they deserve.” 67. On 11 May 2001, in an interview broadcast on “Rustavi-2”, Father Basil stated: “I categorically warn the entire population of Georgia, and especially the representatives of the Jehovah’s Witnesses sect, that they must not meet together and hold their Satanic meetings. Although I have been forbidden from going to see them as I did in the past in order to prevent their meetings, I declare publicly that I myself will not appear, but the members of my parish will come and that, starting today, terrible pogroms will begin. We will do this because they have been parachuted by unsavoury and anti-Christian foreign forces in order to destroy Georgia. For that reason, they can no longer be tolerated.” 68. In addition to the Gldani attack at the centre of these proceedings, the applicants described several other attacks carried out by Father Basil and his group, with a view to illustrating the general context in which the Jehovah’s Witnesses were obliged to live. In particular, they referred to the attacks of 8 and 16 September 2000 in Zugdidi and Marneuli in which, according to the applicants, representatives of the State played a direct role (see Begeluri and 98 Others v. Georgia, no. 28490/02, application pending); the attack in the office of the Ombudsperson of the Republic on 22 January 2001; the attack on a meeting of Jehovah’s Witnesses, held on 22 January 2001 in a private individual’s home on the Verkhana alley, Tbilisi; the attack on Jehovah’s Witnesses on 27 February 2001 during their meeting in a private home in the Mount Elia district of Tbilisi; the attack on Jehovah’s Witnesses meeting on 5 and 6 March 2001 in a private residence in Sachkhere; the attack on 30 April 2001 against the Jehovah’s Witnesses’ new site on Verkhana alley, Tbilisi; the setting alight, in the early morning of 31 May 2001, of a house belonging to a family of Jehovah’s Witnesses, of which there remained only a large pile of ashes and rubble, etc. Father Basil stated in connection with certain of those attacks that he had warned the police in advance. Each attack involved the destruction of premises and of religious literature. 69. The applicants considered that these acts of violence were the direct result of the authorities’ negligence regarding the attack carried out against their Congregation on 17 October 1999. In their opinion, by permitting this dangerous precedent of religiously-motivated aggression to occur with no response from the relevant authorities, the State had permitted the situation to become accepted as the status quo and repeated acts of violence to take place with impunity. The applicants alleged that on several occasions the Customs Service had confiscated religious literature arriving for the Jehovah’s Witnesses from abroad and that landlords refused to rent out meeting rooms for fear that their property would be ransacked in the event of an attack. 70. In total, the Jehovah’s Witnesses alleged that they had been subjected to 138 attacks between October and November 2002 and that 784 complaints had been lodged with the relevant authorities. No careful and serious investigation had been carried out into any of those complaints. 71. Resolution 1257 (2001) of the Parliamentary Assembly of the Council of Europe: “11. The Assembly ... is also strongly concerned about repeated cases of violence by Orthodox extremists against believers of minority religious groups, such as Jehovah’s Witnesses and Baptists. 12. The Assembly urges the Georgian authorities to conduct a proper investigation into all cases of human rights violations and the abuse of power, to prosecute their perpetrators irrespective of their functions, and to adopt radical measures to bring definitively the country into line with the principles and standards of the Council of Europe.” 72. Conclusions and recommendations of the UN Committee against Torture, dated 7 May 2001: “The Committee expresses concern about ... the instances of mob violence against religious minorities, in particular, Jehovah’s witnesses, and the failure of the police to intervene and take appropriate action despite the existence of the legal tools to prevent and prosecute such acts and the risk of this apparent impunity resulting in such acts becoming widespread; ...” 73. The Chair of the delegation of the Parliamentary Committee on Cooperation between the European Union and Georgia, Ms Ursula Schleicher, stated on 5 September 2000: “On behalf of the European Parliament delegation I wish to express my consternation of the latest incident in the series of violent attacks on journalists, human rights activists and Jehovah’s Witnesses which occurred in a courtroom in Tbilisi on 16 August. I regard this kind of act as an outrageous attack against the fundamental human rights to which Georgia is committed as a signatory of the European Convention for the Protection of Human Rights and Fundamental Freedoms. May I reiterate the position of the EU-Georgia Parliamentary Cooperation Committee of 9 May 2001 condemning religious intolerance and nationalist extremism which are incompatible with the long tradition of religious and cultural tolerance in Georgia.” 74. According to the 2001 Annual Report by the Ombudsperson for Georgia: “... freedom of conscience is among the rights which are most brutally violated in Georgia. We are talking about the non-traditional religious organizations, which are dismissed as sects in Georgia and assailed and persecuted every way... I am not dismissing or diminishing the role and influence of the Orthodox Church in our country. The Orthodox Church has always been and will continue to be the fundament on which Georgian statehood and, so to say, the very existence of the nation, rest. However, Georgia has always taken pride in her religious tolerance. It has become a typical example that the temples of different confessions stand and operate almost side by side in the capital of Georgia. Another shining example of tolerance specific to the Georgian nation – the good neighbourly relations and friendship that exist between the Georgians and the Jews have survived millennia. Against such seemingly tolerant background, it is really intolerable to put up with the current tide of extremism against religious minorities. We mean the multiple acts of violence to which the members of such unconventional religious groups as Jehovah’s Witnesses (above all), Baptists, Krishna followers, and others fell victim...” 75. In its 2002 Annual Report, Human Rights Watch stated: “ The Georgian authorities allowed organized groups of civilian militants to conduct a sustained campaign of violent assaults and intimidation against members of several non-Orthodox religious faiths, chiefly Jehovah’s Witnesses, Pentacostalists, and Baptists. The assailants broke up religious services, beat congregants, ransacked or looted homes and property, and destroyed religious literature. Vasili Mkalavishvili, a defrocked Georgian Orthodox priest who led most of the attacks, justified them by claiming that charismatic faiths were defiling Georgia’s nationhood and religious tradition. He boasted of receiving assistance from the police and security services. Emboldened by inaction or complicity of prosecutors and police, and by a February Supreme Court decision to deregister the Jehovah’s Witnesses as a legal entity in Georgia, the frequency of mob attacks rose in 2001...”. 76. On 13 March 2001 several non-governmental organisations – the Association Law and Freedom, the Atlantic Council of Georgia, the Black Sea Media Institute, Caucasian House, the Forensic Examination Foundation, Former Political Prisoners for Human Rights, the Georgian Young Lawyers Association, the Human Rights Centre, the Human Rights Group of the Caucasian Institute for Peace, Democracy and Development, the Independent Journalists’ Club, the International Society for Fair Elections and Democracy, the Landowners Rights Protection Association, Liberty Institute, Tbilisi Press Club and Transparency International–Georgia issued a joint declaration stating: “During last two years we are evidencing massive infringement of freedom of religion and persecution of religious minorities. The Government of Georgia is completely unable to protect human rights and minorities. Moreover, violation of human rights take place with the silent consent of the State, very often with its inspiration and sometimes with active participation of State officials, especially those of law enforcement agencies. On the basis of the aforesaid, it should be noted without exaggeration that religious minorities in Georgia face permanent danger, intimidation and terror..., Jehovah’s Witnesses...have suffered attacks, persecution, bodily insult and harassment. Frequent pogroms take place in their offices and churches. Their literature, holy objects of worship and other belongings were destroyed... The most significant pogroms took place in Tbilisi, Marneuli and Zugdidi. Police were aware of these actions without any reaction or were participating in them, while prosecutors and judges convicted the victims. Vasil Mkalavishvili has openly confirmed on TV that he notifies police and security in advance of carrying out his pogroms. Deputy Minister of State Security declared at a Parliamentary hearing that the State should restrict the activities of non-traditional religious sects. Similar declarations have been made by other senior government officials – for example, the Tbilisi police chief...” “The State recognises the special role of the Georgian Orthodox Church in Georgian history. Simultaneously, however, it declares complete freedom of religious belief and confession, as well as the independence of the church from the State.” “1. Everyone has the right to freedom of speech, thought, conscience, religion and belief. 2. It is prohibited to persecute an individual for his or her thoughts, beliefs or religion and to oblige an individual to express his or her opinions about them. 3. The rights provided for in this Article may not be restricted unless their exercise infringes upon the rights of others.” “Public prosecution shall be conducted with regard to all categories of criminal offences. Public prosecution shall be conducted by an investigative body, a prosecutor and an investigating officer, who shall institute proceedings on the basis of information provided by natural or legal persons, notification from the authorities and nongovernmental organisations and information imparted by the mass media. The investigative body, prosecutor and investigating officer shall be obliged to institute proceedings in all cases where there is evidence of a criminal offence, to take the measures necessary to establish the truth and identify the perpetrator of the offence, and prevent an innocent person from being placed under investigation.” “With regard to the criminal offences provided for in Articles 120 [intentional minor damage to health], 125 [physical violence] and 148 [false accusation]... , criminal proceedings shall be instituted only on the basis of a complaint by the victim and, in the event of a friendly settlement between the parties, this complaint must be dropped.” “Prosecution may be suspended if ... the person to be placed under investigation cannot be identified, and shall remain suspended until such time as that person is identified or the prosecution is time-barred.” “The investigating body is a State body or a senior representative of the civil service which shall have jurisdiction to conduct the initial investigative measures and to carry out, in the context of the pre-trial investigation and at the instruction of the investigating officer or the prosecutor, an investigative measure or any other act or to participate in the conduct of such acts. The investigating bodies are: (a) the departments of the Ministry of the Interior and its sub-directorates in respect of all criminal cases, except where these fall within the jurisdiction of other investigating bodies;...” Article 235 §§ 1 and 2 “The complaint is to be lodged with the body responsible for criminal proceedings or the state employee who, in accordance with the law, has jurisdiction to examine it and to reach a decision...” A complaint against an action or decision by the investigator, investigating body, investigating office or head of the investigating body is to be submitted to the relevant prosecutor. A complaint against an action or decision by the prosecutor shall be submitted to the prosecutor who has hierarchical superiority...” Article 242 § 3 “The parties to the proceedings may apply to a court against an action or decision by the investigating officer or investigator if the prosecutor dismisses their complaint or submit that complaint directly to the court...” “In all cases where evidence of an offence occurs, the investigator, with the agreement of the prosecutor, is obliged, as far as their powers permit, to institute criminal proceedings.” “Information concerning the fact of a criminal offence having been committed may be submitted in writing or orally. Information thus submitted shall be examined promptly. Where the presumed perpetrator of an offence has already been arrested, verification of the truth of the information alleging that a criminal offence has been committed and institution of prosecution must be carried out within 12 hours following the person being apprehended by the police or another investigating body. In other cases, institution of proceedings may also be preceded by verification the truthfulness of the information received, but this must not last more than 20 days.” Articles 155 and 166 of the Criminal Code provides for sanctions, including prison terms, for offences such as unlawfully preventing the performance of religious rites using violence or the threat of violence, and for unlawfully preventing the activities of a religious organisation using violence or the threat of violence. In accordance with Article 71 § 1 (a) of this Code, the limitation period for the offences set out in Articles 120 [intentional minor impairment of health], 125 [physical violence], 155 and 166 is two years. | 1 |
train | 001-23212 | ENG | DEU | ADMISSIBILITY | 2,003 | PARADIS and OTHERS v. GERMANY | 2 | Inadmissible | Ireneu Cabral Barreto | The application was lodged with the Court by a mother, Susanne Paradis, on behalf of her four children Vanessa, Nina, Joshua and Sasha. Ms Paradis, born 1966, is a German national. Her four children were born in 1985, 1994 and 1996. The applicants currently live in Hördt, Germany. In 1994, Ms Paradis married O., a Canadian national and went to live with him in Canada with Vanessa, her daughter by a first marriage. The children Nina, Joshua and Sasha were born into her marriage to O. In February 1997, Ms Paradis and all four children moved out of the family home and went to live in a women’s refuge. On 12 February 1997, O. obtained a court order granting him temporary custody of his three children, who thereupon returned to him. O. and his parents cared for the children. Ms Paradis saw them on a regular basis. On 16 December 1998, the Windsor Superior Court, in proceedings before a single judge, granted Ms Paradis sole custody of Nina, Joshua and Sasha on a permanent basis. It granted O. access commencing on 26 December 1998 and continuing on alternating weeks thereafter, from 18:00 on Fridays to 18:00 on Sundays. For the year 1998, the Superior Court declared that O. was to have the children from 18:00 on 25 December to 18:00 on 26 December, while Ms Paradis was to have them from 24 to 25 December. In succeeding years, the access on Christmas Eve and Christmas Day was to be alternated. The children were to pass half of their Easter holidays with the custodial parent and the other half with the access parent. Notwithstanding the weekend access provided, O. was to have access on Father’s Day from 8:00 to 18:00. Ms Paradis was to have the same access time on Mother’s Day. During the summer, each parent was to have two uninterrupted weeks of access incorporating and not in addition to the regular weekend access. O. was to have such other and further access as the parties would agree to. The Superior Court ordered that the paternal grandparents be given access to the children during the father’s access periods. In addition, they were to have access on two other weekends per year as agreed between themselves and Ms Paradis. Given that the maternal grandparents lived in Germany, the Superior Court ruled that Ms Paradis should be at liberty, on one month’s notice, to take the children to Germany for visits, not to exceed two weeks in duration. It also ruled that Nina, Joshua and Sasha should otherwise remain in the Province of Ontario, except for day trips to Michigan or other States of the United States, unless prior written agreement were obtained. The Superior Court ordered Ms Paradis to execute an irrevocable undertaking to submit to the jurisdiction of the courts of Ontario and not to remove the children for periods beyond those provided for in the court order. It also ordered her to undertake in writing not to apply for German passports for them until they were of an age to make a personal decision on citizenship. Ms Paradis was granted exclusive possession of the matrimonial home. In his reasoning, the single judge noted that Ms Paradis seemed to be better capable of raising the children than O., whom the judge portrayed as unreliable and whose credibility seemed to have been undermined by implausible and untrue allegations before the court. The judge was convinced that O. would not be able to care properly for his children without the continued intervention of his parents. He stressed that the access rights granted to O. were minimum rights that could be enlarged following further discussion and negotiation between the parties. Ms Paradis never executed the undertakings contained in the court decision. On 27 June 2000, Ms Paradis and all four children left the Province of Ontario for a two weeks’ stay in Germany after having obtained O.’s consent. However, once these two weeks had elapsed, they did not return to Canada. On 14 August 2000, Ms Paradis filed an action for divorce before the Speyer District Court, sitting in family matters, and requested sole custody of Nina, Joshua and Sasha. On 22 September 2000, the Windsor Superior Court sentenced her to 30 days’ imprisonment for acting in contempt of court. Revoking its decision of 16 December 1998, it granted O. sole custody of his children. On 28 September 2001, the Zweibrücken District Court rejected O.’s request to return Nina, Joshua and Sasha to Canada under the auspices of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter the Hague Convention). It found that as Ms Paradis had had sole custody of the children both at the time when they had left Canada, and at the time when she had refused to return, Article 3 of the Hague Convention had not been violated. The District Court also observed that the applicability of the Hague Convention to situations where a parent’s custody right was limited by special conditions was legally controversial. In any case, O. had not been in possession of custody rights at the relevant time and had not complained of a violation of his rights to access. On 14 June 2002, the Windsor Superior Court issued a “certificate of wrongness” wherein it found that the removal and subsequent retention of the children Nina, Joshua and Sasha from the Province of Ontario, without returning them after a two-week visit to Germany, was a wrongful removal and retention within the meaning of Article 3 of the Hague Convention. Following O.’s appeal, appeals proceedings were initiated before the Palatinate Court of Appeal, in the course of which Nina and Joshua were heard. The Court of Appeal ordered the preparation of a psychological expert opinion in order to find out whether the children themselves were opposed to returning to Canada or whether their refusal was based on their mother’s influence. The expert was also asked to assess whether the two children had attained a degree of maturity that would allow them to realise the consequences of their decision. In the expert opinion dated 8 May 2002, the expert found that Nina and Joshua’s refusal to return to their father derived from the tensions between their parents. The main reason for their refusal to return lay in the negative experiences with their father which dated back to the time when they had been in contact with him. Although their hostile attitude towards their father was partially based on their mother’s tales of past events, it was mostly a consequence of the children’s own memories which made them fear their father. Regarding their degree of maturity, the expert found that both children were able to give reasons for their decision that corresponded to their age. On 26 June 2002, the Court of Appeal revoked the District Court’s decision and ordered Ms Paradis to return Nina, Joshua and Sasha to Canada by 20 July 2002. In the event that she should refuse to comply with this order, the Court of Appeal authorised the court’s bailiff to return the children to their father. The bailiff was authorised to use force if necessary in order to overcome Ms Paradis’ resistance, to search her apartment and to ensure the children’s removal. In its decision, the Court of Appeal endorsed the Superior Court’s “certificate of wrongness” of 14 June 2002. Based on the expert opinion, it did not consider that returning the children to Canada would be contrary to their best interests. In particular, nothing suggested that there was “a grave risk that returning them would expose them to physical or psychological harm or place them in an intolerable situation” within the meaning of Article 13 of the Hague Convention. The Court of Appeal noted that Ms Paradis had not managed to establish that O. had sexually harassed either Vanessa or Nina. Although it believed the children’s allegations that he had often applied inappropriate methods when punishing them in the past, the Court of Appeal did not consider that this meant that they would be in danger of suffering physical or psychological harm if they returned to Canada. Ms Paradis’ allegations that he had often beaten her and the children with objects were considered unsubstantiated. The Court of Appeal failed to comprehend why Ms Paradis had not trusted the Canadian authorities or courts to protect her and the children from her husband’s violent actions. The Court of Appeal also did not consider that Nina and Joshua’s refusal to return to their father could prevent them from going back to Canada. Based on the expert report, it found that with nine years of age they had not yet attained an age and degree of maturity at which it would be appropriate to take account of their views under Article 13 of the Hague Convention. According to the Court of Appeal, nothing suggested that Nina and Joshua were particularly mature for their age. Given the fact that they were greatly influenced by their mother and by the tensions between their parents, the Court of Appeal did not attach much weight to the children’s objections to being returned to Canada. It showed itself aware of the difficulties a removal back to Canada would occasion for the children. From a legal point of view, however, this alone could not suffice to prevent their return, as otherwise any parent wrongfully removing a child could, by delaying the child’s return, prevent such a return from ever taking place. On 8 August 2002, the Federal Constitutional Court refused to entertain the complaint lodged by Ms Paradis on behalf of Nina, Joshua and Sasha. On 24 January 2003, following O.’s request, the Zweibrücken District Court issued a special order to execute the decision of 26 June 2002, under the condition that O. request the Windsor Superior Court to refrain from executing the sentence issued against Ms Paradis for contempt of court. According to the District Court, this was necessary to ensure that Ms Paradis could accompany the children to Canada, as it considered a separation from their mother at this stage to be detrimental to their best interests. It obliged O. to submit propositions regarding a financially secure accommodation for Ms Paradis and the children, as well as alimony payments for all of them. He was also held to submit financial securities for the payment of their plane tickets. In order to stop the imminent execution of the court decision of 26 June 2002, Ms Paradis requested legal aid with a view to declaring the execution of this decision inadmissible. On 17 February 2003, the District Court rejected her request for legal aid, finding that her claim had no prospect of success. It found that nothing suggested that O. had deliberately misled the Court of Appeal, thereby inducing it to decide in his favour. In this context, the District Court referred to the certificate of wrongness issued by the Windsor Superior Court of 14 June 2002. The District Court did not follow Ms Paradis’ arguments that the aim of the Hague Convention could no longer be reached due to the lapse of time since. It noted that she herself had delayed the execution proceedings by submitting requests and motions to the courts. Moreover, Ms Paradis had agreed to return to Canada with the children under certain conditions. The District Court noted that on 31 January 2003, the General Prosecutor in Ontario had agreed to withdraw all criminal charges accusing Ms Paradis of child abduction upon confirmation of the competent police authorities in Windsor that they had arrived in Canada. Ms Paradis was now therefore at liberty to enter Canada. On 17 February 2003, the District Court ordered the court bailiff to execute the decision of 26 June 2002. On 18 March 2003, the bailiff, accompanied by the police, two representatives of the local Youth Office as well as O., his parents and his lawyer, attempted to remove the children from Ms Paradis’ home. Following the children’s explicit refusal to accompany him, the court bailiff decided not to pursue the enforcement measure. On 26 March 2003, the District Court rejected O.’s request that, in order to implement the above decision, the court bailiff be vested with the right to use force against the children or to permit O. to use such force, should the children persist in their refusal to leave their mother’s home. Given the danger that such an action could pose to the children’s well-being, the District Court did not wish to grant this request without consulting a psychological expert. On 9 April 2003, following O.’s appeal, the Palatinate Court of Appeal vested the court bailiff with the right to use force against the children or to let third persons of his choice use such force, in order to ensure the execution of the court order of 26 June 2002. It ordered the local Youth Office to attend the execution and to assist the court bailiff if appropriate and necessary. The Court of Appeal found that Ms Paradis had not submitted any new facts that would allow it to deviate from its decision of 26 June 2002. In particular, the argument based on the amount of time that the children had already spent living in Germany did not lead to a different assessment of the situation, for otherwise any illegal child abduction could evolve into a permanent illegal situation, merely due to the passing of time. The Court of Appeal noted that no special psychological education and experience were needed to realise that in general, children will tend to oppose any changes in their living conditions, in particular if such changes are initiated by a parent with whom they have had no contact for a long time and who is thus considered a stranger. According to the Court of Appeal, the children’s refusal to return to Canada, insofar as it was not a result of their mother’s influence, was mostly due to their fear of change and of an unknown future. It did not see their refusal as an indication that a return to their father by force would cause traumatic disturbances to their future development, thereby endangering their best interests. The Court of Appeal assumed that the children would quickly recover once they had returned to Canada, even if their return was brought about by force. It did not consider that a less severe measure, such as ordering Ms Paradis to pay a fine, would be effective, as only the children’s removal from Ms Paradis’ home, if necessary by force, would ensure their safe return to Canada. On 30 April 2003, the Federal Constitutional Court refused to entertain the constitutional complaint of Nina, Joshua and Sasha, in which they had complained about the Palatinate Court of Appeal’s decision of 9 April 2003 to vest the bailiff with the right to use force against Nina, Joshua and Sasha or to let third persons of his choice use such force, in order to ensure the execution of the court order on their return to Canada. Also on 30 April 2003, the Zweibrücken District Court, following O.’s request, issued a new court order in which it ordered the bailiff to execute the Court of Appeal’s order of 26 June 2002, taking into account the decision of 9 April 2003. It vested the court bailiff with the right to search Ms Paradis’ premises and, if necessary, request aid from the police. The competent Youth Office was also held to assist the execution proceedings. Article 1 “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 2 “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” Article 3 “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 5 “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; (b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 14 “In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.” Article 15 “The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ...” Article 16 “After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice” Article 19 “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” | 0 |
train | 001-103763 | ENG | BIH | CHAMBER | 2,011 | CASE OF ŠEKEROVIĆ AND PAŠALIĆ v. BOSNIA AND HERZEGOVINA | 3 | Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Violation of Art. 14+P1-1;Non-pecuniary damage - award | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | 5. Mr Šekerović was born in 1932 and lives in Tuzla, Bosnia and Herzegovina. Ms Pašalić was born in 1926 and lives in Belgrade, Serbia. 6. Mr Šekerović was granted an old-age pension in 1984 and Ms Pašalić in 1981. 7. In 1992 they moved from what is today the Federation of Bosnia and Herzegovina (“the Federation”) to what is today the Republika Srpska (each of the Federation and the Republika Srpska being an “Entity”). While they were internally displaced, they received their pensions from the Republika Srpska Pension Fund (“the RS Fund”). 8. Having returned to the Federation in 2000 and 2001 respectively, the applicants unsuccessfully sought to have their pension entitlements transferred from the RS Fund to the Federation Pension Fund (“the FBH Fund”). Therefore, in 2002 they lodged applications with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina. 9. On 10 January 2003 the Human Rights Chamber delivered a landmark decision concerning three applicants, including one of the applicants in the present case (Ms Pašalić) and the applicant in Karanović (cited above), who had been granted pensions in what is today the Federation before the war, who had then moved to what is today the Republika Srpska during the war, and who, for that reason only, continued to receive RS Fund pensions despite their return to the Federation after the war (pursuant to the Pension Agreement, see paragraph 16 below). They were thus treated differently from those who had stayed in what is today the Federation during the war. The Human Rights Chamber considered that difference in treatment to be discriminatory and an obstacle to the return of displaced persons to their pre-war homes (RS Fund pensions were normally lower than FBH Fund pensions, and the cost of living was normally higher in the Federation). Furthermore, it held that the situation complained of had racist connotations (given the nature of the war, the population that had moved from what is today the Federation to what is today the Republika Srpska during the war had primarily been Serbs, and those who had stayed were mostly Bosniacs and Croats). The Human Rights Chamber ordered the Federation: (a) to take all necessary legislative and administrative actions by 10 July 2003 to ensure that the applicants were no longer discriminated against, particularly in comparison to those pensioners who had remained in what is today the Federation during the war; and (b) to compensate the applicants for the difference between their RS Fund pensions and the amount they would have received from the FBH Fund from the date of their application to the Human Rights Chamber until the date of the Federation’s compliance with the order under (a) above. 10. Having assessed that her pension from the FBH Fund would have been lower than the nominal amount of her pension from the RS Fund, on 22 July 2003 the FBH Fund informed Ms Pašalić that she would not be paid any compensation. The FBH Fund disregarded the fact that, at that time, pensioners in the Republika Srpska, as opposed to those in the Federation, did not receive the nominal amount of their pensions, but only a fraction thereof, owing to fiscal difficulties in that Entity. 11. Mr Šekerović’s case was still pending when the Human Rights Chamber ceased to exist on 31 December 2003. The Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) took over his case and on 27 June 2007 delivered a judgment similar to that in Ms Pašalić’s case. 12. On 14 December 2007 the FBH Fund decided to pay Mr Šekerović 8,345 convertible marks (BAM) by way of compensation for the difference between the sum which he had received from the RS Fund between 16 April 2002 and 30 November 2007 and the sum which he would have received from the FBH Fund in the same period. It also decided to continue paying any such difference in the future. In March 2008, for example, the applicant received BAM 531 from the RS Fund and BAM 105 from the FBH Fund. 13. After the Karanović judgment, cited above, the FBH Fund revised its practice and agreed to compensate Ms Pašalić for the difference between the sum which she had actually received from the RS Fund (rather than the nominal amount of her RS Fund pension, see paragraph 10 above) and the sum which she would have received from the FBH Fund in the period after 18 February 2002. In order to determine the amount due, on 23 June and 22 July 2008 the FBH Fund asked the RS Fund to indicate the sums actually paid to Ms Pašalić. The RS Fund failed to respond. On 3 July and 28 August 2008 the FBH Fund sent letters to Ms Pašalić (one to an address in Sarajevo and the other to an address in Belgrade), but they were returned as undeliverable (addressee unknown). In June 2010 the applicant finally provided the necessary information and in July 2010 the FBH Fund paid Ms Pašalić BAM 1,425 (that is, BAM 839 for 2002, BAM 530 for 2003 and BAM 56 for 2004). Since 2005 the applicant had apparently been receiving more from the RS Fund than she would have received from the FBH Fund (in April 2010 she thus received BAM 627 from the RS Fund whereas she would have received BAM 483 from the FBH Fund). 14. On 13 October 2010 the Constitutional Court held that its decision in Mr Šekerović’s case of 27 June 2007 had not been enforced, because he had not yet been granted an FBH Fund pension (see paragraph 19 below). 15. According to official figures, the average pension has always been lower in the Republika Srpska than in the Federation. That difference has, however, decreased: while in 2003 the average pension was BAM 133 in the Republika Srpska and BAM 192 in the Federation, in 2009 the figures were BAM 335 in the Republika Srpska and BAM 346 in the Federation. Furthermore, pensioners in the Republika Srpska now receive, as do those in the Federation, the nominal amount of their pensions (until recently, the former, as opposed to the latter, were only receiving a fraction of their nominal pensions owing to fiscal difficulties in that Entity). 16. The Pension Agreement between the local pension funds entered into force on 27 March 2000. Pursuant to Article 2 § 1 of that Agreement, persons who were receiving pensions from, for example, the RS Fund on 27 March 2000 will continue to receive their pensions from that Fund, even if they subsequently move to the Federation. 17. All pensioners living in one Entity have equal access to health care, regardless of whether they receive their pensions from that Entity or from the other Entity (Article 2 § 2 of the Health Care Agreement). 18. Pensions are not taxable in either of the Entities, regardless of whether they are received from the Entity concerned, from the other Entity or from abroad (see the Income Tax Act 2008 and the Income Tax Act 2006). 19. The former Human Rights Chamber and the Constitutional Court rendered four decisions concerning nineteen pensioners (including the present applicants) who had been granted pensions in what is today the Federation before the war, who had then moved to what is today the Republika Srpska during the war, and who, for that reason only, had continued to receive RS Fund pensions despite their return to the Federation after the war. They held that this amounted to discrimination and ordered that some general measures be taken by the Federation (see paragraph 9 above). The Constitutional Court considered that the full enforcement of those decisions required that the applicants be granted FBH Fund pensions and that the applicable legislation be amended so as to render all others in that situation eligible to apply for FBH Fund pensions (see decisions CH/02/9364 of 13 December 2007 and CH/00/6413 of 13 October 2010). 20. In contrast, as regards those who had been granted pensions in what is today the Federation before the war, who had moved to what is today the Republika Srpska during the war and who had not returned to the Federation after the war, the same bodies held that the fact that they received RS Fund pensions (instead of higher FBH Fund pensions) did not amount to discrimination (Human Rights Chamber’s decision CH/03/12994 of 4 November 2003 and Constitutional Court’s decision AP/272/08 of 28 April 2010). | 1 |
train | 001-75463 | ENG | BGR | CHAMBER | 2,006 | CASE OF RIENER v. BULGARIA | 2 | Violation of P4-2 (prohibition against leaving Bulgaria);Not necessary to examine Art. 8;Violation of Art. 13+8;Violation of Art. 13+P4-2;No violation of Art. 8 or Art. 13 (refusal of requests to renounce citizenship);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 8. The applicant, Mrs Ianka Riener, was born in 1946 in Lubimetz, Bulgaria, and lives currently in Sofia. 9. The applicant moved to Austria in 1985 and in 1986 married an Austrian national. In December 1989 she obtained Austrian nationality. Until December 2004 she remained a Bulgarian national (see paragraphs 48-52 below). 10. The applicant has a daughter, born in 1963 in Bulgaria, currently an Austrian national living in Austria with her husband and children (the applicant’s grandchildren). 11. The applicant was co-owner and commercial director of a company registered in Austria. In January 1991 she also registered in Bulgaria as a foreigner conducting economic activities there. Her main business was the importation of coffee in Bulgaria. 12. Between 1991 and 1995 the applicant spent most of her time in Bulgaria. She has remained there ever since. 13. By decision of 1 July 1992 a district fiscal authority in Sofia found that the applicant owed 26,494,582 “old” Bulgarian levs (“BGL”) of unpaid excise tax and BGL 4,104,925 of interest (the total amount due having been at the time the equivalent of about 1 million United States dollars (“USD”). The applicant’s ensuing appeals were dismissed on 20 August 1992 by the Sofia fiscal authority and on 7 April 1993, after a hearing on the matter, by the Sofia City Court. On 7 October 1994 the Supreme Court dismissed the applicant’s petition for review (cassation) of the above decisions. The applicant then instituted proceedings seeking to declare the fiscal decisions null and void. This was refused by the Sofia Regional Court on 28 October 1996. 14. In 1992 and 1993 the fiscal authorities attached certain monies in bank accounts of the applicant and her company. It appears that not more than BGL 400,000 (less than 2 % of the debt) was thus collected in 1992. 15. In 1993 the fiscal authorities attached another USD 50,000. A smaller amount of money was seized from the applicant in relation to a criminal investigation against her, opened in 1991. The investigation was discontinued in 1993 and the money restored to her later (see paragraphs 53-56 below). 16. On 1 March 1995 the Sofia fiscal authority asked the Passport Department at the Directorate of the Police (Napravlenie “Pasporti i vizov rezhim, DNP) (“the Passport Police”) to impose on the applicant a travel ban under section 7 of the Law on Passports for Travelling Abroad (Zakon za zadgranichnite pasporti) (“the Passport Law”), until the payment of her debt, as established by the courts. 17. On 7 March 1995 the Passport Police issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized. The order referred to the fiscal decisions in the applicant’s case, stated that she had Bulgarian and Austrian nationality, and relied on section 29(1)(v) of the Law on the Sojourn of Aliens in Bulgaria (Zakon za prebivavane na chuzhdentzite v Balgaria). 18. On 4 April 1995 the Bulgarian border control authorities seized the applicant’s Austrian passport when she attempted to leave Bulgaria and to enter Greece. The applicant did not have a Bulgarian passport. 19. Upon the applicant’s complaint, on 20 April 1995 the Passport Police informed her that a travel ban under section 29(1)(v) of the Law on the Sojourn of Aliens had been imposed, in relation to the applicant’s obligation to pay BGL 26,499,582. 20. On 26 May 1995 the applicant submitted an appeal to the Ministry of the Interior. She stated that the measure was unlawful as on other occasions she had been considered a Bulgarian citizen. On 22 June 1995 the Ministry replied stating that the measure against her had been based both on section 7(e) of the Passport Law and on section 29(1)(v) of the Law on the Sojourn of Aliens and had been lawful. 21. On 28 June 1995 the applicant submitted an appeal to the Sofia City Court. She stated, inter alia, that she was a Bulgarian citizen and measures under section 29 of the Law on the Sojourn of Aliens could not be applied against her. She also claimed that the authorities held an adequate security as they had attached funds of the Austrian company worth USD 50,000. Insofar as section 7(e) of the Passport Law had been invoked, this provision concerned the possibility to refuse the issuance of, or to seize, a Bulgarian passport, not an Austrian one. 22. On 24 April 1996 the City Court held a hearing, which was attended by the parties and their representatives. The applicant’s husband was also present. 23. On 13 June 1996 the Sofia City Court dismissed the appeal. It found that the applicant’s obligation to pay a significant amount in taxes, as established by the courts, was a sufficient ground, under section 7(e) of the Passport Law, to seize any passport which is used for international travel. Unpaid tax was also a ground to impose a prohibition against leaving Bulgaria under section 29(1)(v) of the Law on Sojourn of Aliens. Although this provision did not provide expressly for a confiscation of a foreign passport, if applied in conjunction with the relevant regulations, it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from Bulgaria. Since the applicant had double citizenship the authorities correctly relied both on the Law on the Sojourn of Aliens and on the Passport Law. 24. On 25 June 1996 the applicant submitted to the Supreme Court a petition for review (cassation). On 17 March 1997, the Supreme Administrative Court, to which the case was transmitted following a reform in the judicial system, dismissed the applicant’s petition for review (cassation). It appears that another appeal against these decisions was dismissed by the Supreme Administrative Court on 13 June 1999. 25. By partial decision of 12 April 1996 and final decision of 11 April 1997 (DR 89, p. 83) the former European Commission of Human Rights declared inadmissible the applicant’s application in which she claimed, inter alia, that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside Bulgaria. The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as Bulgaria had not been a party to Protocol No. 4 of the Convention and that the latter complaint, examined under Article 8 of the Convention, was manifestly ill-founded, the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family between 1991 and 1995. The Commission also noted that there were no obstacles against the applicant’s family joining her in Bulgaria. In these circumstances there was no interference with her rights under Article 8 of the Convention. 26. In 1996 and 1997 the value of the Bulgarian currency depreciated sharply and the inflation rate ran high. Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency. As a result, persons owing monetary debts denominated in Bulgarian currency saw the burden of their debt diminish. 27. According to calculations made by the fiscal authorities, as of 25 June 1997 the applicant’s outstanding debt was BGL 317,482,761 (the equivalent of approximately USD 160,000 at that time). 28. On 18 July 1997 the applicant requested the Ministry of the Interior to terminate the prohibition against her leaving the country. On 5 August 1997 the request was refused. The decision stated that the prohibition was still in force and that the matter could not be re-examined, all administrative and judicial avenues of appeal having been exhausted. 29. The applicant appealed against that refusal to the Sofia City Court which, on 11 November 1997, granted the appeal and set aside the refusal of the Ministry of the Interior. The court noted that the prohibition had been based on the Law on the Sojourn of Aliens. However, the applicant also had a Bulgarian nationality and, therefore, was not an alien. The authorities should have applied the Passport Law. Furthermore, the fiscal authorities were holding a significant amount as security, which could probably satisfy their claim against the applicant. It appears that the latter conclusion of the court was not based on a precise calculation of the debt. The Sofia City Court’s judgment of 11 November 1997 never entered into force as the Ministry of the Interior successfully appealed (see paragraphs 38-40 below). 30. On 14 November 1997 the passport police issued a new order prohibiting the applicant’s leaving Bulgaria. The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt. It was based on section 29(1)(v) of the Law on the Sojourn of Aliens. 31. Following these developments, there were two separate sets of judicial proceedings and two administrative proceedings, all concerning the travel ban imposed on the applicant: 32. On an unspecified date in 1997 the applicant appealed to the Sofia City Court against the order of 14 November 1997. 33. On 20 May 1999 the Sofia City Court dismissed her appeal, noting that the applicant owed significant amounts and that insufficient security had been provided. 34. Upon the applicant’s cassation appeal, on 21 June 2000 the Supreme Administrative Court upheld the lower court’s decision. Addressing the applicant’s argument that the new Aliens Law, in force since December 1998, should be applied, the court stated that that law did not have retroactive effect. The courts’ task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued. Furthermore, it was not true that there had been “violations of international law”. 35. Separately, in 2000 the applicant also submitted administrative appeals against the order of 14 November 1997. She relied, inter alia, on Protocol No. 4 to the Convention, in force for Bulgaria as of 4 November 2000. 36. Her appeal to the Ministry of the Interior was dismissed on 12 December 2000. The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited. As to the Fourth Protocol to the Convention, its Article 2 provided that freedom of movement could be restricted by national law. The former Law on the Sojourn of Aliens and the new Aliens Law provided for such restrictions. 37. The applicant’s appeal to the Ministry of Finance was dismissed on 2 January 2001. She received a letter explaining that the measures against her were lawful as she had not paid her debt. Furthermore, the applicant could not rely on the Fourth Protocol to the Convention, which had entered into force for Bulgaria in 2000, because the impugned order had been issued on 14 November 1997. 38. On an unspecified date in 1997 the Ministry of the Interior appealed against the Sofia City Court’s judgment of 11 November 1997 (see paragraph 29 above). In these proceedings the Ministry’s request for a stay of execution was granted on 23 December 1997 by the Supreme Administrative Court. In her submissions to the courts the applicant relied, inter alia, on Articles 8 and 13 of the Convention. 39. On 22 December 1999 the Supreme Administrative Court set aside the Sofia City Court’s judgment of 11 November 1997 and dismissed the applicant’s request for the termination of the travel ban. The court found that the deposit held by the fiscal authorities as security was insufficient. It also found that prohibitions on leaving the country could be imposed on Bulgarian and foreign nationals alike and that it was not unlawful to rely on the Law on the Sojourn of Aliens. Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear, the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt. The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid. 40. The applicant’s subsequent request for reopening of these proceedings was dismissed on 19 March 2001. 41. The prohibition against the applicant leaving Bulgaria remained in force. Throughout the relevant period, by way of yearly internal notes the fiscal authorities informed the passport police that the applicant had not paid yet. 42. On 13 February 2002 the applicant’s Austrian passport was returned to her without prejudice to the prohibition on her travelling outside Bulgaria, which remained in force. 43. On 10 February 2003 the applicant again requested that the travel ban be lifted, arguing that the statutory limitation period in respect of her debt had expired. 44. By letter of 13 February 2003 the Passport police refused. The applicant filed an appeal with the Sofia City Court, but it was never examined. 45. On 26 August 2004 the Sofia tax authority sent a letter to the Ministry of the Interior, Directorate of Migration, stating, inter alia: “Having regard to the fact that the absolute prescription period with regard to the [applicant’s] fiscal debt, which was established by administrative decisions of 1 July 1992 and 9 October 1992, has expired and taking into consideration the fact that the [applicant] has made an objection with reference to the expiry of the prescription period, [it follows that] the fiscal administration’s right to seek the collection of the debt is extinguished... Therefore, there are no longer valid grounds for the prohibition against [the applicant] leaving the country... You are requested to repeal [that] administrative measure...” 46. On 27 August 2004 the Ministry of the Interior repealed the prohibition. On 1 September 2004 the applicant received a copy of the order. 47. The applicant remained in Bulgaria. In her letter of 23 September 2005 to the Court she explained that she stayed because she needed to organise the liquidation of her husband’s company in Bulgaria and that she would leave as soon as the liquidation procedure was completed. 48. In 1989, 1994 and 1995 the applicant’s requests to renounce her Bulgarian citizenship were refused by way of unreasoned decisions. 49. In February 2001 the applicant submitted again a request to the Ministry of Justice, seeking to renounce her Bulgarian citizenship. By decree of the President of Bulgaria of 12 October 2001 the request was refused. The decree is not amenable to judicial review (see paragraph 70 below). The applicant nevertheless attempted to institute judicial proceedings, challenging the fact that the Ministry of Justice had given a negative opinion on her request, before its transmission to the President. Those proceedings ended by final decision of 22 April 2004 of the Supreme Administrative Court, whereby the applicant’s appeal was declared inadmissible. 50. Despite the refusal of her request, as she did not wish to be regarded as a Bulgarian citizen, the applicant refused to apply for Bulgarian identity papers and as a result encountered certain difficulties in respect of health care, housing, etc in the period 2001–2004. The applicant wished to have papers of a foreigner residing in Bulgaria. However, she was repeatedly informed that in accordance with the relevant law Bulgarian citizens who held a second citizenship were considered as Bulgarian citizens for purposes of their relations with the Bulgarian authorities. 51. On 19 June 2003 the applicant requested again to renounce her Bulgarian citizenship. In 2003 the Austrian Embassy in Sofia inquired with the Bulgarian authorities about the applicant’s situation, expressed the view that the statutory prescription period for the applicant’s debt had expired and considered that the applicant’s request to renounce her Bulgarian citizenship could be granted. 52. By decree of 8 December 2004, the Vice President of Bulgaria granted the applicant’s request to renounce her Bulgarian citizenship. The applicant was informed thereof by letter of 25 January 2005. 53. On 23 November 1998 the Sofia District Court gave judgment in a case concerning the applicant’s appeal against the attachment order made by the fiscal authorities in 1993. The attachment order was declared unlawful and set aside. As a result, on 6 January 1999 the fiscal authorities lifted the attachment of USD 50,000 which was paid to the applicant’s bank account. 54. In September 1999 the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her. 55. On 15 May 2003 the Sofia City Court dismissed the claims. The court acknowledged, inter alia, that the attachment imposed by the fiscal authorities in 1993 had been declared unlawful in 1998 and that the seizure of an amount of money in 1991 by the investigation authorities had also been annulled. As a result, in principle the applicant was entitled to compensation under the State Responsibility for Damage Act. However, she had failed to prove the amount of the loss suffered. Her action was, therefore, unsubstantiated and ill-founded. As far as alleged losses resulting from the travel ban were concerned, the court found that the prohibition on the applicant leaving Bulgaria was lawful and no issue of State liability arose. 56. The applicant appealed to the Sofia Appellate Court. The outcome of those proceedings is unknown. 57. Article 35(1) of the Constitution provides that “[e]veryone shall have the right to ... leave the country” and that this right “may be subject to restrictions provided for by act of Parliament, in the interest of national security, for the protection of public health and the rights and freedoms of others.” 58. At the time when the initial prohibition was imposed, the relevant legal provisions were those of the Law on the Passports for Travelling Abroad (the Passport Law) and the Law on the Sojourn of Aliens. 59. The Passport Law, in sections 7(e) and 8, provided that the issuance of a passport might be refused, or the passport seized, if, inter alia, the person concerned had “significant pecuniary obligations, established by the courts, owed to the State or to Bulgarian legal persons or nationals, except if the [person’s] possessions cover the obligations or if a duly executed collateral is submitted.” 60. Section 29 of the Law on the Sojourn of Aliens insofar as relevant, provided that an alien might be refused permission to leave the country where he or she owed the payment of a fine or another pecuniary obligation to the State. Paragraph 2 of section 29 provided: “The alien may be authorised by the competent state organ to leave the country if there are guarantees that he [or she] will fulfil the obligations ... or if a security has been deposited...” 61. In December 1998 the Law on the Sojourn of Aliens was superseded by the Aliens Law. 62. Its section 43 provides that a prohibition on leaving the country may be imposed on aliens or persons who hold at the same time a Bulgarian and a foreign nationality. 63. In the initial text of the 1998 Aliens Law, one of the grounds for such a prohibition was unpaid debts. According to section 43 as in force since 2002, only unpaid debts owed to the State and exceeding 5,000 “new” Bulgarian levs (“BGN”) (approximately EUR 2,500) may serve as grounds for a ban on leaving the country. 64. On 1 April 1999 the Passport Law was superseded by new legislation, the Law on the Bulgarian Identity Documents. 65. Under section 75(5) of the new law, Bulgarian citizens who owe significant amounts to the State may be prevented from leaving the country. 66. Under all relevant provisions, the only grounds on which a prohibition on leaving the country may be lifted are payment of the debt or the deposit of sufficient security. The prohibition is not subject to a statutory maximum of duration. 67. In accordance with section 22 of the Fiscal Procedure Act, in force until 1 January 2000, the statutory prescription period for fiscal and other public receivables was five years. That provision remains applicable to all fiscal receivables that became due before 1 January 2000 (Decision no. 8179 of 25.08.2003 in case no. 7256/02 of the Supreme Administrative Court). 68. In accordance with section 6 §§ 3 and 4 of the Collection of State Receivables Act 1989, in force until June 1996 (applicable in respect of receivables that became due before June 1996) and section 4 §§ 3 and 4 of the Collection of State Receivables Act 1996, as in force between June 1996 and 1 January 2000, a fresh five years’ prescription period starts to run whenever the fiscal authorities undertake action to seek payment. It appears that as long as judicial proceedings concerning the fiscal receivable are pending, it is considered that action to seek payment is being undertaken (Decision no. 2352 of 16 March 2004 in case no. 4396/03 of the Supreme Administrative Court). Regardless of any suspension or renewal of the prescription period, fiscal receivables that became due before 1 January 2000 are considered prescribed after fifteen years (“absolute prescription period”) (section 6 § 5 of the Collection of State Receivables Act 1989 and section 4 § 5 of the Collection of State Receivables Act 1996). 69. As of 1 January 2000, the new Fiscal Procedure Code regulates prescription periods in respect of receivables that became due after its entry into force. The “absolute prescription period” under the Code is ten years. 70. In accordance with section 20 of the Bulgarian Citizenship Act, a Bulgarian citizen living permanently abroad and having acquired a foreign nationality may file a request for renunciation of Bulgarian nationality. The request is processed by the Ministry of Justice. A final decision is taken by the President of the Republic. The law does not require reasons to be given for a refusal of a request to renounce Bulgarian nationality. The President’s decree is not amenable to judicial review (procedural decision of the Supreme Administrative Court no.1183 of 23.02.2001 in case no. 9708/2000). 71. Under the relevant fiscal law, renunciation of Bulgarian nationality is not among the grounds on which an individual may be relieved from the obligation to pay tax liabilities. 72. In the law of several member states a possibility for imposing a ban on leaving one’s country due to tax obligations is expressly provided for: Croatia, Moldova, the Netherlands, Slovakia, Georgia, Poland, Russia, Ukraine and Norway. In Greece and Hungary the legal provisions allowing restrictions on the right to leave one’s country due to tax debts have now been abolished. 73. In most states the possibility to resort to a travel ban for unpaid taxes is not unconditional. In particular, in Croatia, a passport application can be denied if there is a justified suspicion that the applicant was going to evade a tax obligation. In the Netherlands, the law states that a travel document can be refused or invalidated if there is good reason to believe that the person is neglecting his obligation to pay taxes. In Slovakia, a passport can be withdrawn or its issue refused to a citizen upon a court’s or tax authority’s request when the person avoids the enforcement of the decision, or obstructs it or there is reason to believe that he or she will do so (an alien’s freedom to leave the country can also be restricted). In Poland “unfulfilled obligations established by a court” can serve as grounds for a travel ban only if there is a serious risk that the person’s travel abroad will render the fulfilment of the obligation impossible. In Norway, under the Enforcement of Civil Claims Act 1992, a debtor may be barred from leaving the country if that is essential for the enforcement of a court decision and seizure of property does not provide sufficient security (a prohibition order cannot be issued if, in view of the nature of the case and all of the circumstances involved, it would be a disproportionately severe measure and the order automatically ceases to have effect after 3 months). 74. A further area in which countries resort to travel bans, is bankruptcy proceedings. The laws of several countries stipulate that a court may impose a prohibition against a debtor leaving the country in order to secure his presence before the court (e.g. Estonia, Denmark, Finland, Italy, Norway). Most member States’ legal systems provide for prohibitions against leaving the country in respect of defendants in criminal proceedings. 75. In common-law jurisdictions, travel bans may be imposed by way of injunction. 76. In the United Kingdom, the tax authorities may seek from the courts a Mareva injunction (an order preventing the other party from disposing of assets outside the country), an injunction under section 37(1) of the Supreme Court Act 1981 to restrain the other party from leaving the jurisdiction (“Bayer injunction”) or the writ of “ne exeat regno”, an ancient writ which has much the same effect. 77. The simple fact that the person concerned has failed to pay would not be enough to satisfy the criteria for an injunction. In order to obtain an injunction under s. 37(1) restraining someone from leaving the country, the claimant must persuade the court that it is “necessary and convenient” to grant the order, for example, that the other party has information which he is refusing to disclose and which, if he is allowed to leave the United Kingdom, he will never disclose. A writ of “ne exeat regno” may be issued if several conditions are satisfied, such as, inter alia, cause to believe that the other party’s absence from the jurisdiction would materially prejudice the claimant in pursuing the action. 78. Because the orders above are interferences with the liberty of the subject, they should last no longer than necessary – e.g. until the other party has disclosed all the information that they were refusing to disclose. The orders can be discharged on grounds that one of the requisite conditions was not in fact fulfilled but also on ‘equitable’ grounds. 79. While the right to travel abroad is recognised as an implicit constitutional right in national case law, the courts have also recognised restrictions, in particular where there are “undischarged obligations”. 80. In civil contexts, Irish courts, like English courts, may make use of Mareva injunctions or Bayer injunctions, as described above. The High Court has held that such orders could be granted only in exceptional and compelling circumstances. Probable cause for believing that the defendant is about to absent himself from the jurisdiction with the intention of frustrating the administration of justice and/or an order of the court is a condition for granting an injunction. The injunction should not be imposed for punitive reasons. The injunction ought not to be granted where a lesser remedy would suffice and it should be interim in nature and limited to the shortest possible period of time. The defendant’s right to travel should be out-balanced by those of the plaintiff and the proper and effective administration of justice. 81. Article 12 of the ICCPR, which served as a basis for the drafting of Article 2 of Protocol No. 4 to the Convention, reads, in so far as relevant: “... (2) Everyone shall be free to leave any country, including his own. (3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant...” 82. The preparatory work of paragraph 3 of Article 12 reveals that, before agreeing on the general formula, the drafters had attempted first to come up with an exhaustive list of all grounds for restriction. The first draft thus contained no less than 14 reasons for which freedom of movement could be restricted, including tax debts. The list was eventually abandoned in favour of a general restriction clause. 83. The UN Human Rights Committee has not dealt specifically with the issue of tax debts either in its General Comment No. 27 (1999) on Article 12 of the ICCPR or in its observations on State reports in the context of the monitoring procedure. General Comment No. 27 (1999) contains some observations on the interpretation of Article 12: “Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.” 84. In the context of the complaint procedure, in the case of Miguel González del Río v. Peru, the Committee was called to examine the proportionality of the restriction on the applicant’s freedom to leave his country imposed in judicial proceedings which had been delayed. It held as follows: “The Committee considers that pending judicial proceedings may justify restrictions on an individual’s right to leave his country. But where the judicial proceedings are unduly delayed, a constraint upon the right to leave the country is thus not justified. In this case, the restriction on Mr. González’ freedom to leave Peru has been in force for seven years, and the date of its termination remains uncertain. The Committee considers that this situation violates the author’s rights under article 12, paragraph 2...” 85. The national citizenship laws generally provide that a renunciation request can be accepted only if the person concerned has acquired the citizenship of another state or has given assurances of acquiring one. Many states also require that the person concerned has his habitual residence abroad. 86. In a number of states renunciation requests may be refused in connection with military service duties (Austria, Estonia, France, Croatia, Germany, Greece, Latvia and Moldova) or if the person concerned is subject to criminal proceedings or has to serve a sentence imposed by a court (Albania, Austria, Bulgaria, Greece, Hungary, Lithuania, Romania, Russia, Slovakia and Ukraine). 87. The laws of Bulgaria, Croatia, Hungary, Romania and Slovakia provide explicitly that a person may not be released from citizenship if he or she has tax debts to the State. Also, under the laws of Albania, Estonia, Finland, Latvia and Russia, “unfulfilled obligations to the State” – which apparently may include tax debt – are grounds for refusing a renunciation request. 88. In Ireland the law explicitly separates renunciation of citizenship from any liability, specifying that renunciation does not free the person from any obligation or duty imposed or incurred before the severance of the link to the nation. In the United States of America, similarly, the act of renouncing citizenship may have no effect on the person’s tax obligations. 89. The ECN, which entered into force for several states in 2000, was signed by Bulgaria in 1998 and ratified in February 2006 (entry into force for Bulgaria on 1 June 2006). Its Article 8 provides: “Loss of nationality at the initiative of the individual 1. Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless. 2. However, a State Party may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad.” 90. According to the Explanatory report, it is not acceptable to refuse renunciation merely because persons habitually resident in another State still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin. Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin (paragraphs 78 and 81 of the report). 91. Article 11 of the ECN requires that “... decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.” | 1 |
train | 001-98210 | ENG | BGR | CHAMBER | 2,010 | CASE OF PARASKEVA TODOROVA v. BULGARIA - [English Translation] by European Roma Rights Centre "ERRC" | 2 | Violation of Art. 14+6-1;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority. 6. In 2005, on an undisclosed date, the Plovdiv District Prosecutor’s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv. 7. During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim’s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor’s medical certificate and had her son’s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant’s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court’s attention to the contradictions in the evidence of the prosecution’s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old. 8. In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence’s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant’s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code. 9. On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court’s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim’s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S.’s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant’s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant. 10. The District Court refused to suspend the execution of the three-year sentence for the following reasons: “The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence’s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself.” 11. The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution’s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence’s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor’s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant’s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution’s witnesses’ statements and the accountant’s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant’s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence. 12. On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution’s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant’s son’s companion, believing that they were not sufficiently specific. It found that the applicant’s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim’s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S.’s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows: “The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.” This judgment was not subject to appeal in ordinary cassation. 13. On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court. 14. In her defence brief submitted to the High Court, the applicant’s counsel challenged in particular the courts’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant’s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant’s sentence was motivated by her membership with a minority ethnic group. The applicant’s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client. 15. In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant’s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons: “It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society’s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society.” 16. Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor’s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens. 17. According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о.). 18. According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues. 19. According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal. 20. Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP). 21. If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal (Article 425, paragraph 1 of the CCP). 22. In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation. | 1 |
train | 001-70113 | ENG | TUR | CHAMBER | 2,005 | CASE OF İ.A. v. TURKEY | 1 | No violation of Art. 10 | null | 4. The applicant was born in 1960 and lives in France. 5. He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled “Yasak Tümceler” (“The forbidden phrases”). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single run. 6. In an indictment of 18 April 1994, the Istanbul public prosecutor (“the public prosecutor”) charged the applicant under the third and fourth paragraphs of Article 175 of the Criminal Code with blasphemy against “God, the Religion, the Prophet and the Holy Book” through the publication of the book in question. 7. The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed: “... the author arbitrarily uses theories about the physical substance of the universe, creation and the existence of natural laws to sway readers' minds towards the conclusions he wishes to be drawn from the book. In particular, in the passages on theology he imprisons readers within the limits of his own views, which are devoid of all academic rigour. ... He criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. ... This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation ... Although these passages may be regarded as a polemic in support of the author's philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam ... In the author's view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. The author describes religious faith as a 'desert mirage', a 'primitive idea' and 'desert ecstasy', and religious practices as 'the primitivism of desert life'. ...” 8. In his report the expert quoted numerous passages from the book under review, in particular: “... just think about it, ... all beliefs and all religions are essentially no more than performances. The actors played their roles without knowing what it was all about. Everyone has been led blindly along that path. The imaginary god, to whom people have become symbolically attached, has never appeared on stage. He has always been made to speak through the curtain. The people have been taken over by pathological imaginary projections. They have been brainwashed by fanciful stories ... ... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [regarding the story of the Prophet Abraham's sacrifice] it is clear that we are being duped here ... is God a sadist? ... so the God of Abraham is just as murderous as the God of Muhammad ...” The expert concluded his report as follows: “The passages which I have quoted from the book form the actus reus of the offence provided for in Article 175 of the Criminal Code. As regards the mens rea, my analysis shows that it has been made out, especially since the author entitled his book 'The forbidden phrases'.” 9. In a letter of 28 June 1994 to the Istanbul Court of First Instance, the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality. 10. On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report. 11. In a letter of 19 April 1996 to the Court of First Instance, the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report. 12. On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of the third paragraph of Article 175 of the Criminal Code and merely conveyed its author's philosophical views. 13. In a judgment of 28 May 1996, the Court of First Instance convicted the applicant and sentenced him to two years' imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book: “Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal.” 14. On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports. 15. On 6 October 1997 the Court of Cassation upheld the impugned judgment. 16. The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997. 17. The third and fourth paragraphs of Article 175 of the Criminal Code provide: “It shall be an offence punishable by six months to one year's imprisonment and a fine of 5,000 to 25,000 Turkish liras to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books ... or to vilify or insult another on account of his religious beliefs or fulfilment of religious duties ... The penalty for the offence set out in the third paragraph of this Article shall be doubled where it has been committed by means of a publication.” 18. Section 16(4) of the Press Act (Law no. 5680) provides: “With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author [or] translator ... of the publication which constitutes the offence, and by the publisher. ...” | 0 |
train | 001-75734 | ENG | SVK | CHAMBER | 2,006 | CASE OF MUCKOVA v. SLOVAKIA | 3 | Violation of Art. 6-1 (inadequate reasoning);Not necessary to examine Art. 6-1 (alleged lack of access to court);Violation of Art. 6-1 (length);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1939 and lives in Bratislava. 5. In 1989 the applicant’s daughter was seriously injured in a road traffic accident. The driver, who had been originally accused and convicted of having negligently caused bodily harm in that accident, was acquitted by a judgment of 20 February 1992. A driver of a different vehicle, who was an employee of the Ministry of the Interior, was subsequently accused of an offence in the context of that accident. 6. The applicant submits that, due to misconduct on the part of the State officials, the criminal proceedings lasted an excessively long time and that, until the liability of the drivers involved had been determined, the insurance company refused to compensate her for her daughter’s injuries. As a result the applicant became heavily indebted and she was in a difficult situation. 7. On 18 June 1992 the applicant filed a claim for damages with the Ministry of Justice. 8. On 25 June 1992 the Ministry of Justice informed the applicant that her action had been transmitted to the Bratislava I District Court which had jurisdiction to deal with the case. In her action the applicant claimed, with reference to the State Liability Act, compensation from the Ministry of the Interior for damage resulting from the above facts. The applicant also claimed protection of her personal rights and sought compensation for nonpecuniary damage in this respect. 9. On 29 June 1995 the District Court allowed the applicant’s request that the General Prosecutor’s Office be joined as the second defendant in the case. 10. In a judgment of 19 September 1996 the District Court decided to deal in a separate set of proceedings with the applicant’s claim for protection of her personal rights. It further dismissed the claim for damages under the State Liability Act of 1969. The court established that the defendants, as specified in the action, lacked standing in the case as the action should have been filed against the State. The judgment was served on 27 November 1996. 11. On 12 December 1996 the applicant appealed specifying that her action was aimed against the Slovak Republic, represented by the Ministry of the Interior and the General Prosecutor’s Office. 12. On 30 April 1997 the Bratislava Regional Court quashed the first instance decision to dismiss the claim under the State Liability Act of 1969. 13. In a decision of 18 September 1997 the Bratislava I District Court accepted the above specification of the defendant by the applicant. 14. On 11 June 1998 the District Court dismissed the claim under the State Liability Act of 1969. It did not find it established that there was a causal link between the actions of the authorities concerned and the alleged damage. In addition, the General Prosecutor’s Office lacked standing to act on behalf of the State as the applicant claimed. 15. On 28 July 1998 the applicant appealed. 16. A hearing before the Bratislava Regional Court was held on 3 February 1999. 17. On 23 March 1999 the Supreme Court dismissed the applicant’s request for three Regional Court judges to be excluded from dealing with the case. 18. On 26 May 1999 the Regional Court adjourned the case as it had not yet obtained, from a different court, a criminal file relating to the accident in which the applicant’s daughter had been injured. On 5 August 1998 the Ministry of Justice admitted, in reply to the applicant’s complaint, that undue delays had arisen in that context. 19. On 23 June 1999 the Bratislava Regional Court upheld the relevant part of the Bratislava I District Court’s judgment of 11 June 1998. The court noted that the applicant claimed that she had suffered damage as a result of erroneous actions of police and public prosecutors who had been involved in the investigation into the accident in which her daughter had been injured in 1989. Due to the misconduct of the authorities concerned, she had been unable to obtain compensation promptly from the insurance company. As a result, she had become indebted and her and her children’s life had been affected. 20. In its judgment the court of appeal established that the applicant’s claim for damages did not fall under the State Liability Act of 1969 and that the claim had to be examined under the legislation in force at the time of the accident. At that time, however, the law did not permit the applicant to recover. In any event, the documents included in the relevant criminal file did not indicate that the authorities concerned had acted in an incorrect manner thus causing any damage to the applicant. Finally, the Regional Court noted that the decision in the case was important for clarifying the interpretation and application of the relevant law by the courts. It therefore allowed an appeal on points of law to be lodged against its judgment. 21. On 13 September 1999 the applicant filed an appeal on points of law. She pointed out that she was indigent and requested that an attorney be appointed to represent her free of charge. 22. On 1 February 2000 the Vice-President of the Bratislava I District Court admitted that there had been undue delays in the proceedings concerning her action and offered an apology to her. 23. On 14 April 2000 the Bratislava I District Court, to which the above request of 13 September 1999 fell to be examined, rejected the applicant’s motion for free legal representation. It held that the statutory requirements were not met as the applicant’s claim and the previous judicial proceedings indicated that her claim was devoid of any prospect of success. Thus the applicant did not meet the requirements for exemption from the obligation to pay the court fee and, consequently, the court could not appoint a legal representative to represent her free of charge. Reference was made to Article 30 (1) of the Code of Civil Procedure. On 9 May 2000 the applicant appealed. 24. The Bratislava Regional Court upheld the first instance decision on 30 November 2000. In addition to the reason invoked by the District Court, the appellate court held that the applicant received a pension of 5,470 Slovak korunas (SKK) a month, and that the protection of her rights did not require that a lawyer be appointed to represent her free of charge. In particular, the cassation proceedings did not allow for a review of the assessment of the relevant facts. Finally, in the event that practising lawyers refused to represent the applicant, it was open to her to ask the Slovak Bar Association to assign a lawyer to represent her in the proceedings. 25. On 16 March 2001 the applicant informed the District Court of the name of the lawyer representing her in the cassation proceedings. However, the advocate did not accept the applicant’s appointment of her as she worked for the defendant Ministry. 26. On 4 May 2001 the applicant requested the Minister of Justice to assist her in finding a suitable lawyer. 27. On 19 September 2001 the applicant was again asked to appoint a lawyer to represent her in the cassation proceedings. On 21 September 2001 the applicant replied that she had used all remedies available and that she saw no chance of having the matter resolved before the Slovakian authorities. 28. On 29 October 2001 the Supreme Court discontinued the proceedings on the appeal on points of law on the ground that the applicant was not represented by an attorney as required by the law. The Supreme Court’s decision was served on the applicant on 10 December 2001. 29. As stated above, the applicant’s claim relating to the protection of her personal rights and compensation in this respect, which formed a part of her original action of 18 June 1992, was dealt with by the Bratislava I District Court in a separate set of proceedings as from 19 September 1996. 30. On 1 April 1997 the District Court invited the applicant to substantiate her claim. On 13 April 1997 the applicant replied that she claimed non-pecuniary damage of SKK 700,000 and SKK 1 million respectively from the Ministry of the Interior and from the General Prosecutor’s Office on the ground that those authorities had acted in an unlawful manner in the context of their examination of the accident in which her daughter had been injured in 1989. She explained that, as a result of the actions of the defendants, her dignity had been diminished, she had found herself in a difficult material situation and she had suffered a trauma. 31. On 6 July 1997 the District Court invited the applicant to pay a court fee of SKK 72,000. That amount was based mainly on the sums which the applicant had claimed as compensation. 32. On 17 July 1997 the applicant requested that she be exempted from the obligation to pay the fee as she was indigent. She explained that she was a retired widow and that she was still paying off a debt which she had been obliged to contract with a view to reducing the impact on her life of the accident in question. The applicant stated that her only income was an old-age pension of SKK 4,704 a month and that she owned no property. 33. On 24 July 1997 the District Court rejected her request. While accepting that the applicant was indigent, the court found, with reference to Article 138 (1) of the Code of Civil Procedure, that her action was clearly devoid of any prospect of success. On 17 October 1997 the applicant appealed. 34. The Bratislava Regional Court upheld the District Court’s decision on 16 July 1998. The decision stated that a claim is devoid of any prospect of success when allegations contained in a plaintiff’s action do not permit the establishment of the existence of a justified claim or where a plaintiff contests issues on which a binding decision has been given in a different set of proceedings. Reference was made to Articles 135 (1) and 159 (2) of the Code of Civil Procedure. 35. On 2 September 1998 the applicant filed an appeal on points of law. On 4 November 1998 she requested an attorney to be appointed to represent her free of charge in the cassation proceedings. The District Court rejected her request, on 20 November 1998, on the ground that the applicant did not meet the statutory requirements. Reference was made to the above decisions given by the District Court and the Regional Court. On 16 August 1999 the Supreme Court discontinued the cassation proceedings concerning the Bratislava Regional Court’s decision of 16 July 1998 as the applicant was not represented by an attorney as required by the law. 36. On 2 September 1999 the Bratislava I District Court invited the applicant to pay a court fee in respect of her claim for protection of her personal rights. On 20 September 1999 the applicant again requested that she should be exempted from the obligation to pay the fee. The District Court discontinued the proceedings relating to this request, on 27 January 2000, on the ground that a final decision on the issue had already been given. On 16 February 2000 the applicant appealed. On 8 April 2000 the Bratislava Regional Court upheld that decision. 37. On 1 February 2000 the Vice-President of the Bratislava I District Court admitted that there had been undue delays in the proceedings concerning her action. 38. On 14 December 2000 the Bratislava I District Court delivered a decision by which it discontinued the proceedings concerning the claim for protection of the applicant’s personal rights on the ground that the applicant had failed to pay the court fee. 39. On 2 February 2001 the applicant appealed. The Regional Court upheld the first instance decision on 30 March 2001. 40. The following provisions of the Code of Civil Procedure are relevant in the present case. 41. Article 30 (1) provides that courts may appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Article 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of the party’s interests so requires. 42. Article 135 (1) provides, inter alia, that courts are bound by decisions of competent authorities that a criminal offence, a minor offence or a different administrative offence has been committed, by decisions concerning the perpetrator of such an offence as well as by decisions determining a person’s status. 43. Under Article 138 (1), the presiding judge may grant a party’s request for waiver of court fees where it is justified by the situation of such a party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success. 44. Article 159 (2) provides, inter alia, that the operative part of a judgment which has become final is binding on the parties to the proceedings as well as on all authorities. 45. Article 241 (1) provides, inter alia, that in proceedings on an appeal on points of law the plaintiff must be represented by an advocate unless he or she has legal qualification. | 1 |
train | 001-61863 | ENG | TUR | CHAMBER | 2,004 | CASE OF LEYLA ŞAHİN v. TURKEY | 4 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief) | Nicolas Bratza | 10. The applicant was born in 1973 and has lived in Vienna since 1999, when she left Istanbul to pursue her medical studies at the Faculty of Medicine at Vienna University. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf. 11. On 26 August 1997 the applicant, who was then in her fifth year at the Faculty of Medicine at the University of Bursa, enrolled at the Cerrahpaşa Faculty of Medicine at the University of Istanbul. She says that she wore the Islamic headscarf during the four years she spent studying medicine at the University of Bursa and continued to do so until February 1998. 12. On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular regulating students’ admission to the university campus. The relevant part of the circular provides: “By virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (wearing the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, if students whose names and numbers are not on the lists insist on attending tutorials and entering lecture theatres, they must be advised of the position and, should they refuse to leave, their names and numbers must be noted and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record what has happened in a report explaining why it has not been possible to give the lecture and shall bring the matter to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.” 13. On 12 March 1998, in accordance with the aforementioned circular, the applicant was denied access by invigilators to a written examination on oncology because she was wearing the Islamic headscarf. On 20 March 1998 the secretarial offices of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf. On 16 April 1998 she was refused admission to a neurology lecture and on 10 June 1998 to a written examination on public health, again for the same reason. 14. On 29 July 1998 the applicant lodged an application for an order setting aside the circular of 23 February 1998. In her written pleadings, she submitted that the circular and its implementation infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and Article 2 of Protocol No. 1, in that there was no statutory basis for the circular and the education authority had no regulatory power in this sphere. 15. In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the application, holding that by virtue of section 13(b) of the Higher-Education Act (Law no. 2547 – see paragraph 50 below) a university vice chancellor, as the executive organ of the university, had power to regulate students’ dress in order to maintain order. That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of the Constitutional Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the Administrative Court held that neither the regulation in issue, nor the individual measures, could be considered illegal. 16. On 19 April 2001 the Supreme Administrative Court dismissed an appeal by the applicant on points of law. 17. In May 1998 disciplinary proceedings were brought against the applicant under Article 6(a) of the Students Disciplinary Procedure Rules (see paragraph 48 below) as a result of her failure to comply with the rules on dress. 18. On 26 May 1998, in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials, the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student. He therefore decided to issue her with a warning. 19. On 15 February 1999 an unauthorised assembly gathered outside the deanery of the Cerrahpaşa Faculty of Medicine to protest against the rules on dress. 20. On 26 February 1999 the dean of the faculty began disciplinary proceedings against various students, including the applicant, for taking part in the assembly. On 13 April 1999, after hearing her representations, he suspended her from the university for a semester pursuant to Article 9(j) of the Students Disciplinary Procedure Rules (see paragraph 48 below). 21. On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court for an order quashing the decision to suspend her. 22. On 20 August 1999 Istanbul University submitted its observations on her application. It argued, inter alia, that the disciplinary penalty was lawful as the reason for the applicant’s one-semester suspension was that she had taken part in an unauthorised assembly. 23. On 30 November 1999 the applicant’s application to have the disciplinary penalty quashed was dismissed by the Istanbul Administrative Court, which held that in the light of the material in the case file and the settled case-law on the subject, the impugned measure could not be regarded as illegal. 24. Following the entry into force of Law no. 4584 of 28 June 2000 (which afforded students an amnesty for disciplinary offences and annulled any resulting penalties or disabilities), the applicant was granted an amnesty releasing her from all the disciplinary penalties and their effects. On 28 September 2000 the Supreme Administrative Court held that the aforementioned legislation made it unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment of 30 November 1999. 25. In the meantime, on 16 September 1999, the applicant had enrolled at Vienna University, where she pursued her university education. 26. The relevant provisions of the Constitution provide: “The Republic of Turkey is a democratic, secular (laik) and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” “No amendment may be made or proposed to the provisions of Article 1 of the Constitution laying down that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.” “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious body, or establishing by any other means a political system based on such concepts and opinions.” “Everyone has the right to freedom of conscience, belief and religious conviction. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ... No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.” 27. The Turkish Republic was founded on the principle that the State should be secular (laik). After the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937 a constitutional amendment according constitutional status to the principle of secularism (see Article 2 of the Constitution of 1924 and Article 2 of the Constitutions of 1961 and 1982, as set out in paragraph 26 above). 28. The main feature of the republican system was the status accorded to women’s rights, with women being granted equality in the enjoyment of individual rights. The process began on 17 February 1926 with the adoption of the Civil Code, which provided for equality of the sexes in the enjoyment of civic rights, in particular as regards divorce and succession. Subsequently, through a constitutional amendment of 5 December 1934 (Article 10 of the 1924 Constitution), women obtained equal political rights with men. 29. At the time of the Ottoman Empire both the central government and religious groups required people to dress in accordance with their religious affiliations. The reforms introduced by the Republic on the question of dress were inspired by the evolution of society in the nineteenth century and sought first and foremost to create a religion-free zone in which all citizens were guaranteed equality, without distinction on the grounds of religion or denomination. The first enactment in this sphere was the Headgear Act of 28 November 1925 (Law no. 671), which treated dress as an issue relating to modernity. Similarly, a ban was imposed on wearing religious attire other than in places of worship or at religious ceremonies, irrespective of the religion or belief concerned, by the Dress (Regulations) Act of 3 December 1934 (Law no. 2596). 30. Under the Education Services (Merger) Act of 3 March 1924 (Law no. 430), religious schools were closed and all schools came under the control of the Ministry for Education. This Act is one of the laws enjoying constitutional status that are protected by Article 174 of the Turkish Constitution. 31. Wearing the Islamic headscarf to school and university is a recent phenomenon in Turkey, which began in the 1980s. There has been extensive discussion on the issue and it continues to be the subject of lively debate in Turkish society. Those in favour of the headscarf see wearing it as a duty and/or form of expression linked to religious identity, whereas those against regard it as a symbol of a political Islam that is seeking to establish a regime based on religious precepts and threatens to cause civil unrest and undermine the rights acquired by women under the republican system. The accession to power on 28 June 1996 of a coalition government comprising the Islamist Refah Partisi, and the centre-right Doğru Yol Partisi, has given the debate strong political overtones. The ambivalence displayed by the leaders of the Refah Partisi, including the then Prime Minister, over their attachment to democratic values, and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in Turkish society as a genuine threat to republican values and civil peace (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II). 32. It should be noted in that connection that one of the matters taken into consideration by the Constitutional Court in two judgments concerning the dissolution of political parties was the use of religious symbols to political ends (judgments of 9 January 1998 in the Refah Partisi case and of 22 June 2001 in the Fazilet Partisi case). It considered that the opinions expressed by the leaders of those parties, inter alia, on the question whether the Islamic headscarf should be worn in the public sector and/or schools demonstrated an intention to set up a regime based on the Sharia. 33. The first piece of legislation on dress in higher-education institutions was a set of regulations that was issued by the Cabinet on 22 July 1981, which required staff working for public organisations and institutions and personnel and students at State institutions to wear ordinary, sober, modern dress. The regulations also provided that female members of staff and students should not wear veils in educational institutions. 34. On 20 December 1982 the Higher-Education Authority issued a circular on the wearing of headscarves in higher-education institutions. The Islamic headscarf was banned in lecture theatres. In a judgment of 13 December 1984, the Supreme Administrative Court held that the regulations were lawful, noting: “Beyond being a mere innocent practice, wearing the headscarf is in the process of becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.” 35. On 10 December 1988 transitional section 16 of the Higher-Education Act (Law no. 2547 – “the Higher-Education Act”) entered into force. It provided: “Modern dress or appearance shall be compulsory in the rooms and corridors of higher-education institutions, preparatory schools, laboratories, clinics and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be worn out of religious conviction.” 36. In a judgment of 7 March 1989 published in the Official Gazette of 5 July 1989, the Constitutional Court held that the aforementioned provision was contrary to Articles 2 (secularism), 10 (equality before the law) and 24 (freedom of religion) of the Constitution. It also found that it could not be reconciled with the principle of sexual equality implicit, inter alia, in republican and revolutionary values (see the Constitution – Preamble and Article 174). In their judgment, the Constitutional Court judges explained, firstly, that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared to other religions; secularism was an essential condition for democracy and acted as a guarantor of freedom of religion and of equality before the law. It also prevented the State from showing a preference for a religion or belief; consequently, a secular State could not invoke religious conviction when performing its legislative function. Stressing its inviolable nature, the Constitutional Court observed that freedom of religion, conscience and worship, which could not be likened to a right to wear any particular religious attire, guaranteed first and foremost the liberty to decide whether or not to follow a religion. It explained that, once outside the private sphere of individual conscience, freedom to manifest one’s religion could be restricted on public-order grounds to defend the principle of secularism. Everyone was free to dress how he or she wished, as the social and religious values and traditions of society also had to be respected. However, when a particular dress code was imposed on individuals by reference to a religion, the religion concerned was perceived and presented as a set of values that were incompatible with those of contemporary society. In addition, in Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as irreligious. The Constitutional Court also said that students had to be able to work and pursue their education together in a calm, tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation. It found that, irrespective of whether the Islamic headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in higher-education institutions was not compatible with the principle that State education must be neutral, as it would be liable to generate conflicts between students with differing religious convictions or beliefs. 37. On 25 October 1990 transitional section 17 of the Higher-Education Act (Law no. 2547) entered into force. It provides: “Choice of dress shall be free in higher-education institutions, provided that it does not contravene the laws in force.” 38. In a judgment of 9 April 1991, which was published in the Official Gazette of 31 July 1991, the Constitutional Court noted that, in the light of the principles it had established in its judgment of 7 March 1989, the aforementioned provision did not allow headscarves to be worn in higher-education institutions on religious grounds and so was consistent with the Constitution. It stated, inter alia: “In higher-education institutions, it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious belief. In these circumstances, the freedom of dress which the impugned provision permits in higher-education institutions ‘does not concern dress of a religious nature or the act of covering one’s neck and hair with a veil and headscarf’... The freedom afforded by this provision [transitional section 17] is conditional on its not being contrary ‘to the laws in force’. The judgment [of 7 March 1989] of the Constitutional Court establishes that covering one’s neck and hair with the headscarf is first and foremost contrary to the Constitution. Consequently, the condition set out in the aforementioned section requiring [choice of] dress not to contravene the laws in force removes from the scope of freedom of dress the act of ‘covering one’s neck and hair with the headscarf’...” 39. Istanbul University was founded in the fifteenth century and is one of the main centres of State higher education in Turkey. It is a secular University, comprising seventeen faculties (including two faculties of medicine – Cerrahpaşa and Çapa) and twelve schools of higher education. It is attended by approximately 50,000 students. 40. In 1994, following a petitioning campaign launched by female students enrolled on the midwifery course at the University High School for the Medical Professions, the Vice Chancellor circulated a memorandum in which he explained the background to the Islamic-headscarf issue and the legal basis for the relevant regulations. He said in particular: “The ban prohibiting female students enrolled on the midwifery course from wearing the headscarf during tutorials is not intended to infringe their freedom of conscience and religion, but to comply with the laws and regulations in force. When doing their work, midwives and nurses wear a uniform. That uniform is described in and identified by regulations issued by the Ministry of Health... Students who wish to join the profession are aware of this. Imagine a student of midwifery trying to put a baby in or to remove it from an incubator, or assisting a doctor in an operating theatre or maternity unit while wearing a long-sleeved coat.” 41. The Vice Chancellor was concerned that the campaign for permission to wear the Islamic headscarf on all university premises had reached the point where there was a risk of its undermining order and causing unrest at the University, the Faculty and the Cerrahpaşa Hospital High School for the Medical Professions. He called on the students to comply with the rules on dress, reminding them, in particular, of the rights of the patients. 42. A resolution regarding the rules on dress for students and university staff was adopted on 1 June 1994 by the University executive and provides as follows: “The rules governing dress in universities are set out in the laws and regulations. The Constitutional Court has delivered a judgment which prevents religious attire being worn in universities. This judgment applies to all students of our University and the academic staff, both administrative and otherwise, at all levels. In particular, nurses, midwives, doctors and vets are required to comply with the regulations on dress, as dictated by scientific considerations and the legislation, during health and applied science tutorials (on nursing, laboratory work, surgery and microbiology). Anyone not complying with the rules on dress will be refused access to tutorials.” 43. On 23 February 1998 a circular was distributed containing instructions on the admission of students with beards or wearing the Islamic headscarf. It was signed by the Vice Chancellor of the University of Istanbul (for the text of this circular, see paragraph 12 above). 44. After the hearing on 19 November 2002 the applicant produced a letter of 1 April 2002 which the Higher-Education Authority had sent to the university authorities inviting them to grant a request by students of the Jewish faith for their attendance to be excused during Jewish holidays. 45. On 18 March 2003 the Government produced to the Court a resolution (no. 11) adopted by the University of Istanbul on 9 July 1998, which is worded as follows: “1. Students at the University of Istanbul shall comply with the legal principles and rules on dress set out in the decisions of the Constitutional Court and higher judicial bodies. 2. Students at the University of Istanbul shall not wear clothes that symbolise or manifest any religion, faith, race, or political or ideological persuasion in any institution or department of the University of Istanbul, or on any of its premises. 3. In the institutions and departments at which they are enrolled, students at the University of Istanbul shall comply with the rules requiring specific clothes to be worn for work-related reasons. 4. Photographs supplied by students of the University of Istanbul to their institution or department [must be taken] from the ‘front’ ‘with head and neck uncovered’. They must be no more than six months old and make the student readily identifiable. 5. Anyone displaying an attitude that is contrary to the aforementioned points or who, through his words, writings or deeds, encourages such an attitude shall be liable to action under the provisions of the regulations relating to disciplinary proceedings against students.” 46. The Students Disciplinary Procedure Rules, which were published in the Official Gazette of 13 January 1985, prescribe five forms of disciplinary penalty: a warning, a reprimand, temporary suspension of between a week and a month, temporary suspension of one or two semesters and expulsion. 47. Merely wearing the Islamic headscarf on university premises does not constitute a disciplinary offence. However, failure to comply with the rules on dress may entail the application of another provision of the rules. 48. By virtue of Article 6(a) of the Rules, a student whose “behaviour and attitude are not befitting of students” will be liable to a warning. A reprimand will be issued, inter alia, to students whose conduct is such as to lose them the respect and trust which students are required to command or who disrupt lectures, seminars, tutorials in laboratories or workshops (Article 7(a) and (e)). Students who directly or indirectly restrict the freedom of others to learn and teach or whose conduct is liable to disturb the calm, tranquillity and industriousness required in higher-education institutions or who engage in political activities in such institutions are liable to temporary suspension of between a week and a month (Article 8(a) and (c)). Article 9(j) lays down that students who organise or take part in unauthorised meetings on university premises are liable to one or two semesters’ suspension. 49. The procedure for investigating disciplinary complaints is governed by Articles 13 to 34 of the Rules. Articles 16 and 33 provide that the rights of defence of students must be respected and the disciplinary board must take into account the reasons that caused the student to transgress the rules. All disciplinary measures are subject to judicial review in the administrative courts. 50. Since universities are public-law bodies by virtue of Article 130 of the Constitution, they enjoy a degree of autonomy, subject to State control, that is reflected in the fact that they are run by management organs, such as the vice chancellor, with delegated statutory powers. The relevant parts of section 13 of the Higher-Education Act (Law no. 2547) provide: “... (b) Vice chancellors have the following powers, competence and responsibilities: 1. To chair meetings of university boards, implement their resolutions, examine proposals by the university boards and take such decisions as shall be necessary, and ensure that institutions forming part of the university function in a coordinated manner; ... 5. To supervise and monitor the university departments and university staff at all levels. It is the vice chancellor who is primarily responsible for taking security measures and for supervising and monitoring teaching from the administrative and scientific perspectives...” 51. Both legal commentators and the administrative courts regard the monitoring and supervisory powers conferred on the vice chancellor by the aforementioned provision as including a power to issue regulations, as well as to take individual measures. Exercise of this power is subject to the requirement of lawfulness and to scrutiny by the administrative courts. Both written instruments (legislation and the Constitution) and judge-made law (the case-law of the administrative courts and the Constitutional Court) constitute valid sources of law. Similarly, regulations issued under the proper procedure will themselves be a valid source of law with which individual measures taken thereunder must comply. 52. In its judgment of 27 May 1999 (E. 1998/58, K. 1999/19), which was published in the Official Gazette of 4 March 2000, the Constitutional Court stated, inter alia: “The legislature and executive are bound by both the operative provisions of judgments and the reasoning taken as a whole. Judgments and the reasons stated in them lay down the standards by which legislative activity will be measured and establish guidelines for such activity.” 53. In European countries, the debate on the Islamic headscarf is concerned more with primary and secondary State schools than with higher-education institutions. In the French speaking parts of Belgium, where there are no rules concerning the headscarf and disputes on the issue are generally resolved at local level, a number of State schools have refused to allow the Islamic headscarf. In the cases which have come before them, the Belgian courts have consistently held that the principles of equality and neutrality of State education take precedence over freedom of religion and have found against the complainants and their families. 54. In France, where secularism is regarded as one of the cornerstones of republican values, the question of the Islamic headscarf in State schools has given rise to a very lively debate. After the Commission on Secularism had reported to the President of the Republic with its opinion, the National Assembly approved a bill on 10 February 2004 regulating, pursuant to the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State primary and secondary schools. Article 1 of the Act provides: “In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by a dialogue with the pupil.” 55. As regards the universities, the Commission on Secularism considered that precedence should be given to the students’ right to express their religious, political and philosophical convictions. However, it stated in its report that such expression should not lead to transgressions of the rules on the functioning of universities. 56. In other countries, in some cases after a protracted legal debate, the State education authorities permit Muslim pupils and students to wear the Islamic headscarf (in Germany, the Netherlands, Switzerland and the United Kingdom). Nevertheless, the legal position is not uniform. In Germany, where the debate has for several years focused on whether teachers should be allowed to wear the Islamic headscarf, the Constitutional Court stated on 24 September 2003 in a case between a teacher and the Land of Baden-Württemberg that the lack of any express statutory prohibition meant that teachers were entitled to wear the headscarf. In the United Kingdom the Islamic headscarf is accepted by most teaching institutions and the rare disputes that do arise are generally resolved within the institution concerned. 57. It would appear that in a number of other countries, the issue of the Islamic headscarf has yet to give rise to any detailed legal debate (Sweden, Austria, Spain, the Czech Republic, Slovakia and Poland). | 0 |
train | 001-70193 | ENG | UKR | CHAMBER | 2,005 | CASE OF POLONETS v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings | null | 4. The applicant was born in 1948 and lives in the city of Zhytomyr, Ukraine. 5. On 28 January 2000 the applicant retired from his post in the Zhytomyr Regional Police Department (hereafter “the Police Department”). Having received no redundancy pay, to which he was entitled, the applicant instituted proceedings against the Police Department, seeking the recovery of the debt. 6. On 7 November 2001 the Koroliovsky District Court of Zhytomyr awarded the applicant UAH 7,410 in redundancy pay arrears. On 12 March 2002, the Zhytomyr Regional Court of Appeal (hereafter “the Court of Appeal”), on the Police Department’s appeal, re-examined the case and upheld this judgment. 7. On 19 March 2002 the Koroliovsky District Bailiffs’ Service (hereafter “the Bailiffs’ Service”) instituted enforcement proceedings in respect of the judgment of 7 November 2001 and joined the applicant’s case to other enforcement actions against the debtor. 8. On 14 June 2002 the Bogunsky District Court of Zhytomyr rejected the applicant’s complaint about the bailiffs’ inactivity. The court stated that in October 2001, acting in the course of the enforcement proceedings to which the applicant’s case was subsequently joined, the Bailiffs’ Service levied the Police Department’s bank account, which revealed no funds suitable for attachment. The court found that no further actions regarding the Police Department’s account were possible in the absence of budgetary funds earmarked for such purposes. This judgment was upheld by the Court of Appeal on 26 August 2002 and by the Supreme Court on 13 January 2003. 9. On 17 January 2004 the Koroliovsky District Court of Zhytomyr, on the Police Department’s request, temporarily suspended the enforcement proceedings. On 6 April 2004 the Court of Appeal quashed this decision as it was taken in the applicant’s absence and manifestly unfounded. On 14 May 2004 the Koroliovsky District Court of Zhytomyr ultimately rejected the Police Department’s request. 10. On 23 September 2004 the Bailiffs’ Service terminated the enforcement proceedings as the judgment of 7 November 2001 had been enforced in full. 11. The relevant domestic law is set out in the judgment of 29 June 2004 in the case of Voytenko v. Ukraine (no. 18966/02, §§ 20-25). | 1 |
train | 001-59210 | ENG | DEU | CHAMBER | 2,001 | CASE OF SCHÖPS v. GERMANY | 1 | Violation of Art. 5-4 | Elisabeth Palm | 7. The applicant is a German national, born in 1953 and living in Essen. 8. In 1992 the Essen public prosecutor's office (Staatsanwaltschaft) started investigations against the applicant and a number of other people suspected of fraud. 9. On 11 March 1993 the Essen District Court (Amtsgericht) issued a warrant for the arrest of the applicant and two other suspects, Ms S. and Ms L., on suspicion of criminal association, drug trafficking and several counts of fraud. In its decision, the District Court noted that the suspects had been charged with having founded – towards the end of December 1988 – an association for the purpose of gaining large profits from fraudulent trading in options. Moreover, as from mid-1990 the suspects had agreed to import cocaine from Majorca to Germany and to sell it there. Several accomplices had been recruited as members of the criminal organisation and had been involved in the numerous criminal offences. As regards the fraudulent trading in options, almost one thousand victims had been defrauded by the criminal association between the beginning of 1989 and March 1993, and they had lost a total of sixty million German marks. Moreover, between October 1990 and August 1992 approximately 100 kg of cocaine had been imported to and sold in Germany. The District Court found that, having regard to the statements made by some witnesses and the defendants, the results of the telephone-tapping operations and other results of the investigations, there was a strong suspicion that the applicant, Ms S. and Ms L. had committed the criminal offences in question. The District Court also considered that there was a danger of absconding within the meaning of Article 112 § 2.2 of the Code of Criminal Procedure (Strafprozeßordnung). In this respect, the court found that, taking into account the seriousness of the offences with which the suspects were charged and the importance of the damage they had caused, they had to expect a long term of imprisonment. Moreover, the suspects obviously had sufficient financial means to abscond. According to the District Court, there was also a danger of collusion within the meaning of Article 112 § 2.3 of the Code of Criminal Procedure, since, as members of a criminal association, the suspects were accustomed to disguising the extent of their activities by having recourse to “men of straw” and fictitious contracts, and were therefore likely to suppress evidence or influence witnesses. 10. The applicant was arrested on 19 March 1993. In the presence of his defence counsel, Mr Hütsch, he was informed by the detention judge (Haftrichter) of the charges against him and of the arrest warrant of 11 March 1993. The applicant did not make a statement. He requested an oral hearing on the lawfulness of his detention (Haftprüfung) but later withdrew his request. 11. According to the applicant, his counsel applied as early as March 1993 to the Essen public prosecutor's office for leave to consult the investigation files, but his request was rejected on the ground that access to those documents would endanger the course of the investigations. However, neither the request nor its dismissal are recorded in the files of the public prosecutor's office. 12. In the ensuing proceedings, counsel for the applicant was joined by a colleague, Mr Küpper-Fahrenberg. 13. On 3 May 1993 the applicant, in the presence of defence counsel, was questioned by the police about the charges against him. He indicated that he had, in the meantime, repeatedly consulted his counsel. In the course of further interrogations on 5 and 6 May, and 13 and 20 July 1993, mostly in the presence of counsel, the applicant was questioned in detail about the charges against him, in particular about the contents of telephone calls which had been recorded by tapping under an order made in May 1992. 14. On 8 September 1993 the Essen District Court amended the arrest warrant, adding in particular further charges of tax evasion, corruption, incitement to make a false entry in official records and making a false affidavit. The District Court confirmed that there was still a danger of the applicant and other suspects absconding and that less stringent measures could be taken only in the case of Ms S. Consequently the execution of the warrant for Ms S.'s arrest could be suspended, whereas the applicant and Ms L. had to be further remanded in custody. 15. On 14 September 1993 the applicant was informed of the amended arrest warrant. His counsel then applied for access to the files. No action was taken on that request as the duplicate copy of the files had already been forwarded to the Düsseldorf Court of Appeal (Oberlandesgericht) for the purposes of the review proceedings, while the original files were needed for the purposes of the continuing investigations. 16. On 14 September 1993 the Hamm public prosecutor's office (Generalstaatsanwaltschaft) requested the prolongation of the applicant's and Ms L.'s detention on remand. In this request, to which 24 investigation files were attached, the public prosecutor noted the history of the detention proceedings and summarised the offences of which the suspects were accused. As to the factual details, he referred to the arrest warrant and a police report of July 1993 which were to be found in the attached files. According to the public prosecutor, the strong suspicion against the suspects was based on the statements of the suspects and of witnesses, the opinion of a stockbroking expert, records of telephone tapping and seized business documents, which were all included in the investigation files. He also confirmed that there was a danger of absconding. 17. In his reply of 21 October 1993, the applicant's defence counsel applied to the Düsseldorf Court of Appeal for access to the files, for an oral hearing on the question of the applicant's continued detention and for his release. He submitted that he could not comment in detail on the public prosecutor's submission as, despite repeated promises, he had not yet been granted access to the investigation files, and the public prosecutor's submissions were fragmentary and therefore did not provide a sufficient basis for him to rely on. 18. According to a handwritten file note drafted by the Court of Appeal rapporteur, the applicant's counsel, in answer to a telephone query, had agreed to a decision on the question of the applicant's continued detention on remand being taken without him having been given access to the files beforehand. However, according to the applicant, as confirmed by his counsel, Mr Hütsch, and the latter's colleague, Mr Pott, the rapporteur and counsel had agreed that counsel could not comment on the question of the applicant's continued detention on remand without having had access to the files and that the Court of Appeal judge would therefore arrange for a consultation of the files. 19. On 3 November 1993 the Düsseldorf Court of Appeal ordered the applicant's continued detention on remand. The Court of Appeal, having regard to the result of the investigations thus far, in particular the applicant's and the co-suspects' statements, the statements of the victims, the records of telephone tapping, seized business documents and the provisional opinion of a stockbroking expert, confirmed that there was a strong suspicion that the applicant had committed the offences in question. As regards the danger of the applicant's absconding, the Court of Appeal noted that he had substantial financial means and real property in Majorca. Moreover, until his arrest, he had had contacts in the United States of America, Switzerland and Spain. The Court of Appeal also considered that the applicant's continued detention on remand was not disproportionate. As to the conduct of the investigation proceedings, the Court of Appeal observed that the complex nature and the scope of the investigations had not yet enabled a judgment to be reached. In this connection, the Court of Appeal noted that the investigation files already comprised 24 volumes, the indictment being envisaged for November 1993. Finally, the Court of Appeal stated that there had been no need for an oral review hearing. 20. On 22 November 1993 the Essen public prosecutor's office decided to allow the applicant's defence counsel to consult the investigation files. According to the applicant, only 22 of the then 24 files were made available. They were returned in January 1994. According to the applicant, his counsel applied for further consultation of the files at the beginning of 1994. 21. On 7 February 1994, following changes in the jurisdiction of the courts, the Hamm public prosecutor's office requested the Hamm Court of Appeal to order the applicant's continued detention on remand. The public prosecutor's office enclosed the criminal files, which comprised 69 volumes and 3 subsidiary files (Beiakten). 22. In his written submission of 28 February 1994, the applicant's counsel stated that he had thus far been able to consult only 22 volumes of the criminal files and that he could not, therefore, add anything to his previous observations. 23. On 1 March 1994 the Hamm Court of Appeal granted the request of 7 February 1994 and ordered the applicant's continued detention on remand. The Court of Appeal considered that the reasons stated in the Düsseldorf Court of Appeal's previous decision remained valid. Moreover, the investigations had progressed. The police had prepared an intermediate report in January 1994 and indicated that the questioning of about one thousand witnesses had almost been completed. The final police report and the report of the tax-investigation authorities had been announced for the end of February 1994. The public prosecutor's office envisaged preparing the bill of indictment immediately afterwards. Thus the obligation to conduct the proceedings expeditiously had not been disregarded. The Court of Appeal further found that the applicant's complaint under Article 5 § 4 of the Convention about the lack of access to the investigation files did not affect the validity of the arrest warrant. 24. On 25 March 1994 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) about the decisions of 3 November 1993 and 1 March 1994, complaining in particular about the lack of sufficient access to the investigation files. In this respect, he stressed that he had been granted access to only 22 volumes of the investigation files which, at that time, comprised 132 volumes altogether. He and his defence counsel had not, therefore, been able to comment properly on the accusation against him and to exercise the defence rights effectively. 25. On 2 May 1994 the Federal Constitutional Court (Bundesverfassungsgericht) decided not to entertain the applicant's complaint. 26. On 25 March 1994 the Essen public prosecutor's office drew up the bill of indictment (Anklageschrift) against the applicant and four co-accused, who were charged with various criminal offences. As far as the applicant was concerned, the bill of indictment mentioned 91 counts of fraud, corruption, incitement to make a false entry in an official record and swearing a false affidavit. The proceedings relating to the charges of tax evasion were severed from these main proceedings. Prosecution for unlawful association was discontinued in view of the seriousness of the other charges. The bill of indictment, which set out in detail the charges against the applicant, the relevant facts and the evidence, was served on the applicant's counsel on 9 June 1994. 27. On 9 June 1994 the Essen public prosecutor's office forwarded copies of the investigation files, namely 132 main and 2 supplementary volumes (about 16,000 pages altogether) to the applicant's defence counsel for consultation. It requested that they be returned within one week to allow consultation by the other defence counsel. On 23 June 1994 the office sent a reminder regarding the return of the files. The date of their return was not recorded. According to the applicant, the copies made available to his counsel were not complete. 28. On 30 June 1994 the Hamm Court of Appeal ordered the applicant's continued detention on remand. Upon request by counsel of one of the applicant's co-accused, the decision had to be adjourned for one week in order to allow an adequate opportunity for submissions to be filed. The Court of Appeal confirmed the findings as laid down in the earlier decisions of 3 November 1993 and 1 March 1994. As regards the charges against the applicant, the Court of Appeal noted the changes resulting from the bill of indictment, which did not include the charges of founding a criminal association and of tax evasion. The prosecution regarding the first of these charges had been discontinued in accordance with the relevant provisions of the Code of Criminal Procedure, in view of the minor importance of the offence as compared to those set out in the bill of indictment. As regards the tax-evasion offence, further investigations were pending. The Court of Appeal also considered that the investigations had progressed. The bill of indictment had meanwhile been drawn up and forwarded to the Economic Offences Division at the Essen Regional Court (Landgericht). The Regional Court had started examining the complex case and envisaged, if the main trial proceedings were to begin, starting the hearings in September 1994. 29. On 19 October 1994 the Hamm Court of Appeal ordered the applicant's release. The Court of Appeal confirmed that there was still a strong case against the applicant and that the reasons for detaining him on remand remained; however, his continued detention had ceased to be proportionate. The Court of Appeal considered, in particular, that since May 1994 the Essen Regional Court had not made progress in the proceedings. The applicant was released from detention the same day. 30. On 15 December 1998 the Essen Regional Court found the applicant guilty of fraud, bribery and swearing a false affidavit and sentenced him to an aggregate term of five years and six months' imprisonment. 31. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112, a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant. 32. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-22). 33. Articles 137 et seq. of the Code of Criminal Procedure concern the defence of a person charged with having committed a criminal offence, in particular the choice of defence counsel or appointment of official defence counsel. According to Article 147 § 1, defence counsel is entitled to consult the files which have been presented to the trial court or which would be presented to the trial court in case of an indictment, and to inspect the exhibits. Paragraph 2 of this provision allows for a refusal of access to part or all of the files or to the exhibits for as long as the preliminary investigation has not been terminated, if the purpose of the investigation would otherwise be endangered. Pending the termination of the preliminary investigation, it is for the public prosecutor's office to decide whether to grant access to the file or not; thereafter it is for the president of the trial court (Article 147 § 5). By an Act amending the Code of Criminal Procedure (Strafverfahrensänderungsgesetz, Bundesgesetzblatt, 2000, vol. I, p. 1253) with effect as from 1 November 2000, the latter provision has been amended to the effect, inter alia, that an accused who is in detention is now entitled to ask for judicial review of the decision of the public prosecutor's office denying access to the file. 34. Articles 151 et seq. of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment. Article 151 provides that any trial has to be initiated by an indictment. According to Article 152, the indictment is to be preferred by the public prosecutor's office which is, unless otherwise provided, bound to investigate any criminal offence for which there exist sufficient grounds of suspicion. 35. Preliminary investigations are to be conducted by the public prosecutor's office according to Articles 160 and 161 of the Code of Criminal Procedure. On the basis of these investigations the public prosecutor's office decides under Article 170 whether to prefer an indictment or to discontinue the proceedings. 36. According to Article 103 § 1 of the Basic Law (Grundgesetz), every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör). According to the Federal Constitutional Court (Bundesverfassungs-gericht), this rule requires a court decision to be based only on those facts and evidential findings which could be commented upon by the parties. In cases involving arrest and detention on remand, the arrest warrant and all court decisions upholding it must be founded only on those facts and pieces of evidence of which the accused was previously aware and on which he was able to comment (Federal Constitutional Court, decision of 11 July 1994 (Neue juristische Wochenschrift, 1994, p. 3219), with further references). In the aforementioned decision, the Federal Constitutional Court held that, following his arrest, an accused had to be informed of the content of the arrest warrant and promptly brought before a judge who, when questioning him, had to inform him of all relevant incriminating evidence as well as of evidence in his favour. Moreover, in the course of ensuing review proceedings, the accused must be heard and, to the extent that the investigation will not be prejudiced, the relevant results of the investigation at that stage must be given to him. In some cases, such oral information may not be sufficient. If the facts and the evidence forming the basis of a decision in detention matters cannot or can no longer be communicated orally, other means of informing the accused, such as a right to consult the files (Akteneinsicht), are to be used. On the other hand, statutory limitations on an accused's access to the files until the preliminary investigation is completed are to be accepted if the efficient conduct of criminal investigations so requires. However, even while those investigations are in progress, an accused who is detained on remand has a right of access to the files through his lawyer if and to the extent that the information which they contain might affect his position in the review proceedings and oral information is not sufficient. If in such cases the prosecution refuses access to the relevant parts of the files pursuant to Article 147 § 2 of the Code of Criminal Procedure, the reviewing court cannot base its decision on those facts and evidence and, if necessary, has to set the arrest warrant aside (Federal Constitutional Court, op. cit.). | 1 |
train | 001-59689 | ENG | BGR | CHAMBER | 2,001 | CASE OF STANKOV AND THE UNITED MACEDONIAN ORGANISATION ILINDEN v. BULGARIA | 1 | Preliminary objection dismissed;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 9. The United Macedonian Organisation Ilinden (“the applicant association” or “Ilinden”) is an association based in south-western Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia). Mr Boris Stankov is a Bulgarian citizen, born in 1926 and living in Petrich. At the relevant time he was the chairman of a branch of the applicant association. 10. The United Macedonian Organisation Ilinden was founded on 14 April 1990. Its aims, according to its statute and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. Sections 8 and 9 of the statute stated that the organisation would not infringe the territorial integrity of Bulgaria and that it “would not use violent, brutal, inhuman or unlawful means”. According to the applicants’ submissions before the Court, the main activity of the applicant association was the organisation of celebrations to commemorate historical events of importance for Macedonians in Bulgaria. Over an unspecified period it published a newspaper. 11. In 1990 Ilinden applied for, but was refused, registration. In the proceedings for registration the Blagoevgrad Regional Court and the Supreme Court examined the statute of the association, its programme and other written evidence. 12. In their decisions of July and November 1990 and March 1991 the courts found that the applicant association’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred, and that it was dangerous for the territorial integrity of Bulgaria. Therefore, its registration would be contrary to Articles 3, 8 and 52 § 3 of the Constitution of 1971, as in force at the time. In particular, the aims of the association included, inter alia, the “political development of Macedonia” and the establishment of a “united, independent Macedonian State”. Moreover, in its appeal to the Supreme Court the association had stated that “the Macedonian people would not accept Bulgarian, Greek or Serbian rule”. The formal declaration in the applicant association’s statute that it would not infringe the territorial integrity of Bulgaria, appeared inconsistent with the remaining material. 13. The judgment of the Supreme Court of 11 March 1991 stated, inter alia: “[T]he lower courts correctly established that the aims of the [applicant association] under its statute and programme were directed against the unity of the nation ... [The material in the case] demonstrates that the [applicant association] seeks to disseminate the ideas of Macedonianism among the Bulgarian population, especially in a particular geographical area. [Those ideas] presuppose the ‘denationalisation’ of the Bulgarian population and its conversion into a Macedonian population ... It follows that the [applicant association] is directed against the unity of the nation and is therefore prohibited under Article 35 § 3 of the [1971] Constitution ...” 14. The parties do not dispute, it seems, that during the relevant period the applicant association underwent changes of leadership and that there was internal conflict. Its local branches or separate factions differed in their views and activities. 15. The applicant association held a meeting for the first time on 22 April 1990 at the Rozhen Monastery, at the grave of Yane Sandanski. 16. On 20 April 1991 the applicant association organised a commemoration meeting at the Rozhen Monastery. The participants adopted a declaration addressed to the President and Parliament, which stated, inter alia: “1. Our rights as a minority, of which we have been deprived, should be guaranteed to us in accordance with the international agreements on minorities. [We demand:] 2. The introduction of the [study of] the Macedonian language, history and culture in all educational institutions in Pirin Macedonia. 3. The right to radio and television broadcasts in the Macedonian language ... ... 5. That an end be put to the assimilation process and the destruction of the Macedonian culture. 6. The right to publish in the Macedonian language ... 7. ... that the Macedonian Church should be independent ... 8. That all Bulgarian political parties on the territory of Pirin Macedonia should be dissolved or renamed Macedonian; they should defend the national rights of the Macedonian people. ... 14. The complete cultural, economic and political autonomy of Pirin Macedonia and the withdrawal of the Bulgarian occupation armies from Pirin Macedonia ... ... 16. Should the Bulgarian government not respond positively to our demands, Ilinden shall appeal to the United Nations Organisation, the [Conference on] Security and Cooperation in Europe, the European Parliament, the Great Powers, in the interest of peace in the Balkans and in Europe and with a view to avoiding military conflicts due to the emerging nationalism in Bulgaria, Serbia, Greece and Albania, with the following demands: annulment of the separatist military union of 20 February 1912 between Bulgaria, Serbia and Greece, withdrawal of the invaders from the occupied territories, ... unification of Macedonia under the auspices of the United Nations and with the protection of the Great Powers ...” 17. According to a police report, drawn up in 1998 by the director of the police in the region and submitted to the Court by the Government, “fierce anti-Bulgarian declarations” had been made at the meetings of 22 April 1990 and 20 April 1991. In particular, on 22 April 1990 a declaration requesting the recognition of a Macedonian minority and cultural autonomy had been read out. The report did not mention any incident at that meeting. As explained in the report, on 20 April 1991 about 300 to 350 Ilinden supporters had gathered during the official commemoration of the death of Yane Sandanski, which had been attended by 4,000 participants. Members of Ilinden, standing on a separate platform, had allegedly hissed and booed the police, labelled the Bulgarians “barbarians”, “conquerors” and “enslavers” and called on them to leave and “free” the region from their presence. The report further stated that a “shocking” incident had occurred: Mr B., a prominent politician, had been splashed with beer on his face. The police had allegedly prevented any further clashes. The report concluded: “... the events organised by Ilinden are provocative. There is a real risk of incidents. For that reason, since 1992 the municipalities in the region normally refuse to allow such events to proceed. With a view to protecting the law, the assistance of the prosecuting authorities and of the police is normally sought.” 18. The applicants submitted copies of photographs, written testimonies and statements of persons who claimed that on several occasions between 1990 and 1994 there had been police actions and acts of private individuals obstructing the activities of the applicant association. They also submitted copies of newspaper articles accusing Ilinden of misappropriating Bulgarian national symbols, describing its leaders as uneducated, mentally ill or traitors, and denying the existence of a Macedonian minority in Bulgaria. The applicants alleged that those articles reflected public opinion in Bulgaria, as manipulated by the authorities. 19. In July 1994 Mr Stankov, as chairman of the Petrich branch of the applicant association, requested the mayor of Petrich to authorise a meeting in the area of Samuilova krepost, to be held on 31 July 1994 in commemoration of a historical event. On 13 July 1994 permission was refused by the mayor, but no reasons were given. The applicant association appealed to the Petrich District Court which dismissed the appeal on 16 July 1994. The District Court found that since the applicant association had been banned, there were well-founded fears that the demonstration would endanger public order and the rights and freedoms of others. On 28 July 1994 Mr Ivanov, the representative of the applicant association, and another person were issued with written warnings by the police to stay away from the official traditional fair at Samuilova krepost. The warnings stated that they were based on the applicable law. 20. Despite the refusal of the authorities, on 31 July 1994 some members of the applicant association (120-150 according to the applicants’ assessment) attempted to approach the historical site of Samuilova krepost but the police, who according to the applicants were heavily armed, blocked their way. In the Government’s submission, the allegation that the area had been sealed off was “manifestly ill-founded”. 21. On 10 April 1995 the applicant association requested the mayor of Sandanski to authorise a meeting to be held on 22 April 1995 at the grave of Yane Sandanski at the Rozhen Monastery, on the occasion of the eightieth anniversary of his death. This was refused on 14 April 1995 as the applicant association was not duly registered by the courts. On 15 April 1995 the applicant association appealed to the Sandanski District Court stating, inter alia, that the Macedonian people had been deprived of their right to their own cultural life in violation of international law. The District Court never examined the appeal. 22. On 22 April 1995 the municipality of Sandanski held an official ceremony to mark the anniversary of Yane Sandanski’s death. The event took place at his grave at the Rozhen Monastery. The ceremony commenced at about 10 a.m. The applicants submitted that a group of their supporters who had travelled to the Rozhen Monastery on 22 April 1995 had been ordered by the police to leave their cars in the nearby town of Melnik and had been transported to the monastery by local buses. There they had been allowed to visit the grave, to lay a wreath and to light candles. However, they had not been allowed to bring to the site the placards, banners and musical instruments which they were carrying, or to make speeches at the grave. The police had allegedly taken away the ribbon attached to the wreath. The participants had then celebrated the event, without music, near the monastery but away from the grave. 23. In July 1995, as in previous years, the applicant association again requested authorisation to hold a commemorative meeting on 30 July 1995 at Samuilova krepost, the historical site in the vicinity of Petrich. On 14 July 1995 the mayor of Petrich refused the request without giving any reason. Upon the applicant association’s appeal the refusal was upheld by judgment of the Petrich District Court of 18 July 1995. The District Court found that the “holding of a commemorative meeting of Ilinden on 30 July 1995 at Samuilova krepost would endanger public order”. 24. On 8 April 1997 the applicant association informed the mayor of Sandanski and the local police that they were organising a meeting to be held on 20 April 1997 at the Rozhen Monastery to commemorate the death of Yane Sandanski. It stated in a letter to the mayor that Yane Sandanski, who is considered in Bulgaria as a Bulgarian national hero, was in fact a “Macedonian fighter for the national independence of Macedonia from Turkish rule and against the Bulgarian oppressors”. On 11 April 1997 the mayor refused to grant permission. He stated that permission for the commemoration of the same historical event had been requested on 4 April 1997 by the director of the local high school. The mayor further explained that the commemoration would be organised jointly by the school and the municipality and that “every [person], individually, could come”. 25. On 15 April 1997 Ilinden appealed to the Sandanski District Court against the mayor’s refusal stating, inter alia, that the mayor had not allowed them, “as a separate ethnic community”, to organise a meeting at the tomb of their national hero. On 17 April 1997 the President of the District Court issued an order refusing to examine the appeal on the merits as it had been submitted on behalf of an unregistered organisation. 26. The date on which that order was notified to the applicant association is unclear. The applicants initially denied having received a response to their appeal, but in later submissions to the Commission stated that on 5 May 1997 they had become aware of the order of 17 April 1997. 27. As the defects in the appeal were not remedied within the statutory seven-day time-limit, on 5 May 1997 the President of the District Court ordered the discontinuance of the proceedings. That order was notified to the applicant association on 13 August 1997. 28. The applicants claimed that on 20 April 1997 the police had prevented a group of their supporters from approaching the Rozhen Monastery and that two persons had been ill-treated. They submitted that on 20 April 1997 only thirteen students and two teachers from the local high school had arrived at the Rozhen Monastery. The students had laid a wreath in the presence of the police and had left two minutes later. 29. On 14 July 1997 Mr Stankov, as chairman of the association’s branch in Petrich, requested authorisation for a commemorative meeting to be held on 2 August 1997 at Samuilova krepost, in the outskirts of Petrich. On 17 July 1997 the mayor refused the request, stating that the applicant association was not “a legitimate organisation”. 30. On 20 July 1997 the applicant association appealed to the District Court against the refusal of the mayor stating, inter alia, that there was no legal provision prohibiting meetings of organisations which were not “legitimate” and that the planned public event would be peaceful and would not endanger public order. By decision of 1 August 1997 the District Court dismissed the appeal on the merits. It found that the applicant association was not duly registered “in accordance with the laws of the country” and that it had not been shown that the persons who had acted on its behalf actually represented it. As a result, it had been unclear who had organised the event and who would be responsible for order during the meeting under the terms of sections 9 and 10 of the Meetings and Marches Act. The District Court concluded that the lack of clarity as regards the organisers of a public event endangered public order and the rights and freedoms of others. 31. The applicants submitted that on 2 August 1997 the police had not allowed a group of supporters of the applicant association to reach the historical site in the vicinity of Petrich. 32. The parties made submissions and presented copies of documents concerning the activities of the applicant association. It appears that some of the documents relied upon by the Government concern statements of persons adhering to a faction or a branch of the applicant association. Those groups apparently differed in their views and activities. 33. The Government relied on the declaration of 20 April 1991 (see paragraph 16 above), on the police report concerning the meetings of 1990 and 1991 (see paragraph 17 above) and on other material. The Government submitted that during meetings, in letters to institutions or in statements to the media, persons associated with the applicant association and its supporters had made declarations to the effect that they wanted the Bulgarians to leave the region of Pirin Macedonia and stated that there could be “no peace in the Balkans unless the Bulgarians, the Greeks and all others recognise the national rights of the Macedonian people and no democracy in any Balkan country without such recognition”. 34. The Government submitted copies of several issues of Vestnik za Makedonzite v Balgaria i Po Sveta and Makedonska poshta, pamphlets published by one of the factions linked to the applicant association, and copies of press material. These contain information, inter alia, about a “secret” private meeting of a faction of the applicant association held on 28 September 1997. The meeting allegedly declared that on 10 August 1998 the region of Pirin Macedonia would become “politically, economically and culturally autonomous” or independent. That was so because on that day, eighty-five years after the Bucharest Treaty of 1913, the States Parties to it were allegedly under obligation to withdraw from the “enslaved” Macedonian territories. Makedonska poshta further invited all Macedonians to a march in Sofia on 3 August 1998. The invitation stressed that the participants should not carry arms. 35. A handwritten poster, allegedly issued by followers of the applicant association in Petrich, called for a boycott of the 1994 parliamentary election “to prevent the establishment of legitimate Bulgarian authorities in the region” of Pirin Macedonia. The document further called for a united Macedonian State and for “an international invasion” by the Security Council of the United Nations “according to the model of Grenada, Kuwait and Haiti”. 36. An appeal for a boycott of the 1997 election stated that the Macedonians should abstain from voting in protest against the lack of recognition of their rights as a minority. 37. In a declaration published in the press in the Former Yugoslav Republic of Macedonia, the leaders of a faction linked to the applicant association criticised the Bulgarian authorities for their refusal to recognise the Macedonian language and the Macedonian minority in Bulgaria and appealed to various international organisations to exert pressure on the Bulgarian authorities in this respect. 38. The Government submitted a copy of a “memorandum” addressed to the United Nations, signed by activists of the applicant association or a faction of it, dated 1 July 1997. It contains a short overview of historical events, complaints about the attitude of the Bulgarian authorities and the following main demands: collective minority rights, access to Bulgarian State archives, the return of confiscated material, the revision of the way Bulgarian history is seen, the revision of international treaties of 1912 and 1913, the dissolution of the “political police”, the dissolution of nationalistic and violent parties and organisations, the registration of Ilinden as the legitimate organisation of the Macedonians in Bulgaria, radio broadcasts in Macedonian, an investigation into violations committed against Macedonians and economic assistance. The document also stated: “... being conscious of the contemporary economic and political realities in the Balkans, Europe and the world, we are not acting through confrontation, tension or violence. Our way to achieve enjoyment of our rights as a Macedonian ethnic minority in Bulgaria and in Pirin Macedonia, where our ethnic and historical roots lie, is through peaceful means and negotiations ... Our peaceful and lawful means ... are to the advantage of the authorities who ... deny the existence of a Macedonian minority. Our democratic ways are to our detriment: the authorities can afford political, economic and psychological pressure, and arms.” 39. Before the Court the Government relied on a judgment of the Bulgarian Constitutional Court of 29 February 2000 in a case concerning the constitutionality of a political party, the United Macedonian Organisation Ilinden-PIRIN: Party for Economic Development and Integration of the Population (“UMOIPIRIN”), which had been registered by the competent courts in 1999. The Constitutional Court found that that party’s aims were directed against the territorial integrity of the country and that therefore it was unconstitutional. 40. The Constitutional Court noted that UMOIPIRIN could be regarded as a successor to or a continuation of the applicant association. On that basis the Constitutional Court relied extensively on submissions about the history and the activities of the applicant association in the assessment of the question whether UMOIPIRIN was constitutional. In particular, the Constitutional Court took note of the demands made in the declaration of the applicant association of 20 April 1991 (see paragraph 16 above). It also observed that maps of the region, depicting parts of Bulgarian and Greek territory as Macedonian, had been published by the association and that there had been repeated calls for autonomy and even secession. The Constitutional Court further noted that representatives of the applicant association had made offensive remarks about the Bulgarian nation. 41. The Constitutional Court thus found that the applicant association and UMOIPIRIN considered the region of Pirin as a territory which was only temporarily under Bulgarian control and would soon become independent. Their activities were therefore directed against the territorial integrity of the country and were as such prohibited under Article 44 § 2 of the 1991 Constitution. The prohibition was in conformity with Article 11 § 2 of the Convention, there being no doubt that an activity against the territorial integrity of the country endangered its national security. The judgment was adopted by nine votes to three. The dissenting judges gave separate opinions which have not been published. 42. In support of this allegation the Government have submitted copies of two documents. 43. The first is a copy of an article from the Kontinent daily newspaper, dated 1/2 March 1997. The newspaper stated that a Mr D.P.K. had been arrested in Petrich for having threatened police officers with blowing up their homes, as they had impeded his business. During the arrest the police had allegedly discovered explosives in Mr D.P.K.’s home. The short article went on to recall that Mr D.P.K. was allegedly a leader of Ilinden and a “Macedonian activist”. 44. The second document appears to be a photocopy of a flyer announcing the founding of an organisation and inviting those interested to join. The document bears no signature. It dates allegedly from 1995 and appears to have been typed on a typewriter. The flyer explained that the newly created United Macedonian Organisation Nova did not wish to replace Ilinden. It criticised certain leaders of the applicant association. The flyer further stated that the new organisation would form armed groups with the aim of “helping the Republic of Macedonia to survive”. 45. The Government have not provided any comment or additional information on the contents of the two documents submitted by them. 46. During the hearing before the Court, in response to a question put to her, the Government’s Agent declared that no criminal proceedings relevant to the present case had ever been brought against members of the applicant association. 47. The Government stressed that knowledge of the historical context and of the current situation in Bulgaria and in the Balkans was essential for the understanding of the issues in the present case. Their explanation may be summarised as follows. “Historically, the Bulgarian nation consolidated within several geographical regions, one of them being the geographical region of Macedonia. In 1878, when Bulgaria was partially liberated from Turkish dominance, the Berlin Peace Treaty left the region of Macedonia within the borders of Turkey. Between 1878 and 1913 the Bulgarian population of Macedonia organised five unsuccessful uprisings seeking liberation from Turkish rule and union with Bulgaria. There followed massive refugee migrations from the region to the Bulgarian motherland. Hundreds of thousands of Macedonian Bulgarians settled in Bulgaria. In 1934 the so-called ‘Macedonian nation’ was proclaimed for the first time by a resolution of the Communist International. Before that no reliable historical source had ever mentioned any Slavic population in the region other than the Bulgarian population. After the Second World War the Communist power in Yugoslavia proclaimed the concept of a separate Macedonian nation. A separate language and alphabet were created and imposed by decree of 2 August 1944. A massive assimilation campaign accompanied by brutalities was launched in Yugoslavia. For a short period of time the Bulgarian Communist Party – inspired by the idea of creating a Bulgarian-Yugoslav federation – also initiated a campaign of forcible imposition of a ‘Macedonian’ identity on the population in the region of Pirin Macedonia. In the 1946 and 1956 censuses individuals living in that region were forced to declare themselves ‘Macedonians’. The campaign was abandoned in 1963, partly due to the refusal of the population to change their identity. In those parts of the geographical region of Macedonia which were in Yugoslavia the realities of the bi-polar cold-war world – where the relations between Yugoslavia and the socialist block dominated by the USSR were tense – exacerbated the population’s feeling of doom and exasperation and their fear that unification with Bulgaria proper would never be possible. The forcible imposition of a Macedonian identity by the Tito regime also played a decisive role. Therefore, even if a process of formation of a new nation has taken place, it was limited to the territory of the Former Yugoslav Republic of Macedonia. In the 1992 census, only 3,019 Bulgarian citizens identified themselves as Macedonians and indicated Macedonian as their mother tongue. Another 7,784 declared themselves Macedonians in the geographical sense, while allegedly indicating their Bulgarian national conscience and mother tongue. Individuals considering themselves Macedonians are far from being discriminated against in Bulgaria. They have their own cultural and educational organisation, Svetlina. There are books and newspapers in the ‘Macedonian language’.” 48. The provisions of the Constitution of July 1991 concerning freedom of assembly read as follows: “1. Everyone shall have the right to peaceful and unarmed assembly at meetings and marches. 2. The procedure for organising and holding meetings and marches shall be provided for by act of Parliament. 3. Permission shall not be required for meetings to be held indoors.” “Organisations whose activities are directed against the sovereignty or the territorial integrity of the country or against the unity of the nation, or aim at stirring up racial, national, ethnic or religious hatred, or at violating the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to achieve their aims through violence, shall be prohibited.” 49. The legal requirements for the organisation of meetings are set out in the Meetings and Marches Act of 1990. Its relevant provisions are as follows: “Meetings and marches may be organised by individuals, associations, political or other public organisations.” “Every organiser [of] or participant [in a march or a meeting] shall be responsible for damage caused through his or her fault during the [event].” “Where a meeting is to be held outdoors the organisers shall notify in writing the [respective] People’s Council or mayor’s office not later than forty-eight hours before the beginning [of the meeting] and shall indicate the [name of] the organiser, the aim [of the meeting], and the place and time of the meeting.” “The organisers of the meeting shall take the measures necessary to ensure order during the event.” “(1) The meeting shall be presided over by a president. (2) The participants shall abide by the instructions of the president concerning the preservation of [public] order ...” 50. Prohibitions against meetings are also regulated by the Meetings and Marches Act: “(1) Where the time or the place of the meeting, or the itinerary of the march, would create a situation endangering public order or traffic safety, the President of the Executive Committee of the People’s Council, or the mayor, respectively, shall propose their modification. (2) The President of the Executive Committee of the People’s Council, or the mayor, shall be competent to prohibit the holding of a meeting, demonstration or march, where reliable information exists that: 1. it aims at the violent overturning of Constitutional public order or is directed against the territorial integrity of the country; 2. it would endanger public order in the local community; ... 4. it would breach the rights and freedoms of others. (3) The prohibition shall be imposed by a written reasoned act not later than twenty-four hours following the notification. (4) The organiser of the meeting, demonstration or march may appeal to the Executive Committee of the People’s Council against the prohibition referred to in the preceding paragraph. The Executive Committee shall decide within twenty-four hours. (5) Where the Executive Committee of the People’s Council has not decided within [that] time-limit, the march, demonstration or meeting may proceed. (6) If the appeal is dismissed the dispute shall be referred to the relevant district court which shall decide within five days. That court’s decision shall be final.” 51. The Meetings and Marches Act was adopted in 1990, when the Constitution of 1971 was in force. Under the Constitution of 1971 the executive local State organs were the executive committees of the people’s councils in each district. The mayors referred to in some of the provisions of the Meetings and Marches Act were representatives of the executive committee acting in villages and towns which were under the jurisdiction of the respective people’s councils. The 1991 Constitution abolished the executive committees and established the post of mayor, elected by direct universal suffrage, as the “organ of the executive power in the municipality” (Article 139). | 1 |
train | 001-95504 | ENG | TUR | ADMISSIBILITY | 2,009 | KAYGAN v. TURKEY | 4 | Inadmissible | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | The applicants, Mr Serdar Tamer Kaygan, Ms E Kaygan and Mr A. Kaygan, are Turkish nationals who were born in 1968, 1962 and 1994 respectively and live in Istanbul. They were represented before the Court by Mr K. Tacar Çağlar, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The second applicant, whose regular check-ups during her pregnancy were carried out by a private hospital, gave birth to the third applicant on 31 January 1994. The third applicant was born with serious disabilities. On 27 January 1995 the applicants initiated civil proceedings before the Ankara Court of First Instance (hereinafter “the Ankara court”) against the hospital and doctors, claiming pecuniary and non-pecuniary damage. On 10 July 1995 the Ankara court requested an expert report from the Ministry of Health as to the liability of the defendant hospital and the doctors. The report was delivered on 19 September 1996 and found that no negligence was attributable to the defendant party. Subsequently four more medical reports, drawn up by various specialist bodies on 19 April 1998, 11 March and 8 December 1999 and 1 March 2001, were submitted to the Ankara court. It was established in these reports that the hospital and the doctors involved had in fact been partly responsible for the third applicant’s disabilities, which had been assessed at 100%. On 7 November 2000 the applicants lodged a second case with the Ankara court, requesting additional compensation for non-pecuniary damage. On 12 December 2000 the Ankara court ordered the two cases to be joined and on 16 May 2001 it awarded the applicants their claim in full for both cases. The defendant party appealed. On 21 December 2002 the Court of Cassation upheld the judgment in respect of the award granted for the first case and quashed in so far as it concerned the second case. Relying on Article 126 of the Code of Obligations, the Court of Cassation held that the second case had been introduced out of time since the first and second applicants had been aware of the serious disabilities and their extent when the third applicant was born. Thus, any claim had had to be introduced within five years of the third applicant’s date of birth. The case was remitted to the Ankara court. On 19 July 2002 the Ankara court confirmed in its earlier judgment and held that it was only by having regard to the report dated 8 December 1999 that the third applicant’s disability had been established at 100%. Therefore the applicants’ further claims had been introduced within the statutory time-limit. The case file was transferred to the Grand Chamber of the Court of Cassation’s Civil Division (Hukuk Genel Kurulu). On 11 December 2002 the Grand Chamber of the Court of Cassation quashed the judgment of the Ankara court. In its decision it discussed in detail the concept of damage, when it arose and when the statutory time-limit for claiming damages had started to run for the instant case. It noted in particular that the seriousness of the third applicant’s disability had been visible at birth on 31 January 1994 and, according to medical reports, would not change in time for better or worse. Therefore the five-year statutory time-limit for claiming damages ought to have started running at birth. The applicants appealed. On 28 May 2003 the Grand Chamber of the Court of Cassation’s Civil Division dismissed the appeal. The case was remitted to the Ankara court, which held on 9 October 2003 that there was no need to issue a new judgment concerning the applicants’ first claim, which had already become final, whereas their second claim had been introduced outside the statutory time-limits, as established by the Court of Cassation. The applicants appealed in respect of the costs and fees. On 3 March 2005 the Court of Cassation amended the part of the judgment concerning the applicants’ costs and fees but upheld the merits. The applicants were notified of the judgment on 20 April 2005. | 0 |
train | 001-59666 | ENG | TUR | CHAMBER | 2,001 | CASE OF SAHINER v. TURKEY | 1 | Violation of Art. 6-1 as regards the length of the proceedings;Violation of Art. 6-1 as regards independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient (as regards independence and impartiality);Non-pecuniary damage - financial award (as regards length);Costs and expenses partial award | Elisabeth Palm;Gaukur Jörundsson | 8. On 29 November 1980 police officers from the Ankara Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). 9. On 26 January 1981 the Ankara Martial-Law Court (sıkıyönetim mahkemesi) remanded the applicant in custody. 10. On 26 February 1982 the military public prosecutor filed a bill of indictment with the Martial-Law Court against the applicant and 722 other defendants. The public prosecutor accused the applicant of membership of an illegal armed organisation, namely the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as acting as an armed look-out for the killers of several individuals, a bomb attack on a coffee house and opening fire on a house. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code. 11. In a judgment of 19 July 1989 the Martial-Law Court, composed of two civilian judges, two military judges and an army officer, found the applicant guilty as charged, sentenced him to life imprisonment (in effect eighteen years assuming good conduct) for offences under Article 146 § 1 of the Criminal Code and permanently debarred him from employment in the civil service. It took from 19 July 1989 until 1993 for the reasons for the judgment to be set down in writing. 12. The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay). 13. On 23 July 1991 the Martial-Law Court ordered the applicant’s release pending trial. 14. Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial-law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was transmitted to it. 15. On 27 December 1995 the Court of Cassation upheld the applicant’s conviction. 16. Article 146 § 1 of the Turkish Criminal Code provides: “Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.” 17. The provisions governing judicial organisation are worded as follows: “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, nor send them circulars or make recommendations or suggestions to them.” “Judges ... shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution ...” “... Martial-law courts shall be responsible for dealing with offences under special laws committed by civilians against military personnel and offences committed against military personnel in the course of their duties or on scheduled premises. The offences and persons falling within the jurisdiction of the martial-law courts in time of war or under martial law, the composition of martial-law courts and the appointment, where necessary, of judges and prosecutors from the ordinary courts to martial-law courts shall be regulated by law. The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law.” “The Ministry of Defence shall convene a sufficient number of martial-law courts in areas where martial law applies ...” “Judicial advisers, military judges and military prosecutors attached to the martial-law courts are appointed, with the agreement of the Chief of Staff, from among the candidates nominated by a committee composed of the personnel director and the legal adviser to the Office of the Chief of Staff, the personnel director and the legal adviser to the army corps to which the judge in question belongs and finally the head of the Military Legal Service at the Ministry of Defence.” “The army officers serving on martial-law courts are appointed, on the proposal of the Chief of Staff, according to the procedure for appointing military judges ...” “The officers serving on the martial-law courts and their substitutes shall be appointed, in December, by the commander or the superior of the military establishment within which a martial-law court is formed, from among the officers of that establishment. The officers thus appointed are irremovable for one year.” “... The aptitude of military judges for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports. (a) There are three types of assessment report, namely the assessment report for generals, the assessment report for officers (sub-lieutenant – colonel) and the professional assessment report. ... (b) The superiors in the hierarchy competent to carry out assessment and draw up assessment reports for officers are the following: First superior in the hierarchy: the commander or superior of the military establishment to which the judge in question belongs and in which a martial-law court is formed. Second superior in the hierarchy: the commander or the superior immediately above the first superior in the hierarchy. Third superior in the hierarchy: the commander or the superior immediately above the second superior in the hierarchy ...” “The Minister of Defence may apply to military judges, after hearing their defence submissions, the following disciplinary sanctions: (a) a warning ... in writing ... (b) a reprimand ...” | 1 |
train | 001-22927 | ENG | DEU | ADMISSIBILITY | 2,001 | N.F.B. v. GERMANY | 1 | Inadmissible | null | The applicant, Mr N. F. B., is a German national, born in 1943 and living in Eberberg. He was represented before the Court by Mr Reimer, a lawyer practising in Velbert (Germany). The facts of the case, as submitted by the parties, may be summarised as follows. On 25 February 1989 in the course of a judicial investigation opened in respect of the applicant, who was suspected of having sexually abused his daughter Miss M., the investigating judge at the Wuppertal District Court (Amtsgericht) took evidence from Miss M. in the presence of the applicant’s lawyer for several hours. In the course of that interview, the applicant’s lawyer asked Miss M. numerous questions. In an indictment (Anklageschrift) of 14 August 1989 the Wuppertal public prosecutor’s department committed the applicant for trial before the Wuppertal Regional Court (Landgericht) for acts of sexual abuse committed from early 1972 to November 1987 on his daughter, who was born in 1967. The indictment mentioned seven witnesses including an expert. On 28 October 1991 the Wuppertal Regional Court issued a warrant for the applicant’s arrest (Haftbefehl) on the same grounds and he was taken into custody in Wuppertal Prison that same day. In a judgment of 3 February 1992 after a fifteen-day trial the Wuppertal Regional Court sentenced the applicant to eight years’ imprisonment for at least 80 counts of indecently assaulting a child (sexueller Missbrauch von einem Kind), at least 200 counts of indecent assault on a child by a person having authority over her (sexueller Missbrauch von einem Schutzbefohlenen), and at least 150 counts of having sexual relations within the prohibited degrees of consanguinity (Beischlaf zwischen Verwandten). During the trial the Court heard evidence from Miss M., and the applicant’s lawyer was allowed to cross-examine her. On 10 June 1994, on an appeal by the applicant, the Federal Court of Justice (Bundesgerichtshof) set aside the above judgment on the ground that proceedings had been time-barred in respect of some of the offences, which could not be regarded as continuing ones. It remitted the case to another criminal division of the Wuppertal Regional Court. On 24 October 1994 and 11 January 1995 the Wuppertal public prosecutor’s office provided particulars and supporting evidence for each of the charges against the applicant. The indictments mentioned twenty-five witnesses, fifteen or so of whom were psychologists and doctors cited as experts. On 16 January 1995 the prosecuting authorities withdrew their indictment of 24 October 1994. In a decision of 6 March 1995 the Wuppertal Regional Court stated that the current proceedings related solely to the charges contained in the indictment of 11 January 1995. In a judgment of 6 July 1995, after a 29-day trial, the fifteenth grand criminal chamber of the Wuppertal Regional Court sentenced the applicant to seven years’ imprisonment for three counts of indecently assaulting a child combined with indecent assault on a child by a person having authority over her and having sexual relations within the prohibited degrees, four counts of indecent assault on a child by a person having authority over her, three of which involved sexual relations within the prohibited degrees, and seven counts of having sexual relations within the prohibited degrees, in accordance with Articles 173, 174 and 176 of the Criminal Code (Strafgesetzbuch). During the trial the Court heard numerous witnesses and experts, including doctors and psychologists who had treated Miss M., who had required constant psychotherapy, had had several spells in a private clinic and had twice attempted suicide. The Court also heard the applicant and Miss M., taking evidence from the latter for three consecutive days during which the applicant was not present but his lawyer was, although the lawyer was not able to question her. When the applicant’s lawyer and the applicant himself announced that they intended to ask Miss M. numerous questions, she stated that she was no longer in a fit state to be questioned owing to her poor state of health, as confirmed by a medical certificate. She relied on her right to refuse to give evidence (Zeugnisverweigerungsrecht) under Article 52 §§ 1 and 3 of the Code of Criminal Procedure (Strafprozessordnung – see Relevant domestic law and practice below). The applicant’s lawyer then applied for the Regional Court to order the discontinuance of the proceedings (Einstellung des Verfahrens) on the ground that his not being able to question Miss M. at the trial constituted a breach of Article 240 § 2 of the Code of Criminal Procedure (see Relevant domestic law and practice below) and Article 6 §§ 1 and 3 (d) of the Convention. The Regional Court rejected his application. In its judgment the Regional Court described in detail the sexual abuse to which Miss M. had been repeatedly subjected by the applicant since the age of four. The Court then conducted a highly detailed analysis of the credibility of the evidence taken at the hearing, particularly the statements by the applicant and Miss M. Among other things, it thoroughly examined Miss M.’s conduct and motives, noting the consistency of her statements, which were supported by a large body of evidence; it also refuted the applicant’s arguments that her therapists had had a harmful influence. The Regional Court pointed out (on p. 68 of the judgment) that on 25 February 1989 Miss M. had been interviewed for several hours by the investigating judge at the Wuppertal District Court. In the course of that interview she had had to answer numerous questions from the judge and the applicant’s lawyer. The Court noted what an ordeal it had been for Miss M. to describe in detail the abuse to which she had been subjected and how that had revived strong feelings of inner turmoil because she had had to relive the abuse again and again as she described it (“wühlten M. innerlich erneut sehr auf, weil sie immer wieder während der Schilderungen ihren Missbrauch durchleben musste”). The Court emphasised once more how difficult it was for Miss M. to describe the traumatic events she had undergone and noted that “every time, including the last occasion at the trial, it was only through a superhuman effort of will that she [had been] able to describe painful details and memories” (“die für sie schmerzlichen Details and Erinnerungen vermochte sie stets, zuletzt in der Hauptverhandlung, nur unter grösster innerer Überwindung mitzuteilen”). The Regional Court added: “In the light of her psychosomatic illness, as described above, and the serious post-traumatic effects she has suffered, it is understandable that Miss M. was not in a state to relive the events of her abuse during the trial without being affected. During her evidence the court was able to observe just how very sensitive the witness still is today when she has to describe details of her sexual abuse, which she is still not in a position to do without suffering harm. This was particularly so when she had to give details about her own feelings during the sexual assaults by the defendant because at those points she was almost overwhelmed by the strength of the feelings of guilt and shame that she still experiences today. In that connection the Court was not able to discern any of the artfulness or glibness attributed to her by the defence.” (“Vor dem Hintergrund ihrer oben geschilderten psychosomatischen Erkrankung und den entsprechenden gravierenden Folgeerscheinungen wird auch erklärlich, dass M. letzlich nicht in der Lage war, in der Hauptverhandlung erneut ihre Missbrauchsgeschichte folgenlos zu durchleben. Die Kammer vermochte anlässlich ihrer Vernehmung einen Eindruck zu gewinnen, wie empfindsam die Zeugin auch heute noch reagiert, wenn sie Einzelheiten über den sexuellen Missbrauch schildern soll, wozu sie immer noch nicht ohne Beeinträchtigung in der Lage ist. Als besonders gravierend stellte sich der Eingriff in sie dar, wenn sie Angaben zu eigenen Empfindungen während der sexuellen Übergriffe des Angeklagten tätigen sollte, da sie in diesen Momenten von der Stärke ihrer Schuldgefühle und der Scham, die sie wegen ihrer Gefühle auch heute noch empfindet, nahezu erdrückt wurde. Die von der Verteidigung der Zeugin attestierte Verschlagenheit und Glattzüngigkeit, vermochet die Kammer insoweit nicht zu erkennen”). The Regional Court held that the applicant had acted deliberately and that he was aware of his guilt because he had constantly attempted, by means of threats, to enjoin his daughter to say nothing. By way of extenuating circumstances, the Court took account of the fact that the applicant had had no previous convictions, that he had worked hard in his job to provide for his family and that the criminal proceedings and his pre-trial detention had lasted a long time. As aggravating circumstances, on the other hand, the Court had regard to the length and the nature of the abuse to which the applicant had subjected his daughter since the age of four and the “high intensity of each separate instance” (die hohe Intensität der Einzelfälle) which had steadily increased over the years. The Court emphasised that the applicant had shamelessly (in schamloser Weise) and brutally (grob) exploited his daughter’s natural desire for paternal affection and transformed these abuses into a commonplace event. He had degraded his daughter to the level of a sex object constantly at his disposal, thus inhibiting her normal sexual development. As regards the various offences, the Court noted that the applicant had abused his daughter pitilessly and selfishly, forcing her into particularly humiliating sexual practices to keep her submissive while she tried in vain to escape from his hold over her through bulimia and vomiting crises. Despite his daughter’s subsequent attempts to distance herself from him and live an independent life, he had continued to pursue her relentlessly and had even involved her in relations that he and his wife had had with a couple who engaged in partner-swapping. The Regional Court decided on the length of the applicant’s sentence in the light of all of the above circumstances and the serious traumas experienced by Miss M. – for whom psychological assistance will remain essential for an indefinite period. On 17 July 1996, on appeal by the applicant, the Federal Court of Justice varied the verdict, finding the applicant guilty of three counts of indecently assaulting a child, three counts of indecent assault on a child by a person having authority over her, including sexual relations within the prohibited degrees, and seven counts of having sexual relations within the prohibited degrees, but did not alter the length of the sentence. The Federal Court also rejected the applicant’s application for the proceedings to be discontinued for a procedural defect resulting from a breach of Article 266 § 1 of the Code of Criminal Procedure, on the ground that, in the indictment of 11 January 1995, containing the charges on which the applicant stood trial, the prosecution had sufficiently substantiated the facts referred to in its indictment of 14 August 1989, and that the applicant’s consent would only have been required if the prosecution had brought additional charges at his trial. On 12 November 1996 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a three-member panel, decided to dismiss the applicant’s appeal. The first sentence of Article 240 § 2 of the Code of Criminal Procedure states that the president of the court must authorise the prosecution, the defendant and the defendant’s lawyer to examine respectively the defendant, the witnesses and the experts. Under the second and third sentences of Article 247 of the Code of Criminal Procedure, the court may hear witnesses in the absence of the defendant if there is a serious risk of grave detriment to the witness’s health (“wenn die dringende Gefahr eines schwerwiegenden Nachteils für [die] Gesundheit [des Zeugen] besteht”). As soon as the defendant is present at the hearing again, the president must inform the defendant of the main content of the evidence given in his absence (“von dem wesentlichen Inhalt dessen zu unterrichten, was während seiner Abwesenheit ausgesagt oder sonst verhandelt worden ist”). Article 52 § 1 of the Code of Criminal Procedure authorises the defendant’s relations in the direct line, inter alios, to refuse to give evidence. The second sentence of Article 52 § 3 provides that persons who have waived their right to refuse to give evidence may change their mind while in the witness stand and exercise this right again. According to the established case-law of the Federal Court of Justice, this restriction of the rights of the defence must be taken into account by the relevant court when assessing the evidence. Thus it should be considered, in particular, to what extent the witness’s statements are corroborated or called into question by the other evidence and how significant they are. | 0 |
train | 001-97625 | ENG | SWE | CHAMBER | 2,010 | CASE OF R.C. v. SWEDEN | 3 | Violation of Art. 3 (in case of expulsion to Iran) | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 7. The applicant was born in 1965 and is currently in Sweden. 8. On 18 October 2003 the applicant arrived in Sweden and three days later he requested the Migration Board (Migrationsverket) to grant him asylum and a residence permit in Sweden. 9. The Board held a first interview with the applicant on 27 May 2004 during which he stated that he was Shia' Muslim and came from a city in the south of Iran where his wife and two minor sons remained. A smuggler had arranged for his travel to Sweden and he had travelled all the way hidden in a lorry. He claimed that he had criticised the Iranian government on several occasions and, the last time he had participated in a student demonstration to show his sympathy, he had been arrested. He had spent seven months in Sepah prison and then been transferred to a prison in his home town where he had spent another seventeen months. He had never been formally tried in court but every third month there had been a sort of religious trial where he had been put before a priest who had decided on his continued imprisonment. While imprisoned, he had been subjected to torture and still suffered from headaches because of it. He knew others who had participated in the demonstration and who were still imprisoned without trial. 10. A complete asylum investigation was conducted by the Migration Board on 4 June 2004 where the applicant maintained his initial statements and essentially added the following. In 1993 he had quit his job and returned to his village to work as a farmer. He had discussed with other villagers about the lack of human rights and freedom in Iran. One night the Basij (a “people's militia”, loyal to the Supreme Leader) had come and destroyed his fields with a tractor. When he had tried to report the incident to the police, they had advised him not to, since it would lead nowhere. He had also expressed his opinion of the government when he had watched television in public places. The Basij had later destroyed his car, thrown stones at his house and sent messages that he should stop his activities and “information evenings”. He had received the threats through a relative of his wife who worked for the regime. The threats had commenced in 1997 but had become more serious after he had participated in his first demonstration in 2000. It had been a student demonstration and he had escaped when the police intervened. On 9 July 2001 he had participated in his second student demonstration where he had been arrested because police had closed off all escape routes and had been filming the protesters as evidence. Many others had also been arrested. During the demonstration they had shouted slogans against the president and the government and demanded the release of student prisoners. In Sepah prison he had been tortured. He had been stabbed twice in the thigh, boiling water had been poured over his chest and his captors had hit him with their fists. However, on 11 February 2002, he had been transferred to the prison in his home town. He had been planning to escape for almost nine months by being very co-operative with the prison guards so that he had earned their trust. The “religious trials” had taken place at a court outside the prison and the applicant had spoken with three of his friends, who had visited him in prison to help him. On 19 July 2003 he had been taken to the court and his friends had been there. He had worn his normal clothes under his prison outfit and he had not had any handcuffs as the guards trusted him. He had told the guard that he had to go to the bathroom, where he had taken off his prison outfit. In the meantime one of his friends had gone to start the car and another friend had spoken to the guard to distract his attention from the applicant. The applicant had then walked straight out of the court, got into the car and they had driven off. It had been a revolution court and there had been a lot of people. He had then remained hidden at a friend's home for about two months while his friend had found a smuggler to help him out of the country. While he had been in hiding, his wife had been taken to the police twice for questioning about his whereabouts. His father had also been questioned. The applicant underlined that he was not, and never had been, a member of a political party or any organisation and that he had never been formally convicted of any crime. He was convinced that he would be executed if returned to Iran since he had escaped from prison and because he would be accused of having co-operated with those who are against Islam. 11. The applicant further stated that he continuously suffered from headaches and sleeplessness and had problems with his legs. He submitted a medical certificate, dated 4 February 2005 and issued by Dr I. Markström, a physician at a local health care centre. The certificate stated that the applicant had scars around both ankles, scars on the outside of both kneecaps and two lateral scars on his left thigh. He also had a reddish area stretching from his neck down to his chest and when he yawned there was a loud clicking sound from the left side of his jaw. In the physician's opinion, these injuries could very well originate from the torture to which the applicant claimed that he had been subjected in Iran, namely, that he had been chained around his ankles and suspended upside down for several hours, that boiling water had been thrown at his chest, that he had received blows to his head, jaw, abdomen and legs, and that he had been stabbed twice in the left thigh with a bayonet. 12. On 27 May 2005 the Migration Board rejected the request. It first noted that the applicant had not claimed to have been a member either of an organisation or of a political party or to have had a leading role in the organisation of demonstrations. Moreover, the proceedings before the revolutionary courts were in general not open to the public. The Board found that the applicant had not substantiated his story in any way and that he had thus failed to show that he had been, or would be, of interest to the Iranian authorities. It therefore considered that the applicant would not attract special attention from the Iranian authorities if he were to be returned to his home country. As concerned the ill-treatment and torture of which the applicant claimed to have been the victim, the Board found that the medical certificate did not prove that he had been tortured even if the injuries documented could very well originate from the torture described. In its view, there was no reason to believe that the applicant would be subjected to ill-treatment or torture upon return to Iran. Thus, it concluded that the applicant could neither be granted asylum in Sweden nor a residence permit based on humanitarian grounds. 13. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining his claims and adding that about half of the inhabitants in his home town knew him since he used to be a football player. Moreover, he had been one of ten to twelve organisers of the demonstration held in 2001. They had written the banners and decided which slogans to use. The other organisers, who were students and previously imprisoned critics of the regime, had also been punished. Following his escape, his wife had been taken in for questioning about his whereabouts on seven occasions and had been kept in detention on three occasions. His father had been questioned on two occasions and their home had also been searched on two occasions. The applicant further claimed that he had been kept in an isolation cell for the first two months of his detention. Furthermore, the public had access to hearings before the revolutionary courts and it had been relatively easy for him to escape since his friends had distracted the guards and he had thus been able to leave the building. Lastly, submitting four medical certificates, the applicant invoked his deteriorating health as he suffered, inter alia, from depression and panic attacks. 14. In March 2006 the applicant was informed that the case would be transferred to the Migration Court (Migrationsdomstolen) for further proceedings, following the entry into force of a new Aliens Act (see below under Relevant Domestic Law). 15. On 18 June 2007 the Migration Court held an oral hearing. In response to his lawyer's questions the applicant stated, inter alia, that he had participated in demonstrations critical against the regime since 1988 and that, in 1997 or 1998, he had started to notice that his criticism was not appreciated. He had participated in yearly demonstrations, such as on women's day and on labour day. Mostly he had participated in meetings on various premises. A relative of his wife had been an official at the intelligence agency and thus he had been assured that nothing would happen to him. He had been one of 4-5,000 participants in the demonstration in 2001 and he had played no special role, but it had been monitored by the authorities. He had been arrested and accused of being against Islam and the regime. In connection with a visit by his wife to Sepah prison while he was there, she had been detained for three days and questioned about him. However, no other relatives had been summoned or questioned by the authorities. He had escaped when his friends had come to the revolutionary court for his hearing and had pretended to have a fight with each other so that he could go to the toilets to change. It had then taken him fifteen seconds to leave the building since there were no exit controls. In response to questions by the Migration Board, the applicant claimed that he had organised demonstrations and that he had been one of the leaders at the demonstration in 2001. He had been arrested because he had been in the front row and had shouted slogans. 16. In a judgment of 9 July 2007, the Migration Court, by three votes to one, rejected the appeal. It first noted that the applicant appeared to have expanded his grounds for asylum by claiming that he had not just participated in demonstrations but had actually been involved in organising them. However, since he had not been a member of a party or an organisation which was critical of the regime, the court found it unlikely that he would be of any interest to the authorities in his home country if he returned. It further considered that the applicant's account of how he had escaped from the revolutionary court was not credible, having regard, inter alia, to international sources which stated that insights into the functioning of the revolutionary courts were very limited. The court also noted that he had remained in Iran for two months following his escape before leaving the country. Moreover, it found that the applicant had failed to show that he had been tortured in IranSweden and that his health problems were not of such a serious nature that he could be granted leave to remain on humanitarian grounds. 17. One of the three lay judges dissented as he considered that the applicant had given a credible account of events and should be granted asylum as a refugee in Sweden. 18. On 17 July 2007 the applicant appealed to the Migration Court of Appeal (Migrationsöverdomstolen), maintaining his claims and stating that he was only telling the truth. He was also of the opinion that the Migration Court had failed to take into account the medical certificate testifying to his torture injuries. He further requested some extra time in order to submit certain documents that his family had sent to him from Iran. The court granted an extension of the time-limit and, on 7 August 2007, the applicant submitted, among other things, two summonses, one to his wife and one to his father, to appear before the revolutionary court in his home town on 6 August 2003 to answer questions concerning the applicant and his escape from prison. 19. On 4 September 2007 the Migration Court of Appeal refused leave to appeal. 20. The applicant was called to a meeting with the Migration Board on 9 November 2007. 21. On 8 November 2007, following a request by the applicant, the President of the Chamber to which the case had been allocated decided, under Rule 39 of the Rules of Court, to indicate to the Swedish Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to deport the applicant to Iran until further notice. 22. Following the request by the Court, on 9 November 2007 the Migration Board stayed the enforcement of the deportation order until further notice. 23. Upon request by the Court, the applicant submitted a forensic medical report dated 14 November 2008 and issued by Dr E. Edston, specialist in forensic medicine at the Crisis and Trauma Centre at Danderyd Hospital. The report was drawn up on the basis of the protocols from the interviews with the applicant before the Migration Board, the medical certificate by Dr I. Markström, a letter from the applicant's representative dated 16 October 2008 and the applicant's own story as told to Dr Edston during his examination on 4 November 2008. The report contained photos of the scars together with a written protocol of all the scars and the medical record from the examination as well as Dr Edston's opinion. 24. The report noted that the applicant had claimed that he had been tortured in prison in 2001 and that the torture had consisted of beating with fists, kicks, being hit on his kneecaps with rifle butts, having a bayonet stuck twice in his thigh, as well as being flogged, suspended upside down for prolonged period of times and having hot water poured over him. He further stated that, as a result of the torture, he suffered from chronic headaches, reduced feeling in his right thigh, reduced mobility of his jaw, reduced eye sight, an ulcer, pain in his knees when walking and medical problems with his thyroid gland and diabetes. Dr Edston examined the applicant and found numerous scars on his body. 25. In Dr Edston's opinion, the injuries invoked by the applicant could very well have occurred in 2001 as claimed and the scars observed on his body had the appearance and localisation which corresponded well with his statements of how they had appeared. For example, the scars on his kneecaps could well correspond to blows with rifle butts, the marks on the front of his shins from having been kicked with boots, the marks on his left ankle could have appeared as a consequence of having been suspended upside down by his ankles and the pigmentation on his neck corresponded well with a burn injury. In conclusion, Dr Edston noted that, in cases like this, alternative causes for the origins of the scars could not be completely excluded but that experience showed that self-inflicted injuries and injuries resulting from accidents normally had a different distribution to those showed by the applicant. The findings in the present case favoured the conclusion that the injuries had been inflicted on the applicant completely or to a large extent by other persons and in the manner claimed by him. Thus, the findings strongly indicated that the applicant had been tortured. 26. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 27. Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act). 28. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act). 29. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act). 30. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist. 31. On 25 June 2009 the Parliamentary Assembly of the Council of Europe (PACE) adopted a resolution on the situation in Iran in which it urged the Iranian authorities to refrain from using force and violence against peaceful demonstrators and to release the more than 400 demonstrators arrested since the elections on 12 June 2009 as well as the more than 170 politicians, members of their families and journalists detained. At its subsequent session in Strasbourg, on 1 October 2009, the Political Affairs Committee of the PACE, adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens' human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran. 32. In a report (A/64/357) of the United Nation's Secretary-General on The situation of human rights in the Islamic Republic of Iran, dated 23 September 2009, and presented to the UN General Assembly at its 64th session, it was noted that 2009 had seen an increase in human rights violations targeting women, university students, teachers, workers and other activist groups, particularly in the aftermath of the elections in June 2009. Hence, during June, July and August 2009, several independent UN experts as well as the Secretary-General had voiced grave concerns about the use of excessive police force, arbitrary arrests, killings, ill-treatment of detainees and the use of torture to obtain confessions. Moreover, a variety of cases suggested a widespread lack of due process, access to lawyers and the failure to respect the rights of detainees, including allegations that individuals had been placed in detention without charge and had been kept “incommunicado”. It was noted that no visits by any special procedure mandate holders had taken place since 2005. 33. In its World Report 2009, Human Rights Watch noted that respect for basic human rights in Iran continued to deteriorate and that the government showed no tolerance for peaceful protests or gatherings, routinely detaining participants and subjecting them to torture. The Judiciary and the Ministry of Intelligence continued to be responsible for many serious human rights violations. Amnesty International, in its Amnesty International Report 2009, made the same findings, also noting that demonstrations frequently led to mass arrests and unfair trials. Some were also detained without trial for long periods beyond control of the judiciary and were reported to have been tortured and denied access to lawyers and their families. Amnesty International has repeatedly observed that trials before the revolutionary courts are not public. For instance, on 4 August 2009, in its article “Over 100 Iranians face grossly unfair trials”, Amnesty International noted that more than 100 persons had gone on trial in Tehran accused of organising widespread civil protests. The trial was held before the Revolutionary Court in Tehran and it was closed to the public and even to the defendants' lawyers. 34. According to Sections 3.28 and 3.31 of the U.K. Home Office's Country of Origin Information Report on Iran, dated August 2009, the pressure for democratic reform in Iran changed dramatically after the student protests at Tehran University in July 1999. Every year on the anniversary of the 1999 event, students have gathered at Tehran University and other major campuses throughout the country and the date has been a flashpoint for violence and tension (Section 3.27). Thus, in June 2003, thousands of Iranians took to the streets and about 4,000 people were arrested all over the country before and after the protests. Although many of them had since been released, there were still scores of students behind bars. Some of these had been in prison since they were arrested as a result of similar disturbances in 1999, 2000 and 2001. 35. Section 27.14 of the U.K. Report further noted that in “Evaluation of the August 2008 Country of Origin Information Report on Iran” by Dr Reza Molavi and Dr Mohammad M Hedayati-Kakhki of the Centre for Iranian Studies at Durham University, dated 23 September 2008, it appeared that, if an Iranian arrived in the country without a passport or any valid travel documents, they would be arrested and taken to a special court at Mehrabad Airport in Tehran where the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups and any other circumstances would be assessed. This procedure also applied to people who were deported back to Iran, not in the possession of a passport containing an exit visa; in this case the Iranian Embassy would issue them with a document confirming their nationality. Illegal departure was often prosecuted in conjunction with other, unrelated offences since the investigation into the facts surrounding the offence of illegal departure could result in the discovery of an underlying offence. 36. The Danish Immigration Service's report Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., released in April 2009, following a fact finding mission to Iran from 24 August to 2 September 2008, stated that some of its sources had claimed that the granting of travel documents at an Iranian embassy did not necessarily mean that the person would not face problems with the Iranian authorities upon return to Iran. The person in charge of passport border control at the Imam Khomeini International Airport in Tehran (a newly built airport which had replaced Mehrebad airport) had explained that an Iranian travelling on a laissez-passer was likely to be interviewed upon arrival in Iran and questioned about how he or she had lost the previous passport. However, if a person arrived in Iran on a travel document issued by an Iranian representation and the security check had been completed at the embassy, the airport authorities would not check his or her identity. The authorities at the airport would, however, ask the person how he or she had left Iran, since there was no exit stamp in his or her new travel document. A source in Iran claimed that, if a person had left Iran illegally, he or she had not been registered in the computer system as having left Iran and therefore would be questioned upon return. It was added that a person who had left the country illegally could also be arrested if he or she had committed an illegal act before leaving Iran. It was further observed that a person on a laissez-passer, issued by an Iranian representation abroad, might be fined for illegal exit or subjected to a few hours' interrogation. | 1 |
train | 001-107997 | ENG | SVN | ADMISSIBILITY | 2,011 | MESIC v. SLOVENIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicant, Mr Jasmin Mešić, is a Slovenian national who was born in 1979. He was represented before the Court by Odvetniška Družba Matoz O.P. D.O.O., a law firm practising in Koper. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant has been serving his sentence in the closed section of Dob Prison since 24 July 2006. As regards the facilities available to the applicant in the cells and common areas, as well as the health care regime in the prison, the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world, see the Court’s decision in the case of Lalić and Others v. Slovenia (dec.), no. 5711/10 etc., 27 September 2011. The applicant has been held in different cells. Until 21 November 2009 he was held in Block 4 in cells measuring 59.25 square metres, in which the number of inmates varied between thirteen and sixteen (3.7 to 4.5 square metres of personal space available to each inmate). During this time he was on five occasions placed in Block 1 – for about thirteen months altogether, mostly for security reasons. There, he was held in cells accommodating no more than four inmates at a time, while most of the time each inmate had more than seven square metres of personal space, and never less than 3.9. The applicant was held in the same conditions in Block 1 between 21 November 2009 and 13 February 2010. Afterwards he was placed in Block 3, where he was held in cells measuring 59.89 square metres and accommodating between thirteen and fourteen inmates (4.2 to 4.6 square metres of personal space available to each inmate). The applicant has completed his primary education in prison, and is continuing with secondary education, including food-preparation and catering classes. During the initial months of his imprisonment he worked in the Pohorje Public Institute (agricultural activities and metalwork), later he attended work therapy sessions. The applicant suffers from hepatitis C. Further to the results of the blood test which confirmed that he had this disease, received on 17 August 2006, he was referred to a specialist in order to undergo an examination. He underwent an abdominal ultrasound in December 2006. On 29 March 2010, following the applicant’s notifying the prison doctor about his hepatitis C infection, he was again referred to the specialist and underwent a further abdominal ultrasound. The doctor specialised in this field found that the applicant was chronically ill with hepatitis C, and should undergo appropriate medical treatment. A liver biopsy was scheduled for October 2010, but was postponed. Between 6 and 8 December 2010, the applicant was hospitalised in General Hospital Novo Mesto in order to undergo a liver biopsy. According to a report dated 13 August 2010 drawn up by a prison doctor, the applicant had been treated in the prison clinic on ninety-nine occasions for various medical problems. He had not raised the issue of hepatitis C when visiting the prison doctor until March 2010. The additional report by the aforementioned doctor dated 7 December 2010 read, as far as relevant, as follows: “[The applicant] had not shown interest in continuing treatment and had not mentioned anything connected to the treatment of hepatitis C until 29 March 2010. The disease had not manifested itself during that period. In the opinion of the representative for the patient’s rights, M. P, ... the patient’s rights under the Patient Rights Act had not been breached [in the applicant’s case]. Section 54 of the aforementioned Act states that in order to obtain health care of good quality, the patient should actively participate in his or her treatment. Jasmin Mešić certainly had not actively participated in his treatment.” The applicant had also been visiting the prison psychiatrist and had for a while been undergoing methadone-maintenance treatment. According to the information submitted by the Government, in 2008 eighty-one prisoners in Dob prison were tested for hepatitis B and C, and seven were tested for HIV. Two were diagnosed with hepatitis B, and fifteen with hepatitis C. In 2009 sixty-five prisoners in Dob prison were tested for hepatitis B and C, while eight were tested for HIV. One was diagnosed with hepatitis B, and seven with hepatitis C. No one was diagnosed with HIV. For the relevant domestic law and practice, see paragraphs 33-35 and 38-47 of the Court’s judgment in the case of Štrucl and Others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, 27 September 2011), and paragraphs 34-36 of Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, 27 September 2011), as well as Lalić and Others, cited above. In addition, the Patient Rights Act (Official Gazette no. 15/2008, entry into force on 26 August 2008) provides for procedures for dealing with complaints concerning, inter alia, inadequate medical treatment or care. In accordance with the provisions of that Act, a patient can lodge a complaint directly with a health-care provider. If unsatisfied, he or she can complain to the Commission for Protection of Patients Rights. Ultimately, a patient whose complaint has been unsuccessful can challenge the decisions made in his or her case before the Administrative Court. The Act also regulates the work of the Representative for Patients’ Rights, whose main role is to assist, provide advice to and represent patients in the exercise of their rights provided therein. | 0 |
train | 001-83445 | ENG | TUR | CHAMBER | 2,007 | CASE OF BARIŞIK AND ALP v. TURKEY | 4 | Violation of Art. 6-1 | null | 27. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events, read as follows: “Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.” “As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...” “The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.” “A hearing shall be held if the objection is raised against a prison sentence imposed by a penal order. (...) The suspect can be represented by defence counsel during the hearing. (...) The objections against penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.” “Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...” | 1 |
train | 001-76995 | ENG | GBR | CHAMBER | 2,006 | CASE OF BLAKE v. THE UNITED KINGDOM | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza;Simon Brown | 6. Between 1944 and 3 May 1961 the applicant was a member of the SIS. On 16 August 1944 he signed an undertaking (Official Secrets Act 1911 - “the 1911 Act”) which applied during and after his SIS service. 7. In or around 1951 the applicant became an agent for the Soviet Union when he disclosed secret information to the Soviet authorities. In 1960 he was arrested. In 1961 he pleaded guilty to five counts of unlawfully communicating information contrary to the 1911 Act and was sentenced to 42 years' imprisonment. In 1966 he escaped from prison. He made his way to Berlin and from there to Moscow where he lives to date. 8. In 1989 he wrote his autobiography entitled “No Other Choice” (“the Book”) which was described later by the High Court as “his apologia for the course his life has taken”. Substantial parts related to his activities, and were based on information acquired by him as an S.I.S. officer. 9. In May 1989 he signed a contract with a Publisher to publish the Book in the United Kingdom. He was paid at that stage an advance on royalties (33, 650 pounds sterling (GBP) net) and a further advance royalty payment (GBP 55,000) was due to him on publication. In September 1990 the Publisher announced the impending publication of the Book and it was published on 17 September 1990. 10. By letter of 14 September 1990 to the Publisher, the Treasury Solicitor stated that it would hold the Publisher liable for the applicant's breach of his duty of confidentiality. The Publisher denied the claims but confirmed that it would not make payments without notice to the Crown. The Treasury Solicitor's letter to the Publisher of 23 November 1990 considered the applicant liable for a breach of a fiduciary duty to the Crown: the Publisher rejected these claims. 11. The Attorney General (“AG”) issued a writ in the High Court on 24 May 1991 seeking from the applicant any financial benefit from publication (royalties already due from the Publisher and any future royalties) arguing that in writing and authorising the publication of the Book, he had acted in breach of the duty of confidence he owed to the Crown as a former member of the SIS. There was no reliance on the 1911 Act, the Official Secrets Act 1989 (“the 1989 Act”) or on the undertaking signed in 1944. 12. On 17 June 1991 a statement of claim was submitted. 13. On 17 November 1991 an extension of time was given for lodging the defence and this was filed on 6 January 1992. 14. By letter dated 3 December 1991 to the applicant, the Legal Aid Area Office refused legal aid and he appealed within the 14 day time-limit. By letter of 7 April 1992 that Office indicated that his appeal had been adjourned pending receipt from him of further information in relation to royalty payments already made to him and it was noted that he had not requested the Treasury Solicitor to release the monies held by the Publisher to fund his defence of the proceedings. In April and May 1992 the applicant requested the Treasury Solicitor to release the monies held by the Publisher to fund his defence, and these requests were refused (in April and July 1992, respectively). 15. In May 1992 the Publisher rejected the applicant's request for the payment of royalties due, or at least GBP 20,000, to cover legal costs maintaining that that was a matter between the applicant and the Crown. 16. On 20 May 1992 the applicant's sister completed a schedule detailing how the payments received from the Publisher had been spent: some on household goods with the majority given to family members. 17. On 3 July 1992 his solicitors informed the Legal Aid Area Office how the royalty payments to date had been spent and about the refusal of the Treasury Solicitor and the Publisher to release the monies to him. By letter dated 27 July 1992 from Legal Aid Area Office the applicant was informed that the Area Committee had rejected his appeal. It appeared to the Committee unreasonable that he should be granted representation: since the litigation was known to him, not later than 28 June 1991, he had voluntarily divested himself of substantial funds under his control and direction. The applicant claimed that he had given approximately GBP 20,000 to his children before 28 June 1991 and that only GBP 14,000 had been spent thereafter (most of which he had given to his son). The balance remaining (GBP 4,165) was insufficient to fund his litigation. 18. By letter dated 12 August 1992 the applicant informed the Treasury Solicitor that he would apply to the High Court for an order that the AG consent to the release of the relevant monies to fund his defence. This application was made on 20 August 1992 and on 21 August 1992 the matter was adjourned for a hearing before a judge. On 18 February 1993 the High Court dismissed the application finding that it had no jurisdiction to make an injunction against the Crown. The matter could be revisited if the Publisher was joined as a third party to the proceedings. On 8 March 1993 the High Court refused leave to appeal. 19. On 19 May 1993 the High Court allowed the applicant serve a third party notice on the Publisher, the notice issued on 24 June 1993, on 27 September 1993 the Publisher submitted its defence and counterclaim followed by, in February 1994, Further and Better Particulars of the Counterclaim. The Publisher did not oppose the release of funds and the applicant renewed his request for release of the funds. 20. On 22 June 1994 the High Court rejected his re-application for the release of the monies: the Crown's claim was prima facie a strong one. Many litigants presented their cases themselves and the court was able to ensure that there was a fair trial. Since he was a fugitive from justice and would not appear in person, the lack of legal representation would not deny him a fair trial. It was also noted that, by this time, he had received in the region of $11,000 for a German television documentary which could contribute to his legal costs. 21. On 12 August 1994 his solicitors applied and were granted leave to cease to act for the applicant. They could not continue to act on a pro bono basis and costs' orders had already been made against the applicant. 22. Given that the applicant would not be attending to represent himself and on the initiative of the AG, on 25 July 1995 the High Court appointed a Queen's Counsel and a junior counsel to act as amici curiae in the case. The Crown was also represented by Queen's Counsel and by junior counsel. The applicant was not present or further represented before the High Court. 23. On 1 and 2 April 1996 a hearing took place in the High Court. On 19 April 1996 the High Court rejected the AG's application by detailed judgment and, in particular, the AG's claim of a continuing fiduciary duty owed by the applicant to the Crown. On 20 May 1996 the Crown appealed. 24. The Legal Aid Area Office refused legal aid for the appeal by letter dated 30 May 1996 stating that the applicant had not shown reasonable grounds for taking, defending or being a party to proceedings. In particular, he had not made any comment on the Crown's grounds of appeal and it was not therefore possible to determine his likely prospects of success. He appealed this refusal, submitting detailed and reasoned argument. The Legal Aid Area Office, by letter dated 25 June 1996, confirmed the rejection of his appeal noting that the Committee considered that it would be unreasonable to grant legal aid to enable him to continue to pursue a claim so long as he remained “a fugitive from justice already meted out to you”. 25. His solicitors again applied for the release of the monies to fund his litigation which application was rejected by the Court of Appeal. 26. The Court of Appeal hearing took place on 6 and 7 October 1997. The applicant was neither represented nor present and the Publisher took no part in the proceedings. The AG was represented by the Solicitor-General, Queen's Counsel and two junior counsel, with a Queen's Counsel and one junior counsel appearing as amici curiae. The Court of Appeal later noted that the amici curiae had deployed before it all the arguments which the applicant might have wished to present if he had been present. 27. Counsel acting as amici curiae suggested a possible public law remedy and the court also considered that the AG might have a private law restitutionary remedy against the applicant. The proceedings were therefore adjourned (until 1 December 1997) to allow submissions on those two issues as defined by the court. The AG was also granted leave to amend his statement of claim. Arrangements were made for the applicant to be sent the amended statement of claim. He did not respond because, he submitted, he was not legally represented. 28. On 16 December 1997 Lord Woolf M.R. delivered the court's judgment dismissing the three private law grounds of appeal (breach of a life-long fiduciary duty arising from S.I.S. employment; breach of contract given the undertaking signed in 1944; and a claim for restitutionary damages for profits from a breach of contract where the defendant obtained profit by doing the very thing which he contracted not to do). The Crown's public law claim (the AG's inherent power to bring proceedings to ensure the enforcement of the criminal law) was allowed. Accordingly, Lord Woolf M.R. granted an injunction restraining the applicant from receiving any payment or other benefit in connection with the exploitation of the Book 29. On 24 January 1998 the applicant's solicitors sought leave to be reinstated and, acting on a pro bono basis, lodged skeleton arguments before the Court of Appeal seeking leave to appeal to the House of Lords. On 28 January 1998 the applicant's representatives went back on record. On 22 April 1998 the Court of Appeal gave leave to appeal. On 24 April 1998 the applicant requested waiver of security for costs and the Treasury Solicitor confirmed consent on 24 June 1998. 30. On 24 June 1998 the House of Lords allowed the filing of the appeal petition out of time. On 30 July 1998 the applicant again applied for the release of the monies held by the Publisher, which was refused by the Treasury Solicitor on 25 August 1998. His request to the House of Lords for the release of monies was made on 15 October 1998 and was rejected in November 1998, the House of Lords advising him to apply for a waiver of the appeal fees. The applicant submitted that between November 1998 and May 1999 he corresponded with the Legal Aid Area Office concerning funding for the appeal to the House of Lords. On 5 June 1999 the applicant returned the completed waiver request form and on 25 June 1999 the applicant's solicitors applied for the waiver of appeal fees. On 2 July 1999 the House of Lords requested further information of the applicant as regards the waiver application. Between 7 and 20 July the applicant and the Treasury Solicitor agreed on a statement of facts for the purposes of the appeal. In or around late 1999/early 2000 the House of Lords agreed to waive the appeal fees and security for costs. The expenses (not including legal costs) of preparing the hearing bundles for the House of Lords amounted to GBP 2,709. His solicitor and junior counsel represented him on a pro bono basis. Two Queen's Counsel and two junior counsel represented the Crown. 31. The appeal hearing was fixed for 7-9 March 2000. Although he accepted that the restitutionary damages' (private law) issue raised points of general interest, the AG confined the appeal to the public law injunction. However, by letter dated 14 February 2000 to the parties, the House of Lords indicated that it wished to hear argument at the hearing on the matter of restitutionary damages for breach of contract. Both parties prepared written submissions on the point and a hearing took place between 7 and 9 March 2000. 32. The main judgment was delivered on 27 July 2000 by Lord Nicholls, with whom Lords Goff and Browne-Wilkinson concurred. Lord Steyn delivered a separate judgment and Lord Hobhouse dissented. Lord Nicholls concluded that there was no reason in principle to rule out an account of profits as a remedy for breach of contract in exceptional situations notably where other remedies were inadequate and where the plaintiff had a legitimate interest in preventing the defendant's profit-making activity and, hence, in depriving him of his profit. The final basis for making an order for an account of profits was the applicant's breach of contract and, in particular, the undertaking of confidentiality signed in 1944. However, that did not confer on the Crown any proprietary interest in the debt due to the applicant from the Publisher. The Crown was entitled, on the taking of the account, to a money judgment which could then be enforced by attachment of the debt in the usual way. Given that the Publisher who held the monies wished to deduct its legal expenses in defending the third party proceedings, the appropriate form of order was a declaration that the AG was entitled to be paid a sum equal to whatever amount was due and owing to the applicant under the publishing agreement of 4 May 1989. The injunction would remain in force until the Publisher made payment to the AG. 33. The applicant remained in Russia for the duration of the proceedings. | 1 |
train | 001-98885 | ENG | GEO | CHAMBER | 2,010 | CASE OF SAGHINADZE AND OTHERS v. GEORGIA | 3 | Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-4;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 6. The first and second applicants are husband and wife. They were both born in 1937. Their son, the third applicant, and his wife, the fourth applicant, were born in 1964 and 1970 respectively. The fifth and sixth applicants are the daughters of the first and second applicants and were born in 1962 and 1971 respectively. 7. The applicants, with the exception of the fourth applicant, are internally displaced persons (“IDPs”) from Abkhazia, Georgia. As a result of the armed conflict in 1992-93, they, along with approximately 300,000 other mostly ethnic Georgians, fled Abkhazia, abandoning their homes and property there. 8. As the first applicant had been a high-ranking official of the Abkhazian Ministry of the Interior, the Georgian Minister of the Interior offered him, in January 1994, the post of Head of the Investigative Department within his Ministry. After the first applicant accepted the offer, he and his family were settled in a cottage belonging to the Ministry situated at no. 15 Avtchala Street, in the outskirts of Tbilisi (“the cottage”). 9. According to the case file, the cottage became the Ministry's property on 29 October 1993. Under Order no. 531 of the Minister of the Interior issued on the above-mentioned date, the Ministry retrieved possession of the cottage from the State sports club Dinamo, and the Ministry's Department of Finances and Logistics became responsible for its use. The order of 29 October 1993 stated that the retrieval of the cottage was justified in the light of “a substantial increase in the number of staff members, ... coupled with the fact that, in view of the current hostilities in Abkhazia, exiled staff members of the Ministry need to be provided with employment and accommodation.” 10. The first applicant and his family started using premises adjacent to the cottage to create a small household economy by installing various fixtures and fittings for growing fruit and vegetables, and keeping poultry and small livestock. Later, the Saghinadze family gave free accommodation to eight homeless relatives who had been similarly displaced from Abkhazia (“the Saghinadze family's relatives”). In 1998 or 1999 the third applicant married the fourth applicant, and the couple also stayed in the cottage. 11. In 1998 the first applicant retired from service with the Georgian Ministry of the Interior. 12. On 20 April 2000 the Ministry issued a letter confirming the legitimacy of the possession of the cottage and the adjacent premises by the first applicant (“the Ministry's letter of 20 April 2000”). The letter stated that the first applicant and his family had been settled in the cottage in 1994 on the basis of an ordinance issued by the then Minister under the Internally Displaced Persons and Refugees Act of 28 June 1996 (“the IDPs Act”). The letter further noted that the possession was of a temporary nature, its period not being specified, and that the possessor had a duty of care. A copy of that letter was also addressed to the relevant local government authorities for information. 13. As made clear by the case materials, in 2001 the fifth applicant left the cottage to settle with her husband in Ukraine. On 31 August 2001 the sixth applicant became the registered owner of part of the land adjacent to the cottage. 14. Almost immediately after the Rose Revolution in November 2003 (for more details, see The Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, 8 July 2008), the newly appointed Minister of the Interior recalled the first applicant from retirement, asking him to lead the investigation into the Kaladze case. This high-profile criminal case, which the authorities had been unable to investigate since 2001, concerned the abduction and disappearance of the brother of Mr K. Kaladze, a well-known Georgian footballer with the Italian football club AC Milan. Having accepted the offer, the first applicant was promoted to the rank of police colonel and appointed as head of an independent investigative unit in charge of the Kaladze case and other high-profile abduction cases, by a ministerial order of 13 December 2003. 15. According to the first applicant, his investigative unit elucidated the circumstances of the Kaladze case over the following months. Allegedly, those findings were embarrassing for certain high-ranking officials who had been covering up criminal machinations in Georgian football, and on 30 March 2004 the then Prosecutor General, Mr I.O., personally requested the first applicant to drop the investigation. 16. In June 2004 the Prosecutor General, Mr I.O., was appointed as Minister of the Interior. Allegedly, the newly appointed Minister removed the first applicant from the Kaladze case and ousted him from office in a degrading manner on 26 June 2004. 17. On 13 October 2004 the first applicant submitted a confidential file to the National Security Council, a consultative body of the President of Georgia. Allegedly, that file contained information revealing abuses of power by Mr I.O. and other high-ranking officials. 18. On 25 October 2004 the police visited the Saghinadze family at home and requested, on the basis of an oral instruction given by the Minister of the Interior, Mr I.O., that they vacate the cottage. The first applicant showed the police the Ministry's letter of 20 April 2000 as proof of the legitimacy of his possession and requested the officers to leave. 19. On 30 October 2004 the police visited the Saghinadze family again, with the same eviction request. However, as the police could not produce a court decision, the first applicant did not let them in. 20. On 31 October 2004 the police made another attempt to evict the applicants. This time the cottage was allegedly besieged by approximately fifteen policemen and several special forces agents wearing black balaclavalike masks. They reiterated that they had an oral order from the Ministry of the Interior to evict the applicants. The first applicant engaged in heated argument with the officers, demanding that they either show a court authorisation to enter his home or leave immediately. On witnessing the tense situation, the second applicant fainted. The fourth applicant, who was pregnant at that time, also suffered a nervous reaction. As the police did not have the necessary court decision, they withdrew. 21. According to the applicants, on 1 November 2004 a group of approximately sixty armed special forces agents wearing black balaclava-like masks broke into their cottage. The Head of the MtskhetaMtianeti Regional Police Department was in charge of that operation. The police, who did not have any legal document authorising such an action, forcibly ousted the second applicant and the Saghinadze family's relatives from the cottage (the other applicants, including the first applicant, were not at home during the incident). After the eviction, several police officers remained stationed in the cottage. An adjacent plot of land, which was the sixth applicant's registered property, was also occupied by the police. 22. Subsequent to the incident of 1 November 2004, the first applicant brought civil proceedings and filed criminal complaints, challenging the arbitrary taking of the cottage and the obstruction of his professional activities by high-ranking officials of the Ministry of the Interior. 23. In those proceedings, which are described below, the first applicant acted throughout on his own behalf as the sole claimant/complainant. None of the remaining five applicants issued any document authorising either the first applicant or a lawyer to act on their behalf. Consequently, in so far as the first applicant's claim for recovery of possession was concerned, the domestic courts limited the scope of their examination to the first applicant's title to the cottage (see paragraphs 26, 33-37 and 43-44 below). 24. In addition to the proceedings pursued by the first applicant, the sixth applicant brought a successful action concerning the occupation of her plot of land (see paragraph 21 above). As a consequence of her complaints, the Ministry of the Interior vacated the land on 14 March 2005. 25. On 22 November 2004 the first applicant filed a civil action against the Ministry of the Interior, seeking to recover possession of the cottage under Articles 155, 159 and 160 of the Civil Code. The first applicant complained that the cottage had been in his legitimate possession and had served as the home for him and his family since 1994. Stating that all his personal and household belongings had remained in the sealed cottage and that he and his family had no other place to live, the first applicant also sought an injunction enabling them to remain in the cottage pending resolution of the dispute. On the same day, the Krtsanisi-Mtatsminda District Court in Tbilisi refused the request for an injunction as unsubstantiated but declared the main action admissible for examination on the merits. The first applicant then requested that, if his action were allowed, an immediately enforceable judgment be delivered under Article 268 of the Code of Civil Procedure (“the CCP”). 26. In a judgment dated 30 December 2004, the Krtsanisi-Mtatsminda District Court allowed the first applicant's action, ordering the respondent Ministry to hand the cottage back to the first applicant. Noting that the Ministry's letter of 20 April 2000 had been proof of the fact that he and his family had settled there as IDPs from Abkhazia on the basis of a ministerial ordinance, the court found that his possession of the cottage had been legitimate. The court further reasoned that section 7 § 3 of the Act of 28 June 1996 on Internally Displaced Persons and Refugees (“the IDPs Act”) prohibited eviction of IDPs already in accommodation, unless (a) an agreement had been reached with them, (b) alternative accommodation had been offered, (c) the eviction had been made necessary by acts of nature and adequate compensation had been provided for, or (d) the IDPs had occupied the disputed premises vexatiously, without any lawful basis. In so far as none of the above-mentioned conditions had been met in the first applicant's case, the court reasoned that the eviction of 1 November 2004 had been unlawful. The District Court also criticised the respondent Ministry for taking the cottage without any legal decision, on the sole basis of the Minister's oral instruction. It pointed out that, pursuant to Article 51 §§ 1 and 2 of the General Administrative Code, an administrative act such as a ministerial order could be issued orally only in urgent situations and should be followed by a written copy within three days; this had not occurred in the present case. In the light of the above considerations, the court concluded that possession of the cottage should be restored to the first applicant on the basis of Article 160 of the Civil Code. 27. However, the Krtsanisi-Mtatsminda District Court refused to order immediate enforcement of its judgment. It stated that the refusal was justified in the light of the respondent Ministry's allegation that, after the eviction, it had stationed a unit of special forces at the cottage, which needed time to withdraw. 28. On 6 January 2005 supporters of the first applicant visited the cottage. Having found it empty, they learned from the two policemen guarding the premises that, after the eviction of the Saghinadze family, the rooms had been sealed and no unit had ever been stationed there. A record of those findings was drawn up at the scene. 29. On 27 January 2005 the respondent Ministry lodged an appeal against the judgment of 30 December 2004. Acknowledging that it had authorised the first applicant to use the cottage, the Ministry specified that his possession of the property had been of a temporary nature only. Consequently, the termination of the first applicant's possession rights, and the attendant eviction of his family, could not be said to have been unlawful. The Ministry also claimed that the cottage and the adjacent land represented a strategic object for the State. 30. On 13 February 2005 the first applicant also lodged an appeal against the judgment of 30 December 2004 in so far as the refusal to order its immediate enforcement was concerned. Relying on the relevant record (see paragraph 28 above), he complained that the respondent Ministry had misled the lower court about the stationing of a police unit. As another argument for urgent recovery of possession of the cottage, he referred to the difficult social and housing situation of some of his family members. Thus, amongst other arguments, he claimed that the fifth applicant was about to return from Ukraine with her new-born child and that she had nowhere to live in Georgia other than in the cottage. 31. On 19 December 2005 the Tbilisi Regional Court held a hearing on the merits. During that hearing the respondent Ministry acknowledged again that, apart from “Mr I.O.'s oral order”, no legal basis for the taking of the cottage had existed. The Ministry also stated that it had offered the first applicant on more than one occasion the opportunity to recover his personal and family belongings from the cottage, but that the latter had refused to cooperate. 32. The Regional Court also examined written and oral submissions from two witnesses, Mr D.M. and Mr J.M., who had been Deputy Ministers of the Interior when the first applicant was settled in the cottage. Those witnesses stated that the first applicant had written to the then Minister of the Interior in January 1993, requesting employment and accommodation. The Minister had approved that request by appending his signature, and, consequently, the first applicant had been offered a new post within the Ministry and accommodated in the cottage. The decision had been prompted by the fact that the first applicant, a qualified agent praised for his investigative skills, had been left homeless by the hostilities in Abkhazia. 33. The Tbilisi Regional Court delivered its judgment on the same day, allowing the respondent Ministry's appeal in full. The court acknowledged the fact that the first applicant had used the cottage and the adjacent premises between January 1994 and 1 November 2004. Referring to the order of 29 October 1993 of the Minister of the Interior (paragraph 9 above), the court further found it established that the cottage had been the Ministry's property at the material time. It was also acknowledged that the first applicant had never obtained a registered title to the real property in question. 34. The appellate court then addressed the issue of whether or not the first applicant could be said to have possessed the cottage in good faith. It stated that, under Article 159 of the Civil Code, the main consideration in that regard was whether he could be said to have acquired possession legitimately. Legitimacy would be excluded if the first applicant could have realised that he had taken possession unlawfully. Conversely, if his possession had turned out to be unlawful but the applicant could not have known it, he should be regarded as having possessed the property in good faith. 35. Reasoning in the light of the above-mentioned principles the Regional Court stated that, in so far as the first applicant had failed to submit a legal document which would show that the cottage had been transferred to him on a lawful basis, his entry into possession could not be said to have been legitimate. The Ministry's letter of 20 April 2000 was not accepted as valid proof in that regard, owing to the inconsistency of the information it contained. Thus, the appellate court noted that, whilst the letter stated that the first applicant had obtained the cottage in 1994 on the basis of the IDPs Act, the latter statute had in reality entered into force much later, on 28 June 1996. In addition, a simple letter could not give rise, in the opinion of the court, to the creation of a legal relationship. The Regional Court further reasoned that the first applicant could not rely on the IDPs Act, in so far as it had been adopted subsequent to his settlement in the cottage. In any case, section 5 § 4 of that Act, prohibiting the eviction of IDPs without a court order, was not applicable to his situation, as it had been added to the Act on 6 April 2005, that is, after the taking of the cottage on 1 November 2004. 36. In the light of the above considerations, the Tbilisi Regional Court concluded that the first applicant should have realised that his possession of the cottage was unlawful. That being so, the respondent Ministry, as the rightful owner of the cottage, had been entitled to claim its property back from the first applicant's dishonest possession, under Articles 160 and 172 § 1 of the Civil Code. 37. One of the three appellate judges, disagreeing with the majority, delivered a separate opinion. She was of the view that the respondent Ministry's letter of 20 April 2000 clearly showed that the first applicant had obtained the cottage on the basis of a ministerial ordinance. Consequently, he should not be regarded as a dishonest possessor. The judge further noted that the Ministry had evicted the applicants without a court decision. Consequently, whilst the Ministry had a superior title to the cottage, the first applicant was nevertheless entitled to recover possession under Article 160 in fine of the Civil Code. 38. On 27 January 2006 the first applicant filed an appeal on points of law. Referring to the respondent Ministry's letter of 20 April 2000, the statements of the ex-Deputy Ministers of the Interior and other evidence in the case file, the first applicant challenged the appellate court's conclusion as to his possession in bad faith. He emphasised that he had not occupied the cottage vexatiously but had been offered it by the respondent Ministry. The legitimacy of his possession further followed from the ministerial order of 29 October 1993, to which the appellate court had referred in its judgment. The first applicant noted that the order clearly stated that, at the time he had been resettled in the cottage, the Ministry had been authorised to use the cottage for the very purpose of housing displaced staff members. 39. The first applicant further argued that the main reason why the cottage had been transferred to him without extensive formalities was the humanitarian crisis prevailing in Georgia in 1993-1994, when around 300,000 homeless IDPs from Abkhazia needed to be urgently housed by central Government. Referring to the statistical data, according to which around 150,000 IDPs had been provided with accommodation by the State in the aftermath of the Abkhazian conflict, the first applicant argued that it was unrealistic to expect that all property-transfer formalities should have been meticulously followed in every such case. The first applicant referred to numerous domestic legal acts – ordinances of the Head of State dated 30 December 1992, 2 October 1993 and 29 March 1995, resolutions dated 31 December 1994 and 17 April 1996 of, respectively, the Cabinet of Ministers and Parliament, the IDPs Act of 28 June 1996, a Presidential Decree dated 5 January 2002, and so on – by which the Georgian State had assumed the obligation to house IDPs. In view of that responsibility on the part of the State, his settlement in and consequent possession of the cottage had been fully legitimate. 40. The first applicant further complained that, before depriving him and his family of their home, the Ministry should have proved its case in a court. However, the eviction had been carried out not only without a court decision but also without any written administrative act. In this connection, the first applicant alleged that the appellate court had arbitrarily disregarded section 7 § 3 of the IDPs Act which had been in force at the time of their eviction and explicitly prohibited the eviction of IDPs who were already settled, without due process and proper compensation. In support of his arguments, the first applicant referred to the Supreme Court's decision of 28 November 2001 in the similar case of Khintibidze and Others (see paragraph 69 below). Finally, referring to his difficult social and financial situation, the first applicant requested either full exemption from the court fee or deferral of its payment until after the examination of the case. 41. On 24 February 2006 the Supreme Court criticised the first applicant for his failure to pay the court fee, ordering him to do so within fifteen days on pain of having his appeal rejected without examination. On 17 March 2006 the first applicant paid a fee of 1,200 Georgian laris (510 euros (EUR)), corresponding, in line with the relevant statutory requirement, to 4% of the value of the cottage. He also submitted an agreement showing that the money had been lent to him by a private individual for two years. 42. On 27 September 2006, the Supreme Court dismissed the first applicant's appeal on points of law and fully upheld the appellate judgment of 19 December 2005. 43. Endorsing the appellate court's reasoning, the Supreme Court reiterated that the first applicant could recover possession of the cottage from the owner, the respondent Ministry, under Articles 160 and 162 of the Civil Code only if his initial possession had been legitimate. Legitimacy meant that possession had to have been exercised on a lawful basis. However, since the first applicant had failed to produce a legal decision of the relevant authority authorising his occupation of the cottage in 1994, his ensuing possession could not be considered to have been exercised in good faith. As to the respondent Ministry's letter of 20 April 2000, the Supreme Court refused to accept it as a valid document, reasoning that, by virtue of Decree no. 487 issued by the President of Georgia on 8 September 1997, only the Ministry of State Property Management had been competent to enter into such transactions with private individuals. The Supreme Court further stated that only the Ministry of Resettlement of Refugees and IDPs (“the Ministry of IDPs”) was competent to accommodate IDPs under section 5 § 2 of the IDPs Act. Given that the cottage had not been offered to the first applicant by the latter Ministry, the Supreme Court reasoned that the housing guarantee contained in the IDPs Act did not apply to his situation. In the light of the above considerations, the Supreme Court concluded that the Ministry, as the rightful owner of the cottage, had been entitled to retrieve its property from the first applicant's dishonest possession under Articles 160 and 172 § 1 of the Civil Code. 44. One of the judges of the Supreme Court delivered a dissenting opinion. The judge in question stated that the facts of the case proved that the first applicant had at least possessed the cottage in good faith. Even assuming that he had not been a legitimate possessor, the respondent Ministry was not entitled to retrieve the cottage without due process and by force, in breach of the requirements of Article 115 of the Civil Code. The dissenting judge therefore concluded that the first applicant was entitled to reclaim possession of the cottage under Article 160 in fine of the Civil Code. 45. The criminal remedy was pursued by the first applicant concurrently with the civil one described above. 46. On 22 November 2004 the first applicant requested the Prosecutor General's Office (“the PGO”) to open a criminal case concerning the arbitrary and violent eviction of 1 November 2004 and the obstruction of his investigation into the Kaladze case by high-ranking officials of the Ministry of the Interior. 47. On 23 December 2004 the PGO replied in writing that criminal proceedings could not be initiated “owing to the absence of any relevant materials.” 48. On 8 January 2005 the first applicant lodged a court complaint against the PGO's reply of 23 December 2004. 49. In a letter dated 28 January 2005 the Ministry of the Interior, in reply to a query from the Public Defender's Office, provided its version of the incident of 1 November 2004. Acknowledging that the cottage had been transferred to the first applicant's possession in 1994 by a decision of the then Minister of the Interior, the letter stated that the possession in question had “recently become unlawful”. Consequently, the Ministry had decided to reclaim possession of its cottage, but the first applicant had refused to cooperate. Eventually, after several unsuccessful attempts, the Ministry, acting through the police, had persuaded the second applicant and the Saghinadze family's relatives to vacate the cottage, in the absence of the first applicant. The letter emphasised that the eviction had not been forcible but, on the contrary, had been voluntary and peaceful, and that the second applicant had been able to take her personal belongings with her on eviction. As to the remaining movables in the cottage, including poultry and small livestock, the Ministry's letter stated that the applicants had been invited to retrieve them on more than one occasion and could still do so. The letter noted that, subsequent to the eviction of 1 November 2004, the cottage had been sealed in order to prevent its being looted. It was also noted that the actual value of the cottage was GEL 45,541.69 (EUR 19,630). 50. In a decision of 28 February 2005 the Krtsanisi-Mtatsminda District Court rejected the first applicant's complaint against the PGO's reply of 23 December 2004. Stating that an informal letter from the prosecution authority could not be subjected to judicial review, the court advised the first applicant to challenge the letter before a senior prosecutor. 51. On 9 March 2005 the first applicant lodged with the Supreme Court an interlocutory appeal against the decision of 28 February 2005 and simultaneously lodged a hierarchical complaint within the PGO. 52. On 7 April 2005 the Supreme Court dismissed the first applicant's interlocutory appeal of 9 March 2005 for the same reasons as those given by the Krtsanisi-Mtatsminda District Court on 28 February 2005. As to the hierarchical complaint, the PGO replied on 21 April 2005, paraphrasing the impugned letter of 23 December 2004 as follows: “Your request to initiate criminal proceedings for the eviction ... cannot be satisfied owing to the absence of any relevant materials”. 53. On 18 April 2006 the Public Defender recommended that the PGO open a criminal case for abuse of power by high-ranking officials of the Ministry of the Interior. The Public Defender noted that if there had been lawful grounds for dispossessing the first applicant, the Ministry should first have brought civil proceedings to that end, as required by the relevant domestic law. 54. On 20 February 2006 the police conducted a search of the cottage, as an urgent investigative measure and in the absence of the first applicant or his lawyers. Local municipality officials attended the search as witnesses. On completion of the search the police drew up a report recording the discovery of firearms and of copies of documents concerning various criminal cases, including the Kaladze case. On the same day a criminal case was opened against the first applicant for unlawful storage of a gun and confidential official documents. He was not however arrested at that time. 55. On 21 February 2006 the Mtskheta District Court, having examined the lawfulness of the urgent search, decided to legalise its results ex post facto. 56. On 20 March 2006 the PGO, in view of the information obtained in the course of its investigation into the Kaladze case, opened a criminal case for abuse of power allegedly committed by the first applicant's investigative unit in 2004 (see paragraphs 14 and 15 above). In particular, several members of the unit, including the first applicant, were suspected of having wilfully misled the investigation into that case by extorting, under duress, false statements from a witness, Mr M., and otherwise fabricating evidence. 57. On 30 May 2006 the two above-mentioned criminal cases were joined, and on 2 June 2006 the first applicant was charged with unlawful possession of a gun, misappropriation of confidential official documents, illtreatment of a person, fabrication of evidence and other abuses of power committed in public office. The charges were based, inter alia, on the legalised results of the search of 20 February 2006 and the incriminating statements of the victim, Mr M., as well as other documents and information including statements from several relevant witnesses, collected by the PGO in the course of its own investigation into the Kaladze case (see the preceding paragraph). 58. On 4 June 2006 the first applicant was arrested and, the following day, the prosecutor requested the Tbilisi City Court to remand him in custody pending trial. The reasons given for the request were the risk that the first applicant might abscond in view of the gravity of the charges and that he might impede the investigation, given that he could use his authority as a former high-ranking law-enforcement officer to influence the parties to the proceedings. 59. On 6 June 2006 the Tbilisi City Court examined the prosecutor's request at an oral hearing. The first applicant was assisted by two lawyers during that hearing. Refusing the first applicant's application for bail, the court ordered his detention for two months. Having reviewed the criminal case materials and heard the parties' oral pleadings, the court confirmed the existence of a reasonable suspicion that the offences had been committed. The imposition of pre-trial detention was found to be further justified, under Article 159 § 3 of the Code of Criminal Procedure, by the assumption that the accused could abscond in view of the severity of a possible sentence. Lastly, without giving detailed arguments in that regard, the court shared the prosecutor's fear that, if released, the first applicant could unduly influence the parties to the proceedings. 60. On 7 June 2006 the first applicant appealed against the detention order of 6 June 2006, complaining, inter alia, that it had been based only on the gravity of the charges, and that the lower court had disregarded such elements as his age, his state of health, the difficult social situation of his family, his reputation and social esteem. Calling into question the credibility of the incriminating evidence against him, the first applicant also stated that there could be no reasonable suspicion of his having committed the offences in question. 61. On 14 June 2006, without holding an oral hearing, the Tbilisi Court of Appeal dismissed the first applicant's appeal. The court did not solicit written comments from the prosecutor, and its decision was based on the examination of the first applicant's arguments only in the light of the case materials. Noting that it was premature to assess the wellfoundedness of the charges, the appellate court, after reviewing the available evidence, confirmed the existence of a reasonable suspicion against the first applicant. It upheld the detention order, reasoning as follows: “When selecting a measure of pre-trial restraint, account should be taken of the nature of the charges (the repeated abuses of power committed in public office by the use or threat of force, actions which are particularly dangerous to public safety) as well as their gravity (the charges carry long-term prison sentences). Moreover, the investigation has still to establish the origins of the seized firearms, whether they could have been used in other crimes ... In view of the above, the prosecutor's fear that the accused might abscond and/or unduly influence the parties to the proceedings is justified. Despite the fact that the accused is more than 65 years old, ... a more lenient measure of restraint would not secure the aims mentioned in Article 151 § 1 of the Code of Criminal Procedure.” The appellate court further stated that the first applicant had failed to submit recent medical documents in support of his health complaints. Overall, the appellate court answered all the main arguments submitted by the first applicant. 62. On 29 June 2006 the investigation was terminated and the prosecutor sent the bill of indictment, accompanied by all relevant documentation about the first applicant's detention as well as other case materials, to the Tbilisi City Court for trial. On the same day the trial judge, without holding an oral hearing, reviewed the first applicant's continued detention. He issued a standard decision on a page-long template with pre-printed reasoning. The judge added in the blank spaces the name of the accused, the definition of the offence and the measure of pre-trial restraint. The preprinted reasoning read as follows: “In selecting the measure of pre-trial restraint, both the formal (procedural) grounds and the factual grounds (sufficient evidence for imposing a restraint measure) have been taken into account. The defendant is charged with a serious offence and the imposition of any other measure of restraint would not secure the aims mentioned in Article 151 of the Code of Criminal Procedure. Having examined the criminal case materials I consider, in the light of the arguments which were relied on when the restraint measure was first imposed, that there exist no grounds for cancelling or amending that measure at this stage of the proceedings either.” 63. On 22 February 2007 the first applicant was convicted at first instance of the offences with which he had been charged and was sentenced to seven years in prison. The case file shows that the conviction was upheld at last instance by the Supreme Court on 19 December 2007 and that the first applicant is currently serving his prison sentence. 64. The relevant provisions of the Civil Code bearing on the notions of possession and ownership read as follows: Article 115 – Prohibition of abuse of rights “Civil rights must be exercised lawfully. It is prohibited to exercise a right with the intention to harm somebody.” Article 155 §§ 1 and 3 – Concept and types [of possession] “1. Possession arises from the intentional acquisition of actual dominion over an asset. ... 3. A person who possesses an asset on the basis of a legal relationship which either confers entitlement for a definite period or confers an obligation shall be considered as the direct possessor, whilst the person who conferred the above-mentioned right or obligation shall be considered as the indirect possessor.” Article 159 – Possessor in good faith “A possessor shall be considered to be in good faith if he or she possesses an asset on a legitimate basis or if such an assumption could be made by diligently observing his or her transactions.” Article 160 – Claim for recovery of possession by a possessor in good faith “A possessor in good faith who has been dispossessed may claim recovery of the disputed asset from the new holder within three years. This rule shall not apply if the new holder has a superior title to the asset. A claim for recovery of possession may also be directed against a holder with superior title if the latter acquired the disputed asset under duress or by fraud.” Articles 162, 163 and 164 of the Civil Code differentiated between the following types of possession, affording them diminishing degrees of protection: (i) clearly legitimate possession (a notion which, as shown by Article 159, already contained the element of good faith), (ii) possession in good faith but without a legitimate title and (iii) possession in bad faith. Article 168 – Termination of possession on a reasoned request by the owner “Possession is terminated on the submission by the owner of a reasoned claim against the possessor.” Article 170 § 2 – Concept of ownership “2. The exercise of ownership in a manner which causes harm to others, unless justified by the owner's overriding interests or other justifiable needs, shall be considered an abuse of a right.” Article 172 §§ 1 and 2 “1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it. 2. In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists the owner may bring a court action against the trespasser.” Articles 992-1008 contained the rules on liability for civil wrongs, socalled tort law. In particular, whilst the general provision, Article 992, stated that a civil wrong gave rise to a claim for compensation, Article 1005 specified that State agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials which amounted to an abuse of power. 65. Under Article 51 §§ 2 and 3 an administrative act could be issued orally in urgent situations only, when any delay could harm the legitimate interests of the State, the public or an individual. If an oral administrative act limited an individual's rights or legitimate interests it had to be re-issued in writing within three days. 66. The relevant provisions of the Code concerning pre-trial detention are summarised in paragraphs 35-36 and 29-41 of the Court's judgment in the case of Giorgi Nikolaishvili v. Georgia (no. 37048/04, ECHR 2009... (extracts)). 67. From its adoption on 28 June 1996, sections 5 § 2 and 8 of the IDPs Act stated that the Ministry of Resettlement of Refugees and IDPs, together with other agencies of central Government and the local authorities, was responsible for the practical implementation of the rights conferred upon IDPs by the Act. Section 9 further specified that the State stood as the guarantor of the protection of IDPs' rights. On 18 December 2001 section 7 was amended as follows: Section 7 §§ 2 and 3 “2. The State shall provide internally displaced persons with temporary accommodation. 3. Housing disputes shall be settled in court. Moreover, pending the restoration of the State's jurisdiction over the whole of the territory of Georgia, internally displaced persons shall not be evicted from dwellings in which they have been settled collectively, except where: (a) an agreement has been concluded with the internally displaced persons concerned; (b) the internally displaced persons have been offered another appropriate dwelling which will not represent a worsening of their existing housing situation; (c) an act of nature has occurred and appropriate compensation is provided for...; (d) the contested dwelling has been occupied by the internally displaced persons vexatiously.” Section 7 remained in force, in the version cited above, until 6 April 2005. On that date an amendment to the IDPs Act removed the abovementioned provisions from section 7 and incorporated them, with some – mostly textual – corrections, into section 5 § 4. 68. Under sections 4, 20 and 90 of the Enforcement Act, a person's eviction from his or her home could be carried out only on the basis of a final and binding court decision and the corresponding enforcement order, and was a prerogative of the enforcement authority, which formed part of the Ministry of Justice. 69. As it emerges from the circumstances of that case, several homeless IDPs from Abkhazia occupied vacant dwellings in Tbilisi in 1993. The dwellings were State property at that time, being owned in particular by the State publishing house. The IDPs had settled there with the consent of the management of the publishing house but without any formal authorisation or supervision from either the Ministry of IDPs or any other central or local authority. Subsequently, some staff members of the publishing house claimed ownership of the dwellings in question and the management brought a court action in 2000 requesting the IDPs' eviction. The Supreme Court finally resolved the dispute in the IDPs' favour, reasoning as follows: “[t]he State has undertaken to accommodate IDPs. Hence, by a resolution of 31 December 1994 of the Cabinet of Ministers ... as well as by the Presidential Decree of 25 September 2001, the central and local authorities were instructed to ensure the protection of IDPs by settling them in vacant buildings ... pending final resolution of the [Abkhazian] conflict. ... vexatiously, ... the dwellings were vacant at that time, and the management did not contest the IDPs' right to possess them until 2000. The condition subject to which the State has undertaken to provide IDPs with accommodation – the resolution of the conflict – has not been fulfilled yet. It is objectively impossible for [the IDPs in question] to return to their homes [in Abkhazia]. The case file shows that the disputed dwellings ... were and still are State property. Consequently, the State may not request [the IDPs in question] to vacate these dwellings without offering them adequate alternative accommodation. On the basis of the above-mentioned obligation of the State, the [IDPs'] possession of the dwellings is legitimate within the meaning of Article 155 § 3 of the Civil Code. [Consequently], their eviction, [which would amount to] the termination of their possession rights, is prohibited under Article 162 § 1 of the same Code.” 70. Principles 18, 21 and 28 read as follows: Principle 18 § 1 “1. All internally displaced persons have the right to an adequate standard of living.” Principle 21 §§ 1 and 2 “1. No one shall be arbitrarily deprived of property and possessions. 2. The property and possessions of internally displaced persons shall in all circumstances be protected ...” Principle 28 § 1 “1. Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.” | 1 |
train | 001-59222 | ENG | ITA | CHAMBER | 2,001 | CASE OF LUCÀ v. ITALY | 1 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Elisabeth Palm;Gaukur Jörundsson | 8. The applicant, who was born in 1955, is currently detained in Cosenza Prison. 9. On 25 October 1992 N. and C. were arrested by carabinieri from Roccella Jonica (Reggio di Calabria) and found to be in possession of cocaine. 10. On 25 and 26 October 1992 N. was questioned, initially by the carabinieri, and subsequently by the Locri public prosecutor (Reggio di Calabria). He said that he had obtained part of the drugs from C. for his own use; the remainder belonged solely to C. He added that on the day of their arrest, C. had accompanied him to certain people’s homes to try to buy drugs. After the evening meal they had gone to the applicant’s home. The applicant had said that he was prepared to supply them with five hundred grams of cocaine to be delivered a few days later, as he was not willing to accept deferred payment and could not go out after 8 p.m. to get the drugs. 11. N. was questioned by the carabinieri as someone who was helping them with their inquiries (“persona che puó riferire circostanze utili ai fini delle indagini”), not as an accused. For that reason, he was not assisted by a lawyer. However, the Locri public prosecutor subsequently decided that N. should be regarded as a “suspect” (“indagato”), and therefore questioned him in that capacity. 12. By an order of 12 February 1993 the Locri investigating judge committed the applicant, C. and two other suspects, Mr A. and Mr T., for trial before Locri Criminal Court for drug trafficking. A. was also accused of unlawful possession of an offensive weapon. Separate proceedings were instituted against N. for possession of drugs. 13. At the hearing on 17 July 1993, N. was called to give evidence as a person accused in connected proceedings (“imputato in procedimento connesso”). However, he chose to remain silent as he was entitled to do by virtue of Article 210 of the Code of Criminal Procedure (hereafter, “the CCP”). 14. The lawyers acting for the accused argued that Article 513 of the CCP was unconstitutional since it was incompatible with Articles 3 and 24 of the Italian Constitution – which guaranteed the equality of citizens before the law and the right to defend oneself at all stages of the proceedings – and Article 6 of the Convention. They observed in particular that, as construed by the Constitutional Court, Article 513 of the CCP laid down that if a person accused in connected proceedings exercised his right to remain silent, the court could read and use any statements made by him to the public prosecutor or to the investigating judge during the investigation. As a result, the accused was deprived of any opportunity of examining that person or of having him examined. 15. On the same day the Criminal Court dismissed as manifestly unfounded the objection that the provision was unconstitutional and ordered that the record of the statements made by N. to the public prosecutor should be read out. It noted that the statutory right to remain silent was intended to protect an accused, who could not be required to make statements that could be used in evidence against him. Further, the rule that statements made during preliminary investigations could be read and used had been established by the Constitutional Court itself in its judgment no. 254 of 3 June 1992. 16. In a judgment of 7 March 1994, which was lodged with the registry on 1 June 1994, Locri Criminal Court sentenced the applicant to eight years and four months’ imprisonment and a fine of 54,000,000 Italian lire (approximately 183,000 French francs). C., A. and T. were also given prison sentences ranging between six and nine years. 17. The Criminal Court noted at the outset that the main evidence against the accused was the statements which N. had made to the public prosecutor, since the statements made to the carabinieri were inadmissible under Article 513 of the CCP. It also observed that having regard to N.’s personality and the spontaneity and precision with which his statements had been made, his depositions should be regarded as credible. The Criminal Court noted that N. had recognised a photograph of the applicant and had given an accurate description of his home and the route followed to get there. In addition, the applicant already had previous convictions under the drug-trafficking legislation and was under judicial supervision (sorveglianza speciale). He was prohibited from leaving his home after dusk, and that was a possible explanation for his unwillingness to go out after 8 p.m. Furthermore, the amount of cocaine found in C.’s possession showed that C. had contacts with drug dealers and meant that N’s account of his visit to the applicant’s home was probably true. It also confirmed that the negotiations that had started were genuine. 18. On 13 July 1994 the applicant appealed to Reggio di Calabria Court of Appeal. He contested, inter alia, the reliability of N.’s statements and complained that they had been made in breach of the adversarial principle and in the absence of a judge or of the defendants’ lawyers. 19. In a judgment of 7 November 1994, Reggio di Calabria Court of Appeal followed in substance the arguments set out in the order of 17 July 1993. It upheld the decision of the court below concerning the applicant, while reducing A.’s sentence. 20. On 18 February 1995 the applicant and his co-accused appealed to the Court of Cassation. T. relied, inter alia, on Article 6 § 3 (d) of the Convention contending that N’s statements should have been declared inadmissible in evidence. 21. In a judgment of 19 October 1995, which was lodged with the registry on 3 November 1995, the Court of Cassation dismissed the appeals of the applicant and his co-accused, holding that the grounds given by the Court of Appeal for its decision on all the disputed issues relating to the drug-trafficking count had been reasonable and correct. It overruled the impugned decision with regard to A.’s conviction for being unlawfully in possession of an offensive weapon and remitted the case to Catanzaro Court of Appeal. 22. The Court of Cassation observed among other things that Article 6 § 3 (d) of the Convention concerned “ the examination of witnesses, who ... are required to tell the truth, not the examination of the accused, who are entitled to defend themselves by remaining silent or even by lying”. Further, since all States that were party to the Convention had an obligation by relevant domestic legislation to regulate the examination of witnesses, it was “obvious that ... when a witness refused to give evidence, statements made to the public prosecutor ... had to be produced for the court’s file”. 23. The circumstances in which statements made by an accused or co-accused before trial may be admitted in evidence are set out in Article 513 of the CCP. 24. As initially worded, the first paragraph Article 513 of the CCP provided that statements made by an accused before trial could by admitted in evidence by the trial court if the accused failed to appear or refused to repeat the statement. 25. On the other hand, the second paragraph of Article 513 concerned statements made before trial by persons accused in connected proceedings. Unlike the position under the first paragraph, the second paragraph did not permit the trial court to admit such statements in evidence if the accused exercised his right to remain silent. 26. In its judgment no. 254 of 1992, the Constitutional Court declared the second paragraph of Article 513 unconstitutional on the ground that, as the statements referred to therein could not be admitted in evidence at trial if the accused in connected proceedings remained silent, there was an unjustified difference in treatment between those statements and statements of the type referred to in the first paragraph. The Constitutional Court thereby enabled trial courts to admit statements made by a co-accused in connected proceedings, irrespective of whether the person against whom they were being used had been given the opportunity of examining the maker of the statement or of having him examined at any stage in the proceedings. Furthermore, the Constitutional Court made no reference to the procedural safeguards embodied in Article 6 of the Convention or to the criteria established by the Court’s case-law. 27. By Law no. 267 of 7 August 1997 Parliament amended Article 513 with a view to making it consistent with the adversarial principle. In substance, statements made by a co-accused or by an accused in connected proceedings could no longer be used against another person without his consent if the maker of the statement exercised his right to remain silent. 28. However, in its judgment no. 361 of 2 November 1998 the Constitutional Court again declared Article 513 unconstitutional, this time in its entirety. It held that precluding the trial court from admitting such statements in evidence if the maker remained silent entailed a risk that the court would be deprived of evidence that could assist it in reaching its decision, a risk that was dependent solely on the decision of the maker of the statements. 29. Following that decision Parliament adopted the Constitutional Amendment Act no. 2 of 23 November 1999 whereby the principle of a fair trial was embodied in the Constitution itself. Article 111 of the Constitution, as now worded, reads: “1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with rules of procedure. 2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law. 3. In criminal proceedings, the law shall guarantee that the person accused of an offence shall be 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 shall 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.” 30. In Law no. 35 of 25 February 2000, the Italian parliament clarified how the amended Article 111 of the Constitution would apply to trials under way. In particular, the former rules continue to apply in certain circumstances. Further, a consolidating bill implementing that constitutional amendment was adopted by Parliament on 14 February 2001. Among other things, this implementing legislation amends Article 513 CCP by providing that if the maker of statements made before the trial exercises his right not to answer questions, his statements will, as a general rule, be admissible in evidence if the parties agree. However, the former rules will continue to apply in at least some circumstances to trials that are under way. | 1 |
train | 001-98810 | ENG | DEU | ADMISSIBILITY | 2,010 | EFFECTEN SPIEGEL AG v. GERMANY | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Effecten Spiegel AG, is a corporation (Aktiengesellschaft) registered in Germany. It was represented before the Court by Mr D. Herrmann, a lawyer practising in Karlsruhe. company, may be summarised as follows. The applicant company is the publisher of Effecten-Spiegel, a weekly journal aimed at the investor community. By letter of 5 November 2001 the editor received a press statement by Mr D., a shareholder and former staff member of Audi, a subsidiary of one of the leading German automobile groups, the Volkswagen group (VW). In the statement Mr D. raised several allegations against Mr P., a well-known business leader and manager, chairman of the board (Vorstandsvorsitzender) of Audi until 1992 and chairman of the board of VW from 1993 to 2002. Both companies were listed on the stock exchange and the Federal State of Lower Saxony (Land Niedersachsen) held approximately one-fifth of the shares. Prior to publication, by letter of 6 November 2001 the applicant company transmitted Mr D.'s press statement to the board of Audi and asked for a written comment (schriftliche Stellungnahme). The next day the applicant company informed the board of Audi that for editorial reasons any comments should be sent by 12 November 2001. In its issue of 15 November 2001 Effecten-Spiegel published an article on the basis of Mr D.'s press statement. The article gave an account of parts of Mr D.'s press statement and his allegations against Mr P. In the last paragraph of the article the author commented on these statements, holding that “the whole story stinks to high heaven” (“Das Ganze stinkt zum Himmel”): “The whole story stinks to high heaven! Particularly if it is borne in mind that the Federal State of Lower Saxony indirectly owns 20% of Audi and that therefore particular sensitivity could be expected. Effecten-Spiegel has in the past denounced the fact that big business was ransacking the national economy. If big business will not even invest in the East in a case such as this one, when will it? And the reproach of betraying one's own country in this context seems understandable. But above all, I wonder: VW is trying to squeeze out private dealers and to set up its own branches everywhere, and it cannot equip the east European countries with its own branches, but acts by proxy of a company owned by P., Porsche Holding?!!! That is totally implausible!” The article revealed the source of its contents and Mr D. was presented as an insider source as he had been involved, in 1971, as the main representative of one sector of the board of Audi, in the conclusion of contracts with VW. On 10 November 2002 the Hamburg Regional Court, upon an application by Mr P. for an injunction (Unterlassungsklage), ordered the applicant company to refrain from disseminating certain parts of the article, namely from: “1. disseminating: 'It is known that P. holds shares in Porsche and in 1992, according to D., he apparently grabbed for free (offenbar kostenlos unter den Nagel gerissen) the exclusive distribution rights through Porsche Holding for Audi, Seat, Skoda and VW in Hungary, Slovakia and Romania.' 2. giving the impression that in the context of his activities for VW AG the plaintiff [Mr P.] was involved in decision-making concerning royalty payments in favour of Porsche Holding or other companies in which the plaintiff holds shares, by reporting: 'Moreover [in conjunction with D.'s allegations against the plaintiff], D. addresses the question of royalty payments by Audi AG to Porsche AG or other companies in which P. holds shares.' 3. disseminating that the background to the decision against Magdeburg (namely in favour of building an engine plant in Györ in Hungary) was, in D.'s opinion, that 'Mr P. would like to have a factory as the exclusive distributor, exactly as for the allterrain vehicles in Slovakia'.” The Regional Court held that the dissemination of the above statements violated Mr P.'s personality rights. The first statement (under 1.) consisted of a factual statement because to say that somebody had “grabbed” something implied that this person had acted with the aim of getting something. The statement was also disparaging as it implied that Mr P. had abused his leading position to his own advantage. Hence, the Regional Court found that the burden of proof was with the applicant company, which had not produced any evidence to that effect and had not even contested Mr P.'s submission that he had not been involved in the decision about the exclusive distribution rights. Against this background the statement had to be regarded as untrue and thus was not protected by freedom of speech. Moreover, the court held that there had not been a legitimate interest in the publication of the statement. It was true that even the publication of untrue factual statements could be justified. However, this was only the case if the person disseminating the information had sufficiently tried to verify the facts prior to publication and if any remaining doubts as to the truth of the facts had been made sufficiently clear. In the case at hand, the applicant company had not even come close to having exhausted all possibilities of establishing the facts, as it had not tried to obtain a statement either from Mr P. himself or from the board of VW, that is, from those persons against whom the allegations had been raised. Furthermore, the article was a long way from balanced coverage that also indicated doubts as to the truth of the statements made by Mr D. As to the second statement (under 2.), the Regional Court held that it necessarily gave the impression claimed. This was the case in particular because the statement that Mr D. also “addresses the question of royalty payments” was made in the direct context of the statement that Mr D. had raised serious allegations against Mr P. Any other understanding would render the statement meaningless and empty. The statement, hence, consisted of a factual statement (through the creation of an impression) and had to be regarded as untrue because the applicant company had not produced any evidence. For the same reasons as for the first statement, there had also not been a legitimate interest in the publication of the expression. As to the third statement (under 3.), the Regional Court likewise held that it consisted of a factual statement as it alleged a certain motivation on the part of Mr P., in other words an “internal fact”. Such statements had to be regarded at least as statements of fact if they were connected with certain external events by which these internal circumstances allegedly became perceptible to others. The court found that this was the case as the decision to build an engine plant in Hungary was traced back to an alleged internal motivation on the part of Mr P. as being the real reason for that decision. The existence of this alleged causal connection between the motivation of Mr P. and the decision in question was susceptible to proof – be it by circumstantial evidence or by interviewing Mr P. The statement, moreover, had not been changed into a value judgment by formally adding “in Mr D.'s opinion”. The decisive factor was not the formal terms in which a statement was couched but the way it was understood by the average reader. Otherwise the publisher of a factual statement could easily escape the rules governing publication of statements of fact by adding “according to” or “in the opinion of”. From the perspective of an average reader, the basic purpose of the statement at stake was not to convey information about the personality and the opinions of Mr D. – as might be the case, for example, in a portrait of Mr D. – but about events within the VW group. Finally, for the same reasons as for the first and the second statement, there had neither been a legitimate interest in the publication of this statement. On 18 February 2003 the Hamburg Court of Appeal dismissed an appeal by the applicant company against the judgment and refused leave to appeal on points of law. It confirmed the reasoning adopted by the Regional Court. As to the appellate submissions, the Court of Appeal added that, concerning the first statement, the expression “grabbed for free” could only be understood in the sense that Mr P. had actively influenced the decision about the awarding of the exclusive distribution rights. It pointed out that, contrary to the applicant company's contention, the simple fact of Mr P. being the chairman of Audi was far from being sufficient to influence that decision in the manner claimed. It also expressly confirmed the Regional Court's finding that the applicant company should have interviewed Mr P. or at least the board of VW. Moreover, the article was not even close to mentioning sufficient facts supporting a reasonable suspicion. With regard to the second statement, the Court of Appeal confirmed that it necessarily suggested the impression claimed and re-emphasised that the statement directly followed the information that Mr D. had raised “serious allegations” against Mr P. and that the article ended with the conclusion that “the whole story stinks to high heaven”. Such wording was not of a kind to leave it up to readers to draw their own conclusions. As to the third statement and the argument – also mentioned in the article – that prior to the decision in favour of Györ, Mr P. had given incorrect information about the difference in salaries between Hungary and Germany, the Court of Appeal held that it did not follow from this that the real reason for the decision was the motivation of Mr P. as alleged in the article. On 23 September 2003 the Federal Court of Justice rejected a complaint by the applicant company against the refusal of leave to appeal on points of law (Nichtzulassungsbeschwerde), without giving further reasons. On 21 March 2007 the Federal Constitutional Court refused to accept for adjudication a constitutional complaint by the applicant company. It first held that statements of fact – whether a person's own statements or statements of others incorporated in the person's own statement – fell within the scope of protection of the freedom of expression as guaranteed in the Basic Law (Grundgesetz) as long as their untruthfulness was not established. However, this protection was subject, inter alia, to the limitations laid down by the provisions of general laws, including the protection of the personal rights of others. The interpretation and application of these provisions, the establishment of the facts and the balancing of the different interests concerned were the task of the civil courts, which had to take into account the relevance and the impact of fundamental rights. With regard to the general principles established in its case-law the Federal Constitutional Court underlined that it was of crucial importance whether an expression contained factual elements the truth of which could be verified. If an expression inseparably contained both factual and evaluating elements, it had to be regarded as a value judgment if it was dominated by the evaluating elements. However, the truth or untruth of the factual elements had to be taken into account when balancing the different interests. If the publication of statements of fact, the truth of which was uncertain, interfered with the personal rights of others, there were duties of care (Sorgfaltspflichten) to fulfil. The more intense the interference, the more intense these duties became. One aspect was the question whether the person making the statement had adequately verified the facts and correctly conveyed the state of his knowledge in this regard. The courts had to take into account that these duties of care were an expression of the State's positive obligation to protect the personal rights of others. On the other hand, they also had to take into account the public interest in the information concerned, and the requirements in question should not have a constricting effect on readiness to make use of the freedom of expression. Against the background of these principles, the Federal Constitutional Court did not find a violation of constitutional law. It held that the expressions at stake all contained factual elements, the truth of which had not been established. The Federal Constitutional Court also found that at the time of their publication there had been no legitimate interest in the dissemination of the statements at stake. It held that it might have been excessive for the courts to have required the applicant company to also ask the board of VW and Mr P. for a written comment. However, this had been only one additional aspect amongst others which in themselves formed a sufficient basis to justify the decisions. In particular, the courts had taken into account that the statements in the article were based on one single private source only and that the dissemination of such information was acceptable only if there was a minimum of evidence in favour of its veracity. Lastly, the Federal Constitutional Court also found that the court decisions were not in contradiction with the case-law of the European Court of Human Rights. Referring to different judgments of the latter, it pointed out that there was no breach of Article 10 of the Convention if the domestic courts, when balancing the different interests involved, attached weight to the question whether the person making the statement had conducted his own investigations as to the veracity of the information and whether any remaining doubts had been made sufficiently clear. | 0 |
train | 001-57980 | ENG | GBR | GRANDCHAMBER | 1,996 | CASE OF JOHN MURRAY v. THE UNITED KINGDOM | 2 | No violation of Art. 6-1;No violation of Art. 6-2;Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | John Freeland;N. Valticos;R. Pekkanen | 11. The applicant was arrested by police officers at 5.40 p.m. on 7 January 1990 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989. Pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 ("the Order") (see paragraph 27 below), he was cautioned by the police in the following terms: "You do not have to say anything unless you wish to do so but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence." In response to the police caution the applicant stated that he had nothing to say. 12. On arrival at Castlereagh Police Office at about 7 p.m., he refused to give his personal details to the officer in charge of the custody record. At 7.05 p.m. he was informed of his right to have a friend or relative notified of his detention and indicated that he did not require anyone to be so notified. At 7.06 p.m. he indicated that he wished to consult with a solicitor. At 7.30 p.m. his access to a solicitor was delayed on the authority of a detective superintendent pursuant to section 15 (1) of the Northern Ireland (Emergency Provisions) Act 1987 ("the 1987 Act"). The delay was authorised for a period of 48 hours from the time of detention (i.e. from 5.40 p.m. on 7 January) on the basis that the detective superintendent had reasonable grounds to believe that the exercise of the right of access would, inter alia, interfere with the gathering of information about the commission of acts of terrorism or make it more difficult to prevent an act of terrorism (see paragraph 33 below). 13. At 9.27 p.m. on 7 January a police constable cautioned the applicant pursuant to Article 6 of the Order, inter alia, requesting him to account for his presence at the house where he was arrested. He was warned that if he failed or refused to do so, a court, judge or jury might draw such inference from his failure or refusal as appears proper. He was also served with a written copy of Article 6 of the Order (see paragraph 27 below). In reply to this caution the applicant stated: "Nothing to say." 14. At 10.40 p.m. he was reminded of his right to have a friend or relative notified of his detention and stated that he did not want anyone notified. He was also informed that his right of access to a solicitor had been delayed. He then requested consultation with a different firm of solicitors. A police inspector reviewed the reasons for the delay and concluded that the reasons remained valid. 15. The applicant was interviewed by police detectives at Castlereagh Police Office on twelve occasions during 8 and 9 January. In total he was interviewed for 21 hours and 39 minutes. At the commencement of these interviews he was either cautioned pursuant to Article 3 of the Order or reminded of the terms of the caution. 16. During the first ten interviews on 8 and 9 January 1990 the applicant made no reply to any questions put to him. He was able to see his solicitor for the first time at 6.33 p.m. on 9 January. At 7.10 p.m. he was interviewed again and reminded of the Article 3 caution. He replied: "I have been advised by my solicitor not to answer any of your questions." A final interview, during which the applicant said nothing, took place between 9.40 p.m. and 11.45 p.m. on 9 January. His solicitor was not permitted to be present at any of these interviews. 17. In May 1991 the applicant was tried by a single judge, the Lord Chief Justice of Northern Ireland, sitting without a jury, for the offences of conspiracy to murder, the unlawful imprisonment, with seven other people, of a certain Mr L. and of belonging to a proscribed organisation, the Provisional Irish Republican Army (IRA). 18. According to the Crown, Mr L. had been a member of the IRA who had been providing information about their activities to the Royal Ulster Constabulary. On discovering that Mr L. was an informer, the IRA tricked him into visiting a house in Belfast on 5 January 1990. He was falsely imprisoned in one of the rear bedrooms of the house and interrogated by the IRA until the arrival of the police and the army at the house on 7 January 1990. It was also alleged by the Crown that there was a conspiracy to murder Mr L. as punishment for being a police informer. 19. In the course of the trial, evidence was given that when the police entered the house on 7 January, the applicant was seen by a police constable coming down a flight of stairs wearing a raincoat over his clothes and was arrested in the hall of the house. Mr L. testified that he was forced under threat of being killed to make a taped confession to his captors that he was an informer. He further said that on the evening of 7 January he had heard scurrying and had been told to take off his blindfold, that he had done so and had opened the spare bedroom door. He had then seen the applicant standing at the stairs. The applicant had told him that the police were at the door and to go downstairs and watch television. While he was talking to him the applicant was pulling tape out of a cassette. On a search of the house by the police items of clothing of Mr L. were subsequently found in the spare bedroom, whilst a tangled tape was discovered in the upstairs bathroom. The salvaged portions of the tape revealed a confession by Mr L. that he had agreed to work for the police and had been paid for so doing. At no time, either on his arrest or during the trial proceedings, did the applicant give any explanation for his presence in the house. 20. At the close of the prosecution case the trial judge, acting in accordance with Article 4 of the Order, called upon each of the eight accused to give evidence in their own defence. The trial judge informed them inter alia: "I am also required by law to tell you that if you refuse to come into the witness box to be sworn or if, after having been sworn, you refuse, without good reason, to answer any question, then the court in deciding whether you are guilty or not guilty may take into account against you to the extent that it considers proper your refusal to give evidence or to answer any questions." 21. Acting on the advice of his solicitor and counsel, the applicant chose not to give any evidence. No witnesses were called on his behalf. Counsel, with support from the evidence of a co-accused, D.M., submitted, inter alia, that the applicant’s presence in the house just before the police arrived was recent and innocent. 22. On 8 May 1991 the applicant was found guilty of the offence of aiding and abetting the unlawful imprisonment of Mr L. and sentenced to eight years’ imprisonment. He was acquitted on the remaining charges. 23. The trial judge rejected D.M.’s evidence (see paragraph 21 above) as untruthful. He considered that "the surrounding facts, including the finding of the tangled tape in the bathroom with the broken cassette case, and the fact that, on entering the house some appreciable time after they arrived outside it and some appreciable time after they first knocked on the door, the police found Murray coming down the stairs at the time when all the other occupants of the house were in the living room, strongly confirm L’s evidence that after the police knocked on the door Murray was upstairs pulling the tape out of the cassette". 24. In rejecting a submission by the applicant that Articles 4 and 6 of the Order did not operate to permit the court to draw an adverse inference against him, where, at the end of the Crown case, there was a reasonably plausible explanation for the accused’s conduct consistent with his innocence, the trial judge stated as follows: "There can be debate as to the extent to which, before the making of the Criminal Evidence (Northern Ireland) Order 1988, a tribunal of fact in this jurisdiction was entitled to draw an adverse inference against an accused because he failed to give evidence on his own behalf, or to account for his presence at a particular place or to mention particular facts when questioned by the police. But I consider that the purpose of Article 4 and of Articles 3 and 6 of the 1988 Order was to make it clear that, whatever was the effect of the previous legal rules, a judge trying a criminal case without a jury, or a jury in a criminal case, was entitled to apply common sense in drawing inferences against the accused in the circumstances specified in Article 4, and in Articles 3 and 6 ... ... I think it is clear that the purpose of Article 4 is to permit the tribunal of fact to draw such inferences against the accused from his failure to give evidence in his own defence as common sense requires. The inference which it is proper to draw against an accused will vary from case to case depending on the failure of the accused to give evidence on his own behalf does not in itself indicate guilt. Nor does the failure to mention particular facts when questioned or the failure to account for presence in a particular place in itself indicate guilt. But I consider that the intendment of ... Article 4 and Article 6 is to enable the tribunal of fact to exercise ordinary common sense in drawing inferences against an accused ... Therefore when I come to consider the case against the accused ... I propose to draw such inferences against [him] under Article 4 and under Article 6 as ordinary common sense dictates." 25. "I accept the submissions of counsel for the accused that as demonstrated by his replies in cross-examination, L. is a man who is fully prepared to lie on oath to advance his own interests and is a man of no moral worth whatever. I, therefore, accept the further submissions of counsel for the accused that, unless his evidence were confirmed by other evidence, a court should not act on his evidence, particularly against accused persons in a criminal trial ... I now turn to consider the fifth count charging the false imprisonment of L. against the accused [the applicant]. For the reasons which I have already stated, I am satisfied that, as L. described in his evidence, [the applicant] was at the top of the stairs pulling the tape out of the cassette after the police arrived outside the house. I am also satisfied, for the reasons which I have already stated, that [the applicant] was in the house for longer than the short period described by his co-accused, [D.M.]. I am further satisfied that it is an irresistible inference that while he was in the house [the applicant] was in contact with the men holding L. captive and that he knew that L. was being held a captive. I also draw very strong inferences against [the applicant] under Article 6 of the 1988 Order by reason of his failure to give an account of his presence in the house when cautioned by the police on the evening of 7 January 1990 under Article 6, and I also draw very strong inferences against [the applicant] under Article 4 of the 1988 Order by reason of his refusal to give evidence in his own defence when called upon by the Court to do so. Therefore I find [the applicant] guilty of aiding and abetting the false imprisonment of L. because, knowing he was being held captive in the house, he was present in the house concurring in L. being falsely imprisoned. As Vaughan J. stated in R. v. Young ... [the applicant] was ‘near enough to give [his] aid and to give [his] countenance and assistance’." 26. The applicant appealed against conviction and sentence to the Court of Appeal in Northern Ireland. In a judgment of 7 July 1992, the court dismissed the applicant’s appeal holding, inter alia: "... to suggest, with respect, that [the applicant] went into the house just as the police were arriving outside, immediately went upstairs, attempted to destroy a tape and then walked downstairs, and that this was the sum of his time and activity in the house defies common sense ... We are satisfied that it can reasonably be inferred that [the applicant] knew before he came to the house that [L.] was being held captive there. With this knowledge he assisted in the false imprisonment by directing the captive from the bedroom where he had been held and by giving him the directions and admonition [L.] said. Accordingly [the applicant] aided and abetted the crime. We do not accept that [L.] would have been free to leave the house, if the police and army had been taken in by the pretence of the television watching and had departed without making any arrests. We have no doubt that [L.] remained under restraint in the living room when the police were there and if they had left, he would have remained a prisoner to await the fate that his captors would determine. We consider that there was a formidable case against [the applicant]. He was the only one of the accused whom [L.] observed and identified as playing a positive part in the activities touching his captivity. [L.]’s evidence therefore called for an answer. No answer was forthcoming of any kind to the police or throughout the length of his trial. It was inevitable that the judge would draw ‘very strong inferences’ against him. The Crown case deeply implicated [the applicant] in the false imprisonment of [L.]." 27. The 1988 Order includes the following provisions: "(4) A person shall not be committed for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in Article 3 (2), 4 (4), 5 (2) or 6 (2). ... (7) Nothing in this Order prejudices any power of a court, in any proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion." "Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused (a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies. (2) Where this paragraph applies (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, (b) ... (c) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure as appear proper; (ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material. (3) Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. ..." "Accused to be called upon to give evidence at trial (1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless (a) the accused’s guilt is not in issue, or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence; but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence. (2) Before any evidence is called for the defence, the court (a) shall tell the accused that he will be called upon by the court to give evidence in his own defence, and (b) shall tell him in ordinary language what the effect of this Article will be if (i) when so called upon, he refuses to be sworn; (ii) having been sworn, without good cause he refuses to answer any question; and thereupon the court shall call upon the accused to give evidence. (3) If the accused (a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn, or (b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies. (4) The court or jury, in determining whether the accused is guilty of the offence charged, may (a) draw such inferences from the refusal as appear proper; (b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material. (5) This Article does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal to be sworn. ..." "Inferences from failure or refusal to account for presence at a particular place (1) Where (a) a person arrested by a constable was found by him at a place or about the time the offence for which he was arrested is alleged to have been committed, and (b) the constable reasonably believes that the presence of the person at that place and at that time may be attributable to his participation in the commission of the offence, and (c) the constable informs the person that he so believes, and requests him to account for that presence, and (d) the person fails or refuses to do so, then if, in any proceedings against the person for the offence, evidence of those matters is given, paragraph (2) applies. (2) Where this paragraph applies (a) the court, in determining whether to commit the accused for trial or whether there is a case to answer, and (b) the court or jury, in determining whether the accused is guilty of the offence charged, may (i) draw such inferences from the failure or refusal as appear proper; (ii) on the basis of such inferences, treat the failure or refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure or refusal is material. (3) Paragraphs (1) and (2) do not apply unless the accused was told in ordinary language by the constable when making the request mentioned in paragraph (1) (c) what the effect of this Article would be if he failed or refused to do so. (4) This Article does not preclude the drawing of any inference from the failure or refusal of a person to account for his presence at a place which could properly be drawn apart from this Article. ..." 28. In the case of R. v. Kevin Sean Murray (sub nom. Murray v. Director of Public Prosecutions), the House of Lords considered the effect of Article 4 of the Order ([1993] 97 Criminal Appeal Reports 151). In the leading judgment of the House of Lords, Lord Slynn stated that: "- at common law there was a divergence of view as to whether, and if so, when and in what manner a judge might comment on the failure of the accused to give evidence; - the Order intended to change the law and practice and to lay down new rules as to the comments which could be made and the inferences which could be drawn when the accused failed to give evidence at his trial; - under the Order the accused could not be compelled to give evidence but had to risk the consequences if he did not do so; and - the inferences which might be drawn from the accused’s failure to give evidence in his own defence included in a proper case the drawing of an inference that the accused was guilty of the offences with which he was charged." 29. He added: "... This does not mean that the court can conclude simply because the accused does not give evidence that he is guilty. In the first place the prosecutor must establish a prima facie case - a case for him to answer. In the second place in determining whether the accused is guilty the judge or jury can draw only ‘such inference from the refusal as appear proper’. As Lord Diplock said in Haw Tua Tau v. Public Prosecutor at p. 153B: ‘What inferences are proper to be drawn from an accused’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary common sense.’ There must thus be some basis derived from the circumstances which justify the inference. If there is no prima facie case shown by the prosecution there is no case to answer. Equally if parts of the prosecution had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt. On the other hand if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then a failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty ..." 30. Lord Mustill in R. v. Kevin Sean Murray (cited above) stated that the expression "a prima facie case" "was intended to denote a case which is strong enough to go to a jury - i.e. a case consisting of direct evidence which, if believed and combined with legitimate inferences based upon it, could lead a properly directed jury to be satisfied beyond reasonable doubt ... that each of the essential elements of the offence is proved". 31. Even if a prima facie case is established, the trial judge has a discretion whether or not to draw inferences on the facts of the particular case. In the present case, the Court of Appeal indicated that if a judge accepted that an accused did not understand the warning given in the caution required by Article 6 or if he had doubts about it "we are confident that he would not activate Article 6 against him". 32. In R. v. Director of Serious Fraud Office, ex parte Smith [1992] 3 Weekly Law Reports 66, Lord Mustill stated that it was necessary to analyse which aspect of the right to silence is involved in any particular situation, because "... In truth it does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute." Amongst the group of immunities which were covered by the expression "right to silence" Lord Mustill identified the following: "(1) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions posed by other persons or bodies. (2) A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them. (3) A specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind. (4) A specific immunity, possessed by accused persons undergoing trial, from being compelled to give evidence, and from being compelled to answer questions put to them in the dock. (5) A specific immunity, possessed by persons who have been charged with a criminal offence, from having questions material to the offence addressed to them by police officers or persons in a similar position of authority. (6) A specific immunity ..., possessed by accused persons undergoing trial, from having adverse comment made on any failure (a) to answer questions before the trial, or (b) to give evidence at the trial." 33. Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant: "15. Right of access to legal advice (1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately. (2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies. (3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence. (4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by this section. ... (8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it - (d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or (e) by alerting any person, will make it more difficult - i. to prevent an act of terrorism, or ii. to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ..." 34. The delay must be authorised by a police officer of at least the rank of superintendent (section 15, subsection (5) (a)) and the detained person must be told the reason for the delay (subsection (9) (a)). The maximum delay is 48 hours. 35. The courts in Northern Ireland have taken the view that the provisions of the 1988 Order should not be read subject to section 15 of the 1987 Act above. In the case of R. v. Dermot Quinn (judgment of the Belfast Crown Court of 23 December 1991), the trial judge rejected a submission to the effect that an adverse inference under Article 3 of the 1988 Order should not be drawn where the accused had asked for access to his solicitor but been interviewed by the police before his solicitor arrived to advise him. He noted that the 1988 Order had come into force after section 15 of the 1987 Act and considered that Parliament had not intended that an inference dictated by common sense which was permitted by Article 3 of the 1988 Order should not be drawn because of the right to access to legal advice given by section 15. In its judgment of 17 September 1993, the Court of Appeal in Northern Ireland upheld the trial judge’accused’s failure to respond to questions by the police before the receipt of legal advice from his solicitor. The court commented that a breach of section 15 might in certain circumstances allow the trial judge in his discretion to refuse to draw an adverse inference under Article 3 of the 1988 Order. | 1 |
train | 001-97783 | ENG | RUS | CHAMBER | 2,010 | CASE OF SPK DIMSKIY v. RUSSIA | 4 | Violation of P1-1;No violation of Art. 6 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant is the agricultural production co-operative “Dimskiy” (сельскохозяйственный производственный кооператив «Димский»), a legal entity under the Russian law, established in 1992 in the village of Novoaleksandrovka in the Tambov District of the Amur Region. The applicant was subsequently re-organised into a joint-stock company “Dimskoye” (ОАО «Димское»). 7. In 1987 the General Secretary of the USSR Communist Party Mikhail Gorbachev presented his “basic theses”, which laid the political foundation for economic reform heralding the transition to a market economy. Several laws were enacted which opened up the State-dominated planned economy to private enterprise. However, the Government preferred to keep control over consumer prices rather than leaving them to be determined by the free market. 8. By 1990 Government spending increased sharply as a growing number of unprofitable enterprises required State support, whereas more resources were diverted to subsidise consumer prices. At the same time, the elimination of central control over production decisions, especially in the consumer-goods sector, led to a breakdown in traditional supply-demand relationships. This resulted in pervasive shortages of food and basic consumer goods. The Government reacted by introducing ration stamps for food and certain hygiene articles. 9. In addition to ration stamps, the Government of the Russian Socialist Federative Soviet Republic (RSFSR) put into circulation several types of so-called “commodity bonds” (товарные чеки) which gave their bearers the right to purchase consumer goods, such as refrigerators, washing machines, tape recorders and passenger cars. The Urozhay-90 (“Harvest-90”) bonds were one of many types of bonds; they were distributed among agricultural workers and companies which had sold grain and other agricultural produce to the State in 1990 and 1991. Those bonds were designed to encourage agricultural workers to sell produce to the State in exchange for the right to priority purchasing of goods in high demand (see paragraph 26 below). The State paid workers for the produce at fixed prices and also gave them bonds in amounts proportionate to the value of the produce sold. 10. The Urozhay-90 bonds were not legal tender, but they had a certain nominal value indicated on their face. That value determined the maximum purchase price of consumer goods which could be sold on production of the bonds. The bonds were not intended for payment but merely for certification of the right to purchase specific goods; the sale of goods was conditional on payment of the full purchase price by the bond-holder and production of the bonds for the same amount. The bonds were not registered in the person’s name or otherwise personalised and the Government Resolution did not prevent them from being transferred among individuals and legal entities. 11. On 2 January 1992 the Russian Government decided to put an end to the regulation of retail prices. Shops began to fill up with merchandise but prices increased at a staggering speed (the inflation rate in 1992 was 2,600%). In March 1992, the Government established that goods available under the bonds would be sold at the prices fixed before 2 January 1992 (see paragraph 27 below). 12. In August 1992 the Government introduced the possibility of buying out the bonds with a coefficient of 10. In 1994, the coefficient was raised to 70 (see paragraphs 28 and 29 below). It appears that a significant number of bonds were bought out by the State before the buyout operations were stopped in 1996 (see paragraph 31 below). 13. In 1995 the status of the commodity bonds was codified in the Commodity Bonds Act passed by Parliament (see paragraph 30 below). Its text was very laconic, shorter than one page, but it purported to cover every type of commodities bonds issued in previous years. Section 1 recognised the commodity bonds as part of the internal debt of the Russian Federation; section 2 fixed at ten years the limitation period for the obligations arising out of commodity bonds (the starting date was not specified); section 3 required the Government to adopt a programme for settlement of the internal debt. 14. In 2000 the Government presented the programme for settlement of the internal debt (see paragraph 33 below). It covered every type of commodity bond, save for the Urozhay-90 bonds. A few months before the Commodity Bonds Act was amended so as to provide that the settlement of the debt under the Urozhay-90 bonds would be regulated by a special federal law (see paragraph 32 below). 15. Between 2003 and 2009 the application of section 1 of the Commodity Bonds Act was suspended in the part concerning the Urozhay-90 bonds, in accordance with the laws on the federal budget for each successive year (see paragraph 34 below). 16. In 2009 Parliament passed a law on the buyout of the Urozhay-90 bonds and the Government issued implementing regulations which set out a detailed procedure for buyout of the bonds (see paragraphs 35 and 36 below). 17. The applicant holds Urozhay-90 bonds with a total nominal value of 343,375 non-denominated Russian roubles (RUR). 18. On 1 March 2001 the applicant brought an action against the Russian Government, seeking to recover 8,236,498 Russian roubles (RUB) as compensation for the bonds. The amount was calculated as the nominal value of the bonds multiplied by the official inflation co-efficient. 19. On 7 May 2001 the Commercial Court of the Amur Region issued a decision to dismiss the applicant’s claim. It noted that the federal law establishing the procedure for redemption of Urozhay-90 bonds had not yet been adopted and their maturity date had not been determined. The Commercial Court held that the plaintiff had not yet obtained the right to lodge this claim. 20. On 20 June 2001 the Appeals Division of the Commercial Court of the Amur Region quashed the decision of 7 May 2001 on procedural grounds and remitted the claim for a new examination. 21. On 27 August 2001 the Commercial Court of the Amur Region gave judgment. It established that the Ministry of Finance, rather than the Russian Government, should have been the proper defendant in the applicant’s claim for damages because the Russian Government had not committed any unlawful actions. As the applicant refused to substitute the original defendant or to join the Ministry of Finance as a co-defendant and as the court was not competent to do so of its own motion, it determined to disallow the applicant’s claim. 22. On 22 October 2001 the Appeals Division of the Commercial Court of the Amur Region upheld the judgment of 27 August 2001. 23. Counsel for the applicant, Mr Okunev, submitted a cassation appeal. On 23 November 2001 the Federal Commercial Court of the Far-Eastern Circuit fixed the hearing date for 11 December 2001. Mr Okunev had been notified of that decision on 3 December 2001 by registered mail. 24. On 11 December 2001 the Federal Commercial Court heard oral submissions by Mr Okunev and adjourned the hearing until 17 December 2001. 25. On 17 December 2001 Mr Okunev did not appear at court. In the absence of any valid reason for his absence, the Federal Commercial Court proceeded with the hearing and upheld, in the final instance, the judgments of 27 August and 22 October 2001. It confirmed that the actions of the Russian Government had been lawful and that the Ministry of Finance was responsible for the debts chargeable to the treasury. 26. On 26 July 1990 the RSFSR Council of Ministers adopted Resolution no. 259 on urgent measures for increasing the purchase of agricultural products harvested in 1990 and for ensuring their safe keeping. Its relevant parts resolved as follows: “1. To authorise all manufacturers of agricultural produce to sell the surplus of such produce that remains after delivery under existing agreements ... to procurers or other consumers at negotiated prices... 2. To declare inadmissible any restrictions on the sale or shipment of agricultural produce to consumers in autonomous districts or regions of the RSFSR under paragraph 1 of the present resolution... Should local councils introduce such restrictions in their territories, the RSFSR Council of Ministers may stop issuing Urozhay-90 bonds or delivering goods on the basis of them in those territories...” “7. To begin issuing, in 1990, Urozhay-90 bonds to employees of collective and Soviet farms, other agro-industrial enterprises and organisations, peasants’ farms and owners of personal subsidiary land plots in respect of agricultural produce sold to the State. To determine that the bonds certify the right to purchase goods in high demand at retail prices in trade outlets. The said bonds are not legal tender. 8. The RSFSR Ministry of Finance and the RSFSR Ministry of Agriculture and Food will, until 1 September 1990, print and put into circulation through the branches of the RSFSR State Bank Urozhay-90 bonds for a total amount of 10 billion roubles. The bonds are to be used before 1 October 1991. 9. To establish that Urozhay-90 bonds are issued by the branches of the RSFSR State Bank: - to all producers who sold standard products to the State between 1 July 1990 and 30 June 1991 ... in an amount equivalent to 10% of the value of the products sold... ... 13. The Russian Consumers’ Association is to submit to the RSFSR Ministry for Foreign Economic Relations requests for those goods in high demand which are to be sold on production of the Urozhay-90 bonds, and organise their sale, on advance orders by citizens and organisations, at regional fairs and exhibitions and in specialised trade outlets. The Consumers’ Associations is to deliver goods to the consumers on the basis of the Urozhay-90 bonds no later than 1 January 1990 [sic]. In 1991 orders under the said bonds will be executed within two months.” 27. On 15 March 1992 the Russian Government issued Resolution no. 161, intended to compensate the owners of Urozhay-90 bonds for an increase in retail prices. It resolved, in particular: “1. To establish that passenger cars and other consumer goods which are made available to citizens as a reward for the grain and other agricultural produce that was sold to the State in 1990 and 1991 are to be sold at the retail prices that prevailed before 2 January 1992... 2. To extend the period of validity of the Urozhay-90 bonds until the end of 1992...” 28. On 10 August 1992 the Government adopted Resolution no. 1442-r. It required the Russian ministries to allocate substantial amounts for the purchase of goods that were to be sold on production of the Urozhay-90 bonds. It further provided: “4. The Ministry for Trade and Material Resources, in cooperation with the Central Consumers’ Union, shall define, within two weeks, the list of goods intended for the implementation of the Urozhay-90 bonds... 5. The Prices Committee of the Ministry of the Economy shall determine the increase in prices of domestic and imported goods since 1990... The price difference shall be reimbursed from the republican budget. 6. The Ministry of Agriculture shall carry out an inventory of bonds held by agricultural enterprises and organisations and private individuals as on 1 September. 7. The Ministry of Finance and the Ministry of Agriculture shall, within two weeks, lay down the procedure for the buyout of the Urozhay-90 bonds through the branches of the Savings Bank. It is to be taken into account that these bonds may be either used for purchasing goods or bought out by the State with a coefficient of 10.” 29. On 16 April 1994 the Government approved Regulation no. 344 on State commodity bonds, which provided as follows: “With a view to redeeming the State commodity bonds and preventing accrual of the State’s liability to compensate for price differences, the Government of the Russian Federation resolves: 1. The Ministry of Finance of the Russian Federation – – will buy out ... the Urozhay-90 bonds at a price equivalent to their nominal value multiplied by 70 and credit that amount into a bank account...” 30. On 1 June 1995 the Commodity Bonds Act (no. 86-FZ, ФЗ «О государственных долговых товарных обязательствах») was enacted. It provided that State commodity bonds, including Urozhay-90 bonds, would be recognised as part of the internal State debt of the Russian Federation (section 1). The obligations arising out of the commodity bonds would be settled in accordance with the general principles of the Russian Civil Code, the limitation period being set at ten years (section 2). The original wording of section 3 provided: “The Government of the Russian Federation shall draft, in 1995-1997, the State Programme for settlement of the internal debt of the Russian Federation described in section 1, based on the principle of full compensation. The Programme shall provide for redemption terms ... convenient for citizens, including, according to their choice: provision of goods designated in ... the State bonds issued to agricultural suppliers ...; redemption of State commodity bonds at consumer prices prevailing at the time of the redemption ...; conversion of the debt into State securities...” 31. On 16 January 1996 the Government adopted Resolution no. 33, by which it annulled Regulation no. 344 and instructed the Ministry of Finance to redeem the State commodity bonds within the amounts allocated for that purpose in the federal budget. 32. On 2 June 2000, section 3 of the Commodity Bonds Act was amended to provide that the procedure for implementation of the State’s obligations to holders of the Urozhay-90 bonds would be determined in a special federal law. 33. On 27 December 2000 the Government adopted the State Programme for settlement of the internal debt of the Russian Federation. Paragraph 14 of the Programme provided that the procedure for payments in respect of the Urozhay-90 bonds would be determined in a special federal law. 34. In 2003 the application of section 1 of the Commodity Bonds Act was for the first time suspended in the part concerning the Urozhay-90 bonds. The suspension clause was maintained in the following years (Federal Law no. 176-FZ of 24 December 2002; no. 186-FZ of 23 December 2003; no. 173-FZ of 23 December 2004; no. 189-FZ of 26 December 2005; no. 238-FZ of 19 December 2006; and no. 198-FZ of 24 July 2007). 35. On 19 July 2009 a federal law governing the procedure for the buyout of the Urozhay-90 bonds was adopted (no. 200-FZ – “the Buyout Act”). It established that holders of the bonds would be paid, in the period between 15 December 2009 and 31 December 2010, an amount equivalent to the nominal value of the bonds divided by 1,000 (section 2). The law also amended the Commodity Bonds Act by removing the reference to the Urozhay-90 bonds from section 1 of that Act. 36. On 15 September 2009 the Government issued Resolution no. 749, setting out the detailed procedure for payments in exchange for the production of Urozhay-90 bonds. 37. On 15 December 2000 the Constitutional Court gave a decision on an application lodged by the Parliament of the Sakha (Yakutiya) Republic, which had claimed that the amendments of 2 June 2000 (see above) had indefinitely delayed the implementation of the State’s obligations towards the bearers of the Urozhay-90 bonds. The Constitutional Court declared the application inadmissible for the following reasons: “In its [previous decisions] the Constitutional Court has already determined that a unilateral change in the scope of the State’s obligations towards individuals, including the obligation to sell goods in exchange for commodity bonds, is impermissible. This does not exclude, however, the possibility of imposing restrictions on the property rights of individuals – in an established form and within the constitutional limits – in the matter of State obligations, which is compatible with Article 55 § 3 of the Constitution. In particular, it follows from the case-law of the Constitutional Court ... that implementation of the rights and lawful interests of individual citizens or groups of citizens should not excessively and adversely affect the budgetary resources allocated for satisfying the rights and interests of society as a whole. This principle becomes particularly relevant in a situation where budgetary resources are insufficient to resolve many social problems relating to the exercise of the rights to life and personal dignity. It follows that the balance between the rights and lawful interests of the individuals who act as creditors for the State in property relationships, on the one hand, and everyone else, on the other hand, may, in principle, be struck only in the form of an act of Parliament. Hence, given that the legislature may restrict individual rights and freedoms (including property rights) for the purpose of the protection of the rights and lawful interests of others, a review of the federal law amending section 3 of the Commodity Bonds Act by the Constitutional Court would imply an assessment of the financial and economic justification for the legislative decision on the procedure for settlement of State commodity bonds, which ... falls outside the jurisdiction of the Constitutional Court. When examining claims relating to settlement of the State commodity bonds, courts of general jurisdiction have the right and duty to interpret the legislative provisions in the light of the interests of the individual (Articles 2 and 18 of the Constitution) and be guided, in particular, by section 2 of the Commodity Bonds Act, which establishes that State commodity bonds are to be settled in an appropriate form and in accordance with the Civil Code of the Russian Federation.” | 0 |
train | 001-4721 | ENG | AUT | ADMISSIBILITY | 1,999 | KAINZ v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1934 and living in Hard. He is represented before the Court by Ms Berchtold-Ostermann, a lawyer practising in Vienna. A. PARTICULAR CIRCUMSTANCES OF THE CASE In 1979 the applicant concluded with M. a contract for the purchase of a plot of land situated in the Vorarlberg region. On 16 December 1993 the applicant, represented by counsel, filed a request with the Vorarlberg Real Property Transaction Commission (Grundverkehrs-Landeskommission) to approve the acquisition of the plot of land by the above sales contract. On 8 March 1994 the Real Property Transaction Commission, referring in particular to sections 5(1) and 6(a) of the 1977 Vorarlberg Real Property Transactions Act (Grundverkehrsgesetz), as amended in 1987, refused the approval. It found in particular that the plot of land formed part of the “Maisäss” (an alpine pasture at middle elevation up to about 1200 m) Zafern no. 29. The cottage on this plot, which the applicant had meanwhile renovated and transformed into a secondary residence, formed an important part of this pasture, even if it was not used for agricultural purposes. It was not in the interests of efficient peasantry and sound agricultural estates to split up this farming entity. On 31 May 1994 the Real Property Transaction Senate (Grundverkehrssenat), following an oral hearing on 27 May 1994 in the presence of the applicant’s counsel, dismissed the applicant’s appeal. In its decision the Senate noted his appeal submissions, in particular his assertion that he had not known about the necessity of approval under the Real Property Transaction Act. The Senate considered that it was not credible that the vendor of the plot of land, then mayor of Fontanella, had ignored the legal situation when drawing up the written contract in 1979. It rather appeared that the contract had been concluded in 1979 in order to circumvent the Real Property Transaction Act, and that the reconstruction work had been carried out by the applicant in order to obtain approval, the cottage having been changed so as to remove any sign of its previous agricultural use. These measures contravened the general interest in maintaining an efficient peasantry and an economically sound structure for small and middle size farming entities. On 28 July 1994 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He complained about a violation of his right to be heard by a legally competent court (gesetzlicher Richter), claiming that the real transaction authorities lacked competence as the Real Property Transaction Act did not apply to the plot of land in question. He further complained that the decision of the Real Property Transaction Senate was arbitrary in presuming an intention to circumvent the provisions of the Real Property Transaction Act. On 4 October 1995 the Constitutional Court dismissed the applicant's complaint. The Constitutional Court observed at the outset that in accordance with the transitional provisions of the 1993 Real Property Transactions Act, which had entered into force in January 1994, the 1977 Act continued to apply to pending proceedings. As regards the competence of the real estate transactions authorities, the Constitutional Court noted that when the applicant had acquired the plot of land in 1979, it had been an agricultural estate as there had been a “Maisäss” cottage on it. Such cottages served farmers inter alia in spring and autumn for feeding purposes before and after the periods spent on the high alpine pastures. The Real Property Transaction Senate had convincingly reasoned that the reconstruction of the cottage as a secondary residence had changed the initial purpose of the plot of land, and that such action served to circumvent the legal rules. In this context, the question of intent was irrelevant, it was sufficient that, objectively seen, there was such a circumvention. On the whole, there was no appearance of arbitrariness. The decision was served on 16 November 1995. | 0 |
train | 001-86032 | ENG | RUS | CHAMBER | 2,008 | CASE OF SILIN v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1970 and lives in Moscow. 7. On 28 August 2000 the applicant was detained on suspicion of having committed a crime punishable under Article 126 of the Criminal Code (attempted kidnapping by a group). A report on his detention stated that eyewitnesses, including victims, had identified him as the perpetrator and that other grounds existed for suspecting him of having committed the crime. 8. On 30 August 2000 an investigator ordered him to be detained pending trial pursuant to Article 90 of the Code of Criminal Procedure. The investigator took into account the dangerousness and seriousness of the offence, the risk of the applicant’s absconding and obstructing the investigation, and the need to examine his implication in other similar crimes. Next day, the order was upheld by the acting prosecutor of the north-east administrative district of Moscow. 9. On 7 September 2000 the applicant was charged on several counts, including the use of violence dangerous to life against a State official in the performance of his duties, attempted aggravated kidnapping by an organised group and conspiracy to murder. The investigation established that the applicant had entered into agreement with P., the head of an organised criminal group acting in Moscow and the Moscow Region, and had commissioned him in January and then in February 1999 to beat F. and T., who had occupied senior positions in the Customs office. F. had been beaten up by three persons, the identity of one of whom had not been established by the investigation, with baseball bats in the porch of his apartment block; he had suffered open craniocerebral trauma as a result. T. had been beaten up and had received knife wounds. The investigation also established that later in 1999 the applicant had commissioned the same organised group to kidnap Sh., for the purpose of blackmail. Each time the applicant had paid P. remuneration. He had allegedly acted on the instructions of a person whose identity had not been established by the investigation. As well as these three criminal cases joined into one case, the latter was joined with one more case of infliction of bodily harm involving the same organised group. 10. On 23 October and 1 November 2000 the investigator ordered that the term of the applicant’s pre-trial detention be extended. He stated, inter alia, that it was necessary to carry out a range of investigation measures in order to establish the identity of other persons involved in the kidnapping of Sh. and to ascertain the applicant’s participation in that crime, to finalise the preparation of the charges and to enable the applicant to examine the materials of the case file. The requests contained the circumstances of the crimes, as established by the investigation, and the description of evidence collected by the investigation. On 26 October 2000 the prosecutor of the north-east administrative circuit of Moscow approved the order of 23 October 2000 and extended the term of the applicant’s pre-trial detention until 24 November 2000. The investigator’s order of 1 November 2000 was supported by the prosecutor of the north-east administrative circuit of Moscow and the prosecutor of Moscow and was approved, on 8 November 2000, by a deputy prosecutor general, who extended the term of the applicant’s pre-trial detention until 24 February 2001. 11. The applicant’s advocate challenged the detention as unlawful and unjustified. By a decision of 28 November 2000 a judge of the Tverskoy District Court of Moscow dismissed the complaint. The judge found that the nature, seriousness and circumstances of the offences of which the applicant stood accused and their danger to the public warranted the detention orders. The applicant did not appeal. 12. On 30 January 2001 the investigator ordered a further extension of the applicant’s detention. The order reflected the state of investigation in the case against the applicant and seven other persons including what had been done since the last extension of the applicant’s detention. Thus, one more accomplice in the crime against F. had been identified and arrested; evidence of participation by several other individuals in the crime against T. had been examined; the defendants had examined expert reports; and more documentary evidence had been collected. The investigator submitted that it was necessary to finalise the charges against the applicant and for him to examine the voluminous case file, which would require additional time. On the basis of those considerations and having regard to the seriousness of the offences of which the applicant stood accused, the investigator ordered the applicant’s detention to be extended until 24 May 2001. The prosecutor of the north-east administrative circuit of Moscow and the Moscow prosecutor supported the order and on 14 February 2001 a deputy prosecutor general approved it. 13. On a further request by the investigator, approved by the regional and city prosecutor, a deputy prosecutor general of the Russian Federation extended, on 10 May 2001, the applicant’s pre-trial detention further, until 24 August 2001, on the grounds that the applicant was liable to abscond, resume his criminal activity and obstruct the investigation and in view of the gravity of the offences of which the applicant stood accused and the need for him to examine the case file. 14. On 10 July 2001, after the investigation in the case had been completed and the indictment approved, the case against the applicant and his co-defendants was transferred to the Moscow City Court for trial. 15. By a decision of a judge of the Moscow City Court of 31 July 2001 the hearing was set down for 14 August 2001 and an order was made for the applicant’s continued detention. The applicant did not appeal against the decision. 16. Between 14 August and 22 October 2001 the hearing was adjourned for reasons attributable to the applicant’s co-defendants. 17. The trial commenced on 22 October 2001. 18. On 26 November 2001 the lawyer of one of the applicant’s codefendants, Mr Grachev, lodged an application seeking an order for his client to be made the subject of an outpatient psychiatric examination. The application was supported by all the other defendants and their lawyers. By a decision of 27 November 2001 the court granted the application and adjourned the hearing, first until 3 December and then until 7 December 2001. 19. On the latter date, following a further application by Mr Grachev’s lawyer, supported by all the other defendants, the court ordered that Mr Grachev be made the subject of an inpatient psychiatric examination with a view to determining whether he could be held responsible for the offences of which he stood accused. It also adjourned the hearing until the experts’ report was available and ordered that the applicant should remain in custody. 20. The experts’ report on Mr Grachev’s condition was issued on 4 February 2002 and two days later Mr Grachev was brought back to his detention facility, of which the court was informed. 21. The trial recommenced on 3 April 2002 and was then adjourned until 13 May 2002, owing to the illness of one of the defendants and the need to summon witnesses. The hearing was held on 13, 14, 15, 17 and 20 May 2002. 22. On 23 May 2002 the public prosecutor lodged an application, based on expert opinion, seeking an order for Mr Grachev to receive compulsory inpatient psychiatric treatment and requesting the postponement of the proceedings in consequence. On 24 May 2002 the court granted the prosecutor’s request and ordered that Mr Grachev undergo compulsory inpatient psychiatric treatment until his condition improved. The court further ruled that the examination of the case against the other defendants, separately from Mr Grachev’s case, would undermine the thoroughness and objectivity of the trial. The court therefore adjourned examination of the case until Mr Grachev’s health condition had improved. The court stated that it took into account Mr Grachev’s diagnosis, which did not require lengthy inpatient treatment for him. 23. Submitting no objections to that decision, the applicant however requested to be released, subject to an undertaking not to leave his place of residence, referring to the uncertainty as to the duration of Mr Grachev’s treatment, his own lack of previous convictions, his permanent place of residence in Moscow, the fact that he had a wife and small child dependent upon him for support and the fact that his state of health required regular examinations by specialists of a kind not available at the detention facility. In a decision of 24 May 2002 the Moscow City Court refused the request for release made by the applicant and his two co-defendants on the ground of the seriousness of the offences of which they stood accused. 24. The applicant’s lawyers lodged an appeal against this decision, requesting that the applicant be released from custody and instead, as a preventive measure, be required to give an undertaking not to leave his place of residence. They pointed once again to the uncertainty as to the duration of Mr Grachev’s treatment, during which time the case would lie dormant, and to the length of the applicant’s pre-trial detention, which had begun in August 2000. 25. Mr Grachev’s lawyer also lodged an appeal against the decision of 24 May 2002. Relying on Articles 5 and 6 of the Convention, he complained that the unlimited extension of the pre-trial detention of his client and the other defendants in the case, including the applicant, constituted an unlawful and excessive restriction of their rights, which completely disregarded their right to liberty. In practice, the decision of 24 May 2002 anticipated, by means of pre-trial detention, their future conviction and punishment, in breach of the principle of presumption of innocence. The lawyer also argued that the order extending the defendants’ pre-trial detention for an indefinite period – until the as yet unknown date of Mr Grachev’s recovery – exceeded permissible restrictions on human rights and freedoms. 26. Between 2 and 25 July 2002 the appeals were not examined as one of the defence lawyers was on annual leave. On 30 July 2002 the Supreme Court of the Russian Federation dismissed both appeals and upheld the decision. It stated that the lower court had taken into account the experts’ opinion of the short-term character of Mr Grachev’s disease and ordered his compulsory treatment in accordance with the law, which provided that such treatment could be ordered if a person’s mental state posed a danger to that person and others and required permanent and intensive observation. The Supreme Court held that the reasons given in support of the request for the applicant’s release could not be considered cogent as the applicant stood accused of serious crimes. 27. On 19 August 2002, after the case file had been returned to the trial court, the hearing was set down for 2 September, and then adjourned to 10 September 2002 owing to the failure of the defence lawyers to appear. 28. On 10 September 2002 the trial court, having heard evidence from the defence, who had requested the release of the applicant and his two codefendants and substitution of the detention measure with another preventive measure not involving deprivation of liberty, granted the prosecutor’s request and extended the pre-trial detention of the applicant and his co-defendants until 1 October 2002. The court gave as reasons for its decision the fact that the applicant and his co-defendants had been charged with a particularly serious offence (conspiracy to murder by an organised group with aggravated circumstances) and that there were no grounds for annulling or altering the preventive measure chosen. By a decision of 30 September 2002, at the prosecutor’s request, a further extension in respect of the same persons was ordered until 1 January 2003, on the same ground. The court further referred to a decision of a medical committee of 20 September 2002 to terminate Mr Grachev’s compulsory treatment. The applicant did not appeal against these decisions. 29. On 30 December 2002 the trial resumed. On the same day the court, at the prosecutor’s request, ordered Mr Grachev to be made the subject of an inpatient psychiatric expert examination with a view to determining whether he could be held responsible for the offences of which he stood accused, and extended the pre-trial detention of the applicant and three other defendants until 1 April 2003 on the ground of the seriousness of the offences of which they stood accused. 30. Mr Grachev’s psychiatric expert examination was carried out on 27 February 2003. 31. On 10 April 2003 the Moscow City Court ordered that the hearing in the case be held on 14 April 2003. On that date it ordered that the pre-trial detention of the applicant and three other defendants be extended from 1 April 2003 until 1 July 2003 inclusive, on the ground that they were accused of particularly serious offences and were liable to abscond and obstructir respective personalities. The court stated in its decision that it had had no opportunity to discuss the question of the preventive measure in respect of the applicant and the other defendants, whose pre-trial detention had previously been extended until 1 April 2003. The court noted that the case file had been kept throughout this period at the expert institution which had carried out Mr Grachev’s psychiatric examination. 32. Between 14 April and 6 May and on 9 June 2003 the hearing was adjourned for reasons imputable to the applicant’s co-defendants. The hearing in the case ended on 18 June 2003 and the court started its deliberations. 33. On 27 June 2003 the Moscow City Court delivered a judgment in the case against the applicant and seven other defendants. The applicant was convicted of attempted kidnapping as part of an organised group, inciting malfeasance in public office and aiding and abetting an assault on a State official. The prosecutor dropped some other charges against him, including conspiracy to murder by an organised group with aggravated circumstances. The applicant was acquitted on the remaining charges. He was sentenced to four years’ imprisonment. The period of his pre-trial detention commencing on 28 August 2000 was counted towards the term of his sentence. 34. No appeal was lodged against the judgment, which came into effect on 15 July 2003. 35. On 15 October 2003 the Tverskoy District Court of Moscow ordered the applicant’s early conditional release. 36. Before 1 July 2002 preventive measures in criminal proceedings were governed by the Code of Criminal Procedure of the RSFSR of 1960. For its relevant provisions see the case of Kalashnikov v. Russia (no. 47095/99, § 89, ECHR 2002VI). 37. Since 1 July 2002 preventive measures in criminal proceedings have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). Its relevant provisions are summarised in the case of Lind v. Russia (no. 25664/05, §§ 47-52, 6 December 2007). | 1 |
train | 001-75390 | ENG | FIN | ADMISSIBILITY | 2,006 | LEVANEN AND OTHERS v. FINLAND | 3 | Inadmissible | Nicolas Bratza | The applicants, Mr Timo Levänen and Mr Ahti Toivanen are Finnish nationals and live in the municipality of Riihimäki. They are owners of two private driving schools. The third applicant, Riihimäen Liikenneopisto Oy, is a driving school company in Riihimäki. They are represented before the Court by Mr Timo Hakanen, a lawyer practising in Jyväskylä. The Finnish Government (“the Government”) are represented by their Agent, 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 17 April 2000 the Provincial State Office (lääninhallitus, länssyrelsen) of Southern Finland granted the Joint Municipal Board of the Vocational Institute of Riihimäki (Riihimäen ammattioppilaitoksen kuntayhtymä, yrkesinstitutens samkommunen) a driving school licence to teach their students to drive. The licence was valid from 1 August 2000 until 31 July 2005, with the name “Autokoulu RAOL”. Mr T.S. was approved as its director. The applicants appealed against the decision to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Hämeenlinna, claiming that the decision be annulled as, inter alia, T.S. did not meet the criteria for a director as required in the Decree on Driving Licences (ajokorttiasetus, körkortsförordningen; 845/1990, amend. 167/1994). They further alleged that operating a driving school did not belong to the functions of a municipality or a federation of municipalities. In any case, the name of the licence-holder, “Autokoulu RAOL” should have been deleted and the number of training vehicles limited to two motor vans and two passenger cars. They contended that the establishment of a new driving school affected their rights as it would reduce their incomes and thus they had a right to appeal pursuant to section 6 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; 586/1996). On 21 November 2000 the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Hämeenlinna held an oral hearing, in which it heard the Provincial State Office, the Joint Municipal Board and the applicants. It further obtained written opinions from the parties. On 19 February 2001 the Administrative Court annulled the decision of the Provincial State Office on the ground that T.S. was not competent to act as a director, and thus the Provincial State Office should not have granted a driving school licence to the Joint Municipal Board. The Joint Municipal Board appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating that T.S. fulfilled the criteria. The Provincial State Office, the Ministry of Transport and Communications (liikenneministeriö, kommunikations- ministeriet) and the applicants submitted opinions to the court and the Joint Municipal Board gave its observations. On 13 August 2003 the Supreme Administrative Court annulled the decision of the Administrative Court and declared the applicants’ application to the Administrative Court inadmissible without considering its merits. It held that the issue was whether the applicants had a right of appeal against the decision of the Provincial State Office. It emphasised that pursuant to the Road Traffic Act (tieliikennelaki, vägtrafiklagen; 267/1981, amend. 103/1994) and the Decree on Driving Licences the licence for a driving school had to be granted if the applicant fulfilled certain criteria. The appropriateness of a new licence was not relevant to the decision-making. Therefore, when deciding on the new licence it was irrelevant whether the new licence affected the status of already existing driving schools. The court concluded that the owners of other driving schools were not directly affected by the decision and had no right to appeal under the Administrative Judicial Procedure Act. The decision became a precedent (KHO:2003:46). Section 21 of the Constitution of Finland (perustuslaki, grundlagen; 731/1999) provides that everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Section 6, subsection 1 of the Administrative Judicial Procedure Act provides that any person to whom a decision is addressed or whose right, obligation or interest is directly affected by a decision may appeal against a decision. Section 66 of the Road Traffic Act (267/1981, as in force until 1994) provided that a driving school licence was required for operating a driving school. The State Provincial Office might grant a licence, if the applicant was deemed to fulfil the criteria for operating a driving school and the establishment of the school was considered necessary and appropriate in accordance with the general instructions issued by the then Ministry of Transport. According to the said section, as amended by Act on 1 March 1994 (103/1994), a licence to operate a driving school is granted by the relevant State Provincial Office. A driving school licence shall be granted if, having regarded his or her skills, reliability, solvency and other qualifications, the applicant is deemed suitable for operating a driving school. If the applicant is a legal person, the director responsible for the teaching at the driving school must, in light of his or her skills, reliability, solvency and other qualifications, be suitable to operate a driving school. Section 66, subsection 3 of the said Act provides that a licence shall be granted for a certain period of time. It may also include preconditions and restrictions. According to subsection 4, a licence is not required if teaching takes place in drivers’ vocational training, which is supervised by the National Board of Education, or in an institute training driving instructors. Chapter 8, section 39 of the Decree on Driving Licences sets the criteria for the licence of driving schools. A licence shall be granted if the applicant, or, where the applicant is a legal person, its director responsible for the teaching, has, inter alia, a driving instruction permit and has during the past ten years worked for at least four years as a full-time teacher in a driving school or in a vocational institution giving class C driver instruction. In its precedent (KHO 1987-A-75) the Supreme Administrative Court found that a decision of the Ministry of Transport to suspend a charter transport licence for a determined period of time did not affect the rights of a competing charter transport carrier within the meaning of section 26, subsection 5, of the Decree on Professional Motor Traffic. Thus the competing carrier had no right to appeal against the Ministry’s decision. According to the Supreme Administrative Court’s precedent (KHO 1995-A-1), in a case where the Government had decided at the same time several applications for compensation to be paid with discretionary funds included in the state budget, a person had a right to appeal against the Government’s decision only to the extent the decision concerned his/her own application. In 1995 the Supreme Administrative Court issued a precedent (KHO 1995-A-51) concerning a driving school licence. In that case the Provincial State Office had granted A a right to establish a driving school and allowed him to take responsibility for the teaching even though he had at the same time the same responsibility in another driving school. The Supreme Administrative Court annulled the decision of the Ministry of Transportation, by which it had declared inadmissible an application lodged by four other driving school owners, and found that the Provincial State Office’s decision concerned rights of the applicants, who had the right to appeal. In its decision no. 63 of 8 January 1996 the Supreme Administrative Court ruled that the housing corporation located in the neighbourhood of a restaurant did not have a right to appeal against a decision by which a restaurant was granted a licence to serve alcohol both indoors and in the outdoor area of the restaurant. The Supreme Administrative Court further found in its decision no. 795 of 8 April 1997 that a person operating a pharmacy in the neighbouring municipality did not have a right to appeal against a decision of the National Agency for Medicines by which it issued a licence for the storing of medicines, as the applicant in question had not applied for the licence and as the granting of a licence to him (being a pharmacist in another municipality) did not affect his rights and obligations within the meaning of section 4 of the Administrative Appeals Act. | 0 |
train | 001-68398 | ENG | DEU | CHAMBER | 2,005 | CASE OF WIMMER v. GERMANY | 4 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | David Thór Björgvinsson | 8. The applicant was born in 1952 and lives in Töging am Inn, Germany. 9. On 25 November 1992 the applicant and his wife (hereafter Ms W.) divorced before the Groß Gerau District Court. In this context, the District Court granted them joint custody of their two daughters, aged four and eight at that time. 10. On 6 July 1993, following Ms W.’s appeal (Beschwerde) and after hearing both her and the applicant as well as two representatives of the local Youth Office, the Frankfurt/Main Court of Appeal granted Ms W. sole custody of the children, while allowing the applicant to retain a right of access. It found that, given the fact that the parents did not seem entirely willing to co-operate in practical matters, it would be in the children’s best interest if decisions concerning their everyday life were taken by their mother alone. It added that the mother had agreed to discuss important decisions with the applicant and that she was expected to ensure that contacts between the applicant and his daughters would continue on a regular basis. In its decision, the Court of Appeal did not admit an appeal on points of law (weitere Beschwerde). 11. On 9 August 1993 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed in particular that the decision of the Frankfurt/Main Court of Appeal had misinterpreted the existing provisions on custody of children, notably Section 1671 of the Civil Code (see Relevant domestic law, below), and infringed his parental rights guaranteed by Article 6 § 2 of the Basic Law. 12. On 23 March 1994 the President of the Federal Constitutional Court informed the applicant that he had communicated the case to 25 third parties, who had the right to submit their observations until 30 September 1994. The list of third parties included the Federal Parliament (Bundestag), the Federal Council (Bundesrat), the Federal Government, the Länder Governments, the President of the Federal Court of Justice, the parties of the proceedings before the Frankfurt/Main Court of Appeal, as well as various national organisations dealing with family law issues and involved in the protection of children. 13. On 13 November 1995, following the applicant’s request dated 2 October 1995, the Federal Constitutional Court forwarded the pertinent written observations dated 1 and 25 July, 20 and 27 September, 20 October and 9 December 1994 and 19 February 1995. These included the observations of the Federal Ministry of Justice of 9 December 1994 stating that the Government planned an amendment of the law on family matters, inter alia by introducing explicit provisions on joint custody after divorce. 14. Towards the end of 1997, the applicant received a telephone call from the Federal Constitutional Court informing him that the questions raised by his complaint would become obsolete with the expected entry into force of the amended Law on Family Matters of 16 December 1997 (Kindschaftsrechtsreformgesetz) on 1 July 1998. The applicant was asked whether he wanted to declare that his constitutional complaint had been disposed of (Erledigterklärung) under these circumstances. 15. On 24 June 1998 the applicant requested the Constitutional Court to deliver a decision despite the change of law brought about by the Law on Family Matters. 16. On 22 December 1999 (decision served on 20 January 2000), the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint. It found that due to the amended Law on Family Matters, the constitutional complaint no longer raised issues of general interest. The applicant’s complaints could be adequately dealt with in proceedings for the amendment of a court order (Abänderungsverfahren) pursuant to Section 1696 § 1 of the Civil Code (see Relevant domestic law, below) before the competent civil courts. In these proceedings, the new legal provisions on family matters could be taken into account. 17. Section 1671 of the Civil Code, in its version in force until 30 June 1998, provided that the court sitting in family matters had to grant the custody of a child to one of his or her parents divorcing. The provision has been amended by the Law on Family Matters of 16 December 1997, which entered into force on 1 July 1998. Pursuant to the amended Section 1671 of the Civil Code, parents who split up keep, as a rule, joint custody of their children. The courts sitting in family matters award sole custody to one parent only if a motion is filed to this end and certain further conditions are satisfied, especially if sole custody is best for the child’s well-being. 18. The statutory provision on the amendment of a court order concerning the custody of a child, Section 1696 § 1 of the Civil Code, in its version in force until 30 June 1998, was worded as follows: “The court sitting in guardianship matters and the court sitting in family matters may modify their decisions at any time during the continuation of parental custody, if they consider this to be necessary in the interest of the child.” 19. Section 1696 § 1 of the Civil Code, as amended by the Law on Family Matters in force since 1 July 1998, provides: “The court sitting in guardianship matters and the court sitting in family matters must modify their decisions, if this is necessary for cogent reasons which have a lasting effect on the child’s well-being.” | 1 |
train | 001-80577 | ENG | POL | CHAMBER | 2,007 | CASE OF KASZCZYNIEC v. POLAND | 3 | Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed | Nicolas Bratza | 4. The applicant was born in 1951 and lives in Szczecin. 5. On 7 March 1996 the Szczecin Regional Prosecutor laid charges of large-scale fraud against the applicant. On 17 April 1996 the prosecutor ordered his detention on remand in connection with those charges. He also issued a search and arrest warrant in respect of the applicant. Subsequently, on an unspecified date the prosecution received information that the applicant had left Poland. 6. On 7 October 1996 the prosecutor stayed the investigation due to the fact that the applicant was abroad. On the same day he issued an international search and arrest warrant for the applicant. 7. On 29 November 1996 the applicant was arrested in Germany. 8. On 19 March 1997 the German authorities extradited the applicant to Poland where he was placed in police custody. On 21 March 1997 the Szczecin District Court ordered his detention on remand on suspicion of large-scale fraud. His detention was subsequently prolonged on 16 September and 30 November 1997. 9. On 15 November 1997 the prosecution filed a bill of indictment with the Szczecin Regional Court. The applicant was charged with large-scale fraud to the detriment of the State Treasury. There were two other defendants in the case. 10. The Regional Court held hearings on the following dates: 22 January, 26 and 27 February, 2, 24 and 25 March, 20, 21 and 22 April, 16 June, 14 and 20 July 1998. 11. In the course of his original trial, the applicant lodged numerous unsuccessful applications for release and appealed – likewise unsuccessfully – against refusals to lift the detention. In his applications, he argued that his detention was excessive and had, for all practical purposes, amounted to serving a prison sentence. He asked the courts to release him either on bail or under police supervision, or to accept a guarantee from a responsible person or persons who would undertake to ensure his presence at trial, or to order him to surrender his passport, or to subject his release to all those conditions. 12. On 20 July 1998 the trial court gave judgment. It convicted the applicant as charged and sentenced him to 9 years' imprisonment and a fine. The court further ordered that the period spent by him in pre-trial detention from 29 November 1996 up to the date of his conviction be set off against the sentence imposed. 13. On 15 April 1999, on an appeal lodged by the applicant, the Poznań Court of Appeal quashed the first-instance judgment and remitted the case. The subsequent proceedings were conducted only against two defendants, including the applicant, as the third defendant had not appealed against the first-instance judgment. 14. On 28 December 1999 the Regional Court joined the proceedings in question to the other set of proceedings. The number of defendants increased to three. 15. The retrial was to begin on 28 March 2000 but was adjourned since one of the defendants had to undergo a psychiatric examination. The next hearing scheduled for 9 May 2000 had to be adjourned due to the illness of a lay judge. The Regional Court held the first retrial hearing on 20 June 2000. Subsequent hearings were held on 12, 18 and 19 July, 22 August, 20, 21 and 28 September, 17 and 18 October, 28 and 29 November and 20 December 2000. 16. In the meantime, on 20 May 1999 the Poznań Court of Appeal dismissed the applicant's application for release on bail or under police supervision, or under guarantee by a responsible person or under the condition that he surrender his passport. The court found that there was a considerable likelihood that he had committed the offence with which he had been charged. The court further noted that the applicant had already been detained on remand for some 30 months but it considered that, given that he had previously been sought under an international arrest warrant and that he was liable to a severe penalty, there was a real risk that he might obstruct the proper conduct of the trial. In the court's view, that risk justified his being kept in custody. That decision was upheld on appeal. 17. On 27 May 1999 the Court of Appeal prolonged the applicant's detention pending trial until 30 November 1999. The applicant appealed, invoking, inter alia, Article 5 § 3 of the Convention. He submitted that his right to trial within a reasonable time or to release pending trial was not respected. He also maintained that his detention was so excessive that it amounted in reality to serving a prison sentence. 18. On 4 August 1999 the Court of Appeal upheld the contested order. Repeating the grounds previously given for the applicant's detention, the court stressed that he had already evaded justice and an international arrest warrant had had to be issued. It considered that the trial had not progressed because of his conduct. In the court's opinion, those circumstances clearly indicated that there was a considerable risk that the applicant, if released, might again upset the proper conduct of the proceedings. Lastly, the court noted that he faced an exceptionally heavy sentence, which had already been shown by the severity of the penalty originally imposed at first instance. 19. On 27 August 1999 the Szczecin Regional Court dismissed an application for release on bail or subject to other guarantees or conditions. The court repeated the grounds previously invoked, attaching particular importance to the fact that he had earlier absconded and had already been sentenced to 9 years' imprisonment. In view of the severity of the sentence to which he was liable, the court considered that neither bail, nor police supervision nor any other guarantee would secure the proper course of the trial. 20. On 16 November 1999 the Regional Court extended the applicant's detention until 30 April 2000, repeating the grounds mentioned in the previous decisions. 21. The applicant appealed, maintaining, among other things, that there was no legal basis for keeping him in custody and that, pursuant to Article 263 §§ 3 and 4 of the 1997 Code, his detention could have been prolonged only by the Supreme Court because it had exceeded the maximum statutory period of 2 years laid down in paragraph 3 of that provision. 22. On 11 January 2000 the Court of Appeal rejected the appeal. It stressed that both the fact that the applicant had earlier evaded justice and the nature of his, in the court's words, “criminal relations” with certain witnesses involved in the case, indicated that detention was the only preventive measure which would effectively secure the proper course of the trial. As regards the legal basis for his detention, the court pointed out that – as had already been mentioned in the previous detention decisions – his detention continued on the grounds listed in Article 258 §§ 1 (2) and 2 of the 1997 Code as there was a risk that he might obstruct the proper course of the trial and a heavy penalty was likely to be imposed on him. Lastly, as to the question of which court was competent to prolong his detention, the Court of Appeal stated that the applicant had misconstrued Article 263 §§ 3 and 4 of the 1997 Code. That provision, the court added, indeed imposed a statutory time-limit of 2 years on pre-trial detention and laid down that only the Supreme Court could prolong it beyond that term. However, that rule applied only as long as there had been no conviction at first instance. Since the applicant had already been convicted at first instance, no time-limit for detention applied to his case, even though his original conviction had subsequently been quashed on appeal. 23. On 4 February 2000 the Regional Court dismissed a further application for release filed by the applicant in January 2000. It reiterated the grounds invoked in the previous detention decisions and added that, in the light of the material before it, there was a considerable likelihood that the applicant had committed the offence with which he had been charged. 24. On 25 February 2000 the Regional Court dismissed the applicant's subsequent application for release. It recalled that it had already ruled on numerous occasions on his detention. Noting that the applicant had not adduced any new relevant circumstances, the court found it unnecessary to address his arguments. 25. On 26 April 2000 the Regional Court prolonged the applicant's detention until 30 October 2000. It considered that the material gathered in the case justified the opinion that the applicant had committed the offence in question. It observed that a severe penalty (up to 9 years' imprisonment) might be imposed on him. Stressing that the applicant had evaded justice at the initial stage of the proceedings, the court also pointed out that his detention served the purpose of securing the proper conduct of the trial. Furthermore, the court found it necessary to extend his detention until 30 October 2000 because the summer holidays were approaching, which, for all practical purposes, meant that the examination of the case would be postponed. 26. On 15 September 2000 the Regional Court dismissed the applicant's further application for release. 27. On 21 September 2000 the applicant requested that the three sets of criminal proceedings conducted against him before the courts in Szczecin, including the proceedings at issue, be transferred to other courts. On 13 October 2000 his request was refused. 28. On 18 October 2000 the Szczecin Regional Court prolonged the applicant's detention until 30 January 2001. It reiterated all the grounds previously given for his detention. The applicant's appeal, based on Article 5 § 3 of the Convention, was rejected by the Court of Appeal on 31 October 2000. 29. On 12 January 2001 the Regional Court extended the applicant's detention until 30 July 2001. Upon the applicant's appeal, the Court of Appeal reduced the prolongation to 23 February 2001. 30. On 22 February 2001 the Regional Court ordered that the applicant be kept in custody until 24 April 2001. It further held that he could be released if he put up bail of PLN 40,000. The applicant appealed. 31. On 15 March 2001 the Court of Appeal quashed the Regional Court's decision. It ordered that the applicant should be released on condition that he put up bail of PLN 30,000 by 30 March 2001. The Court of Appeal further placed the applicant under police supervision and imposed on him a prohibition on leaving the country. 32. On 27 March 2001 the Regional Court ordered the applicant's release as he had paid the bail. He was released on the same day. 33. On 28 March 2002 the Szczecin Regional Court convicted the applicant of large-scale fraud and breach of official secrecy. It sentenced him to a cumulative sentence of 8 years' imprisonment and a fine. The applicant appealed. 34. On 12 February 2003 the Poznań Court of Appeal amended the Regional Court's judgment by reducing the applicant's cumulative sentence to 6 years' imprisonment. The applicant appealed. 35. On 1 March 2004 the Supreme Court dismissed the applicant's cassation appeal. 36. 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, §§ 22-23, 4 August 2006. 37. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
train | 001-5350 | ENG | MLT | ADMISSIBILITY | 2,000 | XUEREB v. MALTA | 3 | Inadmissible | Christos Rozakis | The applicant is a Maltese national, born in 1952 and living in Naxxar, Malta. He is represented before the Court by Dr P. Galea and Dr M. Sciriha, lawyers practising in Valletta, Malta. A. The applicant applied to contest the local council elections in Naxxar which were to be held on 21 January 1994. The applicant stood as an independent candidate. Following an objection by the Nationalist Party the Magistrates' Court disqualified him from standing in the election. On 14 January 1994 the Court of Appeal set aside this decision. The applicant went on to be elected Mayor of Naxxar. The applicant was subsequently charged before the Court of Magistrates of, inter alia, failing to send to the Electoral Commissioner within sixty days of the election results a signed statement of his election expenses as required by Schedule Three of Act XV of 1993 on Local Council Elections. Another independent candidate was charged with the same offence. None of the other 200 candidates, all of whom represented the governing or opposition party, was charged although they had failed to submit the required statement. The applicant appealed to the First Hall of the Civil Court. He stated he was the victim of discrimination since the police had not instituted proceedings against the other 200 non-independent candidates even though they all failed to file declarations on their election expenses. On 17 January 1996 the First Hall of the Civil Court rejected the applicant's application for a constitutional remedy on the grounds that he and the only other independent candidate had committed additional electoral offences. On that account the court ruled that the applicant could not be considered to have been discriminated against with reference either to the Maltese Constitution or to Article 14 of the European Convention on Human Rights taken in conjunction with Article 3 of Protocol No. 1 thereto. The applicant appealed to the Constitutional Court. On 17 February 1999 the Constitutional Court rejected his appeal. The Constitutional Court ruled that the applicant was not in an analogous situation to the other 200 candidates as, unlike the latter, he had committed further serious offences linked to the conduct of the local election. There was accordingly a justification for the difference in treatment. The Court stated in this connection: “This Court cannot agree that it is irrelevant that [the applicant and the other independent candidate] were charged with other crimes. These crimes, and the applicant is not contesting his prosecution for them, are crimes relating to [the applicant's and the other independent candidates'] behaviour during the electoral campaign involving either violation of the electoral law provisions or serious offences consequential on such violation. The Commissioner of Police was thus faced in [the applicant's and the other independent candidate's cases], with a situation of violation of a different and much more serious law than the law applicable to the two hundred other candidates. The Commissioner could not, rightly so, consider the applicant and these other candidates in pari conditione nor were they in a situation of like and like.' ... The Court is satisfied that in the present case the determining factor for differential treatment ... was not a quality of the person accused or his political convictions, but the nature and seriousness of the crimes he - and not the other candidates - was charged with.” By letter dated 12 August 1999 the applicant's lawyer informed the Court that the criminal proceedings instituted against him had not yet been terminated. B. Relevant domestic law and practice Local councils in Malta operate within a framework defined by legislation enacted by the Maltese Parliament and derive their regulatory powers from parent legislation. They may make bye laws within their area of competence in exercise of the powers delegated to them by Parliament. | 0 |
train | 001-72199 | ENG | POL | CHAMBER | 2,006 | CASE OF KRANC v. POLAND | 4 | Violation of Art. 6-1;Not necessary to examine under P1-1;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1929 and lives in Ciechanów, Poland. 5. On an unspecified date in 1988 a certain T.M. lodged a claim against the applicant with the Rzeszów District Court (Sąd Rejonowy). She sought a division of property. 6. On 26 April 1989 the court held a hearing. 7. On 24 January 1992 the court ordered that expert evidence be obtained. The expert’s report was submitted to the court on 26 May 1992. 8. On 21 April 1993 the court gave judgment. 9. The applicant appealed on 26 June 1993. 10. On 22 April 1994 the Rzeszów Regional Court (Sąd Okręgowy) quashed the first-instance judgment and remitted the case to the District Court. 11. On 6 February 1996 the applicant sent a letter to the court, asking for a hearing date to be set. 12. On 3 October 1997 the court decided that new expert evidence be obtained. 13. The court held hearings on 4 May 1998 and 22 December 2000. 14. On 28 February 2001 the Rzeszów District Court gave judgment. 15. The applicant appealed on 5 April 2001. 16. On 26 June 2001 the Rzeszów Regional Court upheld the first-instance judgment. 17. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” 18. Article 418 of the Civil Code, as applicable until 18 December 2001 (see “C. Constitutional Court’s judgment of 4 December 2001 below) provided for the following exception in cases where damage resulted from the issue of a decision or order: “1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person. 2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.” 19. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 38-41 below). Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows: “3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.” 20. However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) shall apply to all events and legal situations that subsisted before that date. 21. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution. On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings. 22. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant: “The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.” 23. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act. Section 2, in so far as relevant, reads as follows: Section 5 provides, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 24. Section 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of section 18 (see paragraph 46 below) in the following terms: “A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended. 25. Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads: “1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.” 26. Section 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. 2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court. 3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.” | 1 |
train | 001-106436 | ENG | ROU | CHAMBER | 2,011 | CASE OF ARCHIP v. ROMANIA | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 5. The applicant was born in 1976 and lives in Podoleni. 6. On 7 November 2005, at about 12 noon, the applicant went to Podoleni Town Hall to cash his monthly sickness benefit. Having noticed that the sum cashed was smaller than the amount he had received in previous months he expressed dissatisfaction to the mayor and the deputy mayor. 7. Unsatisfied with the explanations received, the applicant started to insult the civil servants working at the town hall. A few of the witnesses to the incident stated that the applicant was under the influence of alcohol. The applicant denied it. 8. As the applicant could not be calmed down, the mayor and the deputy mayor took him to the police station, which was situated close to the town hall. 9. The applicant alleged that the mayor had hit him at the police station. He did not submit any medical certificate in this connection. 10. On the ground that the applicant continued to behave aggressively and to address threats to those around him, the chief police officer, P.E., handcuffed him to a tree in the courtyard of the police station. 11. According to the applicant and several witnesses, he was kept handcuffed for about two hours and forty-five minutes. The Government averred that the handcuffing lasted one hour and forty-five minutes. 12. As the police station was located in the centre of the village, many inhabitants of the village passed by and saw the applicant handcuffed to the tree in the courtyard. One of them informed the press and the local television station. Reporters arrived at the scene and took pictures of the handcuffed applicant. The incident was covered by an article on 10 November 2005 in the local newspaper Realitatea called ‘The chief police officer of Podoleny molests a fellow citizen’. 13. Five months before the events in question, the applicant had had surgery on his left femur. According to the documents submitted by him, he was hospitalised in the orthopaedics section of Neamţ Hospital between 12 November and 2 December 2002 and between 30 May and 15 June 2005. At the time of the events he was suffering from coxarthrose (arthritis of the hip) and was receiving sickness benefit for that reason. 14. According to the applicant, being kept handcuffed outdoors for such a long time on a cold and wet November day worsened his medical condition. On the basis of a medical certificate issued on 16 January 2008 the applicant had been designated disabled (at medium level) by a medical board. 15. On the day the incident took place, police officer P.E. drafted a report stating that he had had to use force and the handcuffs in order to prevent the applicant from deliberately self-harming. He stated that he had kept the applicant handcuffed for twenty to thirty minutes and that he had stayed close to him all this time. However, his statement was contradicted by the statement of M.D., the former deputy mayor of the village, who testified that the applicant was alone and the police station was closed when he passed by the front of the building on 7 November 2005. 16. On 9 November 2005 the applicant lodged a criminal complaint with the Piatra Neamţ District Court against police officer P.E. and the mayor, accusing them of causing bodily harm and insulting behaviour. 17. By a judgment rendered on 20 January 2006, that court remitted the file to the prosecutor’s office attached to the Neamţ County Court for investigation of the incident. It gave a new legal classification to the offences mentioned in the applicant’s complaint, namely abuse of position and deprivation of liberty. 18. On 24 October 2006 the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation, on the grounds that it was permissible to handcuff an aggressive person. 19. On 21 November 2005 the applicant lodged another criminal complaint against the chief police officer, the deputy chief police officer, the mayor and the deputy mayor. He accused them of deprivation of liberty (under Article 189 § 1 of the Criminal Code). 20. On 17 March 2006 the applicant made a statement at the prosecutor’s office. He stated that he had not been hit by any of the defendants, as he had stated in his initial complaint. He added that he had been persuaded to lodge a criminal complaint by the previous mayor, by a member of the local council of the village, and by the president of an organisation fighting against corruption and for the protection of human rights (Asociaţia Naţională Impotriva Corupţiei, Abuzurilor şi Pentru Drepturile Omului – ANICADO). He also stated that he had been handcuffed for less than ten minutes and that it was legitimate, taking into account his own behaviour. He concluded by stating that he wanted to withdraw his complaint. Afterwards, during the proceedings before the courts, the applicant alleged that he had been forced to make that statement and that nothing in it was true. 21. By a decision delivered on 23 March 2006, the prosecutor’s office attached to the Neamţ County Court decided not to open a criminal investigation. It held that police officer P.E. had taken the necessary measures in order to calm down the applicant, who was using coarse language and insulting the civil servants working at the town hall, and was behaving in an especially insulting way towards the mayor of the village. It also held that handcuffing the applicant was in accordance with the provisions of Law no. 218/2002 regarding the organisation and functioning of the Romanian police (“the Police (Organisation and Functions) Act 2002”), and Order no. 130 of 10 September 2004 regarding the General Inspectorate of Police. It stated that the applicant had not been hit by any police officers. 22. Relying on Article 2781 of the Code of Criminal Procedure, the applicant lodged complaints against the decisions of 23 March and 24 October 2006. The two complaints were joined by the chief prosecutor. On 11 June 2007 the chief prosecutor dismissed the complaints and upheld the previous decisions. 23. The applicant’s complaint against the last prosecutor’s decision was dismissed by the Neamţ County Court on 21 February 2008. It held that the immobilising of the applicant with handcuffs in the courtyard of the police station had been done in accordance with the applicable legislation, and had been necessary, taking into account the applicant’s attitude. 24. An appeal on points of law lodged by the applicant was dismissed by the Bacău Court of Appeal on 17 April 2008, upholding the judgment of the Neamţ County Court. 25. On 22 February 2006 the prosecutor’s office attached to Piatra Neamţ District Court indicted the applicant for outrage against public morals and disturbance of public order under Article 321 § 1 of the Criminal Code. 26. By a judgement of 20 June 2006, the Piatra Neamţ District Court convicted the applicant as charged and sentenced him to one month’s imprisonment, suspended. The judgment remained final, as the applicant did not lodge an appeal on points of law. 27. The definition of the offence of outrage against public morals and disturbance of public order was, at the material time, provided for by Article 321 of the Criminal Code and read as follows: “Actions by a person who publicly acts or makes gestures, uses words or expressions, or behaves in any other way which is against public morals or which leads to public scandal, are punishable by imprisonment of between three months and two years or by a fine. If the actions stipulated in paragraph 1 seriously disturb public order, the applicable penalty shall be imprisonment of between six months and five years.” 28. The conditions regarding the use of handcuffs by police officers are provided for by the Police (Organisation and Functions) Act 2002. The relevant articles read as follows: (1) “In order to deter, prevent and neutralise aggressive behaviour by people who disturb public order and which cannot be brought to an end by other means, police can use protective shields, helmets, rubber truncheons (...) rubber bullet guns and handcuffs, dogs and other means of restraint which do not endanger life or cause serious bodily harm. (2) The means referred to in the above paragraph may be used against people who: a) behave in such a way as to threaten the physical integrity, health or property of others; b) try to enter, enter or refuse to leave the premises of public authorities, political parties, institutions and public or private organisations, jeopardise in any way their integrity or security or prevent them from carrying out their normal activity; c) Insult or attack those who are exercising public functions; d) Offer resistance or fail to comply, in any way, with the orders of a police officer, but only if there is a legitimate fear that by their actions they could jeopardise the physical integrity or the life of that police officer. (3) The use of the means described under the first paragraph must not exceed the level necessary to prevent or neutralise the aggressive behaviour.” “The use of the means provided by Articles 34 and 35 is prohibited against women with visible signs of pregnancy, against persons with visible evidence of disability and against children, except in cases when they engage in armed attack or in a group, which poses a threat to the life or the integrity of one or more people.” | 1 |
train | 001-112282 | ENG | DEU | CHAMBER | 2,012 | CASE OF KOCH v. GERMANY | 2 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 7. The applicant was born in 1943 and lives in Braunschweig. 8. The applicant and his late wife B.K., born in 1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K. had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff. She further suffered from spasms. According to the medical assessment, she had a life expectancy of at least fifteen more years. She wished to end what was, in her view, an undignified life by committing suicide with the applicant’s help. The couple contacted the Swiss assisted-suicide organisation, Dignitas, for assistance. 9. In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that would enable her to commit suicide at her home in Braunschweig. 10. On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1) (6) of the German Narcotics Act (Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which was aimed at securing the necessary medical care for the individuals concerned. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life. 11. On 14 January 2005 the applicant and his wife lodged an administrative appeal with the Federal Institute. 12. In February 2005 the applicant and his wife, who had to be transported lying on her back on a stretcher, travelled for approximately ten hours over a distance of more than 700 kilometres from Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed suicide there, assisted by Dignitas. 13. On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication. A right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which laid down the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide. 14. Finally, the Federal Institute “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection (Rechtsschutzbedürfnis). In particular, the applicant could not improve his own position through an appeal, as his legal position had not been the subject of the administrative proceedings. 15. On 4 April 2005 the applicant lodged an action for a declaration that the decision of the Federal Institute had been unlawful (Fortsetzungsfeststellungsklage) and that it thus had a duty to grant his wife the requested authorisation. 16. On 21 February 2006 the Cologne Administrative Court (Verwaltungsgericht) declared the applicant’s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. The Federal Institute’s refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law (Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention, as they did not affect the way in which the applicant and his wife lived together. 17. Moreover, the applicant could not rely on his wife’s rights, as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity. 18. Finally, the court held that in any event the refusal of the Federal Institute to grant the applicant’s wife the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court’s judgment in the case of Pretty (see Pretty v. the United Kingdom, no. 2346/02, § 74, ECHR 2002III), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse. Therefore, the fact that the provisions of the Narcotics Act permitted exceptions only for what was medically needed could not be considered disproportionate. 19. On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the applicant’s request for leave to appeal. It found, in particular, that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die had existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a right to facilitate another person’s suicide. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention. 20. On 4 November 2008 the Federal Constitutional Court (Bundesverfassungsgericht, no. 1 BvR 1832/07) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife. Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert another person’s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases, which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor’s own interests. 21. Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State. Under Article 2 § 2 of the Basic Law every person has the right to life and physical integrity. The Federal Constitutional Court has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94). 22. The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances, which are considered as drugs, including pentobarbital of sodium in Annex III. According to section 4 (1) no. 3 (a) of the Narcotics Act it is permissible to obtain the substances listed in Annex III if they are prescribed by a medical practitioner. In all other cases, section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs are subject to authorisation from the Federal Institute for Drugs and Medical Devices. In accordance with section 5(1)(6) of the Act, no such authorisation can be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addiction. Doctors may only prescribe pentobarbital of sodium if the use thereof on or in the human body is justified (section 13 (1)(1) of the Narcotics Act). 23. Section 216 of the Criminal Code reads as follows: “(1) If a person is induced to kill by the express and earnest request of the victim the penalty shall be imprisonment from six months to five years. (2) Attempts shall be punishable” Committing suicide autonomously is exempt from punishment under German criminal law. It follows that the act of assisting an autonomous suicide does not fall within the ambit of section 216 of the Criminal Code and is exempt from punishment. However, a person can be held criminally responsible under the Narcotics Act for having provided a lethal drug to an individual wishing to end his or her life. According to the case-law of the Federal Court of Justice (compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a lifeprolonging treatment of a terminally ill patient with the patient’s consent does not engage criminal responsibility. This applies irrespective of the fact that the interruption of the treatment has to be effected by actively stopping and switching off the medical device (Federal Court of Justice, judgment of 25 June 2010, 2 StR 454/09). 24. The professional codes of conduct are drawn up by the medical associations under the supervision of the health authorities. The codes are largely similar to the Model Professional Code for German Doctors, section 16 of which provides as follows: “(1) Doctors may – prioritising the will of the patient – refrain from life-prolonging measures and limit their activities to the mitigation of symptoms only if postponement of an inevitable death would merely constitute an unacceptable prolongation of suffering for the dying person. (2) Doctors may not actively curtail the life of the dying person. They may not put their own interests, or the interests of third parties, above the well-being of the patient.” Contraventions against the Professional Code of Conduct are sanctioned by disciplinary measures culminating in a withdrawal of the licence to practise medicine. In connection with the demand for doctor-assisted suicide, the 112th German Medical Assembly of May 2009 resolved that doctors should provide assistance in and during the process of dying, but should not help patients to die, as the involvement of a doctor in suicide would contravene medical ethics. 25. Recommendation no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as follows: “9. The assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill and dying persons in all respects: a. by recognising and protecting a terminally ill or dying person’s rights to comprehensive palliative care, while taking the necessary measures: (...) b. by protecting the terminally ill or dying person’s right to self-determination, while taking the necessary measures: (...) iii. to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person. Furthermore, safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure; iv. to ensure that a currently incapacitated terminally ill or dying person’s advance directive or living will refusing special medical treatments is observed... v. to ensure that – notwithstanding the physician’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account, provided they do not violate human dignity; vi. to ensure that in situations where an advance directive of living will does not exist, the patient’s right to life is not infringed upon. A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined. c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person’s while: (i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”; (ii) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person; (iii) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.” 26. Comparative research in respect of forty-two Council of Europe Member States shows that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom) any form of assistance to suicide is strictly prohibited and criminalised by law. In Sweden and Estonia, assistance to suicide is not a criminal offence; however, Estonian medical practitioners are not entitled to prescribe a drug in order to facilitate suicide. Conversely, only four member States (Switzerland, Belgium, the Netherlands and Luxembourg) allow medical practitioners to prescribe lethal drugs, subject to specific safeguards (compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011). | 1 |
train | 001-23057 | ENG | TUR | ADMISSIBILITY | 2,003 | KILDACI and OTHERS v. TURKEY | 4 | Inadmissible | Georg Ress | The applicants, Sefer Kıldacı, Ali Kıldacı and Mehmet Yankaç, are Turkish nationals, born in 1943, 1945 and 1939 respectively, and they live in Istanbul. They are represented before the Court by Mr Koçak, a lawyer practising in İstanbul. The facts of the case, as submitted by the parties, may be summarised as follows. In 1992, the General Directorate of National Roads and Highways (Devlet Karayolları Genel Müdürlüğü), a state body responsible, inter alia, for motorway construction, expropriated three plots of land belonging to the applicants in İstanbul. A committee of experts assessed the value of these plots of land and this amount was paid to them when the expropriation took place. On 25 November 1997, following the applicants’ request for increased compensation, the Pendik Civil Court of General Jurisdiction awarded them an additional compensation of 8,436,250,000 Turkish liras (TRL) plus an interest at the statutory rate of 30 % per annum. On 10 March 1998 the Court of Cassation upheld the decision of the first-instance court. The due amount, which was 14,257,956,000 Turkish liras (TRL) including the interest, was paid to the applicants on 26 May 1998. Under Law no. 3095 of 4 December 1984 the rate of interest on overdue State debts was set at 30% per annum. As of 1 January 1998 the statutory rate of interest was increased to 50%. The statutory rate of interest was set at the compound interest rate, namely 60% as of 1 January 2000. A description of further relevant domestic law may be found in the Aka v. Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, §§ 17-25; Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, §§ 13-16. | 0 |
train | 001-101958 | ENG | BGR | CHAMBER | 2,010 | CASE OF IVAN ATANASOV v. BULGARIA | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Determination (civil));No violation of Article 13 - Right to an effective remedy | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 7. The applicant was born in 1959 and lives in the village of Elshitsa, in the Panagyurishte municipality, in a house owned by him and his former wife. His parents also live in that house. His daughter, from whose mother the applicant is divorced, stays with him every first and third weekend of the month and one month in the summer. The applicant's house is situated about one kilometre from the tailings pond (хвостохранилище) and the flotation plant (обогатителна фабрика) of a former copperore mine. The applicant cultivates agricultural land located about four kilometres from the pond. On 23 December 2008 the applicant's father donated to him more agricultural land in Elshitsa; the applicant did not specify its exact location. 8. The pond, whose surface area is 98.3 ha, was in operation until 1991. The mine continued to be worked until 1999. After decommissioning, measures for the conservation and reclamation of the pond were taken. In June 1994 a scheme, drawn up in March 1994, was subjected to an environmental impact assessment (“EIA”). The conclusion was positive. In December 1994 the EIA was submitted for public discussion by the inhabitants of Elshitsa and modified in line with their comments. The scheme was approved by the Interdepartmental Expert Council of the Ministry of Industry in October 1997 and began to be implemented in January 1999. It consisted in laying earth and soil and planting vegetation on the pond. Its implementation was stopped in April 1999. 9. In May 1999 Mr Marin Blagiev, operating as a sole trader under the business name “ET Marin Blagiev”, proposed to the Ministry of Industry a new solution for the reclamation of the tailings pond. It consisted in the temporary capping of the pond's surface and slopes with soil cement, to prevent the spreading of dust, and in the use of sludge from a waste-water treatment plant in Plovdiv for biological reclamation. 10. On 1 June 1999 the Pazardzhik Regional Inspectorate of Environment and Water gave a negative opinion on the new scheme. It expressed doubts as to the sustainability and the stability in acidic environments of the soil cement intended to be used for capping the pond. The proposed technology would provide a provisional solution for containing the dust spread from the pond, but would not lead to the pond's full reclamation. Moreover, ET Marin Blagiev had not specified the chemical composition of the sludge from the Plovdiv waste-water treatment plant. It appeared to contain heavy metals, as the plant treated not only domestic, but also industrial waste water. According to the relevant classifier, sludge resulting from the treatment of the latter was hazardous waste. 11. On 2 June 1999 Panagyurishte's mayor also expressed a negative opinion on the new scheme. He noted, among other things, that the previous scheme had been fully approved and had begun to be implemented. In addition, the composition of the sludge from the Plovdiv plant was unclear, as it treated not only domestic, but also industrial waste water. This meant that the sludge might contain heavy metals. 12. However, on 3 June 1999 the Ministry of Industry's Interdepartmental Expert Council approved ET Marin Blagiev's proposal and allowed him to submit a new scheme. 13. In a letter of 24 June 1999 to the Minister of Industry, the regional governor said that the new reclamation scheme was not technologically superior to the previous one and should not be approved. 14. On 1 July 1999 the Minister of Industry transferred the tailings pond from the assets of the State-owned company Panagyurski Mini EAD to those of a specially formed State-owned company, Eco Elshitsa EOOD. 15. On 27 August 1999 ET Marin Blagiev presented its scheme to the Ministry of Industry. At about the same time Panagyurski Mini EAD, which had been implementing the initial reclamation scheme (see paragraph 8 above), presented the Ministry of Industry with an update to the initial scheme. 16. The Ministry appointed a specialist board of experts to assess the two schemes. The board comprised experts from the Ministry of Industry, of Environment and Water, and from the Ministry of Finance, as well as from Panagyurski Mini EAD and ET Marin Blagiev. It held a meeting on 7 September 1999 to discuss the relative merits of the two schemes. It noted that both lacked checks on the stability of the pond. However, according to an expert's report, neither of them would impair the pond's stability. Both lacked climatological and hydrological descriptions of the area and data on the expected consolidation of the sludge after the reclamation had ended. The problems relating to the neutralisation of the acid water were partially addressed in ET Marin Blagiev's scheme and not addressed in Panagyurski Mini EAD's scheme. According to an expert's report, it was possible to use stabilised waste-water sludge from the Plovdiv treatment plant. The area around the pond did not have enough humus for the biological reclamation envisaged by Panagyurski Mini EAD's scheme; it would thus be necessary to enrich the existing soil artificially. ET Marin Blagiev's scheme envisaged finishing the reclamation in eighteen months and resolving the dust-spread problem even before that. Panagyurski Mini EAD's scheme also had an eighteenmonth timeline, but it was unrealistic. ET Marin Blagiev's scheme provided for the restoration of the productive qualities of 19.2 ha of polluted soil outside the tailings pond and its use for the production of specialised grass. According to accounts submitted by the two firms, ET Marin Blagiev's scheme would cost 5,139,356 Bulgarian levs (BGN) and Panagyurski Mini EAD's scheme BGN 5,878,945. On that basis, the board recommended that the Ministry of Industry's Interdepartmental Expert Council approve ET Marin Blagiev's scheme. Two experts representing Panagyurski Mini EAD disagreed, saying that this scheme did not meet various regulatory requirements. In particular, wastewater sludge was not appropriate for reclamation; humus was much better suited for that task. It was also unclear whether the use of sludge would yield stable and safe results. According to the relevant classifier, the sludge from the Plovdiv plant was hazardous waste, because it came not only from domestic but also from industrial waste water. The documents relating to the scheme did not specify the exact toxic-substance content of the sludge. Lastly, the scheme's scope and potential effects on the environment warranted an EIA. The updated initial scheme suffered from none of these drawbacks, but, on the contrary, would provide a sustainable solution. 17. The Ministry of Industry's Interdepartmental Expert Council, comprising representatives from several ministries, considered the two schemes on 9 September 1999. It examined the findings of the specialist board of experts, as well as the opinions of the Pazardzhik Regional Inspectorate of Environment and Water, of Panagyurishte's mayor, and of the regional governor. It also heard Mr Blagiev's explanations. Following a discussion, which touched upon, among other matters, the alleged heavymetal content in the sludge from the Plovdiv plant, the Council unanimously resolved to approve ET Marin Blagiev's scheme. The resolution was later approved by the Minister for Industry. 18. In a newspaper interview published on 21 September 1999 the Minister for the Environment said that the new reclamation scheme was controversial and that she intended to challenge it. In her view, a fresh method of reclamation was to be sought, if need be with the help of university scientists. 19. The new scheme began to be implemented in October 1999. Eco Elshitsa EOOD was the investor and ET Marin Blagiev the contractor. 20. On 13 January 2000 the Pazardzhik Regional Inspectorate of Environment and Water found that the company carrying sludge from the Plovdiv plant to the pond was doing so without the licence required under section 12(1) the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (see paragraph 52 below), which corresponded to an administrative offence. On 29 March 2000 it fined the company. 21. Consequently, ET Marin Blagiev applied for such a licence, which was granted by the Minister for the Environment and Water on 22 February 2000. In her decision the Minister allowed ET Marin Blagiev to process up to four hundred tonnes of domestic wastewater sludge a day. In particular, it could carry stabilised sludge from the Plovdiv treatment plant to the pond, store it in pits or other openair containers and use it for fertilising soils or improving the environment. The sludge was to be carried in lorries, with between six and eleven runs from the Plovdiv plant to the pond per day. It was to be laid on the pond in keeping with the technology approved by the Interdepartmental District Council and with certain other precautionary measures. The laying of sludge had to be finished before 30 December 2001. In the meantime, ET Marin Blagiev had to present quarterly chemical analyses of the sludge to the Ministry of Environment and the Pazardzhik Regional Inspectorate of Environment and Water. 22. After finding out about the above licence, on 21 December 2000 the applicant applied to the Supreme Administrative Court (Върховен административен съд) for judicial review of the Minister's decision to grant it. He started by contending that he had a sufficient legal interest to contest the decision, because it impacted on his right under Article 55 of the Constitution (see paragraph 47 in limine below) to live in a “healthy and favourable environment corresponding to the established standards and norms”. He pointed out that he lived in Elshitsa, close to the place where the licence allowed sludge to be laid, and that the sludge could have adverse effects on the environment and human health. He also referred to Article 120 § 2 of the Constitution (see paragraph 47 in fine below). He further argued that the decision was null and void, as its implementation was impossible. The decision allowed ET Marin Blagiev to carry and process domestic waste-water sludge. However, this could not be done, because the waste water treated in the Plovdiv plant came from both domestic and industrial sources. It was unfeasible to separate the domestic from the industrial sludge and for this reason it was impossible to carry and process solely domestic sludge. The applicant further argued that the Minister's decision unlawfully classified the sludge as industrial waste, as under the relevant rules it was hazardous waste; this was also evident from various analyses. Furthermore, the Minister had taken the decision in breach of the rules of procedure, as no EIA had been drawn up. 23. In his application the applicant also requested the court to stay, as an interim measure, the enforcement of the impugned decision, as failure to do so could frustrate the purpose of the proceedings and cause irreparable harm to the environment, thus infringing the right of Elshitsa's inhabitants to a safe and healthy environment. As the court did not rule on that request, on 21 February 2001 the applicant renewed it. He argued that the continuing implementation of the decision could lead to irreparable harm for the environment, as the spreading of sludge was still going on at a regular pace. 24. On 21 March 2001 (опр. № 1826 от 21 март 2001 г. по адм. д. № 732/2001, ВАС, ІІ отд.) a threemember panel of the Supreme Administrative Court declared the application inadmissible. It found that the applicant had not been party to the administrative proceedings and therefore had no standing to seek review of the Minister's decision. His interests could not be adversely affected by the decision, but solely by the potential unlawful actions of those whom the decision authorised to carry and process waste. 25. On an appeal by the applicant, on 14 June 2001 a fivemember panel of the Supreme Administrative Court quashed the threemember panel's ruling and remitted the case for an examination on the merits (опр. № 4333 от 14 юни 2001 г. по адм. д. № 3777/2001, ВАС, петчленен състав). It held that in view of the aim of the environmental protection legislation – to prevent or at least reduce the adverse effects of waste on the environment and human health – all individuals living in an area at risk of pollution due to wastetreatment operations could be considered as interested parties. The applicant, as well as all persons living near the tailings pond, had an interest in preventing activities, such as those allowed by the impugned ministerial decision, which could pollute their environment and thus possibly impair their health. 26. On 28 August 2001 the applicant reminded the court once more of his request for a stay of execution of the decision. On 18 September 2001 the three-member panel turned down the request, saying that the materials in the file did not point to any danger for the applicant's interests. 27. A hearing listed for 16 October 2001 did not take place, as ET Marin Blagiev had not been properly summoned. It took place on 15 January 2002. The court heard the parties' arguments. A public prosecutor participating in the proceedings ex officio submitted that the application should be allowed. 28. In a decision of 23 January 2002 (опр. № 605 от 23 януари 2002 г. по адм. дело № 4993/2001, ВАС, ІІ отд.) the three-member panel discontinued the proceedings, holding that the case had become devoid of object as the licence granted to ET Marin Blagiev had expired on 30 December 2001. 29. The applicant appealed, arguing, among other things, that he had a continuing legal interest in seeking judicial review of the decision, because it had allowed waste disposal near his home, which could lead to problems for his health. The annulment of the decision was in addition a prerequisite for successfully prosecuting a claim in respect of the harm occasioned by the unlawful waste disposal. The decision's effects had not ended on 30 December 2001, as the negative results of the activities which it had made possible could persist for years to come. 30. On 24 September 2002 a fivemember panel of the Supreme Administrative Court upheld the discontinuance (опр. № 8432 от 24 септември 2002 г. по адм. д. № 7232/2002, ВАС, петчленен състав). It noted that the subsistence of a legal interest in seeking the annulment of an administrative decision was mandatory throughout the proceedings. The threemember panel had had regard to a fresh development – the expiry of the licence – which had come to pass while the proceedings were pending. The allegation that the applicant had suffered damage at the time when the licence had still been in force was not sufficient to establish the existence of a continuing legal interest, as reparation for such damage could be sought in civil proceedings. 31. The new reclamation scheme drew widespread disapproval from Elshitsa's inhabitants. On 10 and 19 April 2000 Mr A.P., member of the Panagyurishte Municipal Council, sent letters to the Ministry of Health and to the National Centre for Hygiene, Medical Ecology and Nutrition (a subdivision of the Ministry of Health). He asked them to give their expert opinion on the question whether the implementation of the scheme could put at risk the health of the people living near the pond. 32. The Centre replied on 25 April 2000. It said that there was a risk of heavy-metal contamination impacting on the population's health within a tenkilometre perimeter around the pond. The reclamation scheme lacked a suitable system for monitoring the underground water, where the migration of such metals could be expected, as the polymer cover was not stable in the long term. According to an expert in the Centre's toxicology laboratory, the heavy-metal content of the sludge spread on the pond was above the regulatory maximum, as shown by the chemical analysis of samples. The high levels of copper, zinc, cadmium, nickel, cobalt and chrome led to a pollution risk and a risk to the population's health. So did the presence in the sludge of lead and manganese. Those metals could have a negative impact on the nerve, respiratory and cardiovascular systems, the kidneys, the liver and the production of blood. Some of them were allergens, mutagens and carcinogens. The scheme's implementation would thus lead to a risk of dust from the sludge spreading in the atmosphere. There was also a risk that those metals would migrate through the surface and underground water, because of the acid pH of the water in the pond. The methodology for reclaiming old polluted areas classified the area situated ten to twenty kilometres from the source of the pollution as being at risk. 33. Having received the Centre's opinion, on 17 May 2000 Mr A.P. asked the Chief Sanitary Inspector to stop the operation of the site. He did not receive a reply. Mr A.P. also alerted the mayor of Panagyurishte. 34. On 29 May 2000 Panagyurishte's mayor appointed a commission to take samples from the place where the sludge was being spread and to submit it to a laboratory for an analysis of its heavy-metal content. Such samples were taken and sent to the National Centre for Hygiene, Medical Ecology and Nutrition. In a letter of 6 June 2000, accompanied by the expert opinion of a researcher in its toxicology laboratory, the Centre said that the lead, cadmium, copper, zinc, chrome and nickel content of the sample was well above the maximum permitted levels. Copper and zinc had a negative effect on agricultural crops and livestock. Lead, cadmium, chrome and nickel were systematically toxic for mammals and humans: they could harm the peripheral and central nervous systems, the production of blood, the liver and the kidneys. Those metals also had mutagenic and carcinogenic effects. In addition, chrome, cadmium and nickel were strong allergens. The underlying soil cement cover would provide some protection for the underground water in the region, but it was unclear how it would prevent the migration of heavy metals to the surface water. 35. On 12 June 2000 Panagyurishte's mayor and the regional governor wrote to the Deputy Prime Minister. They urged him to halt the scheme's implementation and noted that its continuation could lead to civil unrest in Elshitsa. Apparently no reply was received. 36. On 13 December 2001 the Ministry of Environment and Water granted Eco Elshitsa EOOD a permit to discharge waste water, setting certain limits on the content of heavy metals and other toxic substances in it, and requiring the company to report to the competent authorities on a monthly basis. 37. On 25 September 2002 the works on the pond were accepted by the authorities. 38. On 11 August 2004 Elshitsa's mayor asked the environmental inspection authorities in Pazardzhik to provide him with information about Eco Elshitsa EOOD's monthly selfmonitoring reports. On 8 September 2004 those authorities replied that they did not have such reports on file and that they were pressuring the company to comply with its reporting obligations. 39. On 9 January 2001, as a result of pressure from inhabitants of Elshitsa, the Minister for the Environment and Water ordered Eco Elshitsa EOOD to commission an EIA. In an additional decision of 1 March 2001 she specified that the EIA was to be ready by 31 March 2001. 40. As a result of a hunger strike by three members of a public committee opposed to the scheme and of a visit by the Minister for the Environment and Water to Elshitsa, on 10 November 2001 the Pazardzhik Regional Inspectorate of Environment and Water, noting that no EIA had been drawn up, ordered that the implementation of the scheme be stopped pending completion of the assessment. However, by that time about 97 ha of the 98.3 ha of the pond had been covered with sludge. It seems that the total amount deposited was fortyeight thousand cubic metres. 41. The EIA was ready in March or April 2002. It was submitted for a public discussion, at which three experts from the University of Sofia's faculty of geology and geography expressed their misgivings about the scheme. 42. On 4 July 2002 the Minister for the Environment and Water decided not to accept the EIA and sent it back for revision. She noted some serious omissions in its estimation of the health risk to the population arising from the reclamation scheme, the lack of information about the hazardous substances involved in the scheme, and the fact that the team which had drawn it up did not include an expert on the health and hygienerelated aspects of the environment. The Minister instructed the experts to revise the EIA and, in particular, to make a comparative study of the existing analyses and make an additional chemical analysis of the sludge laid on the pond. It was to be specifically checked for heavy metals and mercury content. The taking of samples for that analysis had to be done in the presence of the persons concerned. The experts were also to indicate the tailings' permeability, before and after the pond's capping with soil cement, as well as the permeability of the underlying rocks and the stability and the permeability of the soil cement after eighteen months of use. The revised EIA was to analyse all aspects of the scheme with reference to their effect on the health of the inhabitants of the villages surrounding the pond, and to propose concrete measures to tackle the problem. The analysis had to focus specifically on the penetration of heavy metals in the food chain. 43. In October 2003 Eco Elshitsa EOOD and the company which it had hired to draw up the EIA submitted additional documents to the Ministry. In a letter of 17 October 2003 the Minister said that those documents did not contain the information requested in her decision of 4 July 2002. It was thus impossible to draw any reliable conclusions as to the effect of the reclamation scheme on the people and the environment. However, under the regulations in force, it was not necessary to pursue the matter further and finalise the EIA. As the works on the site had already been completed, it was sufficient for Eco Elshitsa EOOD to produce a self-monitoring report on the scheme's impact. 44. Following pressure from Elshitsa's inhabitants and the local authorities, on 6 April 2004 the Minister of Health ordered the National Hygiene and Ecology Centre to carry out an assessment of the environment and the impact of the reclamation scheme on the local population's health. In a letter of 14 June 2004 the Centre informed the Ministry that its experts were ready to complete the task, but that it could come up with only twenty per cent of the necessary funding, amounting to BGN 8,000. In 2007, 2008 and February 2009 the applicant asked the municipality of Panagyurishte to cover the remaining eighty per cent of the amount, but the municipality made no provision for such an outlay in its budget. At the time of the latest information from the applicant on that point (29 January 2010) the money had not been found and the assessment had not been completed. 45. The first selfmonitoring report by Eco Elshitsa EOOD was drawn up in November 2007 and covered the period between November 2006 and November 2007. It gave an account of, among other things, the heavymetal content of water coming out of the pond and of grass near it. These measurements were based on two water samples and five grass samples. One of the water samples did not show a heavymetal content above the regulatory maximum levels, whereas the other did, leading the report to conclude that the pond's drainage water was heavily polluted. According to the report, the polluting content of the grass samples was below the regulatory maximum level, but the applicant submitted that its authors had used the wrong comparators, using the regulatory maximum levels for soil, not grass, which were considerably lower. The report said that the pond should continue to be monitored, but at a decreasing pace, with sampletaking once a year for grass and twice a year for water. Further reporting was envisaged in 2010. 46. In its report on the state of the environment in 1997 the Ministry of Environment and Water noted, on page 98, that the Plovdiv waste water treatment plant had generated 45,601 tonnes of dangerous waste. In its annual report for 2004 the Environmental Protection Agency (Изпълнителна агенция по околната среда) noted, on page 4, that out of approximately 50,175 tonnes of sludge monitored by its Plovdiv branch, approximately 41.5 tonnes could be classified as dangerous. In its reports for 2006 and 2007 the Agency noted, on pages 9 and 9 respectively, that the chromium content of the sludge coming from the Plovdiv wastewater treatment plant was above the regulatory maximum. That sludge was therefore not appropriate for the reclamation and regeneration of agricultural land. 47. The relevant provisions of the 1991 Constitution read as follows: “The Republic of Bulgaria shall ensure the preservation and the reproduction of the environment, the conservation of the variety of living nature, and the reasonable utilisation of the country's natural and other resources.” “Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.” “1. The courts shall review the lawfulness of the administration's acts and decisions. 2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” 48. Under section 19(1) of the 1991 Environmental Protection Act (Закон за опазване на околната среда), repealed and replaced by the 2002 Environmental Protection Act, all activities of private individuals and entities and State bodies could be subjected to an EIA. Section 20(1)(1) of the 1991 Act, superseded by section 92(1) of the 2002 Act, provided that an EIA was mandatory for all the schemes listed in a schedule to the Act. Those schemes included the dumping of industrial and domestic waste and of waste-water sludge (point 27.4 of the Schedule, as in force between 1997 and 2001). An EIA could be carried out in other cases as well, pursuant to a proposal made by those concerned to the competent authorities (section 20(3) of the 1991 Act, superseded by section 93 of the 2002 Act, which lays down more detailed rules in that domain). 49. The EIA was to be commissioned by the investor and carried out by independent experts having no connection with the scheme's planning and no vested interest in its completion (section 21(1) of the 1991 Act). The expenses were to be borne by the investor (section 23(2) of the 1991 Act). The final report was to be submitted to the competent authority, which had to organise a public discussion on it (sections 23(1) and 23a(1) of the 1991 Act). The public had to be notified of the discussion at least one month in advance, through the mass media or other appropriate channels (section 23a(2) of the 1991 Act). The authority was to decide on the scheme's feasibility not later than three months (after an amendment in 2001, one month) after the discussion (section 23b(1) of the 1991 Act). The decision was to be notified to the investor and made public through the mass media or other appropriate channels (section 23b(2) of the 1991 Act). Those concerned could seek judicial review (section 23b(3) of the 1991 Act). Under section 23c of the 1991 Act, the authorities had to ban or halt schemes whose EIAs were negative or which had not been subjected to an EIA if one was mandatory. 50. Under section 29 of the 1991 Act, whose text has been reproduced in section 170 of the 2002 Act, everyone was bound to make good the damage which they had, through their own fault, caused to another by polluting or spoiling the environment. The amount of compensation could not be less than the money needed to repair the damage. Under section 30(1) of the 1991 Act, the text of which has been reproduced in section 171 of the 2002 Act, those who had suffered damage as described in section 29 could bring proceedings to enjoin the polluter to put an end to the breach and eliminate the pollution's effects. Section 30(2) provided that such proceedings could be brought by any individual, the municipal authorities and nonprofit associations. There is no reported caselaw under those provisions. 51. The 1992 Regulations on hygienic requirements for the protection of health in the urban environment (Наредба № 7 от 25 май 1992 г. за хигиенните изисквания за здравна защита на селищната среда), issued by the Minister of Health on 25 May 1992 and amended several times after that, lay down minimum permitted distances between urban areas and sources of pollution. Schedule No. 1 to the Regulations provides, in point 184, that tailings ponds used for depositing hazardous industrial waste for up to ten years must be situated farther than two kilometres from urban areas. Point 184a lays down the same requirement in respect of tailings ponds used for depositing nonhazardous industrial waste for more than ten years. Point 335 provides that non-hazardous waste periodically covered with soil must be stored more than three kilometres from urban areas. Point 335a lays down the same requirement in respect of hazardous waste which is intended to remain in the storage area for more than ten years. The Ministry of Health may authorise a reduction of those distances on the basis of an opinion by the local hygiene and epidemiology inspectorate and of an EIA (regulation 4(1)). If no EIA is required in respect of the installation in issue, before authorising a reduction the Ministry must obtain a comprehensive ecological expert's report containing a healthimpact assessment, drawn up by an independent expert (regulation 4(2)). 52. Under section 12(1) of the 1997 Limitation of the Adverse Impact of Waste on the Environment Act (Закон за ограничаване на вредното въздействие на отпадъците върху околната среда), superseded by section 12(1)(1) of the 2003 Waste Management Act (Закон за управление на отпадъците), a licence was required for all activities relating to the collection, storage or decontamination of waste. The decision to grant such licence was subject to judicial review (section 50 of the 1997 Act, superseded by section 49 of the 2003 Act). 53. Section 37(2) of the 1997 Act provided that facilities and installations for the storage and decontamination of waste could be built only following a positive EIA. 54. Section 1(1) of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act, provides that the State is liable for the damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful administrative decisions may be claimed after the decisions concerned have been annulled in prior proceedings. The court examining the claim for compensation cannot enquire into the validity of a voidable decision; it may merely examine whether a decision is null and void. Section 8(2) provides that if another statute provides for a special avenue of redress, the Act does not apply. 55. The text of a number of international instruments and documents concerning the environment, including that of the 1998 United Nations Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (the Aarhus Convention, which Bulgaria signed on 25 June 1998 and ratified on 17 December 2003) may be found in the Court's judgment in the case of Tătar v. Romania (no. 67021/01, ECHR 2009... (extracts)). 56. On 4 November 1999 a standing committee acting on behalf of the Council of Europe's Parliamentary Assembly adopted Recommendation 1431 (1999), entitled “Future action to be taken by the Council of Europe in the field of environment protection”. Point 8 of the recommendation said that “[i]n the light of changing living conditions and growing recognition of the importance of environmental issues, ... the Convention could include the right to a healthy and viable environment as a basic human right”. It urged the Committee of Ministers to, among other things, “instruct the appropriate bodies within the Council of Europe to examine the feasibility of ... drafting an amendment or an additional protocol to the [Convention] concerning the right of individuals to a healthy and viable environment”. 57. On 27 June 2003 the Parliamentary Assembly adopted Recommendation 1614 (2003), entitled “Environment and human rights”. Point 3 of the recommendation stated that “in view of developments in international law on both the environment and human rights as well as in European caselaw, especially that of the [Court], the time has now come to consider legal ways in which the human rights protection system can contribute to the protection of the environment”. Point 8 referred to “the caselaw of the [Court] concerning States' positive obligations in the area of protection against environmental nuisances which are harmful or dangerous to health” and said that it “wishe[d] to encourage this process by adding provisions concerning the recognition of individual procedural rights, intended to enhance environmental protection, to the rights set out in the [Convention]”. It therefore recommended to the governments of the Member States to “ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the [Convention] and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection”. It also called upon the Committee of Ministers to “draw up an additional protocol to the [Convention] concerning the recognition of individual procedural rights intended to enhance environmental protection, as set out in the Aarhus Convention” and to “draw up, as an interim measure in preparation for the drafting of an additional protocol, a recommendation to member states setting out the ways in which the [Convention] provides individual protection against environmental degradation, proposing the adoption at national level of an individual right to participation in environmental decision making, and indicating a preference, in cases concerning the environment, for a broad interpretation of the right to an effective remedy guaranteed under Article 13”. | 0 |
train | 001-115177 | ENG | LTU | CHAMBER | 2,012 | CASE OF VENSKUTĖ v. LITHUANIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen | 5. The applicant was born in 1978 and lives in Vilnius. 6. On 23 May 2005 the State Border Guard Service (hereinafter “the SBGS” or “the Service”) informed a prosecutor that on 16 December 2004 an officer at the SBGS, G.B., acting together with the applicant, who had been driving the car, and Š.S., had committed a crime of fraud by simulating a car accident and later claiming payment from an insurance company. 7. The same day the prosecutor asked the SBGS to open a pre-trial investigation on suspicion of fraud, in accordance with Article 167 of the Code of Criminal Procedure (hereinafter “the CCP”) (see Relevant Domestic Law below). Later that day the SBGS opened the pre-trial investigation on the basis of Article 171 of the CCP. 8. On 25 May 2005, at about 10.30 a.m., two men, who introduced themselves as officers of the Service, went to the applicant’s workplace, the “Fortas” restaurant, in Vilnius city centre. From then on, the applicant’s and the Government’s versions of events differ. 9. The applicant stated that the two officers had asked her to accompany them and threatened to use restraining measures should she not comply. She had not been allowed to contact anyone by telephone, except for her supervisor. She had then been taken to the officers’ car and driven to the Vilnius headquarters of the Service. On arrival her handbag had been searched, her mobile telephone had been taken away and the officers had read her text messages. The officers had not returned the telephone to the applicant until 8 July 2005. Immediately after the search, the officers had started interrogating the applicant about the circumstances of the car accident of 16 December 2004. She had been threatened with loss of reputation, placement in a detention facility, conviction and loss of career opportunities, unless she gave them information necessary for the insurance fraud investigation. The officers had refused the applicant’s request for a lawyer. They had also dismissed her request that a record be made of her questioning, saying that it was for them to decide “what to write down and what not to”. Likewise, the officers refused to explain to the applicant what her procedural status was at that moment. 10. The Government did not dispute that the SBGS officers had gone to the applicant’s workplace at about 10.30 a.m. on 25 May 2005. However, the Government submitted that no force or threats had been used against the applicant; she had merely been invited to accompany the officers for questioning. 11. According to the report of the applicant’s provisional arrest, she was arrested at 3 p.m. the same day. Even though the arrest took place while the applicant was at the Vilnius headquarters of the Service, the arrest report specifies that she had been arrested “at Vilnius international airport” on suspicion of fraud. The report stated that it had been necessary to arrest the applicant because she might flee from the investigators or prosecutor, or commit further offences. The officers also made a record of the personal search of the applicant, which stated that the search had been conducted between 3.10 and 3.40 p.m. on 25 May 2005. Later that day the applicant was taken to a police detention facility; her sister had been informed of her arrest. 12. The same day at 3 p.m. the SBGS arrested Š.S. and questioned him, as a suspect, about the circumstances surrounding the car accident and the suspected insurance fraud. 13. On 26 May 2005 from 3.20 to 3.40 p.m. the SBGS tried to question G.B., as a suspect, about the car accident and insurance fraud, but G.B. refused to give any evidence. After further questioning as a suspect on 2 June, G.B. testified that the car had been driven by the applicant, but denied any involvement in the insurance fraud. 14. As it transpires from the report of the applicant’s interrogation, on 26 May 2005 from 4.15 to 5 p.m., the SBGS investigator questioned the applicant about the insurance fraud. At that time her procedural status was that of a suspect; her lawyer was present at the questioning. The applicant refused to testify. 15. The same day at 6. p.m. the SBGS investigator decided to release the applicant, because “there were no reasons to keep her under arrest”. He noted that the applicant “had been arrested on 25 May on the basis of Article 140 of the Code of Criminal Procedure”. 16. On 26 May 2005 the applicant’s lawyer complained to the Vilnius Regional Prosecutor’s Office that the previous day his client had been arrested by the SBGS officers in breach of Article 140 of the CCP. He also maintained that she “had been questioned before being granted the status of a suspect (nepareiškus jai įtarimo) and forced to testify”. The lawyer contended that the pre-trial investigation had not been within the SBGS’s competence and jurisdiction, as it was related to insurance fraud. 17. On 13 June 2005 the Vilnius Regional Prosecutor’s Office replied that the pre-trial investigation had been opened in accordance with the domestic law. The reply did not say that the decision could be appealed against. 18. On 16 June 2005 the applicant wrote to the Ombudsman, the Chief Inspector of the Ministry of the Interior, the Attorney General and the Director of the SBGS. She stated that on 25 May at about 10.30 a.m., two officers of the SBGS had gone to her workplace at the “Fortas” restaurant in Vilnius. She had been forced to leave with them, and had been taken to the SBGS’s Vilnius headquarters and questioned about the car accident. The applicant reiterated that the SBGS officers had refused to record her questioning, had not explained her rights to her, and had not allowed her to make telephone calls. No one had answered her question whether she could leave; nor had they explained what her procedural status was at that time. She had been threatened with conviction, placement in a detention facility, and the end of her career unless she agreed to confirm the SBGS’s account of the car accident. Relying on Article 5 of the Convention, the applicant argued that her right to liberty had been breached. She maintained that the SBGS officers had acted in an arbitrary fashion. 19. By a decision of 21 July 2005, the Vilnius Regional Prosecutor’s Office found no flaws or abuse of powers in the actions of the SBGS officers and refused to open a pre-trial investigation into their actions. The prosecutor noted that the applicant had been arrested on 25 May 2005 at “3 p.m.”, as stated in the provisional arrest report. The following day she had been served with notice of suspicion of the crime of fraud and had been questioned as a suspect from 4.15 to 5 p.m. Therefore the applicant’s allegation that she had been questioned without a record being drawn up was false. Lastly, the prosecutor held that it was only because of “a technical mistake” that the report of the applicant’s arrest had specified her place of arrest as Vilnius Airport. The decision stipulated that it could be appealed against to an investigating judge. The applicant did not appeal against the decision. 20. On 25 May and 16 June 2005, the applicant lodged complaints with the Parliamentary Ombudsman. 21. On 5 August 2005 the Ombudsman found the applicant’s complaint valid. He noted that under Article 182 § 2 of the CCP investigating officers had the possibility to call a person for questioning orally, without notifying him about it in writing. This could be done, for example, by a telephone call or via family members of the person invited. He stressed that the provision simply referred to the “transfer of a message (informacijos perdavimas)” that a person ought to come for questioning. However, in the applicant’s case, on 25 May 2005 at about 10 or 11 a.m., the SBGS officers had not merely conveyed a message to her, but had in fact taken her in [by force, atvesdino] or even arrested her. On this point the Ombudsman also referred to the written reply by the Head of the SBGS Vilnius Office to the effect that the officers who went to the applicant’s workplace had demanded (buvo pareikalauta) that she go with them so that she could not contact the other suspects and thereby obstruct the investigation. 22. In the same written reply to the Ombudsman, the Head of the SBGS Vilnius Office also said that once the applicant had been taken to their headquarters, she had told the officers that she knew nothing about the car accident; accordingly, she had not been questioned as a witness. For the Ombudsman, however, the SBGS officers’ actions when trying to find out whether the applicant knew anything about the crime they were investigating had been nothing less than questioning. Such questioning had to be recorded in writing, in accordance with Article 183 of the CCP. Given that no record of questioning had been drawn up until 3 p.m., the Ombudsman considered that, until that time, the applicant had been held at the SBGS headquarters without a reason, and thus unlawfully. 23. The Ombudsman further noted that as of 3 p.m. the applicant had been arrested on suspicion of having committed fraud and on the ground that she might attempt to abscond from the investigation. No sufficiently strong evidence had been submitted to him to justify the applicant’s arrest. Furthermore, the prosecutor in charge of the investigation had not subsequently asked a court to sanction the applicant’s detention. Lastly, for the Ombudsman, there was no reasonable explanation as to why the fraud relating to the car accident should have been investigated by the SBGS officers. 24. Whilst conceding that it was not within his competence to assess the validity of the actions taken during the pre-trial investigation, on the basis of above considerations the Ombudsman concluded that the conduct of the SBGS investigators had had the sole aim of exerting psychological pressure on the applicant. 25. The Ombudsman also considered that the actions of the SBGS officers had given rise to a suspicion that they had committed a crime. As a result, he notified the Office of the Prosecutor General about the matter. The Minister of the Interior was also to be informed about the episode so that such incidents could be avoided in future. 26. In their reply of 23 September 2005 to a complaint lodged by the applicant on 16 June 2005, the SBGS noted that the applicant’s allegations about abuse of power by its officers when arresting her had already been dismissed by the prosecution. The officers who had taken part in the applicant’s arrest and their superiors had nevertheless been urged to take into consideration the Ombudsman’s conclusions and to ensure that similar incidents were not repeated in future. 27. By a decision of 25 November 2005, criminal proceedings against G.B. for insurance fraud were discontinued because of his death. For the same reason, proceedings against G.B. in respect of other charges pending against him (for forgery of an official document and smuggling people over the State border) were also terminated. 28. By a ruling of 5 January 2006, the pre-trial investigation into the charges of fraud by the applicant was discontinued. The prosecutor noted that the applicant had been notified that she was suspected of the crime on 26 May 2005. However, she had refused to testify on those charges. Neither Š.S. nor G.B. had confirmed the applicant’s involvement in the crime. As the applicant and G.B. had been friends, it could be only assumed that she had known about the fraud. Yet, this mere assumption was not sufficient evidence to prove her guilt. 29. On 11 July 2006 the Vilnius City First District Court found that Š.S. had committed fraud by simulating a car accident on 16 December 2004. However, the court relieved Š.S. of criminal liability as he had fully acknowledged his guilt and settled with the insurance company. 30. The applicant instituted civil proceedings for the damage sustained as a result of her allegedly unlawful arrest and questioning. She argued that the SBGS officers had exceeded their powers, because it was not within their competence to investigate crimes concerning road accidents. The applicant maintained that by being arrested at her workplace she had been humiliated in front of her colleagues and her reputation had been tarnished. Her arrest had been made public in the newspapers and on television. Her family and friends had learned about it, which had affected her relationship with them. The applicant maintained that on 25 May 2005 she had been interrogated at the SBGS Vilnius headquarters and forced to incriminate herself. No lawyer had been present, her rights had not been explained to her and she had not been allowed to make a telephone call. She complained that her rights under Article 5 of the Convention had been violated and claimed 4,350 Lithuanian litai (LTL) for pecuniary damage, LTL 100,000 for non-pecuniary damage and LTL 2,000 for litigation costs. 31. At the Vilnius Regional Court hearing on 16 November 2006, the applicant’s employer, the manager of the Fortas restaurant, testified that on 25 May he had received a telephone call from her. The applicant had explained that she had been arrested because of a car accident. He said that there were “such stereotypes in society that after someone has been arrested, others regard them with considerable suspicion”. Two waitresses who had been working with the applicant the day “when the applicant was arrested” testified that “the applicant was taken away quickly”, the officers “showed identification of some kind” and “demanded that the applicant went with them”, one waitress had seen “how the officers took the applicant with them”. The applicant’s colleagues also testified that the events had surprised them, and, although for that day they had remained without a supervisor, “there was no panic among the colleagues, but they asked each other what had happened. Everyone was interested to know what had happened”. The applicant’s lawyer maintained that his client had been taken from her workplace by force. He also argued that such actions in front of the applicant’s colleagues had stained her reputation. The applicant had left her job four months later. 32. On 30 November 2006 the Vilnius Regional Court dismissed the applicant’s claims. It found that the applicant had been suspected of having committed fraud and arrested for fear that she would flee from justice or commit new crimes. The SBGS officers had jurisdiction in the applicant’s case on the basis of the prosecutor’s decision of 23 May 2005. The court also referred to the Court’s judgment in Labita v. Italy ([GC], no. 26772/95, ECHR 2000-IV) to the effect that the fact that the applicant’s case had not gone to trial at a later stage did not mean that her arrest during the criminal investigation had been unlawful as such. The prosecutor’s decision to discontinue the pre-trial investigation in respect of the applicant did not mean that the investigative measures had been unlawful, since the pre-trial investigation had been discontinued because of lack of evidence. 33. The first-instance court noted that reports of the applicant’s arrest and questioning as a suspect had been made “after the applicant’s arrest”, although the court did not specify the exact time when the arrest had taken place. Moreover, as the applicant had conceded at the hearing, “on the day of her arrest” she had been allowed to have a lawyer. Lastly, the court noted that the applicant’s claims about her arbitrary arrest and questioning had been dismissed by the prosecutor and the SBGS on 13 June and 21 July 2005 respectively. 34. The applicant appealed, reiterating her complaint about abuse of powers by the SBGS. In the applicant’s view, it was not logical to have her arrested half a year after the car accident. The reason given to justify her arrest and detention – that she might hide from the investigators – had been even more preposterous given that there had been no evidence that she intended to flee. She invoked Article 5 of the Convention. 35. At the Court of Appeal hearing of 8 May 2007 the applicant’s lawyer argued that his client had been arrested at her workplace and detained for two days, partly in the SBGS’s Vilnius headquarters. She had been pressured to give evidence against G.B. The SBGS officers had acted outside their jurisdiction. The representatives of the State, which was the defendant in the civil proceedings for damages, maintained that the SBGS did have jurisdiction to investigate the crime of insurance fraud. The applicant had been arrested “on 25 May” and charged with fraud “on 26 May”. Above all, they stressed that the applicant had been merely “invited” to accompany the SBGS officers when they had arrived at her workplace. No incidents took place at the “Fortas” restaurant and the applicant had accompanied the officers calmly. 36. By a ruling of 22 May 2007 the Court of Appeal concurred with the lower court’s conclusion that the prosecutor’s decision to discontinue criminal proceedings in respect of the applicant did not mean that her arrest had been unlawful as such. Moreover, the proceedings against the applicant had been discontinued because of lack of evidence and not for reasons of rehabilitation. The appellate court noted that the applicant’s complaints that the SBGS officers had abused their powers had been dismissed by the prosecutor. That being so, the court nevertheless emphasised that it had competence to hear the applicant’s civil claim for damages, even though she had not appealed against the prosecutor’s decision to drop the criminal charges against the officers. On this point it referred to the Supreme Court’s ruling in civil case no. 3K-7-183/2006 (see paragraph 50 below). 37. The Court of Appeal also held that “on 25 May 2005 the applicant had been arrested at 3 p.m.” According to the court, the applicant had not been arrested at her workplace; the officers had merely “invited” her to go with them for questioning, in accordance with Article 182 § 2 of the Code of Criminal Procedure. There was no evidence in the case file that by inviting the applicant for questioning in the manner regulated by the above provision, the SBGS officers had breached the law. For the court, “the fact that before arresting her, notifying her of the charges and questioning her as a suspect [all at 3 p.m.], the officers had discussed with her the circumstances relating to a pre-trial investigation, without making a record of that conversation, did not disclose any unlawfulness, because a conversation [between the applicant and the officers] and questioning were two separate notions”. Accordingly, the appellate court dismissed the applicant’s civil claim, which she had based on Article 6.272 of the Civil Code and Article 5 of the Convention. 38. The applicant lodged three appeals on points of law, which, on 18 July and 13 and 24 August 2007, the Supreme Court refused to examine as raising only questions of fact and thus giving no grounds for cassation. 39. Article 20 of the Constitution of the Republic of Lithuania provides that the freedom of a human being is inviolable. No one may be arbitrarily detained or arrested. No one may be deprived of his freedom, except on grounds and according to procedures established by law. A person detained in flagrante delicto must be brought before a court within 48 hours for the purpose of obtaining a decision, in the presence of the detainee, on the validity of the detention. If the court does not decide that the detainee should be arrested, he or she will be released immediately. 40. In an opinion of 24 January 1995, the Constitutional Court held that Article 5 of the Convention was in compliance with Article 20 of the Lithuanian Constitution. 41. Article 31 of the Constitution provides that a person suspected of committing a crime will be guaranteed, from the moment of his or her detention or first questioning, the right to defend himself and the right to a lawyer. 42. Article 182 of the Criminal Code provides for criminal liability for fraud. The offence is punishable by community service, a fine, restriction of liberty, arrest, or imprisonment for a term of up to three years. A pre-trial investigation of the crime of fraud may be started only on the basis of a complaint by a victim or by a prosecutor’s order (Article 167 of the Code of Criminal Procedure). 43. The Code of Criminal Procedure provides that a witness is any person who has knowledge about circumstances relevant to a criminal case (Article 78). A witness has the right to have an audio or video recording made of his testimony. He has the right to read the record of his testimony, make corrections and write his own testimony (Article 81 §§ 2 and 4). Anyone called as a witness must testify before the pre-trial investigation officer, failing which he may be fined or arrested (Articles 83 and 167). 44. A prosecutor or an investigator may provisionally arrest a person caught in flagrante delicto. Provisional arrest is also possible if there is a reasonable assumption that the person may obstruct the course of justice by influencing other suspects or commit further offences. Provisional arrest may last up to forty-eight hours without the authorisation of a judge (Articles 122 and 140). 45. The Code of Criminal Procedure also provides that any investigative measure, such as the questioning of a witness or suspect, must be recorded. The measure may be documented by audio or video recording or by other means. The record must be drawn up while the investigative measure is being taken (tyrimo veiksmo metu) or immediately thereafter. The record must state the place and time of the measure and the persons present. The investigating officer and all those present must sign the record. If the person in respect of whom the measure was taken refuses to sign the record, this must also be noted in the record (Article 179 of the Code). 46. Concerning the way in which a person may be called for questioning, the Code of Criminal Procedure reads as follows: “1. A person shall be called for questioning by summons. The summons shall indicate: the person to be summoned and for what purpose, the place and to whom he is being summoned, the date and time when he has to appear, and the consequences of failure to appear, as provided for in Article 163 of the Code. 2. A person may also be summoned for questioning by telephone or in any other way. In such cases, coercive procedural measures provided for in Article 163 of this Code may not be taken for failure to appear.” 47. The Code then defines the rules for questioning witnesses and suspects. Article 183 of the Code provides that before questioning a witness, an investigator must explain his rights to him under Articles 81 and 83 of the Code, as well as liability for false testimony. The witness confirms that he has understood by signing the record. The investigator then asks the witness to tell everything he knows about the case. Lastly, the witness’s testimony is recorded in accordance with Article 179 of the Code (see above). Before questioning a suspect, an investigator must tell him what crime he is suspected of and explain his rights to him (Article 187). The suspect is then asked whether he confesses and is offered the opportunity to testify about the circumstances of the crime. As in the case of witnesses, his questioning is recorded in accordance with the requirements of Article 179 of the Code. 48. The Law on the State Border Guard Service provides that when exercising the pre-trial investigation functions assigned to it, the Service operates in the entire territory of the State (Article 2 § 6). Upon receiving information that a crime may have taken place, a prosecutor decides which pre-trial investigation institution is competent to carry out a particular investigation, and assigns the case to it. Afterwards, the designated institution may take all the investigative measures provided for by the Code of Criminal Procedure (Articles 171 and 172 of that Code). 49. As regards civil liability for damages, Article 6.272 § 1 of the Civil Code provides that damage caused as a result of unlawful arrest as a measure of oppression, from unlawful detention, or the application of unlawful procedural measures of enforcement, will be compensated fully by the State, irrespective of whether the officials involved in the preliminary investigation or prosecution were at fault. Article 6.272 § 3 stipulates that in addition to compensation for pecuniary damage, the aggrieved person is entitled to compensation for non-pecuniary damage. 50. On 7 June 2006 the Supreme Court ruled that Article 6.272 § 1 was a directly applicable legal norm. A court of civil jurisdiction could rely on it irrespective of whether the procedural measures which had allegedly caused damage to the plaintiff had been challenged in other [criminal] proceedings. Furthermore, even if in criminal proceedings it had been established that the measures taken by the pre-trial investigators had been lawful, a civil court was free to find that those measures had caused damage to the claimant if all the circumstances examined in the civil proceedings so proved (ruling in civil case no. 3K-7-183/2006). 51. Concerning civil liability and redress, the Supreme Court, in a decision of 21 December 2007 in civil case no. 3K-3-506, held as follows: “When deciding the question of redress within the meaning of Article 6.272 of the Civil Code, ... the parties must prove all the circumstances by which they justify their claims, except where the claims are based on circumstances that [do not have to be proven]. These circumstances are listed in Article 182 of the Code of Civil Procedure. The Supreme Court has held that facts established by the decisions of the pre-trial investigation institutions (prosecutors), contrary to those established by a court judgment or decision, are not binding (prejudiciniai) within the meaning of Article 182 §§ 2 and 3 of the Code of Civil Procedure ... Therefore, according to the statutory regulations and the case-law of the courts, the court deciding questions concerning the redress provided for by Article 6.272 of the Civil Code, where the claim for redress has been lodged regarding a remand measure unlawfully imposed by a pre-trial investigation officer, may justify its findings with any factual data, on the basis of which it shall establish the circumstances substantiating the claims of the parties and other circumstances relevant for the resolution of the case...” | 1 |
train | 001-69398 | ENG | IRL | CHAMBER | 2,005 | CASE OF INDEPENDENT NEWS AND MEDIA AND INDEPENDENT NEWSPAPERS IRELAND LIMITED v. IRELAND | 1 | No violation of Art. 10 | Georg Ress;Mark Villiger | 9. The applicants are Irish registered companies. The second applicant publishes newspapers including the Sunday Independent and is a wholly owned subsidiary of the first applicant (formerly known as Independent Newspapers plc). 10. The case concerns an article published in the Sunday Independent, a newspaper with the biggest circulation of any Sunday newspaper and which sold in the region of 250,000 copies at the relevant time. 11. On 13 December 1992 an article was published in the newspaper written by a well-known journalist and entitled “Throwing good money at jobs is dishonest”. The article commented, inter alia, on a recently discovered letter (dated September 1986) to the Central Committee of the Communist Party of the Soviet Union. The letter had been signed by two persons one of whom was Mr de Rossa, a very well-known politician. The letter referred to “special activities” that had previously met shortfalls in the funding of the Worker’s Party, a political party of which Mr de Rossa had been leader. At the time of publication, Mr de Rossa was leader of another political party (the Democratic Left), he was a member of parliament and he was engaged in post-election negotiations about his party’s participation in government. 12. The relevant portion of the article stated that: “Irish society is divided. As the political parties manoeuvre to try to form a Government a clear picture has emerged, revealing the nature of our differences. On one side of the argument are those who would find the idea of Democratic Left in cabinet acceptable. These people are prepared to ignore Democratic Left leader Proinsias de Rossa’s reference to the ‘special activities’ which served to fund the Workers Party in the very recent past. The ‘special activities’ concerned were criminal. Among the crimes committed were armed robberies and forgery of currency. The people engaged in this business occupied that twilight world where the line blurs between those who are common criminals and others of that ilk who would claim to be engaged in political activity. This world is inhabited by myriad groups, some dealing in drugs, prostitution, protection rackets, crimes of which the weakest members of society are invariably the victims. It is therefore, ironic, wickedly so, that a political party claiming to ‘care’ for the workers should accept funding from ‘special activities’ of a particularly nasty kind. There is no doubt that elements of Proinsias de Rossa ‘s Workers Party were involved in ‘special activities’. What remains unproven is whether de Rossa knew about the source of his party’s funds. There is evidence, strengthened by revelations in the Irish Times this week, that de Rossa was aware of what was going on. If one is to allow him the benefit of the doubt, and why not, one must nevertheless have some misgivings about those with whom he so recently associated. Justice demands that we welcome Democratic Left’s recent conversion to decency and indeed, acknowledge that their Dáil deputies are exemplary in the conduct of the work they engage in on behalf of their constituents. Still, questions remain unanswered about the Workers Party’s ‘special activities’ phase, not to mention their willingness to embrace the Soviet Communist party long after the world knew about the brutal oppression that this and other Communist regimes visited on workers, intellectuals and others who would think and speak freely. Proinsias de Rossa’s political friends in the Soviet Union were no better than gangsters. The Communists ran labour camps. They were anti-Semitic. Men like Andrei Sakharov and Vaclav Havel were persecuted. Citizens who attempted to flee this terror were murdered. In Berlin, the bodies left to rot in no man’s land between tyranny and liberty. Is it really necessary to remind ourselves of those ‘special activities’?” 13. In 1993 Mr de Rossa initiated a libel action (High Court) against the first applicant. The first trial lasted eight days: the jury was discharged (following the publication of an article by the first applicant). The second trial lasted fifteen days: the jury failed to reach a verdict. 14. The third trial lasted eleven days and ended on 31 July 1997. 15. In his directions to the jury on damages, the trial judge stated: “... damages are meant to compensate a person for a wrong. ... The only remedy available to a person who says he has been wronged in a newspaper is damages. Damages are meant to put a person, in so far as money can do it, in the position that he or she would have been if the wrong had not taken place. That is the enterprise you are engaged in, in relation to damages.” 16. He then referred to Mr Justice O’Flaherty’s judgment in an unnamed case (which was, in fact, Dawson and Dawson v. Irish Brokers Association, Supreme Court judgment of 27 February 1997, unreported): “ ... in a recent case, Mr. Justice O’Flaherty of the Supreme Court said, that the approach in cases of this kind should be no different from any other type of proceedings. The jury should be told that their first duty is to try to do essential justice between the parties. They are entitled to award damages for loss of reputation as well as for the hurt, anxiety, trouble and bother to which the Plaintiff has been put.” 17. He went on to quote with approval Mr Justice Henchy’s judgment in another unnamed case (which was Barrett v. Independent Newspapers Ltd [1986] I.R. 13) as follows: “It is the duty of the Judge to direct the Jury that the damages must be confined to such sum of money as would fairly and reasonably compensate the Plaintiff for his injured feelings, and for any diminution in his standing among right thinking people as a result of the words complained of. The Jury have to be told they must make their assessment entirely on the facts found by them, and among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaintiff, the extent of the publication, the conduct of the Defendant at all stages of the case, and any other matter which bears on the extent of the damages.” 18. The trial judge continued: “Now Mr. Justice Henchy, in the case he was dealing with, said that the jury in that particular case wasn’t given any real help as to how to assess compensatory damages, and he laid down a guide which could assist the Jury. He considered that in the case in question the jury could be asked to reduce the allegation complained of to actuality, and then to fit the allegation into its appropriate place in the scale of defamatory remarks to which the Plaintiff could be subjected. Now that particular case affords you great assistance in placing the nature of the defamation in a scale, because that case Mr. Justice Henchy was referring to, revolved around an allegation by a politician that a journalist [sic.] tweaked his beard. Now it related to the time of one of the pushes against Mr. Haughey, and after an abortive push against him, everybody was coming out to a crowded area of Leinster House, bustling out, and something was written in the Evening Herald which involved an allegation [that] a politician tweaked the Evening Herald journalist’s beard. Now the learned Trial Judge found that to be defamatory and directed there be an assessment of damages. Going back to Mr. Justice Henchy’s observation, if you examine the words and put them in a scale of things, compare the allegation with tweaking a journalist’s beard, with an allegation that Mr. de Rossa was involved in or tolerated serious crime, and that he personally supported anti-Semitism and violent Communist oppression. It would not surprise me, Members of the Jury, if you went to the opposite end of the scale and even, apart from Mr. Justice Henchy’s helpful observations, I think there can be no question in this case but that if you are awarding damages you are talking about substantial damages. Now as Counsel told you, I am not allowed to suggest to you figures, and Counsel are not allowed suggest to you figures either. I have gone as far as I can to help in relation to that question. I don’t think anybody takes issue with the proposition if you are awarding damages they are going to be substantial. Mr. de Rossa at the time was leader of a political party. The political party was seeking to go into government. Damages will be substantial. It is all I can say to you. It is a matter for you to assess what they ought to be, if you are assessing damages.” 19. The jury found that the impugned words implied that Mr de Rossa had been involved in or tolerated serious crime and that he had personally supported anti-semitism and violent communist oppression. The jury went on to assess damages at 300,000 Irish pounds (IR£). 20. The first applicant appealed the award. It accepted that the jury had been directed on damages in accordance with the law but noted that the trial judge had been therefore obliged to confine his directions to a statement of general principles and to eschew any specific guidance on the appropriate level of general damages. Neither counsel nor the trial judge could suggest any figures to the jury and this practice was inconsistent with the provisions of the Constitution and of the Convention. Specific guidelines should be given to the jury in such cases including a reference to the purchasing power of any award made and to the income which the award would produce, to what the trial judge and counsel considered to be the appropriate level of damages and to awards made in personal injuries and other libel cases. The first applicant further argued that the common law and the Constitution required the appellate court to subject jury awards in defamation actions to stricter scrutiny so that the test which had been outlined by Mr Justice Henchy in the above-cited Barrett case was no longer sufficient. A court of appeal should ask itself the following question (the “Rantzen test”): “could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?”. The first applicant relied on, inter alia, Ranzen v. M.G.N. Ltd [1993] 4 All E.R. 975, and John v. M.G.N. Ltd [1996] 2 All E.R. 35) and on the judgment of this Court in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Series A no. 323). 21. The Chief Justice delivered the majority judgment of the court on 30 July 1999. He began by describing the role of juries in the assessment of damages in defamation actions. It had been conceded by the first applicant that the trial judge had followed the practice in cases of this nature, namely: “...that of confining his directions to a statement of general principles, eschewing any specific guidance on the appropriate level of general damages”. As pointed out by the Master of the Rolls in the above-cited John v. M.G.N. case: “Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.” 22. This was explained by the fact that the assessment of damages in libel cases was “peculiarly the province of the jury” As stated by Chief Justice Finlay in the Barrett case (cited above) the assessment by a jury of damages for defamation had a “very unusual and emphatic sanctity” so that the appellate courts had been extremely slow to interfere with such assessments. As emphasised in the above-cited John v. M.G.N. case, the ultimate decision, subject to appeal, was that of the jury which was not bound by the submissions made to it. 23. The Chief Justice outlined the relevant domestic law. He considered that there was no conflict between the common-law and the Constitutional provisions, on the one hand, and Article 10 of the Convention, on the other. Article 10, as noted in the Tolstoy Miloslavsky judgment, required that “an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered”. He continued: “By virtue of the provisions of Article 40.6.1o of the Constitution, the defendant is entitled, subject to the restrictions therein contained, to exercise the right to express freely its convictions and opinions. The exercise of such right is subject however to the provisions of the Constitution as a whole and in particular the provisions of Article 40.3.1o and 40.3.2o which require the State by its laws to protect as best it may from unjust attack, and in the case of injustice done to vindicate the good name of every citizen. Neither the common law nor the Constitution nor the Convention give to any person the right to defame another person. The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name (Hynes-O’Sullivan. v. O’Driscoll [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.” He cited, as the law applicable in the State, the judgment of Mr Justice Henchy in the above-cited Barrett case (see also paragraphs 44-46 below) and considered that a passage therein (the duty of the trial judge to direct the jury to confine damages to a sum as would “fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people”) emphasised the following elements of Irish law: “(a) ... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution of his standing among right-thinking people as a result of the words complained of; (b) ... it is a fundamental principle of the law of compensatory damages that the award must always be reasonable and fair and bear a due correspondence with the injury suffered; and (c) ... if the award is disproportionately high, it will be set aside and not allowed stand.” 24. The obligations arising from the provisions of the Constitution and the Convention were met by the laws of Ireland, which “provides that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and by the requirement that if the award is disproportionately high, it will be set aside.” 25. Accordingly, and as regards directions to be given to juries, neither the Constitution nor the Convention required a change as suggested by the first applicant. The added guidelines recommended by the Court of Appeal in the case of John v. M.G.N. were not based on the Convention but were a development of English common law. Indeed, he regarded the changes brought about by the case of John v. M.G.N. as not “modest” but “fundamental” in that they “radically altered” the general practice with regard to the instructions to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action. If the approach adopted in the Rantzen case and developed in the John v. M.G.N. case was to be adopted in Ireland, the jury would be buried in figures from the parties representatives and from the judge in respect of both libel and personal injuries’ damages previously awarded, while at the same time being told that they were not bound by such figures. He was satisfied that the giving of such figures, even in guideline form, would constitute an unjustifiable invasion of the domain of the jury. Awards in personal injury cases were not comparable with libel awards and thus he preferred the view on this particular matter expressed in the Rantzen case as opposed to the John v. M.G.N case. Informing juries of libel awards approved by the Court of Appeal would not have been recommended in the John v. M.G.N. case but for the Courts and Legal Services Act 1990 (a law which concerned the power of the Court of Appeal) in the United Kingdom. 26. On the contrary, the jury must base its assessment entirely on the facts of the case as established by it (Mr Justice Henchy in the Barrett case) and a departure from that principle would lead to utter confusion. Each defamation action had its own unique features and a jury assessing damages had to have regard to each feature. Those features, which could vary from case to case, included the nature of the libel, the standing of the plaintiff, the extent of publication, the conduct of the defendant at all stages and any other relevant matters. Figures awarded in other cases based on different facts were not matters which the jury should be entitled to take into account. The Chief Justice was not therefore prepared to change the traditional guidelines given to juries in the assessment of damages in libel cases. 27. He clarified that this did not mean that the discretion of the jury in libel cases was limitless: “... the damages awarded by a jury must be fair and reasonable having regard to all the relevant circumstances and must not be disproportionate to the injury suffered by the injured party and the necessity to vindicate such party in the eyes of the public. Awards made by a jury are subject to a right of appeal and on the hearing of such appeal, the awards made by a jury are scrutinised to ensure that the award complies with these principles.” 28. The Chief Justice then turned specifically to appellate reviews of such jury awards. He began quoting with approval Chief Justice Finlay in the Barrett case: while the jury assessment was not sacrosanct in the sense that it could never be disturbed on appeal, it had a very “unusual and emphatic sanctity” in that the jurisprudence had clearly established that the appellate courts had been “extremely slow” to interfere with such assessments. He also quoted with approval from the Court of Appeal judgment in the John v. M.G.N. case (at p. 55): “real weight must be given to the possibility that [the jury’s] judgment is to be preferred to that of a judge”. 29. He summarised the impact of these extracts as follows: “Both judgments recognise that the assessment of damages is a matter for the jury and that an appellate court must recognise and give real weight to the possibility that their judgment is to be preferred to that of a judge. 30. He rejected the argument that larger awards should be subjected to a more searching scrutiny than had been customary in the past. He did not agree that the Rantzen test proposed by the first applicant (“could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation”) was the test to be applied, noting that that test “differs substantially from the test which has hitherto applied”. If the Rantzen test were to be applied it would remove the “very unusual and emphatic sanctity” from jury awards and would take away the giving of “real weight” to the possibility that the jurors’ judgment is to be preferred to that of the judge. He concluded: “Consequently, while awards made by a jury must, on appeal be subject to scrutiny by the appellate court, that Court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” 31. Applying that test, the Chief Justice considered whether the damages awarded were excessive and disproportionate to any damage done to Mr de Rossa. He recalled that the factors to be taken into account were well established and he quoted with approval those outlined in the John v. M.G.N. judgment (pp. 47-48). 32. As to the gravity of the libel, he noted that the libel clearly affected Mr de Rossa’s personal integrity and professional reputation. It was hard to imagine a more serious libel given the nature of the allegations, the profession of Mr De Rossa and the ongoing negotiations concerning his participation in Government. 33. As to the effect on him, the Chief Justice referred to his evidence before the High Court as to the hurt and humiliation caused to him and his determination to vindicate his personal and professional reputation. This evidence was obviously accepted by the jury and it was easy to imagine the hurt and distress allegations of this nature would cause. 34. The extent of the publication was wide: it was conceded by the parties that the “Sunday Independent” had a wide circulation throughout the State and was read each Sunday by over one million persons. 35. The Chief Justice then considered the conduct of the first applicant up to the date of the verdict, including whether or not an apology, retraction or withdrawal had been published. The lack of an apology was regarded as being of considerable importance, a matter highlighted by Mr de Rossa’s evidence during the second and third trials. The passages cited by the Chief Justice demonstrated clearly, in his view, that all Mr de Rossa required was a withdrawal of the allegations in the absence of which he was obliged to endure three trials to secure vindication of his reputation during which he was subjected to “immensely prolonged and hostile cross-examination” by Counsel for the first applicant and his motives for bringing the action were challenged as were Mr de Rossa’s bona fides and credibility. 36. The Chief Justice concluded: “The Respondent is entitled to recover, as general compensatory damages such sum as will compensate him for the wrong which he has suffered and that sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. Such sum should, however, be fair and reasonable and not disproportionate to the wrong suffered by the Respondent. The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-Semitism and violent Communist oppression. If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office. No more serious allegations could be made against a politician such as the Respondent herein. Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.” The jury assessed damages in the sum of £300,000. This is a substantial sum but the libel was serious and grave involving an imputation that the Respondent was involved in or tolerated serious crime and that he personally supported anti-Semitism and violent Communist oppression. Bearing in mind that a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered and not be disproportionate thereto, I am not satisfied that the award made by the jury in this case went beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded and is not disproportionate to the injury suffered by the Respondent.” 37. The award approved by the Supreme Court, IR£300,000, was three times more than the highest libel award previously approved by that court. The award and Mr de Rossa’s legal costs were discharged by the second applicant as were the first applicant’s own legal costs. 38. As to the guidelines to be give to jurors and having reviewed relevant judgments from certain common-law jurisdictions and in the above-cited Tolstoy Miloslavsky case, Mrs Justice Denham was in favour of giving further guidelines to jurors including in respect of prior libel awards made or affirmed by the Supreme Court, prior awards in personal injuries’ cases, the purchasing power of an award and the income it might produce together with the level of award deemed appropriate. There was nothing in principle to prevent comparative figures being so provided: it would not diminish the place of the jury if it was informed of issues relevant to the proportionality of the damages. Indeed, as in the John v. M.G.N. judgment, she considered that such information would enhance the role of the jury since it would be assisted by comparative and other relevant information. 39. As to the required test to be applied by the appellate court, she recalled and quoted with approval the judgments of Chief Justice Finlay and of Mr Justice Henchy in the Barrett case. She saw no reason why, if the Chief Justice in that case was making a comparative assessment of awards, this information should not be available to the jury. She agreed that the appellate court should strive to determine the reasonableness and proportionality of awards as outlined in the Barrett case, but the effectiveness of that appellate review depended on the prior availability to the jury at first instance of adequate guidelines on damage levels. Such an approach, she believed, would enable the system to be more consistent and comparative and would allow it to appear more rational. 40. As to whether the award in the present case was excessive, she noted that there were strong similarities between the present case and the case of McDonagh v. News Group Newspaper Limited (Chief Justice Finlay, Supreme Court judgment of 23 November 1993, unreported): both plaintiffs had a standing in the community and the relevant publications were seriously defamatory. However, the award in the McDonagh case was considered to be at the top of the permissible range. Even allowing for the additional aggravating matters in the present case, it was clear that the award was “beyond that range in the sense that it is so incorrect in principle that it should be set aside”. She considered that the award to Mr de Rossa should be reduced to IR£150,000 and concluded: “In principle it is open to the Court to provide guidelines on the charge to be given by a judge to a jury in libel cases. Guidelines on levels of damages given by a judge would aid the administration of justice. Guidelines would give relevant information and aid comparability and consistency in decision-making. Such guidelines would relate only to the level of damages - not the kernel issue as to whether or not there had been defamation. Thus, such guidelines would not impinge of the area traditionally viewed in common law jurisdictions as a matter quintessentially for the jury. More specific guidelines on the level of damages would help juries and the administration of justice by bringing about more consistent and comparable awards of damages and awards which would be seen as such. Specific guidelines would also inform an appellate court in its determination as to whether an award is reasonable and proportionate. The award in this case was excessive and on the principles of reasonableness and proportionality I would reduce it to £150,000.” 41. Article 40(3) of the Irish Constitution provides, in so far as relevant, as follows: “1. 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. 2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” 42. Article 40(6)(1) provides, in so far as relevant, as follows: “The State guarantees liberty for the exercise, subject to public order and morality: – i. The right of the citizens to express freely their convictions and opinions. The education of public opinion being, however, a matter of such grave import to the common good the State shall endeavour that organs of public opinion, such as the radio, the press, the cinema, while preserving their liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.” 43. The jury assess damages following its finding of defamation. The Supreme Court can review and quash the award of a jury of the High Court. It does not substitute its own award but rather refers the matter back to the High Court for a further trial on damages before a different jury. The second jury will not be informed that an earlier award was quashed nor, consequently, of the decision or reasoning of the Supreme Court. 44. The case concerned a defamatory allegation that a politician had pulled a journalist’s beard when leaving parliament. The jury award (IR£65,000) was set aside by the Supreme Court. The Chief Justice considered the following principles to apply to the award (at p. 19): “Firstly, whilst the assessment by a jury of damages for defamation is not sacrosanct in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, either on the basis of excess or inadequacy. Secondly, it is clear that whilst the damages in this case at least, where no question of punitive or exemplary damages arises, are fundamentally compensatory in form, that the plaintiff is entitled not only to be compensated for the damage to his reputation arising from the publication of the defamation, but also for the hurt, anxiety and distress to him arising by its publication and by the subsequent conduct of the defendant right up to the time of the assessment of the damages.” 45. He also maintained that certain factors which the jury were entitled to take into account (including the standing of the plaintiff, the nature of the allegation, the failure by the newspaper to publish the plaintiff’s denial and its maintenance of the allegation until the verdict) would have justified the jury in going to the top of the bracket and awarding the largest sum that could fairly be awarded as compensation. He continued (at p. 20): “Notwithstanding these views, and notwithstanding the fact that this is clearly a case in which a jury would be entitled to award really substantial damages ... the sum of £65,000 awarded by the jury is so far in excess of any reasonable compensation for the allegation which was made, that it should be set aside.” 46. Mr Justice Henchy outlined the principles as follows (pp. 23-24): “The second ground of appeal is that the award of £65,000 is so excessive as to be unsustainable. In a case such as this, ... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaintiff the extent of the publication, the conduct of the Defendant at all stages of the case and any other matter which bears on the extent of damages. ... The fact remains, however, that the jury were not given any real help as to how to assess compensatory damages in this case. A helpful guide for a jury in a case such as this would have been to ask them to reduce to actuality the allegation complained of, namely, that in an excess of triumphalism at his leader’s success the plaintiff attempted to tweak the beard of an unfriendly journalist. The jury might then have been asked to fit that allegation into its appropriate place in the scale of defamatory remarks to which the plaintiff might have been subjected. Had they approached the matter in this way, ... the allegation actually complained of would have come fairly low in the scale of damaging accusations. The sum awarded, however, is so high as to convince me that the jury erred in their approach. To put it another way, if £65,000 were to be held to be appropriate damages for an accusation of a minor unpremeditated assault in a moment of exaltation, the damages proper for an accusation of some heinous and premeditated criminal conduct would be astronomically high. Yet a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.” 47. The impugned words were found by the jury to mean that the plaintiff barrister was, inter alia, a sympathiser with terrorist causes and incapable of performing his duties objectively. The jury award IR£90,000: it was not set aside on appeal. The Chief Justice noted: “... I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious. To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role, by reason of his profession and by reason of his standing as a member of the bar, in the administration of Justice.” 48. He described a lawyer’s role in the relevant situation and continued: “The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.” 49. As to the damages award of the jury, he concluded: “A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top end of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside. I would, therefore, dismiss the appeal.” 50. The plaintiff brothers were insurance brokers and took a libel action against the Irish Brokers Association about a letter in which the latter informed various industry bodies including the relevant Minister that the plaintiffs’ company’s membership of the Association had been terminated for non-compliance with the requirements of insurance legislation. Having found the letter defamatory, the jury awarded IR£515,000. 51. On the level of damages, Mr Justice O’Flaherty found as follows: “... I have reached the clear conclusion that the award is so excessive as to call for the intervention of this Court. It is wholly disproportionate to any injury suffered by the plaintiffs ... The approach to the assessment of damages in a [defamation] action is in essence no different from any other type of proceeding. The jury should, in the first instance, be told that their first duty is to try to do essential justice between the parties. [In cases where damages could be compensatory only, the jury] were entitled to award damages for loss of reputation, as well as for the hurt, anxiety, trouble and bother to which the plaintiffs had been put. However, the defendants in defamation cases should never be regarded as the custodians of bottomless wells which are incapable of ever running dry. ... Further, unjustifiably large awards, as well as the costs attendant on long trials, deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.” 52. Quoting with approval the judgment of Mr Justice Henchy in the above-cited Barrett case and noting the evidence of harm to the plaintiffs’ reputation and of the defendant’s conduct, Mr Justice O’Flaherty continued: “Giving the case the most favourable construction in regard to the plaintiffs – in the sense of asking one’s self what damages have the plaintiffs made out in regard to loss of reputation etc., and taking their case at the high water mark – nonetheless, the award viewed even from that perspective must be regarded as so excessive that it cannot stand.” 53. The Supreme Court ordered a re-trial. At the end of the fourth trial in the High Court, a jury awarded IR£135,000. 54. Mr O’Brien was a well-known and successful businessman. The jury found defamatory M.G.N. Ltd’s allegations that he had, inter alia, bribed politicians to secure radio licences and been involved in other corrupt practices. The jury awarded IR£250,000 in damages. M.G.N. Ltd requested the Supreme Court to re-consider its judgment in the de Rossa appeal arguing, inter alia, that the latter judgment was wrong in so far as it considered that the principles laid down in the Barrett case were consistent with Article 10 of the Convention and with the Constitution. 55. The Chief Justice delivered the majority judgment of the court (joined by Mr Justice Murphy and Mr Justice O’Higgins), refusing to reconsider its de Rossa judgment but setting aside the jury award. Its previous judgment would not be reconsidered as it was not so “clearly wrong” that there were “compelling reasons” why it should be overruled. The O’Brien appeal had to be dealt with therefore on the basis of the principles outlined by the Supreme Court in the de Rossa and Barrett cases. 56. The general principle which the Chief Justice considered he must apply to his review of the award was that outlined by Mr Justice Henchy in the Barrett case, namely: “Yet a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.” 57. In determining proportionality, he considered that there was nothing which precluded the Supreme Court from determining an appeal on jury libel awards in the light of other such awards which had also been approved by that court provided a degree of caution was exercised. 58. The Chief Justice considered the allegations against Mr O’Brien to be “undoubtedly seriously defamatory statements which justified the award of substantial damages”. Although he considered the damages’ award to be in the “highest bracket of damages appropriate to any libel case” and that it was comparable to the non-pecuniary award “in the most serious cases of paraplegic or quadriplegic injuries”, he considered the libel as serious but not coming within the category of the grossest and the most serious libels to have come before the courts. He went on to compare that case to the de Rossa and McDonagh cases, although he acknowledged that: “... ultimately ... this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.” 59. Mr Justice Geoghegan in his partly dissenting opinion agreed with the Supreme Court’s judgment in the de Rossa case but did not consider that the jury award had to be set aside. 60. He noted that various formulations of words had been used by appellate courts in Ireland and England as to when an appellate court in a libel action could interfere with a jury award. Although the language was sharper and stronger in some cases than in others, he was not sure that there was ever any intended difference and he was inclined to think that the form of words adopted by Mr Justice Henchy in the Barrett case (and already cited by the Chief Justice in that case – see above) was the most helpful. Having noted Chief Justice Finlay’s comment also in the Barrett case about the assessment of the jury having “a very unusual and emphatic sanctity”, he indicated that he doubted whether Mr Justice Henchy and Chief Justice Finlay intended to say anything different: “The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury ... might make. ... In the case of a libel appeal however the appeal Court although it has to engage in the same exercise, it can only do so with diffidence rather than confidence. ... Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.” 61. He had no hesitation therefore in leaving the jury award stand as: “having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason.” 62. He went on to explain why comparisons with other libel awards approved by the Supreme Court were dangerous but that, even if he had to so compare, his view that the award should not be set aside was not affected by the facts or award in the de Rossa or McDonagh cases. 63. Mrs Justice Denham also dissented: she considered that there were compelling reasons to reconsider the Supreme Court’s majority judgment in de Rossa. However, given the view of the majority that it would not depart from the de Rossa judgment, she applied it, compared that case and the McDonagh awards approved by the Supreme Court and found: .” 64. Mr Hill was in prison having pleaded guilty to a charge of assault occasioning actual bodily harm (to a police officer). The defendant published an article which was entitled “Isolation of Cork Jail’s C Wing” and which explained that C Wing prisoners were child molesters and sexual offenders and it included a photograph of Mr Hill’s prison cell. He issued proceedings in December 1995 arguing that the juxtaposition of the article and the photograph meant and were understood to mean that he was a child molester or a sexual offender. During the trial, the foreman of the jury asked for guidelines. While the trial judge explained that he could not do so, he gave certain parameters (including the circumstances in which the photograph came to be taken, that large damages were not merited and that he was not entitled to damages as if he had a blameless character). The jury agreed that the article was defamatory and awarded Mr Hill IR£60,000. 65. The newspaper appealed arguing that the award was disproportionate and taking issue with the absence of guidelines to the jury. The Supreme Court did not set aside the award, Mr Justice Murphy noting: “... it is difficult, if not impossible, to find any nexus between the pain, embarrassment or disfigurement suffered by a plaintiff and the sum of money which would be appropriate to compensate him for any such consequences of a wrong doing. Judges in charging juries as to their responsibilities in determining damages or in performing the same task themselves can say or do little more than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong doer. It will always be said - perhaps unhelpfully – that the sum awarded should be reasonable to the plaintiff and also reasonable to the defendant. In relation to the extent to which a trial judge could and should give guidance as to an appropriate measure of damages was considered by [the Supreme Court in the De Rossa case] and again in O’Brien .v. M.G.N.... . Whilst other jurisdictions have accepted the concept of such guidelines that concept has been rejected in this jurisdiction. Apart from any other consideration there would appear to be insuperable difficulties for any judge to assemble the appropriate body of information on which to base such guidelines.” 66. He concluded that: “There is no doubt that the sum of £60,000 awarded by the jury was a substantial sum. It may well be at the higher, or even the highest, of the figures in the range which would be appropriate to compensate a Plaintiff for the wrong doing which he has suffered. However I am not satisfied that the figure awarded is so disproportionate to the injury sustained by the Plaintiff (Respondent) that it can or should be set aside by this Court.” 67. By judgment of 23 July 1996 (Heaney and McGuinness v. Ireland) the Supreme Court rejected the applicants’ appeal finding section 52 of the Offences Against the State Act 1939 not inconsistent with the Constitution. It considered that the right to silence was a corollary to freedom of expression (guaranteed by Article 40 of the Constitution) and that the relevant assessment was to consider the proportionality of the restriction on the right to silence against the public order exception to Article 40. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made under Article 35 of the 1939 Act (that “the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order”) remained in force. 68. As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those with something relevant to disclose concerning the commission of a crime to remain silent must be regarded as of an even lesser order. That court concluded that the restriction in section 52 was proportionate to the State’s entitlement to protect itself. 69. The case of Murphy v. the Independent Radio and Television Commission ([1999] 1 I.R. 12) concerned the ban on the broadcasting of religious advertising pursuant to Section 10(3) of the Radio and Television Act 1988 (“the 1988 Act”). The Supreme Court considered that the impugned provision of the 1988 Act was a restriction of the appellant’s right freely to communicate and of his right to freedom of expression (Articles 40(3) and 40(6)(1) of the Constitution, respectively) which rights could be limited in the interests of the common good. The real question was whether the limitation imposed upon those constitutional rights was proportionate to the purpose parliament wished to achieve. Quoting with approval previous case-law, it described the principle of proportionality: “In considering whether a restriction on the exercise of rights is permitted by the Constitution the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights and by the Supreme Court of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be such that the effects on the rights are proportional to the objective.” 70. The Supreme Court found that section 10(3) of the 1988 Act complied with this test and concluded that: “It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation.” 71. The LRC consultation paper of March 1991 considered a number of possible reforms of the law of defamation in Ireland and provisionally recommended, inter alia, that parties to defamation actions in the High Court should continue to have the right to have the issues of fact determined by a jury with the damages in such actions being assessed by the Judge following the jury’s determination whether nominal, compensatory or punitive damages should be awarded. 72. The LAG was established by the Minister for Justice, Equality and Law Reform with a view to examining reforms of the libel laws to bring them into line with other States. As regards the respective roles of the judge and jury, its report of March 2003 provided as follows: “The initial starting point for the Group’s consideration of this matter was the specific recommendation of the Law Reform Commission that the parties to defamation actions should continue to have the right to have issues of fact determined by a jury but that the damages in such actions should be assessed by a judge. ... The Group was also alert to the valuable role which juries have to play in defamation actions given the importance, in such actions, of getting the perspective of the ordinary persons as to whether the matter complained of should, or should not, be considered defamatory. At the same time, the Group recognised that there is considerable dissatisfaction with the law as it currently stands whereby juries are deprived of guidance when it comes to deciding upon the level of damages which should be awarded to a successful plaintiff in a defamation action. United Kingdom and other common law jurisdictions .... and would accord well with the freedom of expression entitlement enshrined in both the Constitution and the European Convention on Human Rights. ... The final element considered by the Group under this heading concerned the desirability of having a statutory provision which would make it clear that, in a defamation appeal from the High Court, the Supreme Court could substitute its own assessment of damages for the damages awarded in the High Court. The Group is of the view that there is considerable merit in a provision of this kind given the additional costs which litigants would have to bear should a new trial be ordered and where the only issues for the appellate court to determine is the appropriateness of the damages award. Summary The function of assessing damages in defamation proceedings heard before a jury should remain with the jury; Parties to proceedings should be able to make submissions to the court and address the jury concerning damages; Judges would be required to give directions to a jury on the matter of damages; In making an award of damages, regard would have to be had to a non-exhaustive list of matters including, for example, the nature and gravity of any allegation in the defamatory matter, the extent to which the defamatory matter was circulated and the fact that the defendant made or offered an adequate, sufficient and timely apology, correction or retraction, as the case might be. ... There should be an avoidance of doubt provision to the effect that, in a defamation appeal from the High Court, the Supreme Court could substitute its own assessment of damages for the damages awarded in the High Court.” 73. The Court of Appeal observed that the grant of an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was “necessary in a democratic society” or “justified by a pressing social need” for the purposes of Article 10 of the Convention. It continued: “... the common law if properly understood requires the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past. It follows that what had been regarded as the barrier against intervention should be lowered. The question becomes: could a reasonable jury have thought that this award was necessary to compensate the plaintiff and to re-establish his reputation?” 74. As to what guidance the judge could give to the jury, the Court of Appeal was not persuaded that the time had come to make references to awards by juries in previous libel cases. Nor was there any satisfactory way in which awards made in actions involving serious personal injuries could be taken into account. It was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act 1990, would establish some standards as to what would be “proper” awards. In the meantime the jury should be invited to consider the purchasing power of any award which they may make and to ensure that any award they make is proportionate to the damage which the plaintiff has suffered and is a sum which it is necessary to award him to provide adequate compensation and to re-establish his reputation. 75. The Court of Appeal concluded in that case that, although a very substantial award was clearly justified in the case, judged by any objective standards of reasonable compensation or necessity or proportionality, an award of 250,000 pounds sterling (GBP) was excessive and it substituted GBP 110,000. 76. The Court of Appeal held that in assessing compensatory damages in a defamation case a jury could in future properly be referred by way of comparison to the conventional compensation scales in personal injury cases and to previous libel awards made or approved by the Court of Appeal. As the Master of the Rolls pointed out: “Judges, as they were bound to do, confined themselves to broad directions of general principle, coupled with injunctions to the jury to be reasonable. But they gave no guidance on what might be thought reasonable or unreasonable, and it is not altogether surprising that juries lacked an instinctive sense of where to pitch their awards. They were in the position of sheep loosed on an unfenced common, with no shepherd.” 77. While the ultimate decision (subject to appeal) was that of the jury which was not bound by submissions made to them, there was no reason why the judge or counsel should not indicate to the jury the level of award which they considered appropriate: “The plaintiff will not wish the jury to think that his main object is to make money rather than clear his name. The defendant will not wish to add insult to injury by underrating the seriousness of the libel. So we think the figures suggested by responsible counsel are likely to reflect the upper and lower bounds of a realistic bracket. The jury must, of course, make up their own mind and must be directed to do so. They will not be bound by the submission of counsel or the indication of the judge. If the jury make an award outside the upper or lower bounds of any bracket indicated and such award is the subject of appeal, real weight must be given to the possibility that their judgment is to be preferred to that of the judge. The modest but important changes of practice described above would not in our view undermine the enduring constitutional position of the libel jury. Historically, the significance of the libel jury has lain not in their role of assessing damages, but in their role of deciding whether the publication complained of is a libel or not. The changes which we favour will, in our opinion, buttress the constitutional role of the libel jury by rendering their proceedings more rational and so more acceptable to public opinion. ... The [Convention] is not a free standing source of law in the United Kingdom. But there is, as already pointed out, no conflict or discrepancy between Art. 10 and the common law. We regard Art. 10 as reinforcing and buttressing the conclusions we have reached and set out above. We reach those conclusions independently of the [Convention], however, and would reach them even if the convention did not exist.” 78. As to the factors of which one should take account in assessing the damages to be awarded, the Court of Appeal found: “The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation, the most important factor is the gravity of the libel ... The extent of publication is also very relevant ... It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.” 79. All third parties endorsed the applicants’ submissions. 80. The NNI is the representative body for Irish national newspapers including a number of newspapers owned by the applicants. It considered, inter alia, that the decision of the Supreme Court in the present case did not accord with the above-cited Tolstoy Miloslavsky judgment. The NNI endorsed the recommendations of the LRC and of the LAG (paragraphs 71-72 above) about the parties and the trial judge addressing the jury directly on the level of damages. More generally, it maintained that many other aspects of defamation law were in urgent need of reform so that that the freedom of speech of journalists in Ireland was unreasonably inhibited. 81. This company is part of a larger media group known as Associated Newspapers Limited based in the United Kingdom and it publishes an Irish national Sunday newspaper. It submitted, inter alia, that various aspects of Irish defamation law acted as a chilling effect on the press’ freedom of expression including the Supreme Court’s inability to substitute its own award together with the associated inability to inform the jury on a re-trial of the Supreme Court’s views and the connected costs impact of an appeal. 82. The Irish Times Limited is the owner and publisher of the “Irish Times” newspaper one of Ireland’s leading daily newspapers which is also distributed in the United Kingdom and in Europe. It has defended many defamation actions, was particularly concerned about the restrictions on instructing a jury on damages and it endorsed the work and recommendations of the LAG. 83. The subsidiaries of these holding companies publish, print and distribute national and regional newspapers in Ireland and the United Kingdom. EPC was itself subjected to effectively the same treatment as the present applicants (the above-cited Hill case). The failure to implement the proposals of the LAC and LAG was prejudicial to the Irish media. 84. MGN Ltd publishes many Irish daily and weekly newspapers. As a former defendant in libel proceedings in Ireland (O’Brien v. M.G.N. Ltd case, see paragraphs 54-63 above), it regretted that the Supreme Court did not substitute its own award for that of the jury: sending a case back for re-trial was costly and, because the second jury was not informed of the appeal court’s view, the risk of disproportionality remained. 85. These companies publish numerous weekly and daily papers in Ireland and in the United Kingdom. They underlined their support for this Court’s judgment in the above-cited case of Tolstoy Miloslavsky and for the Court of Appeal in the above-cited Ranzen and John v. M.G.N. cases. 86. The NUJ is the largest union of journalists in the world and its Irish branch represents (97% (about 3000) of Irish journalists). It considered that Irish libel laws prevented journalists from carrying out their duties and denied access to fair and efficient proceedings to protect one’s reputation. As to the lack of guidance to juries, it considered that the size and arbitrary nature of jury awards were powerful chilling factors on the press. | 0 |
train | 001-93879 | ENG | UKR | CHAMBER | 2,009 | CASE OF SOLONSKIY v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1938 and lives in the town of Gorlovka. 5. In July 1995 the applicant instituted proceedings in the Tsentralno-gorodskoy District Court of Gorlovka (“the court”) against his former employer, a State company “Kommunalnik” (“the company”), claiming compensation for damages resulting from his work-related disease. 6. On 29 December 1998 the court awarded the applicant UAH 44,273.27. By the same judgment he was entitled to receive an allowance of UAH 372.24, to be paid monthly. On 5 February 1999 the Gorlovka Bailiffs’ Service (“the Bailiffs’ Service”) initiated enforcement proceedings. 7. On 10 October 2000 the judgment was enforced in part; the applicant received UAH 127.12. 8. In March 2002 the applicant instituted proceedings in the court against the company and the State Insurance Fund for Work Accidents and Work-Related Diseases (“the Fund”) seeking re-calculation of the monthly allowance paid to him for his work-related disability and claiming payment of losses sustained on account of the erroneous calculation. 9. On 11 April 2002 the court allowed the applicant’s claims and ordered the company to pay the applicant UAH 30,645.53. By the same judgment he was entitled to receive a monthly allowance of UAH 737.04, to be paid by the Fund as from 1 April 2001. On 30 May 2002 the Bailiffs’ Service initiated enforcement proceedings. 10. In November 2005 the applicant instituted court proceedings against the Bailiffs’ Service seeking compensation for damages caused to him by the non-enforcement of the judgments. On 29 December 2005 the court found against the applicant. On 27 April 2006 the Donetsk Regional Court of Appeal upheld this judgment. The applicant did not appeal in cassation. 11. On 13 March 2008 the Bailiffs’ Service returned the enforcement writs in respect of the judgments of 29 December 1998 and 11 April 2002 to the applicant. 12. The company failed to enforce the judgments of 29 December 1998 and 11 April 2002 in full. The Fund has no judgment debts vis-à-vis the applicant. 13. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). | 1 |
train | 001-86674 | ENG | CZE | ADMISSIBILITY | 2,008 | PECENKA v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Svatopluk Pečenka, is a Czech national who was born in 1930 and lives in Branky. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In a judgment of 30 May 1995 the Vsetín District Court (okresní soud), following the applicant’s action of 5 September 1994, ordered an agricultural and commercial cooperative in liquidation to pay CZK 454,765.66 (EUR 18,149) to the applicant. On 22 January 1996 the Ostrava Regional Court (krajský soud) upheld the first instance judgment which became final on 14 June 1996. On 17 October 1996 and 16 April 1997 respectively, the defendant paid CZK 2,957.34 (EUR 118) and CZK 3,979 (EUR 159) to the applicant who, on 17 June 1997, applied to the District Court for enforcement of the above judgment by way of the compulsory satisfaction of the claim in the amount of CZK 50,000 (EUR 1,995) from the defendant’s bank’s account. On 23 June 1997 the court ordered the enforcement. The order became final on 11 July 1997. On 12 January 1998 the applicant informed the District Court that the bank had not yet paid him anything from the defendant’s account. By a letter of 20 January 1998 the bank informed him that on 25 July 1997 it had transferred CZK 7,220.40 (EUR 288) to his account. On 25 January 1998 the enforcement proceedings terminated under Article 307 § 3 of the Code of Civil Procedure. On 30 June 1997 the Ostrava Regional Commercial Court (krajský obchodní soud) declared the defendant bankrupt. On 12 February 1998 the applicant submitted his unsettled claims of CZK 447,545 CZK (EUR 17,861) against the bankrupt’s estate. On 10 December 2004 the Regional Court adopted a resolution to distribute the bankrupt’s estate, the applicant being granted CZK 98,900 (EUR 3,947). On 30 December 2004 the applicant appealed to the Olomouc High Court (vrchní soud). It appears that the proceedings are still pending. Law no. 82/1998 on State liability for damage caused in the exercise of public authority by an irregularity in a decision or the conduct of proceedings Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages. On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention. Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time. Under Article 305 of the Code of Civil Procedure the court shall notify the entitled party and the financial institution of the finality of the resolution whereby it has ordered the enforcement of a decision; it shall serve the notification on the financial institution by personal delivery. Article 307 § 3 provides, inter alia, that if the receivable being recovered, and incidentals thereto, the debt has not been paid in full, the financial institution shall carry out the enforcement of the decision also on the day following the day on which such an amount of funds is credited to the account, which is required for the entitled party’s full satisfaction. If the above does not take place within six months of the service of the notification under Article 305, the financial institution shall carry out the enforcement from additionally credited funds also on the day that follows the expiry of the above period of time, or, as applicable shall notify the entitled person that no funds were in the liable party’s account. The financial institution shall debit the receivable to the account, and pay it to the entitled person, also if such funds do not suffice to satisfy the entitled party in full. | 0 |
train | 001-88306 | ENG | UKR | ADMISSIBILITY | 2,008 | SAVCHUR v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | The applicant, Mr Fedir Fedorovych Savchur, is a Ukrainian national who was born in 1956 and lives in Beregove. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Enforcement of the judgment given in the applicant’s favour On 3 February 2000 the open joint-stock company Zakarpattyaoblenergo (“the company”, Берегівське РЕМ ВАТ ЕК „Закарпаттяобленерго”) found that the applicant had been using an electricity meter which had been damaged. Consequently his electricity bills were recalculated. On 11 October 2001 the company disconnected the applicant’s household electricity supply since the applicant had failed to pay the amount he owed because of the damaged meter. On 8 November 2001 the applicant lodged a complaint with the Beregove Court (“the court”, Берегівський районний місцевий суд Закарпатської областi) against the company, requesting that his electricity supply be restored and that he receive a response to his request for information. On 14 December 2001 the court partly dismissed the applicant’s claims and partly left them unexamined. On 20 March 2002 the Zakarpattya Regional Court of Appeal (the “court of appeal” Апеляційний суд Закарпатської області) quashed the ruling of the first-instance court. The court of appeal ruled that the disconnection had been unlawful, since Ukrainian law did not allow cutting the electricity supply for the reasons given by the company. The court of appeal ordered that the applicant’s household be reconnected to the electricity supply and that a response be given to his request for information. According to the applicant’s submissions, on 27 May 2002 he requested the court to provide him with the writ of execution in respect of the judgment of 20 March 2002, as the company had failed to execute it voluntarily within the time-limit prescribed by Ukrainian law. On 4 June 2002 the company restored electricity to the applicant’s apartment. The Government provided this Court with a copy of the company’s letter of 27 June 2002 containing a reply to the applicant’s request for information. On 10 June 2002 a judge of the court informed the applicant that a copy of the judgment at issue had already been transferred to the company for execution and that under Ukrainian legislation no writ of execution was necessary. It further informed the applicant that such a transfer was the only component of the mechanism provided for by the law to enforce the judgment at issue and was sufficient for that purpose. In August 2002 the applicant instituted administrative proceedings in the court of appeal against the judge of the court, seeking to oblige him to provide the applicant with the writ of execution. On 14 August 2002 the court of appeal refused to consider the applicant’s complaint, finding that the issuing of the writ of execution was within the realm of the judicial and not the administrative functions of the court and so could not be challenged in court. On 29 January 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the decision of 14 August 2002. 2. The second disconnection of the applicant’s household electricity supply On 4 June 2002 an officer of the company inspected the applicant’s household electricity supply installation. The officer found that the applicant had failed to sign the agreement on electricity supply with the company, he had no electricity meter, and his household electricity supply installation did not comply with technical standards as prescribed by Ukrainian law. On the same date a report containing a list of the shortcomings was drafted. The applicant was given one month to rectify them. On 17 July 2002 an officer of the company inspected the applicant’s household electricity supply installation and found that he had failed to rectify the shortcomings. He was given additional time to rectify them, until 25 July 2002. As the applicant failed to rectify the shortcomings, the company disconnected the applicant’s household from the electricity supply in pursuance of paragraph 35 of the Rules on Use of Electricity by Residential Customers. | 0 |
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