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train | 001-23420 | ENG | SVK | ADMISSIBILITY | 2,003 | STEFANIDES v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Karol Štefanides, is a Slovakian national, who was born in 1941 and lives in Dolný Kubín. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák in that function. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is registered as the father of a child to whom his former wife gave birth on 30 August 1988. On 23 March 1992 the applicant commenced divorce proceedings. In the action the applicant stated that he and his wife had had no sexual intercourse for five years. As he considered that he was not the natural father of the child, the applicant requested, inter alia on 16 December 1992, that an action under Section 62(1) of the Family Act (see “Relevant domestic law and practice” below) be filed with a view to having this issue determined. In the request the applicant stated that he had had no sexual intercourse with his former wife and that the latter had a friend with whom she had met at the relevant time. A blood test was arranged. However, it was not carried out as the applicant had not paid the costs. In 1995, a public prosecutor arranged for another blood test of the applicant and of his former wife, as well as of the child. In a report of 26 June 1995 an expert found that the blood analysis did not exclude that the applicant was the natural father of the child. The expert further expressed the view that it was most probable that the applicant had fathered the child. On 31 August 1995 the Regional Prosecutor’s Office in Banská Bystrica informed the applicant, with reference to the expert’s conclusion, that an action under Section 62(1) of the Family Act could not be filed in his case as it had not been shown, in an objective manner, that the applicant was not the natural father of the child. On 13 October 1995 and on 7 November 1995 the applicant filed a complaint with the General Prosecutor’s Office. He argued that the probative value of the above blood test was low and asked that a DNA test be carried out. The applicant explained that the latter test was capable of reliably showing whether or not he had fathered the child. He requested that another person whom he considered to be the natural father of the child should also undergo the test. On 18 January 1996 the General Prosecutor’s Office dismissed the applicant’s complaints. The applicant was informed that the child’s mother was opposed to further examination by experts as the child had fainted in the course of the first examination, and that she was not willing to bear the costs of such an examination. The letter further stated that public prosecutors lacked power to order the mother to undergo further examination and to bear its costs. Finally, the applicant was informed that his further submissions in this matter would not be dealt with unless they contained relevant new information. On 4 June 1998 the applicant sent a letter to the General Prosecutor’s Office which he entitled “Attempt to reach a settlement”. He challenged the viewpoint expressed in the above letter of 18 January 1996. He argued, in particular, that a DNA test involved no risk, that he was ready to cover its costs, and reiterated his request that such a test be carried out in his case. The applicant received no reply. Pursuant to Section 51(1) of the Family Act, the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father. Section 57(1) provides that a husband can deny paternity before a court within six months after learning that his wife gave birth to a child. Under Section 62(1), when the time-limit for denying paternity has expired, the General Prosecutor may file an action to disprove paternity provided that the determination of the issue is justified by the interests of society. According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when reliable proof exists that the mother’s husband did not father the child. | 0 |
train | 001-75655 | ENG | DNK | ADMISSIBILITY | 2,006 | ESTATE OF KRESTEN FILTENBORG MORTENSEN v. DENMARK | 1 | Inadmissible | Snejana Botoucharova | The Danish national, Mr Kresten Filtenborg Mortensen, (“KFM”), was born in 1926 and died on 10 February 1999. His estate is the applicant in the present case, represented by his son, Mr Niels Filtenborg Mortensen, (“N”), who was represented before the Court by Mr Tyge Trier, a lawyer practising in Frederiksberg. The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their co-Agent, Mrs Nina Holst-Christensen of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At the time of KFM’s death, he was divorced and had one legitimate son, N, born on 24 August 1951. During his marriage, KFM had a relationship with a married woman, J, who gave birth to two sons, B and P, in 1956 and 1957 respectively. From 1963 until her death in 1994, J lived with KFM, who had by then divorced his first wife. Following KFM’s death in February 1999, B and P requested the City Court of Holstebro (Retten i Holstebro), under the Administration of Justice Act (Retsplejeloven), to establish their paternity, since in their view their father was KFM and not the man to whom their mother had been married. At a hearing before the City Court on 8 November 1999, B and P testified that they had been told by their mother, J, that KFM was their biological father as opposed to their legal father. Their legal father testified that he had divorced J because he suspected her of adultery and that J’s family had told him that he was not the father of B and P. N testified that KFM had never said anything to him about having children with J and that when J died in 1994, KMF had remarked that things were now settled “with J’s family”. By decision of 10 November 1999 the City Court decided, in view of the evidence adduced, that it could not be ruled out that KFM was the biological father of B and P, and that the estate of KFM should therefore be a party to the paternity proceedings in accordance with section 456 (k) of the Administration of Justice Act. Moreover, in accordance with the said provision, forensic genetic tests should be carried out, as they might be expected to produce evidence of considerable weight for or against KFM’s being the biological father of B and P. KFM’s estate appealed against both decisions before the High Court of Western Denmark (Vestre Landsret), which found against it on 16 March 2000. Accordingly, blood samples were taken from B and P, their legal father, two of J’s siblings, and a sister of KFM. N did not wish to participate in the genetic tests. Subsequently, on the basis of the samples provided, the Forensic Genetics Institute (Retsgenetisk Institut) found it established that B and P’s legal father, with a probability that exceeded 99.99 %, was not their biological father. Moreover, it found that the results suggested that KFM, rather than some random man, was B and P’s biological father, with probability ratios of 9:1 and 3:1 respectively. Eight testimonies were submitted before the City Court by KFM’s siblings, colleagues and acquaintances, all of whom endorsed the notion that KFM was B and P’s father. On 5 June 2000 B died. On 28 November 2001 the Forensic Genetics Institute answered two questions put by the City Court as to the likelihood of obtaining valid DNA results from the tissue of a deceased person. On 5 December 2001 the City Court decided, in accordance with section 456(k) of the Administration of Justice Act, that KFM’s body was to be exhumed for the purpose of taking DNA samples, as such samples were assumed to be of significant, and probably decisive, importance in establishing paternity, and were the only remaining option. KFM’s estate appealed against the decision before the High Court of Western Denmark which, by decision of 21 February 2002, amended the City Court’s decision. It stated that the estate of the deceased was party to the paternity suit and that it was therefore obliged, pursuant to section 456 (k) of the Administration of Justice Act, to participate in tests which entailed providing blood samples or similar, if the court decided that such tests were necessary. Furthermore, it followed from section 456 (l) of the Act that the court could decide to use the various measures mentioned in Section 178 of the Act to compel parties to participate in such tests if they refused to do so voluntarily. The High Court found, however, that in paternity cases neither the Administration of Justice Act nor any other provision of Danish law provided a basis for taking body samples by the use of physical force, as opposed to measures to compel living persons to give samples. Hence, the High Court found that tests of the kind ordered by the City Court constituted interference with the sanctity of the grave and that such interference was comparable with the measures to compel living persons to give samples. The High Court concluded that such interference could not be effected by force for the purpose of obtaining evidence in a paternity suit without an explicit legal basis, which the High Court found did not exist in domestic law. Accordingly, the High Court refused to order the exhumation of KFM and the taking of samples from his corpse for use in the paternity suit. P was granted leave to appeal against the judgment before the Supreme Court (Højesteret), which on 4 September 2002 permitted the taking of biological material from KFM’s corpse. In reaching its decision, the Supreme Court stated as follows: “By decision of 16 March 2000 the High Court of Western Denmark upheld the City Court’s decision that the estate of [KFM] was a party to the paternity suit. That decision is not under review by the Supreme Court in the present case. Since [P] was born in 1957, it is the provisions inserted into the Administration of Justice Act by Act No. 135 of 7 May 1937 in chapter 42 (a) concerning the proceedings in paternity suits that are applicable, pursuant to the provisions on the entry into force of the Act contained in section 2(1) of Act No. 201 of 18 May 1960 amending the Administration of Justice Act. The provisions of the said Act concerning the court’s duty to elucidate the case which are relevant in the present case are broadly similar to the provisions of the Administration of Justice Act (chapter 42 (a)) currently in force. Hence, if the court considers forensic genetic testing of the parties to the case to be necessary, it may order such tests under section 456 (l) of the 1937 Act, sections 456 (k) and 456 (l) of the 1960 Act and section 456 (h) (7) of the current Act. The reference therein to the provisions of the Administration of Justice Act on measures to require witnesses to comply must be understood as specifying the measures which can be taken against a party who is alive, and are therefore without relevance if the test is to be carried out on a party who is deceased.” The majority of the Supreme Court (three judges) went on to state: “The fact that the Administration of Justice Act does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules, according to which [in a paternity case] the court may decide to compel the parties to undergo genetic testing, being narrowly construed to mean that the [existing] legal basis does not cover testing of deceased persons. Pursuant to section 16 (1) of the Act on Cornoner’s Inquests, Post-Mortem Examinations and Transplantation, etc. (Lov om ligsyn, obduktion og transplantation m.v.), interference with a corpse, other than the kind mentioned in chapter 3 of the Act (on post-mortem examinations) and in chapter 4 (on transplantation), may be carried out only if the deceased person, having turned 18 years old, consented thereto in writing. According to the preparatory notes (Folketingstidende 1989/1990, tillæg A, spalte 3814), the above provision concerns interference with a scientific or educational purpose which is not carried out in connection with a post-mortem examination. It is not mentioned, however, whether the provision applies to other forensic tests under chapter 42 (a) of the Administration of Justice Act [that is, to paternity cases] or to other civil proceedings involving the estate or a surviving relative in which it becomes necessary to carry out forensic tests on a deceased person in order to gather evidence. In these circumstances we consider that section 16 of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation does not restrict the legal basis provided by chapter 42 (a) of the Administration of Justice Act [to the effect] that, if deemed necessary, the court may decide that forensic genetic tests should be carried out, even on a deceased party. In its assessment, however, having regard to the principle of proportionality, the court must balance the extent of such interference with the need to elucidate the particular case. [N] having refused to participate in forensic genetic testing, tests have been carried out on all possible living persons [in the case]. In view of the fact that these tests, and the information submitted in the case, have confirmed [P’s] allegation that [KFM] is his father, and in the light of the content of the Forensic Genetics Institute’s letter of 18 November 2001, we uphold the City Court’s decision of 5 December 2001 authorising the taking of tissue samples from the deceased [KFM].” The minority of the Supreme Court (two judges) found: “Without the existence of clear support in section 456 (g) and 456 (l) of the Administration of Justice Act [No. 135 of 7 May 1937, in force at the relevant time, when P was born] or the preparatory notes, we find it insufficiently established that these provisions confer authority to take blood samples or carry out other tests on the deceased. In our opinion it is a matter for the legislator to decide whether it should be possible to carry out such testing, and in the affirmative to indicate the specific conditions governing it. Accordingly, we vote in favour of upholding the High Court’s decision.” Following the Supreme Court’s decision, KFM’s corpse was exhumed and tissue samples were taken. However, the Forensic Genetics Institute was unable to make a typological classification of the samples, apparently owing to the time that had elapsed since KFM’s burial. On 19 January 2004 the City Court of Holstebro delivered the following judgment: “The forensic genetic tests carried out and the content of the written statements corroborate the claim that [KFM] is the father of [B and P]. The court does not find, however, that the test results and the statements can be given such weight as to prove with sufficient certainty that [KFM] had intercourse with the mother at the time of conception. Therefore, the court finds in favour of the defendant [the estate of KFM].” Accordingly, N, as the only legitimate son of KFM and sole heir, inherited the estate. The Administration of Justice Act was amended by Act No. 135 of 7 May 1937 when a special chapter 42 (a) on paternity suits was inserted. The relevant provisions of this chapter read as follows: “The court shall ensure of its own motion that the [paternity] case is elucidated. Anyone who, according to information which emerges during the proceedings, could have made the woman in question pregnant shall be made a party to the case by the court. The court itself shall decide on the calling of parties and witnesses to give testimony, and the obtaining of expert statements and other evidence. ...” If, in order to elucidate the case, the court finds it necessary to require blood-type determination of the mother, the child or the respondent(s), it shall ensure that the necessary tests are carried out. When the circumstances strongly support such action and it can be taken without significant disturbance to the person in question, the court may also take steps to have other tests carried out on these persons, who shall be required to present themselves for tests, provide blood samples, etc. If they refuse, the measures in sections 177 and 189 shall be applicable.” The above-mentioned provisions of the Administration of Justice Act were amended by Act No. 201 of 18 May 1960. This Act contains the following section 2 concerning scope and transitional period: “This Act shall enter into force on 1 January 1961. It shall not apply to the Faroe Islands or Greenland. The Act shall apply only to cases concerning children born after its entry into force [...].” Sections 456 (k) and 456 (l) of the current Administration of Justice Act read as follows: “If, in order to elucidate the case, the court finds it necessary to require blood-type determination or other tests to be carried out on the parties, it shall ensure that such tests are carried out. The persons concerned shall be required to undergo the tests, give blood samples, etc.” “The measures set out in section 178 shall be applicable with regard to the parties’ obligations set out in the present chapter.” The measures to ensure compliance referred to in section 456 (l) above of the Administration of Justice Act as amended in 1937 (sections 177 and 189) are broadly similar to those found in the current Administration of Justice Act, section 178, which reads as follows: “If for no legitimate reason a witness fails to appear ... or for no legitimate reason refuses to testify, the court may impose a fine on the witness fetch the witness with the assistance of the police order the witness to reimburse costs occasioned by him or her impose a daily fine, for a period not exceeding six months in the same case, continuously or in total impose police detention or impose on the witness the measures prescribed in section 765, until the person appears before the court to give testimony or until the witness agrees to testify. Such measures may not be applied for a period of more than six months in the same case, continuously or in total. Section 16 (1) of the Act on Coroner’s Inquests, Post-Mortem Examinations and Transplantation, etc., reads as follows: “Interference with a corpse, other than that mentioned in chapters 3 and 4, may take place only if the deceased person, having turned 18 years old, gave his or her consent in writing.” | 0 |
train | 001-87510 | ENG | FIN | CHAMBER | 2,008 | CASE OF I v. FINLAND | 3 | Violation of Art. 8;Pecuniary damage - award;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 5. The applicant was born in 1960. 6. Between 1989 and 1994 the applicant worked on fixed-term contracts as a nurse in the polyclinic for eye diseases in a public hospital. From 1987 she paid regular visits to the polyclinic for infectious diseases of the same hospital, having been diagnosed as HIV-positive. 7. Early in 1992 the applicant began to suspect that her colleagues were aware of her illness. At that time hospital staff had free access to the patient register which contained information on patients’ diagnoses and treating doctors. Having confided her suspicions to her doctor in summer 1992, the hospital’s register was amended so that henceforth only the treating clinic’s personnel had access to its patients’ records. The applicant was registered in the patient register under a false name. Apparently later her identity was changed once again and she was given a new social security number. 8. In 1995 the applicant changed her job as her temporary contract was not renewed. 9. On 25 November 1996, the applicant complained to the County Administrative Board (lääninhallitus, länsstyrelsen), requesting it to examine who had accessed her confidential patient record. Upon request, the director in charge of the hospital’s archives filed a statement with the County Administrative Board, according to which it was not possible to find out who, if anyone, had accessed the applicant’s patient record as the data system revealed only the five most recent consultations (by working unit and not by person) and even this information was deleted once the file was returned to the archives. 10. In its decision of 20 October 1997 the County Administrative Board held that: “Section 12 of the Patient’s Status and Rights Act (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter) provides that the health authorities and staff have to comply with the regulations issued by the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet, “the Ministry”) when preparing and processing patient records. Pursuant to this section the Ministry has issued, on 25 February 1993, Regulation no. 16/02/93. In the said Regulation it is noted that patients records must be prepared having due regard to the secrecy regulations and the protection obligation and the duty to take care pursuant to the Personal Files Act (henkilörekisterilaki, personregisterlagen; Act no. 471/1987). According to the duty to take care, precaution and good registering practices must be observed when gathering, depositing, using and delivering data and these must be done in a manner so as not to infringe unnecessarily the right to privacy of the registered person or his or her benefits and rights. The protection obligation means that data in patient records must be duly protected against unauthorised processing, use, destruction, amendment and theft (sections 3 and 26 of the Personal Files Act). In the said Regulation it is also noted that the patient records must form an entity to ensure that outsiders cannot gain unauthorised access to them and that, in addition to the said obligations, in accordance with the Personal Files Act, the purpose of use of the said data can be taken into account. This way it can be made sure that requisite patient data are only given to the personnel participating in the treatment of the patient. [The applicant] has in her representations alleged that [X], who is working for [the hospital] has ordered up the case history of [the applicant’s ex-husband] and that someone else has ordered up her file or visited the archives and read her file and/or that of [her son] and that the data have been transmitted to [Y] and other staff mentioned in [the applicant’s] representations. [X] has contested having proceeded erroneously. The other persons mentioned in [the applicant’s] representations have contested having had knowledge of the data mentioned therein concerning [the applicant] and her family. According to the director in charge of [the hospital’s] archives it is not possible to retroactively clarify the use of patient records. The data system reveals only the five most recent consultations (by working unit and not by person) but this information is deleted once the file has been returned to the archives. Therefore, the County Administrative Board cannot further rule on whether information contained in the patient records has been used by or given to an outsider. Having regard to the foregoing, the County Administrative Board however finds that the system should record any consultation of patient files as a safeguard of privacy in order to ensure that the responsibility for a possible leak of information can be individualised. For the future, the County Administrative Board draws the hospital’s attention to the protection obligation and the duty to take care provided by the Personal Files Act, and further, to the need to ensure that privacy protection is not put at risk when processing medical data within the hospital. ...” 11. Subsequently, in March 1998, the hospital’s register was amended in that it became possible retrospectively to identify any person who had accessed a patient record. 12. On 15 May 2000, the applicant instituted civil proceedings against the District Health Authority (sairaanhoitopiirin kuntayhtymä, samkommunen för sjukvårdsdistriktet), which was responsible for the hospital’s patient register, claiming non-pecuniary and pecuniary damage for the alleged failure to keep her patient record confidential. 13. On 10 April 2001, the District Court (käräjäoikeus, tingsrätten), having held an oral hearing, rejected the action. Having assessed the evidence before it, including five witness statements, the decision of the County Administrative Board and a statement of the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), the court did not find firm evidence that the applicant’s patient record had been unlawfully consulted. 14. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten), maintaining her claim that the hospital had not complied with the domestic law, in breach of her right to respect for her private life. 15. On 7 March 2002, the Court of Appeal, having held an oral hearing, considered that the applicant’s testimony about the events, such as her colleagues’ hints and remarks about her HIV infection, was reliable and credible. Like the District Court it did not, however, find firm evidence that her patient record had been unlawfully consulted. It ordered the applicant to reimburse the respondent’s legal expenses before the District Court and the Court of Appeal, amounting to 2,000 euros (EUR) and EUR 3,271.80 plus interest, respectively. 16. In her application for leave to appeal to the Supreme Court (korkein oikeus), the applicant claimed inter alia that there had been a violation of her right to respect for her private life. 17. On 23 December 2002 the Supreme Court refused leave to appeal. 18. The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed. 19. Until 1 June 1999, the rules governing the use and confidentiality of personal data were laid down in the Personal Files Act of 1987. Sections 6 and 7 of the Act prohibited the processing of sensitive personal data, including information on a person’s health and medical treatment, except within the health authorities. Unauthorised disclosure of personal data was prohibited under section 18 and illegal use of disclosed data was prohibited under section 21. Pursuant to section 26 the data controller had to ensure that personal data and information contained therein were appropriately secured against any unlawful processing, use, destruction, amendment and theft. In this regard, the explanatory report of the Government Bill (no. 49/1986) for the enactment of the Personal Files Act stated that the mere existence of legal provisions did not suffice to guarantee the protection of privacy. In addition, the data controller had to make sure that data were protected de facto. When planning the physical protection of the data system regard must be had to, inter alia, whether the system was manual or automated. The delicate nature of the information naturally affected the scope of the protection obligation. Under section 42, the data controller was liable to compensate pecuniary damage suffered as a result of the use or disclosure of incorrect personal data or of unlawful use or disclosure of personal data. 20. On 1 June 1999, a new Personal Data Act (henkilötietolaki, personuppgiftslag; Act no. 523/1999) entered into force. Section 11 of the Act prohibits processing of sensitive personal data. However, under section 12, health care professionals may process data relating to a person’s state of health, illness, handicap or treatment if they are indispensable in his/her treatment. Section 32 provides that the data controller shall carry out the technical and organisational measures necessary for securing personal data against unauthorised access, accidental or unlawful destruction, manipulation, disclosure and transfer as well as against other unlawful processing. Section 33 lays down a secrecy obligation for those who have gained knowledge of someone’s personal circumstances. Under section 47, the data controller is liable to compensate pecuniary and other damage suffered by the data subject or another person as a result of the processing of personal data in violation of the provisions of the Act. 21. The Patient’s Status and Rights Act entered into force on 1 March 1993. Section 12, as in force until 1 August 2000, provided that the health authorities had to comply with the regulations issued by the Ministry for Social Affairs and Health (“the Ministry”) when creating and processing patients’ personal and medical data. 22. According to the Ministry’s Regulation no. 16/02/93, issued on 25 February 1993, a patient’s privacy had to be secured when creating and processing his/her patient record. The data controller had to make sure that outsiders could not gain unauthorised access to sensitive personal data and that only the personnel treating a patient had access to his/her patient register. 23. Section 13 of the Patient’s Status and Rights Act provided that health care professionals or other persons working in a health care unit were not allowed to reveal to an outsider (that is a person not participating in the treatment of the patient) information contained in the patient documents without the written consent of the patient. The said section has been amended as of 1 August 2000 (Act no. 653/2000) to the effect that it must be recorded in the data file if patient records have been revealed as well as the grounds for the disclosure. 24. Further, the Health Care Professionals Act (laki terveydenhuollon ammattihenkilöistä, lag om yrkesutbildade personer inom hälso- och sjukvården; Act no. 559/1994) contains provisions on the retention of patient documents and their confidentiality (section 16) and on the obligation of secrecy (section 17). 25. Finally, the new Electronic Processing of Client Information Act (laki sosiaali- ja terveydenhuollon asiakastietojen sähköisestä käsittelystä, lag om elektronisk behandling av klientuppgifter inom social- och hälsovården; Act no. 159/2007) entered into force on 1 July 2007. The aim of this Act is to further enforce patients’ rights in the context of the processing of electronic personal data within the social and health care. | 1 |
train | 001-67614 | ENG | TUR | GRANDCHAMBER | 2,004 | CASE OF ÖNERYILDIZ v. TURKEY | 1 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 9. The applicant was born in 1955 and is now living in the district of Şirvan (province of Siirt), the area where he was born. At the material time he was living with twelve close relatives in the slum quarter (gecekondu mahallesi) of Kazım Karabekir in Ümraniye, a district of Istanbul, where he had moved after resigning from his post as a village guard in south-eastern Turkey. 10. Since the early 1970s a household-refuse tip had been in operation in Hekimbaşı, a slum area adjoining Kazım Karabekir. On 22 January 1960 Istanbul City Council (“the city council”) had been granted use of the land, which belonged to the Forestry Commission (and therefore to the Treasury), for a term of ninety-nine years. Situated on a slope overlooking a valley, the site spread out over a surface area of approximately 35 hectares and from 1972 onwards was used as a rubbish tip by the districts of Beykoz, Üsküdar, Kadıköy and Ümraniye under the authority and responsibility of the city council and, ultimately, the ministerial authorities. When the rubbish tip started being used, the area was uninhabited and the closest built-up area was approximately 3.5 km away. However, as the years passed, rudimentary dwellings were built without any authorisation in the area surrounding the rubbish tip, which eventually developed into the slums of Ümraniye. According to an official map covering the areas of Hekimbaşı and Kazım Karabekir, produced by Ümraniye District Council’s Technical Services Department, the applicant’s house was built on the corner of Dereboyu Street and Gerze Street. That part of the settlement was adjacent to the municipal rubbish tip and since 1978 had been under the authority of a local mayor answerable to the district council. The Ümraniye tip no longer exists. The local council had it covered with earth and installed air ducts. Furthermore, land-use plans are currently being prepared for the areas of Hekimbaşı and Kazım Karabekir. The city council has planted trees on a large area of the former site of the tip and has had sports grounds laid. 11. Following the local elections of 26 March 1989, Ümraniye District Council sought to amend the urban development plan on a scale of 1:1,000. However, the decision-making authorities refused to adopt the plan as it covered an area that ran very close to the municipal rubbish tip. From 4 December of that year Ümraniye District Council began dumping heaps of earth and refuse on to the land surrounding the Ümraniye slums in order to redevelop the site of the rubbish tip. However, on 15 December 1989 M.C. and A.C., two inhabitants of the Hekimbaşı area, brought proceedings against the district council in the Fourth Division of the Üsküdar District Court to establish title to land. They complained of damage to their plantations and sought to have the work halted. In support of their application, M.C. and A.C. produced documents showing that they had been liable for council tax and property tax since 1977 under tax no. 168900. In 1983 the authorities had asked them to fill in a standard form for the declaration of illegal buildings so that their title to the properties and land could be regularised (see paragraph 54 below). On 21 August 1989, at their request, the city council’s water and mains authority had ordered a water meter to be installed in their house. Furthermore, copies of electricity bills show that M.C. and A.C., as consumers, made regular payments for the power they had used on the basis of readings taken from a meter installed for that purpose. 12. In the District Court, the district council based its defence on the fact that the land claimed by M.C. and A.C. was situated on the waste-collection site; that residence there was contrary to health regulations; and that their application for regularisation of their title conferred no rights on them. In a judgment delivered on 2 May 1991 (case no. 1989/1088), the District Court found for M.C. and A.C., holding that there had been interference with the exercise of their rights over the land in question. However, the Court of Cassation set the judgment aside on 2 March 1992. On 22 October 1992 the District Court followed the Court of Cassation’s judgment and dismissed M.C.’s and A.C.’s claims. 13. On 9 April 1991 Ümraniye District Council applied to the Third Division of the Üsküdar District Court for experts to be appointed to determine whether the rubbish tip complied with the relevant regulations, in particular the Regulations on Solid-Waste Control of 14 March 1991. The district council also applied for an assessment of the damage it had sustained, as evidence in support of an action for damages it was preparing to bring against the city council and the councils of the three other districts that used the tip. The application for an expert opinion was registered as case no. 1991/76, and on 24 April 1991 a committee of experts was set up for that purpose, comprising a professor of environmental engineering, a land registry official and a forensic medical expert. According to the experts’ report, drawn up on 7 May 1991, the rubbish tip in question did not conform to the technical requirements set forth, inter alia, in regulations 24 to 27, 30 and 38 of the Regulations of 14 March 1991 and, accordingly, presented a number of dangers liable to give rise to a major health risk for the inhabitants of the valley, particularly those living in the slum areas: no walls or fencing separated the tip from the dwellings fifty metres away from the mountain of refuse, the tip was not equipped with collection, composting, recycling or combustion systems, and no drainage or drainage-water purification systems had been installed. The experts concluded that the Ümraniye tip “exposed humans, animals and the environment to all kinds of risks”. In that connection the report, drawing attention first to the fact that some twenty contagious diseases might spread, underlined the following: “... In any waste-collection site gases such as methane, carbon dioxide and hydrogen sulphide form. These substances must be collected and ... burnt under supervision. However, the tip in question is not equipped with such a system. If methane is mixed with air in a particular proportion, it can explode. This installation contains no means of preventing an explosion of the methane produced as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. ...” On 27 May 1991 the report was brought to the attention of the four councils in question, and on 7 June 1991 the governor was informed of it and asked to brief the Ministry of Health and the Prime Minister’s Environment Office (“the Environment Office”). 14. Kadıköy and Üsküdar District Councils and the city council applied on 3, 5 and 9 June 1991 respectively to have the expert report set aside. In their notice of application the councils’ lawyers simply stated that the report, which had been ordered and drawn up without their knowledge, contravened the Code of Civil Procedure. The three lawyers reserved the right to file supplementary pleadings in support of their objections once they had obtained all the necessary information and documents from their authorities. As none of the parties filed supplementary pleadings to that end, the proceedings were discontinued. 15. However, the Environment Office, which had been advised of the report on 18 June 1991, made a recommendation (no. 09513) urging the Istanbul Governor’s Office, the city council and Ümraniye District Council to remedy the problems identified in the present case: “... The report prepared by the committee of experts indicates that the waste-collection site in question breaches the Environment Act and the Regulations on Solid-Waste Control and consequently poses a health hazard to humans and animals. The measures provided for in regulations 24, 25, 26, 27, 30 and 38 of the Regulations on Solid-Waste Control must be implemented at the site of the tip ... I therefore ask for the necessary measures to be implemented ... and for our office to be informed of the outcome.” 16. On 27 August 1992 Şinasi Öktem, the mayor of Ümraniye, applied to the First Division of the Üsküdar District Court for the implementation of temporary measures to prevent the city council and the neighbouring district councils from using the waste-collection site. He requested, in particular, that no further waste be dumped, that the tip be closed and that redress be provided in respect of the damage sustained by his district. On 3 November 1992 Istanbul City Council’s representative opposed that request. Emphasising the city council’s efforts to maintain the roads leading to the rubbish tip and to combat the spread of diseases, stray dogs and the emission of odours, the representative submitted, in particular, that a plan to redevelop the site of the tip had been put out to tender. As regards the request for the temporary closure of the tip, the representative asserted that Ümraniye District Council was acting in bad faith in that, since it had been set up in 1987, it had done nothing to decontaminate the site. Istanbul City Council had indeed issued a call for tenders for the development of new sites conforming to modern standards. The first planning contract was awarded to the American firm CVH2M Hill International Ltd, and on 21 December 1992 and 17 February 1993 new sites were designed for the European and Anatolian sides of Istanbul respectively. The project was due for completion in the course of 1993. 17. While those proceedings were still pending, Ümraniye District Council informed the mayor of Istanbul that from 15 May 1993 the dumping of waste would no longer be authorised. 18. On 28 April 1993 at about 11 a.m. a methane explosion occurred at the site. Following a landslide caused by mounting pressure, the refuse erupted from the mountain of waste and engulfed some ten slum dwellings situated below it, including the one belonging to the applicant. Thirty-nine people died in the accident. 19. Immediately after the accident two members of the municipal police force sought to establish the facts. After taking evidence from the victims, including the applicant, who explained that he had built his house in 1988, they reported that thirteen huts had been destroyed. On the same day the members of a crisis unit set up by the Istanbul Governor’s Office also went to the site and found that the landslide had indeed been caused by a methane explosion. 20. The next day, on 29 April 1993, the Ministry of the Interior (“the Ministry”) ordered the Administrative Investigation Department (“the investigation department”) to examine the circumstances in which the disaster had occurred in order to determine whether proceedings should be instituted against the two mayors, Mr Sözen and Mr Öktem. 21. While those administrative proceedings were under way, on 30 April 1993 the Üsküdar public prosecutor (“the public prosecutor”) went to the scene of the accident, accompanied by a committee of experts composed of three civil-engineering professors from three different universities. In the light of his preliminary observations, he instructed the committee to determine how liability for the accident should be apportioned among the public authorities and the victims. 22. On 6 May 1993 the applicant lodged a complaint at the local police station. He stated: “If it was the authorities who, through their negligence, caused my house to be buried and caused the death of my partners and children, I hereby lodge a criminal complaint against the authority or authorities concerned.” The applicant’s complaint was added to the investigation file (no. 1993/6102), which the public prosecutor had already opened of his own motion. 23. On 14 May 1993 the public prosecutor heard evidence from a number of witnesses and victims of the accident. On 18 May 1993 the committee of experts submitted the report ordered by the public prosecutor. In its report the committee noted, firstly, that there was no development plan on a scale of 1:5,000 for the region, that the urban development plan on a scale of 1:1,000 had not been approved and that most of the dwellings that had been engulfed had in fact been outside the area covered by the urban development plan, on the far edge of the site of the rubbish tip. The experts confirmed that the landslide – affecting land which had already been unstable – could be explained both by the mounting pressure of the gas inside the tip and by the explosion of the gas. Reiterating the public authorities’ obligations and duties under the relevant regulations, the experts concluded that liability for the accident should be apportioned as follows: “(i) 2/8 to Istanbul City Council, for failing to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and have continued to increase since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law no. 3030; (ii) 2/8 to Ümraniye District Council for implementing a development plan while omitting, contrary to Regulations on Solid-Waste Control (no. 20814), to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the area and taking no steps to prevent them from being built, despite the experts’ report of 7 May 1991; (iii) 2/8 to the slum inhabitants for putting the members of their families in danger by settling near a mountain of waste; (iv) 1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with the Regulations on Solid-Waste Control (no. 20814); (v) 1/8 to the government for encouraging the spread of this type of settlement by declaring an amnesty in relation to illegal dwellings on a number of occasions and granting property titles to the occupants.” 24. On 21 May 1993 the public prosecutor made an order declining jurisdiction ratione personae in respect of the administrative authorities that had been held liable, namely Istanbul City Council, Ümraniye District Council, the Ministry of the Environment and the heads of government from the period between 1974 and 1993. He accordingly referred the case to the Istanbul governor, considering that it came under the Prosecution of Civil Servants Act, the application of which was a matter for the administrative council of the province of Istanbul (“the administrative council”). However, the public prosecutor stated in his order that the provisions applicable to the authorities in question were Article 230 and Article 455 § 2 of the Criminal Code, which respectively concerned the offences of negligence in the performance of public duties and negligent homicide. In so far as the case concerned the possible liability of the slum inhabitants – including the applicant – who were not only victims but had also been accused under Article 455 § 2 of the Criminal Code, the public prosecutor expressed the opinion that, as the case stood, it was not possible to disjoin their complaints, having regard to sections 10 and 15 of the above-mentioned Act. On 27 May 1993, when the investigation department had completed the preliminary inquiry, the public prosecutor’s file was transmitted to the Ministry. 25. On 27 May 1993, having regard to the conclusions of its own inquiry, the investigation department sought authorisation from the Ministry to open a criminal investigation in respect of the two mayors implicated in the case. 26. The day after that request was made Ümraniye District Council made the following announcement to the press: “The sole waste-collection site on the Anatolian side stood in the middle of our district of Ümraniye like an object of silent horror. It has broken its silence and caused death. We knew it and were expecting it. As a district council, we had been hammering at all possible doors for four years to have this waste-collection site removed. We were met with indifference by Istanbul City Council. It abandoned the decontamination works ... after laying two spades of concrete at the inauguration. The ministries and the government were aware of the facts, but failed to take much notice. We had submitted the matter to the courts and they had found in our favour, but the judicial machinery could not be put into action. ... We must now face up to our responsibilities and will all be accountable for this to the inhabitants of Ümraniye ...” 27. The authorisation sought by the investigation department was granted on 17 June 1993 and a chief inspector from the Ministry (“the chief inspector”) was accordingly put in charge of the case. In the light of the investigation file compiled in the case, the chief inspector took down statements from Mr Sözen and Mr Öktem. The latter stated, among other things, that in December 1989 his district council had begun decontamination works in the Hekimbaşı slum area, but that these had been suspended at the request of two inhabitants of the area (see paragraph 11 above). 28. The chief inspector finalised his report on 9 July 1993. It endorsed the conclusions reached by all the experts instructed hitherto and took account of all the evidence gathered by the public prosecutor. It also mentioned two other scientific opinions sent to the Istanbul Governor’s Office in May 1993, one by the Ministry of the Environment and the other by a professor of civil engineering at Boğaziçi University. These two opinions confirmed that the fatal landslide had been caused by the methane explosion. The report also indicated that on 4 May 1993 the investigation department had requested the city council to inform it of the measures actually taken in the light of the expert report of 7 May 1991, and it reproduced Mr Sözen’s reply: “Our city council has both taken the measures necessary to ensure that the old sites can be used in the least harmful way possible until the end of 1993 and completed all the preparations for the construction of one of the biggest and most modern installations ... ever undertaken in our country. We are also installing a temporary waste-collection site satisfying the requisite conditions. Alongside that, renovation work is ongoing at former sites [at the end of their life span]. In short, over the past three years our city council has been studying the problem of waste very seriously ... [and] currently the work is continuing ...” 29. The chief inspector concluded, lastly, that the death of twenty-six people and the injuries to eleven others (figures available at the material time) on 28 April 1993 had been caused by the two mayors’ failure to take appropriate steps in the performance of their duties and that they should be held to account for their negligence under Article 230 of the Criminal Code. In spite of, inter alia, the expert report and the recommendation of the Environment Office, they had knowingly breached their respective duties: Mr Öktem because he had failed to comply with his obligation to order the destruction of the illegal huts situated around the rubbish tip, as he was empowered to do under section 18 of Law no. 775, and Mr Sözen because he had refused to comply with the above-mentioned recommendation, had failed to renovate the rubbish tip or order its closure, and had not complied with any of the provisions of section 10 of Law no. 3030, which required him to order the destruction of the slum dwellings in question, if necessary by his own means. However, in his observations the chief inspector did not deal with the question whether Article 455 § 2 of the Criminal Code was applicable in the instant case. 30. In the meantime, the Department of Housing and Rudimentary Dwellings had asked the applicant to contact it, informing him that in an order (no. 1739) of 25 May 1993 the city council had allocated him a flat in a subsidised housing complex in Çobançeşme (Eyüp, Alibeyköy). On 18 June 1993 the applicant signed for possession of flat no. 7 in building C1 of that complex. That transaction was made official on 17 September 1993 in an order by the city council (no. 3927). On 13 November 1993 the applicant signed a notarially recorded declaration in lieu of a contract stating that the flat in question had been “sold” to him for 125,000,000 Turkish liras (TRL), a quarter of which was payable immediately and the remainder in monthly instalments of TRL 732,844. It appears likely that the initial payment was made to the Istanbul Governor’s Office, which forwarded it to the city council. The applicant paid the first monthly instalment on 9 November 1993 and continued to make payments until January 1996. In the meantime, prior to 23 February 1995, he had let his flat to a certain H.Ö. for a monthly rent of TRL 2,000,000. It appears that from January 1996 the authorities had to avail themselves of enforcement proceedings in order to recover the outstanding instalments. On 24 March 1998 the applicant, who by that time had discharged his debt to the city council, gave a notarially recorded undertaking to sell his flat to a certain E.B. in return for a down payment of 20,000 German marks. 31. In an order of 15 July 1993, the administrative council decided, by a majority, on the basis of the chief inspector’s report, to institute proceedings against Mr Sözen and Mr Öktem for breaching Article 230 of the Criminal Code. Mr Sözen and Mr Öktem appealed against that decision to the Supreme Administrative Court, which dismissed their appeal on 18 January 1995. The case file was consequently sent back to the public prosecutor, who on 30 March 1995 committed both mayors for trial in the Fifth Division of the Istanbul Criminal Court. 32. The trial before the Division began on 29 May 1995. At the hearing Mr Sözen stated, among other things, that he could not be expected to have complied with duties which were not incumbent on him or be held solely responsible for a situation which had endured since 1970. Nor could he be blamed for not having renovated the Ümraniye tip when none of the 2,000 sites in Turkey had been renovated; in that connection, relying on a number of measures which had nonetheless been taken by the city council, he argued that the tip could not have been fully redeveloped as long as waste continued to be dumped on it. Lastly, he stated: “The elements of the offence of negligence in the performance of duties have not been made out because I did not act with the intention of showing myself to be negligent [sic] and because no causal link can be established [between the incident and any negligence on his part].” Mr Öktem submitted that the groups of dwellings which had been engulfed dated back to before his election on 26 March 1989 and that since then he had never allowed slum areas to develop. Accusing the Istanbul City Council and Governor’s Office of indifference to the problems, Mr Öktem asserted that responsibility for preventing the construction of illegal dwellings lay with the forestry officials and that, in any event, his district council lacked the necessary staff to destroy such dwellings. 33. In a judgment of 4 April 1996, the Division found the two mayors guilty as charged, considering their defence to be unfounded. The judges based their conclusion, in particular, on the evidence that had already been obtained during the extensive criminal inquiries carried out between 29 April 1993 to 9 July 1993 (see paragraphs 19 and 28 above). It also appears from the judgment of 30 November 1995 that, in determining the share of liability incurred by each of the authorities in question, the judges unhesitatingly endorsed the findings of the expert report drawn up on this precise issue at the public prosecutor’s request, which had been available since 18 May 1993 (see paragraph 23 above). The judges also observed: “... although they had been informed of the [experts’] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. ... They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that recklessness with their lives ...” 34. The Division sentenced Mr Sözen and Mr Öktem to the minimum term of imprisonment provided for in Article 230 of the Criminal Code, namely three months, and to fines of TRL 160,000. Under section 4(1) of Law no. 647, the Division commuted the prison sentences to fines, so the penalties ultimately imposed were fines of TRL 610,000. Satisfied that the defendants would not reoffend, the Division also decided to suspend enforcement of the penalties in accordance with section 6 of the same Law. 35. Both mayors appealed on points of law. They submitted, in particular, that the Division had gone beyond the scope of Article 230 of the Criminal Code in its assessment of the facts, and had treated the case as one of unintentional homicide within the meaning of Article 455 of the Code. In a judgment of 10 November 1997, the Court of Cassation upheld the Division’s judgment. 36. The applicant has apparently never been informed of those proceedings or given evidence to any of the administrative bodies of investigation or the criminal courts; nor does any court decision appear to have been served on him. 37. On 3 September 1993 the applicant applied to Ümraniye District Council, Istanbul City Council and the Ministries of the Interior and the Environment, seeking compensation for both pecuniary and non-pecuniary damage. The applicant’s claim was broken down as follows: TRL 150,000,000 in damages for the loss of his dwelling and household goods; TRL 2,550,000,000, TRL 10,000,000, TRL 15,000,000 and TRL 20,000,000 in compensation for the loss of financial support incurred by himself and his three surviving sons, Hüsamettin, Aydın and Halef; and TRL 900,000,000 for himself and TRL 300,000,000 for each of his three sons in respect of the non-pecuniary damage resulting from the deaths of their close relatives. 38. In letters of 16 September and 2 November 1993, the mayor of Ümraniye and the Minister for the Environment dismissed the applicant’s claims. The other authorities did not reply. 39. The applicant then sued the four authorities for damages in his own name and on behalf of his three surviving children in the Istanbul Administrative Court (“the court”). He complained that their negligent omissions had resulted in the death of his relatives and the destruction of his house and household goods, and again sought the aforementioned amounts. On 4 January 1994 the applicant was granted legal aid. 40. The court gave judgment on 30 November 1995. Basing its decision on the experts’ report of 18 May 1993 (see paragraph 23 above), it found a direct causal link between the accident of 28 April 1993 and the contributory negligence of the four authorities concerned. Accordingly, it ordered them to pay the applicant and his children TRL 100,000,000 for non-pecuniary damage and TRL 10,000,000 for pecuniary damage (at the material time those amounts were equivalent to approximately 2,077 and 208 euros respectively). The latter amount, determined on an equitable basis, was limited to the destruction of household goods, save the domestic electrical appliances, which the applicant was not supposed to own. On that point the court appears to have accepted the authorities’ argument that “these dwellings had neither water nor electricity”. The court dismissed the remainder of the claim, holding that the applicant could not maintain that he had been deprived of financial support since he had been partly responsible for the damage incurred and the victims had been young children or housewives who had not been in paid employment such as to contribute to the family’s living expenses. The court also held that the applicant was not entitled to claim compensation for the destruction of his slum dwelling given that, following the accident, he had been allocated a subsidised flat and that, although Ümraniye District Council had not exercised its power to destroy the dwelling, there had been nothing to prevent it from doing so at any time. The court decided, lastly, not to apply default interest to the sum awarded for non-pecuniary damage. 41. The parties appealed against that judgment to the Supreme Administrative Court, which dismissed their appeal in a judgment of 21 April 1998. An application by Istanbul City Council for rectification of the judgment was likewise unsuccessful, and the judgment accordingly became final and was served on the applicant on 10 August 1998. 42. The compensation awarded has still not been paid. 43. On 22 December 2000 Law no. 4616 came into force, providing for the suspension of the enforcement of judicial measures pending in respect of certain offences committed before 23 April 1999. On 22 April 2003 the Ministry of Justice informed the Istanbul public prosecutor’s office that it had been impossible to conclude the criminal investigation pending in respect of the slum inhabitants, that the only decision concerning them had been the order of 21 May 1993 declining jurisdiction and that the charge against them would become time-barred on 28 April 2003. Consequently, on 24 April 2003 the Istanbul public prosecutor decided to suspend the opening of criminal proceedings against the inhabitants, including the applicant, and four days later the criminal proceedings against them became time-barred. 44. The relevant provisions of the Criminal Code read as follows: “Any agent of the State who, in the performance of his public duties, ... acts negligently and delays or, for no valid reason, refuses to comply with the lawful orders ... of his superiors shall be liable to a term of imprisonment of between three months and one year and to a fine of between 6,000 and 30,000 Turkish liras. ... In every ... case, if third parties have suffered any damage on account of the negligence or delay by the civil servant in question, the latter shall also be required to compensate for such damage.” “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras. If the act has caused the death of more than one person or has resulted in the death of one person and injuries to one or more others ... the perpetrator shall be sentenced to a term of imprisonment of between four and ten years and to a heavy fine of a minimum of 60,000 Turkish liras.” “The court shall have full discretion to determine the principal sentence, which can vary between a minimum and maximum, taking account of factors such as the circumstances in which the offence was committed, the means used to commit it, the importance and seriousness of the offence, the time and place at which it was committed, the various special features of the offence, the seriousness of the damage caused and the risk [incurred], the degree of [criminal] intent ..., the reasons and motives for the offence, the aim, the criminal record, the personal and social status of the perpetrator and his conduct following the act [committed]. Even where the minimum penalty is imposed, the reasons for the choice of sentence must be mentioned in the judgment.” “If the court considers that, other than the statutory mitigating circumstances, there are other circumstances favourable to reducing the penalty [imposed] on the perpetrator, capital punishment shall be commuted to life imprisonment and life imprisonment to a term of imprisonment of thirty years. Other penalties shall be reduced by a maximum of one-sixth.” 45. Sections 4(1) and 6(1) of the Execution of Sentences Act (Law no. 647) read as follows: “The court may, having regard to the defendant’s personality and situation and to the circumstances in which the offence was committed, commute short custodial sentences, but not long-term imprisonment: 1. to a heavy fine ... of between 5,000 and 10,000 Turkish liras per day; ...” “Where a person who has never been sentenced ... to a penalty other than a fine is sentenced to ... a fine ... and/or [up to] one year’s imprisonment, execution of the sentence may be suspended if the court is satisfied that [the offender], having regard to his tendency to break the law, will not reoffend if his sentence is thus suspended ...” 46. Under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, is informed of a situation which gives rise to a suspicion that an offence has been committed must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, if the suspected offender is a civil servant and the offence was committed in the performance of his duties, the investigation of the case is governed by the Prosecution of Civil Servants Act of 1914, which restricts the public prosecutor’s jurisdiction ratione personae with regard to 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. 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. 47. Turkish criminal law affords complainants the opportunity to intervene in criminal proceedings. Article 365 of the Code of Criminal Procedure contains a provision enabling complainants and anyone who considers that they have sustained injury as a result of a criminal offence to apply to join as an “intervening party” proceedings that have already been instituted by the public prosecutor and, consequently, to act alongside the prosecution. After consulting the public prosecutor, the court is required to rule on the admissibility of the application to join the proceedings as an intervening party (Article 366 of the Code of Criminal Procedure). 48. If the application is allowed, the intervening party may, among other things, claim compensation for damage resulting from the offence as a direct victim. That possibility, which is similar to those offered by “civilparty applications” or “civil actions” in the legislation of numerous Council of Europe member States, is nonetheless subject to certain precise rules. According to the Court of Cassation’s case-law, for a decision to be given on the compensation to be awarded as a result of an offence, the injured person must not only apply to join the proceedings as an intervening party but must also explicitly assert his or her right to compensation. Under Turkish law, such a claim is not deemed to be an integral part of an intervening-party application. The claim for compensation does not have to be made at the same time as the intervening-party application; it can be made at a later stage, provided that no action for damages has already been brought in the civil or administrative courts. Furthermore, all claims for compensation within the meaning of Article 358 (or Article 365 § 2) of the Code of Criminal Procedure must be specific and substantiated since, in assessing such claims, the criminal courts are required to apply the relevant civil-law rules, including the prohibition on awarding an amount higher than the claim. Conviction of the defendant is necessary for a decision to be given on the intervening party’s entitlement to compensation. 49. With regard to civil and administrative liability arising out of criminal offences, section 13 of the Administrative Procedure Act (Law no. 2577) provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act. If this claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. The organisation of the administrative courts and the status of their judges are governed by the Administrative Courts (Powers and Composition) Act (Law no. 2576) of 6 January 1982 and the Supreme Administrative Court Act (Law no. 2575). 50. Under the Code of Obligations, anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53). However, under section 13 of the Civil Servants Act (Law no. 657), anyone who has sustained loss as a result of an act carried out in the performance of duties governed by public law may, in theory, only bring an action against the public authority by which the civil servant concerned is employed and not directly against the civil servant (Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. Where an act is found to be tortious or criminal 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). 51. Article 138 § 4 of the 1982 Constitution provides: “The bodies of executive and legislative power and the authorities must comply with court decisions; they cannot in any circumstances modify court decisions or defer enforcement thereof.” Article 28 § 2 of the Code of Administrative Procedure provides: “ Decisions determining administrative-law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law.” Under section 82(1) of the Enforcement and Bankruptcy Act (Law no. 2004), State property and property designated as unseizable in the legislation governing it cannot be seized. Section 19(7) of the Municipalities Act (Law no. 1580 of 3 April 1930) provides that municipal property can be seized only if it is not set aside for public use. According to Turkish legal theory in this field, it follows from the above provisions that if the authorities do not themselves comply with a final and enforceable court decision ordering compensation, the interested party can bring enforcement proceedings under the ordinary law. In that event the appropriate institution is empowered to impose on the authorities the measures provided for in Law no. 2004, although seizure remains exceptional. 52. The relevant provisions of the Constitution regarding the environment and housing read as follows: “Everyone has the right to live in a healthy, balanced environment. It shall be the duty of the State and the citizens to improve and preserve the environment and to prevent environmental pollution. To ensure healthy living conditions for all in physical and psychological terms, ... the State shall establish health institutions and shall regulate the services they provide. The State shall perform this task by utilising and supervising health and social-welfare institutions in both the public and private sectors. ...” “The State shall take appropriate measures to satisfy housing needs by means of a plan that takes into account the characteristics of cities and environmental conditions; it shall also support community housing schemes.” “The State shall perform the tasks assigned to it by the Constitution in the social and economic fields, within the limits of its financial resources and ensuring the maintenance of economic stability.” 53. The information and documents in the Court’s possession show that, since 1960, when inhabitants of underprivileged areas started migrating in their masses to the richer regions, Turkey has been confronted with the problem of slums, consisting in most cases of permanent structures to which further floors were soon added. It would appear that currently more than one-third of the population live in such dwellings. Researchers who have looked into the problem maintain that these built-up areas have not sprung up merely as a result of deficiencies in urban planning or shortcomings on the part of the municipal police. They point to the existence of more than eighteen amnesty laws which have been passed over the years in order to regularise the slum areas and, they believe, satisfy potential voters living in these rudimentary dwellings. 54. The following are the main provisions in Turkish law regarding the prevention of slum development. Section 15(2)(19) of the Municipalities Act (Law no. 1580 of 3 April 1930) requires local councils to prevent and prohibit any buildings or installations that breach the relevant legislation and regulations in that they have been erected without permission or constitute a threat to public health, order and tranquillity. Section 18 of Law no. 775 of 20 July 1966 provides that, after the Law’s entry into force, any illegal building, whether it is in the process of being built or is already inhabited, must be immediately destroyed without any prior decision being necessary. Implementation of these measures is the responsibility of the administrative authorities, which may have recourse to the security forces and other means available to the State. With regard to dwellings built before the Law came into force, section 21 provides that, subject to certain conditions, slum inhabitants may purchase the land they occupy and take out low-interest loans in order to finance the construction of buildings which conform to the regulations and urban development plans. The built-up areas to which the provisions of section 21 apply are designated “slum rehabilitation and clearance zones” and are managed in accordance with a plan of action. Under Law no. 1990 of 6 May 1976, amending Law no. 775, illegal constructions built before 1 November 1976 were also considered to be covered by the above-mentioned section 21. Law no. 2981 of 24 February 1984, on buildings not conforming to the legislation on slums and town planning, also provided for measures to be taken for the conservation, regularisation, rehabilitation and destruction of illegal buildings erected prior to that date. As regards public property, section 18(2) of the Land Registry Act (Law no. 3402) of 21 June 1987 provides: “Common property, ... woodland, premises at the State’s disposal that are set aside for public use, and immovable property reverting to the State in accordance with the legislation governing it, may not be acquired by adverse possession, regardless of whether such property is entered in the land register.” 55. However, Law no. 4706 of 29 June 2001 – which was designed to strengthen the Turkish economy – as amended by Law no. 4916 of 3 July 2003, allows immovable property belonging to the Treasury to be sold to third parties, subject to certain conditions. Section 4(6) and (7) of the Law provide that Treasury-owned land containing buildings erected before 31 December 2000 is to be transferred free of charge to the municipality in which it is situated, for sale on preferential terms to the owners of the buildings or to their heirs. Sales may be made on payment of an advance corresponding to a quarter of the market value of the land, and monthly instalments may be paid over three years. Local authorities are required to draw up land-use plans and implementation plans concerning property transferred to them pursuant to the above-mentioned Law. 56. Section 15(2)(24) of the above-mentioned Law no. 1580 provides that district councils are responsible for collecting household waste at regular intervals by appropriate means and destroying it. By section 6-E, paragraph (j), of the City Councils Act (Law no. 3030) and regulation 22 of the Public Administration Regulations implementing the Act, city councils have a duty to designate sites for the storage of household and industrial waste and to install or have installed systems for treating, recycling and destroying the waste. By regulations 5 and 22 of the Regulations on Solid-Waste Control, published in the Official Gazette of 14 March 1991, district councils are responsible for organising the use of rubbish tips and taking all necessary measures to ensure that their operation does not damage the environment and the health of human beings and animals. Regulation 31 empowers city councils to issue permits for the operation of waste-collection sites within the territory of the district councils under their authority. The Regulations provide that no rubbish tips may be created within 1,000 metres of housing and that, once a site is in operation, no housing may be authorised around the edge of the site (regulation 24) and the site must be fenced off (regulation 25). As regards biogas control, regulation 27 provides: “The mixtures of nitrogen, ammonia, hydrogen sulphide, carbon dioxide and, in particular, methane that result from the microbiological decomposition of the organic matter present in the mass of waste ... and may cause explosions and poisoning shall be collected by means of a vertical and horizontal drainage system and released into the atmosphere in a controlled manner or used to produce energy.” 57. The general information the Court has been able to procure as to the risk of a methane explosion at such sites may be summarised as follows. Methane (CH4) and carbon dioxide (CO2) are the two main products of methanogenesis, which is the final and longest stage of anaerobic fermentation (that is, a process taking place in the absence of air). These substances are generated, inter alia, by the biological and chemical decomposition of waste. The risks of explosion and fire are mainly due to the large proportion of methane in the biogas. The risk of an explosion occurs when the level of CH4 in the air is between 5% and 15%. If the level rises above 15%, methane will catch fire but will not explode. 58. It appears from various circulars and regulations in force in the Council of Europe’s member States regarding household-waste management and the operation of municipal rubbish tips that the main priorities of the authorities and operators concerned include: isolating waste-disposal sites by ensuring that they are not located within a minimum distance of any housing; preventing the risk of landslides by creating stable embankments and dykes and using compaction techniques; and eliminating the risk of fire or biogas explosions. As regards the last-mentioned priority, the recommended method for decontaminating sites appears to entail setting up a drainage system for fermentation gases whereby gases are pumped out and treated using a biological filter as the site continues to operate. A gas-extraction system of this kind, provision for which is also made in the Regulations of 14 March 1991 in force in Turkey, generally consists of perforated vertical ducts drilled into the waste or horizontal drains buried in the mass of waste, a ventilation system, a biological filter and a network of suction pipes. 59. With regard to the various texts adopted by the Council of Europe in the field of the environment and the industrial activities of the public authorities, mention should be made, among the work of the Parliamentary Assembly, of Resolution 587 (1975) on problems connected with the disposal of urban and industrial waste, Resolution 1087 (1996) on the consequences of the Chernobyl disaster, and Recommendation 1225 (1993) on the management, treatment, recycling and marketing of waste, and, among the work of the Committee of Ministers, Recommendation no. R (96) 12 on the distribution of powers and responsibilities between central authorities and local and regional authorities with regard to the environment. Mention should also be made of the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS no. 150 – Lugano, 21 June 1993) and the Convention on the Protection of the Environment through Criminal Law (ETS no. 172 – Strasbourg, 4 November 1998), which to date have been signed by nine and thirteen States respectively. 60. It can be seen from these documents that primary responsibility for the treatment of household waste rests with local authorities, which the governments are obliged to provide with financial and technical assistance. The operation by the public authorities of a site for the permanent deposit of waste is described as a “dangerous activity”, and “loss of life” resulting from the deposit of waste at such a site is considered to be “damage” incurring the liability of the public authorities (see, inter alia, the Lugano Convention, Article 2 §§ 1 (c)-(d) and 7 (a)-(b)). 61. In that connection, the Strasbourg Convention calls on the Parties to adopt such measures “as may be necessary to establish as criminal offences” acts involving the “disposal, treatment, storage ... of hazardous waste which causes or is likely to cause death or serious injury to any person ...”, and provides that such offences may also be committed “with negligence” (Articles 2 to 4). Although this instrument has not yet come into force, it is very much in keeping with the current trend towards harsher penalties for damage to the environment, an issue inextricably linked with the endangering of human life (see, for example, the Council of the European Union’s Framework Decision no. 2003/80 of 27 January 2003 and the European Commission’s proposal of 13 March 2001, amended on 30 September 2002, for a directive on the protection of the environment through criminal law). Article 6 of the Strasbourg Convention also requires the adoption of such measures as may be necessary to make these offences punishable by criminal sanctions which take into account the serious nature of the offences; these must include imprisonment of the perpetrators. 62. Where such dangerous activities are concerned, public access to clear and full information is viewed as a basic human right; for example, the above-mentioned Resolution 1087 (1996) makes clear that this right must not be taken to be limited to the risks associated with the use of nuclear energy in the civil sector. | 1 |
train | 001-93915 | ENG | PRT | CHAMBER | 2,009 | CASE OF PERDIGAO v. PORTUGAL | 3 | Remainder inadmissible;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky | 5. The applicants were born in 1932 and 1933 respectively and live in Lisbon. 6. The applicants owned a piece of land measuring 128,619 m². By order of the Ministry of Public Works, published in the Official Gazette on 11 September 1995, the land was expropriated to build a motorway. 7. During the expropriation proceedings before the first-instance court, then before the Court of Appeal of Evora, the parties discussed whether the potential profit from exploiting a quarry located on the land concerned should be taken into account when calculating the amount to be paid in compensation for the expropriation. The applicants argued that they should be paid 20,864,292 euros (EUR) in compensation. Having examined several expert reports, one of which was ordered by the first-instance court of its own motion, the Evora Court of Appeal finally decided, in a judgment of 10 July 2003, that the potential profit from the quarry should not be taken into account, and awarded the applicants EUR 197,236.25 in compensation for the expropriation. 8. On 7 April 2005 the applicants lodged application no. 12849/05 with the Court, complaining about the lack of compensation regarding the quarry. The application was rejected by a committee on 30 August 2005 as being out of time. 9. On 4 February 2005 the applicants received notice of the court fees payable for the expropriation proceedings. The sum they were expected to pay amounted to EUR 489,188.42. 10. On 22 February 2005 the applicants filed a complaint about the fees, alleging in particular that they violated the principle of fair compensation and the right of access to a court. They also pointed out various inaccuracies and miscalculations. 11. On 1 April 2005, acting on information provided by the registry, the Evora court judge acknowledged the mistakes and ordered their rectification. The amount owed was reduced to EUR 309,052.71, leaving the applicants owing the State EUR 111,816.46 EUR in addition to the full amount of the compensation they had been awarded. The judge dismissed the applicants' complaint regarding the alleged violations. 12. The applicants appealed to the Evora Court of Appeal. In a judgment of 13 December 2005, of which they were notified on 19 December 2005, the Court of Appeal dismissed the appeal. 13. On 12 May 2006 the applicants lodged a constitutional appeal against that decision, alleging that the interpretation of the relevant provisions of the Court Fees Code, particularly Article 66 § 2, was contrary to the principles of fair compensation and the right of access to a court guaranteed in the Constitution. In their view, court fees should on no account exceed the sum awarded to them in compensation for the expropriation of their property. 14. In a judgment of 28 March 2007 the Constitutional Court dismissed their appeal. First it noted that it could only examine the constitutionality of Article 66 § 2 of the Court Fees Code, the only provision the courts below had applied. It then went on to hold that the provision concerned was not contrary to Articles 20 (access to a court) and 62 § 2 (fair compensation) of the Constitution. Concerning access to a court, it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court, this was not the case in this instance as the applicants had to pay only EUR 15,000, a sum it considered reasonable. On the subject of fair compensation, the Constitutional Court found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees, and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation. 15. On 20 April 2007 the applicants filed a request to have that judgment rectified, claiming that the Constitutional Court had made a mistake, in so far as it had considered in its reasoning that the applicants owed EUR 15,000 when they were in fact expected to pay court fees in the sum of EUR 111,816.46 . 16. In a judgment of 25 September 2007 the Constitutional Court acknowledged its mistake and the need to rectify the judgment in respect of Article 20 of the Constitution. It found that EUR 111,816.46 was a large enough sum to have affected the right of access to a court. It accordingly declared Article 66 § 2 of the Court Fees Code, as interpreted by the lower courts, contrary to Article 20 of the Constitution. As regards Article 62 § 2 of the Constitution, however, it held that its earlier decision needed no rectification. 17. On 6 November 2007 the applicants, wishing to know the exact sum they owed in court fees, filed a request for clarification of the judgment of 25 September 2007. 18. In a judgment of 13 November 2007 the Constitutional Court rejected that request, considering that it was for the lower court to determine the sum to be paid. 19. In an order of 4 January 2008, the Evora court, to which the case had been referred back, decided that the fees should not exceed the compensation awarded by more than EUR 15,000. 20. On 20 February 2008 the applicants paid the extra EUR 15,000. 21. Article 20 of the Constitution guarantees the right of access to a court. Article 62 of the Constitution guarantees the right of property and the right to fair compensation in the event of expropriation. 22. The general rule governing court fees is set forth in Article 446 of the Code of Civil Procedure, under the terms of which it is in principle for the losing party to pay the court fees, which are indexed to the sum in dispute in the proceedings. 23. Article 66 § 2 of the Court Fees Code (Código das Custas Judiciais), as applicable at the material time, stipulated that court fees owed by a person whose property had been expropriated were to be “deducted” (saem) from the compensation awarded for the expropriation. 24. Article 16 of the same code provided for the court, in certain circumstances, to be able to exempt a party from paying all or part of the court fees. | 0 |
train | 001-69636 | ENG | RUS | CHAMBER | 2,005 | CASE OF MALINOVSKIY v. RUSSIA | 1 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award | Christos Rozakis | 4. The applicant was born in 1962 and lives in Staryy Oskol, Belgorod Region. 5. In 1986 the applicant was engaged in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant’s entitlement to certain State benefits is linked to the category of disability assigned to him as a result of the deterioration in his health arising from that event. 6. In 1999 the applicant applied for free accommodation from the State. His housing conditions were recognised as substandard and he was placed on a waiting list. 7. In 2001 the applicant brought proceedings against the Belgorod Regional Administration, contesting its failure to make accommodation available to him within three months of placing him on a waiting list. 8. On 10 December 2001 the Starooskolskiy Town Court of the Belgorod Region ruled in the applicant’s favour. It referred to the Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion, noted that the applicant's accommodation was substandard and ordered the Belgorod Regional Administration to provide the applicant with a flat “in accordance with the applicable standard conditions and with the order of precedence on the waiting list”. This judgment was not appealed against, and enforcement proceedings were instituted on 6 February 2002. 9. On 28 June 2002 the bailiffs’ service informed the applicant about a lack of progress in the enforcement proceedings, due to an insufficient number of flats allocated to the waiting list. It advised the applicant to apply to the Starooskolskiy Town Court for replacement of the inkind award, conferred by the judgment of 10 December 2001, with an equivalent amount of money. 10. On 9 October 2002 the bailiffs’ service informed the applicant that it had sought instructions from the Starooskolskiy Town Court concerning enforcement of the judgment of 10 December 2001. In particular, it asked that a time-limit be imposed, within which the authorities were to provide the applicant with a flat. 11. On 2 December 2002 the Oktyabrskiy District Court of Belgorod examined the applicant’s complaint about the failure of the bailiffs’ service to enforce the judgment of 10 December 2001. It found no fault on the part of the service because the judgment had not included a time-limit for enforcement. 12. On 31 July 2003 the Presidium of the Belgorod Regional Court conducted supervisory review of the judgment of 10 December 2001. It held that the statutory time-limit of three months was applicable and not amenable to further extensions. It removed the condition that the flat was to be provided in accordance with the order of precedence on the waiting list and upheld the remainder of the judgment. 13. The applicant was still waiting for accommodation in March 2004. 14. According to the applicant, on 5 March 2004 a group of five people, including the applicant, began a hunger strike to protest against the poor level of welfare protection provided for the Chernobyl victims. The mayor of Staryy Oskol launched a public call for donations in support of the protestors and collected the amount necessary to provide all of them with housing. The applicant submitted a statement signed by four other protesters in support of his version of events. 15. According to the Government, on 2 July 2004 the mayor of Staryy Oskol decided, pursuant to the judgment of 10 December 2001, to provide the applicant with a flat measuring 86.39 m², valued at 834,960 Russian roubles. 16. On 8 July 2004 the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him. He found the flat satisfactory. 17. No decision appears to have been taken as to the pending enforcement proceedings. 18. The Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion (no. 1224-I of 15 May 1991, as amended at the material time) set out that disabled victims of the Chernobyl explosion were to be granted social housing within three months of submitting an appropriate application, provided that their existing accommodation did not comply with the minimum housing standards (section 14 (3)). 19. Section 9 of the Enforcement Proceedings Act (Law no. 119-FZ of 21 July 1997) provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time-limit. Pursuant to section 13, the enforcement proceedings must be completed within two months of the receipt of the writ of execution by the bailiff. 20. The RSFSR Housing Code (Law of 24 June 1983, effective until 1 March 2005) provided that Russian citizens were entitled to possess flats owned by the State or municipal authorities or other public bodies, under the terms of a tenancy agreement (section 10). Certain “protected” categories of individuals (disabled persons, war veterans, Chernobyl victims, police officers, judges, etc.) had a right to priority treatment in the allocation of flats. 21. Decisions on granting flats were to be implemented by way of issuing the citizens concerned with an occupancy voucher (ордер на жилое помещение) from the local municipal authority (section 47). The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord, the tenant and the housing maintenance authority (section 51, and also Articles 672 and 674 of the Civil Code). 22. Members of the tenant’s family (including his or her spouse, children, parents, disabled dependants and other persons) had the same rights and obligations under the tenancy agreement as the tenant (section 53). The tenant had the right to accommodate other persons in the flat (section 54). In the event of the tenant’s death, an adult member of the tenant’s family succeeded him or her as a party to the tenancy agreement (section 88). 23. Flats were granted for permanent use (section 10). The tenant could terminate the tenancy agreement at any moment, with the consent of his or her family members (section 89). The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision (sections 89-90). If the agreement was terminated because the house was no longer fit for residence, the tenant and family were to receive a substitute flat with full amenities (section 91). Tenants or members of their family could be evicted without provision of substitute accommodation only if they “systematically destroyed or damaged the flat”, “used it for purposes other than residence” or “systematically breached the [generally accepted rules of conduct] making life with others impossible” (section 98). 24. Tenants had the right to exchange their flat for another flat from the State or municipal housing stock, including one in another region (section 67). Exchanges involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers (section 71). “Speculative” or sham exchanges were prohibited (section 73(2)). 25. The Federal Housing Policy Act (Law no. 4218-I of 24 December 1992) provides that the payments for a flat comprise (i) a housing maintenance charge, (ii) a housing repair charge, and, in the case of tenants only, (iii) rent (section 15). Maintenance and repair charges are payable irrespective of whether the flat is in private ownership or owned by the State. Rent is fixed by regional authorities, taking into account the surface area and quality of the housing. It is usually considerably lower than free-market rent. For example, the highest monthly rent for municipal housing in Moscow is 80 kopecks (0.02 euro) per square metre (Resolution of the Moscow Government no. 863-PP of 7 December 2004). 26. In 1991, the Privatisation of Housing Act (Law no. 1541-I of 4 July 1991) was adopted (and will remain effective until 31 December 2006). It grants Russian citizens the right to acquire title to State and municipal-owned flats of which they have taken possession on the basis of a social tenancy agreement (section 2). The acquisition of title does not require any payment or fee (section 7). The right to privatisation can be exercised once in a lifetime (section 11) and requires the consent of all adult family members. | 1 |
train | 001-105302 | ENG | MDA | ADMISSIBILITY | 2,011 | CASE OF BUCURIA INC AND OTHERS v. MOLDOVA | 4 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 1. The applicants are Bucuria Inc, a joint-stock company registered in Chişinău, and three Moldovan nationals residing in Chişinău: Mr Pavel Filip, born in 1966; Mr Serghei Covtoniuc, born in 1961 and Ms Liuba Noviţcaia, born in 1960. They were represented before the Court by Ms J. Hanganu, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant, Bucuria Inc (“the Company”) is the biggest producer of chocolate and other confectionary in Moldova. The second applicant is the Company’s current Director General and a shareholder and the third and the fourth applicants are also shareholders. 4. Article 2 § 1 of the Company’s Statute describes the Company’s object as making “a permanent profit”. Article 7.10(k) of the Company’s Statute provides that the Board of the Company is competent to approve decisions to stand security for third parties and to pledge the Company’s assets. 5. On 29 August 2000 Mr Visile Tarlev, who was then the Director General of the Company, sent a letter to Moldindcombank (“the Bank”). The letter stated that the Company agreed irrevocably and unconditionally to guarantee a loan to be made by the Bank of 1,850,000 United States dollars (USD), a sum subsequently assessed to represent 18.5% of the share value of the Company. The money was to finance the purchase by a Moldovan company, Feodosia Ltd, of 837,787 shares in the Company from Agroprodimpex Cyprus Ltd, a company registered in Limassol. 6. In March 2001, following the victory in the parliamentary elections by the Communist Party, Mr Tarlev resigned from his post as Director General of the Company. On 19 April 2001 he was appointed Prime Minister by the President of Moldova and he remained in this post until 18 March 2008. The second applicant became the Director General of the Company. 7. On 28 June 2001 the Bank demanded full repayment of the loan secured. 8. Following the demand for payment, the Company filed a criminal complaint against Mr Tarlev. The complaint was dismissed by the Prosecutor General on 19 July 2002, on the ground that the alleged facts did not reveal an offence. It does not appear that the Company sought judicial review of the Prosecutor General’s decision. 9. On 10 December 2008 the Company was informed that on 1 December 2008 the Prosecutor General’s Office reopened the criminal investigation into Mr Tarlev’s alleged unlawful conduct. 10. On 22 October 2001 the Company initiated civil proceedings against the Bank and Feodosia Ltd, seeking a declaration that the guarantee issued by Mr Tarlev was null ab initio. The Company relied on Rule 7.10(k) of its Statute, according to which only the full Board was competent to guarantee a loan contracted by a third party, and also on Articles 50 and 61 of the Civil Code and Article 83 of Law No. 1134 of 2 April 1997 on Joint-Stock Companies (“Law No. 1134”), which required the unanimous vote of a Company’s Board for any “important transaction” (see below). 11. The Chişinău Economic Court held a hearing on 11 December 2001 and dismissed the action on 23 January 2002. The court found that neither the Company’s Statute nor Law No. 1134 prevented the Director General from standing as security for third parties and that the guarantee agreement did not constitute an “important transaction” within the meaning of Articles 82 and 83 of Law No. 1143 since it affected less than 25 % of the Company’s capital. The letter signed by Mr Tarlev on 29 August 2000 therefore validly bound the Company. 12. The court further ruled that, even if no decision of the Company’s Board was required by law, it appeared from the minutes submitted by the defendants that the Board had held an extraordinary meeting on 19 January 2001 during which all five members had approved the guarantee agreement set out in Mr Tarlev’s letter of 28 August 2000. 13. The Company filed an appeal on points of facts and law (apel) with the Appeal Chamber of the Economic Court, submitting, inter alia, that the first instance tribunal had erred, first, in finding that neither the Company’s Statute nor domestic law prevented the Director General from entering into a binding guarantee on behalf of the Company for such a large sum and, secondly, in finding that the Board of the Company had met and approved the agreement on 19 January 2001. The Company contended that the minutes of that meeting had been forged and it requested the court to hear evidence from the members of the Company’s Board who had allegedly been present. 14. On 14 May 2002 the Appeal Chamber rejected the Company’s request that it hear witness evidence and upheld the first instance judgment, on the ground that the minutes of the meeting of 19 January 2001 were valid unless declared invalid by a court. The court also held that the provisions of sections 82 and 83 of the Law on Joint-stock Companies (see below) were inapplicable because the guarantee agreement did not qualify as an “important transaction”. 15. On 24 May 2002 the Company’s Board held an extraordinary meeting with a view to examining the validity of the minutes of the meeting of 19 January 2001. The Board agreed that they had never met on 19 January 2001. They found that the minutes had been signed by Mr Tarlev and an engineer employed by the company, Eugenia G., who gave evidence that she had not attended any meeting and had signed at the request of Mr Tarlev, without understanding the significance. Contrary to the requirements of Articles 50, 52 and 61 of the Civil Code, Articles 2.1 and 7.10 (k) of the Company’s Statute and Article 68 of Law No. 1134, the minutes included neither the names of the persons who had allegedly attended the meeting, the agenda nor the names of the persons appointed as President and Secretary of the meeting, and had not been signed by the meeting’s Secretary or President. The Board decided unanimously to declare the minutes of 19 January 2001 invalid as a forgery. 16. The Company filed an appeal on points of law (recurs) to the Supreme Court against the decision of the Appeal Chamber of 14 May 2002. It contended in particular that the minutes of the meeting when the guarantee agreement had allegedly been approved did not comply with the formalities required by law and had been declared invalid by the Company’s Board at its meeting on 24 May 2002. 17. In response to the Company’s appeal, the Bank and Feodosia Ltd filed written statements from four of the five members of the Company’s Board in office in January 2001, including Mr Tarlev. In the statements, dated 13 December 2002, the Board members confirmed that they had, in fact, held a meeting on 19 January 2001 and had voted to approve the guarantee agreement. The Supreme Court found that this evidence, together with the minutes, confirmed that a unanimous vote had been taken during the meeting of 19 January 2001. It also upheld the ruling of the Appeal Chamber that the minutes were valid since the Company had not brought proceedings specifically to challenge their validity before a court. As to the refusal of the Prosecutor General to open a criminal investigation against Mr Tarlev, the Supreme Court considered that it had been based on the finding that the Company was in the practice of preparing minutes of meetings which did not comply with the formal legal requirements. The Supreme Court therefore found that the lower courts had decided correctly and it dismissed the appeal on 18 December 2002. 18. On 13 May 2003 the General Assembly of shareholders met and decided that both the guarantee letter issued by Mr Tarlev on 29 August 2000 and the minutes of the alleged meeting of 19 January 2001 were null and void. 19. Following this meeting the third applicant, a shareholder, commenced proceedings against the Company in the Chişinău Economic Court, requesting the annulment of the minutes of 19 January 2001 on the ground that they had not been drawn up in accordance with legal requirements. The Company accepted before the court that the minutes of the meeting of 19 January 2001 had been forged. 20. On 2 September 2002 the Bank had sold the debt owed by Feodosia Ltd and guaranteed by the Company to Fuchsia Ltd, a company registered in Mauritius. At the date of the sale the debt, including capital and interest, totalled USD 2,603,873. The Bank, Feodosia Ltd and Fuchsia Ltd intervened in the proceedings brought by the third applicant against the Company, alleging that the proceedings were simply a manoeuvre by the Company and its shareholders to avoid paying the debt. 21. The Economic Court heard evidence from two of the Directors, who had allegedly attended the meeting of 19 January 2001, as well as the engineer, Eugenia G., who had signed the minutes. The two Directors stated that they had not attended a meeting on that date and that their statements of 17 December 2002 had been made as a result of pressure and threats. Eugenia G. stated that she did not attend the meeting and that Mr Tarlev’s secretary had asked her to sign the minutes. 22. In a judgment dated 23 September 2003 the Economic Court found that no meeting had taken place on 19 January 2001. Referring to Article 7.10(k) of the Company’s Statute, according to which only the Board of the Company was competent to approve decisions to stand security for third parties, the court found that the guarantee letter signed by Mr Tarlev on 29 August 2000 had been ultra vires and that the minutes of the meeting of 19 January 2001 were null and void ab initio. 23. The defendant Bank appealed against this judgment. On 5 November 2003 the Appeal Chamber of the Economic Court, without holding a hearing, quashed the judgment of 23 September 2003. The Appeal Chamber noted that two contradictory sets of written statements had been submitted to the Economic Court. Without referring to the oral evidence of the three witnesses heard by that court, it held that the statements of the Directors dated 20 March 2003 might have been made under pressure by the newly appointed Director General of the Company (the second applicant) while the other statements were in the court’s eyes more trustworthy because their authors had made them personally in front of a notary. The court concluded on the basis of the evidence in its possession that all the five members of the Board had been present at the meeting of 19 January 2001 and had voted to approve the guarantee agreement. Irrespective of the above conclusion, the Appeal Chamber found that the Supreme Court had already ruled, in its final judgment of 18 September 2002, that the Board had met in an extraordinary meeting on 19 January 2001, when they had confirmed the validity of the guarantee letter. Consequently, the validity of the minutes and of the guarantee letter could no longer be challenged and the third applicant’s action was dismissed. 24. The third applicant submitted an appeal on points of law to the Supreme Court. It was rejected on 26 February 2004 for the following reasons: “the appellate court has based its decision to reject [the applicant’s] claim on the fact that the [applicant’s] claim has been examined in the proceedings about the nullity of the guarantee letter, which concluded with the decision of the Supreme Court of 18 December 2002. It is clear from that decision that the court found that the validity of the guarantee letter was confirmed at the specially convened Board meeting of 19 January 2001. It follows that the court has determined the lawfulness of the act and the minutes of the Board meeting.” 25. A writ of enforcement was issued by the Economic Court of Appeal on 11 June 2004. Pursuant to the writ, the Company paid Fuchsia Ltd USD 2,330,012.19 between September and October 2004. 26. The relevant rules of company law are contained in Law 1134 of 2 April 1997 on Joint-Stock Companies, which provides as follows: “Article 50. The General Assembly of Shareholders and its powers ... (4) Unless the Company’s Charter provides otherwise, the General Assembly of Shareholders has the powers to approve: a) the priority directions of the Company’s activity; b) the forms of notification of shareholders about meetings of the General Assembly of Shareholders, as well as the procedure for informing shareholders of the agenda; b1) the form of ensuring the access of shareholders to the Company documents provided in Article 92 paragraph (1); c) the rules of activity of the Executive Body of the Company as well as the decisions on election of the Executive Body and the appointment of the Head of the Executive Body, his power to bind the Company, his remuneration and compensation and the premature termination of his powers; d) quarterly reports of the Executive Body of the Company; e) decisions on setting up, transforming or dissolving of Branch and Representative Offices, on appointing or releasing from office their managers, as well as changes and additions to the Company Charter.” Article 65. The Board of the Company and its powers (1) The Board of the Company shall represent the shareholders’ interests during the periods between General Assemblies and shall carry out the general management and control of the Company’s activity within the limits of its competence. The Board of the Company is accountable to the General Assembly of Shareholders. (2) The Board of the Company has the following exclusive powers: a) making decisions on the convocation of the General Assembly of Shareholders; b) approving the market value of assets which are the object of a large-scale contracts; c) making decisions on the conclusion of large-scale contracts as stipulated in paragraph (1) of Article 83; d) concluding an agreement with the Executive Body of the Company; e) approving the Company’s Registrar and determining his remuneration; f) approving the prospectus of public offers of securities; g) approving the report on the results of securities’ issues and operating changes to the Company’s Charter; g1) approving the decision on bonds’ issue, except convertible bonds, as well as the report on results of bonds’ issue; h) during the fiscal year, deciding on the distribution of net income, the use of reserve capital and of the special funds of the Company; i) making proposals to the General Assembly of Shareholders on the payment of annual dividends and deciding on the payment of interim dividends; j) approving a remuneration fund and the remuneration rules for the Company’s employees; k) deciding on the Company’s joining an association or other union; and l) deciding on other issues provided in this law and in the Charter of the Company. (3) The powers of the Board of the Company shall also include deciding on the issues specified in paragraph (4) of Article 50, provided that this is stipulated in the Company Charter. (4) Issues referred to the competence of the Board of the Company may not be delegated for review by the Executive Body of the Company, except as provided in paragraph (3) of Article 69. (5) The Board of the Company shall submit to the General Assembly of Shareholders the annual report on its activity prepared according to the legislation on securities, the Charter of the Company and the regulation on the Board of the Company. (6) The functions of the Board of the Company may not be delegated to another person. (7) If the Board of the Company is not set up or its powers are terminated in conformity with this law, the functions of the Board shall be performed by the General Assembly of Shareholders, except for the convocation, preparation and holding of the meeting of the General Assembly. 27. Articles 82 and 83 of the same law provide that “important transactions”, amounting to between 25 and 50% of a company’s assets, can be approved only by a unanimous decision of the company’s board. 28. The powers of the executive body are set out in article 69, as follows: “Article 69. Executive Body of the Company (1) The Executive Body is competent to deal with all issues related to the management of the current activities of the Company, except the issues which are within the competence of the General Assembly of Shareholders or the Board of the Company. (2) The Executive Body of the Company shall carry out decisions of the General Assembly of Shareholders and of the Board of the Company and is accountable to: a) the Board of the Company; b) the General Assembly of Shareholders, if provided in the Company Charter. (3) If the Board of the Company has not been set up or its powers are terminated, the Executive Body of the Company shall carry out the functions of the Board of the Company concerning the preparation and holding of a General Assembly of Shareholders. (4) The Executive Body of the Company can be either collegiate (Board, Directorate) or unipersonal (General Director, Director). The persons specified in paragraph (12) of Article 31 cannot hold a seat in the Executive Body of the Company. Persons elected (appointed) already shall be revoked from their functions. (5) The Company Charter can simultaneously provide for two Executive Bodies specified in paragraph (4). In this case, the unipersonal Executive Body shall also act as a manager of the collegiate Executive Body. (6) The Executive Body of the Company shall submit to the founding central or local public administration authority reports concerning the economic and financial activity of the Company, when the State’s share represents 50 per cent plus one share, and in some cases, the results of an independent audit of the annual financial report. (7) The Executive Body of the Company has to ensure the submission to the Board of the Company, Auditing Commission and to each of their members documents and other information necessary for carrying out their functions appropriately.” 29. According to law, all judges must be competent, hold a university degree in law, have requisite work experience, have no criminal record, have a good reputation, and know the official State language. All judicial candidates have to pass a written examination. 30. During the period in question, judges of district and municipal courts, the Court of Appeal, and specialised courts such as the Economic Court were appointed by the President of the Republic of Moldova on the proposal of the Supreme Council of the Magistracy. Judges of the Supreme Court were appointed by Parliament on the proposal of the Supreme Council of the Magistracy. Parliament, the Government, and the Supreme Council of the Magistracy each appointed two of the six judges to the Constitutional Court. 31. The Supreme Council of the Magistracy included certain ex officio members, namely the Minister of Justice, the Prosecutor General, the President of the Supreme Court and the President of the Court of Appeal. Three other members were elected by the Supreme Court and three by Parliament. 32. Judges are appointed for an initial five-year term and, unless serious objections are raised, thereafter remain in post until retirement. According to an amendment to Law 947 of 19 July 1996 on the Supreme Judicial Council, passed on 19 July 2001, Presidents and Vice-Presidents of tribunals were, during the period in question, appointed for a four-year term of office. | 0 |
train | 001-61765 | ENG | TUR | CHAMBER | 2,004 | CASE OF CIBIR v. TURKEY | 4 | Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Georg Ress | 4. The applicant lives in Ankara. 5. On 20 April 1992 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicant in Mamak, Ankara. A committee of experts assessed the value of the plots of land belonging to the applicant and compensation was paid to him when the expropriation took place. 6. Following the applicant’s request for increased compensation, the Ankara First Instance Court awarded him 2,033,884,335 Turkish liras (TRL) of additional compensation plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 29 August 1995 was fixed by the domestic court for the running of the statutory rate of interest. 7. On 30 March 1998, upon the General Directorate’s appeal, the Court of Cassation upheld the decision of the first instance court. On 25 December 1998 the administration paid the applicant TRL 4,449,000,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the running date of the interest and 31 December 1997, namely 30%. As regards the period after 1 January 1998 the interest was calculated at the then applicable rate, namely 50%. 8. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25). | 0 |
train | 001-57462 | ENG | ITA | CHAMBER | 1,985 | CASE OF COLOZZA v. ITALY | 2 | Violation of Art. 6-1;Non-pecuniary damage - financial award | C. Russo | 9. Mr. Giacinto Colozza was born in 1924 and died in 1983. He was an Italian citizen and lived in Rome. 10. On 20 June 1972, the carabinieri reported the applicant to the Rome public prosecutor’s office for various alleged offences, including fraud, committed before November 1971. They said that they had not questioned the suspect because they had failed to contact him at his last-known address. In fact, his flat, in via Longanesi, had been closed and his furniture seized by the judicial authorities; the manager of the building, who was also the administrator appointed by the court in the attachment proceedings, was unaware of Mr. Colozza’s new address. On 4 October 1973, the investigating judge issued a "judicial notification" (comunicazione giudiziaria) intended to inform the applicant of the opening of criminal proceedings against him. A bailiff attempted to serve it on Mr. Colozza at the address - via Fonteiana - shown in the Registrar-General’s records, but without success: he had moved - about ten years earlier according to the carabinieri and five years earlier according to the police - and had omitted to inform the City Hall of his change of residence as required by law. 11. Meanwhile Mr. Colozza, when renewing his driving licence in September 1973, had given, as his current address, that shown in the Registrar-General’s records (via Fonteiana). 12. On 14 November 1973, after unsuccessful searches at the latter address, the investigating judge declared the accused untraceable (irreperibile), appointed an official defence lawyer for him and continued the investigations. Thereafter, in pursuance of Article 170 of the Code of Criminal Procedure (see paragraph 19 below), all the documents which had to be served on the applicant were lodged in the registry of the investigating judge, the defence counsel being informed in each case. On 12 November 1974 and 30 May and 3 June 1975, the investigating judge issued three arrest warrants which were not executed because the competent authorities still did not know where Mr. Colozza was living. It should, however, be noted that the address indicated on the warrants was via Longanesi. On each occasion, the carabinieri drew up a report of fruitless searches (vane ricerche). Mr. Colozza was thenceforth regarded as "latitante", that is as a person wilfully evading the execution of a warrant issued by a court (see paragraph 20 below). 13. By a decision of 9 August 1975, the applicant was committed for trial. A first hearing was held by the Rome Regional Court on 6 May 1976. Although he had been informed of the lodging of the summons to appear (see paragraph 12 above), the accused’s officially-appointed defence counsel did not appear, with the result that the court had to appoint a replacement and postponed the hearings until 26 November. On that date, a new lawyer was officially assigned, because the one appointed on 6 May did not appear either. The court adjourned the trial and concluded it on 17 December 1976, after appointing, during the sitting and again for the same reason, another official defence lawyer. It sentenced Mr. Colozza to six years’ imprisonment (reclusione) and a fine (multa) of 600,000 Lire. The public prosecutor had called for sentences of five years’ imprisonment and a fine of 2,000,000 Lire and the officially-appointed defence counsel had agreed with his submissions. The judgment was lodged in the registry on 29 December 1976 and a copy was served on the lawyer. It became final on 16 January 1977, as he had not entered an appeal. 14. On 20 May 1977, the public prosecutor’s office issued an arrest warrant. The applicant was arrested at his home in Rome, 31 via Pian Due Torri, on the following 24 September. On the next day, he raised a "procedural objection" (incidente d’esecuzione) as regards this warrant and at the same time filed a "late appeal" (appello apparentemente tardivo; see paragraph 23 below). He appointed a lawyer and instructed him to draft the grounds of appeal. However, he submitted them himself on 24 December 1977 and lodged a supplementary memorial on 25 July 1978. On 15 November and 28 December 1977, he appointed new lawyers. 15. On 29 April 1978, the Rome Regional Court dismissed the "procedural objection" and ordered that the papers be sent to the Rome Court of Appeal for a ruling on the "late appeal". Mr. Colozza maintained that he had been wrongly declared "latitante" and that the notifications of the summons to appear and of the extract from the judgment rendered by default were therefore null and void. He explained that, as he had received notice to quit from his landlord at the end of 1971, he had left his flat in via Fonteiana and, before finding a new one, had lived in a hotel. He pointed out that his new address (via Pian Due Torri) was known to the police since, on 12 March 1977, they had summoned him to the local police station for questioning; the same applied both to the Rome public prosecutor’s office, which, on 7 October 1976 (that is to say, almost two months before adoption of the judgment), had sent him a "judicial notification" concerning other criminal proceedings, and to various public authorities, which had served documents on him, using the notification service of the Rome City Hall. 16. Mr. Colozza’s appeal was examined together with an appeal that had been entered by his co-accused. The Court of Appeal heard Mr. Colozza both on the merits of the case and on the fact that he had been treated as "latitante". The public prosecutor attached to the Court of Appeal also submitted that the judgment of 17 December 1976 should be set aside; in his view, Mr. Colozza should not have been regarded as "latitante". On 10 November 1978, the Court of Appeal confirmed the conviction of the co-accused. As to Mr. Colozza, it held that his appeal was inadmissible for failure to observe time-limits. It ruled that the time-limit for filing the grounds of appeal - twenty days, under Article 201 of the Code of Criminal Procedure - had begun to run on 13 October 1977, the date on which the arrest warrant had been served, whereas the memorial had not been submitted until 24 December 1977. 17. Mr. Colozza lodged an appeal on points of law but it was dismissed by the Court of Cassation on 5 November 1979. It accepted that the Court of Appeal had wrongly declared the "late appeal" inadmissible for failure to file the grounds in time: it should first have determined whether, as the appellant alleged, the first-instance proceedings were void. However, the Court of Cassation concluded that this was not so: it considered that Mr. Colozza had rightly been declared first to be "irreperibile" and then to be "latitante". It added that the Court of Appeal should have declared the appeal inadmissible as out of time, since it had been lodged at a time when the judgment under appeal had already become final. Mr. Colozza, who had been in custody since 23 September 1977 to serve his sentence, as well as other suspended sentences previously passed on him, died in prison on 2 December 1983 (see paragraph 6 above). 18. The Code of Criminal Procedure lays down the methods for notifying an accused person who is not in custody of the various documents pertaining to the investigations and the trial. When the first procedural step involving the presence of such an accused is taken, the court, the public prosecutor’s office or the official of the criminal investigation department must ask the accused to indicate the place where notifications should be made or to elect an address for service (Article 171, first paragraph). If he does not do so, Article 169 applies; this provides, inter alia, that if the first notification cannot be made to the party concerned in person, it is to be delivered, at his place of residence or of work, to a person living with him or to the caretaker. If those two places are not known, notification is to be left where the party concerned is living temporarily or has an address, by delivery to one of the above-mentioned persons. 19. The Code of Criminal Procedure does not define the concept of "irreperibile". Nevertheless, according to the relevant rules, it may apply to any person on whom a document concerning criminal proceedings opened against him has to be served and whom it has not been possible to trace because his address was unknown. The mere establishment of this fact - the question whether there has been a wilful evasion of the investigations being irrelevant in this context - is enough for this purpose. According to Article 170, the bailiff has to inform the judge who ordered the notification. The latter, after directing that further searches be conducted at the place of birth or last residence, will then issue a decree (decreto) to the effect that notifications shall be effected by being lodged in the registry of the court before which proceedings are in progress. The defence lawyer must be informed immediately whenever a document is so lodged; if the accused has no lawyer, the court has to assign one to him officially. 20. This system of notification is also used if the accused is "latitante" (Article 173). According to the first paragraph of Article 268, any person wilfully evading execution of, inter alia, an arrest warrant shall be regarded as being "latitante". The third paragraph states that whenever classification as "latitante" entails legal consequences, these are to extend to the other proceedings instituted against the person in question. If he does not have a lawyer of his own choosing, an official appointment will be made. The Court of Cassation has consistently held that an intention to evade arrest is to be presumed where adequate searches by the criminal investigation police have been unsuccessful. This presumption exists even if the person in question, after moving and failing to make the statutory declaration of change of residence, has not resorted to any special subterfuges to avoid arrest (3rd Criminal Chamber, 12 March 1973, no. 559, Repertorio 1974, no. 3440; 6th Criminal Chamber, 20 October 1971, no. 3195, Repertorio 1973, no. 4897; Massimario delle decisioni penali, 1972, no. 1959). In its judgment no. 98 of 2 June 1977, the Constitutional Court specified, however, that the presumption can be rebutted and is thus not irrefutable. The term "adequate searches" leaves the criminal investigation police with a measure of discretion as to the steps to be taken; this discretion is however limited, in that the person concerned must be sought at the residence indicated in the arrest warrant (2nd Criminal Chamber, 19 October 1978, no. 12698, massima no. 140224). 21. Although trial by "contumacia" (by default; Articles 497 to 501 of the Code of Criminal Procedure) is classified as a special form of proceedings, the ordinary procedure is followed (Article 499, first paragraph). Such a trial is held when the accused, after being duly summoned, does not appear at the hearing and neither requests nor agrees that it take place in his absence. 22. Under Italian law, an accused who fails to appear (contumace) has the same rights as an accused who is present. He is, for example, entitled to be defended by a lawyer - who will be officially assigned to him by the court if he has not chosen one himself - and to lodge an ordinary appeal or an appeal on points of law against the judgment concerning him. The time-limit for entering such an appeal begins to run only from the day on which he was notified of the decision by means of service of an extract from the judgment. However, in the case of a person who has also been declared to be "irreperibile" or "latitante", time begins to run from the date of the lodging of the judgment in the registry of the court that rendered it. 23. According to Italian case-law, individuals who have not entered an appeal and who consider that the notification of the judgment was irregular can lodge a "late appeal". The time-limits to be observed are the same as for the ordinary appeal (three days for giving notice of appeal and twenty days for submitting the grounds), but both start to run from the date when the person in question had knowledge of the judgment. Nevertheless, in the case of a person regarded as "latitante" the court hearing the appeal can determine the merits of the criminal charge only if it finds that there has been a failure to comply with the rules governing declarations that an accused is "latitante" or governing service on him of the documents in the proceedings; in addition, it is for the person concerned to prove that he was not seeking to evade justice. 24. Article 185 of the Code of Criminal Procedure provides, inter alia, that proceedings shall be null and void if the rules on the participation, assistance and representation of the accused have not been observed. Failure to serve a summons to appear at the hearing and the absence, at that stage, of the accused’s defence counsel constitute grounds of incurable nullity, of which the court must take notice of its own motion at any point in the proceedings. | 1 |
train | 001-22282 | ENG | NLD | ADMISSIBILITY | 2,002 | MILOSEVIC v. THE NETHERLANDS | 3 | Inadmissible | null | The applicant, Mr Slobodan Milošević, is a national of the Federal Republic of Yugoslavia (hereinafter “the FRY”) born in 1940. He is currently detained in the United Nations Detention Center in The Hague, Netherlands. He is represented before the Court by Mr N.M.P. Steijnen, a lawyer practising in Zeist (Netherlands). The facts of the case, as apparent from public information and the documents submitted by the applicant, may be summarised as follows. The applicant was indicted, together with others, by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (hereinafter “the ICTY”). On 24 May 1999 a judge of the Trial Chamber of the ICTY, finding that there was a prima facie case against the indictees, confirmed the indictment and issued a warrant for their arrest. The applicant was then the President of the FRY. In September 2000 the applicant was voted out of office. On 6 October 2000 he relinquished the position of President of the FRY. He was subsequently arrested on charges brought under FRY domestic law. On 29 June 2001 the applicant was transferred to The Hague, despite an order of the Constitutional Court of the FRY suspending his surrender to the ICTY pending consideration of its legality. On 3 July the applicant made an initial appearance before the Trial Chamber, during which he was formally charged and invited to plead guilty or not guilty. The applicant refused to enter a plea but attempted to argue that the ICTY was an unlawful institution. The presiding judge refused to hear his arguments. Noting the applicant’s refusal to plead, the Trial Chamber ex officio entered a plea of not guilty on his behalf. It also ordered his detention on remand. On 9 August 2001 the applicant lodged a preliminary motion arguing, in so far as is relevant here, that the ICTY was illegal. At a status conference on 30 August 2001, the applicant attempted to make an oral statement to the effect that the ICTY lacked a legitimate basis. He was prevented from so doing by the presiding judge, who invited him to make it in writing in the form of a preliminary motion. The applicant did so. On 6 September 2001, the applicant having refused to be represented before a tribunal which he considered illegal, the Trial Chamber appointed three practising lawyers as amici curiae to defend the applicant’s interests. On 19 October 2001 the amici curiae submitted a brief supporting the applicant’s preliminary motions of 9 and 30 August. On 30 October 2001, at a second status conference, the Trial Chamber gave an oral decision rejecting the applicant’s preliminary motions. The amici curiae made oral submissions concerning the proposed conduct of the trial. The applicant was allowed to speak uninterrupted. He alleged that the ICTY Prosecutor was biased, since she had failed to bring prosecutions in connection with the military intervention by NATO member States on the territory of the FRY which took place in 1999. He also complained about the conditions in which he was detained, and in particular about the lack of privacy. The Trial Chamber’s decision rejecting the applicant’s preliminary motions was published in writing, with reasons, on 8 November 2001. The indictment of 24 May 1999 has been amended on two occasions, and two further indictments have been brought. The applicant has consistently refused to plead, and pleas of not guilty have been entered on his behalf. On 30 January 2002 a hearing was held before the Appeals Chamber of the ICTY, the purpose of which was to decide whether the various indictments should be heard in separate sets of proceedings. The applicant submitted a request for his release and promised to appear for any hearings. On 1 February 2002 the Appeals Chamber of the ICTY decided that the three indictments should be heard in a single set of proceedings. The applicant’s trial opened on 12 February 2002. It was reported on 27 February 2002 that the applicant had repeated his request for release to the Trial Chamber, and on 6 March 2002 that it had been refused. The applicant brought summary civil proceedings (kort geding) against the Netherlands State before the President of the Regional Court (arrondissementsrechtbank) of The Hague. He sought an order directed against the State for his unconditional release; in the alternative, for him to be returned to the FRY; in the further alternative, for the State to make representations to “the so-called Tribunal” (i.e. the ICTY) and other competent international bodies and institutions for his release; in the still further alternative, for the State to make representations to “the alleged Tribunal” (again, i.e. the ICTY) and other competent international bodies and institutions for his return to the FRY. He argued, essentially, that his transfer to the ICTY was illegal as a matter of the domestic law of the FRY; that the ICTY itself lacked a basis in international law, having been set up by a resolution of the Security Council of the United Nations (to wit, resolution no. 827 of 25 May 1993) and not by a multilateral treaty; that the ICTY was the handmaiden of NATO and therefore not an independent and impartial tribunal in the sense of Article 6 of the Convention; that the actions of the Security Council and the ICTY were discriminatory; and that he was entitled to immunity as a former head of state. In view of these considerations the Netherlands State was acting unlawfully by allowing him to be detained and remain in detention on its territory, A public hearing was held on 23 August 2001. The President of the Regional Court gave judgment on 31 August 2001. He found that the ICTY did in fact have sufficient legal basis; that it offered sufficient procedural guarantees, as found by the European Court of Human Rights in its Naletilić v. Croatia decision (no. 51891/99, 4 May 2000); and that, the Kingdom of the Netherlands having lawfully transferred its jurisdiction over the ICTY’s indictees to the ICTY, the courts of the Netherlands were not competent to consider the applicant’s request for release. The applicant lodged an appeal against this judgment, but withdrew it again as of 17 January 2002. Article 289 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) provides that all cases where a speedy and provisionally enforceable decision is required in the interests of the parties shall be heard in summary proceedings by the President of the Regional Court, who shall set a hearing date on a working day. Article 295 provides for an appeal against the President’s judgment to the Court of Appeal (gerechtshof), and for a further appeal – on points of law –to the Supreme Court (Hoge Raad). Article 292 provides that a provisionally enforceable decision taken in summary proceedings shall not prejudge the merits of the case. | 0 |
train | 001-71671 | ENG | CYP | GRANDCHAMBER | 2,005 | CASE OF KYPRIANOU v. CYPRUS | 1 | Violation of Art. 6-1;Not necessary to examine Art. 6-2;Not necessary to examine Art. 6-3-a;Preliminary objection regarding Art. 10 dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza | 14. The applicant was born in 1937 and lives in Nicosia. 15. He is an advocate who has been practising for over forty years. He was formerly a lawyer at the Office of the AttorneyGeneral and a member of the Cypriot House of Representatives. 16. On 14 February 2001 the applicant was defending a person accused of murder before the Limassol Assize Court. He alleged that, while he was conducting the cross-examination of a prosecution witness, a police constable, the court interrupted him after he had put a question to the witness. He claimed that he had felt offended and had sought permission to withdraw from the case. In their written observations, the Government stated that the court had attempted to make a routine intervention with a simple and polite remark regarding the manner in which the applicant was cross-examining the witness. The applicant had immediately interrupted, without allowing the court to finish its remark and refusing to proceed with his cross-examination. 17. The verbatim record of the proceedings reports the following exchange (translation): “Court: We consider that your cross-examination goes into detail beyond the extent to which it should go at this stage of the main trial regarding questions... Applicant: I will stop my cross-examination... Court: Mr Kyprianou... Applicant: Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case. Court: Whether an advocate is to be granted leave to withdraw or not is a matter within the discretionary power of the court and, in the light of what we have heard, no such leave is granted. We rely on Kafkaros and Others v. the Republic and we do not grant leave. Applicant: Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose. Court: We consider your persistence... Applicant: And I am sorry that when I was cross-examining the members of the Court were talking to each other, passing ravasakia among themselves, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the Court. Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the Court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44(1)(a) of the Courts of Justice Law applies to its full extent. Applicant: You can try me. Court: Would you like to say anything? Applicant: I saw with my own eyes the small pieces of paper going from one judge to another when I was cross-examining, in a way that is not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder? Court (Mr Photiou): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it. Court (Mrs Michaelidou): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianou's behaviour utterly unacceptable. Court (Mr Photiou): We shall have a break in order to consider the matter. The defendant [in the main trial] should in the meantime remain in custody. ... Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44(1)(a) of the Courts of Justice Law (no. 14/1960) ... that is showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the Court should proceed. Applicant: Mr President, during the break, I certainly wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time I have faced such an accusation. That is all I have to say. Court: We shall adjourn for ten minutes and shall then proceed with sentencing.” 18. After a short break the Assize Court, by a majority, sentenced the applicant to five days' imprisonment. The court referred to the above exchange between the applicant and its members and held as follows: “... It is not easy, through words, to convey the atmosphere which Mr Kyprianou created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the Court, not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating a climate of intimidation and terror within the Court. We are not exaggerating at all in saying that Mr Kyprianou was shouting at and gesturing to the Court. It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, 'You can try me'. Later, after a long break, Mr Kyprianou was given a second chance to address the Court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of comprehension of the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the 'very tense atmosphere'. However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse. Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of 'ravasakia', that is, 'love letters' (See Dictionary of Modern Greek – 'Spoudi ravasaki (Slavic ravas), love letter, written love note'). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret. We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate. The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the Court's reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned. It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a deterrent nature, which can only be imprisonment. We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, has brought matters to this end. In the light of the above we impose a sentence of imprisonment of five days.” 19. The President of the Assize Court, however, considered that the imposition of a fine amounting to 75 Cyprus pounds (approximately 130 euros), that is, the maximum penal sum provided by section 44(2) of the Courts of Justice Law 1960 (Law no. 14/1960), would have been the appropriate sentence. 20. The applicant served his prison sentence immediately. He was in fact released before completing the full term, in accordance with section 9 of the Prison Law (Law no. 62(I)/1996 – see paragraph 39 below). 21. On 15 February 2001 the applicant lodged an appeal with the Supreme Court, which was dismissed on 2 April 2001. 22. In his appeal, the applicant relied on a total of thirteen grounds challenging the procedure followed by the Limassol Assize Court, its decision and the sentence imposed on him. The eighth ground of his appeal read as follows: “According to established precedent, the imposition of a sentence on an advocate is practised with restraint and in serious cases, and never for the suppression of methods of advocacy that are simply offensive given that the advocate has sufficient freedom in the handling of his client's case. The conduct of the [applicant] counsel could not be described either as aggressive or as contemptuous of the Court under all the circumstances even though it constituted expression of the feelings of counsel under the pressure of cross-examination of witnesses in a murder case and the refusal of the Court after an intervention at the stage of cross-examination to allow counsel to withdraw from the case.” 23. The Attorney-General was invited by the Supreme Court to take part in the proceedings as amicus curiae. 24. In its decision dismissing the applicant's appeal, the Supreme Court stated that the relevant constitutional provisions of Cypriot law on contempt of court reflected the principles of English law. It relied on Article 162 of the Constitution, which enables the enactment of legislation giving jurisdiction to any court to order the imprisonment for up to twelve months of any person who does not comply with a judgment or order of that court, and to punish contempt of court. It held that section 44(2) of the Courts of Justice Law was lawfully authorised by Article 162. Finally, it concluded that it was the applicant who had created a tense atmosphere by his disdainful attitude and by undermining the court's role. 25. The Supreme Court held, inter alia: “We think that there was nothing wrong in the determination of the acts of contempt. The Court gave Mr Kyprianou the chance to reply, predetermining indirectly its intention not to continue with imposing a sentence, should Mr Kyprianou dissociate himself from what he had said and did so with an expression of sincere apology. There was no apology. ... It is our finding that Mr Kyprianou, by words and conduct, showed disrespect to the Court, by committing the offence of contempt of court referred to in section 44(2) of the Law. ... It is not fortuitous that the successive objectives of the constitutional legislator, which are embodied in Article 30 and Article 162 of the Constitution, exist side by side. The power to sanction contempt of court is aimed at the protection of judicial institutions, which is essential in order to safeguard a fair trial. The identification of the judge with a prosecutor made by the applicant's lawyer overlooks the court's role and the purpose for which it is granted authority. Its authority is interwoven with the prerequisites for securing its judicial function. The role of the judge is nothing more than that of the defender of judicial proceedings and of the court's authority, the very existence of which are necessary to secure a fair trial. A lawyer, a servant of justice, is not a party to the case. By abusing the right to be heard and being in contempt of court, a lawyer intervenes in the proceedings, as any third party, and interferes with the course and thereby harms justice. The judicial sanctioning of contempt, where necessary, is a judicial duty exercised for the purpose of securing the right to a fair trial. The impersonal and objectively defined issue is associated with the facts of the case; any indifference of the court in the face of reproach regarding its function would leave it exposed to the charge that it does not conduct a fair trial. The fairness of the judges is the quintessence of the administration of justice. ... In this case, Mr Kyprianou tried to prevail over the court and direct the course of the trial. If the court remained indifferent before such a scene, this would constitute a betrayal of the performance of its duty.” 26. The Supreme Court concluded as follows: “We find that Mr Kyprianou, by words and conduct, showed disrespect to the court and committed the offence of contempt in the face of the Court contrary to section 44(2) of the Law.” 27. In relation to the sentence imposed on the applicant, the Supreme Court stated, inter alia, the following: “The exercise of the power of the court to impose sentence on persons who act in contempt of court is the ultimate measure, but it is indispensable whenever the dignity of the court is offended and the fulfilment of its mission impeded. Punishment is not a court's choice. It becomes its duty only when justice demands it. It is indicative of the rarity of a lawyer's conviction for contempt of court that this is the first time, since the establishment of the Republic, as far as we are able to ascertain, that a sentence of imprisonment has been imposed on a lawyer for contempt of court. This attitude is not unrelated to the awareness of the lawyer's mission. It is not possible, however, to allow the legal profession to act contrary to the lawyer's function. The lawyer who repudiates his role as a servant of justice also repudiates the protection that is given to him for putting his client's rights forward without fear or distraction. In setting himself against the court for his own purposes, he acts contrary to his vocation and shares the same fate as everyone else who acts in contempt of court. It is sad that Mr Kyprianou did not withdraw what he said and did in the Assize Court. He did not apologise, even before us. ... It was up to the Assize Court to deal with the contempt and to decide the means for the treatment and punishment of the person in contempt. No reason has been shown which justifies our intervention with regard to the sentence imposed. We feel sad because a lawyer like Mr Kyprianou, with forty years of service in the profession, was convicted and sentenced to imprisonment for contempt of court. But we are even sadder because a lawyer with so many years in service struck at Justice. We are relieved this is the first time that Justice has suffered in this way. We hope that this will also be the last time.” 28. The relevant parts of Article 12 §§ 4 and 5 of the Constitution provide as follows: “4. Every person charged with an offence shall be presumed innocent until proved guilty according to law. 5. Every person charged with an offence has the following minimum rights: (a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him; (b) to have adequate time and facilities for the preparation of his defence; ...” 29. The relevant parts of Article 30 §§ 2 and 3 of the Constitution provide as follows: “2. In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. ... 3. Every person has the right: (a) to be informed of the reasons why he is required to appear before the court; (b) to present his case before the court and to have sufficient time necessary for its preparation; ...” 30. Article 113 § 2 of the Constitution reads as follows: “The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.” 31. Article 162 of the Constitution reads as follows: “The High Court shall have jurisdiction to punish any contempt of itself, and any other court of the Republic, including a court established by a communal law under Article 160, and shall have power to commit any person disobeying a judgment or order of such court to prison until such person complies with such judgment or order, and in any event for a period not exceeding twelve months. A law or a communal law, notwithstanding anything contained in Article 90, as the case may be, may provide for the punishment of contempt of court.” 32. Section 25(2) reads as follows: “Subject to the provisions of the Criminal Procedure Law, but save as otherwise provided in the subsection, every decision of a court exercising criminal jurisdiction shall be subject to appeal to the Supreme Court. Any such appeal may be made as of right on any ground against a decision of acquittal or conviction or a decision imposing sentence.” Section 25(3) provides as follows: “Notwithstanding anything contained in the Criminal Procedure Law or in any other Law or in any Rules of Court and in addition to any powers conferred thereby, the Supreme Court, on hearing and determining any appeal either in a civil or a criminal case,order of retrial by the trial court or any other court having jurisdiction, as the Supreme Court may direct.” 33. The relevant parts of section 44(1) read as follows: “Any person who – (a) on the premises where any judicial proceedings are being held or taken, or within the precincts of the same, shows disrespect, in speech or manner, of or with reference to such proceedings or any person before whom such proceedings are being held or taken; ... ... is guilty of a misdemeanour and is liable to imprisonment for six months or to a fine not exceeding one hundred pounds, or to both imprisonment and a fine.” The relevant parts of section 44(2) provide as follows: “When any offence against paragraph (a) ... of subsection (1) is committed in full view of the court, the court may cause the offender to be detained in custody and, at any time before the rising of the court on the same day, may take cognisance of the offence and sentence the offender to a fine of seventy-five pounds or to imprisonment of up to one month, or to both imprisonment and a fine.” 34. The relevant parts of section 145 provide as follows: “(1) In determining an appeal against conviction, the Supreme Court ... may (a) dismiss the appeal; (b) allow the appeal and quash the conviction if it considers that the conviction should be set aside on the ground that it was, having regard to all the evidence adduced, unreasonable or the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law or on the ground that there was a substantial miscarriage of justice: Provided that the Supreme Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the applicant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has occurred; (c) set aside the conviction and convict the appellant for any criminal offence of which he might have been convicted by the trial court on the evidence which has been adduced and sentence him accordingly; (d) order a new trial before the court which passed the sentence or before any other court having jurisdiction in the matter. (2) In determining an appeal against sentence, the Supreme Court may increase, reduce or modify the sentence.” 35. The relevant parts of section 146 read as follows: “During the hearing of an appeal and at any stage thereof, before final judgment, the Supreme Court ... may (a) call upon the trial court to furnish any information the Supreme Court may think necessary beyond that which is furnished by the file of the proceedings; (b) hear further evidence and reserve judgment until such further evidence has been heard ...” 36. The relevant parts of section 174 provide as follows: “(1) Whenever, upon application as hereinafter provided, it is made to appear to the Supreme Court: (a) that a fair and impartial preliminary inquiry or trial cannot be held in any court; ... it may order that the preliminary inquiry or trial be held by or before a court other than the court before which, but for such order, it would have been held. (2) Every application for the exercise of the powers conferred by this section shall be made by motion which shall, except when the application is made by or on behalf of the Attorney-General, be supported by affidavit. (3) When an accused makes an application under this section, the Supreme Court may, if it thinks fit, direct him to execute a bond with or without sureties conditioned that he will, if convicted, pay the costs of the prosecution. (4) Every accused making any such application shall give to the Attorney-General notice in writing of the application, together with a copy of the affidavit and no final order shall be made on the application, unless such notice and affidavit are served at least twenty-four hours before the hearing of the application.” 37. Section 15 of the Advocates Law reads as follows: “Every advocate is an officer of justice and shall bear disciplinary responsibility and be subject to disciplinary proceedings provided for in this part.” 38. The relevant parts of section 17 read, at the material time, as follows: “(1) If any advocate is convicted by any court of any offence which, in the opinion of the Disciplinary Board, involves moral turpitude or if such an advocate is, in the opinion of the Disciplinary Board, guilty of disgraceful, fraudulent or unprofessional conduct, the Disciplinary Board may: (a) order the name of the advocate to be struck off the Roll of Advocates; (b) suspend the advocate from practising for such a period as it may think fit; (c) order the advocate to pay, by way of fine, any sum not exceeding £500; ... (d) warn or reprimand the advocate; (e) make such order as to payment of the costs of the proceedings before the Disciplinary Board as the Disciplinary Board may think fit. (2) Proceedings to enforce any of the penalties provided by subsection (1) above may be commenced: (a) by the Disciplinary Board on its own motion; (b) by the Attorney-General of the Republic; (c) on a report made to the Disciplinary Board by any court or chairman of the local Bar committee; (d) by an application, with leave of the Disciplinary Board, of any person aggrieved by the conduct of the advocate.” 39. The relevant parts of section 9 of the Prison Law read as follows: “... (2) The release of a prisoner takes place not later than midday of the final day of the sentence of imprisonment. (3) If the day of release is a Saturday or Sunday or an official holiday, the release takes place the immediately preceding working day.” 40. Phaedeon Economides v. The Police (1983) 2 Cyprus Law Reports 301 “An objection, where a bias is alleged, has to be taken at the earliest moment in the proceedings and has to be decided by the judge concerned whose decision is always subject to judicial review by appeal or by means of prerogative writs where no appeal lies from his final decision in the proceedings on which the question of bias was raised. On the question of bias, the test to be applied is whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts could have reasonable suspicion that a fair trial for the applicant was not possible.” 41. The Greek word ραβασάκια (ravasakia) is the plural of the word ραβασάκι (ravasaki) which has the following meanings: (1) G. Babinioti, Dictionary of Modern Greek Language, p. 1542 (Γ. Μπαμπινιώτη, Λεξικό Νέας Ελληνικής Γλώσσας): (i) short and secret letter or note with love content (σύντομη και κρυφή επιστολή ή σημείωμα με ερωτικό περιεχόμενο); (ii) anything written (document, letter, etc.), mainly of an unpleasant nature, which is sent to someone. Synonyms: for example, letter, note (οτιδήποτε γραπτό (έγγραφο, επιστολή κτλ), κυρίως. με δυσάρεστο περιεχόμενο, το οποίο αποστέλλεται σε κάποιον. Συνώνυμα π.χ. γράμμα, σημείωμα). (2) Bousnaki Brothers, The Great Popular Dictionary, 2002, p. 2983 (Α/φοι Μπουσνάκη, Το Μεγάλο Λεξικό της Δημοτικής): (i) note (σημείωμα); (ii) love letter (ερωτικό γράμμα). (3) Aristotle University Thessaloniki, Institute of Modern Greek Studies, Dictionary of the Common Μodern Greek, p. 1741 (Λεξικό της Κοινής Νεοελληνικής, Αριστοτέλειο Πανεπιστήμιο Θεσσαλονίκης, Ινστιτούτο Νεοελληνικών Σπουδών): (i) love letter, note (that is sent secretly) (ερωτική επιστολή, σημείωμα (που στέλνεται κρυφά)); (ii) short written message normally of an unpleasant nature (warning, threats, etc.) for the recipient (σύντομο γραπτό μήνυμα, συνήθως με δυσάρεστο (προειδοποιητικό, απειλητικό) κτλ περιεχόμενο για τον παραλήπτη). 42. In general, it can be observed that common-law jurisdictions and some civil-law jurisdictions allow courts to deal with disruption to their proceedings under a summary procedure conducted by the judge presiding over the main proceedings who is empowered to take immediate measures. In the majority of civil-law jurisdictions, however, disruptive behaviour is referred to the competent prosecuting authorities for the purposes of instituting criminal or disciplinary proceedings. In this latter respect there is a significant difference between the common-law and civil-law approaches. 43. The following paragraphs contain a summary of the information provided by the third-party intervening States as to the current position under their domestic law concerning contempt of court. 44. Under English and Welsh law, the courts enjoy extensive powers to deal with contempt of court, including contempt committed in facie curiae which falls within the category of criminal contempt. Acts which amount to contempt in the face of the court can take various forms such as assaulting the judge or an officer of the court in court, insulting the judge in court, intimidating a witness in court, interrupting the proceedings and tape recording or photographing the proceedings. If the contempt also constitutes a criminal offence, for example assault, it can be dealt with as a criminal offence instead and thus proceedings can be initiated by the Crown Prosecution Service following investigation by the police. 45. The power to commit for contempt in facie curiae is a part of the common law, developed by the courts through judicial decisions. This remains true as far as superior courts (Court of Appeal, High Court and Crown Court) are concerned. In the case of inferior courts, the power to commit for contempt in facie curiae has been placed on a statutory footing (Contempt of Court Act 1981, section 12, and County Courts Act 1984, section 118(1)). A practice note and a practice direction have been issued addressing contempt of court. One applies in magistrates' courts and the other in the High Court and county courts (practice note issued by the Lord Chief Justice in May 2001 and practice direction issued by the Lord Chief Justice, supplemental to Order no. 52 of the Rules of the Supreme Court and Order no. 29 of the County Court Rules). 46. According to the latter, for example, where the committal application relates to contempt in the face of the court it would normally be appropriate to defer consideration of the behaviour to allow the respondent a period of reflection. Furthermore, the judge should, inter alia: inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application; notify the respondent of the possible penalties he faces; allow the respondent an opportunity to apologise to the court and provide explanations for his actions and behaviour; and allow for arrangements for legal representation. In addition, if there is a risk of the appearance of bias, the presiding judge should ask another judge to hear the committal application (sections 12-14 of the practice direction). 47. Overall, judges have the power to deal with and punish contempt committed before them, although the courts have recognised that this summary procedure should be used exceptionally and when categorically necessary in the interests of justice. Thus, while accepting that the procedure must retain a summary nature in order for it to be effective, the courts have also sought to ensure that the procedure is fair and consistent with the provisions of Article 6 of the Convention. The Court of Appeal, through its judgments, has given courts guidance as to the safeguards they need to adopt in order to ensure that the summary process is fair for the alleged contemner. These include, inter alia, allowing a short period of reflection, the possibility of an adjournment, arrangements for legal representation, and giving an opportunity to apologise (see R. v. Moran [1985] 81 Criminal Appeal Reports 51; R. v. Hill [1986] Criminal Law Reports 457; and Wilkinson v. S. [2003] 2 All England Reports 184). It appears from the case-law that the courts have acknowledged the importance of avoiding the danger of a real possibility of bias, the applicable test being that of “apparent bias”, namely, whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the court was biased (see DPP v. Channel Four Television [1993] 2 All England Reports 517, and Porter v. Magill [2002] 2 Appeal Court 357). The Court of Appeal recently stated in R. v. Dodds ([2003] 1 Criminal Appeal Reports 3) that the common-law requirements of natural justice in dealing with criminal contempt did not fall short of the Convention requirements. 48. The offence of contempt of court in Scotland is a sui generis offence. With limited exceptions, the law on contempt remains part of the common law. Contempt committed in facie curiae is normally dealt with summarily by the presiding judge. Where it also amounts to a criminal offence, it may be prosecuted on indictment or on summary complaint. 49. While the procedure remains in essence a summary one, in practice measures have been put in place in order to ensure fairness. In particular, judges follow a memorandum issued on 28 March 2003 by the Lord Justice-General that provides guidelines concerning the procedure to be adopted when judges are considering whether the conduct of any party during a trial constitutes a contempt of court. For instance, the act of contempt should be dealt with expeditiously but most importantly fairly and objectively; the alleged contemner must be given the opportunity to obtain legal advice and representation, to apologise for his conduct and make a statement in mitigation. Furthermore, although the normal rule is that the presiding judge will deal personally with the contempt, it is recognised that, exceptionally, another judge may need to deal with the case. 50. Under Irish law, contempt of court is an offence sui generis within the inherent jurisdiction of the court. Contempt in facie curiae comes within the ambit of criminal contempt and is tried summarily by both superior and inferior courts. 51. The Irish courts have consistently observed that contempt of court is not an offence against the personal dignity of judges but rather it is the name given to the kind of wrongful conduct which consists of interference with the administration of justice. The power to adjudicate and punish such conduct is considered an essential adjunct of the rule of law and an inherent aspect of the authority of judges to control the proceedings before them. 52. For the purposes of safeguarding the rights of the alleged contemner and ensuring fairness, certain procedural guarantees are afforded in the case of contempt in the face of the court, including the requirement that judges should only determine such proceedings arising out of events in their court where it is necessary to do so. 53. In Maltese law, contempt of court is regulated by legislation in Title XVII of the Second Book of the Code of Organisation and Civil Procedure entitled “Of the Respect Due to the Court”. These rules also apply to courts of criminal jurisdiction, by virtue of Article 686 of the Criminal Code. 54. According to the long-established practice of Maltese courts, contempt committed in the face of the court is punishable by the judge or magistrate presiding over the proceedings in the course of which the contempt is committed. Contempt may take the form of disturbance in the courtroom by way, for example, of exclamations of approval or disapproval, improper behaviour such as indecent words or gestures or insulting remarks (Article 990) or the use of insulting or offensive expressions in written pleadings or during the hearing (Article 994). 55. According to Article 990 of the Code, the following four types of sanction are available in respect of contempt committed in facie curiae: reprimand, expulsion from the court, a fine in terms of the Criminal Code and, lastly, arrest for a period not exceeding twenty-four hours in a place within the court building. 56. The only possible exception to this summary procedure is where contempt constitutes an offence under the Criminal Code (The Court v. Angelo Pace, 7 December 1990). In such circumstances, it is prosecuted as a criminal offence. The presiding judge or magistrate can order the arrest of the offender, draw up a procès-verbal of the fact and remit the party arrested to the magistrates' court (Article 992). 57. Furthermore, special provision is made for acts of contempt committed by lawyers. The normal sanctions are not applied but, in serious cases, the judge or magistrate may “forthwith” suspend the lawyer from practising for a period not exceeding one month (Article 993). 58. According to paragraph 20 of the Basic Principles on the Role of Lawyers (adopted in 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders), lawyers should enjoy “civil and penal immunity for relevant statements made in good faith in written or oral pleadings in their professional appearances before a court, tribunal or other legal or administrative authority”. 59. In its Recommendation Rec(2000)21, the Committee of Ministers of the Council of Europe recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to implementing the freedom of exercise of the profession of lawyer. For instance, “lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards”. Lawyers should, however, “respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards” (Principles I § 4 and III § 4; see Nikula v. Finland, no. 31611/96, §§ 27-28, ECHR 2002II). | 1 |
train | 001-67169 | ENG | HRV | CHAMBER | 2,004 | CASE OF MARINKOVIC v. CROATIA | 4 | Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 6. The applicants were born in 1946 and 1955, respectively and live in Boleč, Serbia and Montenegro. 7. On 6 or 7 May 1992 their house in Novska, Croatia, was set ablaze by unknown perpetrators. 8. On 11 November 1996 they instituted civil proceedings before the Novska Municipal Court (Općinski sud u Novskoj) seeking damages from the Republic of Croatia for their damaged property. 9. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Novska Municipal Court stayed the proceedings on 24 October 1997. 10. The proceedings resumed on 22 October 2003 pursuant to the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija). 11. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows: “Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.” 12. The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows: “Section 180 of the Civil Obligations Act ... shall be repealed.” “Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed. The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.” 13. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 14. The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations. | 1 |
train | 001-59560 | ENG | DEU | CHAMBER | 2,001 | CASE OF ERDEM v. GERMANY | 1 | Violation of Art. 5-3;Not necessary to examine Art. 6-2;No violation of Art. 8 | Antonio Pastor Ridruejo | 8. The applicant said that his name was Selahattin Erdem and that he was born in 1958 in Derik (Turkey). However, according to the Düsseldorf Court of Appeal (Oberlandesgericht), his real name was Duran Kalkan and he was born in 1954 in Adana (Turkey). 9. On 7 April 1988 the applicant, who had enjoyed political refugee status in France since December 1987, was arrested at the German border on suspicion of being a member of a terrorist organisation (Article 129a of the Criminal Code) and of forging documents (Article 267 of the Criminal Code). 10. On 8 April 1988 the investigating judge at the Federal Court of Justice (Bundesgerichtshof) issued a warrant for the applicant's detention pending trial. The applicant remained in custody until 7 March 1994. 11. On 20 October 1988 the Federal Public Prosecutor started a judicial investigation into the activities of the applicant and fifteen other leaders of the PKK (Workers' Party of Kurdistan). 12. On 31 August 1989 the Fifth Criminal Division of the Düsseldorf Court of Appeal made an order for the main proceedings, which included five other charges against members of the PKK, to begin. 13. The proceedings had been brought against eighteen accused and concerned six murders and six abductions, the structure of the terrorist organisation and a further five murders that had been committed within the organisation. 14. The trial began on 24 October 1989 and ended on 7 March 1994 after 353 days in court. 15. At the hearing on 7 December 1990 the public prosecutor asked the Court of Appeal to inform the applicant, in accordance with Article 265 of the Code of Criminal Procedure, that the charges he was facing could entail a conviction for murder (Article 211 of the Criminal Code) and for his activities as a leader (Rädelsführer) of a terrorist organisation (Article 129a § 2 of the Criminal Code). 16. By a decision of 8 March 1993, the Court of Appeal ruled that the accused, Mr Kalkan, faced convictions for being a member of a terrorist organisation and for murder, but not for his activities as a leader of that organisation. 17. Fourteen defendants were no longer involved in the proceedings: two defendants had been discharged in 1990 – one owing to the minor nature of the charges (Geringfügigkeit), the other because of unfitness to stand trial (Verhandlungsunfähigkeit) – while in 1992 ten others had fled the country and two had been convicted of separate offences. ... 23. While the applicant was in detention pending trial, his correspondence with his lawyer was monitored under powers contained in Article 148 § 2 of the Code of Criminal Procedure ... 24. In a 900-page judgment of 7 March 1994 the Düsseldorf Court of Appeal convicted the applicant of being a member of a terrorist organisation and sentenced him to six years' imprisonment (Article 129a § 1 of the Criminal Code). It found that he had been one of the founders of the PKK in 1978, had set up units in Lebanon and Syria and had been in charge of recruitment in those countries. It added that in 1983 the applicant had led armed resistance in Turkey until he was deposed by Abdullah Öcalan, after being accused of incompetence and authoritarianism. Subsequently he had been assigned to the PKK's European headquarters in Cologne with Ali Cetiner, who was later to become the main prosecution witness (Kronzeuge) against him. The Court of Appeal said that from December 1986 to December 1987 the applicant had been a member of the executive committee of the PKK, with responsibilities for, inter alia, surveillance and intelligence. At executive committee meetings he had proposed to identify and collect information on groups within the PKK that were hostile to Öcalan, to combat them, liquidating them if necessary. He had also helped to compile lists of persons to be liquidated. 25. In a judgment of 6 March 1996 the Federal Court of Justice dismissed the applicant's appeal, holding that the judgment of the Court of Appeal did not contain any errors of law that had operated to his detriment. 26. On 10 April 1996 the applicant lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht), in which he alleged in particular a violation of Article 5 § 3 of the Convention on the ground that he had not been brought to trial within a reasonable time, and that his correspondence had been monitored unlawfully. 27. On 19 February 1997 a three-member committee of the Constitutional Court refused to examine the appeal. ... 31. Article 148 § 1 of the Code of Criminal Procedure lays down that remand prisoners may communicate in writing and orally with their lawyers. 32. The first sentence of Article 148 § 2 of the Code of Criminal Procedure reads as follows: “If the accused is in custody and the investigation concerns an offence under Article 129a of the Criminal Code [membership of a terrorist organisation], access to written or other documents must be refused unless the sender agrees to their first being examined by a judge ... In cases in which correspondence has to be monitored ... adequate measures shall be taken to avoid written or other documents being handed over at meetings between prisoners and their lawyers.” 33. The purpose of the exception set out in Article 148 § 2 of the Code of Criminal Procedure is to prevent prisoners suspected of an offence under Article 129a of the Criminal Code from continuing to work for the terrorist organisation to which it is alleged they belong and contributing to its survival (Federal Court of Justice, Neue Strafrechtzeitschrift no. 84, p. 177). 34. Article 148a of the Code of Criminal Procedure provides that the judge with responsibility for such surveillance measures is the judge of the district court where the prison is located and that he or she shall not have, and may not be assigned, conduct of the investigation and shall keep the information thus obtained confidential, unless it concerns a serious or very serious offence, such as an offence under Article 138 §§ 1 or 2 of the Criminal Code. | 1 |
train | 001-82684 | ENG | SVK | ADMISSIBILITY | 2,007 | BECOVA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Anna Becová, is a Slovak national who was born in 1931 and lives in Michalovce. She was represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 October 1991 the applicant and another person filed an action under the Land Ownership Act of 1991. On 2 July 1993 the District Court in Michalovce ordered the defendant to pay a sum of money to the plaintiffs. It decided to deal in a separate set of proceedings with the claims concerning compensation for movable property and compulsory lease of the land in issue. Finally, the District Court rejected the remainder of the action. The District Court in Michalovce and the Regional Court in Košice determined the claims for compensation on 26 July 1996 and 27 January 1998. The claims related to the lease of the property were to be determined separately. In the meantime, on 16 May 1997, bankruptcy proceedings were brought against the first defendant. The proceedings in respect of that defendant were therefore stayed pending the outcome of the bankruptcy proceedings. The applicant registered her claims against that person in the context of the bankruptcy proceedings on 6 April 1998. On 23 January 2002 the applicant filed a complaint with the Constitutional Court. She complained about delays in the proceedings before the District Court. On 2 October 2002 the Constitutional Court found that the District Court had violated the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time. The Constitutional Court noted that the case fell within its competence ratione temporis as from 15 February 1993 only. It nevertheless had regard also to the period during which the proceedings had been pending prior to that date. After having analysed the proceedings in the light of the criteria which the Court applies under Article 6 § 1 of the Convention, the Constitutional Court reached the conclusion that the overall period of 11 years was clearly excessive and that the way in which the District Court had acted was, as a whole, contrary to the applicant’s right to a hearing within a reasonable time. The Constitutional Court ordered the District Court in Michalovce to proceed with the case without any further delay. It also ordered that the District Court should pay 150,000 Slovak korunas (SKK) to the applicant within two months. On 23 October 2002 the District Court asked the plaintiffs to complete their submission of 26 July 2001. The parties made several submissions to the District Court between 25 October and 6 December 2002. The District Court held a hearing on 9 December 2002. It decided to obtain an expert opinion with a view to determining the rent payable in respect of the land in issue. Between 16 December 2002 and 17 February 2003 the file was put at the disposal of the Regional Court in Košice. On 19 February 2003 the District Court asked the parties to pay an advance on an expert’s fees. On 23 April 2003 it appointed an expert who was requested to submit an opinion within 60 days. The decision was served on the expert on 3 May 2003. On 2 June 2003 the expert asked for further documents. Between June and September 2003 the District Court obtained documentary evidence from several co-operatives and an administrative authority. It submitted the evidence thus obtained to the expert on 9 October 2003. The expert was asked to obtain information in respect of co-operatives which had not replied to the court’s request. On 5 November 2003 the District Court heard a witness. Two other witnesses representing the co-operatives concerned failed to appear. At the expert’s requests the District Court obtained further documentary evidence on 18 December 2003, 8 January 2004 and 5 February 2004. The expert submitted his opinion on 10 February 2004. The parties submitted their comments on it on 20 and 24 February 2004. The District Court held a hearing on 27 February 2004. It delivered a judgment in which it partly granted the applicant’s claims related to compulsory lease of the property by the second defendant. It decided to deal in a separate set of proceedings with the relevant claim related to the first defendant in respect of whom bankruptcy proceedings were still pending. On 5 and 7 May 2004 the second defendant and the plaintiffs appealed. After the court fee had been paid, the District Court submitted the case to the court of appeal on 4 June 2004. On 29 March 2005 the Regional Court in Košice quashed a part of the first-instance judgment on the ground that the District Court had proceeded and decided erroneously in several respects. The decision of the court of appeal was transmitted to the District Court on 13 May 2005. On 23 May 2005 the applicant specified her claim. She submitted further documents in July and August 2005. On 26 August 2005 the District Court gave a new judgment on the point in issue. On 12 October 2005 the second defendant appealed. The file was submitted to the court of appeal on 19 October 2005. The Regional Court in Košice upheld the relevant part of the first-instance judgment on 20 May 2006. The decision on the point in issue became final on 29 June 2006. | 0 |
train | 001-114659 | ENG | CZE | CHAMBER | 2,012 | CASE OF ČADEK AND OTHERS v. THE CZECH REPUBLIC | 4 | No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | André Potocki;Angelika Nußberger;Dean Spielmann;Helena Jäderblom;Karel Jungwiert;Mark Villiger | 5. Under the Land Ownership Act, restitution claimants were entitled to restitutio in integrum of land which had been confiscated from them before 1990. If it was not possible, for various reasons indicated in the Act, to restore a particular plot of land, they were entitled to receive compensatory land of equivalent value (“restitution claim”). The Land Fund (pozemkový fond), a public body under the Ministry of Agriculture (hereinafter “the Fund”), deals with these restitution claims. Some original restitution claimants transferred their claims to other persons, a practice which was allowed by law. The restitution claims had a nominal value, which was based on the price of the confiscated land in 1991. 6. Act no. 253/2003 amending the Land Ownership Act (“the Amendment Act”) was passed on 6 August 2003 (see paragraph 41 below). It provided that if the Fund had not settled a claim for a substitute plot of land by 31 December 2005 – or within two years if the claim had been purchased after entry into force of the Amendment Act – the claim would be extinguished and the restitution claimant would retain only the right to financial compensation in the amount of the nominal value of the claim. By the end of 2005 many restitution claims were still outstanding. 7. On 7 June 2005 the board of directors of the Fund adopted a confidential internal directive in accordance with which the Fund would draw up contracts for the transfer of plots of land with persons who, like some of the applicants, had instituted proceedings against it. This practice was terminated on 1 July 2005. When the media discovered this month-long practice in autumn 2005, they portrayed it as scheming with restitution claims within the Fund. According to them, those who had profited from it had been mostly people who had known about the directive and instituted proceedings after 7 June 2005, including some friends of managers of the Fund. As a result of the disclosure of this practice, four managers of the Fund were dismissed and on 16 November 2005 the Minister of Agriculture resigned. Subsequently, the Fund started to institute proceedings in order to have those transfer contracts rendered null and void. 8. Between 7 March and 29 April 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 30 June 2005 he instituted proceedings against the Fund, claiming the transfer of particular plots of land in settlement of his restitution claims. 9. On 6 October 2006 the Prague 8 District Court (obvodní soud) rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 28 March 2007 the Prague Municipal Court (městský soud) upheld the judgment but on a different ground. It found that the applicant was not entitled to settlement of his restitution claims through legal proceedings, as the Fund’s priority was to settle the original restitution claims. On 10 August 2007 the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law lodged by the applicant, thereby endorsing the opinion of the District Court. On 6 March 2008 the Constitutional Court (Ústavní soud) dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). 10. Between 7 March and 29 April 2005 the applicant purchased several restitution claims for substitute plots of land. On 30 May 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims. 11. On 22 September 2006 the Prague 10 District Court rejected his claims, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 12 April 2007 the Municipal Court upheld that judgment. On 28 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 10 July 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). 12. On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims. 13. On 14 August 2006 the Prague 4 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 17 January 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 18 September 2008 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). 14. Between 11 and 19 May 2005 the applicant purchased a number of restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of his restitution claims. 15. In a judgment of 27 November 2006 the Prague 9 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 11 July 2007 the Municipal Court upheld that judgment. On 30 June 2008 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 25 June 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below). 16. On 11 May 2005 the applicant purchased several restitution claims for substitute plots of land. On 7 June 2005 he instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of his restitution claims. 17. In a judgment of 2 October 2007 the Prague 5 District Court rejected his claim, holding that his restitution claims had expired on 31 December 2005 under the Amendment Act. On 10 February 2008 the Prague Municipal Court upheld that judgment. On 5 March 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 8 July 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). 18. The restitution claims purchased by the applicant in the five applications cost a total of 12,184,153 Czech korunas (CZK) (487,366 euros (EUR)). The claims were settled by financial compensation of CZK 6,651,909 (EUR 266,076), which constituted their nominal value. 19. The applicant has been a farmer since 2003. She purchased several restitution claims for substitute plots of land between 2004 and 2005, and one on 17 June 2003. The total nominal value was CZK 2,030,605 (EUR 81,224); but the applicant paid CZK 2,984,824 (EUR 119,393). On 14 July 2005 she instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of her restitution claims. 20. In a judgment of 31 July 2006 the Klatovy District Court rejected her claim, holding that her restitution claims had expired on 31 December 2005 under the Amendment Act. On 8 November 2006 the Plzeň Regional Court (krajský soud) upheld that judgment. On 23 August 2007 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 12 March 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant as manifestly ill-founded, referring to its judgment no. Pl. ÚS6/05 (see paragraph 42 below). 21. The applicant received financial compensation of CZK 1,307,740 (EUR 52,310) for her restitution claims and she had the right to receive the rest of the nominal value of her restitution claims. 22. The applicant is a corporation established under Czech law. On 19 April and 3 June 2005 respectively, the applicant company concluded two contracts by which it purchased for an unspecified amount restitution claims for substitute plots of land. On an unspecified date the applicant company instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of its restitution claims. On the basis of a contract concluded on 1 July 2005, the Fund transferred to the applicant company the ownership of a plot of land valued at CZK 277,903 (EUR 11,579). Consequently, the court proceedings were terminated as the matter had been resolved. 23. On an unspecified date the Fund instituted proceedings against the applicant company for the determination of property rights to the transferred plot of land, claiming that the contract was null and void. 24. On 9 June 2006 the Cheb District Court decided that the Fund was the owner of the plot of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly before transferring it to the applicant company and had thereby unlawfully excluded other eligible persons from acquiring it. On 23 May 2007 the Plzeň Regional Court upheld the judgment, endorsing the District Court’s ruling. On 7 May 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 6 August 2009 the Constitutional Court dismissed a constitutional appeal lodged by the applicant company as manifestly ill-founded, referring to its judgment no. Pl. ÚS 6/05 (see paragraph 42 below). 25. The applicant company has not requested financial compensation to settle its restitution claims. 26. Between 2 February and 31 March 2005 the applicants purchased several restitution claims for substitute plots of land in order to acquire land in Prague to set up a health centre. The total nominal value of the restitution claims was CZK 5,084,404 (EUR 211,850); they paid CZK 14,092,500 (EUR 563,700). On 25 May 2005 they instituted proceedings against the Fund claiming the transfer of particular plots of land in settlement of their restitution claims. 27. In a judgment of 23 May 2007 the Prague 4 District Court rejected their restitution claims, holding that they had expired on 31 December 2005 under the Amendment Act. On 17 April 2008 the Prague Municipal Court upheld this judgment. On 18 November 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicants. On 18 March 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded. 28. The first applicant received financial compensation of CZK 2,351,442 (EUR 94,050) and did not ask for financial compensation for his outstanding restitution claims. The second applicant did not ask for financial compensation. 29. The applicant is an agricultural company. On 27 May 2005, it concluded a contract by which it purchased, for an unspecified amount, restitution claims for substitute plots of land, the nominal value of which was CZK 1,247,292 (EUR 51,971). On the basis of a contract concluded on 1 July 2005 the Fund transferred to the applicant company the ownership of plots of land valued at CZK 733,906 (EUR 29,356) in partial settlement of the claim. The application refers only to that part of the claim. 30. On 17 December 2005 the Fund instituted proceedings against the applicant company for determination of property rights to the transferred plot of land, claiming that the contract was null and void. On 30 October 2007 the Jindřichův Hradec District Court decided that the Fund was the owner of the plots of land. It held that the contract was null and void because the Fund had not offered the sale of the land publicly and had thereby unlawfully excluded other eligible persons from acquiring it. On 27 February 2008 the České Budějovice Regional Court upheld the judgment, endorsing the District Court’s ruling. On 17 March 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant company. On 10 June 2010 the Constitutional Court dismissed a constitutional appeal lodged by them as manifestly ill-founded. 31. The applicant company received CZK 733,906 (EUR 29,356) as financial compensation for its restitution claim. 32. On 17 September 1997 the applicant purchased a restitution claim for substitute plots of land for CZK 56,248 (EUR 2,344), corresponding to its nominal value. She intended to acquire a plot of land on which she could breed horses for private purposes. 33. On 21 January 1998 the Fund accepted the applicant’s request for the transfer of a particular plot of land, but informed her that it could not carry out the transfer until it had all the necessary materials regarding the relevant zoning plan. On 2 February 1998 the applicant wrote to the Fund asking it to settle her claim without further delay. 34. On 8 November 2005 the applicant instituted proceedings against the Fund claiming the transfer of a particular plot of land in settlement of her restitution claim. 35. On 12 December 2005 the Fund transferred the ownership of the plot of land to the City of Tanvald. Consequently, the applicant brought proceedings against the Fund, claiming that the transfer contract should be declared null and void. 36. On 27 April 2007 the Jablonec nad Nisou District Court upheld her claim and declared the transfer contract null and void. In a judgment of 26 June 2008 the Ústí nad Labem Regional Court rejected the applicant’s claim, however, holding that her restitution claim for the transfer of land had expired on 31 December 2005 under the Amendment Act and thus she had no interest in having the contract declared null and void. On 12 May 2010 the Supreme Court dismissed an appeal on points of law lodged by the applicant. On 14 September 2010 the Constitutional Court dismissed a constitutional appeal lodged by her as manifestly ill-founded. 37. This Act provides, inter alia, for the restitution of certain agricultural and other properties, which were ceded or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. 38. Section 11 provides that if the actual property cannot be restored to its rightful owner, for example because the land has been built on, the Fund will transfer other equivalent State-owned property, preferably located in the same area, to the rightful claimant, if the latter consents. 39. In accordance with section 16, if property cannot be restored to its rightful owners and the latter cannot be compensated by the transfer of other property to them, they have a right to financial compensation under certain conditions. 40. Under section 28a, financial compensation is based on the value of the confiscated property on 24 June 1991, estimated in accordance with the regulations in force at that time. 41. Act no. 253/2003 amending the Land Ownership Act (“the Amendment Act”) entered into force on 6 August 2003, having been approved by the Lower Chamber of Parliament on 22 May 2003. It provided that any right to the transfer of substitute plots of land by the Fund under section 11 that had not been settled within two years from the date the restitution claim had been established would be extinguished, and claimants would be entitled only to financial compensation under section 28a. Concerning claims that were established before the Amendment Act entered into force, the right to substitute plots of land would be extinguished on 31 December 2005. 42. The Constitutional Court repealed the time-limit introduced by the Amendment Act for settling the claims of the original restitution claimants by transferring a substitute plot of land on the basis that it breached Article 1 of Protocol No. 1. It held that given that the Fund had not been effectively settling outstanding claims – it had not been offering enough plots of land for transfer and there had been no effective legal remedy for enforcing those claims – the time-limit in effect deprived restitution claimants of their claims, which constituted legitimate expectations under Article 1 of Protocol No. 1. However, the court distinguished between original restitution claimants and persons who had acquired restitution claims from them by deed. It said that only the rights of the original restitution claimants had been breached, because the transferees must have been aware of the difficulties in settling restitution claims and of the risks that accompanied them, so they could not be said to have legitimate expectations. 43. The Supreme Court, enlarging on the above decision of the Constitutional Court, held that the time-limit for settling claims for substitute plots of land did not apply to farmers who needed the land for their own farming, even if they were not original restitution claimants. It held that the right to substitute plots of land constituted “possessions” under Article 1 of Protocol No. 1 and that the Amendment Act, which in practice had deprived farmers of this right, had not struck a fair balance between the competing interests. It distinguished between the situation of a farmer who needed the land for his or her own farming, which was in compliance with the object and purpose of the Land Ownership Act, and those dealing in property, whose commercial activities involved certain risks. 44. In 2002 and 2003 the Supreme Audit Office conducted an audit of the Fund and found, inter alia, several irregularities in the way in which it dealt with restitution claims. It noted that the Fund’s offer of plots of land to settle restitution claims had been limited and that the Fund had favoured the sale of land before using it to settle the restitution claims. It found some further irregularities in the way in which the ownership of land had been transferred under the Land Ownership Act. | 0 |
train | 001-61561 | ENG | TUR | CHAMBER | 2,004 | CASE OF SADIK ÖNDER v. TURKEY | 3 | Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 9. The applicant is born in 1969 and lives in Istanbul. 10. On 9 July 1994 the applicant with fourteen other people was taken into police custody by the Anti-Terror branch of the Istanbul Security Directorate on suspicion of being a member of the PKK. 11. The applicant alleges that he was ill-treated and tortured in the police car on the way to the Istanbul Security Directorate and during his detention there. He claims that during his interrogation, he was blindfolded and stripped naked. He was strung up by his arms in the form of torture known as “Palestinian hanging”. His head was hit against the wall and he was held parallel to the ground on his hands and feet. He was also electrocuted, threatened and insulted. 12. The applicant further claims that he was coerced into signing a statement in which it was stated that he had worked for and had been involved in the terrorist activities of the PKK. After having signed the statement prepared by the police, he was allegedly kept in custody for one more week so that the signs of the ill-treatment to which he had been subjected would disappear. During that week, he claims that a police officer came to his cell at regular intervals and applied a medicine on his wounds in order to cover up the signs of ill-treatment. He claims that due to this medicine his scars healed very quickly. 13. The Government submit that the applicant was questioned by the police on 15 July 1994. They have produced a copy of a statement signed by the applicant on this occasion. 14. On 22 July 1994 the applicant together with 14 other detainees was examined by Dr T. Taner Apaydın at the Istanbul Forensic Medical Department. According to the medical report prepared by Dr Apaydın, the applicant showed no signs of ill-treatment. 15. On 23 July 1994 the applicant was brought before the Public Prosecutor at the Istanbul State Security Court. According to the records of this hearing, the applicant admitted that he had been involved with PKK related activities in the past and had been convicted on that account by the Erzincan State Security Court in 1989. He denied having any current relation with the PKK. He stated that the police invented the statement taken in custody. 16. The applicant alleges that he was brought to the Public Prosecutor at the Istanbul State Security Court together with the other detainees on 22 July 1994 but that the Public Prosecutor did not take his statement because he had complained to the prosecutor that he had been tortured in police custody. He further stated that because he told to the prosecutor that he was subjected to torture, he was once again tortured by the police. The Government contested this argument and stated that the applicant was brought for the first time before the Public Prosecutor on 23 July 1994. 17. The applicant alleges that he told the prosecutor on 23 July 1994 of his subjection to torture but that his statement was not taken into consideration by the Public Prosecutor and was not written down on the hearing records. 18. The applicant further stated that he was not seen by a doctor before being questioned by the Prosecutor on 23 July 1994 and consequently he does not have any medical evidence concerning the torture he was subjected to on 22 July 1994. 19. On 23 July 1994 the applicant was also brought before the Judge at the State Security Court. He denied the allegations against him and stated that he was not a member of the PKK. He further declared that the statement he gave to the Public Prosecutor was true. The Judge ordered his detention on remand. 20. The applicant claims that he told the State Security Court Judge that he had been tortured in police custody and that he had explained this to the Public Prosecutor at the State Security Court. However the case files show that the applicant did not claim to have being subjected to ill-treatment neither before the Public Prosecutor nor the State Security Court. 21. While the applicant was held in detention in prison, he requested to see a doctor. The prison doctor prepared a provisional report for the applicant and he was sent to the Eyüp Forensic Medical Department for a medical examination. 22. On 22 August 1994 the medical report prepared by the institution and signed by the medical expert stated that the applicant complained of widespread pain on his back, right arm and on both of his legs but that he could not find any signs of traumatic lesions. The medical report further stated that the complaints were not life threatening but accorded him one day's sick leave. 23. On 15 June 1995 the Chamber of Medicine of Istanbul (Istanbul Tabib Odası), in the context of disciplinary proceedings following complaints, found that Dr T. Taner Apaydın had concealed signs of torture in the medical examinations conducted on several persons between 3 February and 7 October 1994 and he was, therefore, prohibited from practising as a doctor for six months. 24. On 12 December 1994 the Public Prosecutor at the Istanbul State Security Court filed an indictment with the court, requesting that the court to apply Articles 168 §§ 1 and 2 and 169 of the Criminal Code and Section 5 of the Prevention of Terrorism Act. 25. On 13 September 1994 the applicant filed a complaint with the Istanbul Public Prosecutor's Office. He alleged that he had been ill-treated while in police custody and requested that proceedings be instituted against the police officers. He submitted the medical report of 22 August 1994 as proof of his ill-treatment. 26. On 11 January 1995 the Istanbul Public Prosecutor, referring to the medical report of the Eyüp Forensic Medical Department, gave a decision of non-prosecution on account of lack of evidence. 27. On 8 February 1995 the applicant filed an objection with the Beyoglu Assize Court against the Public Prosecutor's decision. 28. On 7 March 1995 the Beyoğlu Assize Court dismissed the applicant's objections. 29. The Court refers to the overview of the domestic law derived from previous submissions in other cases, in particular Veznedaroğlu v. Turkey, no. 32357/96, 11 April 2000, Tepe v. Turkey (dec.), no. 31247/96, 22 January 2002, and Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996VI). | 1 |
train | 001-91721 | ENG | UKR | ADMISSIBILITY | 2,009 | SOMOV v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva | The applicant, Mr Vladimir Igorevich Somov, is a Ukrainian national who was born in 1947 and lives in Artemovsk. He was represented before the Court by Mr S. A. Kirilenko, a lawyer practising in Artemovsk. The Ukrainian Government (“the Government”) were represented by their Agent Mr Y. Zaytsev and the Head of the Government Agent’s Office Mrs I. Shevchuk, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 November 2000 the applicant instituted proceedings in Artemovsk City Court, Donetsk Region (Артемовський міський суд Донецької області), seeking compensation for work-related injuries he had sustained on 30 August 1994 and 30 June 1997. On 16 November 2001 the Artemovsk City Court rejected the applicant’s complaints as unsubstantiated. On 11 March 2002 the Donetsk Regional Court of Appeal upheld the decision of the first-instance court. The court pronounced its decision in the applicant’s presence. On 16 April 2002 the applicant requested the President of Artemovsk City Court to provide him with a copy of the Donetsk Regional Court of Appeal decision. He stated that the time-limit for lodging a cassation appeal had been reduced and he still had not received a copy of the court of appeal decision. On 18 April 2002 the President of Artemovsk City Court informed the applicant about the new procedural time-limit for lodging a cassation appeal introduced on 4 April 2002 and that he could lodge an appeal before the case file was returned to the first-instance court. On 29 May 2002 the Registry of the Constitutional Court informed the applicant that his complaints that the judgments of the domestic courts were unfair were outside the scope of its constitutional jurisdiction. On 4 June 2002 the Registry of the Supreme Court notified the applicant that the ruling of 11 March 2002 could be appealed in cassation only through the first-instance court. On 12 and 22 June and 9 July 2002, the Deputy President and the President of Donetsk Regional Court of Appeal informed the applicant that it was impossible to appeal against the ruling of 11 March 2002 to the Supreme Court as the time-limit for lodging an appeal in cassation had expired. At the time of the second-instance appeal decision, the first paragraph of Article 321 of the CCP provided that a cassation appeal should be lodged within three months of the appeal decision or within a year of the decision of the first-instance court, if the latter decision had not been appealed under the normal appellate procedure. On 7 March 2002 the Ukrainian Parliament passed a law amending the CCP (“the Amendment Law”), including the Article in question. It came into force on 4 April 2002. The new wording of Article 321 created a one-month time-limit for lodging a cassation application against the decision of an appeal court. Under Article 323 of the Code a cassation appeal should be lodged via the court of first instance that had dealt with the case. | 0 |
train | 001-107693 | ENG | MDA | CHAMBER | 2,011 | CASE OF BERCUT S.R.L. v. MOLDOVA | 4 | Violation of P1-1 | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria | 5. The applicant company was founded in 1992 and since 1995 has, inter alia, run a driving school, being in possession of the necessary licence issued by the State for that purpose. On 30 June 2005 the applicant company’s licence was renewed with a term of validity of five years. At that time the driving school employed approximately sixty people and had approximately 2,400 students. 6. On 7 August 2006 the State Registration Chamber conducted an unannounced check on the driving school and discovered that two of its instructors had been replaced and that the State Registration Chamber had not been informed of this within the ten-day time-limit provided for by the law. 7. On 10 August 2006 the State Registration Chamber issued decision no. 2985, by which the applicant company’s licence was withdrawn in view of the irregularity. 8. On 12 August 2006 the applicant company initiated court proceedings against the State Registration Chamber, seeking the revocation of its order of 10 August 2006. The applicant company submitted, inter alia, that the check carried out by the defendant on 7 August 2006 had been unlawful and that it had announced to the State Registration Chamber the changes to its personnel by letters of 19 August 2005 and 7 February 2006. In that respect the applicant company submitted a copy of its internal register of incoming and outgoing correspondence containing notes of two letters sent to the State Registration Chamber. 9. On 27 November 2006 the Chişinău Court of Appeal dismissed the applicant company’s action, finding that its system of registering correspondence was not sufficient proof. The applicant company appealed against the judgment. 10. On 21 February 2007 the Supreme Court of Justice dismissed the applicant’s appeal. 11. The relevant provisions of Law no. 451 on Licensing (“the Licensing Act”) read as follows: (2) Unannounced checks can be conducted only on the basis of a written request in respect of a breach of licence conditions by a licence holder. (1) (f) [A licence may be withdrawn] if a licence holder fails to notify the appropriate authority in due time of a change in the data contained in the annexes to an application for a licence. 12. The relevant provisions of the Civil Code read as follows: “(1) Default interest is payable for delayed execution of pecuniary obligations. Default interest shall be 5% above the interest rate provided for in Article 585 [NBM refinancing interest rate] unless the law or the contract provides otherwise. Evidence that a lower level of damage has been incurred shall be admissible. (2) In non-consumer-related situations default interest shall be 9% above the interest rate provided for in Article 585 unless the law or the contract provides otherwise. Evidence that a lower level of damage has been incurred shall be inadmissible.” | 0 |
train | 001-59686 | ENG | GBR | CHAMBER | 2,001 | CASE OF HATTON AND OTHERS v. THE UNITED KINGDOM | 2 | Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Brian Kerr;Nicolas Bratza | 9. The noise levels experienced by each applicant, and the effect on each of them individually, are as follows: 10. Ruth Hatton was born in 1963 and, until 1997, lived in East Sheen with her husband and two children. From 1993, when the level of night noise increased, Mrs Hatton found the noise levels to be “intolerable” at night. The noise levels were greater when aircraft are landing at Heathrow from the east. When this happened, Mrs Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Mrs Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Mrs Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Mrs Hatton’s children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Mrs Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, Mrs Hatton moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night. 11. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated approximately 4 km from Heathrow airport and slightly to the north of the southern flight path. In about 1993, the level of disturbance at night from aircraft noise increased notably, and Mr Thake began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep. Mr Thake found it difficult to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on 19 occasions. Mr Thake remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area. Mr Thake moved to Winchester, Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”. 12. John Hartley was born in 1948 and lives in Richmond with his wife. He has lived at his present address since 1989. His house is about 8 miles (13 km) from Heathrow airport, and is situated almost directly under the approach to the airport’s southern runway. The windows of the house are double-glazed. From 1993, Mr Hartley noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). The British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than midnight. He would then find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep. 13. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. Ms Edmund’s house is approximately one kilometre from the Heathrow flight path. Before 1993, Ms Edmunds was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. Ms Edmunds suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night, and although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds’s children both suffered from disturbance by aircraft noise. 14. John Cavalla was born in 1925. From 1970 to 1996, he lived in Isleworth. Mr Cavalla lives with his wife. Mr Cavalla’s house in Isleworth was directly under the flight path of the northern runway at Heathrow airport. In the early 1990s, the noise climate deteriorated markedly, partly as a result of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla noticed that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. Mr Cavalla found that, once woken by an aircraft arriving at Heathrow airport in the early morning, he was unable to go back to sleep. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, Mr Cavalla was only very rarely exposed to any night-time aircraft noise following his move. 15. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. Mr Thomas has lived at his present address since 1975. His house lies between the north and south Heathrow flight paths. Aircraft pass overhead on seven or eight days out of every ten, when the prevailing wind is from the west. Mr Thomas noticed a sudden increase in night disturbance in 1993. Mr Thomas would find that he was awoken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half an hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m. 16. Richard Bird was born in 1933 and lived in Windsor for 30 years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow airport. In recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. and 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998, and he and his wife moved to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”. 17. Tony Anderson was born in 1932 and lives in Touchen End, which is under the approach to runway 09L at Heathrow airport, and approximately 9 or 10 nautical miles from the runway. Mr Anderson has lived in Touchen End since 1963. By 1994, Mr Anderson began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow airport. 18. Heathrow airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom’s leading port in terms of visible trade. 19. Restrictions on night flights at Heathrow airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998. 20. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority. 21. A Consultation Paper was published by the United Kingdom Government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided Leq were not increased (dBA Leq metric is a measurement of noise exposure). 22. It indicated that there were two reasons for not considering a ban on night flights: first, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow airport as a 24-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports. 23. From 1988 to 1993, night flying was regulated solely by means of a limitation upon the number of take-offs and landings permitted at night. The hours of restriction were as follows: Summer 11.30 p.m. to 6 a.m. weekdays 11.30 p.m. to 6 a.m. Sunday landings 11.30 p.m. to 8 a.m. Sunday take-offs Winter 11.30 p.m. to 6.30 a.m. weekdays 11.30 p.m. to 8 a.m. Sunday take-offs and landings 24. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. 25. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester airports. The findings were published in December 1992 as the “Report of a Field Study of Aircraft Noise and Sleep Disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about 18 nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft noise movements would cause very little increase in the average person’s nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average. 26. In January 1993, the Government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. In considering the demand for night flights, the Consultation Paper made reference to the fact that if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements. 27. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price sensitive market. 28. Further, the Consultation Paper stated that both scheduled and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings. It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended upon high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and which could only be fitted in using movements at night. 29. Finally, in reference to the demand for night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and referred to the fact that all-cargo movements are banned, whether arriving or departing, for much of the day at Heathrow airport. 30. The Consultation Paper referred to the 1992 sleep study stating that the 1992 sleep study found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people’s health or well-being. 31. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to improve it, it was proposed that the quota for the next five years based on the new system should be set at a level so as to keep overall noise levels below those in 1988. 32. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association [“IATA”], the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses. 33. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”). 34. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Heathrow airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement. 35. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (8 QC – quota count – or 16 QC) or to land (16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter). 36. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the Government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper. 37. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State’s decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 70-73 below) In consequence of the various judgments delivered by the High Court and Court of Appeal, the Government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions [formerly the Department of Transport; “the DETR”]) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995, and issued a supplement to the March 1995 Consultation Paper in June 1995. 38. The June 1995 supplement stated that the Secretary of State’s policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to Government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the Government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 a.m. and 5.30 a.m. 39. On 16 August 1995, the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people’s ability to sleep at nights because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational. On 12 November 1996, the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal. 40. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks change from GMT to BST). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period. 41. In September 1995, a trial was initiated at Heathrow airport of modified procedures for early morning landings (those between 4 a.m. and 6.00 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of Revised Heathrow Early Mornings Approach Procedures Trial”, was published in November 1998. 42. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published in December 1997. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”. 43. In 1998, the Government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted airports. In February 1998, a preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper. 44. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom’s most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success. 45. The Government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation. 46. The British Air Transport Association (“BATA”) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about £850 million. BATA submitted the report to the Government when it responded to the Preliminary Consultation Paper. 47. On 10 September 1998, the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998. 48. In November 1998, the Government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive Governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that ‘interference with sleep’ was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full scale study of either sleep prevention or total sleep loss. 49. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss. 50. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they are of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and to update the arrangements as appropriate. 51. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m. 52. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region. 53. The Consultation Paper indicated that the Government had not attempted to quantify the aviation and economic benefits of night flights in monetary terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which was commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long haul scheduled night flight at Heathrow to be £20m to £30m per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA’s figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts. 54. The Consultation Paper stated that, in formulating their proposals, the Government had taken into account both BATA’s figures and the fact that it was not possible for the Government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in monetary terms, but it was possible, drawing on the 1992 sleep study, to estimate the numbers of people likely to be awakened. The Consultation Paper concluded that in forming its proposals, the Government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night; that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the Government’s view, would protect local people from excessive aircraft noise at night. 55. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant reclassifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of Chapter 2 civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16 and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (i.e. after completion of the compulsory Chapter 2 phase out). 56. The Consultation Paper stated that since the introduction of the 1993 scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review. 57. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow’s runways at night. 58. On 10 June 1999, the Government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99. 59. The 1999 Scheme came into effect on 31 October 1999. 60. On 10 November 1999, a report was published on “The Contribution of the Aviation Industry to the UK Economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the Government. 61. On 23 November 1999, the Government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further consultation paper concerning proposals for changes to the preferential use of Heathrow’s runways at night. 62. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR. 63. In March 2000, DORA published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers. 64. A series of noise mitigation and abatement measures is in place at Heathrow airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise related airport charges; noise insulation grant schemes and compensation for noise nuisance under the Land Compensation Act 1973. 65. The DETR and the management of Heathrow airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas within the vicinity of Heathrow airport, and local residents’ associations are represented. 66. Section 76 (1) of the 1982 Act provides, so far as relevant: 67. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance. 68. Section 78 (3) of the 1982 Act provides, so far as relevant: “If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say– (a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified; (b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified; ....” 69. Restrictions on night flights at Heathrow airport are imposed by means of notices published by the Secretary of State under section 78 (3) of the 1982 Act. 70. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State’s decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78 (3) (b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports, p. 74). 71. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78 (3) (b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow airport would permit an increase in noise levels over those experienced in 1988 (R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports, p. 390). 72. Following the publication of a further consultation paper in March 1995, and of a supplement to the March 1995 consultation paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people’s ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports, p. 1460). 73. On 12 November 1996, the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal. | 1 |
train | 001-75289 | ENG | TUR | ADMISSIBILITY | 2,006 | AYDIN v. TURKEY | 4 | Inadmissible | null | The applicants, Mehmet Aydın, İbrahim Durgun, Hasan Çelik, Süleyman Aygören, Emir Aygören, Celal Aygören and Hüseyin Aygören, are Turkish nationals. They are represented before the Court by Mr H. Aygün and Mr Ö. Kaplan, lawyers practising in Tunceli. The facts of the case, as submitted by the parties, may be summarised as follows. Until 1994 the applicant lived in Çalbaşı, a village of the Ovacık district, in Tunceli. He owns property in a neighbouring village, Kozluca. In 1994 security forces forcibly evacuated Çalbaşı on account of disturbances in the region. The applicant then moved to Elazığ, where he currently lives. On 5 February 2001 the applicant filed a petition with the District Governor’s office in Ovacık requesting permission to return to his village. On 12 February 2001 the District Governor’s office in Ovacık sent the following reply to the applicant: “It is established, by the decision of the Administrative Council of 23 June 1995 that your village was burned down by terrorists. Therefore, there is no basis to start an investigation against the state officers. Your petition will be considered under the ‘Return to the Village and Rehabilitation Project.” On 12 May 2002 and 17 May 2002 the applicant filed further petitions with the District Governor’s office in Ovacık and the Governor’s office in Tunceli respectively. He requested permission to return to his village and compensation for the damages he suffered. On 11 June 2002 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’.” On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Ovacık, Hozat and Tunceli authorities had acted negligently in the exercise of their public duties. On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and in accordance with Articles 3 and 12 of Law no. 4483 sent the case file to the Public Prosecutor at the Court of Cassation, who decided on 30 September 2002 not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not take any decision as to the complaint against the Ovacık and Hozat District Governors. Until 1994 the applicant lived in the Bilekli village in the district of Hozat, in Tunceli, where he owns property. In 1994, security forces forcibly evacuated Bilekli on account of disturbances in the region. The applicant then moved to Elazığ, where he currently lives. On 14 May 2002 the applicant filed a petition with the District Governor’s office in Hozat requesting permission to return to his village. He received no response to his petition. On 17 May 2002 he filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered. On 07 June 2002 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’.” On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties. On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Public Prosecutor’s office at the Court of Cassation in accordance with Articles 3 and 12 of Law no. 4483. On 30 September 2002 the Public Prosecutor at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors On 12 May 2003 the applicant informed the Court that the Tunceli Governor had authorised re-settlement in the villages of Tunceli. The applicant further stated that returning and settling in the Bilekli village was anyhow impossible since the infrastructure and the houses of the village were completely ruined. Until 1994 the applicant lived in the Ağırbaşak village in the district of Hozat, in Tunceli. He owns property in Ağırbaşak and in a neighbouring village Çölkerek. It is to be noted that, some of the documents attesting ownership of property, which the applicant submitted to the Court, bear his father’s name. In 1994, security forces forcibly evacuated Ağırbaşak on account of disturbances in the region. The applicant then moved to Hozat, where he currently lives. On 14 May 2002 the applicant filed a petition with the District Governor’s office in Hozat requesting permission to return to his village. He received no response to his petition. On 17 May 2002 he filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered. On 07 June 2002 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’.” On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties. On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Public Prosecutor’s office at the Court of Cassation in accordance with Articles 3 and 12 of Law no. 4483. On 30 September 2002 the Public Prosecutor’s office at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors. Until 1994 the applicants lived in Kızılkilise, a hamlet of the Bilekli village in the district of Hozat, in Tunceli. In 1994 security forces forcibly evacuated Kızılkilise on account of disturbances in the region. Süleyman Aygören (Application no. 5307/03) The applicant owns property in neighbouring villages, Ormanyolu and Tağer. The applicant then moved to Istanbul, where he currently lives. Emir Aygören (Application no. 5333/03) The applicant owns property in neighbouring village, Boydas and Tağer. The applicant then moved Hozat, where he currently lives. Celal Aygören (Application no. 5329/03) The applicant owns property in neighbouring village, Ormanyolu. The applicants then moved Hozat, where he currently lives. Hüseyin Aygören (Application no.5321/03) The applicant owns property in neighbouring villages, Ormanyolu and Boydaş. The applicant then moved to a neighbouring village, Karabakir, where he currently lives. On 14 May 2002 another inhabitant of Kızılkilise, Mr Yusuf Yeşil, filed a petition with the District Governor’s office in Hozat requesting permission to return to his village he not received no response to his petition. On 17 May 2002 Mr Yusuf Yeşil filed a further petition with the Governor’s office in Tunceli. He requested permission to return to his village and compensation for the damages he suffered. On 07 June 2002 the Governor’s office in Tunceli sent the following reply to Mr Yusuf Yeşil: “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’.” On 11 September 2002 the applicant lodged a petition with the Public Prosecutor’s office in Tunceli and complained that the Hozat District Governor, the Ovacık District Governor and the Tunceli Governor had acted negligently in the exercise of their public duties. On 18 September 2002 the Tunceli Public Prosecutor issued a decision of non-jurisdiction and sent the case file to the Public Prosecutor’s office at the Court of Cassation in accordance with Articles 3 and 12 of Law no. 4483. On 30 September 2002 the Public Prosecutor at the Court of Cassation decided not to initiate criminal proceedings against the Tunceli Governor. The Public Prosecutor did not make any decision as to the complaint against the Ovacık and Hozat District Governors. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. The official records indicated that 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. 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 | 001-61875 | ENG | GEO | GRANDCHAMBER | 2,004 | CASE OF ASSANIDZE v. GEORGIA | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Respondent State to take individual measures (Article 46-2 - Individual measures);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 20. The applicant was born in Georgia in 1944. He is currently in custody in Batumi, the capital of the Ajarian Autonomous Republic in Georgia. 21. The applicant was formerly the mayor of Batumi, the capital of the Ajarian Autonomous Republic, and a member of the Ajarian Supreme Council. He was arrested on 4 October 1993 on suspicion of illegal financial dealings in the Batumi Tobacco Manufacturing Company, a private company, and the unlawful possession and handling of firearms. He was convicted on 28 November 1994 and given an immediate custodial sentence of eight years; orders were made for the confiscation of his assets and requiring him to make good the pecuniary losses sustained by the company. On 27 April 1995 the Supreme Court of Georgia, in a judgment on an appeal on points of law, upheld the applicant's conviction of 28 November 1994 for illegal financial dealings but quashed his other convictions. Instead of being transferred to prison to serve his sentence, the applicant remained in custody in the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. 22. By Decree no. 1200 of 1 October 1999, the Georgian President granted the applicant a pardon suspending the remaining two years of his sentence. The relevant provisions of the decree read as follows: “... that [the following] shall be granted a pardon: 1. Tengiz David Assanidze, born in 1944, who was tried for offences under Articles 238 § 2, 96.1 and 45 of the Criminal Code and sentenced on 28 November 1994 to eight years' imprisonment by the High Court of the Ajarian Autonomous Republic; the remaining two years of his prison sentence shall be suspended and replaced by release on licence for the same period ... 2. N.V.G., born in 1983 ... 3. M.A.M., born in 1953 ...” 23. Despite the presidential pardon, the applicant remained in custody in the short-term remand prison of the Ajarian Ministry of Security. 24. The Batumi Tobacco Manufacturing Company immediately challenged Presidential Decree no. 1200 of 1 October 1999 in the High Court of the Ajarian Autonomous Republic (“the Ajarian High Court”) on the ground that it had been granted unlawfully. Execution of the pardon was therefore stayed in accordance with Article 29 of the Code of Administrative Procedure. 25. On 11 November 1999 the Ajarian High Court declared the pardon null and void on the ground that the statutory procedure that should have been followed before the President of Georgia could exercise his right of pardon had not been complied with. 26. That judgment was quashed on 28 December 1999 by the Supreme Court of Georgia, which, in accordance with Article 360 of the Civil Code which was then in force, remitted the case to the Administrative and Tax Affairs Panel of the Tbilisi Court of Appeal. In its submissions to that court, the Batumi Tobacco Manufacturing Company again contended that the pardon contravened the Presidential Decree of 13 May 1998 establishing the rules governing the exercise by the President of Georgia of his right of pardon, added to which the applicant had yet to make good the pecuniary damage the company had suffered. 27. In the meantime, the applicant was charged with further criminal offences on 11 December 1999 (see paragraphs 33 et seq. below). 28. In a decision of 24 March 2000, the Tbilisi Court of Appeal dismissed the Batumi Tobacco Manufacturing Company's complaints as unfounded. It ruled that the procedural defects pleaded (the failure to obtain the opinion of the Pardons Board and the applicant's lack of remorse) did not render the President's order unlawful, as the right of pardon was an absolute constitutional right vested in the President of Georgia. It said that, since the pardon granted to the applicant did not extend to the ancillary award of compensation for pecuniary damage, the company could bring further legal proceedings to enforce that award; as to the remaining points, the company had no grounds for contesting the appropriateness of the pardon or the legality of the President's order. The Court of Appeal also noted that the company was not entitled in law to call for the reopening of the criminal proceedings against the applicant. It stated that it considered the applicant's detention to be in violation of Article 5 § 1 of the European Convention on Human Rights. 29. On 11 July 2000 the Supreme Court of Georgia dismissed an appeal on points of law by the Batumi Tobacco Manufacturing Company as unfounded. It noted that the impugned decision to pardon the applicant had left intact both the applicant's main sentence and the obligation to make good the pecuniary damage caused to the company. This was because the remaining two years of the sentence had been unconditionally suspended, the sentence being commuted to one of release on licence for the same period. The Supreme Court of Georgia said that the sole effect of the presidential pardon had accordingly been to secure the applicant's immediate release, while leaving intact the main and ancillary sentences. As to the President of Georgia's failure to follow the Rules on the Exercise of the Right of Pardon, the Supreme Court found that the decree of 13 May 1998 contained the working rules and regulations of the Office of the President of the Republic and that failure to observe them could under no circumstances prevent the Georgian President exercising his constitutional right of pardon. 30. Even after 11 July 2000 the local authorities in the Ajarian Autonomous Republic continued to hold the applicant in the short-term remand prison of the Ajarian Ministry of Security in Batumi. 31. The question of the legality of the applicant's pardon was referred by the Bureau of the Parliament on 24 June 2002 to the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities, which delivered its report on 26 September 2002 (see paragraphs 72 et seq. below). 32. On 4 October 2002 the President of Georgia issued a decree amending the presidential decree of 13 May 1998 establishing the Rules on the Exercise of the Right of Pardon. A new Article 10.1 of the decree vested the President of Georgia with the power to pardon convicted persons, as defined by Article 73 § 1, sub-paragraph 14, of the Constitution, without complying with the additional requirements set out in the decree beforehand. 33. On 12 November 1999 Mr David Assanidze, a close relative of the applicant who had been sentenced to twenty years' imprisonment by the Supreme Court of Georgia on 20 September 1996, gave an interview on a television channel broadcasting in the Ajarian Autonomous Republic in which he affirmed that the applicant had been one of his accomplices. 34. Following that interview the applicant, who had remained in custody after being pardoned by the President on 1 October 1999, was charged on 11 December 1999 with being a member of a criminal association in 1993 and with the attempted kidnapping of V.G., the head of the regional department of the Ministry of the Interior for Khelvachauri (Ajarian Autonomous Republic). 35. On 28 December 1999 the Batumi Court of First Instance remanded the applicant in custody pending the investigation of the new charges. According to the applicant, the pre-trial investigation into the case ended on 29 December 1999 and a five-volume case file was compiled. 36. In a decision of 2 March 2000, the Georgian General Prosecutor's Office decided to take no further action, finding that the applicant's prosecution was not based on an arguable case and that all the circumstances and evidence relating to V.G.'s murder had been examined by the Supreme Court of Georgia in its unfettered discretion at Mr David Assanidze's criminal trial in 1996. The General Prosecutor's Office took the view that, since the exhaustive examination of the file relating to V.G.'s kidnapping and murder had not thrown up any evidence whatsoever that the applicant had been a member of the criminal association led by Mr David Assanidze, there were no grounds for charging him in connection with the same case six years after the event. 37. On 20 March 2000 that decision was set aside by the Batumi Court of First Instance on an appeal by the civil party. Consequently, on 28 April 2000 the Prosecutor's Office of the Ajarian Autonomous Republic ordered the criminal proceedings against the applicant to be reopened. It brought the pre-trial investigation to an end by an order dated 29 April 2000. 38. The applicant was committed to stand trial in the Ajarian High Court, where he denied all guilt. He maintained that this second prosecution was the result of a conspiracy to frame him. He denied ever having had any links with Mr David Assanidze or his associates, who prior to their arrest had been living as outlaws in the Ajarian forests. The applicant also said that he had at no stage hired them to kidnap V.G., who had been killed by Mr David Assanidze's gang, and, contrary to what had been affirmed by the three prosecution witnesses, kidnapping a State official would not have helped the applicant to consolidate his power as mayor of Batumi. He asked the judges to find him innocent. 39. The Ajarian High Court found that, even though the applicant had denied helping to organise the kidnapping that had resulted in the victim's murder, his guilt was established by the depositions of three prosecution witnesses: Mr David Assanidze, the leader of the criminal gang, and two gang members, Mr Mamuka Mosiava and Mr Tamaz Jincharadze. On 20 September 1996 all three had been convicted with Mr Tamaz Assanidze, the applicant's brother, of, inter alia, V.G.'s murder. 40. At the applicant's trial, a confrontation was arranged between Mr David Assanidze and the applicant, at which the former affirmed that the applicant had supplied him with funds and two machine guns to carry out the kidnapping. 41. Mr Mamuka Mosiava said that he did not know the applicant and had never met him. He explained that he had merely caught a glimpse of the applicant when accompanying Mr David Assanidze to a meeting with him and had heard him instruct Mr David Assanidze to kidnap V.G. 42. It appears from the judgment that Mr Tamaz Jincharadze, the third witness, was unable to appear in court owing to illness and was heard by the judges in the office of the governor of the short-term remand prison of the Ajarian Ministry of Security. He stated that he did not know the applicant and had only seen him on television. It was through Mr David Assanidze that he had learnt that the applicant's brother, Mr Tamaz Assanidze, had instructed their group to kill V.G. Mr David Assanidze did not want to be involved in murder and had been to see the applicant, whom he was convinced was behind the plot. It was at that meeting that the applicant had told Mr David Assanidze that there was no need to eliminate V.G., only to kidnap him. On 2 October 1993 the three members of the group had waylaid the victim in a street in Batumi and, on attempting to abduct him in accordance with the applicant's instructions, had killed him by accident. 43. The Ajarian High Court said that it was not just the three witnesses' depositions which confirmed the applicant's guilt, but also the fact that they had been convicted by the Supreme Court of Georgia on 20 September 1996. Without elaborating further on that point, the Ajarian High Court said in conclusion that, even if there was a close relation between the applicant's case and that of Mr David Assanidze and his co-defendants, it constituted an independent criminal act involving participation in the activities of the criminal gang led by Mr David Assanidze and the organisation of V.G.'s kidnapping. In its view, the applicant was directly accountable under the criminal law for his part in those events. 44. Consequently, on 2 October 2000 the applicant was convicted and sentenced to twelve years' imprisonment to be served in a strict-regime prison. 45. The Ajarian High Court noted that since his arrest on 4 October 1993 the applicant had remained in custody at all times and had not been released after being granted a presidential pardon on 1 October 1999. Accordingly, he was deemed to have begun his sentence on 4 October 1993. 46. The applicant appealed on points of law to the Supreme Court of Georgia. The central authorities made various attempts to secure his transfer from Batumi to Tbilisi for the day of the hearing. The Georgian Minister of Justice requested the Ajarian authorities through the intermediary of the Georgian Minister of State Security and the Public Defender (Ombudsperson) to arrange for the applicant's transfer to the capital, but in vain. 47. On 29 January 2001 the Criminal Affairs Chamber of the Supreme Court of Georgia heard the appeal in the applicant's absence; it quashed the judgment of 2 October 2000 and acquitted the applicant. 48. It said, inter alia: “The preliminary investigation and judicial investigation in the present case were conducted in flagrant breach of the statutory rules. The criminal file does not contain incontrovertible evidence capable of supporting a guilty verdict; the judgment is, moreover, self-contradictory and based on inconsistent conjecture and depositions from persons interested in the outcome of the proceedings that were obtained in breach of the procedural rules. The convicted person, Tengiz Assanidze, did not admit the offences of which he was accused either during the preliminary investigation or at trial. He said that he had been charged as a result of a conspiracy against him by persons with an interest in his obtaining an unfavourable outcome to the proceedings. The Supreme Court notes that there is no evidence in the file to refute his arguments. It has been established that Mr David Assanidze and Mr Tamaz Assanidze [the applicant's brother] were convicted on 20 September 1996 and that Mr David Assanidze, who repeatedly said that his accomplice was Mr Tamaz Assanidze, had at no stage implicated Mr Tengiz Assanidze at the material time. It was only on 12 November 1999 – six years and one month after the events – that, in an interview given to Ajarian television, Mr David Assanidze accused Mr Tengiz Assanidze of having been his accomplice. In that interview, Mr David Assanidze also expressed indignation and outrage at Mr Tengiz Assanidze's receipt of a presidential pardon and sought to denounce the authorities' attempts to portray him as an 'innocent lamb'.” 49. The Supreme Court found that the investigating bodies and the court that tried the case at first instance had not sought to establish why Mr David Assanidze had waited for so long before implicating the applicant and had not done so at his own trial. Instead, they had merely affirmed: “Relations between Mr David Assanidze and Mr Tengiz Assanidze were healthy and it is inconceivable that Mr David Assanidze's belated allegations were made out of self-interest.” In the Supreme Court's view, however, the evidence in the case file suggested the contrary and “preclude[d] finding that Mr David Assanidze [had] no interest in making his allegations against the applicant or that they [were] founded and true”. It noted that the applicant had said that relations between him and Mr David Assanidze had become strained as a result of a dispute over the sharing of a family tomb where their fathers were buried. Mr David Assanidze had not denied the existence of that dispute at a hearing on 20 September 1999. The Supreme Court accordingly found that Mr David Assanidze's assertion that there was no ill-feeling between them in private did not reflect the truth. 50. It held that the applicant could not be found guilty on the sole basis of affirmations made by Mr David Assanidze six years after the events in issue. 51. The Supreme Court went on to note that, in addition to Mr David Assanidze, Mr Mosiava and Mr Jincharadze had also belatedly accused the applicant of participating in the activities of the criminal gang led by Mr David Assanidze. They too had only implicated the applicant several years after their trials. However, both men had said that they did not know the applicant and had only learnt of his involvement in the kidnapping through Mr David Assanidze himself. The Supreme Court ruled that in such circumstances Mr Mosiava's and Mr Jincharadze's statements could not constitute true and incontrovertible evidence. 52. It was also noted that their assertions that the applicant had provided the gang with money and two machine guns to kidnap V.G. were not corroborated. 53. After examining other evidence relied on by the court of first instance in the applicant's case and comparing it with Mr David Assanidze's depositions at his trial in 1996, the Supreme Court found: “Both [the applicant's] indictment and conviction rely solely on the depositions of persons who have a direct interest in the outcome of the proceedings against him and there is no other evidence of his guilt in the case file. The Court must therefore find that Mr Tengiz Assanidze has not committed an offence under the criminal law.” 54. In addition, the Supreme Court found serious procedural defects in the criminal proceedings against the applicant. Among other matters, it noted that on 6 March 2000 the investigating officer in charge of the case had rejected a request by the applicant for a confrontation with Mr David Assanidze regarding the kidnapping charge on the ground that it was unconnected with Mr David Assanidze's case and intended only to delay the proceedings unnecessarily. In the Supreme Court's view, the investigating bodies had failed to carry out a thorough investigation into the allegation that the applicant was implicated in the case. 55. The Supreme Court noted: “According to the impugned judgment, despite its connection with the case of Mr David Assanidze and his co-defendants, the present case concerned an independent criminal act. However, it is stated elsewhere in the same judgment that, in addition to other evidence against him, Mr Tengiz Assanidze's guilt was confirmed by the convictions of Mr David Assanidze and his co-defendants, which have become final.” The Supreme Court added that, in making that affirmation, the trial court “[had] not provide[d] any explanation as to how Mr David Assanidze's and his co-defendants' convictions confirmed Mr Tengiz Assanidze's guilt, since they [had been] convicted of the murder of an official, whereas Mr Tengiz Assanidze was accused of having organised his kidnapping”. Thus, in the Supreme Court's view, the trial court had not in fact decided whether the applicant's case should be treated as part of Mr David Assanidze's case or as an independent criminal act. The Supreme Court therefore found the applicant's conviction unlawful on other grounds, pertaining to the classification in law of the acts concerned. 56. Consequently, it held: “Mr Tengiz Assanidze's conviction on 2 October 2000 by the High Court of the Ajarian Autonomous Republic is quashed and the criminal proceedings against him discontinued, as his acts do not disclose any evidence of an offence. Mr Tengiz Assanidze shall be immediately released. This judgment is final and no appeal shall lie against it. Mr Assanidze shall be informed that he has the right to bring proceedings for compensation for the damage caused by the illegal and unjustified acts of the bodies involved in his criminal case.” 57. On 29 January 2001 the President of the Chamber of the Supreme Court forwarded the short version of the judgment acquitting the applicant to the Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice and the governor of the short-term remand prison of the Ajarian Ministry of Security for execution. He informed them that they would receive the reasoned version of the judgment subsequently. 58. On 5 February 2001 the President of the Chamber sent them the reasoned version of the judgment acquitting the applicant for execution. 59. That judgment was never executed and the applicant remains in custody in the short-term remand prison of the Ajarian Ministry of Security. 60. The applicant's unlawful detention was denounced on a number of occasions by the General Prosecutor's Office of Georgia, the Public Defender, the Georgian Ministry of Justice and the Legal Affairs Committee of the Georgian Parliament. They contacted the local authorities concerned in the Ajarian Autonomous Republic, seeking his immediate release. 61. In letters of 20 April and 22 May 2001, the General Public Prosecutor's Office of Georgia informed the applicant's wife as follows: “... [I]n response to your letter, I wish to inform you that the General Public Prosecutor's Office of Georgia is making every effort to secure compliance with the judgment of the Supreme Court of Georgia dated 29 January 2001 and to bring Mr Tengiz Assanidze's unlawful detention to an end.” 62. In a letter of 20 April 2001, the Vice-President of the Supreme Court of Georgia informed the applicant's wife that the operative provisions of the judgment of 29 January 2001 acquitting her husband had been sent by facsimile transmission that day for execution to the Georgian Minister of Justice, the director of the department responsible for the execution of sentences at the Ministry of Justice, the governor of the short-term remand prison of the Ajarian Ministry of Security and the governor of the long-term remand prison of the Ajarian Ministry of Security. He added that the reasoned judgment had been sent to them under cover of a letter of 5 February 2001. The Vice-President also said in his letter that on 9 February 2001 the Supreme Court of Georgia had received an acknowledgment of receipt slip signed by the governor of the short-term remand prison of the Ajarian Ministry of Security. 63. On 18 May 2001 the Public Defender wrote directly to Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic: “... Your authorities have not yet responded to my recommendation of 31 January 2001, even though Mr Tengiz Assanidze remains in the Ajarian Ministry of Security prison in flagrant breach of the law. ... Under the Public Defender Act, it is both an administrative and a criminal offence not to comply with the Public Defender's recommendations if the Public Defender is thereby obstructed in the course of his or her duties. ... I would therefore ask you to comply with my lawful demands as Public Defender and to hold both the governor of the short-term remand prison of the Ajarian Ministry of Security and the Minister himself accountable.” 64. On 10 May 2001 the President of the Legal Affairs Committee of the Georgian Parliament wrote to the General Public Prosecutor's Office of Georgia in the following terms: “... In a decision of 29 January 2001, the Supreme Court of Georgia acquitted Mr Tengiz Assanidze. However, he continues to serve his sentence in a cell at the short-term remand prison of the Ministry of Security of the Ajarian Autonomous Republic. ... This constitutes a serious violation of ... Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. ... I would therefore ask you to take the necessary measures to prosecute those responsible for failing to comply with the aforementioned judicial decision.” 65. In a letter of 7 June 2001, the director of the department responsible for the execution of sentences at the Georgian Ministry of Justice advised the applicant's wife that her husband was fully entitled to lodge an application against the Georgian State with the European Court of Human Rights. He stated in his letter: “We consider that the authorities of the Ajarian Autonomous Republic are acting in flagrant breach of the law and of human rights.” 66. The central authority's efforts to secure the applicant's release were unsuccessful. 67. According to the Government, on 3 September 2001 the Georgian courts martial prosecuting authority ordered certain officials from the Ajarian Ministry of Security suspected of failing to execute the judgment of 29 January 2001 acquitting the applicant to be charged with offences, in accordance with the Criminal Code. The police are trying to trace those concerned. 68. In a letter of 8 January 2002, the applicant's son informed the Court that his father's health had deteriorated. According to a medical certificate dated 4 December 2001, the applicant was suffering from gastritis, cardiac insufficiency and gastro-oesophageal reflux. As this was causing him severe dietary problems, he required appropriate medical attention as a matter of urgency. 69. On 28 May 2003 the Government produced to the Court a letter of 4 March 2003 from Mr E. Shevardnadze to Mr Aslan Abashidze, Head of the Ajarian Autonomous Republic, in which he stated: “You are a man with the State's interests at heart and I believe that I can count on your understanding in this situation. ... As you are aware, the Court [in Strasbourg] is very shortly due to decide whether to hold a hearing on the merits in the Assanidze case. The family is seeking three million euros in compensation. It is almost self-evident that Georgia will lose this case and that our State will be heavily condemned. There is a solution to this problem. Were Mr Assanidze to be released, his family would agree to withdraw the application. I am sure that you will play a part in taking the only decision that is just, that which is in Georgia's interests.” 70. On 3 April 2003 the President of the Ajarian High Court sent a reply to the Georgian President. He began by accusing the Head of State of harbouring persons of Ajarian extraction who had fled Batumi to take refuge in Tbilisi after attempting to organise terrorist attacks on the Head of the Ajarian Autonomous Republic. He then drew the President's attention to the parliamentary committee's report (see paragraphs 72 et seq. below), which highlighted numerous irregularities in the proceedings that had led to the applicant's pardon and acquittal. Relying on the parliamentary committee's findings and Article 2 of Protocol No. 7 to the European Convention on Human Rights, the President of the Ajarian High Court suggested to the President of Georgia that the applicant's trial should be reopened so that his case could be reconsidered in the light of the matters set out in the report. 71. He also said in his letter that the applicant's application to the European Court of Human Rights constituted an abuse of his right of application within the meaning of Article 35 § 3 of the Convention and that he had been aided in that task by the General Public Prosecutor's Office of Georgia, the Public Defender, the Supreme Court of Georgia and the National Security Council. He added that, as the parliamentary committee was a national authority within the meaning of Article 13 of the Convention, the applicant could not be regarded as having exhausted domestic remedies before 26 September 2002, the date of the committee's report. Drawing the Georgian President's attention to this point, he said that the Georgian Ministry of Justice had misled the European Court of Human Rights in its observations. 72. In a letter of 30 July 2002, the Government informed the Court that on 24 June 2002 the investigation committee of the Georgian Parliament responsible for supervising the lawfulness of civil servants' activities had been requested by the Bureau of the Parliament to launch an inquiry into the circumstances in which a presidential pardon had been granted in the Assanidze case. The committee, which was composed of members of parliament assisted by university lecturers and practising lawyers, produced its report on 26 September 2002. 73. Although its terms of reference were confined to issues relating to the presidential pardon, the committee also decided to examine the circumstances in which the applicant had been prosecuted and acquitted in the second set of proceedings. In the introduction to its report, the committee explained its reasons for so extending its terms of reference. In particular, it stated: “[T]he presidential pardon did not constitute an isolated act or separate procedure; in the present case, there was a close relation between all the proceedings and, in order to provide an overall view of the issues, it was considered appropriate to examine the chronology of the various sets of criminal proceedings brought against the applicant, the conduct of those proceedings and the merits of the decisions that were taken.” There were thus two separate parts to the report: one on the legality of the presidential pardon and the other on the decisions of the domestic courts in the criminal proceedings against the applicant. 74. On 12 October 1998 the National Security Council examined the question of measures that needed implementing in the prison system. On a proposal by the Georgian President, it was decided that he would exercise his right of pardon. The prison authorities were asked to study the cases of convicted prisoners in their custody and to submit to the President any requests for a pardon, together with the files and assessments of the prisoners concerned. Requests for a pardon had to be made in these terms: “Dear President, I repent of the crime I have committed and ask you to remit the remainder of my sentence.” Requests made in the prescribed terms were examined and the President exercised his right of pardon in a number of cases. 75. The parliamentary committee established that on 15 January 1999 the applicant had sent a letter to the Georgian President asking for the remainder of his sentence to be remitted. Since he had not made his request in the terms referred to above, the committee considered that his pardon did not satisfy the regulatory requirements in force and was therefore invalid. It also noted a number of other failings: “the [applicant's] file” had not been submitted to the Pardons Board appointed by the Georgian President, the applicant's name was not on the combined list of convicted persons seeking a pardon that was submitted to the President by the Ajarian authorities concerned and no appraisal of the applicant had been furnished by the Ajarian prison authorities in support of his request. 76. The committee established that, in breach of the rules in force, the Vice-President of the National Security Council, one of the Georgian President's aides, had prepared and submitted to the President a recommendation for the applicant to be pardoned solely on the strength of the applicant's letter of 15 January 1999. The committee said that that request should have been referred to a court under the rules of criminal procedure and not to the President of Georgia as a request for a pardon. 77. According to the committee, even assuming that the Georgian President had been entitled to grant the applicant a pardon without first complying with the statutory rule requiring requests for pardons to be examined by the competent board in the first instance, the decision had been taken shortly before the general election of October 1999 and was manifestly influenced by political considerations. 78. The committee considered that the reasons given by the Tbilisi Court of Appeal and the Supreme Court of Georgia in their judgments of 24 March and 11 July 2000 respectively did not comply with Articles 60 and 61 of the Administrative Code, which provide an exhaustive list of the grounds on which administrative acts may be declared null and void. Indeed, their effect was to render Article 42 of the Constitution, which guaranteed everyone the right to apply to a court to protect his or her rights, meaningless. 79. It noted that under domestic law a presidential pardon was an administrative act for which judicial review lay in the administrative courts. As the applicant's presidential pardon had been challenged in the courts, it had not become enforceable until 11 July 2000, the date of the Supreme Court's decision. 80. The committee criticised the reason advanced by the Tbilisi Court of Appeal on 24 March 2000 for dismissing the Batumi Tobacco Manufacturing Company's application for judicial review. In particular, it considered that the Tbilisi Court of Appeal had ruled on matters beyond the scope of the application, as the company had not sought an order reopening the criminal proceedings against the applicant. The Court of Appeal should not, therefore, have ruled on the lawfulness of the applicant's continued detention. Since those two issues were within the jurisdiction of the criminal courts, not the administrative courts, the committee considered that the Tbilisi Court of Appeal should have restricted its review to the legality of the contested presidential act. 81. The committee further noted that the presidential pardon concerned only the prison sentence and not the applicant's duty to pay the Batumi Tobacco Manufacturing Company compensation for the pecuniary damage caused. The Tbilisi Court of Appeal should, therefore, also have examined the effects of the presidential pardon on that ancillary punishment. 82. According to the committee, the second set of proceedings in which the applicant was acquitted was, like the first, tainted by various procedural defects at both the investigation and trial stages. In addition, the trial courts 's view, those circumstances should have been “treated as evidence by the courts and examined with a view to establishing the truth”. 83. In order to illustrate this point, the committee conducted a detailed examination of various items of evidence and statements obtained in the criminal proceedings against Mr David Assanidze, Mr Tamaz Assanidze, Mr Nodar Shotadze and fourteen co-defendants, who had been convicted, inter alia, of the murder of the Ministry of the Interior official concerned (see paragraphs 33 et seq. above). 84. The committee thus established that at the trial in the Supreme Court of Georgia in 1996 Mr David Assanidze and Mr Shotadze had “sought to identify” the applicant as one of the organisers of the attack on Mr Aslan Abashidze, the Head of the Ajarian Autonomous Republic. In its view, instead of “ignoring Mr David Assanidze's and Mr Nodar Shotadze's attempts to implicate the applicant in serious offences”, the judges of the Supreme Court of Georgia who heard the applicant's appeal on points of law should have brought “new criminal proceedings against [the applicant] in accordance with Article 257 of the Code of Criminal Procedure in force at the material time”, that is to say, in 1993. 85. The committee considered that, in order to clarify certain details vital to the truth, the Supreme Court of Georgia should have heard evidence not only from the witnesses who were called, but also from Mr David Assanidze, who should have been questioned about his informal meeting with the judge who heard his case in 1996, and the judge himself. It should have sought to establish by whom and in what circumstances that meeting – at which Mr David Assanidze had accused the applicant off the record of taking part in his group's activities – had been recorded, and why the judge concerned had not mentioned it in his judgment of 20 September 1996. 86. The committee criticised the Supreme Court for not hearing evidence from two other people who had also been implicated by Mr David Assanidze, and the applicant's son. It considered that the Supreme Court judges who heard the applicant's case should have ordered expert evidence to be obtained to establish when, by whom and how the weapons, the military munitions and technical equipment seized in Mr David Assanidze's case in 1996 had been purchased. Nor had they sought to ascertain why the prosecutor in the applicant's case had declined to make an order joining his case with Mr David Assanidze's. 87. The committee found, lastly, that the Supreme Court of Georgia had “failed to remit the applicant's case to the investigating bodies for further investigation” and should not have taken “a decision to acquit that was illegal, unfair and based on insufficiently investigated facts”. 88. In the committee's view, “the new circumstances revealed in its examination of the case for the purposes of the parliamentary report warranted investigation and analysis”. That proved that “the statutory remedies designed to elicit the truth [had] not yet been exhausted”. Referring to Articles 593 § 2 (g) and 539 of the Code of Criminal Procedure, it suggested that the applicant's trial should be reopened. 89. On 25 March 2003 the General Prosecutor's Office of Georgia refused a request by the civil party for the applicant's case to be reopened and re-examined in the light of the parliamentary committee's findings. It found, inter alia, that the findings did not constitute new circumstances that could warrant a reopening of the applicant's case. In the absence of new circumstances, a judgment of the Supreme Court, which was final and could not be appealed against, could not be challenged under Georgian law. 90. On 8 November 2002 the President of the Supreme Court of Georgia submitted to the Georgian President his observations on the findings in the parliamentary committee's report of 26 September 2002. 91. He described the report as “tendentious”, “biased”, “unconstitutional” and “erroneous”. He noted, firstly, that the parliamentary committee had acted far outside the scope of its terms of reference and, instead of examining the circumstances in which the applicant had received a presidential pardon, had decided to review a judgment of the highest court of the land. In so doing, the committee had, in his view, contravened the fundamental constitutional rule requiring the separation of powers. The report undermined the notions of democracy and the rule of law. The President of the Supreme Court said that under the Constitution no one had the right to demand an explanation from a judge about a case. Criticism by a parliamentary committee of a final judicial decision against which no appeal lay served only to hinder execution of the decision and to discredit the judiciary. 92. As regards the committee's findings on the subject of the presidential pardon, the President of the Supreme Court of Georgia noted, firstly, that the right conferred by the Constitution on the Georgian President to grant a pardon was absolute and unconditional and could be exercised independently of the regulations laying down the principles on which requests for a pardon were to be examined by the Presidential Office. He further noted that in many countries there was no right of appeal against a pardon, which constituted the ultimate act of humanity. The fact that the applicant's request for a pardon had not been examined beforehand by the Presidential Pardons Board could not render the pardon illegal, especially as, in the applicant's case, obtaining his file and details from the Ajarian prison authorities had been no easy task. The President of the Supreme Court of Georgia also pointed out that, in the instant case, the grant of a pardon also represented an attempt at restoring justice to a convicted prisoner who had been held for years in an unlawful place of detention. 93. He added that the section of the report on the Ajarian High Court's judgment of 11 November 1999 declaring the presidential pardon null and void for procedural defects was entirely erroneous. He pointed out that on 11 November 1999 the New Code of Administrative Procedure had yet to come into force and that, in accordance with Article 360 of the Code of Civil Procedure – the statutory provision applicable to contested administrative cases at the time – the Tbilisi Court of Appeal had exclusive territorial jurisdiction to hear applications for judicial review of presidential acts. The President of the Supreme Court of Georgia said that it was regrettable that the committee had omitted to mention that the Ajarian High Court had on 11 November 1999, in breach of the law then in force, assumed jurisdiction to hear an application for judicial review of a pardon granted by the President of Georgia. 94. In his observations, the President of the Supreme Court of Georgia noted that, in describing the judgment acquitting the applicant as biased, incomplete and illegal, the parliamentary committee had at no point mentioned the question of the applicant's interests or his unlawful detention. The President of the Supreme Court considered that the committee was thereby seeking to justify the applicant's continued detention despite his acquittal. 95. The committee had chosen to review the judgment acquitting the applicant on its own initiative, but had not put forward a single plausible argument that pointed to the applicant's guilt. Nor had it shown that the Supreme Court could have returned a guilty verdict on the evidence before it. On the contrary, the committee saw no difficulty in an acquitted defendant being held in custody until such time as the issue of his guilt or innocence had been re-examined in the light of new circumstances. That, said the President of the Supreme Court in conclusion, was “totally unlawful”. 96. The President of the Supreme Court considered it unfortunate that the committee had failed to mention that the applicant had been held since his conviction in the Ajarian Ministry of Security prison, in breach of the law. He noted that Mr David Assanidze, whose televised remarks ought, in the committee's eyes, to have prompted the Supreme Court of Georgia to convict the applicant, was serving his twenty-year prison sentence in the same prison. 97. The passage in the report in which the committee found that the applicant would not have exhausted the statutory remedies until such time as his trial was reopened in the light of the new circumstances revealed by the parliamentary committee was described by the President of the Supreme Court as a “masterpiece of legal invention”. He recommended that the report be translated into various foreign languages so that international human rights organisations would also have access to it. 98. The President of the Supreme Court regretted that the parliamentary committee had yielded to political pressure from certain groups, instead of helping justice to prevail, in accordance with the wish expressed at the end of its report. 99. In conclusion, the President of the Supreme Court of Georgia said that he would leave the issue of the applicant's continued detention following his acquittal to the discretion of the Court in Strasbourg. 100. In the 1080s Ajaria, part of the Bagratid Kingdom known as the “Kingdom of the Georgians”, was laid to waste by Seljuk invaders from the South. In the 1570s it was invaded by the Ottoman Empire. The sanjaks (districts) of Upper Ajaria and Lower Ajaria were formed there and the region was annexed to the vilayet (province) of Childir (Akhaltsikhe). Subsequently, at various times, the Ottomans and the adjoining Georgian principalities fought over the region. Under the terms of Article IV of the Treaty of Adrianople signed on 2 September 1829 between tsarist Russia and the Ottoman Empire, Ajaria was assigned to the latter. 101. Article LVIII of the Treaty of Berlin signed on 13 July 1878 between the Russian and Ottoman Empires provided: “The Sublime Porte cedes to the Russian Empire in Asia the territories of Ardahan, Kars, and Batum together with the port of the latter.” 102. Articles XI and XV of the Armistice Treaty signed on 30 October 1918 at Mudros between Great Britain and her allies, and Turkey provided: “XI. ... Part of Trans-Caucasia has already been ordered to be evacuated by Turkish troops, the remainder to be evacuated if required by the Allies after they have studied the situation there.” “XV. ... This clause to include Allied occupation of Batoum ...” 103. The Armistice Treaty signed at Brest-Litovsk on 3 March 1918 between Germany, Austria-Hungary, Bulgaria and Turkey, and Russia provided: “IV. ... The districts of Erdehan, Kars, and Batum will likewise and without delay be cleared of the Russian troops. Russia will not interfere in the reorganisation of the national and international relations of these districts, but leave it to the population of these districts to carry out this reorganisation in agreement with the neighbouring States, especially with Turkey.” 104. Article 107 of the Constitution of the Democratic Republic of Georgia, which was adopted on 21 February 1921, provided: “The inseparable parts of the Republic of Georgia, namely the district of Abkhazia-Sokhoumi, Muslim Georgia (district of Batumi) and the district of Zakatala, shall have the right of self-government for local affairs.” 105. Article 2 of the Moscow Accords dated 16 March 1921 and signed by Russia and Turkey provided: “Turkey agrees to cede to Georgia suzerainty of the port of Batumi, together with the territory to the north of the border referred to in Article 1 of this Treaty that forms part of the district of Batumi ... on condition that: (a) the populations of these territories enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes. ...” 106. On 16 July 1921 Ajaria was granted the status of an autonomous Soviet socialist republic forming part of the Soviet Socialist Republic (SSR) of Georgia. 107. Article 6 of the Kars Treaty signed on 13 October 1921 between the government of Turkey and the governments of the Soviet Socialist Republics of Azerbaijan, Armenia and Georgia provided: “Turkey agrees to cede to Georgia suzerainty of the town and port of Batumi, together with the territory to the north of the border referred to in Article 4 of this Treaty that was formerly part of the district of Batumi ... on condition that: (i) The populations of the places specified in this Article enjoy a large degree of local administrative autonomy guaranteeing each community its cultural and religious rights and are permitted to introduce in the aforementioned places an agrarian regime in accordance with their wishes. (ii) Turkey is guaranteed free transit of goods and all materials to or from Turkey through the port of Batumi, free of customs, without hindrance, free of all duties and imposts and with the right for Turkey to use the port of Batumi without special costs. In order to implement this provision, a Committee of Representatives of Interested Parties shall be set up immediately after the signature of this Treaty.” 108. On 24 August 1995, four years after the dissolution of the USSR, the Georgian Parliament adopted a new Constitution, Article 2 § 3 of which provides: “The internal territorial arrangement of Georgia shall be determined by constitutional law on the basis of the principle of division of power after the full restoration of the jurisdiction of Georgia over all its territory.” 109. On 20 April 2000 the Constitution was amended by a constitutional law which replaced the term “Ajaria” with “Ajarian Autonomous Republic” and added a third paragraph to Article 3 of the Constitution, which reads: “The status of the Ajarian Autonomous Republic shall be determined by a constitutional law on the status of the Ajarian Autonomous Republic.” On 10 October 2002 the Georgian Parliament enacted a constitutional law containing similar amendments and additions with respect to Abkhazia. It has not passed any similar legislation with respect to the Tskhinvali region (formerly, the “Autonomous District of South Ossetia”). 110. The proposed constitutional law determining the status of the Ajarian Autonomous Republic (see Article 3 of the Constitution) has not yet been passed. 111. Article 73 § 1, sub-paragraph 14, of the Constitution reads as follows: “The President of Georgia: ... has the right to grant convicted persons a pardon; ...” 112. The relevant provisions of Article 1 of Decree no. 319 of 13 May 1998 on the exercise of the right of pardon provide: “The President of Georgia may grant convicted persons a pardon in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution. In order to exercise this right, the President shall examine beforehand requests by convicted persons for a pardon that have been submitted by the Georgian courts, ..., petitions for a pardon lodged by members of parliament, private individuals, groups of private individuals, organisations or public bodies, and requests for convicted persons to be released from an obligation to pay compensation for pecuniary damage under an order of the Georgian courts made in favour of a public undertaking, institution or organisation. A pardon may be granted at the request of a convicted person if he or she admits his or her guilt and repents.” “Requests and petitions for a pardon shall be examined by the Pardons Board before being submitted to the President. The board ... shall be set up to carry out a prior examination of requests and petitions made to the President for a pardon and to make recommendations in that regard. The board's recommendations shall be examined by the President, who shall take the final decision.” “If granted a pardon, the convicted person shall be entitled to: (a) remission of all the main or any ancillary sentence, with or without deletion of his or her name from the criminal records; (b) remission of part of the main or any ancillary sentence, in other words, to a reduction in the length of his or her sentence; (c) have the remainder of his or her sentence commuted to a lesser sentence; (d) remission of all or part of an order of the trial court to pay compensation for pecuniary damage.” “A pardon may not be granted to convicted persons: (a) who have been tried for a serious crime and sentenced to a term of imprisonment of more than five years and have not yet served at least half of their sentence; (b) who have been sentenced for the first time to a term of imprisonment of less than five years and have not yet served at least a third of their sentence; ... (f) who are of bad character according to the institution in which they are being held and have a reputation for unacceptable violations of the applicable prison regulations. Requests by convicted persons falling within the provisions of this Article shall not be examined by the Pardons Board unless special circumstances so warrant.” “Prior to its examination by the Pardons Board the request for a pardon shall be sent with the file documents produced by the penal institution concerned for opinion to the Supreme Court of Georgia, the General Prosecutor's Office and the Ministry of the Interior. Prior to being examined by the Pardons Board the request for remission of an obligation to pay compensation for pecuniary damage shall be sent with the file documents to the Supreme Court of Georgia, the territorial administrative authorities and self-governing authorities and any legal entity that is a civil party to the proceedings. The aforementioned authorities' opinions and legal entity's observations shall be submitted to the Pardons Board within two weeks.” 113. By Presidential Decree no. 426 of 4 October 2002, an Article 10.1 was added to the aforementioned Decree no. 319. It provides: “The President of Georgia shall have the right to grant a pardon to a convicted person in accordance with Article 73 § 1, sub-paragraph 14, of the Constitution even if the additional conditions set out in this decree are not satisfied.” 114. Article 360 of Chapter XIX of the Code of Civil Procedure, which contained the rules of procedure in administrative-law disputes before the Code of Administrative Procedure came into force on 1 January 2000 provided: “The application must be lodged with the court of appeal with territorial jurisdiction for the area in which the body from which the contested act emanated is situated.” 115. The relevant provisions of the Code of Administrative Procedure provide: “The courts of appeal shall hear as courts of first instance applications concerning: (a) the legality of administrative acts of the President of Georgia; ...” “An application for judicial review of an administrative act shall stay execution of that act.” 116. The relevant provisions of the Constitution are as follows: “Parliament shall set up committees for the duration of its term to conduct preliminary studies of legislative issues, to implement decisions, and to supervise the activities of the Government and the bodies accountable to Parliament for their work. In the circumstances set out in the Constitution and the Rules of Parliament, or at the request of at least a quarter of the members of parliament, committees of inquiry and other temporary committees shall be set up. The representation of the parliamentary majority on such committees shall not exceed one-half of the total number of the committee members.” “Everyone shall be entitled to seek judicial protection of his or her rights and freedoms.” 117. Article 60 of the Administrative Code, as amended on 2 March 2001, reads as follows: “1. An administrative decision shall be declared null and void (a) if it emanates from an unauthorised body or person; (b) if its execution could entail the commission of an offence; (c) if its execution is impossible for objective factual reasons; (d) if it is contrary to the law or if there has been a material breach of the statutory rules governing its preparation or adoption. 2. A breach of the law that results in a different decision from that which would have been taken had the law been complied with shall constitute a material breach of the statutory rules on the preparation and adoption of administrative decisions. 3. An administrative decision shall be declared null and void by either the body from which it originated or a higher administrative body on an internal appeal or an administrative court on an application for judicial review.” 118. Article 257 of the former Code of Criminal Procedure, which was in force until 15 May 1999, provided: “If, during the course of the judicial examination of a case, circumstances come to light that indicate that the offence was committed by a person who has not been charged, the court shall make an order for criminal proceedings to be brought against that person and forward the decision to the inquiry and investigative bodies for execution.” 119. The relevant provisions of the New Code of Criminal Procedure, which came into force on 15 May 1999, are as follows: “A judgment or other judicial decision shall be ill-founded if: (a) a guilty verdict is returned that is not based on the evidence in the case; (b) there are unresolved conflicts of evidence that call into question the validity of the court's finding; (c) the court failed to take material evidence into account when reaching its decision; (d) the court reached its findings on the basis of evidence that was inadmissible or irrelevant; (e) the court rejected certain evidence in favour of other conflicting evidence without explaining its reasons for so doing; (f) the court did not afford the convicted person the benefit of the doubt.” “1. The judgment ... may be quashed in whole or in part if new factual or legal circumstances come to light. 2. New factual circumstances shall entail a review of any court decision that is illegal or does not contain reasons. There shall be a review in particular when: (a) it is judicially established that the evidence of a witness or expert witness or of any other kind that constituted the basis for the impugned court decision was false; (b) it is judicially established that the trial judge, the public prosecutor, the investigating officers or prosecuting authority contravened the law when dealing with the case;(c) fresh evidence has come to light ... that may prove the innocence of a convicted person or the guilt of an acquitted person ...;(d) fresh evidence has come to light that shows that ... the evidence on which the decision was based was inadmissible.” 120. Article 9 of the Institutional Law on the Supreme Court of Georgia of 12 May 1999 sets out the jurisdiction of the various chambers of the Supreme Court, including the Criminal Affairs Chamber: “The chambers ... of the Supreme Court of Georgia are courts of cassation which ... hear appeals on points of law against the decisions of the regional courts of appeal, the High Courts of the Autonomous Republics of Abkhazia and Ajaria and the Criminal Affairs Panel of the Supreme Court.” 121. The relevant provisions of the New Code of Criminal Procedure are as follows: “Criminal proceedings may not be brought and pending criminal proceedings shall be discontinued if the act or omission concerned is not an offence under the Criminal Code.” “Judgments must be prepared for execution at the latest within seven days after the date on which they become enforceable.” “1. It is for the court which delivered the decision to send the judgment or order for execution. The order relating to execution of the judgment and a copy of the judgment shall be sent by the judge or the president of the court to the body responsible for its enforcement. ... 2. The body responsible for its enforcement shall immediately inform the court which delivered the judgment of its execution. ...” 122. Section 6(1) and (3) of the Detention Act of 22 July 1999 provides: “Sentences of imprisonment judicially imposed in a judgment shall be served in prison institutions supervised by the Ministry of Justice of Georgia. In the territory of Georgia, these prison institutions shall be as follows: (a) ordinary-regime prisons; (b) strict-regime prisons; (c) isolation prisons.” | 0 |
train | 001-104794 | ENG | TUR | CHAMBER | 2,011 | CASE OF AKGÖL AND GOL v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque | 5. The applicants were born in 1980 and 1979 and live in Hatay and Urfa respectively. 6. On 3 May 1998 Kenan Mak, a student at the Abant İzzet Baysal University in Bolu (“the university”), was killed in an attack. Thereafter, on 3 May of every subsequent year students at the university have held a meeting to mark the anniversary of the killing. 16. On 9 March 2006 the Court of Cassation upheld the judgment of the first-instance court in respect of the applicants. 17. The applicants asked the prosecutor at the Court of Cassation to apply to that court for rectification of the decision of 9 March 2006. In their letter to the prosecutor the applicants also pointed out that none of the injured gendarmes had accused them of inflicting their injuries. 18. The prosecutor accepted the applicants’ request and on 31 July 2006 applied to the Court of Cassation’s president for rectification of the decision. In his application the prosecutor noted that none of the injured gendarmes had named the applicants as the persons responsible for their injuries. The prosecutor referred to Article 11 of the Convention and argued that university grounds could not be regarded as public places within the meaning of Law no. 2911 and that the applicants’ and their fellow students’ actions could not therefore be regarded to be in breach of that Law. The students’ failure to hold their meeting in a place other than the one for which permission had been granted could only be regarded as a disciplinary issue and dealt with by the university administration and not by courts of law. 19. The prosecutor also noted that the disturbance in the demonstration had been caused by the gendarmes’ intervention. Moreover, the reports drawn up by the gendarmes who had taken part in the operation (see paragraph 8 above) had not made any mention of physical resistance by the students. The trial court had not examined the video footage and had not asked the injured gendarmes to identify the persons responsible for their injuries. As such, the trial court’s decision to convict the applicants under section 32 § 3 of the Law no. 2911 had not been in accordance with applicable law and procedure. 20. In its decision of 10 October 2006 the Grand Chamber of the Court of Cassation’s Criminal Division observed that the transcripts of one of the hearings held by the trial court did not bear the signature of the court’s clerk, and quashed the decision convicting the applicants. It deemed it unnecessary to examine the points raised by the prosecutor. 21. A retrial began before the trial court, which rendered its decision on 24 October 2007. Having examined the video footage, the trial court observed that eleven and a half minutes had elapsed between the beginning of the gathering and its dispersal by the gendarmes. It also noted that neither the applicants nor any of the other participants in the demonstration had used force against the gendarmes. Nevertheless, the trial court considered that the applicants and the other students had taken part in an unauthorised meeting and had thus acted in breach of section 32 §1 of Law no. 2911. According to the trial court, the gathering had been unlawful because it had not been organised in the canteen but rather had taken place outside. The applicants were sentenced to one year and three months’ imprisonment, but the sentence was suspended. 22. The applicants appealed. The appeal proceedings are still pending before the Court of Cassation. 23. In the meantime, on account of his participation in the demonstration, on 9 December 2002 the university imposed a disciplinary sanction on the first applicant Ali Akgöl, and expelled him from the university for two semesters. As the university’s decision was not quashed by the administrative courts until 2004, the decision was enforced and the applicant’s graduation from the university was thus delayed for one year. 24. Also in the meantime, the first applicant completed his studies and started working as a teacher. Nevertheless, on 22 August 2006 the Ministry of Education dismissed him from his post on account of his attendance at the demonstration. He was reinstated in his post in July 2007, following the quashing of his conviction by the Court of Cassation (see paragraph 20 above). 25. At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows: “In order for a meeting to take place, the governor’s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...” 26. Section 22 of the same Act prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares must comply with security instructions and not disrupt individuals’ movement or public transport. Finally, section 24 provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators have been warned. 27. Section 32 of the Act, in so far as relevant, provided as follows: “1. Unarmed persons taking part in an unlawful meeting or procession who, instead of dispersing of their own motion after having been warned or ordered to do so and who thus have to be forcefully dispersed by government forces, are liable to be sentenced to a term of imprisonment of between one and three years. ... 2. Unless their action breaches another criminal law provision which stipulates a more severe punishment, persons who resort to violence or making threats while being dispersed, or who resist the attempts to disperse them, are liable to be sentenced to a term of imprisonment of between three and five years. ...” | 1 |
train | 001-121143 | ENG | GBR | ADMISSIBILITY | 2,013 | POA AND OTHERS v. THE UNITED KINGDOM | 3 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney | 1. The first applicant is the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers (“the POA”), a listed and certified trade union in the United Kingdom. The other applicants are British nationals: Ms Jacqueline Bates, born in 1960, and Mr Adrian Watts, born in 1965. They are both resident in the United Kingdom and are employed as prison officers, Ms Bates in a State-run prison and Mr Watts in a prison that was transferred to private-sector management in 2011. They are members of the POA. Ms Bates indicated she is the chair of the union branch in her establishment, and Mr Watts indicated that he is secretary to the union branch in his place of employment. 2. The applicants were represented by Ms V. Phillips of Thompsons Solicitors, a law firm in London, and advised by Mr J. Hendy QC and Professor S. Fredman QC, lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agents, Ms A. Sornarajah and Ms R. Tomlinson of the Foreign and Commonwealth Office. 3. A joint submission was received from the European Trades Union Confederation (ETUC) and the Trades Union Congress (TUC), which had both been given leave by the President to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 1993 it was established that prison officers were forbidden by law to take industrial action. The issue arose in the context of injunction proceedings taken against the POA to prevent it organising industrial action (Home Office v. Evans, 19 May 1993, unreported). The High Court (May J) ruled that since prison officers were vested with the “powers or privileges of a constable” (Prisons Act, 1952, section 8), they were for this reason expressly excluded from the terms “employees” and “workers” within the meaning of the statutory provisions governing lawful industrial action (Trade Union and Labour Relations (Consolidation) Act, 1992, sections 219 and 280). The following year, legislation was introduced to restore to prison officers the status of workers for the purpose of employment law, while maintaining the ban on industrial action (Criminal Justice and Public Order Act, 1994, sections 126 and 127). The parties expressed contrasting views on these developments. For the applicants, the Evans ruling was “an unintended legal anomaly”, and section 127 of the 1994 Act “a sudden change of long-standing policy by fixing in legislation what was a surprising and unheralded court decision”. The Government rejected that view, stating that it was the intention of Parliament to give a clear statutory basis to the ban on industrial action by prison officers, rendered necessary by the willingness of the POA to take such action. 6. Industrial relations in the prison service are conducted in various formats and in accordance with a variety of procedures. As in other parts of the public sector in the United Kingdom, there are in the prison service what are known as "Whitley Councils", at both local and national level. These are joint bodies, made up of representatives of management and staff, whose purpose is to facilitate co-operation. Acting principally as forums for consultation and dialogue, they do not encompass binding dispute settlement mechanisms. For this reason, the applicants considered that the dialogue that takes place within the Whitley Councils is not true collective bargaining. They held the same view in relation to the establishment-level disputes procedure (Prison Service Order No. 8525), which details the procedure to be followed in such situations but does not lead to a resolution binding on management. 7. There have been successive industrial relations-agreements within the prison sector. In 2001, the POA and the prison service entered into the Industrial Relations Procedure Agreement (“IRPA”). The IRPA, which did not apply to the issue of remuneration, included a legally binding prohibition on strike action. The applicants described the IRPA as “asymmetric” in this regard, as there was no equivalent binding obligation on the part of the State. There were disagreements between the two sides over the precise scope of application of the IRPA. On 27 January 2004 the POA served notice of their intention to withdraw from the IRPA, which terminated one year later. 8. A new agreement, the Joint Industrial Relations Procedure Agreement (“JIRPA”), was reached in November 2004. It too contained an undertaking by the POA not to take industrial action. The JIRPA, which did not apply to remuneration, took effect in January 2005. At the same time, the statutory prohibition on industrial action was disapplied. Formal assurances were given to Parliament that it would be reactivated in the event of the JIRPA being terminated. According to the applicants, there was again repeated disagreement between the two sides as to the scope of the JIRPA, leading the POA to give notice of termination in May 2007, effective one year later. The Government stated that on the whole the JIRPA operated successfully, as shown by the number of new policies introduced within the prison service and the number of changed policies, which were adopted without dispute. They added that, notwithstanding the undertaking given, the POA threatened industrial action in 2004, 2005 and 2006. A special delegates’ conference of the POA voted in February 2008 not to accept any further agreement that included a no-strike undertaking. With the termination of the JIRPA on 8 May 2008, the statutory prohibition on industrial action was brought back into force. A new provision was added to the 1994 Act empowering the Secretary of State to suspend and revive the prohibition (section 127A). 9. A new agreement within the prison service took effect in February 2011, the National Disputes Resolution Procedure for Changes for Specified Terms and Conditions (“the NDRP”) and is currently in force. It provides for binding arbitration, but, like previous agreements, does not apply to pay. The situation in Scotland is different. There the Voluntary Industrial Relations Agreement for the Scottish prison service provides that, in the absence of agreement, pay disputes are to be resolved by binding independent arbitration. 10. The issue of remuneration of prison officers employed in State-run prisons in England, Wales and Northern Ireland comes within the remit of the Prison Services Pay Review Body (“PSPRB”), created in April 2001. For private-sector prison establishments, remuneration and other employment matters are agreed contractually. 11. Composed of independent members, the function of the PSPRB is to make recommendations each year on prison-officer pay to the Secretary of State for Justice. At the outset of each exercise, the Secretary of State may give directions, in the form of a “remit letter”, to the PSPRB setting out the considerations to which they are to have regard (Regulation 4, Prison Service (Pay Review Body) Regulations 2001). This power has been used repeatedly. In addition, the Chair of the PSPRB meets with the Chancellor of the Exchequer or the Chief Secretary of the Treasury prior to the start of each review exercise to discuss the general economic context. Trade union involvement in the process takes the form of submitting evidence and making representations to the PSPRB (Regulation 5). The PSPRB’s recommendations are not binding on the Secretary of State, who may accept them, or “make such other determination ... as he thinks fit” (Regulation 8, Prison Service (Pay Review Body) Regulations 2001). 12. On 20 August 2004 the POA brought a complaint before the Committee on Freedom of Association of the International Labour Organisation alleging that the statutory prohibition of industrial action by prison officers constituted a breach of the right to strike under ILO Convention No. 87. The Committee’s conclusions on the case are set out below (at paragraphs 19 and following). 13. The applicants stated that industrial action, including strike action, occurred from time to time in the prison service before 1993. They provided examples of strikes at local level and, at national level, of other forms of industrial action in the 1970s and 1980s. On 29 August 2009 the POA organised, for the first time, a national strike by prison officers, in protest against the Government’s decision to stage that year’s pay rise. According to the Government, notice of the strike was given by telephone less than an hour before the strike commenced at 7 a.m. Government lawyers obtained an injunction against the POA by 1 p.m. that day. Prison officers returned to work that evening, about 12 hours after the strike began. The strike disrupted the normal operation of the prison service, and in one institute for young offenders the absence of prison officers led to serious disorder that lasted for three days and caused extensive material damage. The applicants countered that the day had passed without incident in over 130 other prison establishments affected by the strike. As for the establishment referred to by the Government, an official report into the incident had noted that the rationale for the violence was complex, the strike by prison officers being just one contributing factor, amplified by negative reporting on television. The report had considered that the indiscipline was spontaneous, and so could not have been foreseen or avoided. 14. The Government maintained that the POA was intent on withholding its members’ services as part of a general public service strike on 30 November 2011, and that it had sought to rely on health and safety concerns which the Government described as spurious. The situation was ultimately resolved the day before under threat of legal action. The applicants rejected the Government’s account, asserting the validity of their concerns at the time, given that other categories of prison staff would be on strike, as well as fire services and ambulance crew. On the day of the strike, POA members had merely held lunchtime meetings, with management permission, so as to demonstrate their support for the aims of the strike. Another public-sector strike took place on 10 May 2012. According to the Government, the POA indicated beforehand that its members would just attend lunchtime meetings. Despite this, POA members stayed away from work for several hours in over sixty establishments, necessitating the intervention of prison service lawyers. The applicants denied that the actions of POA members on that day amounted to industrial action. They noted that while here had been correspondence from prison-service lawyers, no proceedings had been issued and that the POA leadership had ordered its members to resume work at lunchtime. The action taken that day had not led to any danger to persons or property. 15. The Prisons Act 1952 provides at section 8: “Every prison officer while acting as such shall have all the powers, authority, protection and privileges of a constable.” 16. The relevant provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 read as follows: “219.— Protection from certain tort liabilities. (1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only— (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance. (2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort. ... 244.— Meaning of ‘trade dispute’ in Part V. (1) In this Part a ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following— ... 280.— Police service. (1) In this Act ‘employee’ or ‘worker’ does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service. (2) ‘Police service’ means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.” 17. The Criminal Justice and Public Order Act 1994 provides as relevant: “127.— Inducements to withhold services or to indiscipline. (1) A person contravenes this subsection if he induces a prison officer— (a) to take (or continue to take) any industrial action; (b) to commit a breach of discipline. (1A) In subsection (1) ‘industrial action’ means— (a) the withholding of services as a prison officer; or (b) any action that would be likely to put at risk the safety of any person (whether a prisoner, a person working at or visiting a prison, a person working with prisoners or a member of the public). (2) The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, to the Department of Justice . (3) Without prejudice to the right of the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, of the Department of Justice, by virtue of the preceding provisions of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any breach of the duty mentioned in subsection (2) above which causes the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, the Department of Justice to sustain loss or damage shall be actionable, at his suit or instance, against the person in breach. (4) In this section ‘prison officer’ means any individual who— (a) holds any post, otherwise than as a chaplain or assistant chaplain or as a medical officer, to which he has been appointed ... under section 2(2) of the Prison Act (Northern Ireland) 1953 (appointment of prison staff), or (aa) holds any post, other than as a chaplain or assistant chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952 (appointment of prison staff), (c) is a custody officer within the meaning of Part I of this Act or a prisoner custody officer, within the meaning of Part IV of the Criminal Justice Act 1991 or Chapter II or III of this Part. (5) The reference in subsection (1) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code. (6) In subsection (5) above ‘the prison rules’ means any rules for the time being in force under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989 or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules). ...” 18. The Prison Service (Pay Review Body) Regulations 2001, which entered into force on 17 April 2001, provide as relevant: “Establishment of the Pay Review Body 2. The Prime Minister shall appoint a Pay Review Body to examine and report on such matters relating to the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, as may from time to time be referred to them by the Secretary of State. ... Directions 4. With respect to matters referred to the Pay Review Board by him, the Secretary of State may give directions to the Pay Review Body as to the considerations to which they are to have regard and as to the time within which they are to report; and any such directions may be varied or revoked by further directions under these Regulations. Notice 5. Where a matter has been referred to the Pay Review Body, they shall give notice of the matter and of any relevant direction to such organisations appearing to them to be representative of persons working in the prison service in England and Wales, and Northern Ireland, and shall afford every such organisation a reasonable opportunity of submitting evidence and representations on the issues arising, Report 6. Where a matter has been referred to the Pay Review Body, their report shall contain their recommendations on that matter and such other advice relating to that matter as they think fit. ... Determination of rates of pay and allowances 8. Where, following the reference of any matter to them the Pay Review Body have made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit.” 19. As noted above (see paragraph 12), the POA made a complaint before the ILO Committee on Freedom of Association in 2004, examined as case no. 2383. While there is no provision in the Conventions adopted by the International Labour Organisation expressly recognising a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Convention and Recommendations have progressively developed a number of principles relating to the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (see “Giving globalisation a human face”, International Labour Office, 2012, at paragraph 117). This Convention was ratified by the United Kingdom on 27 June 1949. The POA alleged that section 127 of the 1994 Act constituted a breach of the right to strike, as prison officers did not exercise authority in the name of the State and did not provide essential services in the strict sense of the term. It further complained that no adequate compensatory measures had been put in place whereby prison officers or their union could protect their interests in the absence of a right to strike. 20. In its first consideration of the case (336th Report, March 2005), the Committee on Freedom of Association held: “763. The Committee has considered that officials working in the administration of justice are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions or even prohibitions [see Digest, op. cit., para. 537]. The Committee considers that to the extent that prison officers and prisoner custody officers exercise authority in the name of the State, their right to strike can be restricted or even prohibited. ... 766. The Committee recalls that to determine situations in which a strike could be prohibited, the criteria which have to be established are the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 540]. The Committee considers that the prison service is clearly one where the interruption of the service could give rise to an imminent threat to the life, personal safety or health of the whole or part of the population, in particular, the prisoners and the wider public. 767. Considering that the prison service constitutes an essential service in the strict sense of the term and that prison officers, as well as prisoner custody officers to the extent that they perform the same functions, exercise authority in the name of the State, the Committee is of the view that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service.” 21. The Committee on Freedom of Association then raised the issue of compensatory guarantees: “769. ... The Committee recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [see Digest, op. cit., para. 546]. The Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike, and to keep it informed in this respect. ... 773. ...[T]he Committee notes that the Government does not specify the method (including any relevant guidance or criteria) for the appointment of the members of the Pay Review Body, and recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 549]. With regard to [the nature of PSPRB recommendations], the Committee notes that the Government does not specify which exceptional circumstances might justify a departure from the recommendations of the Pay Review Body. The Committee also observes that the text of Regulation 8 of the Prison Service (Pay Review Body) Regulations, 2001, seems to leave complete discretion upon the Secretary of State as regards the implementation of the recommendations of the Pay Review Body, by providing that ‘where, following the reference of any matter to them, the Pay Review Body has made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit’. The Committee recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 547]. The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that: (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned. The Committee requests to be kept informed in this respect.” 22. The Committee on Freedom of Association submitted the following recommendations to the ILO Governing Body: “777. In light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations: (a) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited, the Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike. (b) The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that: (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned. (c) The Committee requests to be kept informed of developments in respect of the above.” The ILO Governing Body approved them (Minutes of the 292nd Session, 22-24 March 2005, paragraph 154). 23. Since its initial assessment of the case, the Committee on Freedom of Association has reviewed the situation periodically. In its Report No. 359 of March 2011, it regretted the state of relations between the POA and the Government, and that little progress had been made in improving the mechanism for the determination of prison officers’ pay. Regarding the binding nature of PSPRB awards, that report states: “181. ... [T]he Committee notes the Government’s statement that matters of public finances are for the Government to decide and that departures from PSPRB recommendations might on occasion become necessary to ensure acceptable award levels. The Committee recalls that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by a compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.” 24. The most recent consideration of the situation is contained in Report No. 364 of the Committee on Freedom of Association, of June 2012. The Committee took note of the information provided by the Government on latest developments (including the NDRP) and commented: "75. The Committee notes the information provided by the Government with satisfaction. Observing that it has been dealing with this case since 2005 and has been requesting the Government to initiate consultations with the complainant and the prison service with a view to achieving a satisfactory solution to the need to provide for an appropriate mechanism to compensate for the strike prohibition, the Committee wishes to recognize the efforts made by all the parties concerned and commends the Government’s desire to address the issues raised in this case. It encourages the Government to maintain full, frank and meaningful consultations with all interested parties in the future." | 0 |
train | 001-23401 | ENG | HRV | ADMISSIBILITY | 2,003 | BARBACA v. CROATIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Zdenko Barbača, is a Croatian citizen, who was born in 1931 and lives in Zagreb. The respondent Government are represented by their Agent Ms Lidija Lukina Karajković. The facts of the case, as submitted by the parties, may be summarised as follows. In August 1989 the applicant obtained his old-age pension which was assessed according to his average wage and years of employment. His pension, as all other pensions in Croatia, was regularly adjusted in line with the increase in wages and the cost of living, pursuant to the 1991 Pension Insurance Act (Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja - Official Gazette no. 53/1991). A number of Government Decrees (Uredbe Vlade) adopted between 1993 and 1994 restricted the budget allocation for payment of pensions in Croatia. As a result of these restrictions, ever since August 1993 the pension funds have not been brought into line with the increase in wages but only with the increase in the cost of living, contrary to the 1991 Pension Insurance Act. On 13 February 1997 the Law on Indexing Pensions and Other Payments from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (hereinafter the “The Pension Indexing Act” - Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja - Official Gazette no. 20/1997) was passed annulling the provisions of the 1991 Pension Insurance Act which regulated the adjustment of pensions. The new law did not bring the pensions into line with the increase in wages and cost of living. On 12 May 1998 the Constitutional Court (Ustavni sud Republike Hrvatske) declared certain provisions of the 1997 Pension Indexing Act incompatible with the Constitution. The decision was published in the Offical Gazette no. 69/1998. On 30 June 1998 the applicant applied to the Zagreb Office of the Croatian Pension Fund (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba Zagreb) requesting that his pension be adjusted pursuant to the Constitutional Court’s decision. He received no reply. On 1 September 1998 the applicant lodged a request with the appellate commission of the Pension Insurance Fund. He received no reply. On 16 December 1998 the applicant filed an action with the Administrative Court (Upravni sud Republike Hrvatske) pursuant to the provisions of the Administrative Procedure Act, asking that the court order the lower administrative bodies to reply to his request. The Administrative Court twice sought observations from the lower administrative bodies, but received neither a reply nor the case-file in question. Meanwhile, on 8 December 2000 Parliament enacted the Act on the Increase of Pension Instalments with a view to complying with the Constitutional Court’s decision of 12 May 1998. According to the Government, after the enactment of the above Act the applicant’s pension has been increased by 20 %. On 27 June 2002 the Administrative Court ruled in the applicant’s favour and ordered the Croatian Pension Fund’s Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba) to decide on the applicant’s appeal within thirty days. On 27 September 2002 the Croatian Pension Fund’s Central Office ordered the Zagreb Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, Područna služba Zagreb) to decide on the applicant’s request within thirty days. On 21 October 2002 the Zagreb Office of the Croatian Pension Fund rejected the applicant’s request. On 4 November 2002 the applicant appealed against that decision. It appears that the proceedings are presently pending before the Croatian Pension Fund’s Central Office as the appellate body. On 30 December 1998 the applicant filed a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of his full pension adjusted in accordance with the Constitutional Court’s decision. On 2 May 2002 the court declined jurisdiction in the matter and dismissed the action. It found that the relevant administrative bodies had jurisdiction. On 19 July 2002 the applicant appealed against that decision. The proceedings are presently pending before the Zagreb County Court (Županijski sud u Zagrebu) as the appellate court. The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku - Official Gazette 53/1991) provide as follows: Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to issue a decision within a period of one month after a party lodged a request. In all other, more complex, cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged. Section 218 (2) enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his request had been denied. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima - Official Gazette 53/1991) provide as follows: Section 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations: 1. If the appellate body does not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days, the applicant may lodge a claim with the Administrative Court. 2. When a first instance administrative body does not issue a decision and there is no right to appeal, the applicant may directly lodge a request with the Administrative Court. 3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days in matters where a right to appeal exists, the applicant may lodge his request with the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings, and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph 1. The relevant parts of the Act on the Increase of Pension Instalments (Zakon o povećanju mirovina, Official Gazette no. 127/2000) provide that pension instalments are to be increased, in order to comply with the Constitutional Court’s decision of 12 May 1998, according to the financial possibilities of the State. It regulates the indexes to be applied to the increase of pensions in each calendar year. | 0 |
train | 001-102358 | ENG | RUS | CHAMBER | 2,010 | CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. On 2 April 2002 the Novaya Gazeta v Voronezhe newspaper (“the newspaper”) published an article by Mr E.P. entitled “Atomic Mayor” («Атомный мэр»). The article concerned abuses and irregularities allegedly committed by Mr S., the mayor of Novovoronezh, and by other municipal officials, including Mr B., a deputy head of administration and director of the economy and finance department, and Mr P., the chairman of the education committee. The article also mentioned certain private parties who supplied goods or performed services for the municipal authorities, including Mr F., a local businessman who did renovation work for Statefunded institutions. 5. The article quoted extensively from the Report on the Composite Audit of the Novovoronezh Town Administration, carried out by the Audit Department of the Ministry of Finance for the Voronezh Region from 13 November to 27 December 2001 (“the audit report”). 6. On 8 May 2002 Mr S., Mr B., Mr P. and Mr F. lodged an action for defamation against the applicant. They claimed that the following extracts from the article were untrue and damaging to their reputation: “... In autumn 2001 a group of campaigners in Novovoronezh collected signatures for a vote of no confidence in Vladimir S. They collected nearly three thousand signatures ...” [paragraph 4] “... For a long time the Novovoronezh town administration failed to transfer payments to the compulsory medical insurance fund. In the mayor's opinion, these transfers were not mandatory, but a commercial court decided otherwise. Thanks to S., in 2002 the town budget will lose a further twenty million [roubles] ...” [21] “... Mayor S. still adheres to the ideas of Socialism and Communism; not only once did he enter the ranks of the Communist Party of the Russian Federation ... occasionally he left its ranks ...” [23] “... [In addition to the budget, Novovoronezh has an off-budget fund. And a substantial one.] One would only wonder at the way the mayor and his faithful companion, comrade B., the head of the economy and finance department doubling as executive director of all funds, handled its assets ... Thus, thanks to the efforts of two prominent economists, the town lost an amount comparable to nearly one half of the annual budget ...” [34, 47] “The chairman of the education committee of the Novovoronezh administration, Mr P., did not produce any documents showing that these students came from needy or large families as he claimed ...” What kind of needy families were these if even Mr P., the chairman of the education committee, does not know them?” [57, 58] “Inquisitive readers would ask: why did Mr B. care so much about the military unit in the village of Boevo and the regional psychiatric hospital (let's recall the charitable contribution of 300,000 roubles made to the hospital)? And they would start looking for an answer. Is it not in military unit no. 51205 that the son of the aforementioned official is doing his military service? Is it not in the regional psychiatric hospital that a relation or a namesake of Mr B. has just undergone a medical examination in order to escape punishment for a serious criminal offence? ... [67-69] And what about the honest Mayor S.? He does not know, perhaps, about the tricks of his deputy? On the contrary. He does know and he even personally signs payment orders for the transfer of money to the State enterprise 'Voronezh regional clinical psychiatric hospital'...” [71, 72] “The thing is that the notion of competitions (tenders) for the provision of services for State-funded organisations ceased to exist in the town long ago. If our fair and Communist-minded mayor S. liked Mr P. (they have done much business together), he could have as much work as he liked. He could supply computers at 150,000 roubles a piece and feed children in kindergartens at inflated prices ...” [87] “... During the audit an estimate of the repair work actually performed in the town stadium was made up. The cost of the actual work done amounted to nearly 500,000 roubles. So, Mr S. and Mr F., where have the remaining 1,300,000 roubles gone? ...” [93] 7. On 10 and 11 September 2002 the Sovetskiy District Court of Voronezh (“the trial court”) took evidence from the parties. The plaintiffs produced judgments of commercial courts pursuant to which the amount of 26,927 Russian roubles (RUB) had been recovered from the Novovoronezh municipal authorities in respect of payments to the medical insurance funds. Mr S. also produced a document showing that he had been a member of the Communist Party since 1995 and never relinquished his membership. 8. The applicant had at its disposal ordinary copies of the audit report and the report of 22 November 2001 on the verification of the work done at the stadium and shooting gallery (“the stadium report”). Since ordinary copies, as opposed to certified copies, had no evidentiary value, the applicant asked the trial court to obtain the originals. The trial court refused the request because the applicant had not shown that it had attempted to obtain the originals itself. 9. Throughout October 2002 the applicant unsuccessfully sought to obtain the originals from the Audit Department of the Ministry of Finance for the Voronezh Region, the town department of the interior and the Voronezh Regional and Novovoronezh Town Prosecutors' Offices. 10. The applicant renewed its request for a court injunction requiring the relevant authorities to submit the original documents. 11. On 30 October 2002 the trial court refused the request, without citing any reasons in the text of the judgment. Mr S. withdrew his claim in the part concerning paragraph 4 of the article. 12. On the same day the trial court issued its judgment. It found that all the extracts contested by the plaintiffs had been untrue and damaging to their reputation. The trial court premised its findings on the following principles: “In such cases, pursuant to Article 152 of the Russian Civil Code, the defendant shall prove the truthfulness of the information disseminated, whilst the plaintiff is only required to show that the defendant disseminated the information. Not only assertions, but also conjectures shall be amenable to proof. Damaging conjectures which are shown to have been unfounded in a court hearing will give rise to an apology. Reliance on rumours, hearsay, opinions of anonymous experts, competent sources, etc. as the basis for the damaging information shall not relieve the defendant from the obligation to show its truthfulness...” 13. The trial court decided that paragraphs 93 and 94 of the article implied the embezzlement of funds by Mr S. and Mr F. However, it noted that the audit report assessed the total cost of work at RUB 1,850,000 and that the defendants failed to adduce any proof of embezzlement. 14. The trial court accepted Mr S.'s opinion that statements in paragraphs 21, 23, 47, 71, 72 and 87 of the article impaired his honour, dignity and reputation. In the trial court's view, it was incorrect to say that the town “would lose a further 20 million thanks to the mayor” because the payments had been mandatory anyway and, after they had been withheld for some time, a court had ordered their recovery in the same amount. The information on Mr S.'s “discontinuous” party membership was considered untrue because he showed that he had joined the Communist Party once and had not relinquished his membership ever since. The trial court held that in paragraph 47 the author wrongly blamed Mr S. and Mr B. for stopping the funding, because the structure of off-budget funds was regulated by federal government decision. Lastly, as to paragraph 87, the trial court determined that it conveyed an impression that dishonest men, acting under the mayor's patronage, had made a profit out of kindergartens, but the authors did not produce any evidence showing the truthfulness of that allegation. 15. As regards Mr B., the trial court held that paragraphs 34, 47 and 6769 of the article were untrue and damaging for his reputation because the defendants failed to prove that Mr B. had been the executive director of “all funds”, that a relation of his, especially a criminal, had been in hiding in the psychiatric hospital or had been treated there, and that he and Mr S. had misspent the town's budget. 16. The trial court accepted Mr P.'s view that the allegations of abuses in the selection of students and his personal involvement in them (paragraphs 57 and 58) had been insulting for him. 17. The judgment stated: “Thus, the court has concluded that the plaintiffs' claims are well-founded because the author and the editors tolerated the publication of an article that contained insulting and untrue statements... without bothering to check all the relevant facts. In accordance with the law... evidence should have been collected before the information was published and it is inappropriate to start collecting evidence after the article was published... Moreover, the plaintiffs have produced before the court a reply from the Novovoronezh prosecutor's office and a decision of the Novovoronezh police department refusing criminal prosecution in connection with the audit of certain financial matters in the education committee of Novovoronezh in 2000-2001.” 18. The trial court ordered the applicant to pay RUB 10,000 to Mr S., as well as RUB 5,000 to Mr B., Mr P. and Mr F., respectively, that is, RUB 25,000 in total, and also to publish an apology. 19. On 8 January 2003 the applicant filed a detailed appeal statement, claiming that the article had concerned an issue of public interest and that the plaintiffs, being “public figures” and State servants, should have been more tolerant to criticism than ordinary citizens. The article was largely founded on the audit report and the district court did not afford the applicant an opportunity to prove the truthfulness of any statements of fact as it refused their request to obtain original documents. Moreover, the trial court ordered the applicant to refute value judgments. The appeal statement read, in so far as relevant, as follows: “As regards the first document [...], [the trial court] referred to the fact that there was no need to request it because the case file contained a decision by the senior police officer of the Novovoronezh GOVD [main department of the interior] to institute a criminal investigation into the facts mentioned in the report by the KRU [the Audit Department]. As regards the second document [...], the [trial] court referred to the fact that [it had been stated] in the reply by the Novovoronezh GOVD to the editorial board's request to provide the document that the GOVD did not have the document in question as it had been forwarded to the Novovoronezh prosecutor's office, and that there was therefore no need to request it from the GOVD.” 20. On 6 February 2003 the Voronezh Regional Court upheld the judgment of 30 October 2002. It held that the applicant's arguments that the article had contained value judgments rather than statements of fact was “unsubstantiated”. The court reasoned, in so far as relevant, as follows: “The dissemination of the information that the plaintiffs seek to refute was proven before the [trial] court and has not been disputed by the respondent. Accordingly the newspaper was obliged to submit evidence before the [trial] court to prove the truthfulness of the information in question. However, no such evidence was presented before the [trial] court.” 21. On 20 June 2003 the applicant transferred RUB 25,000 to the bank account of the bailiffs' service in execution of the judgment of 30 October 2002. 22. The applicant published an apology in the 11 – 17 July 2003 issue of the newspaper retracting the information contained in the article. 23. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media. 24. Article 152 of the Civil Code of the Russian Federation of 30 November 1994 provides that an individual may seize a court with a request for the rectification of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. The rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities. 25. Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992, as amended on 25 April 1995 (in force at the material time) provided in its Article 2 that to be considered damaging the information (сведения) had to be untrue and contain statements about an individual's or a legal entity's breach of the laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of information was understood as the publication of information or its broadcasting, its inclusion in professional references, public addresses, applications to State officials, as well as its communication in other forms, including orally, to at least one other person. Article 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the information in question had been disseminated by the defendant. The defendant was to prove that the disseminated information was true and accurate. | 1 |
train | 001-60627 | ENG | SWE | CHAMBER | 2,002 | CASE OF VASTBERGA TAXI AKTIEBOLAG AND VULIC v. SWEDEN | 2 | Violation of Art. 6-1 in respect of access to court;Violation of Art. 6-1 in respect of length of proceedings;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Gaukur Jörundsson;Wilhelmina Thomassen | 8. The first applicant, Västberga Taxi Aktiebolag, a taxi company, was dissolved due to a lack of assets on 2 December 1997. The second applicant, Nino Vulic, was the director of the first applicant. At the time when the tax liability in dispute in the present case arose, he owned 50% of its shares. Later, he acquired all the shares of the company. 9. In the autumn of 1994, as part of a large-scale investigation into taxicab operators, the Tax Authority (skattemyndigheten) of the County of Stockholm carried out a tax audit concerning the first applicant's taxi business. Having previously submitted its tax returns for the assessment year 1994, the first applicant was asked to submit supplementary information on several occasions, starting on 29 November 1994. Having discovered in the course of the audit certain irregularities in the tax returns, the Tax Authority informed the first applicant on 20 February 1995 that it intended to revise upwards the figure given in the tax returns for the turnover of the taxi business and impose additional taxes and tax surcharges on the company. The first applicant was invited to submit further comments, which it did. 10. Having regard to the findings of the audit and the first applicant's observations, the Tax Authority – by a decision of 10 August 1995 – revised upwards the turnover of the company's business by more than 400,000 Swedish kronor (SEK). After deductions for undeclared salary and petrol costs, the Tax Authority's assessments resulted in an increase in the deficit of the first applicant's business. However, by decisions of 11 and 15 August 1995, the taxation bases for calculating value-added tax (mervärdesskatt) and employer's contributions (arbetsgivaravgifter) were raised upwards in correspondence with the turnover and, as a consequence, the first applicant's liability to value-added tax and employer's contributions were increased by SEK 47,956 and 125,650, respectively. Moreover, as the information supplied by the first applicant in its tax returns was found to be incorrect and its liability to value-added tax and employer's contributions had been increased under a discretionary assessment procedure, the Tax Authority ordered it to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% of the increased tax liability. The additional taxes levied on the first applicant, including interest and surcharges, totalled SEK 232,069, of which SEK 34,710 were surcharges. It appears that the whole of the amount was payable in October 1995. 11. On 11 August 1995 the Tax Authority presented a report, according to which it intended to raise upwards the second applicant's taxable income and impose a tax surcharge, as a consequence of the assessments concerning the first applicant. The second applicant was invited to submit comments, which he did. 12. By a decision of 6 October 1995 the Tax Authority increased the second applicant's liability to income tax by SEK 146,602. Like the first applicant, and for the same reasons, he was ordered to pay tax surcharges. The additional tax levied on the second applicant, including interest and surcharges, totalled SEK 226,776, of which SEK 57,757 were surcharges. The whole of the amount was payable on 12 February 1996. 13. Claiming that the information relied upon by the Tax Authority to calculate the turnover of the first applicant's business was inaccurate, both applicants challenged the Tax Authority's decisions, the first applicant on 4 September 1995 in a request for the Authority's reconsideration and the second applicant on 18 December 1995 in an appeal against the relevant decision. The applicants also requested that the execution of the amounts assessed be stayed. The requests were prompted by the fact that neither an appeal to a court nor a request for reconsideration by the Tax Authority had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions. 14. By decisions of 8 September 1995 and 17 February 1996 the Tax Authority rejected the applicants' requests for stays of execution, stating that the prerequisites laid down in section 49 of the Tax Collection Act (Uppbördslagen, 1953:272) had not been fulfilled. 15. By judgments of 22 February and 8 March 1996, following appeals by the applicants, the County Administrative Court (länsrätten) of the County of Stockholm quashed the Tax Authority's decisions and referred the cases back to the Authority. Having found that the formal prerequisites for granting stays of execution under section 49, subsection 1 (3) of the Tax Collection Act had been fulfilled, the court went on to state: “However, the granting of a stay of execution under this particular provision is conditional on security being provided, if, for some reason, it can be assumed that the amount in respect of which a stay of execution has been sought will not be duly paid. As the Tax Authority did not rule on the compliance with that condition, the County Administrative Court finds that the decision[s] should be quashed and the case[s] referred back to the Tax Authority, which must examine the question whether security is required.” 16. On 7 and 30 May 1996, respectively, the Tax Authority again rejected the applicants' requests for stays of execution. The Tax Authority found that the applicants' ability to pay was open to doubt, that stays of execution could not therefore be granted unless security was provided and that, although given the opportunity to do so, the applicants had failed to provide security. Accordingly, their requests could not be granted. 17. The applicants appealed against those decisions to the County Administrative Court, claiming that they should be exempted from the obligation to provide security and granted stays of execution. Both claims rested on the contention that it would be unreasonable and amount to a violation of Article 6 of the Convention for enforcement proceedings to be instituted against the applicants without their cases having first been determined "in due course". 18. By judgments of 12 September 1996, subscribing to the reasons given by the Tax Authority, the County Administrative Court upheld the impugned decisions. 19. The applicants, who did not furnish security, lodged a notice of appeal. On 30 October 1996 the Administrative Court of Appeal (kammarrätten) in Stockholm refused them leave to appeal against the County Administrative Court's judgments. They did not appeal to the Supreme Administrative Court (Regeringsrätten). 20. Meanwhile, each of the debts being outstanding and no stays of execution having been granted, the applicants were registered as being in arrears with the taxes and tax surcharges imposed as a result of the Tax Authority's decisions. Enforcement proceedings were therefore instituted against both applicants. 21. On 20 December 1996 the Enforcement Office (kronofogde-myndigheten) of the County of Stockholm, representing the State, filed a petition with the District Court (tingsrätten) of Stockholm, requesting that the first applicant be declared bankrupt. According to a statement submitted by the Office, as of 16 December 1996 the first applicant's tax liability relating to the assessment year 1994 amounted to SEK 271,733, including penalties for late payment (dröjsmålsavgifter) that had accrued since the final date on which payment could have been made. That amount included SEK 33,041, plus 6% in penalties for late payment, in tax surcharges. The first applicant also had a smaller tax liability relating to the assessment year 1996. The Office noted that an investigation had revealed that the first applicant owned no property that could be seized in order to cover the debts in question. 22. The District Court held a hearing in the case on 3 February 1997. Although duly summoned, however, no representative of the first applicant appeared before the court. Instead, written observations previously submitted on its behalf were read out. According to the minutes of the hearing, the first applicant alleged in those observations that Article 6 of the Convention had been breached in that it had been denied a fair hearing. 23. By a decision of 10 February 1997 the District Court declared the first applicant bankrupt. In so doing it noted that the alleged breach of Article 6 of the Convention did not affect the State's standing to petition for bankruptcy, that the first applicant was under an obligation to pay the debts and that it had to be considered insolvent as it had been found to have no distrainable assets. 24. The first applicant appealed to the Svea Court of Appeal (Svea hovrätt), claiming, inter alia, that the District Court's decision amounted to a violation of Article 6 of the Convention in that the enforcement proceedings had been allowed to continue irrespective of the fact that the Tax Authority's decisions regarding its liability to taxes and tax surcharges had not yet been reviewed by a court. 25. The first applicant's appeal was dismissed by the Court of Appeal on 21 February 1997. Leave to appeal against the appellate court's decision was refused by the Supreme Court (Högsta domstolen) on 6 May 1997. 26. On 2 December 1997 the bankruptcy proceedings were terminated owing to a lack of assets. 27. On 23 and 25 April 1996 the Enforcement Office seized the second applicant's savings in two banks, amounting to a total of SEK 18,132, in partial defrayment of his tax liability. 28. The second applicant appealed to the District Court, requesting that the seizure be quashed. The appeal was dismissed by the court on 28 June 1996. He made no further appeals, considering that they would have no prospects of success. 29. Following the Enforcement Office's decision of 22 November 1996 to seize part of the second applicant's monthly income, some minor amounts were recovered. By a decision of 5 December 1997 this seizure was discontinued. As of 21 August 2001 the second applicant's tax liability relating to the assessment year 1994 amounted to SEK 346,161, including penalties for late payment. Of the original debt of SEK 226,776, SEK 201,910 remained unpaid. In accordance with section 3 of the Statute of Limitations for Tax Claims (Lagen om preskription av skattefordringar m.m., 1982:188), the whole debt became statute-barred on 31 December 2001, at the end of the fifth year following the day it became due. 30. On 30 August 1995 the Tax Authority reported the second applicant to the Public Prosecution Office (åklagarmyndigheten) in Stockholm for suspected tax crimes based on the information obtained during the tax audit and the statements made in the applicants' tax returns. On 23 May 1997 the second applicant was indicted for a bookkeeping offence. A hearing was held by the District Court on 22 January 2001. During the course of the hearing, the public prosecutor withdrew the charges and the District Court consequently struck the case out of its list. 31. As mentioned above, on 4 September 1995, the first applicant requested the Tax Authority to reconsider its decisions on taxes and tax surcharges. On 9 October 1995 the Authority decided not to change its decision of 10 August 1995 concerning the assessment of the turnover of the company's business. Subsequently, the first applicant sent comments and questions to the Tax Authority, which replied to the questions on 17 February 1996. On 22 February 1996 the first applicant lodged formal notices of appeal against the Tax Authority's decisions. It also submitted comments and questions to the Tax Authority, which, by a letter of 19 August 1996, stated that it stood by its decisions. The first applicant presented further observations on 5 September 1996. By decisions of 11 and 12 June 1997 the Tax Authority refused to change the impugned decisions. Consequently, the matters were automatically referred to the County Administrative Court for determination. 32. By a decision of 17 July 2000 the County Administrative Court dismissed the first applicant's appeals. The Court considered that, as it had been dissolved on 2 December 1997, the company lacked legal capacity (rättskapacitet) to act as a party. Accordingly, the appeals could not be examined. 33. On 9 October 2001 the Administrative Court of Appeal upheld the County Administrative Court's decision. On 12 November 2001 the first applicant appealed to the Supreme Administrative Court. By a decision of 23 April 2002 the latter court granted leave to appeal. Thus, the matter is presently pending before the Supreme Administrative Court. 34. At the same time as his appeal of 18 December 1995, the second applicant submitted comments and questions to the Tax Authority, which replied on 17 February 1996. A few days later he sent a letter to the Authority. By a letter of 19 August 1996 the Authority stated that it stood by its previous decision. The second applicant presented further comments on 5 September 1996. On 12 June 1997 the Tax Authority refused to change the impugned decision. Consequently, the matter was automatically referred to the County Administrative Court for determination. 35. By a judgment of 29 March 2000 the County Administrative Court upheld the Tax Authority's decision of 6 October 1995. It considered that the information on which the impugned decisions were based was reliable and showed that the applicant's income and the tax in question could not be assessed in accordance with the statements made in his tax returns. Thus, the Tax Authority had had good reason to make discretionary tax assessments based on the information obtained during the audit. Furthermore, the amount levied on the applicant could not be considered too high. The County Administrative Court also considered that there had been sufficient reasons to impose the tax surcharge in question and that no legal basis for remitting it had been shown. 36. On 15 December 2000 the Administrative Court of Appeal upheld the County Administrative Court's judgment. During the course of the proceedings before the appellate court the second applicant was on one occasion granted a four-week extension of a time-limit for the submission of observations. On 12 January 2001 he appealed to the Supreme Administrative Court. Following another extension of a similar time-limit, he completed his appeal on 20 April 2001. By a decision of 3 May 2002 the Supreme Administrative Court refused him leave to appeal. 37. The rules on taxes and tax surcharges relevant to the present case were primarily laid down in the Taxation Act (Taxeringslagen, 1990:324), the two Value-Added Tax Acts (Lagen om mervärdeskatt, 1968:430, replaced by Mervärdesskattelagen, 1994:200) and the Collection of Social Security Charges from Employers Act (Lagen om uppbörd av socialavgifter från arbetsgivare, 1984:688). Issues concerning taxation and the imposition of tax surcharges were regulated in a very similar manner in the various acts. In the following section, therefore, reference is made only to the provisions of the Taxation Act. The Collection of Social Security Charges from Employers Act and parts of the Value-Added Tax Act 1994 were replaced by the Tax Payment Act (Skattebetalningslagen, 1997:483) as from 1 November 1997. As no essential changes have been made by either the enactment of the Tax Payment Act or amendments to the Taxation Act, the following account describes both the present system and the one applicable at the material time. 38. Income tax, value-added tax and employer's contributions are all determined by county tax authorities, to which taxpayers are obliged to submit information relevant to the assessment of taxes. For the purpose of securing timely, sufficient and correct information, there are provisions stipulating that, under certain circumstances, the tax authorities may impose penalties on the taxpayer in the form of tax surcharges. 39. These surcharges were introduced into Swedish legislation in 1971. The new provisions entered into force on 1 January 1972 at the same time as a new act on tax offences. According to the preparatory documents (Government Bill 1971:10), the main purpose of the reform was to create a more effective and fairer system of penalties than the old one, which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution. Unlike penalties for tax offences, the new surcharges were to be determined solely on objective grounds, and, accordingly, without regard to any form of criminal intent or negligence on the part of the taxpayer. It was thought that the old system did not function satisfactorily, since a large number of tax returns contained incorrect information whereas relatively few people were charged with tax offences. Now that the new system has been introduced only serious tax offences are prosecuted. 40. A tax surcharge is imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (chapter 5, section 1 of the Taxation Act) or if, following a discretionary assessment, the tax authority decides not to rely on the tax return (chapter 5, section 2). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. However, incorrect claims are not penalised; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof, no surcharge is imposed. The burden of proving that the information is incorrect lies with the tax authority. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority cannot base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so (chapter 4, section 3). In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time-limit. The surcharge amounts to 40% of either the income tax which the Tax Authority would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment. The corresponding provisions on value-added tax and employer's contributions stipulate that the surcharge comes to 20% of the supplementary tax levied on the taxpayer. In certain circumstances, the rates applied are 20% or 10%, respectively, for the various types of tax. 41. Notwithstanding the fact that the taxpayer has furnished incorrect information, no tax surcharge will be imposed in certain situations, for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer, when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities, such as a certificate of income from the employer, or when the taxpayer has corrected the information voluntarily (chapter 5, section 4). 42. Moreover, in certain circumstances, a tax surcharge will be remitted. Thus, taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age, illness, lack of experience or comparable circumstances. The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances, or when it would be manifestly unreasonable to impose a surcharge (chapter 5, section 6). The phrase “the nature of the information” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question. According to the preparatory documents (Government Bill 1991/92:43, p. 88), the expression “manifestly unreasonable” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons. If the facts of the case so require, the tax authorities must have regard to the provisions on remission, even in the absence of a specific claim to that effect by the taxpayer (chapter 5, section 7). In principle, however, it is up to the taxpayer to show due cause for the remission of a surcharge. 43. If dissatisfied with a decision concerning taxes and tax surcharges, the taxpayer may, before the end of the fifth year after the assessment year, request the tax authority to reconsider its decision (chapter 4, sections 7 and 9). A decision concerning surcharges may also be reviewed at the taxpayer's request after the expiry of this time-limit, if the decision on the underlying tax issue has not yet become final (chapter 4, section 11). The tax authority may also, on its own motion, decide to review its own earlier decision. A review to the taxpayer's disadvantage must be made before the end of the year following the assessment year unless the taxpayer, inter alia, has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information, in which case the time-limit normally expires at the end of the fifth year after the assessment year (chapter 4, sections 7 and 14-19). 44. The tax authority's decision may also be appealed against to a county administrative court. As with requests for reconsideration, an appeal has to be lodged before the end of the fifth year after the assessment year (chapter 6, sections 1 and 3), unless it concerns a tax surcharge based on a tax decision that has not yet become final (chapter 6, section 4). Following the appeal, the tax authority must reconsider its decision as soon as possible and, if it decides to vary the decision in accordance with the taxpayer's request, the appeal will become void (chapter 6, section 6). If the decision is not thus amended, the appeal is referred to the county administrative court. If special reasons exist, an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment (chapter 6, section 7). Further appeals lie to an administrative court of appeal and, subject to compliance with the conditions for obtaining leave to appeal, the Supreme Administrative Court. 45. A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge, which is reduced correspondingly (chapter 5, section 11). The tax surcharge may, however, be challenged separately, if grounds for reduction or remission exist (see above). 46. If the proceedings before a county administrative court or an administrative court of appeal concern a tax surcharge, the appellant has the right to an oral hearing (chapter 6, section 24). 47. At the material time, the collection of taxes and tax surcharges was regulated by the Tax Collection Act, the Value-Added Tax Act 1994 and the Collection of Social Security Charges from Employers Act. The provisions of these Acts relevant to the present case were very similar and, for this reason, only the provisions of the Tax Collection Act are set out below. Since 1 November 1997 tax collection has been regulated by the Tax Payment Act which contains essentially the same rules as the Tax Collection Act. 48. A request for reconsideration or an appeal against a decision concerning taxes and tax surcharges has no suspensive effect on the taxpayer's obligation to pay the amounts in question (section 103 of the Tax Collection Act and chapter 5, section 13 of the Taxation Act). 49. However, the tax authority may grant a stay of execution in respect of taxes and surcharges provided that one of the following three conditions is met: (1) if it may be assumed that the amount imposed on the taxpayer will be reduced or remitted, (2) if the outcome of the case is uncertain, or (3) if payment of the amount in question would result in considerable damage for the taxpayer or would otherwise appear unjust (section 49, subsection 1 of the Tax Collection Act). According to the preparatory documents, the second condition will be satisfied not only when an outcome favourable to the taxpayer is just as likely as an unfavourable one, but also in cases when it is more probable than not that the proceedings will result in the taxpayer's claims being rejected. However, a stay will not to be granted if the request for reconsideration or the appeal has little prospect of success (Government Bill 1989/90:74, p. 340). An example of a situation where “considerable damage” might result is the forced sale of the taxpayer's real estate or business or other property of great importance to his financial situation and livelihood (ibid., pp. 342-43). 50. If, in cases where the second or third condition just referred to is applicable, it may be assumed – due to the taxpayer's situation or other circumstances – that the amount for which a stay of execution is requested will not be duly paid, the request cannot be granted unless the taxpayer provides a bank guarantee or other security for the amount due. Even in these cases, however, a stay may be granted without security if the relevant amount is relatively insignificant or if there are other special reasons (section 49, subsection 2). 51. The application of section 49 of the Tax Collection Act was examined by the Supreme Administrative Court in a judgment of 17 November 1993 (case no. 2309-1993, published in Regeringsrättens Årsbok (RÅ) 1993 ref. 89). In that case, the National Tax Board (Riksskatteverket) and the Administrative Court of Appeal had found that the applicant company – which had appealed against the National Tax Board's decision to impose on it certain energy taxes and interest in the total amount of approximately SEK 6,400,000 – could not be granted a stay of execution. The Supreme Administrative Court noted, however, that there was some uncertainty as regards the main issue in the case – whether the income in question was at all taxable – and that the tax levied constituted a considerable sum. For these reasons, it found that it would be unreasonable to demand payment of the amount before a court had determined the applicant company's tax liability. Noting that security in principle had to be provided by the company, the Supreme Administrative Court nevertheless took account of the fact that the Administrative Court of Appeal was expected to determine the tax-liability issue within a short time and that special reasons therefore existed for not requiring security. Accordingly, the applicant company was granted a stay of execution without security until one month after the Administrative Court of Appeal's judgment. 52. A taxpayer may request the tax authority to reconsider its decision concerning the stay-of-execution issue and may appeal against its decision to a county administrative court. The procedure is essentially identical to that followed in regard to requests for reconsideration and appeals concerning the main tax issues (sections 84, 96 and 99 of the Tax Collection Act; see paragraphs 43-44 above). Further appeals to an administrative court of appeal and the Supreme Administrative Court are subject to leave to appeal being granted (section 102). 53. The enforcement offices are under an obligation to levy execution on a debtor upon request, even if the tax authority's decision concerning tax and tax surcharges is not final (chapter 3, section 1 and chapter 4, section 1 of the Enforcement Code (Utsökningsbalken) in conjunction with sections 59 and 103 of the Tax Collection Act; the latter provisions have been replaced by similar provisions in the Tax Payment Act). If the debtor does not have enough distrainable property, the enforcement office may request a district court to declare him or her bankrupt. The debtor will normally be considered insolvent if it is discovered during attempts to levy distress in the six months preceding the presentation of the bankruptcy petition that his or her assets are insufficient to pay the debt in full (chapter 2, section 8 of the Bankruptcy Act (Konkurslagen, 1987:672)). If the bankrupt's estate is not sufficient to defray all the existing and expected bankruptcy expenses and other liabilities that the bankrupt has incurred, the bankruptcy proceedings will be terminated (chapter 10, section 1 of the Bankruptcy Act). 54. If a bankruptcy petition is based on a tax debt determined by a decision that is not yet final, the court examining the petition is required to make an independent assessment of the alleged debt, having regard to the evidence adduced in the bankruptcy proceedings. The court accordingly has to make a prediction about the outcome of the pending tax assessment proceedings (judgment of the Supreme Court of 9 June 1981, case no. Ö 734/80). 55. If a limited liability company has been declared bankrupt and the bankruptcy proceedings are terminated without any remaining assets, the company is dissolved (chapter 13, section 19 of the Limited Liability Companies Act (Aktiebolagslagen, 1975:1385)). Under established Swedish case-law, the general rule is that a company thus dissolved has no legal capacity and may not therefore act as a party to legal proceedings. Some exceptions to the rule have been made. As stated by the Supreme Administrative Court in a judgment of 16 June 2000 (case no. 7017-1997, RÅ 2000 ref. 41), exceptions have been allowed in cases where it has been considered that special reasons relating to the interests of the company or the opposite party called for a dispute to be examined by a court after the dissolution of the company. As an example of such special reasons, the court mentioned the possibility that a company's claims in tax proceedings would be accepted and lead to repayment of taxes and, as a consequence, a further distribution to the bankruptcy creditors. In the case before the court, the company in question was found to have no justified interest of its own in the continuation of the relevant tax proceedings as the successful outcome of those proceedings would not lead to any assets being returned to the company or the bankruptcy estate. However, the State had sued the former company directors in civil proceedings, claiming that they were jointly responsible for the tax debt in dispute in the company's case. Finding that it was uncertain whether the directors could have the underlying tax issue examined in the civil proceedings, the court considered that they had a justified interest in having the tax issue determined in the tax proceedings. As a consequence, the dissolved company was given the right to act as a party to those proceedings. 56. As taxes and tax surcharges are payable even if the tax authority's decision is not final, the decision may be varied or quashed after the relevant amounts have been paid. If so, the amount overpaid is refunded with interest (chapter 18, section 2 and chapter 19, sections 1 and 12 of the Tax Payment Act). If distress has been levied on the taxpayer's property or he or she has been declared bankrupt on account of the tax debt, the distress warrant or bankruptcy decision will be set aside on appeal. Should the warrant or decision have become final, the taxpayer may, upon request, have the case reopened and the warrant or decision quashed (chapter 58 of the Code of Judicial Procedure (Rättegångsbalken)). Any property that has been distrained upon will, if possible, then be restored to the taxpayer (chapter 3, section 22 of the Enforcement Code). The same applies to property forming part of a bankrupt's estate to the extent that it is not required for the payment of the bankruptcy expenses and other liabilities (chapter 2, section 25 of the Bankruptcy Act). If the taxpayer's property has been sold and the amount obtained from the sale has been used to pay off the alleged tax debt, the taxpayer will receive financial compensation. In addition, it is open to the taxpayer to bring an action for damages against the State for the financial loss caused by the distress or the bankruptcy (chapter 3, section 2 of the Tort Liability Act (Skadeståndslagen, 1972:207)), on the ground that the authorities or the courts have acted wrongfully or negligently. 57. Criminal proceedings may be brought against a taxpayer who has furnished incorrect information to a tax authority or who, with the object of evading tax, has failed to file a tax return or similar document. If the taxpayer has acted with intent and his actions have resulted in his being charged too little tax, he will be convicted of tax fraud. The possible sentence ranges from a fine for petty offences to imprisonment for a maximum of six years for cases of aggravated tax fraud (sections 2 to 4 of the Tax Offences Act (Skattebrottslagen, 1971:69)). If the taxpayer is considered to have been grossly negligent in submitting incorrect information, he may be convicted of making a negligent misrepresentation to the tax authorities (vårdslös skatteuppgift) (section 5). A criminal charge under the Tax Offences Act is brought in accordance with the rules governing criminal proceedings in general which means, inter alia, that there can only be a criminal conviction on prosecution and trial by the courts of general jurisdiction. 58. Under Swedish law, the fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings. Moreover, a decision to impose a surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge. However, it was the intention of the legislature that the trial court would be aware when considering the criminal charge that a surcharge had been imposed (Government Bill 1971:10, pp. 351 and 364). 59. In a judgment delivered on 29 November 2000 the Supreme Court considered whether a person could be convicted for a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (case no. B 868-99, published in Nytt juridiskt arkiv (NJA) 2000, p. 622). Having noted that, under Swedish law, a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the European Court's case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention, did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied. 60. On 15 December 2000 the Supreme Administrative Court delivered two judgments in which it examined the applicability of Article 6 of the Convention to the tax surcharges imposed under the Swedish tax system. In one of the judgments (case no. 1990-1998, RÅ 2000 ref. 66), noting the criteria established by the European Court for determining whether an offence qualified as “criminal”, the Supreme Administrative Court gave an extensive opinion on the application of these criteria to the surcharges in question. It stated, inter alia, the following: “The Swedish legislature has described the tax surcharge as an administrative sanction akin to a penalty... . The rules on oral hearings in chapter 6, section 24 of the Taxation Act should be seen as a manifestation of the desire to bring taxation procedure into line with the legal safeguards laid down in Article 6 of the Convention. Also, according to case-law (RÅ 1987 ref. 42), the rules on voting in chapter 29 of the Code of Judicial Procedure [in the criminal-procedure part of the Code] are applicable in cases concerning surcharges under the former Taxation Act (1956:623). The tax surcharge appears to have been considered a predominantly criminal sanction in other contexts as well. For example, it was stated in the preparatory documents to the legislation establishing the rule prohibiting ex post facto laws in chapter 2, section 10, subsection 1 of the Instrument of Government [Regeringsformen] – which covers penalties, other criminal sanctions and other special legal effects of a criminal offence – that the proposed rule also applied to administrative sanctions akin to penalties such as tax surcharges, charges for the late payment of taxes and late-payment fees under various tax laws. ... However, under Swedish law, there is no requirement of intent or negligence on the part of the taxpayer for the imposition of a tax surcharge. Also, the surcharge, to a certain extent, has the character of a conditional fine [vitesfunktion] and can be remitted on purely objective grounds. Moreover, it cannot be converted into a prison sentence. Therefore, it has been considered that the surcharge is not to be classified as a penalty under the Swedish legal system but rather as an administrative tax sanction. Accordingly, its classification as such under the Swedish legal system does not constitute sufficient reason for regarding it as a criminal sanction within the meaning of the Convention. With respect to the other two criteria applied by the European Court in this connection – that is, the nature of the offence and the nature and degree of severity of the sanction – the following should be taken into account. The Swedish rules on tax surcharges are general and concern all taxpayers. The purpose of the system of administrative sanctions is to exert pressure on taxpayers, by means of a considerable financial sanction, to observe the obligations prescribed by the laws on taxes and charges. It should also be noted that the Swedish tax surcharge, in its present form, replaced earlier procedures of a purely criminal nature. As regards the characteristics that have been established by the European Court as referring to the nature and degree of severity of the sanction, it should be borne in mind that a surcharge is levied in proportion to the tax avoided by the provision of incorrect information. This means that surcharges may in principle come to very large amounts without any upper limit. In the Supreme Administrative Court's opinion, the last-mentioned aspect strongly indicates that Article 6 is to be regarded as applicable to the Swedish tax surcharge. In a recently delivered judgment, the Supreme Court also stated, in the light of the European Court's case-law, that “there are weighty arguments for regarding Article 6 as being applicable also to Swedish proceedings concerning tax surcharges” [the Supreme Court's judgment of 29 November 2000, see paragraph 59 above]. One consideration that might still cause some doubt is that the Swedish surcharge differs from the French one with regard to one of the four factors to which the European Court attached importance in its final assessment in the Bendenoun case [Bendenoun v. France judgment of 24 February 1994, Series A no. 284]: it cannot be converted into a prison sentence. Furthermore, contrary to the French rules, the Swedish rules on surcharges lack a subjective element in the real sense ... . However, the fact that the Swedish tax surcharge cannot be converted into a prison sentence is not, in the Supreme Administrative Court's opinion, a strong argument against finding Article 6 to be applicable. There is no doubt that a fine imposed under criminal law falls under Article 6, irrespective of whether or not it can be converted into a prison sentence. Moreover, the judgment in the Bendenoun case must be taken to indicate that financial sanctions other than a fine may also fall under Article 6, at least if they are of some significance. Furthermore, following the European Court's judgments in the cases of Lauko ... and Kadubec [Lauko and Kadubec v. Slovakia judgments of 2 September 1998, Reports of Judgments and Decisions 1998-VI, pp. 2492 and 2518, respectively], both of which concerned fines imposed in respect of minor offences, it must now be regarded as established that the imposition of a prison sentence is not a prerequisite for an act to be viewed as a criminal offence within the meaning of the Convention. Nor, in the circumstances, can an independent or even significant meaning be attached to the lack of subjective elements (instead, there is reason to make a separate assessment as to the compatibility of strict liability with the presumption of innocence ...). In view of the foregoing the Supreme Administrative Court finds, having regard to all the circumstances, that the Swedish tax surcharge is to be regarded as falling under Article 6 of the Convention. ...” 61. The Supreme Administrative Court went on to examine the compatibility of the tax surcharges with the presumption of innocence under Article 6 § 2 of the Convention. It gave the following opinion: “It is probable that, in determining whether strict criminal liability is compatible with the Convention, the European Court will apply essentially the same test as it did in the Salabiaku case [Salabiaku v. France judgment of 7 October 1988, Series A no. 141] with respect to liability established on the basis of presumptions. This means that liability must not arise entirely automatically on proof of the objective elements. Instead, in order for there to be no conflict with the presumption of innocence, the individual must have the possibility of some form of defence based on subjective circumstances. As has been mentioned above, a tax surcharge is imposed by means of an administrative procedure without any requirement of intent or negligence. An appeal against a decision concerning a surcharge lies to an administrative court. If intent or gross negligence is established, liability under criminal law may be imputed following trial and conviction by a court of general jurisdiction. Taxation in Sweden is largely based on information given by the individual and certification by him or her of information received from other sources. The purpose of the tax surcharge is to emphasise, inter alia, that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information. In principle, carelessness is not acceptable. Furthermore, the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed. In other words, the taxpayer is required to have a certain knowledge of the tax rules. Inaccuracies and failures of the kind that may cause the imposition of a tax surcharge occur in a very large number of cases. The requirements of foreseeability and uniformity in the imposition of surcharges have therefore been regarded as calling for surcharges to be levied in accordance with relatively simple and standardised rules. However, the rules and regulations must also meet demands for a reasonably nuanced assessment ... and provide guarantees of legal certainty. Therefore, a surcharge is not imposed automatically when incorrect information is submitted. Firstly, certain types of inaccuracies are excluded and, secondly, authorities and courts must consider whether there are grounds for remitting the surcharge, even if no specific claim to that effect has been made. The following may be stated with particular reference to the grounds for remitting surcharges. The requirements of understanding and meticulousness must be proportionate to the taxpayer's ability and capacity to comprehend the tax rules and apply them to the existing situation. The rules on remission are aimed at preventing the imposition of a tax surcharge as a result of, for example, excusable ignorance or a misunderstanding as to the content of a tax rule. They are also supposed to prevent a surcharge from being imposed when other excusable mistakes are made in discharging the duty to file a tax return. The rules on remission are, moreover, drafted in such a way as to allow the authorities and courts a certain latitude in assessing questions of remission, having regard to the subjective position of the taxpayer. Indeed, the grounds for remission – in conjunction with the rules providing, on objective grounds, for surcharges not to be imposed or to be set aside in particular circumstances – may in certain cases allow of considerations that lead to greater exemption from surcharges than would be the case if the imposition of surcharges were conditional on the taxpayer having acted intentionally or negligently. Although the grounds for remission are not entirely comparable to the conditions for accountability which the subjective elements represent in criminal law, they must, when taken together with the cases in which surcharges are excluded on purely objective grounds, be considered as affording the taxpayer, where appropriate, sufficient scope for avoiding the imposition of surcharges to prevent a conflict with the presumption of innocence as set out in Article 6 of the Convention arising. In general, however, this requires that the courts, in applying the rules on surcharges, should indeed make a nuanced and not too restrictive assessment in each individual case as to whether there are grounds for setting aside or remitting the tax surcharge.” 62. The Supreme Administrative Court also considered that the Swedish tax surcharge complied with the general requirement under the Convention for measures to be proportionate. It held that a system of sanctions against breaches of the obligation to submit tax returns and information to the tax authorities served an important public interest. Moreover, it noted, inter alia, that the requirement of proportionality was reflected in the rules on surcharges as, under chapter 5, section 6 of the Taxation Act, surcharges were to be remitted in cases where they would be “manifestly unreasonable” (see paragraph 42 above). 63. In the other judgment delivered on 15 December 2000 (case no. 2922-1999) the Supreme Administrative Court was called upon to examine whether the enforcement of a tax surcharge prior to a court examination of a taxpayer's liability to pay the surcharge in question conflicted with the presumption of innocence under Article 6 § 2 of the Convention. It made the following assessment: “The Article stipulates that the presumption of innocence shall be observed until guilt has been proved according to law. It does not follow from the wording of the Article that a criminal sanction that has been imposed cannot be enforced before the decision has become final. There are, furthermore, examples both in Sweden and in other European countries of regular criminal sanctions being enforceable notwithstanding the fact that the decision has not become final ... . Moreover, there is nothing in the case-law of the European Court to support the view that Article 6 § 2 prevents the enforcement of decisions concerning criminal sanctions that have not become final. In this connection, it should be pointed out that the European Commission of Human Rights expressly accepted the immediate enforcement of tax surcharges in the case of Källander v. Sweden [application no. 12693/87, decision of 6 March 1989, unpublished]. The conclusion of the Supreme Administrative Court is that Article 6 § 2 does not prevent enforcement on the ground that a decision concerning tax surcharges has not become final. It remains to be determined whether the enforcement of an administrative authority's decision on surcharges requires the matter to have been examined by a court. It follows from Article 6 § 1 that everyone charged with a criminal offence has a right to have his or her case determined by a court. However, the rules in Article 6 are not considered to preclude the examination by an administrative authority of issues falling under the Article, provided that the individual may subsequently bring the matter before a court that fully affords the legal safeguards laid down in the Article ... . In the Supreme Administrative Court's opinion, it is unclear to what extent the presumption of innocence should be taken to require that a decision by an administrative authority concerning a criminal sanction against which an appeal has been made should not be enforced before a court has examined the appeal. It appears that the question has not been determined by the European Court. However, it seems reasonable to assume that enforcement may not take place if it would make it impossible for the original legal position to be restored in the event that the subsequent judicial examination resulted in the authority's decision being varied. As far as tax surcharges are concerned, a taxpayer may appeal to a court against an administrative authority's decision to impose such a surcharge. If the taxpayer's appeal is successful, any amount that has been paid will be refunded with interest. It is also possible for the taxpayer to request a stay of execution in connection with the appeal. It is unlikely that any enforcement measures will be taken pending the court's examination of the application for a stay (cf. Government Bill 1996/97:100, p. 352). Under the rules applicable in the instant case, a stay may be granted if it can be assumed that the amount imposed on the taxpayer will be reduced or that he will be relieved of the obligation to pay the amount, if the outcome of the case is uncertain or if payment of the amount imposed would result in considerable damage for the taxpayer or otherwise appears unjust. In certain cases, a stay can be granted only on condition that security is provided (section 49, subsections 1 and 2 of the Tax Collection Act; there are now largely corresponding rules in ... the Tax Payment Act). The rules on stays of execution provide the taxpayer with the opportunity to have a preliminary examination by a court of the final outcome of the case concerning tax surcharges. If the taxpayer refrains from using this option or if the court, following an examination, finds that it cannot be assumed that the taxpayer's appeal on the merits will be successful, or even that the outcome is uncertain and that, moreover, there is no reason to expect considerable damage to result from payment of the surcharge, it cannot, in the view of the Supreme Administrative Court, be contradictory to Article 6 § 2 to require immediate enforcement.” | 1 |
train | 001-108201 | ENG | HUN | COMMITTEE | 2,011 | CASE OF SZECHENYI v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Paulo Pinto De Albuquerque | 4. The applicant was born in 1955 and lives in Szentendre. 5. On 29 August 1996 A.P. filed an action for divorce and child custody against the applicant before the Pest Central District Court. She further indicated in the motion that she wished to settle the division of matrimonial property in separate legal proceedings. 6. On 6 July 1999 the plaintiff requested the District Court to establish her ownership of a common real estate and to divide the matrimonial property. 7. After having held several hearings, the District Court delivered a partial judgment on 14 April 2000, dissolving the parties’ marriage, deciding about the child’s placement and regulating the applicant’s access rights. On appeal the Budapest Regional Court upheld the first instance judgment on 6 February 2001. 8. As regards the division of matrimonial property, the District Court delivered its judgment on 24 November 2004, which was partly modified on appeal by the Budapest Regional Court on 24 May 2005. 9. Despite the final judgment regulating the applicant’s access rights (see paragraph 7 above), the mother failed to comply with the arrangements, therefore preventing the applicant from seeing his son. 10. On 16 April 2002 the applicant brought an action before the Budapest II/III District Court, requesting the modification of his child’s placement. Moreover, he requested joint exercise of his parental rights related to the management of his child’s property. He claimed that the mother had not acted in the child’s best interest when concluding an exchange agreement concerning a real estate in the child’s property, which had been approved by the competent guardianship authority on 9 July 2001. 11. On 28 May 2003 the District Court dismissed the applicant’s action. On appeal, the Budapest Regional Court upheld the first-instance judgment on 29 January 2004. | 1 |
train | 001-104613 | ENG | UKR | CHAMBER | 2,011 | CASE OF NECHIPORUK AND YONKALO v. UKRAINE | 2 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violations of Art. 5-1;Violation of Art. 5-2;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violations of Art. 6-1;Violation of Art. 6-3-c;Remainder inadmissible;Non-pecuniary damage - award | Angelika Nußberger;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 5. The applicants were born in 1982 and 1981 respectively. The first applicant is serving a prison sentence in Kolomyya Prison no. 41. The second applicant lives in Khmelnytskyy. 6. On 13 March 2004 two persons wearing masks, one of whom was armed with a gun, attacked a certain Ms I. and her son at the door of their flat in Khmelnytskyy. In the course of the fight the armed intruder shot at Ms I., after which they both retreated without any further action and without their faces being seen. Some minutes later Ms I. died. 7. On 20 May 2004, at about 1 p.m., the police apprehended the first applicant in the street and took him to the Pivdenno-Zakhidna Police Station. According to a written explanation addressed by one of the arresting officers to the Chief of the Pivdenno-Zakhidna Police Department, the apprehension was occasioned by the suspicious behaviour of the applicant, whom the police had seen “walking fast and looking around”, entering a building (according to the case-file materials, that was the building in which the applicant lived), leaving it when approached and trying to re-enter it later. In the applicant's submission, he was asked by two officers to go to the police station “to clarify some issues”, to which he agreed. 8. The applicant was body-searched in the police station. As a result, a packet containing a “green substance of plant origin” was discovered in his pocket. According to the applicant, it had been planted on him by the police. 9. On the same day, at 10.45 p.m., on the premises of the police station, the applicant was placed in “administrative detention” on suspicion of illegal drug possession. As noted in the respective police report, the offence on suspicion of which the applicant was detained was “a breach of Article 44 of the Code on Administrative Offences”. 10. The applicant's relatives, while learning about his detention from a witness, were not informed of his whereabouts and enquired unsuccessfully at various police stations and detention facilities in the town, including the Pivdenno-Zakhidna Police Station. 11. On 22 May 2004 an expert report was issued, according to which the substance discovered in the applicant's pocket was not a drug. 12. On 23 May 2004He was however immediately re-arrested in the framework of the criminal proceedings (see below). 13. On 29 May 2004 the police terminated the administrative offence proceedings, finding that there was no case to answer. 14. The applicant's account of the events of 21 May 2004 is as follows. During the night of 20 to 21 May 2004 he was taken from the cell to an office in the Pivdenno-Zakhidna Police Station, where the police officers R.O. and M.D. urged him, under threat of violence, to confess that he had murdered Ms I. As the applicant refused to confess, at about 4 a.m. those officers brought in a manual electricity generator. The applicant was handcuffed and suspended from a metal bar between two tables, with naked wires from the generator attached to his ankles and coccyx. One of the officers, R.O., administered electric shocks to the applicant, while the other officer, M.D., gagged his mouth with a sofa cushion. At about 6.30 a.m. the applicant lost consciousness. After he had recovered consciousness, several officers took it in turns to beat him until 8 p.m., having previously put a bullet-proof jacket on him and covered his head with a pillow. In the meantime, at about 4 p.m., the applicant heard his wife (the second applicant) being questioned in the neighbouring office. One of the officers entered the office where the applicant was, and asked his colleague: “Do you think she would be able to survive what he has gone through?” The applicant then wrote his first confession, allegedly under dictation from a police officer. He stated that he had committed the murder of Ms I. together with a certain Mr M. At 10.05 p.m. the applicant was placed in the Khmelnytskyy Temporary Detention Facility (the “Khmelnytskyy ITT”). 15. The Government did not submit their version of the events of 21 May 2004, apart from mentioning the first applicant's placement in the Khmelnytskyy ITT. 16. At some point on 21 May 2004 the applicant was taken to the investigator in the Khmelnytskyy City Prosecutor's Office (“the KCPO”), to whom he complained about his alleged torture by electric shocks. 17. On 24 May 2004 the applicant repeated his complaint to the investigator during questioning. On the same day he was examined by a doctor of the Khmelnytskyy Regional Forensic Medical Bureau, who noted that his both ankles had sores of 2.5 cm x 1.5 cm and 2.3 cm x 0.9 cm respectively. The doctor concluded that those injuries were minor and could have been inflicted on the applicant with blunt objects some three days earlier. Given their nature, which the doctor described as “unspecific”, he expressed doubt as to the plausibility of the applicant's allegation that electric current had been applied to him. 18. On 26 May 2004 the applicant's lawyer and relatives complained to the KCPO that he had been tortured during the first hours of 21 May 2004 by two police officers, R.O. and D. They noted that the doctor who had examined the applicant on 23 May 2003 had ignored a number of pinpoint sores on his ankles and that the medical report had been inaccurate. The complainants sought an investigation into the matter and a new medical examination of the first applicant. 19. On the same day the first applicant raised the ill-treatment complaint before the Khmelnytskyy City Court during the examination of the prosecutor's request for him to be remanded in custody (see paragraph 41 below). The court allegedly ignored his complaint. 20. Later on the same day the first applicant was allegedly beaten again by police officers, who had previously put a bullet-proof jacket on him. He confessed to the crimes again. 21. On 7 June 2004 the Pivdenno-Zakhidna Police Department examined the office in which the first applicant's questioning had been conducted on 21 May 2004 and issued a report according to which “there were no foreign objects discovered there which could have been used for inflicting bodily injuries”. 22. On 10 June 2004 the first applicant underwent another forensic medical examination ordered by the investigator. According to its report, twenty pinpoint sores had been discovered on the applicant's feet and ankles, each about 0.3 cm wide and 0.2 cm long. A purple bruise, 3 cm x 2 cm, was discovered on the back of his right thigh. The doctor concluded that the injuries were minor and could have been inflicted with blunt objects, possibly on 24 May 2004. The report mentioned: “There is no medical indication that the injuries were caused by an electric current”. 23. On 15 June 2004 the Khmelnytskyy Regional Police Department issued a report of its internal investigation in which it found the first applicant's allegation of his ill-treatment in police custody to be unsubstantiated. The report was based on the questioning of the police officers involved, who denied any coercion, as well as the medical findings of 24 May and the office examination report of 7 June 2004. 24. On 18 June 2004 the KCPO issued a decision refusing criminal prosecution of the police officers for lack of corpus delicti in their actions. It was mainly based on the questioning of the police officers involved and the findings of the medical reports of 24 May and 10 June 2004. 25. The first applicant challenged that refusal both separately and in the course of his own trial. In September 2005 the KCPO informed him that his complaints about his alleged ill-treatment by the police had been added to his own case file and would be considered in the course of his trial. 26. Overall, the prosecutor's refusal on 18 June 2004 to bring proceedings against the police officers involved to establish their criminal liability was quashed and subsequently upheld three times. Having quashed it for the last time on 28 March 2007, the Khmelnytskyy Regional Court of Appeal (“the Khmelnytskyy Regional Court”) also referred to the fact that the first applicant's ill-treatment complaint had been included in the case file concerning his own criminal case and was to be examined in the context of his trial (see also paragraph 95 below). 27. On 22 June 2004 the first applicant was transferred from the Khmelnytskyy ITT to the Pre-Trial Detention Centre (“the SIZO”). According to the Government, he did not raise any allegation about illtreatment before the ITT or the SIZO medical personnel or administration. 28. On 20 July 2004 the first applicant was allegedly beaten up again by the police officers who had escorted him to the court for a decision regarding his detention. On the same date his father raised a complaint in that regard before the General Prosecutor's Office (“the GPO”). 29. The applicant's father also complained about the alleged illtreatment of the applicant to the hotline of the Organised Crime Combating Unit of the Khmelnytskyy Regional Police Department. 30. On 19 August 2004 the aforementioned authority decided to forward the case to the Khmelnytskyy Regional Prosecutor's Office (“the KRPO”) given the inability of its own investigation to establish the truth. 31. In June 2005 the first applicant's lawyer asked a licensed private forensic-medical centre for an expert's conclusion regarding the following: (a) whether the findings of the medical reports of 24 May and 10 June 2004 provided grounds to state that the injuries to the applicant's ankles might have been caused by blunt objects; (b) what marks typically appeared on the skin in cases of direct contact with electric current and whether the marks on the applicant's body were of that nature; (c) what injuries could be caused if a bullet-proof jacket was put on the person before beating. 32. On 29 June 2005 two experts of the aforementioned centre, with twenty-three and four years of experience respectively, issued a report with the following conclusions: the first applicant's injuries could not have been caused by blunt objects; their number and features indicated that they might have been inflicted on 21 May 2004 by contacts, possibly multiple ones, with naked electric wires. As to the question about injuries from beatings inflicted through a bullet-proof jacket, the doctors referred to statements from their colleagues at the Khmelnytskyy Regional Forensic Medical Bureau given in the course of the trial, according to which in such cases internal injuries could be inflicted. They could be identified by X-ray, whereas the first applicant had not been X-rayed. 33. As is apparent from the ruling of the Shepetivka Court of 10 July 2006 (see paragraph 82 below), the above medical report had been included in the first applicant's case file. 34. The facts concerning the investigation into the applicant's illtreatment allegation in the course of his trial are summarised below in the sections pertaining to the trial. 35. On 21 May 2004 the first applicant confessed to the armed assault and murder of Ms I. (see also paragraph 14 above). 36. On the same date the investigator applied to the Khmelnytskyy City Court for authorisation to search two flats where the first applicant's domicile was registered and where he actually lived. As noted in the application, the investigation had revealed that the applicant might have been involved in the murder and that significant evidence might be found at the place of his residence and/or official domicile. 37. On the same day the Khmelnytskyy City Court authorised the requested searches. 38. At about 9 p.m. the police searched the flat where the first applicant lived with his wife (the second applicant). Later that same evening they searched his parents' flat where his domicile was registered. Apparently the searches did not reveal anything of relevance to the investigation. 39. On 23 May 2004 a criminal case was opened against the first applicant on suspicion of assault with intent to commit robbery and murder for profit, and he was arrested by the investigator in the context of the criminal proceedings. The investigator documented the arrest at 12 a.m. by filling in a document template entitled “Record of a suspect's arrest”. The reasons for the arrest were included in the pre-printed part of the template and read as follows: crime committed, provides grounds for his detention”. In the line “Explanations of the detainee” it was noted that the first applicant “had not given any explanations”. The applicant had been body-searched, with “nothing having been discovered”. On the same day he withdrew his earlier confessions, alleging they had been extracted by force. 40. On 26 May 2004 the KCPO requested the Khmelnytskyy City Court to remand the applicant in custody, referring to strong evidence against him and to the fact that he was suspected of having committed serious crimes. According to the request, on 21 May 2004 the first applicant had walked into the Pivdenno-Zakhidna Police Station and had given himself up to the police, confessing to assault and murder. It then stated that he had been detained on suspicion of the aforementioned crimes on 23 May 2004. 41. On the same day, 26 May 2004, the Khmelnytskyy City Court, following a hearing with the participation of the first applicant and the lawyer contracted by his parents, Mr Ma. (see § 53 below), allowed the prosecutor's request and remanded the applicant in custody. It referred to the gravity of the charges against him and the inherent risk of his absconding or obstructing justice. It was noted in the aforementioned ruling that it could be appealed against within three days. 42. The case file contains a copy of the first applicant's written statement dated 28 May 2004, according to which he refused to make any statement in the course of the pre-trial investigation, relying on Article 63 of the Constitution. At the same time it transpires from some other documents that on the aforementioned date the applicant made another confession. According to the first applicant, he confessed again after his alleged beating by police officers in the Khmelnytskyy KCPO and the confession was dictated by the investigator. 43. On 1 June 2004 the first applicant again confessed to those crimes in the presence of his lawyer (Mr Ma.). According to him, those confessions were made in the presence of the police officers involved in his alleged illtreatment. The record of his questioning of 1 June 2004 contained both his confession and his note “I do not admit my guilt”. 44. On 2 June 2004 a certain Mr M. was arrested on the same charges as those laid against the applicant and confessed to the crimes after his alleged beating by police officers (as he would later complain during his trial). 45. On 5 June 2004 a confrontation was held between the applicant and Mr M., during which the first applicant repeated his confession in the presence of the appointed lawyer Mr Ko. (see paragraph 52 below). 46. On 15 July 2004 the first applicant, in the presence of the lawyer Mr Ma., retracted his earlier confessions as having been given under duress and pleaded not guilty. 47. On 20 July 2004 the Khmelnytskyy City Court, acting at the prosecutor's request, extended the term of the first applicant's detention to 23 September 2004, referring to the seriousness of the charges against him and to the inherent risk of his absconding, as well as the possibility of his impeding the investigation which had not yet been completed. 48. On 31 August 2004 the charges against the first applicant were changed from premeditated murder to grievous bodily harm causing death. Both co-accused were also charged with violent robbery and unlawful possession of weapons. 49. On 3 September 2004 the investigation was declared complete, and the first applicant and Mr M. received access to the case file. 50. On 22 September 2004 the case was sent to the Khmelnytskyy City Court. 51. According to the first applicant, he was not legally represented during the period from 20 to 24 May 2004. 52. The Government maintained that on 23 May 2004 a lawyer (Mr Ko.) was appointed for the applicant. 53. On 24 May 2004 the first applicant's parents entered into an agreement with a private lawyer, Mr Ma., for legal representation of the applicant in the criminal proceedings against him. 54. On 25 May 2004 Mr Ma. received from the investigator dealing with the case a written permit for his meetings with the first applicant in the Khmelnytskyy ITT, where his client was detained. 55. On 27 May 2004 the first applicant refused the services of the appointed lawyer Mr Ko. and expressed his wish to be represented by Mr Ma. During some investigative activities thereafter he however agreed to be represented by Mr Ko. 56. On 2 June 2004 Mr Ma. was not admitted to see the applicant on the ground that the permit allegedly contained flaws. On the following day he complained about that to the Chief of the Khmelnytskyy Police Department. 57. On 18 June 2004 Mr Ma. also complained to the KCPO that the investigator was obstructing his participation in the investigative measures. He submitted in particular that he had not been duly notified of the investigative activities, which were conducted in his absence. Furthermore, he complained that the lawyer appointed for the applicant was incompetent. 58. On 24 June 2004 the Chief of the Khmelnytskyy Police Department wrote to Mr Ma. that indeed the ITT official had wrongly impeded his meetings with the applicant for which he had been disciplined. 59. On 14 October 2004 the Khmelnytskyy City Court held a preparatory hearing at which it maintained the first applicant's detention. The materials submitted by the parties to the Court did not contain a copy of that ruling. 60. On 5 May 2005 the Khmelnytskyy City Court, under the presidency of Judge P., acquitted the applicant on all the charges, while the other co-defendant, Mr M., was found guilty of an unrelated instance of illegal possession of weapons (a hunting gun and a box of bullets – of no relation to the murder of Ms I. – had been discovered in his garage). The court found that there was no evidence of the defendants' guilt and that their confessions had been extracted by force. 61. The judgment noted as follows: “As it had been stated by the defendants in the course of the pre-trial investigation and later confirmed during the trial, ... the police had applied physical and psychological violence to them with the intention of coercing them into confessing to the murder which they had not committed and the circumstances of which they had found out from the police. There are no doubts about that, as it clearly transpires from the case file that the defendants were under arrest when they wrote their confessions. They name specific officers of the Pivdenno-Zakhidna Police Station as behaving violently towards them, and give a detailed account of their actions. The medical examinations held at the defendants' requests [...] revealed injuries to their bodies. During the pre-trial investigation [the applicant and Mr M.] retracted their confessions to the crime against the family of [Ms I]. and complained to various authorities that they had been illtreated in police custody.” 62. The court noted that both the circumstances and motives of the crime were presented inconsistently in the confessions of the co-defendants. It observed that they had attracted the suspicion of the police only because the son of Ms I., who had happened to see them together in the street, believed that their statures and size were similar to those of the offenders. The court found that that investigation had wrongly taken over that wholly unsubstantiated argument. Moreover, it recognised all the findings of the investigation as mere presumptions not corroborated by any evidence. 63. The court further observed that the pre-trial investigation relied “as one of the key pieces of evidence proving the defendants' guilt” on the statements of a taxi driver, Mr K., who stated that he had taken two passengers somewhere close to the building where the murder took place. The court noted, however, that his description of those passengers changed on 22 March 2004 in comparison with that given earlier on 13 March 2004. While Mr K. had not been able to indicate any specific features of their appearance, he later recognised the first applicant from a choice of two persons “by his size”. 64. As to the other evidence, three witnesses had seen two persons running down the stairs close to the murder site, but they were not able to identify them as the defendants. The investigation had also found a box containing bullets at Mr M.'s home, but they were of a different type from the one with which the victim had been shot. 65. The court lifted the preventive measure concerning the applicant. 66. On the same day, 5 May 2005, the Khmelnytskyy City Court issued a separate ruling, by which it brought to the attention of the KRPO, the Khmelnytskyy Regional Police Department and the Khmelnytskyy Bureau of Forensic Medical Expertise the following violations: “[the defendants] had been detained for fictitious reasons; they had not been examined in the presence of attested witnesses; neither the reasons for the detention nor their right to defence had been explained to them; and their relatives had not been informed that they were detained”. 67. It was also noted in the separate ruling that the defendants had consistently complained that they had been ill-treated in police custody, naming the police officers involved, and that injuries had been discovered on their bodies. The court considered that the doctor who had examined the applicant on 24 May 2004 had come to a superficial and unfounded conclusion that there were no injuries caused by electric current. 68. On 5 May 2005 the Khmelnytskyy City Court also issued another ruling, by which it quashed the prosecutor's decision of 18 June 2004 not to open a criminal case into the applicant's allegation that he had been ill-treated in police custody. 69. Messrs I. (the son and husband of the deceased Ms I. having victim status in the proceedings) appealed against the judgment of 5 May 2005. In June 2005 they challenged before the Supreme Court the composition of the Khmelnytskyy Regional Court of Appeal, which was to examine their appeal, on the ground that some of its judges allegedly had friendly relations with Judge P. under whose presidency the impugned judgment had been delivered at first instance. They further contended that certain judges there were members of the regional lawyers' qualification and disciplinary board to which the defendants' lawyers also belonged. Messrs I. therefore sought the transfer of the case to any other regional appellate court. 70. On 23 June 2005 the Deputy President of the Supreme Court instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Regional Court of Appeal (“the Ternopil Court”) “with a view to ensuring the most comprehensive and objective examination of the case”. 71. On 11 August 2005 the Ternopil Court found that the first-instance court had failed to assess all the evidence in the case thoroughly and conclusively and that it had accepted the defendants' allegations that they had been ill-treated in police custody, without having taken into consideration the related findings of the prosecution authorities. It also remarked that no assessment had been made of the confessions by the defendants in the presence of their lawyers. The Ternopil Court noted that some hearings had been held without the prosecutor's participation, and that the Khmelnytskyy City Court had not responded to the victims' request for remittal of the case for additional investigation, by which they had sought application of a stricter provision of the Criminal Code. On those grounds, the Ternopil Court quashed both the acquittal and the two rulings of the Khmelnytskyy City Court of 5 May 2005, and remitted the case to it for fresh examination by a different panel. 72. The Ternopil Court rejected the victims' request for transfer of the case to any other trial court in the Ternopil region, as such a transfer would be contrary to the Code of Criminal Procedure (“the CCP”). 73. In August and September 2005 the lawyer representing the victims requested the Supreme Court to transfer the case from the Khmelnytskyy City Court to a court in a different region. He noted that Judge P. under whose presidency the case had earlier been examined (see paragraph 60 above), was the Deputy President of the Khmelnytskyy City Court and that he would therefore influence the proceedings regardless of the panel's composition. 74. On 20 September 2005 the First Deputy President of the Supreme Court, while finding no grounds to transfer the case to a different region, instructed the Khmelnytskyy Regional Court to consider transferring it to another court within the Khmelnytskyy region. 75. On 29 September 2005 the Khmelnytskyy Regional Court transferred the case to the Shepetivka City Court (“the Shepetivka Court”), within the Khmelnytskyy region. 76. On 21 November 2005 the Shepetivka Court held a preparatory hearing, during which the victims unsuccessfully sought a change of preventive measure in respect of the defendants. 77. On 4 January 2006 the Shepetivka Court again rejected the victims' request for pre-trial detention of the co-defendants instead of an undertaking not to abscond. The court noted that the co-defendants had not been evading or impeding the investigation. 78. On 10 July 2006 the Shepetivka Court remitted the case to the KCPO for additional investigation, indicating thirty-seven shortcomings in the investigation previously undertaken, which could not be remedied in the course of the trial. 79. The court noted, inter alia, that the defendants' confessions lacked consistency, as did the statements by the witnesses and the victim (Mr I., the son of Ms I.). It observed in particular that Mr I. had initially stated on several occasions that he and his mother had been attacked by their business competitors. Later in the trial, he changed both his description of the perpetrators' appearance (which then contradicted that given by some other witnesses) and his version as to who they might have been. Furthermore, the case file contained a report from the police, according to which one of the taxi drivers had heard from a neighbour of Ms I. that the latter had been receiving threatening telephone calls because she had reduced the prices of her products. There was no further investigation into the matter. 80. The court also noted that the investigator had given no reasoning for having changed the charges against the applicant from murder to inflicting grievous bodily harm causing death, with a new charge of illegal possession of weapons added. 81. The Shepetivka Court next expressed its concern over the way the investigation had received the statements by the taxi driver Mr K. (according to the court's ruling – a key witness in the case), who had recognised the applicant as one of his two passengers whom he had driven to the building where the crime was committed, around the time of the murder, had waited for there for about half an hour and had then driven to a café. The court noted that on 22 March 2004 the investigator had questioned Mr K. as a witness in the case concerning the murder of Ms I., while at the same time Mr K. was detained in the Khmelnytskyy ITT on suspicion of illegal drug possession. While both Mr K. and the investigator denied the above in the course of the applicant's trial, the ITT administration confirmed that on the aforementioned date, which was also the documented date of Mr K.'s questioning as a witness, he had been in detention in the ITT. Moreover, according to the register of detainees' movements, on the above-mentioned date Mr K. was in the ITT. 82. Furthermore, the court noted that the defendants' allegations that they had been ill-treated in police custody had not been duly investigated. Its critical remarks included the following: “The [KCPO] refused to open a criminal case relying on the absolutely identical explanations of the [police officers], who are interested persons and whom the defendants accuse of torture, as well as the conclusions of the internal investigation undertaken by senior [police officers] in respect of their own subordinates, which the court considers unacceptable. At the same time, the [KCPO] failed to clarify why, for what reasons, under what circumstances and in what manner [the applicant] sustained the injuries while being held in the ITT, but not in the SIZO, for over a month. ... The case file contains a forensic medical report, according to which [the applicant's] injuries might have originated from electric shocks. ... Given the discrepancies in the medical findings ..., an additional forensic medical examination should be undertaken ...” 83. On the same day, 10 July 2006, the Shepetivka Court issued a separate ruling indicating a number of gross violations of the criminal procedural legislation in the course of the pre-trial investigation, similar to those mentioned in the separate ruling of the Khmelnytskyy City Court of 5 May 2005. The court again criticised the investigation undertaken into the allegations of both defendants about their ill-treatment in police custody. It made, in particular, the following observation: “The prosecutor entrusted the official investigation into the use of force on the defendants directly to the supervisors of the officers whom the defendants accuse of torture, and that investigation yielded a decision that there had been nothing criminal in the actions of those officers. The court considers this unacceptable.” 84. Furthermore, the court noted that the investigators had imposed on the applicant an appointed lawyer, although the applicant had already been represented by a lawyer of his own choosing, who remained uninformed about the investigative measures undertaken. 85. The victims appealed against the aforementioned rulings of the Shepetivka Court. At the same time, they opposed the examination of the case by the Khmelnytskyy Regional Court. 86. On 28 July 2006 the First Deputy President of the Supreme Court again instructed the Khmelnytskyy Regional Court to transfer the case to the Ternopil Court, referring to the reasoning given in support of such transfer in his letter of 23 June 2005. 87. On 4 August 2006 the Khmelnytskyy Regional Court sent the case file to the Ternopil Court. 88. On 4 October 2006 the Ternopil Court quashed, on formal grounds, the separate ruling of the Shepetivka Court of 10 July 2006 and upheld the decision of the KCPO of 18 June 2004 refusing to institute criminal proceedings against police officers on the first applicant's complaint that he had been ill-treated. The Ternopil Court concluded that the requirements of Article 236-1 of the CCP had not been complied with: there had been no written application for quashing the refusal of 18 June 2004, and, in any event, such an application would have had to be lodged with the Khmelnytskyy City Court. 89. The Ternopil Court also excluded from the Shepetivka Court's ruling of 10 July 2006 remitting the case for additional investigation all issues other than those concerning the classification of the defendants' actions under the Criminal Code and assessment of the testimony of the son of Ms I. Thus, the Ternopil Court noted in its ruling as follows: “In the light of all the materials of the case, namely, the collected evidence, the nature of the criminal actions, the instrument of the crime being a firearm, the conclusions of the forensic medical expert on the location and nature of the wounds, the bench considers that the victim's ... life was taken deliberately and thus there is every ground to classify the defendants' actions under a different criminal provision envisaging liability for a more grievous crime”. 90. On 22 November 2006, at 10.50 a.m., the first applicant was arrested by the investigator on suspicion of premeditated murder. The investigator substantiated this decision with the standard wording of the arrest report template, which read as follows: “the eyewitnesses, including the victims, directly indicate this person as the one who committed the crime”. 91. On 23 November 2006 the KCPO ordered the applicant's release with a reference to the criminal procedure provisions concerning a replacement of one preventive measure by another. 92. On the same date the first applicant complained to the KRPO about the alleged unlawfulness of his detention during the aforementioned period. 93. In line with the aforementioned ruling of the Ternopil Court of 4 October 2006 (see paragraph 88 above), the first applicant challenged the KCPO's ruling of 18 July 2004 before the Khmelnytskyy City Court. 94. On 26 February 2007 the Khmelnytskyy City Court quashed the ruling of 18 June 2004 and remitted the case to the KCPO, allowing the complaint. 95. On 28 March 2007 the Khmelnytskyy Regional Court quashed the aforementioned ruling of 26 February 2007 on the KCPO's appeal and ruled that the investigation into the alleged ill-treatment was to take place within the first applicant's own criminal case, which was being examined by the Ternopil Court. 96. On 30 November 2006 the investigator brought formal charges against the first applicant on two counts of premeditated murder for profit (considering that he had also attempted to kill the son of Ms I. and failed for reasons beyond his control), violent robbery and illegal possession of weapons. 97. On the same day the investigator applied to the Khmelnytskyy City Court for replacement of the preventive measure in respect of the first applicant from the undertaking not to abscond to pre-trial detention. Referring to the seriousness of the charges as advanced on the same date and the inherent risk of absconding, the investigator submitted that detention was a more appropriate preventive measure. 98. On 18 December 2006 the Khmelnytskyy City Court – at the hearing with the participation of the first applicant and his lawyer – examined the aforementioned application of the investigator as well as the first applicant's complaint about the alleged unlawfulness of his detention from 22 to 23 November 2006. The court lifted the applicant's undertaking not to abscond and remanded him in custody at the prosecutor's request. It dismissed as unsubstantiated the applicant's complaint about his arrest of 22 November 2006. The court gave as the reasons for the new preventive measure the fact that the applicant was suspected of serious crimes and that he could abscond or hinder the establishment of the truth. The court referred to unspecified statements made by the victims. As regards the applicant's complaint about his detention from 22 to 23 November 2006, it noted that there were no reasons to consider it unlawful. 99. The first applicant's father and lawyer appealed, submitting that the applicant had always complied with the investigator's summons while under the undertaking not to abscond and that the allegations of the victim's family about his attempts to influence their testimony had been confined to their suspicion that “somebody had been following them”. Furthermore, they noted that the first applicant had health problems, referring to the fact that at the time of the arrest order he was undergoing in-patient treatment in a neurological hospital, of which he provided documentary evidence. They also submitted that he had a permanent place of residence, no criminal record in the past, had a small baby to support, and was studying at a university. They therefore insisted that there were no reasons to believe that he would abscond. The first applicant's representatives also challenged the finding of the Khmelnytskyy City Court concerning his detention from 22 to 23 November 2006. They did not make any comments or complaints regarding their or the applicant's access to the case-file materials prior to the examination of the prosecutor's appeal by the court on 18 December 2006. 100. On 21 December 2006 the Khmelnytskyy Regional Court of Appeal, following a hearing with the participation of the first applicant's lawyer and father, rejected the applicant's appeal and upheld his detention with a reference to the gravity of the charges against him and “the witnesses' fears for their safety”. It also dismissed the applicant's complaint concerning his detention from 22 to 23 November 2006 having found “no significant grounds for recognising [it] unlawful”. 101. On the same date the Khmelnytskyy Regional Court extended the first applicant's pre-trial detention, on the investigator's application, to five months (to 23 January 2007 – with his detention from 23 May to 22 September 2004 included therein). The court referred to the gravity of the charges against the applicant and his unspecified attempts to impede establishment of the truth, as well as to the significant volume of the case file. 102. On 23 January 2007 the investigator applied to the Khmelnytskyy Regional Court for another extension of the first applicant's pre-trial detention, referring to the scope of the remaining investigative work. 103. In January 2007 (the date is illegible) the Khmelnytskyy Regional Court extended the applicant's pre-trial detention to six months (to 23 February 2007). It founded its decision on the time required for the applicant to study the case file, the seriousness of the charges, and his “negative behaviour when at large”. 104. On 19 February 2007 the first applicant was indicted, and the case was sent to the Khmelnytskyy Regional Court of Appeal. 105. On an unspecified date in 2007 it was decided that the Ternopil Court would try the case as a court of first instance. 106. On 21 March 2007 the Ternopil Court held a preparatory hearing. The court upheld the first applicant's detention, having found that “there [were] no grounds for changing the preventive measure”. It did not set any time-limits for the detention. 107. On 31 August 2007 the Ternopil Court found the first applicant guilty of premeditated murder for profit committed following a conspiracy with a group of persons, assault with intent to rob, and illegal possession of weapons, and sentenced him to fifteen years' imprisonment. 108. The court relied, inter alia, on the statements by the taxi driver Mr K., according to which he had taken two passengers to the building where the crime was committed, waited for them there for about half an hour and then driven them away. He recognised the applicant “by the features of his face, shape of the nose and his hair” as being one of those passengers. Mr K. denied that any pressure had been put on him by the police. He mentioned that he had been questioned in the prosecutor's office, but did not remember any details about that questioning. The investigator who had questioned Mr K. stated that the questioning had taken place in the prosecutor's office and on a different date than that mentioned in the questioning report, with the discrepancy in the dates being a typing error. Mr K. denied as inaccurate the first applicant's allegation that he had admitted to the latter having slandered him under pressure from the police. The court noted as follows: “There is no information from which it could be discerned that unlawful investigation methods were applied to witness [Mr K.] entailing his incriminating statements against the defendants as they allege. The allegation of [the first applicant] that [Mr K.] was arrested on 19 March 2004, remained in police custody until 22 March 2004 and that is why he recognised [the first applicant as the offender] is unfounded. It is not corroborated by the materials of the case and cannot be interpreted as an indication of any pressure on [Mr K.] with a view to incriminating the defendants. The witness [Mr K.] denied this fact during the court hearing in a categorical manner, as well as denying the allegation that he had admitted to [the first applicant] having incriminated him under pressure from the police, as [the first applicant] has submitted many times. The panel considers the statements of [Mr K.] given during the pre-trial investigation and the trial to be truthful, as both during the pre-trial investigation and during the judicial proceedings they were identical, consistent in detail and without any considerable discrepancies as alleged by the defendants and their defence. The court therefore takes them into consideration in the basis of the conviction as proof of the defendants' ... guilt, being concordant with the other evidence.” 109. The court also took into account the testimony of the son of Ms I., who thought he had recognised the first applicant and the other co-defendant by their postures and gestures, having seen them together in the street. It further took note of statements from several witnesses who had seen two persons wearing masks close to the crime scene. The Ternopil Court relied on the defendants' confessions given at the initial stages of the pre-trial investigation. It attributed some discrepancies between the defendants' versions to the voluntary nature of their confessions. The police officers allegedly involved in the defendants' ill-treatment were questioned in the trial and denied those allegations. The court also noted that the first applicant had not complained about his ill-treatment to the ITT or to the SIZO authorities. It questioned the doctors who had examined the first applicant in May and June 2004, and they again concluded that his injuries were not typical of the effects of electric current. Furthermore, the court relied on the ruling of the KCPO of 18 June 2004 refusing to open a criminal case in respect of the first applicant's complaint. In the light of those considerations, the trial court found the first applicant's allegation that he had been ill-treated unsubstantiated. 110. The term of the first applicant's imprisonment was to be calculated from 18 December 2006 and included his detention from 23 May 2004 to 5 May 2005 and from 22 to 23 November 2006. 111. The first applicant lodged a cassation appeal, alleging, inter alia, that his guilt had never been proven and that his conviction was primarily based on his confessions extracted by torture and in the absence of legal assistance. He noted that the forensic medical report corroborating his allegation of having been tortured by electric shocks had remained ignored. 112. Furthermore, the first applicant stressed that the statements of Mr K., on which the trial court had relied as proof of his guilt, had drastically changed over time to his disadvantage and in suspicious circumstances. He submitted in particular that Mr K. had initially stated that he did not remember any features of his passengers of 13 March 2004. The first applicant further noted that on 19 March 2004 the police had apprehended Mr K. for being drunk. During his subsequent body-search a package of substance of “plant origin” had been discovered on him, and Mr K. had been arrested. It was during his administrative detention that he had “remembered” some general features of one of his passengers. The first applicant referred to specific pages in the case file quoting Mr K. as having stated during the trial that “there [was] a significant difference between those to whom [he] had given a lift [on 13 March 2004] and the defendants” and that the investigator had included some untruthful information in the records of his questioning during the pre-trial investigation. The applicant also submitted that the case file contained a transcript (by a technical expert) of his conversation with Mr K. made in 2006 (apparently during the period when the first applicant had been at large), in which Mr K. had stated that the police had forced him to incriminate the defendants under threat of being accused himself of the murder of Ms I., that drugs had been planted on him and that he had made the incriminatory statements while being detained in the ITT. The first applicant stressed that Mr K. had admitted in court that he had indeed met him in 2006 and that their conversation could have been recorded. He further complained that although the defence had sought the examination of the aforementioned audiotape in the hearing and putting questions in that respect to Mr K., the trial court had dismissed that motion without any explanations. It was also mentioned in the cassation appeal that the case file contained a copy of the investigator's ruling of 31 August 2004 about refusal to open a criminal case against Mr K. without reference to any provision of the Criminal Code – a fact, which, according to the first applicant, had remained without assessment. 113. On 20 March 2008 the Supreme Court upheld the first applicant's conviction. It referred mainly to his confessions during the pre-trial investigation, including those given in the presence of his lawyer, which it found to be corroborated by other evidence in the case. As to the first applicant's allegation that he had been ill-treated in police custody, the court noted that it had studied the videotape of the investigative activities and found that the applicant had given his confessional account of the events in a free and detailed manner and that there were no injuries on his body. Furthermore, according to the above ruling of the Supreme Court, the first applicant “had never referred to any specific persons who had allegedly illtreated him” and that he “had always replied that he was well when asked about his health”. The court considered that all the persons involved in the investigation of the applicant's allegation of ill-treatment had been questioned in the course of the trial and all the respective medical reports had been studied. In the light of all the aforementioned, it found the complaint of ill-treatment to be wholly unsubstantiated. 114. As regards the statements of witness Mr K., the Supreme Court noted that he “had been examined many times both during the pre-trial investigation and the trial” and that he had recognised the first applicant “without any hesitation”. It further noted as follows: “There is no information from which it could be discerned that the law-enforcement authorities applied unlawful methods to this witness, and therefore his statements were rightly taken into consideration in the basis of the conviction”. 115. The second applicant worked at a factory run by the victim's family. At the end of May 2004 she was in her eighth month of pregnancy. 116. On 21 May 2004, at about 4.00 p.m., the second applicant was at her workplace. The manager asked her to come in for a work-related conversation, when two plain-clothes police officers, allegedly without any explanation and not allowing her to change out of her uniform into her own clothes, took her to the Pivdenno-Zakhidna Police Station. The second applicant was placed there in a room she described as very cold. The police officers, as well as the widower of Ms I., who was also present at the police station, allegedly shouted at her, threatened her with imprisonment and pushed her in the back, pressurising her to testify against her husband. 117. The second applicant wrote that her husband (the first applicant) had been with her at home at the time of the murder. 118. After the questioning, which lasted for about four hours, the second applicant was taken back to the factory. She had to wait there for some time until the door was opened so that she could change into her own clothes. 119. On 22 May 2004 the second applicant complained to the prosecution authorities about the alleged unlawfulness of her detention on 21 May 2004. 120. On 11 June 2004 the prosecution office wrote to her that the police had not violated any criminal procedure legislation. 121. Articles 28 and 29 of the Constitution, which are relevant to the case, read as follows: Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ... Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the moment of detention, with a reasoned court decision in respect of their holding in custody. Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone who has been detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 122. Articles 59 and 63 concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 123. Article 115 envisages seven to fifteen years' imprisonment as the penalty for premeditated murder and imprisonment of ten to fifteen years or for life as the penalty for premeditated murder for profit and/or committed following conspiracy by a group of persons. 124. Article 121 penalises premeditated infliction of grievous bodily harm causing the victim's death by imprisonment for seven to ten years. 125. Under paragraph 4 of Article 187, assault with intent to rob committed by an organised group or coupled with infliction of grievous bodily harm is punishable by imprisonment for a term of eight to fifteen years, with confiscation of property. 126. Paragraph 1 of Article 263 provides for two to five years' imprisonment for illegal possession and use of weapons. 127. Under Article 371, deliberately unlawful arrest is a crime punishable by a maximum of five years' imprisonment. 128. Article 44 prohibits production, purchase, storage, transport, or dispatch of drugs or psychotropic substances in small quantities without the purpose being trafficking. 129. Article 263 provides for administrative detention on account of an administrative offence for a maximum of three hours. In exceptional cases envisaged in the legislation the duration of the administrative detention may be longer. Persons suspected of a drug offence may be detained for up to three hours for compilation of the offence report. If the identity of the suspect is not known, or if there is a need for a medical examination or clarification of the circumstances in which the drug had been procured, or if the drug needs to be analysed, the administrative detention may last up to three days subject to the prosecutor's notification, or up to ten days – subject to the prosecutor's approval and if the offender's identity is unknown. 130. The provisions concerning the application of preventive measures and their types, time-limits for pre-trial detention and also the grounds for and procedure of detention by an enquiry body (the investigator in the instant case), can be found in the Molodorych v. Ukraine judgment, no. 2161/02, §§ 56-58, 28 October 2010. 131. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33). 132. Under Article 23-2, if the court discovers a violation of law and/or of citizens' rights in the course of a pre-trial enquiry or investigation, or during an examination of a case in a lower-level court, it issues a separate ruling by which it draws the attention of the respective authorities to the established facts and directs them to take certain measures to remedy the situation. Failure to take the requisite measures is considered an administrative offence. 133. Article 45 provides that legal representation during the enquiry, the pre-trial investigation and the trial before the first-instance court is obligatory if, inter alia, the possible penalty is a life sentence. It further specifies that in this case the legal representation must be provided from the moment of the arrest or the laying of charges against the person. 134. Article 97 obliges prosecutors, investigators, bodies of enquiry and judges to accept applications or communications as to the crimes committed or prepared, including in cases that fall outside their competence, and to adopt one of the following decisions within the three-day time limit: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; or (3) to remit the application or communication for further examination according to jurisdiction. 135. Pursuant to paragraphs 2 and 4 of Article 155, persons remanded in custody are held in Pre-Trial Detention Centres (SIZOs, part of the penal system). Exceptionally, they may also be held in Temporary Detention Facilities (ITTs, part of the police infrastructure), but for no longer than three days. If it is impossible to ensure a transfer to a SIZO within the aforementioned time-limit, because of its remote location or lack of infrastructure, a detainee may stay in an ITT for up to ten days. 136. Under Article 236-1, complaints against decisions of an investigator or prosecutor refusing to initiate criminal proceedings may be filed by a person whose interests it concerns with the local court at the place of the respective authority or official. 137. Before the amendments of 21 June 2001, Article 244 had specified that a court ruling following the preparatory hearing prior to a trial had to give reasons in the event of changing the preventive measure. By the aforementioned amendments, that provision was repealed. Article 237, as worded at the material time, obliged the judge of a trial court dealing with the case to consider in the preparatory hearing, inter alia, whether there were grounds for changing, lifting or applying a preventive measure. 138. Under paragraph 1 of Article 370, essential violations of the criminal procedure legislation are those which have impeded or could have impeded the court in the complete and thorough examination of a case and in issuing a lawful, reasoned and just judgment. Paragraph 2 of this Article includes a violation of the right of an accused to defence, as well as a breach of the territorial jurisdiction rules, among such essential violations which warrant the quashing of a judgment in any event (that is, regardless of whether the requirements of paragraph 1 have been met). 139. Chapter 31-A of the Code dealt with complaints against decisions, acts or inactivity on the part of State and local self-government bodies as well as their officials. In particular, Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission on the part of a State body, legal entity or official could lodge a complaint with a court. 140. Articles 1 and 2 (as worded before the amendments of 1 December 2005) can be found in the following judgments respectively: Kobtsev v. Ukraine, no. 7324/02, § 35, 4 April 2006, and Afanasyev v. Ukraine, no. 38722/02, § 52, 5 April 2005). 141. Following the amendments to the Compensation Act of 1 December 2005, the list of cases where the right to compensation would arise was expanded by the following point: “(1-1) where ... unlawfulness of remand and holding in custody ... has been established by a conviction or other judgment of a court (save for rulings on remittal of cases for additional investigation)”. 142. The relevant extracts from Chapter 4.4 provide as follows: “While being held in police stations detainees are particularly exposed to the risk of being beaten or humiliated. ... The Commissioner has been underlining in each annual report that law-enforcement officials systematically subject detainees to torture. ... The Commissioner has emphasised on numerous occasions that one of the main reasons for violence by the police is the actual preservation of the rate of resolved crimes as a benchmark for performance reporting. The police achieve the required statistics of resolved crimes by torturing innocent persons. And the figures in support of this statement are dramatic. ... The following phenomenon was noted in the past and still remains in place. In order to verify whether a person is involved in a crime, he/she is placed under administrative arrest on falsified grounds and subjected to intensive torture with a view of breaking his/her will and extracting a confession to the crime. It is this period when the detainee is particularly exposed to serious risk of loss of life or becoming disabled or being subjected to unbearable humiliation and loss of dignity. ...” 143. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the CPT from 9 to 21 October 2005 [CPT/Inf (2007) 22] read as follows: “... 15. Since the CPT's first visit to Ukraine, the treatment of persons deprived of their liberty by Internal Affairs staff has been a cause of very serious concern. The 2005 visit revealed a slight reduction as regards the scale of the phenomenon of ill-treatment, although not sufficient to dispel the Committee's misgivings. Indeed, in the course of the 2005 visit, the Committee's delegation received a significant number of allegations of deliberate physical ill-treatment of detainees [...] inflicted by operational officers, in particular during initial questioning in district police stations with a view to securing confessions in respect of the criminal offence for which the persons in question were detained or additional confessions relating to unsolved crimes. [...] In some cases, the severity of the ill-treatment alleged – which could also consist of a combination of several forms of ill-treatment – was such that it could be considered as amounting to torture. ... 18. In the light of the delegation's findings, the Committee has no alternative but to revert back to the conclusion it reached in paragraph 20 of its 2002 visit report. Three years later, it has to be said that persons deprived of their liberty by Internal Affairs staff still run a significant risk of being subject to ill-treatment – on occasion, severe ill-treatment/torture – by operational officers, in particular during interrogation.” | 1 |
train | 001-80303 | ENG | TUR | CHAMBER | 2,007 | CASE OF SALDUZ v. TURKEY | 3 | Violation of Art. 6-1;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicant was born in 1984 and lives in Izmir. 5. On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal organisation). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001. 6. On 30 May 2001 the police officers took a statement from the applicant in which he admitted the charges. 7. On 1 June 2001 the applicant was brought before the public prosecutor and then the investigating judge. Before both officials, the applicant denied the content of his police statement, alleging that it had been extracted from him under duress. The same day, the investigating judge remanded the applicant in custody. 8. On 11 July 2001 the public prosecutor at the Izmir State Security Court filed an indictment with the same court, accusing the applicant of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law). 9. On 5 December 2001 the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment. This sentence was then reduced to two and a half years’ imprisonment as the applicant had been less than eighteen years of age at the time of the offence. 10. When delivering its judgment, the Izmir State Security Court had taken into consideration the statements which the applicant had made to the police, the public prosecutor and the investigating judge, as well as his co-defendants’ testimony before the public prosecutor. The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration. The court further took note of the expert report which suggested that the applicant’s handwriting was identical to that on the placard. The court also noted that, according to the arrest report drawn up by the police, the applicant had been among the people who dispersed after the demonstration. 11. On 27 March 2002, the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court. 12. On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed that judgment. | 1 |
train | 001-61007 | ENG | HUN | CHAMBER | 2,003 | CASE OF SIMKO v. HUNGARY | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | null | 8. The applicants were born in 1955 and 1953 respectively and live in Sopron, Hungary. Their previous application (no. 27587/95) was declared inadmissible by a Committee of the Commission on 16 May 1996. 9. Seeking judicial review and compensation for damages on account of administrative decisions taken in a protracted dispute over their licence to sell folk-art items on public premises, the applicants brought an action on 9 October 1992 against the Sopron Mayor's Office (“the 1992 action”). The action was first registered at the Sopron District Court, which on 4 November 1992 issued an order for the completion of the file. The applicants complied with this order on 12 November 1992. 10. On 1 March 1993 the District Court rejected the action, holding that it had no competence to hear the case. On 23 March 1993 the applicants appealed. 11. On 5 August 1993 the Győr-Moson-Sopron County Regional Court quashed the District Court's decision. It transferred the case-file to its own competent bench. 12. In the proceedings before the Regional Court, on 16 September and 28 October 1993 orders were issued for the completion of the file. The applicants complied with these orders on 28 September and 5 November 1993, respectively. On 19 November 1993 the defendant authority was eventually notified of the action. 13. Meanwhile, on 1 March 1993, the applicants brought an official liability action in the context of the above-mentioned proceedings before the District Court (“the 1993 action”). The defendant authority was notified of this action on 22 October 1993. On 20 November 1993 the District Court held a hearing and, on 29 November 1993, it transferred the case-file to the Regional Court for reasons of competence. 14. Following a hearing held on 14 December 1993, the Regional Court on 9 February 1994 discontinued the proceedings concerning the applicants' 1992 action. The Regional Court observed that the defendant authority had been notified earlier of the 1993 action and, for that reason, the applicants' claims were to be pursued in the proceedings relating to the latter action. On 21 February 1994 the applicants appealed to the Supreme Court, which, on 13 October 1994, upheld the decision to discontinue the proceedings on the 1992 action. 15. Meanwhile, following repeated exchanges of observations between the parties in the proceedings concerning the 1993 action, the Regional Court held hearings on 25 August and 18 October 1994. Another hearing was scheduled for 25 October 1994. In the context of procedural disputes concerning the applicants' motion to hear certain witnesses, their obligation to pay outstanding stamp duties, as well as questions of legal aid, on 2 November 1995 the Supreme Court decided the applicants' procedural appeals. 16. On 9 July 1996 the Regional Court awarded the applicants compensation in a total amount of 300,000 Hungarian forints (“HUF”), plus accrued interest. The Regional Court dismissed the remainder of their claims. Having reviewed numerous related administrative files and decisions, the Regional Court ruled that the defendant authority's conduct had hindered the applicants in the exercise of their rights derived from their licence to trade on public premises. In reasoning its ten-page decision, the Regional Court relied on documentary evidence. 17. On 6 August 1996 the applicants appealed. On 2 September 1996 they supplemented their appeal. 18. On 5 February 1998 the Supreme Court, acting as a second instance jurisdiction, held a hearing. On 13 February 1998 the Supreme Court upheld the Regional Court's decision. The decision was served on the applicants on 8 April 1998. | 1 |
train | 001-23015 | ENG | SVK | ADMISSIBILITY | 2,003 | FASANG v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Ján Fašang, is a Slovakian national, who was born in 1954 and lives in Hrušov. The facts of the case, as submitted by the applicant, may be summarised as follows. On 22 February 1992 the applicant married. On 21 May 1993 his wife gave birth to a boy. In accordance with Section 51(1) of the Family Act, the applicant was presumed to be the child’s father. In February 1996 the applicant’s wife moved to a different place together with the child. On 3 May 1996 the Banská Bystrica District Court granted the request of the applicant’s wife that she be granted the custody of the child. It further ordered the applicant to contribute to the child’s maintenance. On 1 August 1996 the Banská Bystrica Regional Court upheld the District Court’s judgment. Subsequently the applicant claimed that the marriage be dissolved. In his action he alleged, inter alia, that he had had sexual intercourse with his wife in January 1992 for the last time, and that they had not lived in a common household since February 1996. The applicant further requested that the child be placed in his custody. On 11 July 1997 the Veľký Krtíš District Court granted the divorce of the applicant and of his wife. The child was placed in the custody of the mother and the applicant was ordered to pay maintenance. The applicant appealed against the decision on the child’s maintenance and claimed that he had not fathered the child. On 30 September 1997 the Banská Bystrica Regional Court upheld the relevant part of the District Court’s judgment. The appellate court’s decision stated that the applicant was presumed to be the child’s father in accordance with Section 51(1) of the Family Act. On 19 November 1997 the applicant requested that the General Prosecutor bring proceedings on his behalf with a view to determining whether or not he had fathered the child born to his former wife. He explained that he did not consider himself to be the natural father of the child and that the issue could reliably be determined only by means of a blood test. The applicant further stated that he was ready to bear the costs of such a test. On 5 February 1998 the Banská Bystrica Regional Prosecutor’s Office informed the applicant that it had been open to him to deny the paternity in respect of the child within six months after the child’s birth in accordance with Section 57(1) of the Family Act. The letter further stated that it had not been reliably shown that the applicant had not fathered the child. Furthermore, a blood test could not be carried out because of disagreement of the applicant’s former wife. In those circumstances, the requirements laid down in Section 62 of the Family Act for a paternity action to be filed on the applicant’s behalf were not met. On 24 June 1999 the applicant claimed before the Banská Bystrica District Court that he had not fathered the child. He requested that a blood test be ordered with a view to determining this issue. The applicant explained that his last sexual intercourse with the child’s mother had taken place in January 1992, whereas the child had been born in May 1993. On 15 February 2001 the District Court dismissed the applicant’s claim as having been lodged out of time. The judgment stated that the applicant had failed to file the action within six months after the child’s birth as requested by Section 57(1) of the Family Act. In the judgment the District Court pointed out that the applicant’s arguments did not appear reliable as he had started contesting his paternity in respect of the child only after his former wife had left him in 1996. The District Court further noted that public prosecutors had established no grounds for bringing paternity proceedings on the applicant’s behalf pursuant to Section 62(1) of the Family Act. The applicant appealed and alleged that his rights under Articles 6 § 1 and 8 of the Convention had been violated as a result of the dismissal of his action and the refusal to carry out a blood test. On 10 July 2001 the Banská Bystrica Regional Court upheld the District Court’s judgment of 15 February 2001. The judgment stated that the six months’ time-limit laid down in Section 57(1) of the Family Act was preclusive. As a result of the applicant’s failure to comply with it, his right to directly challenge the paternity of the child before a court had lapsed. On 1 March 2002 the General Prosecutor’s Office informed the applicant that no reasons had been found for filing an extra-ordinary appeal on points of law against the Regional Court’s judgment of 10 July 2001. Pursuant to Section 51(1) of the Family Act (Zákon o rodine), the husband of a woman who gives birth to a child during the marriage or not later than three hundred days after its dissolution shall be considered the child’s father. Section 57(1) provides that a husband can deny paternity before a court within six months after he has learnt that his wife has given birth to a child. Under Section 62(1), when the time-limit for denying the paternity by the parent concerned has expired, the General Prosecutor may file an action for disproof of paternity provided that the determination of the issue is justified by the interests of society. According to the practice of the public prosecutors, an action under Section 62(1) of the Family Act can only be filed when there is reliable evidence that the mother’s husband did not father the child. | 0 |
train | 001-77177 | ENG | GBR | GRANDCHAMBER | 2,006 | CASE OF McKAY v. THE UNITED KINGDOM | 1 | No violation of Art. 5-3 | Christos Rozakis;Egbert Myjer;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Sverre Erik Jebens | 8. The applicant was born in 1983 and lives in Bangor, County Down, Northern Ireland. 9. On Saturday 6 January 2001 at 10 p.m., the applicant was arrested on suspicion of having carried out a robbery of a petrol station in Bangor. On Sunday 7 January 2001 he admitted being responsible for the robbery. He was charged at 12.37 p.m. 10. On Monday 8 January 2001 at 10 a.m., the applicant made his first appearance in the magistrates’ court, where he instructed his solicitors to make an application for release on bail. The police officer gave evidence to the court stating that the robbery was not connected with terrorism and that, subject to the proper conditions, he would have no objection to bail. The sitting resident magistrate refused the application, indicating that the offence was a scheduled offence and that he therefore did not have the power to order release (section 67(2) of the Terrorism Act 2000 and section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996). 11. On 8 January 2001 the applicant applied to the High Court for bail. On 9 January 2001 the High Court heard and granted his application. 12. On 12 April 2001 the applicant pleaded guilty in the Crown Court to an offence of robbery and was sentenced to two years’ detention in a young offenders’ institution, followed by a year of probation. 13. Meanwhile, on 9 January 2001, the applicant made an application for judicial review, seeking a declaration of incompatibility of the legislation cited above with Articles 5 and 14 of the Convention. 14. On 3 May 2002 the High Court rejected the applicant’s application. Mr Justice Kerr held: “There is nothing in the text of Article 5 nor in the jurisprudence of ECtHR which requires that the court before which an arrested person must be brought should be the same court that has power to grant him bail. He must be brought promptly before a court or an officer authorised to exercise judicial power. He must also have the opportunity to apply for bail. It is not necessarily the case, however, that these two separate and distinct rights require to be vindicated at the same time or in the same forum. Provided that the arrested person is brought promptly before a court that has power to review the lawfulness of his detention and that he has the opportunity to apply without undue delay for release pending his trial, the requirements of Article 5 § 3 are met. The applicant was brought before the magistrates’ court promptly – within 36 hours of his arrest. His appearance before the magistrate was automatic and did not depend on any initiative from the applicant. Moreover, the resident magistrate was empowered to review the lawfulness of the applicant’s detention ... Here the magistrate can review the legal basis on which the arrested person is detained. He must be satisfied that the arrest and continued detention are lawful. If he is not so satisfied, he must order the release of the person detained. The applicant in the present case was therefore entitled to a prompt automatic examination by a competent judicial officer of the legal basis of his arrest and continued detention. He was moreover entitled to – and did obtain – a prompt examination by a judge of his right to release on bail. ...” 15. The judge also rejected the arguments under Article 14 that accused members of the security forces were treated more favourably concerning bail than other accused persons and refused leave to appeal. 16. On 16 May 2002 the Divisional Court refused leave to appeal to the House of Lords, but certified as points of law of general public importance whether the legislation was compatible with the Convention and whether Article 5 required that the court before whom an accused person was brought pursuant to Article 5 § 3 should have the power to admit him to bail. 17. On 4 December 2002 leave to appeal was refused by the House of Lords. 18. Section 67(2) of the Terrorism Act 2000 (which came into force on 19 February 2001) is substantially the same as section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996 (in force at the time of the applicant’s appearance), and provides: “Subject to subsections (6) and (7), a person to whom this section applies shall not be admitted to bail except – (a) by a judge of the High Court or the Court of Appeal, or (b) by the judge of the court of trial on adjourning the trial of a person charged with a scheduled offence.” 19. The sole jurisdiction of the High Court, Court of Appeal and trial judge to grant bail in the case of scheduled offences dates from 1973 and is based on the original provisions of the Northern Ireland (Emergency Provisions) Act 1973. The rationale derives from the Diplock Report (“Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland” (1972 Cmnd. 5185)), which concluded that resident magistrates who heard bail applications were particularly susceptible to threats and intimidation (at the relevant time one had been shot and the homes of two others bombed). The 2000 Act provides for the position to be annually reviewed by Parliament. Annual reports on the working of the legislation are laid before Parliament for this purpose. 20. In the 2002 report of the Independent Reviewer, Lord Carlile of Berriew QC recommended the return of bail applications to the magistrates’ court, noting that the requirement for all applications in scheduled offences to go before the High Court led in practice to some defendants spending additional days in custody and that a significant proportion of cases were ultimately not proceeded with, or defendants were acquitted or given non-custodial sentences. He recommended that the power be given to a small number of specially trained magistrates. However, in his 2004 report, he noted a continuing danger from sophisticated terrorist crime and numerous serious criminal offences with a strong terrorist link, with syndicated crime having a paramilitary connection increasing and significant levels of intimidation remaining. In considering whether or not to give resident magistrates the power to deal with bail applications, he did not repeat his earlier recommendation, observing that the security assessment was that there would be a significant threat of intimidation and violence towards them and those close to them. He did, however, agree that bail hearings should be available at the weekends and this change was brought into force immediately. 21. Robbery, in so far as it involves any explosive, firearm, imitation firearm or weapon of offence, is specified in paragraph 10 (b) of schedule 9 to the Terrorism Act 2000 as a scheduled offence. 22. This was set out in the Rules of the Supreme Court (Northern Ireland) Order 79, supplemented by Practice Direction 1976 no. 1. This provided for the High Court to sit every day except Saturdays and Sundays for the purpose, inter alia, of hearing bail applications. The Practice Direction instituted a deadline for papers to be lodged by 11 a.m. on the day before bail applications were heard. From October 2000, the deadline was moved to noon and the office adopted the practice of accepting faxed applications. A bail judge would also consider admitting a late application in a genuinely exceptional case. 23. As from 31 January 2004, the High Court also sat on Saturdays to hear bail applications. | 0 |
train | 001-100099 | ENG | RUS | CHAMBER | 2,010 | CASE OF KOPYLOV v. RUSSIA | 4 | Violation of Art. 3 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1967 and lives in Lipetsk. 7. On 22 January 2001 at about noon the applicant was arrested and escorted to the Interior Department of the Lipetsk Region. It appears from a report by the arresting police officer that the applicant had been arrested on 22 January 2001 on suspicion of drug trafficking. However, no drug-related charges were ever brought against him. According to the applicant, he was told that he was suspected of murdering a policeman. He denied any involvement. 8. In the evening of the same day the applicant was transferred to Dolgorukovskoe police station, of the Lipetsk Region, where he was beaten up by Mr Gerasimov (the head of the police station) and Mr Abakumov (the head of the Investigations department). According to the applicant, they slapped and kicked him in the head, trunk and solar plexus. They forced him to kneel down in front of a picture of the murdered policeman and to apologise for killing him. They undressed him and threatened to rape him. Mr Gerasimov smacked his hands over the applicant's ears. He lost consciousness and was handed over to the police officers Mr Kondratov and Mr Trubitsyn, who continued the beatings. They tied his hands behind his back with a rope and hung him down, then put a gas-mask on him and blocked the air vent. 9. At about midnight the applicant was placed in a punishment cell at the police station. 10. On 23 January 2001 the applicant was formally detained and questioned. He denied his guilt and signed an undertaking not to leave the town. However, instead of being released, he was again placed in a cell at Dolgorukovskoe police station. It is apparent from the register of detainees at the police station that the applicant was held there from 23 to 26 January 2001. 11. According to the applicant, during his detention at Dolgorukovskoe police station he was repeatedly beaten up by Mr Lukin (the head of the public safety department), Mr Abakumov, Mr Gerasimov and Mr Butsan (a deputy head of the police station). He was also punched by the police officers Mr Kondratov, Mr Trubitsyn, Mr Alyabyev, Mr Panteleyev and Mr Savvin. They slapped and kicked him in the head, back, stomach, kidneys and liver, hit his eyes with their fingers, smacked their hands over his ears and spat at him. They threatened to rape and kill him. They put a gas-mask on him and blocked the vent, and forced him to inhale cigarette smoke. 12. On 26 January 2001 the applicant was formally remanded in custody on suspicion of murder. He was then transferred to Volovskoe police station of the Lipetsk Region, where he remained until 28 January 2001. He was questioned by Mr Shubin, who threatened to beat him up if he did not confess to the murder. 13. On 28 January 2001 the applicant was taken back to Dolgorukovskoe police station. He stated that every day from 28 to 31 January 2001 he had been severely beaten up by the same policemen as before. Mr Alyabyev, Mr Lukin and Mr Kavyrshin administered electric shocks to various parts of his body through wires connected to a dynamo and insisted that he should refuse legal assistance and confess. The applicant lost consciousness several times. An investigator from the prosecutor's office of the Lipetsk Region, Mr Andreyev, witnessed the ill-treatment. 14. On 29 January 2001 the applicant had a talk with Mr Ibiyev, an investigator from the prosecutor's office of the Lipetsk Region in charge of the inquiry into the policeman's murder. Mr Ibiyev allegedly urged him to confess and threatened that beatings would continue until the confession was made. 15. On 30 January 2001 the applicant confessed to the murder and his confession was videotaped. Before the videotaping, the police officer Ms Karavayeva put make-up on his face to conceal the bruises. 16. On 31 January 2001 the applicant was charged with murdering the policeman. He repeated his confession to the investigator Mr Ibiyev. Before being questioned he made a handwritten statement that he did not require legal assistance. 17. On 2 February 2001 the applicant was transferred to detention facility no. YuU-323/T-2 in the town of Yelets in the Lipetsk Region (“the Yelets detention facility”). On that day he had a meeting with counsel retained by his mother. Counsel saw bruises and abrasions on his face and body. 18. From 9 to 17 February and from 29 March to 7 April, the applicant was held at Dolgorukovskoe police station. According to the applicant, he was repeatedly beaten up by the same policemen as before. They tied him up, wrapped him up in a mattress, put him on the floor and jumped on him. They hit his feet with rubber truncheons, punched and kicked him, and smacked their hands over his ears. They pointed a gun at him and threatened to rape him. They put a gas-mask on him and blocked the vent. They also tortured him with electricity. 19. On 16 May 2001 the murder charge against the applicant was dropped because he had retracted his confession and there was no other evidence against him. 20. On 15 January 2002 the Lipetsk Regional Court convicted another person for the policeman's murder. 21. It appears from certificates issued by a deputy head of the Yelets detention facility and by a doctor of the same facility that the applicant arrived there on 5 February 2001. There were bruises around his eyes and crusted abrasions on his wrists. The applicant complained of a headache. He was examined by a neurologist, who found no traces of craniocerebral injury. However, he was given treatment for “a prior craniocerebral injury”, allegedly received in 1984. 22. On 6 February 2001 the applicant was examined by a medical expert, Mr Yermakov. It was recorded in his report that the applicant had bruises around his eyes, a bruise on his trunk, a bruise on his left hip, and crusted abrasions on his wrists. Mr Yermakov found that those injures had been inflicted more than two weeks before. However, he subsequently stated to the investigator that his assessment had been mistaken and that the injuries had in fact been received less than two weeks before the examination. 23. On 21 February 2001 the applicant was diagnosed with otitis (an inflammation of the internal or external ear, usually caused by bacteria or trauma). 24. On 28 February 2001 the applicant was X-rayed. No traces of posttraumatic bone deformation were detected. 25. On 21 March 2001 the applicant was examined by a panel of psychiatrists who concluded that he was mentally sane. 26. The applicant repeatedly complained about aching feet. On 20 April, 20 June and 16 July 2001 a surgeon examined his feet and found no posttraumatic pathology. However, on 13 and 18 June 2006 doctors detected podoedema (swelling of the feet and ankles) and depigmentation of his feet. 27. In June 2001 the applicant was diagnosed with chronic posttraumatic arachnoiditis (pain disorder, caused by the inflammation of one of the membranes of the spinal cord). 28. In June and July 2001 he repeatedly complained about headaches, nausea, dizziness, general weakness and recurring loss of consciousness. A neurologist found that he was suffering from the after-effects of repeated craniocerebral injuries and brain concussion. 29. On 28 August 2001 he was diagnosed with cerebral oedema (an excess accumulation of water in the brain as a result of, among other things, head injury) and post-traumatic deformation of two left ribs. 30. On 1 November 2001 he was examined by a psychiatrist who diagnosed post-traumatic asthenoneurotic syndrome (tics). 31. On 12 February 2002 the applicant was diagnosed with obliterating endoarthritis (inflammation of and damage to bone joints caused by strains or injuries) and neuropathy of the feet (a disease affecting the nervous system caused by infection, repeated trauma or acute trauma). 32. On 18 March 2002 medical experts of the Lipetsk Regional Department of the Ministry of Health returned the following findings on the basis of the applicant's medical records: - the injuries described in the medical report of 6 February 2001 had been caused 8 to 12 days before the examination of the bruises, and 3 to 7 days before the examination of the abrasions. The injuries could have been inflicted under the circumstances described by the applicant; - it is not possible to establish with certainty whether the applicant had sustained a craniocerebral injury on 24 January 2001. 33. On 7 May 2002 the applicant was diagnosed with left-side hearing impairment. 34. On 31 May 2002 a panel of psychiatrists of the Lipetsk Regional psychiatric hospital examined the applicant and concluded that prior to the arrest he had been in good health. In the course of the investigation and detention he had developed a post-traumatic stress disorder which took a chronic form. The organic personality change and paranoid personality disorder could have been caused by ill-treatment inflicted on him between 22 January and 1 July 2001. 35. On 29 October 2002 the applicant was examined by a panel of psychiatrists of the Serbskiy State Scientific Institute of Social and Forensic Psychiatry in Moscow. The psychiatrists confirmed the findings of the examination of 31 May 2002 and stated that the applicant's psychiatric disorder had been the result of a brain trauma in April 2001. They recommended that the applicant undergo psychiatric treatment. 36. On the same day the applicant was examined by a surgeon who diagnosed him with post-traumatic arthritis of both feet. A neurologist concluded that he was suffering from the after-effects of repeated craniocerebral injuries and from post-traumatic encephalopathy (a brain disease). 37. It is recorded in a certificate of 22 November 2003 that the applicant was suffering from left-side deafness and right-side hearing impairment. 38. In 2004 the applicant was granted disability status and a pension. 39. According to a certificate of 2 July 2007 by Dr M., the psychiatrist treating the applicant, the applicant still suffers from psychiatric disorders. He visits a psychiatrist twice a month and receives psychoactive drugs in large doses. However, despite the intensive treatment, his psychiatric condition is continuing to deteriorate. 40. On 26 February 2008 a panel of psychiatrists from the Serbskiy State Scientific Institute of Social and Forensic Psychiatry in Moscow found that since 2001 the applicant had been suffering from a post-traumatic paranoid personality disorder. That disorder was so severe and lengthy that it could be defined as chronic. They concluded that he needed in-patient psychiatric treatment. 41. Starting from the beginning of February and until April 2001 the applicant and his counsel filed many complaints about the ill-treatment with the town and regional prosecutors and with the Prosecutor General of the Russian Federation. The applicant described in detail the treatment to which he had been subjected, named the police officers of Dolgorukovskoe police station implicated in the ill-treatment and asked to be examined by a medical expert with a view to noting his injuries. He asked the prosecutor's office to initiate criminal proceedings against the police officers. 42. On 5 June 2001 the applicant's complaints were sent by the prosecutor's office of the Lipetsk Region to the investigator Mr Ibiyev who was asked to carry out a preliminary inquiry. However, the applicant's complaints were subsequently referred to the prosecutor's office of Yelets. 43. The prosecutor's office of Yelets questioned three of the police officers named by the applicant. They testified that the applicant had not been subjected to any ill-treatment. On 6 July 2001 the prosecutor's office of Yelets refused to initiate criminal proceedings against the police officers. That decision was set aside by the prosecutor's office of the Lipetsk Region and an additional inquiry was conducted. In particular, the periods of the applicant's time in Dolgorukovskoe police station were established, several police officers and the investigator Mr Ibiyev were questioned and a medical examination of the applicant was performed. 44. On 14 September 2001 the prosecutor's office of Yelets again refused to initiate criminal proceedings. 45. On 11 October 2001 the prosecutor's office of the Lipetsk Region reversed the decision of 14 September 2001, finding that the inquiry had been incomplete. In particular, the prosecutor's office of Yelets had not established whether the applicant had been in good health before the arrest and whether the arrest had been lawful. It had overlooked the evidence which supported the applicant's allegations of ill-treatment, namely his confession to the murder, later retracted, and the medical report stating his injuries. 46. On the same day the prosecutor's office of the Lipetsk Region opened criminal proceedings against the police officers of Dolgorukovskoe police station. The applicant was granted victim status. 47. On 3 November 2001 two police officers were questioned about the circumstances of the applicant's arrest. It appears that no further action was taken until January 2002. 48. On 23 January 2002 the investigator commissioned a medical examination of the applicant. The examination was performed by experts of the Lipetsk Regional Department of the Ministry of Health on the basis of the applicant's medical documents. It was completed on 18 March 2002. The experts established that the applicant's injuries could have been inflicted under the circumstances described by him. 49. In reply to the applicant's complaints about delays in the investigation, on 12 April 2002 the office of the Prosecutor General ordered that the investigation be sped up. 50. In May 2002 the applicant's cellmates from Dolgorukovskoe police station were questioned. They testified that the applicant had been extremely frightened, complained about ill-treatment, and fainted several times. They had seen marks of beatings on his body. 51. On 4 June 2002 the applicant was questioned about the circumstances of his arrest and ill-treatment. 52. On 11 August 2002 the prosecutor's office of the Lipetsk Region discontinued the criminal proceedings against the police officers of Dolgorukovskoe police station. On 18 October 2002 the office of the Prosecutor General annulled that decision and ordered that the criminal proceedings be resumed. 53. On 24 December 2002 a police officer from the Dolgorukovskoe police station who had escorted the applicant to the questionings in January 2001 stated that he had seen bruises around his eyes. 54. On 9 January 2003 the investigator Mr Ibiyev was questioned. He denied any involvement in the ill-treatment. 55. On 28 April 2003 counsel for the applicant testified that he had represented the applicant since January 2001, that he had not been allowed to visit him until February 2001, and that he had seen marks of beatings on his face and body. 56. On 16 May 2003 the police officers of Dolgorukovskoe police station, Mr Abakumov, Mr Kondratov, Mr Trubitsyn and Mr Lukin, were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code. 57. On 16 July 2003 the applicant was questioned for the second time about the ill-treatment. 58. On 28 August 2003 the applicant was informed that the investigation was complete. He was invited to study the case file. 59. The applicant complained to the prosecutor's office of the Lipetsk Region that the scope of the investigation had been insufficient. In particular, the prosecutor's office had not brought charges against the police officers Mr Butsan, Mr Gerasimov and Mr Savvin, who had ill-treated him, and the investigators Mr Andreyev and Mr Ibiyev, who had forged evidence and forced him to confess to the murder. 60. On 28 November 2003 the prosecutor's office of the Lipetsk Region rejected the applicant's complaints, finding that there had not been sufficient evidence for prosecuting Mr Butsan, Mr Gerasimov, and Mr Savvin, and that disciplinary proceedings against Mr Andreyev and Mr Ibiyev had in the meantime become time-barred. 61. On an unspecified date the investigation was resumed and additional enquiries were conducted. 62. On 11 March 2004 an identification parade was held. The applicant identified Ms Karavayeva, who had put make-up on his face before the videotaping of his confession in January 2001. 63. On 18 March 2004 the applicant was taken to Dolgorukovskoe police station where he pointed out the cells in which he had been detained, and the rooms in which he had been beaten. 64. On 25 March and 26 April 2004 further identification parades were held. The applicant recognised Mr Alyabyev and Mr Savvin as the officers who had beaten him and tortured him with electricity. 65. On 7 and 13 April 2004 further interviews with the applicant were held. 66. On 29 and 30 April and 5 May 2004 Mr Kondratov, Mr Abakumov, Mr Panteleyev, Mr Alyabyev, Mr Kovyrshin, Mr Butsan, Mr Lukin, Mr Trubitsyn, Mr Savvin and Mr Gerasimov were charged with abuse of office associated with the use of violence and weapons and entailing serious consequences, an offence under Article 286 § 3 (a, b, c) of the Criminal Code. 67. On 31 May 2004 the applicant was informed that the investigation had been completed and was invited to study the case file. However, on an unspecified date the investigation was resumed. 68. On 15 September 2004 a deputy Prosecutor General of the Russian Federation ordered that the investigation be continued until 10 January 2005. 69. The applicant challenged before a court the refusal by the prosecutor's office of the Lipetsk Region to bring charges against the investigators from that prosecutor's office, Mr Andreyev and Mr Ibiyev, who had unlawfully arrested him, forged evidence against him and forced him to confess, and against the medical expert Mr Yermakov, who had examined him on 6 February 2001 and had falsely stated that his injuries had been inflicted prior to the arrest. 70. On 9 November 2004 the Lipetsk Regional Court rejected the applicant's complaints in the final instance. It held that an internal inquiry had been conducted and that no grounds for prosecuting Mr Andreyev, Mr Ibiyev or Mr Yermakov had been established. 71. On 18 February 2005 the criminal case against the police officers of Dolgorukovskoe police station was committed for trial before the Yelets Town Court of the Lipetsk Region. 72. The trial started on 28 March 2005. The defendants pleaded not guilty and refused to testify. 73. The trial court heard the applicant and numerous witnesses and examined medical evidence. 74. On 28 December 2007 the Yelets Town Court convicted the defendants as charged. It found it to be established that between 22 January and 7 April 2001 the defendants had repeatedly ill-treated the applicant by punching and kicking him and hitting his heels with truncheons, by subjecting him to electric shocks, by putting a gas-mask on him and closing the air vent or forcing him to inhale cigarette smoke through the vent, by tying his hands behind his back and suspending him in the air by means of a rope, by jumping on his chest and stomach, by pointing their guns at him and threatening to shoot him, by strangling him, by threatening to rape him, by spitting at him and by forcing him to undress and kneel in front of a photograph of the policeman of whose murder he had been suspected and apologise for killing him. The use of force had been aimed at driving the applicant into submission and making him confess to criminal offences. As a result of the ill-treatment the applicant had received the following injuries: numerous bruises and abrasions, a rib fracture, a deformation of the left shoulder-blade and feet trauma ultimately resulting in polyarthritis with degenerative-dystrophic changes and functional impairment in both feet. Moreover, the applicant had developed a chronic post-traumatic psychiatric disorder as a consequence of the ill-treatment. The court sentenced the defendants to imprisonment ranging from four years to five years and eight months with a subsequent three-year prohibition on serving in law-enforcement agencies. On the same day the defendants were taken into custody. 75. On 2 June 2008 the Lipetsk Regional Court upheld the conviction on appeal but decided to commute the sentences. It noted that some of the defendants had been awarded medals for excellent police service and that all of them had positive references from their superiors. The court therefore considered that it was possible to give them sentences below the statutory minimum. It sentenced six defendants to imprisonment ranging from two years and six months to three years and three months. The remaining four defendants were sentenced to imprisonment ranging from one year and six months to two years and six months, but their sentences were suspended and they were placed on probation for two years. Those four defendants were immediately released. 76. In 2005 the applicant and his mother sued the Ministry of Finance, the Interior Ministry, and the police officers of Dolgorukovskoe police station for compensation in respect of pecuniary and non-pecuniary damage caused by the applicant's ill-treatment. They claimed 15,000,000 Russian roubles (RUB) in respect of non-pecuniary damage and RUB 207,559 in respect of pecuniary damage. The claim for pecuniary damage included the costs of the applicant's medical treatment and of the food brought to the detention facility by his mother, as well as travel and postal expenses and legal fees. 77. On 6 October 2008 the Sovetskiy District Court of Lipetsk allowed the claim in part. The court noted that the fact of the applicant's ill-treatment by the police officers of Dolgorukovskoe police station had been established by the final judgment in the criminal proceedings against those officers. In particular, it had been established that between 22 January and 7 April 2001 the applicant had been repeatedly subjected to severe beatings and electric shocks, gas-mask torture, hanging in the air by means of a rope attached to the wrists, and threats of rape and murder, and had been spat at and forced to apologise on his knees for killing a policeman. As a result of the ill-treatment he had suffered considerable pain and humiliation, had received serious injuries, in particular rib fracture and deformation of his feet, and had developed a chronic psychiatric disorder. His health had been seriously undermined and he had become disabled. He had moreover been forced to confess to a crime which he had not committed. The court found that the applicant had been subjected to ill-treatment contrary to Article 3 of the Convention and awarded him compensation in respect of non-pecuniary damage in the amount of RUB 450,000 (about 12,500 euros (EUR)) against the Ministry of Finance. It found that the applicant's mother had also suffered distress and frustration as a result of her son's ill-treatment and awarded her RUB 35,000 against the Ministry of Finance. It further awarded the applicant's mother RUB 573.88 (about EUR 16) in respect of medical expenses. It however rejected the remainder of the claim for pecuniary damage as it had not been supported by documents. 78. On 17 November 2008 the Lipetsk Regional Court examined the case on appeal. It found that the amount awarded to the applicant in compensation had been adequate, given the very serious injuries he had sustained as a result of the ill-treatment, and in particular, brain oedema, post-traumatic displacement of two ribs, post-traumatic hearing impairment, deformation of both feet and shoulder-blade deformation, as well as posttraumatic encephalopathy (general brain dysfunction) and psychiatric disorder. It also upheld the award of the medical expenses. It however quashed the award in respect of non-pecuniary damage to the applicant's mother, finding that she had not personally suffered any ill-treatment. 79. On 28 March 2001 the applicant was charged with robbery. On 26 September 2001 additional charges of several counts of robbery, theft and unlawful possession of firearms were brought against him. 80. On 12 April 2002 the Lipetsk Regional Court ordered the applicant's in-patient psychiatric examination. On 31 May 2002 a panel of psychiatrists of the Lipetsk Regional psychiatric hospital found that the applicant was suffering from post-traumatic stress disorder. In view of his medical condition, his participation in the court hearings was considered inadvisable. The applicant needed in-patient psychiatric treatment. 81. On 27 June 2002 the applicant and four co-defendants were escorted to the Lipetsk Regional Court for a hearing. After the defendants refused to go into the courtroom, the presiding judge ordered that they be brought in by force. The defendants were informed of the judge's order and agreed to proceed to the courtroom. They were handcuffed and started to mount the stairs. 82. It appears from the reports of the escorts that on the stairs one of the defendants, Mr P., suddenly ran in the direction of the toilets, while the other defendants attacked the escorts. The escorts beat the defendants with rubber truncheons and managed to suppress the attack and to bring the defendants into the courtroom. 83. According to the applicant's mother, she and the relatives of the other defendants were waiting in the hall for the beginning of the hearing. She saw the escorts hitting the applicant and his co-defendants with truncheons while they were mounting the stairs. The applicant fell on the handrail and one of the escorts slapped and kicked him many times. The applicant fainted. He was dragged by the escorts across the floor into the cage inside the courtroom. She called an ambulance. 84. The ambulance doctors examined the applicant and concluded that he had had an epileptic fit. He was taken to Lipetsk hospital no. 4 for treatment. 85. It can be seen from a certificate issued on the same day by the head of Lipetsk hospital no. 4 that the diagnosis of an epileptic fit was confirmed by the hospital doctors, who also detected hyperemia (a medical condition in which blood congests in part of the body) of the applicant's neck. 86. The applicant was handcuffed to a hospital bed in the corridor. On the next day he was transferred back to the detention facility, the doctors' objections notwithstanding. 87. On 17 January 2003 the Lipetsk Regional Court ordered the applicant's confinement to a psychiatric hospital. On 31 January 2003 he was transferred to the Lipetsk Regional psychiatric hospital. 88. On 28 April 2003 the Lipetsk Regional Court found the applicant guilty of several counts of aggravated theft and robbery, decided not to sentence him because of his mental incapacity and ordered his compulsory psychiatric treatment. 89. On 26 November 2003 the Supreme Court of the Russian Federation upheld the judgment on appeal. 90. On 25 March 2004 the Gryazi Town Court of the Lipetsk Region ordered that in-patient psychiatric treatment be replaced by out-patient psychiatric supervision. On 29 March 2004 the applicant was released from hospital. 91. On 1 July 2002 the applicant's mother asked the prosecutor's office of the Sovetskiy District of Lipetsk to initiate criminal proceedings against the escorts who had beaten the applicant and his co-defendants in the courthouse on 27 June 2002. 92. The prosecutor's office conducted an inquiry. Eight escorts, the applicant's mother, one of the applicant's co-defendants and several eyewitnesses were heard. The presiding judge refused to testify. 93. The applicant's co-defendant Mr Sh. testified that the defendants had refused to go into the courtroom because the applicant and another defendant were unwell and the escorts had refused to call a doctor. They had moreover asked to see their relatives. Once the relatives had been let into the courthouse the defendants had agreed to proceed to the courtroom. As they mounted the stairs they had seen that some of their relatives were absent, so they turned around with the intention of descending back into the basement. At that moment the escorts had started to hit them with rubber truncheons and had driven them into the courtroom. 94. The defendants' relatives all testified that the escorts had hit the applicant and his co-defendants, handcuffed in twos, while they were mounting the stairs. 95. The escorts submitted that after the defendants' refusal to go into the courtroom, the judge had ordered that they be brought in by force. The defendants had been handcuffed and ordered to proceed to the courtroom. On the stairs they had suddenly turned round and attacked the escorts. The escorts had used rubber truncheons against them. The defendants had been forced into the courtroom where the applicant had had an epileptic fit. An ambulance had been called and he had been taken to hospital. 96. On 15 July 2002 the prosecutor's office of the Sovetskiy District of Lipetsk refused to open criminal proceedings against the escorts. In his decision the prosecutor referred to the witness statements collected during the inquiry and found that the applicant and his co-defendants had not complied with the legitimate order of the escorts. He concluded that the force had been used by the escorts in compliance with the Police and Custody Acts. In any event, the applicant and his co-defendants had not received any injuries. 97. The applicant challenged the decision before a court. In particular, he submitted that, contrary to the prosecutor's assertions, he had sustained injuries and had been taken to hospital. He also argued that the inquiry had been incomplete, as many eyewitnesses had not been questioned. 98. On 22 September 2004 the Sovetskiy District Court of Lipetsk held that the prosecutor's decision had been lawful. It found that the inquiry had been adequate as it had allowed the prosecutor to collect the necessary evidence and to make a reasoned decision. 99. On 19 October 2004 the Lipetsk Regional Court upheld the decision on appeal. 100. Abuse of office associated with the use of violence and weapons and entailing serious consequences carries a punishment of three to ten years' imprisonment and a prohibition on occupying certain positions for up to three years (Article 286 § 3 (a,b,c) of the Criminal Code). 101. Until 1 July 2002 the investigation of criminal offences was governed by the RSFSR Code of Criminal Procedure of 27 October 1960 (the “old CCrP”). It established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities' own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation and could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation (Articles 210 and 211). If there were no grounds for initiating or continuing a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be served on the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Articles 113 and 209). 102. The Code of Criminal Procedure of the Russian Federation in force since 1 July 2002 (Law no. 174-FZ of 18 December 2001, the “CCrP”), establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual (Articles 140 and 146). Within three days of receiving such complaint, the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions: (1) to open criminal proceedings if there are reasons to believe that a crime has been committed; (2) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation; or (3) to refer the complaint to the competent investigative authority. The complainant must be notified of any decision taken. The refusal to open criminal proceedings is amenable to appeal to a higher-ranking prosecutor or a court of general jurisdiction (Articles 144, 145 and 148). A prosecutor is responsible for overall supervision of the investigation (Article 37). He can order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. Article 125 of the CCrP 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. 103. Article 1064 § 1 of the Civil Code of the Russian Federation provides that damage caused to the person or property of a citizen must be fully compensated for by the tortfeasor. Pursuant to Article 1069, a State agency or a State official is liable towards a citizen for damage caused by their unlawful actions or failure to act. Such damage is to be compensated for at the expense of the federal or regional treasury. Articles 151 and 10991101 of the Civil Code provide for compensation for nonpecuniary damage. Article 1099 states, in particular, that non-pecuniary damage must be compensated for irrespective of any award for pecuniary damage. 104. The Police Act (no. 1026-1 of 18 April 1991) provides that Police officers are only entitled to use physical force, special means and firearms in the cases and within the procedure established by the Police Act; staff members of police facilities designated for temporary detention of suspects and accused persons may only use such force and special means in cases and within the procedure established by the Custody Act. A police officer must warn of his intention to use physical force, special equipment or a weapon and give the person concerned sufficient time to comply with his order, except in cases where the delay in using physical force, special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers, is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances. Police officers must endeavour to minimise the damage caused by the use of physical force, special equipment or a weapon, to the extent possible depending on the nature and seriousness of the offence, the dangerousness of the person who has committed it and the degree of resistance offered. Police officers must also ensure that individuals who have been injured as a result of the use of physical force, special equipment or a weapon receive medical assistance (section 12). 105. Police officers may use physical force, including martial arts, to stop a criminal or administrative offence being committed, arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order, if non-violent methods are insufficient to ensure discharge of the police duties (section 13) 106. Sections 14 and 15 of the Police Act lay down an exhaustive list of cases when special means, including rubber truncheons, handcuffs and firearms, may be used. In particular, rubber truncheons may be used to repel an attack on civilians or police officers, to overcome resistance offered to a police officer and to repress mass disorder and put an end to collective actions disrupting the operation of transport, means of communication and legal entities. Handcuffs may be used only to overcome resistance to a police officer, to arrest an individual caught while committing a criminal offence against life, health or property and if he is attempting to escape, and to bring arrestees to police stations as well as to transport them and protect them if their behaviour allows the conclusion that they are liable to escape, cause damage to themselves or other individuals or offer resistance to police officers. 107. The Custody Act (no. 103-FZ of 15 July 1995) provides that physical force may by used against a suspect or an accused to prevent commission of an offence or to overcome resistance to lawful orders, if those aims cannot be attained by non-violent methods (section 44). 108. Rubber truncheons and handcuffs may be used in the following cases: - to repel an attack on a staff member of a detention facility or on other persons; - to repress mass disorder or put an end to collective violations of the detention rules and regulations; - to put an end to a refusal to comply with lawful orders of the facility's administration and warders; - to release hostages and liberate buildings, rooms and vehicles taken over by a detainee; - to prevent an escape; - to prevent a detainee from hurting himself (section 45). | 1 |
train | 001-68734 | ENG | RUS | CHAMBER | 2,005 | CASE OF ROKHLINA v. RUSSIA | 3 | Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award | Christos Rozakis | 9. The applicant was born in 1949 and lives in Moscow. 10. On 3 July 1998 the applicant was arrested on the suspicion of shooting her husband, Lieutenant-General Lev Rokhlin, a member of the Russian Parliament. An investigator of the Moscow Region prosecutor's office authorised her detention on remand. The applicant was placed in detention facility no. IZ-49/9 in the Moscow Region. 11. On 8 July 1998 the applicant was charged with murder under Article 105 § 1 of the Criminal Code and questioned as an accused in the presence of Mr Vankovich, a lawyer retained by her. She chose to remain silent on the merits of the charge against her and requested that the investigator be replaced because he had allegedly intimidated her and showed lack of respect for her and her family. On an unspecified date the applicant's request was rejected as unsubstantiated. 12. On 16 July 1998 the State Duma of the Russian Federation (the lower chamber of the Russian Parliament) established a special commission to monitor the progress of the investigation into the circumstances of Lieutenant-General Rokhlin's death (“the Duma commission”). 13. On 21 August 1998 the applicant's detention on remand was extended until 3 December 1998. The applicant did not appeal against the extension order. 14. On 1 December 1998 the applicant's detention was extended until 3 April 1999, that is for a total of nine months starting from the day of her arrest. On 9 December 1998 the applicant's lawyers appealed to a court against the extension order. They complained, in particular, about unreasonable delays in the investigation of the charge against their client and pointed to her frail health. The applicant submitted a supplementary complaint against the extension order; she indicated that her prolonged separation from her mentally disturbed son was detrimental to his health. 15. On 21 December 1998 the Lyublinskiy District Court of Moscow rejected the appeals against the extension order. It held that the detention on remand had been imposed and extended “without any substantial violations of the law of criminal procedure” and that the detention was justified “because [the applicant] was charged with an especially serious criminal offence”. The court found no grounds to release the applicant on bail. On 21 December 1998 and 10 and 13 January 1999 the applicant's lawyers appealed against the decision of the district court. They submitted that the court had not taken into account the applicant's deteriorating health, long periods of inactivity of the team of eight investigators, discrepancies in the applicant's confessions. They also alleged that the court had failed in its duty to give relevant and sufficient reasons for the continued detention. On 13 January 1999 the Moscow City Court heard the appeal and ruled that the suspicion against the applicant that she had committed an especially serious criminal offence was, pursuant to Article 96 of the RSFSR Code of Criminal Procedure, a sufficient ground for her detention on remand. 16. On 13 January 1999 the State Duma of the Russian Federation adopted a special address to the Prosecutor General of the Russian Federation. Members of Parliament noted that the investigation was lingering, while the applicant remained in custody. On 15 December 1998 the Duma commission members had met the applicant in prison and found her health unsatisfactory. In view of the applicant's poor health and adverse effects of her long separation from her mentally disturbed son and given that she was not a public danger, the Duma requested the Prosecutor General to consider the applicant's release from custody on humanitarian grounds. 17. On 18 March 1999 the applicant's detention on remand was extended until 3 July 1999, i.e. for a total of twelve months. The applicant's lawyers appealed against the extension. They requested that the applicant be released, citing her poor health and excessive delays in the investigation. 18. On 6 April 1999 the Lyublinskiy District Court of Moscow found that the applicant's detention had been extended lawfully and no substantial violations of the laws of criminal procedure had occurred. The court held that, pursuant to Article 96 of the RSFSR Code of Criminal Procedure, the suspicion of an especially serious criminal offence was a sufficient ground for the holding in custody and that there were no exceptional grounds warranting the applicant's release. The court also noted that the applicant's state of health permitted her holding in custody. 19. On 11 May 1999 the Moscow City Court dismissed the applicant's lawyers' appeal against the district court's decision. It upheld the district court's interpretation that the existence of a suspicion of involvement in an especially serious criminal offence had been a sufficient ground for the continued detention on remand. The court examined the medical certificates submitted by the applicant's defence and held that in the absence of any life-threatening medical condition and given that the applicant's adult daughter was taking care of her brother, the applicant should remain in custody. 20. On 23 June 1999 an extension of the detention on remand was authorised until 3 November 1999. The applicant did not appeal against the extension order. 21. On 8 October 1999 the acting Prosecutor General of the Russian Federation authorised the applicant's detention until 3 January 2000, i.e. for a total of eighteen months. 22. On 15 October 1999 the applicant's counsel, Mr Burmistrov, introduced an appeal against the detention order of 8 October 1999, under Article 2201 of the RSFSR Code of Criminal Procedure. According to the stamp on the first page, the registry of the Lefortovskiy District Court received the statement of appeal on the same date. 23. On 18 or 19 October 1999 [the date is unreadable] the applicant filed a handwritten statement of appeal against the order of 8 October 1999. On the same date the head of the Lefortovo detention centre forwarded it, along with the applicant's medical certificate, to the Lefortovskiy District Court. According to the stamp on the forwarding letter, the court received the document on 25 October 1999. 24. The applicant and her lawyer complained about unjustified delays in the investigation and submitted that the applicant's health and that of her son were steadily deteriorating. 25. By an interim decision of 25 October 1999, the Lefortovskiy District Court scheduled the examination of the appeal by Mr Burmistrov, for 27 October 1999, at 3 p.m., with the participation of a prosecutor, the applicant and her counsel. 26. According to the covering note produced by the Government, on 26 October 1999 the Prosecutor General's office sent certain materials relating to the lawfulness of the applicant's detention to the Lefortovskiy District Court. 27. On 27 October 1999 the applicant was not brought to the court because she had fallen ill. The prosecutor and her counsel objected to holding the hearing in her absence. The hearing was adjourned until 1 November 1999. 28. On 1 November 1999 the Lefortovskiy District Court of Moscow heard the appeals against the extension order and dismissed them. The court held that “the imposition of a preventive measure in the form of placement in custody and [subsequent] extension of the detention in respect of the applicant were lawful and justified”. As to the defence's arguments about the applicant's medical condition and adverse effects of her separation from her son, the court found that these arguments were not “the grounds that would render the preventive measure applied to [the applicant] unlawful or unjustified”. The court also added that it was not competent to impose a different “preventive measure” on the applicant, such decision being in the exclusive competence of investigators and prosecutors. 29. On 1, 7 and 25 November 1999 the applicant's lawyers appealed against the decision of 1 November. They submitted that the court did not take into account significant changes in the applicant's situation after fifteen months of detention, including the worsening health of her son, and that it did not give any relevant reasons for the continued detention. 30. On 25 November 1999 by the Moscow City Court upheld the decision of 1 November 1999. The court confirmed the conclusions of the first instance court to the effect that “the placement in custody as a preventive measure could be imposed on the sole ground of gravity of the [committed] offence”. On the basis of a medical certificate issued by the detention facility on 4 November 1999 the court determined that the applicant could remain in custody. 31. On 23 December 1999 the acting Prosecutor General of the Russian Federation applied to the Moscow City Court for an extension of the applicant's detention until 3 July 2000. 32. On 29 December 1999 the Moscow City Court refused the Prosecutor General's application. It established that on 28 December 1999 the applicant and her lawyers had finished studying the case-file and there were therefore no lawful grounds to extend her detention beyond the maximum eighteen-month period. 33. On 30 December 1999 the prosecutor ordered the applicant's release from custody on the condition that she sign an undertaking not to leave the city. 34. On 16 November 2000 the Naro-Fominsk Town Court of the Moscow Region convicted the applicant of premeditated murder and sentenced her to eight years' imprisonment in a correctional colony. The court excluded the record of the interview made on the day following the arrest as inadmissible evidence because the applicant had been interviewed in the absence of a counsel, her rights had not been explained to her, she had not been informed of video-recording and because there were substantial discrepancies between the videotaped statements and the printed record. 35. On 21 December 2000 the Moscow Regional Court upheld the conviction. It established, however, mitigating circumstances in the applicant's case and reduced her sentence to four years' imprisonment. 36. On 7 June 2001 the Supreme Court of the Russian Federation, by way of supervisory review proceedings, quashed the judgments of 16 November and 21 December 2000 and remitted the case to the Naro-Fominsk Town Court of the Moscow Region for a new examination. 37. Since 11 October 2001 the criminal case against the applicant has been pending before the Naro-Fominsk Town Court of the Moscow Region. 38. On 25 March 2002 the proceeding were stayed because of the applicant's illness. They were resumed on an unspecified date. 39. On 22 April 2003 the applicant was taken to a hospital after she had a heart attack in the courtroom. 40. On 20 August 2003 the proceedings were stayed again because of the applicant's illness. They were resumed on an unspecified date. 41. On 15 April 2004 the proceedings were adjourned until 13 May 2004 at the applicant's daughter's request. 42. On 13 May 2004 the hearing was adjourned because one lay assessor had fallen ill. 43. On 28 May 2004 the applicant did not appear at the hearing because she had to attend to her son. 44. On 20 July 2004 the hearing was adjourned owing to the applicant's counsel's absence. On 8 September 2004 another counsel for the applicant did not appear. 45. On 25 October 2004 the court decided to hold a new directions hearing because, by virtue of recently amended Article 30 of the Code of Criminal Procedure, the applicant's case could be tried either by a single judge or by a three-judge bench. On 1 November 2004 the applicant applied for trial by a single judge. 46. The case is still pending before the trial court. 47. The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (“the CCrP”) of 27 October 1960 (effective until 30 June 2002) listed as “preventive measures” or “measures of restraint”, inter alia, an undertaking not to leave a specified place and placement in custody (Article 89). 48. A decision to order detention on remand could only be taken by a prosecutor or a court (Articles 11, 89 and 96). In making this decision the relevant authority was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re-offend (Article 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his (her) profession, age, state of health, family situation and other circumstances (Article 91). 49. At the material time the accused could be placed in custody if he or she was charged with a criminal offence carrying a sentence of at least one year's imprisonment or in exceptional circumstances (Article 96 § 1). If the accused was charged with any of the serious intentional offences listed in Article 96 § 2, including manslaughter, the detention on remand could be imposed on the sole ground of the dangerousness of that offence. The Plenary Session of the Supreme Court specifically directed the courts to avoid making any assessment of collected evidence or drawing conclusions as to the accused's guilt or innocence in the decisions concerning the lawfulness and justification of the placement in custody (Resolution of the Plenary Session of the Supreme Court of the Russian Federation, no. 6 of 29 September 1994, paragraph 9). 50. A prosecutor's order, or a court decision, ordering detention on remand was to be reasoned and justified (Article 92). The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it (Article 92). 51. The Code distinguished between two types of detention on remand: one was “during the investigation”, that is when an authorised agency – the police or a prosecutor's office – undertook investigative measures, and the other was “before the court” (or “during the trial”), that is when the trial court examined the case. Although there was no difference in practice between them (the detainee was normally held in the same detention facility), the calculation of time-limits was different. 52. After his or her arrest the person was placed in custody “during the investigation”. The maximum permitted term of detention “during the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels, up to the Prosecutor General of the Russian Federation. No extensions beyond eighteen months were permitted (Article 97). 53. The term of detention “during the investigation” was calculated until the day when the investigation was considered completed and the defendant was given access to the case file (Articles 97, 199, 200 and 201). The access was to be granted no later than one month before the authorised detention period expired (Article 97). If the defendant needed additional time to study the case-file, a judge acting on a request by a prosecutor could grant an extension of the defendant's detention on remand until such time as the reading of the file was completed, but for no longer than six months. 54. Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file, the file was transferred to a trial court. From that day the defendant's detention was “before the court” (or “during the trial”). At the material time the Code set no time-limit for detention “during the trial”. 55. The detainee or his (her) counsel or representative could challenge the detention order, or any subsequent extension order, to a court (Article 2201). The judge was required to review the lawfulness and justification of a detention or extension order no later than three days after receipt of the relevant materials. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his (her) own initiative. The judge could either dismiss the challenge or revoke the detention on remand and order the detainee's release. A judge's decision was to be reasoned (Article 2202). 56. An appeal against the judge's decision lay to a higher court. The time-limit for examination of such an appeal was the same as that established for appeals against the conviction (see below) (Article 331). 57. The case examination was required to start no later than fourteen days after the judge issued a procedural order fixing a hearing date (Articles 2231 and 239). The duration of the trial was not limited in time. 58. The appeal court was required to examine an appeal against the first-instance judgment within ten days upon its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court of the Russian Federation this time-limit could be longer, up to two months (Article 333). No possibility of further extensions was provided for. | 1 |
train | 001-70440 | ENG | NLD | ADMISSIBILITY | 2,005 | BONGER v. THE NETHERLANDS | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Teshome Goraga Bonger, is an Ethiopian national, who was born in 1963 and currently lives in the Netherlands. He was represented before the Court by Ms I.J.M. Oomen, a lawyer practising in Amsterdam. The respondent Government were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 January 1995 the applicant entered the Netherlands, where he applied for asylum. He stated that, during the former (“DERG”) regime of Mengistu Haile Mariam in Ethiopia, he had been a member of the Workers’ Party of Ethiopia (WPE) and had been a pilot in the Ethiopian air force. He further stated that, between 1982 and 1985, he had stayed in Russia for military training purposes. After having returned to Ethiopia in 1985, he had participated between April 1987 and September 1988 in military operations in Asmara, Tigra and Gojan and had carried out bombings. Between September 1988 and July 1992, he had stayed for a second period in Russia for further military training. When the Mengistu regime had been overthrown in 1991, he had remained in Russia and had returned to Ethiopia in July 1992. Shortly after his return, he had reported to the new authorities in Ethiopia and had subsequently been sent to a political re-education camp. He had stayed in that camp from July 1992 until 15 or 16 January 1993, when he had been released with an obligation to report regularly to the authorities. He had complied with this obligation until March 1993 when – after having heard that pilots had been arrested on accusations of murder and plundering, and after members of the military had come to his aunt’s house with whom he had then lived and who had asked for him – he had gone into hiding for fear of being arrested again. He had left Ethiopia for Sudan in April 1993. In the course of the same month, he had travelled from Sudan to Russia where, holding forged residence permits, he had stayed until 19 January 1995 when he had travelled on his own Ethiopian passport via Berlin to the Netherlands. On 15 March 1995, the applicant’s asylum request was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie), who did not find it established that the applicant had a well-founded fear of persecution. On 20 March 1995, the applicant filed an objection (bezwaar) against this decision with the Deputy Minister. On the same day he filed a request with the President of the Regional Court (arrondissementsrechtbank) of The Hague for an interim measure to the effect that he would be allowed to remain in the Netherlands pending the proceedings on his objection. On 1 June 1995, following a hearing held on 18 May 1995, the Acting President of the Regional Court rejected the applicant’s request for an interim measure. The Acting President considered, inter alia, that there were no concrete indications that the applicant would be arrested if he returned to Ethiopia, that the applicant’s claims were only based on assumptions and hearsay information, and that the fact that his passport had been prolonged on 22 November 1994 by the Ethiopian consular authorities in Moscow indicated that the applicant was not sought by the Ethiopian authorities. The Acting President concluded that it had not been established that the applicant had a well-founded fear of persecution or that his expulsion to Ethiopia would be contrary to the applicant’s rights under Article 3 of the Convention. Further considering that the proceedings on the applicant’s objection would not result in a different finding, the Acting President also rejected the applicant’s objection, in accordance with Article 33b of the Aliens Act (Vreemdelingenwet) as in force at the material time. No further appeal lay against this decision. On 28 November 1995, the applicant requested the Regional Court of The Hague for a revision (herziening) of the ruling of 1 June 1995. In its decision of 1 March 1996, following a hearing held on 16 February 1996, the Regional Court rejected the revision request. On 7 January 1997 the applicant filed a second asylum request on the basis of new facts and circumstances, namely a copy of a letter of 24 June 1993 addressed to his aunt by the Ethiopian authorities, requesting information about the applicant’s new address. The applicant further submitted that, in the proceedings on his first asylum request, he had omitted to say that, in his function as an air force pilot, he had participated in hundreds of flights over war zones. The Deputy Minister of Justice rejected the applicant’s second asylum request on 8 January 1997, holding that it did not appear from the letter of 24 June 1993 – from which it could only be concluded that the authorities wished to be informed of the applicant’s new address – that the applicant had a well-founded fear of persecution. The Deputy Minister further held that this finding was supported by the applicant’s statements that he had remained in contact with an aunt and his brother in Ethiopia, and that there was no evidence whatsoever of any interest being shown by the Ethiopian authorities in the applicant since June 1993. The Deputy Minister further held that the applicant’s statement about his participation in numerous flights over war zones did not constitute a relevant legal novum, as this element had already been taken into account in the proceedings on his first asylum request. The applicant filed an objection against this decision with the Deputy Minister and requested the President of the Regional Court of The Hague to issue an injunction to stay his expulsion pending the proceedings on his objection. On 20 January 1997, the Acting President of the Regional Court of The Hague accepted the applicant’s request for an injunction. On the basis of, inter alia, information obtained by the applicant from the Ethiopian Human Rights Council and Amnesty International, the Acting President considered that it was plausible that pilots of the former Ethiopian air force, like the applicant, who had been involved in bombings of the then freedom fighters, did in fact risk serious repercussions from the current Ethiopian authorities, and that a further investigation was required to assess whether the applicant had a well-founded fear of persecution in Ethiopia. The Acting President, having noted the applicant’s statement that the rank last held by him was that of 1st lieutenant-pilot, considered that, to this end, it was necessary to obtain an individual official report (individueel ambtsbericht) on the applicant’s personal situation from the Minister of Foreign Affairs and, after receipt of this official report, to hear the applicant before the Advisory Commission for Aliens’ Affairs (Adviescommissie voor vreemdelingenzaken). On 19 February 1998, the Ministry of Foreign Affairs transmitted the requested individual official report to the Deputy Minister of Justice, who sent a copy to the applicant’s lawyer on 26 March 1998. It reads, in so far as relevant: “1.a. The statement of 16 January 1997 by the Ethiopian Human Rights Council submitted by the [applicant] has been issued by this organisation and the therein-cited ranks of the air force officers are correctly mentioned. 1.b. According to the Ethiopian Human Rights Council and the Special Prosecutor’s Office, 25 air force officers from the former DERG-period are detained in the Kalti prison, which serves as a prison for authorities of the former DERG regime, on suspicion of genocide and crimes against humanity. There is no re-education regime in this prison. Some of these air force officers were arrested and detained in 1991 – after the fall of the DERG rule –, others later in 1994, [and] initially without any official charges having been brought. The[ir] detention was ordered by the Special Prosecutor, who deals with trial proceedings against members of the DERG regime who are accused of genocide and crimes against humanity. A general unofficial accusation against the air force during the DERG-regime is that it has caused many civilian casualties during bombings and firing from the air in the fight against the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF), the Ethiopian Liberation Front (ELF) and the Ethiopian Peoples’ Liberation Front (EPLF). 2. The same rights and obligations as for any other Ethiopian [citizen] apply to former detainees of a re-education camp after their return to Ethiopian society. 3. The ... address in Debre Zeit cited by the [applicant] exists. A sister of the [applicant] and her children live there. According to the persons living at this address and neighbours, the [applicant] had been held in May 1991 in a re-education camp and, towards the end of 1992, had left Debre Zeit for reasons unknown. The [persons heard] did not know when the [applicant] had been released from the above-mentioned re-education camp. According to the same persons, the [applicant] was a lieutenant in the Ethiopian air force, but he would not have studied in Russia. Also according to information by these persons, local militia would have searched for the [applicant] after his departure, because his appointment as lieutenant in the Ethiopian air force would at the time have been a political appointment. 4. In so far as could be verified, the [applicant] has been detained in the re-education camp Tolai. 5. According to the archive of this office, the copy of a letter of 24 June 1993 of the Central Investigation Office, submitted by the [applicant], is not a copy of an authentic document. 6. It has not been possible to verify the authenticity of the identity card ..., submitted by the [applicant] .” On 20 July 1998, the applicant was heard before the Advisory Commission for Aliens’ Affairs. On 18 October 1999, the Ministry of Foreign Affairs informed the Deputy Minister of Justice that a further investigation had been carried out in Ethiopia, and that the applicant’s name was mentioned in the list of suspects of the DERG-tribunal in Addis Abeba. On the basis of the information contained in the individual official report, the Deputy Minister decided to investigate whether the applicant’s situation fell within the scope of Article 1 F of the Convention Relating to the Status of Refugees of 28 July 1951 (“the 1951 Convention”), which provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” The applicant’s lawyer, who learned about this development on 14 January 2000, informed the Minister of Justice on 29 January 2000 that he found this approach unacceptable. On 19 July 2000, an immigration official conducted a further interview with the applicant about his membership of the WPE, his duties as an air force pilot, his career in the air force and whether he had been involved in the bombing of civilian targets. On 29 January 2002, the Deputy Minister of Justice rejected the applicant’s objection against the decision of 8 January 1997. The Deputy Minister found that the applicant’s acts as an air force pilot during the Mengistu regime fell within the scope of Article 1 F of the 1951 Convention, that he could be held responsible for these acts, that consequently Article 1 F applied to his situation and that the applicant was therefore ineligible for asylum. Pursuant to Article 3.107 of the Aliens Ordinance (Vreemdelingenbesluit), he was also ineligible for a residence permit on any other grounds, including a residence permit for a limited duration based on Article 3 of the Convention. On 21 February 2002, the applicant filed an appeal against this decision with the Regional Court of The Hague and, on the same day, requested the provisional measures judge (voorzieningenrechter) of that same court to issue an injunction to stay his expulsion pending the proceedings on his appeal. On 22 March 2002, the applicant filed his written grounds of appeal with the Regional Court of The Hague, in which he argued that Article 1 F of the 1951 Convention had been unjustly applied to his case, and that the decision of 29 January 2002 had been taken in violation of the general principles of proper administration (algemene beginselen van behoorlijk bestuur). In his appeal submissions to the Regional Court, the applicant mentioned Article 3 of the Convention without any further elaboration. In its decision of 12 September 2003, following a hearing held on 27 August 2003, the Regional Court of The Hague rejected the applicant’s appeal. It considered that, pursuant to Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), a person filing a repeat asylum request – i.e. after a negative decision had been taken on an original asylum request – should adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) that were not known when the initial negative decision was taken and of such a nature that it could lead to a different decision. It further noted that, under Article 4:6 § 2, such a repeat request could be rejected with reference to the initial negative decision if no such new facts or circumstances had been adduced. Referring to the case-law of the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), the Regional Court considered that it was for the courts to assess whether there was a novum within the meaning of Article 4:6 and that this included facts or circumstances that had occurred after the negative decision on the original request had been taken or facts or circumstances that could not have been adduced earlier, as well as evidence in support of already submitted facts or circumstances which evidence could not have been submitted prior to the negative decision on the original request. However, even in case these requirements were met, such new facts and circumstances could nevertheless be regarded as not amounting to a novum if it was clear beforehand that they would not affect the decision taken on an original request or the reasons on which this decision was based. In the instant case, the Regional Court held inter alia that the differences in the respective statements given by the applicant in the two subsequent asylum proceedings about the scope of his involvement in war events did raise questions, but could not be regarded as a novum because it concerned information which the applicant already held when he had filed his first asylum request and his participation in flights over war zones had in fact already been addressed in the decision of 1 June 1995 on his first asylum request. It therefore concluded that the applicant’s second asylum was not based on new facts or changed circumstances within the meaning of Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). In accordance with Article 8:79 of the General Administrative Law Act, this decision was notified to the applicant on 26 September 2003. No further appeal lay against this decision. On 15 September 2003, the provisional measures judge declared inadmissible the applicant’s request of 21 February 2002 for an injunction staying his expulsion, as his appeal on the merits had been rejected by the Regional Court of The Hague in the meantime. This decision was also notified to the applicant on 26 September 2003. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet; “the 1965 Aliens Act”). Further rules were set out in the Aliens Decree 1966 (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicates otherwise in this Act. On 1 April 2001, the 1965 Aliens Act and the pertaining regulations were replaced by the Aliens Act 2000, the Aliens Decree 2000, the Regulation on Aliens 2000 and the Aliens Act Implementation Guidelines 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. The applicant’s first asylum request was examined under the 1965 Aliens Act. Although his second asylum request had been introduced under the 1965 Aliens Act, the applicant’s objection against the decision of 8 January 1997 was determined on the basis of the Aliens Act 2000. Under Article 15 § 1 of the 1965 Aliens Act 1965, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the 1951 Convention, as amended by the Protocol of 31 January 1967 (decision of the Judicial Division of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1). Under Article 29 § 1 of the Aliens Act 2000, an alien may be eligible for a residence permit for the purposes of asylum if inter alia: he or she is a refugee within the meaning of Article 1 of the 1951 Convention, or he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. However, if the exclusion clause under Article 1 F of the 1951 Convention applies, the alien concerned loses any protection which would have been available under the 1951 Convention and, consequently, becomes ineligible for a residence permit for asylum under Article 29 § 1 of the Aliens Act 2000. In such a situation and pursuant to Article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000, the alien concerned can neither be granted a residence permit on any of the other grounds referred to in Article 29 § 1 of the Aliens Act 2000. However, a refusal to grant a residence permit on the basis of Article 1 F of the 1951 Convention does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention. In two rulings handed down on, respectively, 2 and 9 June 2004’ examination of these cases had been incomplete. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but, pursuant to Article 1 F of the 1951 Convention, is ineligible for a residence permit, no expulsion order will be issued, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to issue an order for his or her expulsion as soon as his or her removal will no longer entail a risk of treatment contrary to Article 3 in the country of origin or an order for removal to a third State willing to accept the person concerned (Chapter C1/5.13.3.1 of the Aliens Act Implementation Guidelines 2000, as amended on 23 September 2004). Article 4:6 of the General Administrative Law Act provides that a petitioner must adduce newly emerged facts or altered circumstances if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the ne bis in idem principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugee law] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention. According to Article 72 § 3 of the Aliens Act 2000, any act of a public body in respect of an alien is to be equated with a formal decision within the meaning of the General Administrative Law Act, entailing that such an act may be challenged in administrative appeal proceedings. If the act concerns an act aimed at the expulsion of an alien who has been denied admission, the lawfulness of this act will already have been judicially determined in the ruling dismissing the appeal brought against a negative decision on an admission request. However, this is not the case when the situation at the time of expulsion differs from the situation at the time of the judgment rejecting the appeal in such a way that it can no longer be said that the lawfulness of the expulsion has been established (Parliamentary Papers, Lower House (Tweede Kamer) of Parliament, 1999/2000, 26,732, no.7, p. 206). Policy is based on official country reports (ambtsberichten), periodically drawn up by the Netherlands’ Ministry of Foreign Affairs. At the material time, the Netherlands policy was based on the official country report on Ethiopia issued in July 2000. According to this report, the observance of civil and political rights in Ethiopia had, in comparison with earlier years, generally improved. However, despite statutory guarantees, there were in practice breaches of certain fundamental rights, including freedom of expression and freedom of assembly. The victims were journalists, union members and others who were highly critical of the Government, as well as members of the banned opposition parties. The situation was, however, not such that every asylum seeker from Ethiopia automatically qualified for asylum. Any asylum seeker from Ethiopia should demonstrate that his or her personal circumstances – viewed objectively – justified his or her fear of persecution as defined in refugee law or constituted grounds for granting a residence permit on grounds of compelling humanitarian reasons, e.g. because he or she would be subjected to treatment in violation of Article 3 of the Convention if he or she were to return. The most recent official country report on Ethiopia was issued by the Ministry of Foreign Affairs on 14 February 2005. This report, in its relevant part, reads: “3.3.6. The situation in prisons in Ethiopia is wanting, in particular overcrowding is a problem. The food provided in prison is insufficient. Many detainees depend on food brought to them by family and friends. Access to medical facilities is not reliable. The prison conditions are considered to correspond to the general living conditions in Ethiopia. ... The International Red Cross has access to most places of detention. ... Unlike the situation in the past, diplomats were given access to prisons. In addition, they were given permission to visit prominent detainees who are suspected by the ‘Special Prosecutor’s Office’ of war crimes and terrorist activities.... 3.3.7. ... [despite statutory guarantees ] ill-treatment and torture occur in Ethiopia in particular during the first weeks after arrest. It occurs more often in police stations, remands centres and military barracks than in federal prisons. ... The aim of torture is generally to obtain information and to deter. Torture occurs in particular in cases of detention for alleged political activities or acts of civil disobedience. ... Torture and ill-treatment occur more often in rural areas than in the city, and in general is applied more frequently on persons who probably will never come into contact with members of the international community. ... 3.3.10. The Constitution and criminal law allow the death penalty for a considerable number of crimes. Also the amended criminal law has retained the death penalty. Condition for execution of the death penalty is a ratification of the sentence by the President. The Government has for some time already been working on a revision of the criminal law. EHRCO [Ethiopian Human Rights Council; a legal non-governmental organisation] has exerted pressure on the authorities to remove the section relating to the death penalty from the criminal code in the revision process. Since the change of government in 1991, the death penalty has been carried out only once. It concerned the murderer of a popular general, in 1998. During the reporting period, several persons have been sentenced to death, exact numbers are unknown. A number of these cases form a part of the so-called ‘DERG’ court cases. .... It is not known whether these sentences will be carried out. ... 3.4.5. According to the Special Prosecutor’s Office (SPO), the body dealing with the prosecuting of perpetrators of crimes under the Mengistu regime (1977-1991), at least 6,426 persons have been indicted for their role in this regime. Prosecution is brought on the basis of Article 281 (genocide) and Article 282 (war crimes) of the Ethiopian Criminal Code. These provisions have been in force since 1957 and thus applied during the DERG period. Charges brought by the SPO are determined by a specialised tribunal, the ‘Sixth Criminal Bench’ of the ‘Federal High Court’. An appeal and appeal in cassation lies with the ‘Supreme Court’ and the ‘Cassation Court’, respectively. If an accused is found guilty of genocide or murder, the death penalty may be imposed. Whether such a sentence will be effectively carried out is not known. In any event, to date, no death sentence has been carried out (see also § 3.3.10 Death penalty). In particular, higher-ranked army officers and civil servants have been indicted. About half of them are being held, whereas the others are either free in Ethiopia or abroad, or are no longer alive. The first judgments were handed down in November 1999. The sentences that have been imposed to date vary from 10 to 20 years’ imprisonment. The SPO does not give information about the progress of the court proceedings. For this reason, it is not known how many cases are still pending nor what sentences have been imposed during the reporting period.” In the absence of any reasons for change, the Netherlands policy on admitting Ethiopian nationals has remained the same as in 2000. Every asylum seeker from Ethiopia must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to Article 3 of the Convention if returned. | 0 |
train | 001-85627 | ENG | GBR | ADMISSIBILITY | 2,008 | PORTER v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi | The applicant, Mr Brian Porter, is a British national who was born in 1947 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 15 September 1998. In December 2000 the applicant applied for widows’ benefits. On 7 December 2000 the applicant was informed that his claim had been disallowed as he was not a woman. He made a second application to the benefits agency in May 2001. On 17 May 2001 he was informed that he was not entitled to benefits as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-80924 | ENG | RUS | CHAMBER | 2,007 | CASE OF NAYDENKOV v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 4. The applicant was born in 1966 and lives in the town of Taganrog, the Rostov Region. 5. In the 1980s the applicant took part in a rescue operation on the site of the Chernobyl nuclear disaster. As of the late 1990s the applicant has been in receipt of social benefits in this connection. 6. On 1 December 1998 the Taganrog Town Court (“the Town Court”) granted the applicant's claim for unpaid social benefits and ordered the pension authority to make him monthly payments of 1,850.55 Russian roubles (RUR approximately 69 euros (EUR)) and a one-time payment of RUR 32,457 (approximately EUR 1,210). This judgment came into force on 17 April 1999. The sums due pursuant to the judgment of 1 December 1998 were paid in full on 8 May 2002. 7. By a judgment of 4 October 1999 the Town Court granted the applicant's claim for other unpaid social benefits and ordered the authority to pay him RUR 1,850.55 (approximately EUR 69) monthly and also to make him a one-time payment of RUR 85,650 (approximately EUR 3,172). 8. It appears that the judgment was not appealed against by the parties and came into force on 14 October 1999. The respective award was paid in full on 8 May 2002. 9. On 29 August 2000 the Town Court examined and granted the applicant's claim to index-link the social benefits in line with the minimum monthly wage using coefficient “1,581”. It does not appear that the parties challenged the judgment on appeal and on 8 September 2000 it came into force. It appears that the authority disagreed with the judgment and refused to enforce it. 10. On 6 March 2003 the Regional Court, acting by way of supervisory review upon the application of the President of the Rostov Regional Court under the old Code of Civil Procedure which, in its relevant part, remained in force until 30 June 2003, set aside the judgment of 29 August 2000 and remitted it to the first instance court for a fresh examination on the ground of a serious breach of substantive law. 11. It appears that on 5 May 2003 the domestic courts re-examined and eventually rejected the applicant's claim. The respective judgment came into force on 30 June 2003. 12. By a judgment of 5 December 2002 the Town Court examined and granted the applicant's claim for damages in respect of delays in the enforcement of the judgment of 29 August 2000. 13. The court ordered the authority to make him a one-time payment of RUR 39,446.93 (approximately EUR 1,240) and monthly payments of RUR 8,007.74 (approximately EUR 251) starting from 1 January 2003. This judgment was rectified by the Town Court decision of 29 January 2003 and later approved by the Rostov Regional Court on 19 February 2003. 14. It appears that eventually the authority was ordered to pay the applicant RUR 43,102.62 (approximately EUR 1,353) one-time and RUR 8,086.95 (approximately EUR 253) on a monthly basis. 15. It appears that the judgment was re-opened and quashed on the ground of new circumstances by the Town Court on 10 October 2003. The court considered that the quashing of the judgment of 29 August 2000 constituted a new relevant fact and quashed the judgment of 5 December 2002 accordingly. Subsequently, the court decided to reject the applicant's claims. | 1 |
train | 001-60649 | ENG | GBR | CHAMBER | 2,002 | CASE OF BENJAMIN AND WILSON v. THE UNITED KINGDOM | 3 | Violation of Art. 5-4 | Ireneu Cabral Barreto;Nicolas Bratza;Scott Baker | 8. The first applicant, Mr Patrick Benjamin, was sentenced to life imprisonment for rape in 1983. His tariff period (the minimum period of detention satisfying the requirements of retribution and deterrence) was set at six years and expired in April 1989. His time in prison was characterised by periods of thought disorder, delusions and behavioural problems and the Secretary of State decided that he was in need of care and treatment in a secure hospital. In August 1989, he was made the subject of a transfer direction and a restriction order under, respectively, sections 47 and 49 of the Mental Health Act 1983 (the 1983 Act) and transferred to Broadmoor Special Hospital. 9. In October 1993, the Secretary of State decided, following consultation with the trial judge and the Lord Chief Justice, that the first applicant should be regarded as a “technical lifer” (that is a person who was suffering from a mental disorder which influenced him to a significant extent at the time of the offence although the court had not made a hospital order on sentencing). 10. In April 1994, the first applicant was transferred to Bracton Clinic Regional Secure Unit. On 1 July 1996, his case for discharge was considered by the Mental Health Review Tribunal which found that it was not satisfied that the first applicant did not any longer require treatment in a hospital for mental illness. 11. When his case was reviewed most recently, on 9 January 2001, the MHR Tribunal recommended his discharge. The Secretary of State accepted the recommendation and the first applicant was discharged. 12. The second applicant, Mr Hueth Wilson, was sentenced to life imprisonment for buggery of a young girl in 1977. The court had before it psychiatric evidence to the effect that he suffered from mental illness. Expert psychiatric evidence recommended that he should be made subject to a hospital order coupled with a restriction order without limit of time under sections 37 and 41 of the Mental Health Act 1959. Due to an absence of any beds in hospitals providing the level of security that the trial judge considered necessary, the judge felt unable to make the orders and passed, instead, a discretionary life sentence. The judge commented that the second applicant could later be transferred to hospital if his condition required it. His tariff period was set at eight years and expired in 1984. 13. In August 1977, the second applicant was transferred to hospital under the Mental Health Act 1959 (later replaced by the 1983 Act). In November 1977, the applicant returned to prison and there were several other transfers to and from hospital in subsequent years. In October 1992, the second applicant was transferred to Rampton Special Hospital under sections 47 and 49 of the 1983 Act. In June 1993, following consultation with the trial judge and the Lord Chief Justice, the Secretary of State decided that the second applicant should be regarded as a “technical lifer”. 14. On 6 July 1996 the MHR Tribunal considered the second applicant's case for discharge and found that they were not satisfied that he no longer required treatment in hospital for mental illness. His case was reviewed most recently on 13 June 2000 when the Tribunal again did not recommend discharge. 15. By decisions of the Secretary of State for the Home Department communicated to the applicants in October and November 1992, the Secretary of State refused to certify the applicants as eligible for review by the discretionary lifer panels empowered by section 34 of the Criminal Justice Act 1991 to order their release on licence. Leave to apply for judicial review of the decisions was granted on 17 May 1993. 16. On 22 October 1993 the High Court, granting the application, made a declaration that the Secretary of State's policy not to certify discretionary life prisoners under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 (“the 1991 Act”) on the ground that they had been transferred to hospital under the 1983 Act was unlawful ([1994] Q.B. 378). 17. On appeal, on 19 July 1994, the Court of Appeal reversed the High Court's decision in part. It considered that, although the applicants were existing life prisoners within the meaning of the paragraph 9 of Schedule 12, their discharge nevertheless remained subject to the procedure laid down in section 50 of the 1983 Act. The rights to a hearing under the 1991 Act were conferred only on persons who were solely subject to that Act, and not on those who were mental patients ([1995] Q.B. 43). 18. The applicants were informed by letter of 18 May 1995 that the House of Lords had refused leave to appeal. 19. Under section 47 of the Mental Health Act 1983 (“the 1983 Act”), the Secretary of State may transfer a person serving a sentence of imprisonment to hospital if he is satisfied that the person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment, and that the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of the condition. A transfer under section 47 of the 1983 Act is called a “transfer direction”, and has the same effect as if a hospital order had been made under section 37 (1) of the 1983 Act (that is, where a court convicts a person and, instead of sentencing him, orders his detention in hospital). 20. At the same time as making a transfer direction, the Secretary of State may also make a “restriction direction” under section 49 of the 1983 Act. A restriction direction has the same effect as a restriction order made by a court under section 41 of the 1983 Act on conviction, save that because the person was not given a hospital order by the court, the Secretary of State must consent to his discharge from hospital, as well as to the granting of leave of absence or transfer to another hospital. 21. A transferred life prisoner subject to restriction directions can be discharged from hospital in three possible ways. Each can be initiated only by the Secretary of State. (1) Section 42 (2) of the 1983 Act gives the Secretary of State power, if he thinks fit, by warrant to discharge the patient either absolutely or subject to conditions. (2) Section 50 of the 1983 Act provides that where the Secretary of State is notified by the responsible medical officer, and other registered practitioner or a Mental Health Review Tribunal that the person no longer requires treatment in hospital for mental disorder, or that no effective treatment for the disorder can be given in the hospital, the Secretary of State may remit the person to a prison or to a different institution, or he may exercise any power of releasing or discharging him which would have been exercisable if he had been so remitted. (3) Under Section 74 of the 1983 Act, “(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction direction, or where the case of such a patient is referred to such a tribunal, the tribunal - (a) shall notify the Secretary of State whether, in their opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under Section 73 ...; and (b) if they notify him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital. (2) If in the case of a patient not falling within subsection (4) below- (a) the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and (b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged, the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient. ... (4) If, in the case of a patient who is subject to a transfer direction under Section 48 above, the tribunal notify the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal have made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.” 22. Section 73 of the 1983 Act (which relates to restricted patients under section 41 of the 1983 Act) provides that the tribunal must direct conditional discharge if they are satisfied that he is not suffering from mental illness or disorder of a type which makes it appropriate for the person to be detained in a hospital for medical treatment, or that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment, and they believe that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment. 23. In 1985, the Home Secretary announced that life sentence prisoners who had been transferred to hospital would normally be discharged under section 50 of the 1983 Act rather than sections 42 (2) or 74 (2). This enables release on life licence with life-long control rather than the possibility of eventual absolute discharge by the Secretary of State. The policy was found to be lawful in the case of R. v. Secretary of State for the Home Department ex parte Stroud (16 July 1992). 24. Section 34 of the Criminal Justice Act 1991 provides that where a discretionary life prisoner has served his tariff (that is, the “punishment” part of his sentence), and the Parole Board is satisfied that it is no longer necessary for the protection of the public that he should be detained and has directed his release, it is the duty of the Secretary of State to release him. Under Paragraph 9 of Schedule 12, which is a transitional provision to the 1991 Act, the Secretary of State can apply the provisions of section 34 to discretionary life prisoners who were sentenced before section 34 of the 1991 Act came into force on 10 October 1992 by issuing a certificate that, if the 1991 Act had been in force when the person was sentenced, section 34 would have been applied. 25. On 2 October 2000 the Human Rights Act came into force in England and Wales. Section 6 provides as relevant: “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Sub-section (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect to in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions.” | 1 |
train | 001-4969 | ENG | AUT | ADMISSIBILITY | 1,999 | WEDENIG v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1959 and living in Haimburg. He is represented before the Court by Mr Michael Gnesda, a lawyer practising in Vienna. A. On 8 September 1995 the Innsbruck Regional Court (Landesgericht) convicted the applicant inter alia of attempted extortion (versuchte ErpressungOberster Gerichtshof), it noted that it also had to take into account to what extent punishment was necessary to deter the applicant from further wrongdoing or to deter others from committing similar offences. On 12 December 1995 the Supreme Court dismissed the applicant’s plea of nullity (Nichtigkeitsbeschwerde). It noted the applicant’s allegation that the Regional Court had violated the law in that it took aspects of deterrence (Spezial- und Generalprävention) into account when determining his sentence. However, within the statutory range of punishment, the court, when determining which specific sentence was commensurate to the accused’s guilt, had a certain margin of appreciation within which it could also have regard to aspects of deterrence. Thus, the applicant had to be understood as alleging that the Regional Court had not correctly exercised its discretion. This question had to be examined before the Innsbruck Court of Appeal (Oberlandesgericht). On 1 February 1996 the Innsbruck Court of Appeal dismissed the applicant’s appeal (Berufung). It noted that the Regional Court had relied on well established case-law when indicating that it had also taken aspects of deterrence into account. The Court of Appeal stated that it saw no reasons to reduce the sentence and confirmed the Regional Court’s view that the sentence was commensurate to the applicant’s guilt. B. Relevant domestic law and practice The applicant alleges that the determination of the concrete sentence was in contradiction with section 32 of the Criminal Code (Strafgesetzbuch). Section 32 in the version which was in force at the material time - read as follows: “(1) The basis for assessing the sentence is the degree of the offender’s guilt. (2) In assessing the sentence, the court must weigh up the aggravating and mitigating factors, in so far as they have not already been taken into account to determine the type or tariff of penalty applicable. It must have regard, above all, to the extent to which the offence can be attributed to an attitude of rejection or indifference on the part of the offender towards values protected by the law, and the extent to which it can be traced back to external circumstances or motives capable of inducing even a law-abiding person to commit it. (3) As a general principle, the severity of the sentence should be increased in proportion to the significance of the damage or injury, or risk of damage or injury, caused by the offender or for which he is liable, even if he did not cause it himself; the number of duties he breached by his conduct and the degree of premeditation, of care in preparing or ruthlessness in committing the offence, and in inverse proportion to the extent to which it could be guarded against.” The established case-law (see for instance the Supreme Court’s judgments of 10.10.1977, EvBl 1978/49, of 21.06.1979, EvBl 1979/208, of 09.12.1980, EvBl 1981/117 and of 24.03.1983, EvBl 1984/38), as well as the prevailing opinion in academic writing (see for example Burgstaller, Grundprobleme des Strafzumessungsrechts in Österreich, ZStW 94 (1982) 127), interpret the above provision as follows: The offender’s guilt is decisive for the determination of the penalty. However, the offender’s guilt cannot be equated to one precise amount of penalty (Punktsstrafe), but determines a range of possible punishment (Schuldrahmentheorie). The actual sentence imposed on the offender must not exceed this range. Within this range, however, aggravating and mitigating circumstances as enumerated in sections 33 and 34 of the Criminal Code as well as aspects of deterrence may be taken into consideration when determining the actual amount of penalty. | 0 |
train | 001-4670 | ENG | AUT | ADMISSIBILITY | 1,999 | VEREIN NETZWERK v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is a non-profit-making association with its seat in Hirtenberg. It is represented before the Court by Mr. Herbert Pochieser, a lawyer practising in Vienna. The applicant association has the aims of, inter alia, creating accommodation for socially disadvantaged persons, of speaking out for the concerns of socially disadvantaged persons, refugees and foreign workers, and of creating possibilities of encounter and exchange with these persons. In order to achieve these objectives it runs a house in Hirtenberg, which offers accommodation for socially disadvantaged persons in particular for young people and foreigners. The chairman of the applicant association is also living there. On 7 October 1992, in the late evening, police officers carried out a control in this house. On 16 November 1992 the applicant association lodged a complaint with the Lower Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat) alleging violations of Articles 8, 9 and 11 of the Convention and of the Protection of the Home Act (Gesetz zum Schutz des Hausrechts). The Independent Administrative Panel held hearings on 25 June and 17 November 1993. It heard the chairman of the applicant association, the police officers who had carried out the control and the mayor of Hirtenberg as witnesses. On 10 May 1994 the Independent Administrative Panel partly rejected the applicant association’s complaint as being inadmissible and party dismissed it as being unfounded. Having regard to the evidence taken, it found the following facts established. Following a number of complaints from neighbours about illegally resident foreigners, the mayor of Hirtenberg requested the District Administrative Authority (Bezirkshaupt-mannschaft) to carry out a control under the Residence (Registration) Act (Meldegesetz). The control was carried out in the late evening of 7 October 1992. The police officers were let into the house by some of the inhabitants. The chairman of the applicant association criticised the late hour of the control but did not otherwise object. He contributed to the smooth carrying out of the control in that he went around with the police officers, gave general information about the inhabitants (e.g. about their country of origin), acted as a translator and helped to produce the required documents. The rooms within the house were opened upon request. The police examined whether the foreigners were legally resident by controlling their identity documents and residence permits, or by checking the status of their asylum proceedings. A search of the rooms was not carried out. The control was terminated within three quarters of an hour. The Independent Administrative Panel found that the applicant association, being a legal person, did not have a private and family life. Thus it could not rely on Article 8 of the Convention. Moreover, it had not claimed, and there was no indication, of any interference with its right to respect for its correspondence. Accordingly this complaint had to be rejected as being inadmissible. As regards the control, the Independent Administrative Panel noted that also a legal person could rely on the Protection of the Home Act. However, the said Act only applied where a search had been carried out. As the police officers were voluntarily granted access to the house as well as to each of the rooms within the house and, assisted by the applicant association’s chairman, only controlled the documents of the inhabitants, the contested action could not be qualified as a search. The Independent Administrative Panel added that the protection afforded by Article 8 of the Convention went further, in that it covered not only a search of premises but any interference with the right to respect for one’s home. In the present case the control was in conformity with Article 8 § 2 of the Convention, in particular it had its legal basis in the Residence (Registration Act) and the Aliens Police Act (Fremdenpolizeigesetz). Consequently, the complaint had to be dismissed as being unfounded. Further, the Independent Administrative Panel found that the applicant association, as a legal person, could not rely on Article 9 of the Convention and, therefore, rejected this complaint as being inadmissible. Finally, as to the complaint under Article 11 of the Convention, the Independent Administrative Panel found that the control at issue was not aimed at the applicant association but at the inhabitants of the housing project, who were not even necessarily members of the applicant association. Moreover, the control did not prevent the applicant association from pursuing its objectives. Even assuming that there had been an interference with the applicant association’s freedom of association, it had to be regarded as necessary in the interests of public safety. Having regard to the short duration of the control, it was also proportionate. Thus, this complaint was also unfounded. On 27 June 1994 the applicant association lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). It relied on Article 8 of the Convention and on the Protection of the Home Act. It argued that the control carried out in its premises had to be qualified as a search and that it lacked a legal basis. Further, it relied on Article 11 of the Convention, claiming that the search prevented it from pursuing its objectives. On 28 November 1994 the Constitutional Court refused to deal with the applicant association’s complaint for lack of prospects of success. It noted that the case was not excluded from the jurisdiction of the Administrative Court (Verwaltungsgerichtshof). Subsequently the Constitutional Court, upon the applicant association’s request, referred the case to the Administrative Court. On 4 September 1995 the applicant association, upon the Administrative Court’s request, supplemented its complaint. It repeated its argument that the control had to be qualified as a search which lacked a legal basis, and added that there had not been any reasonable suspicion that foreigners were illegally resident on the premises. On 10 October 1995 the Administrative Court rejected the applicant association’s complaint as being inadmissible. It noted that the association relied on the right to respect for its home. This was a constitutionally guaranteed right which the Administrative Court was not called upon to review. The decision was served on 23 November 1995. | 0 |
train | 001-70538 | ENG | TUR | CHAMBER | 2,005 | CASE OF YILDIZ YILMAZ v. TURKEY | 4 | Violation of Art. 6-1;Not necessary to examine under Art. 6-2;Not necessary to examine under Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | null | 7. The applicant was born in 1960 and lives in Uşak. 8. On 15 December 1997 the applicant was arrested by the Anti-Terrorist Branch of the İzmir Police Headquarters on suspicion of membership of an illegal armed organisation, the Revolutionary Communists’ Union of Turkey (“the TIKB”, Türkiye İhtilalci Komünistler Birliği) and placed in custody. 9. In her statement of 18 December 1997 the applicant declared that she aided and abetted the members of the TIKB and that she provided information to the TIKB members who were held in prison. 10. On 19 December 1997 the applicant was brought before the Public Prosecutor at the İzmir State Security Court and then before the judge, where she denied all the charges against her. She declared that her statement in police custody was taken under duress and that she had been given electric shocks. The judge ordered the applicant’s detention pending trial. 11. On 23 December 1997 the Public Prosecutor at the İzmir State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation, aiding and abetting the organisation, providing information to its members who were imprisoned and participating in the demonstrations organised by the organisation. 12. On 4 June 1998 the İzmir State Security Court convicted the applicant under Article 169 of the Criminal Code and sentenced her to three years and nine months’ imprisonment. 13. On 23 June 1998 the applicant appealed against this decision to the Court of Cassation. 14. On 20 September 1999 the Court of Cassation upheld the decision of State Security Court. 15. On 14 October 2000 the Court of Cassation’s decision was deposited with the registry of İzmir State Security Court. 16. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). | 1 |
train | 001-90060 | ENG | RUS | CHAMBER | 2,008 | CASE OF MATYUSH v. RUSSIA | 3 | Remainder inadmissible;Violation of Art. 3;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4 | Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 6. The applicant was born in 1964 and lives in the town of Solnechnogorsk in the Moscow Region. 7. On 8 March 1999 the applicant was arrested on suspicion of having committed franchise fraud, that is, having organised a financial pyramid scheme in which more than one hundred persons had been enrolled and which had caused fraudulent losses of over 23,000,000 Russian roubles. Three days later a prosecutor authorised the applicant’s placement in custody on the ground that she was charged with a serious criminal offence and was liable to abscond and pervert the course of justice. 8. On 6 May and 2 July 1999 the Omsk Regional Prosecutor extended the applicant’s detention until 8 July and 8 September 1999 respectively, having regard to the gravity of the charges. 9. On 3 September and 29 November 1999 a deputy Prosecutor General of the Russian Federation, invoking the same grounds as in the previous detention orders, authorised the extension of the applicant’s detention until 8 December 1999 and 8 March 2000 respectively. 10. On 25 February and 26 June 2000 the acting Prosecutor General of the Russian Federation authorised further extensions of the applicant’s detention until 8 July and 8 September 2000 respectively. The reasons for both extensions were the same: the gravity of the charges and the applicant’s liability to abscond and pervert the course of justice. 11. On 15 August 2000 the Omsk Regional Prosecutor asked the Omsk Regional Court to extend the applicant’s detention for an additional six months because the applicant needed additional time to read the case file. The prosecutor also noted that the applicant and her co-defendants had participated in an organised criminal offence, had been charged with serious criminal offences, and had influenced other defendants, witnesses and victims. They were liable to abscond and pervert the course of justice. 12. On 23 August 2000 the President of the Omsk Regional Court wrote in the corner on the first page of the prosecutor’s application that he authorised the extension of the applicant’s and her co-defendants’ detention until 8 March 2001. 13. On an unspecified date the applicant and her co-defendants appealed against the order of 23 August 2000. They claimed that the maximum eighteen-month period of their detention would expire on 8 September 2000. An extension of the detention beyond eighteen months was possible only if the defendant needed more time to read the case file. The applicant insisted that she had finished studying the file and that there were therefore no grounds for a further extension. 14. On 22 November 2000 the Supreme Court of the Russian Federation examined the applicant’s and her co-defendants’ appeals against the order of 23 August 2000, quashed it and remitted the matter to the Omsk Regional Court for fresh examination. The relevant part of the Supreme Court’s decision reads as follows: “By virtue of Articles 220-1 and 220-2 of the RSFSR Code of Criminal Procedure the judge has to examine the lawfulness and well-foundedness of the request for extension of the detention of Ms Matyush... and has to issue a reasoned decision as required by paragraph 8 of Article 220-2 of the RSFSR Code of Criminal Procedure. Moreover, paragraph 2 of Article 102 of the RSFSR Code of Criminal Procedure requires that [a court] should prepare minutes of a court hearing in which the issue of extension of detention is examined... [the minutes] should indicate who participated in the hearing and should reflect the progress of the examination of the materials. The minutes of the court hearing and the reasoned decision of the judge were not included in the materials presented to the Supreme Court of the Russian Federation, which constitutes a gross violation of the requirements of the RSFSR Code of Criminal Procedure. Accordingly, the decision [of the President of the Regional Court] should be quashed and the case file should be sent for re-examination. The Supreme Court cannot accept counsel’s requests for Ms Matyush’s release... because [the Supreme Court] is unable to conclude from the presented decision whether [she] is detained lawfully or unlawfully, and counsel’s arguments are based on this circumstance. In the course of the fresh consideration of the file, the [Regional] Court has to examine thoroughly all the arguments set out in the application by the Omsk Regional Prosecutor and to give a reasoned decision. On the basis of the foregoing, and in accordance with Articles 332 and 339 of the RSFSR Code of Criminal Procedure, the Court decides: To quash the decision of 23 August 2000 of the President of the Omsk Regional Court by which an extension of Ms Matyush’s... detention was authorised and to refer the case back for fresh consideration... The preventive measure applied to Ms Matyush... should remain unchanged, namely detention on remand.” 15. On 19 January 2001 the Omsk Regional Court extended the applicant’s detention until 8 March 2001, noting the gravity of the charges against her. The Regional Court held that the gravity of the charges could serve as the sole ground for the detention, but it also pointed to the applicant’s failure to finish studying the file. 16. On 3 May 2001 the Supreme Court upheld the decision of 19 January 2001, stating that the applicant had been charged with especially serious criminal offences and her detention had been authorised and extended a number of times in accordance with the requirements of the RSFSR Code of Criminal Procedure. The request for extension of the applicant’s detention until 8 March 2001 had also been lodged in compliance with Russian law. The applicant did not have a permanent place of residence in the Omsk Region, where the investigation was being conducted, and she was liable to abscond. The extension of the applicant’s detention had been necessary as she had continued reading the case file. 17. On 2 March 2001 the bill of indictment was served on the applicant. She was charged with aggravated fraud, forgery of documents, money laundering and organisation of a criminal enterprise. Five days later the case was referred for trial. 18. On 10 July 2001 the Omsk Regional Court scheduled the first trial hearing. It also examined requests by the applicant and her co-defendants for release and dismissed them on the ground of the gravity of the charges. 19. In July 2001 the applicant appealed against the order, arguing that the Regional Court had failed to issue a reasoned decision concerning the extension of her detention. Three of the applicant’s co-defendants also appealed and sought leave to appear at the appeal hearing. The applicant did not file such a request. 20. On 25 October 2002 the Supreme Court of the Russian Federation upheld the decision of 10 July 2001, noting that the Regional Court had acted within its competence. The Supreme Court further held as follows: “By virtue of Article 96 § 1 of the RSFSR Code of Criminal Procedure... in force at the time the Regional Court issued its decision [of 10 July 2001], detention could be authorised as a preventive measure in respect of persons suspected or accused of having committed a criminal offence punishable by more than two years’ imprisonment. As appears from the presented materials, Ms Matyush... was charged with criminal offences punishable by more than two years’ imprisonment. Having regard to this circumstance, the investigating authorities correctly applied the preventive measure. By virtue of Article 222 of the RSFSR Code of Criminal Procedure, when a judge schedules a court hearing, he should, among other issues, determine matters concerning the adjustment or annulment of preventive measures. When there is a necessity to annul a preventive measure or to change it to a stricter or a more lenient one, a judge determines the matter and gives a decision accordingly. As appears from the materials submitted, the [Regional Court] did not determine an issue concerning the change or annulment of the preventive measure and, accordingly, there was no need to issue a decision on the matter.” 21. On 1 July 2002 the new Code of Criminal Procedure became effective. 22. On the same day the Omsk Regional Court, by the same decision, extended the applicant’s and her co-defendants’ detention until 1 October 2002, holding that they were charged with especially serious criminal offences, had no place of residence in the Omsk Region and were liable to abscond. It appears that at the hearing the applicant unsuccessfully challenged the composition of the bench. 23. The applicant and her co-defendants lodged appeals against the decision. Three of the co-defendants, but not the applicant, sought leave to appear at the appeal hearing. 24. On 25 October 2002 the Supreme Court of the Russian Federation upheld the decision of 1 July 2002, confirming that the gravity of the charges could serve as the sole ground for the applicant’s and her co-defendants’ continuing detention. The applicant’s lawyer, who had been duly notified of the hearing, did not attend. 25. On 1 October 2002 the Omsk Regional Court authorised a further extension of the applicant’s and her co-defendants’ detention until 1 January 2003. It relied on the gravity of the charges against them as the ground for the extension. 26. The applicant appealed, arguing that the gravity of the charges could no longer serve as the reason for her continuing detention and that her detention was excessively long. 27. On 17 April 2003 the Supreme Court of the Russian Federation upheld the decision of 1 October 2002, holding that the applicant and her co-defendants were charged with serious criminal offences and that that ground was sufficient to authorise their detention for an additional three months. 28. On 25 December 2002 the Omsk Regional Court, once again relying on the gravity of the charges, extended the applicant’s and her co-defendants’ detention for an additional three months, until 1 April 2003. 29. The applicant appealed. She did not seek leave to appear. In the meantime, on 31 March 2003 the Omsk Regional Court authorised a further extension of the detention for an additional three months, until 1 July 2003, on the ground of the gravity of the charges. 30. On 17 April 2003 the Supreme Court of the Russian Federation quashed the decision of 25 December 2002 and authorised the applicant’s release on a written undertaking not to leave the town. The relevant part of the decision reads as follows: “By virtue of Article 255 of the Russian Federation Code of Criminal Procedure, a court which has jurisdiction to examine a case has the right to extend the detention of a defendant after the expiry of the six-month period following the committal of the case for trial. A court decision concerning a preventive measure, the type of measure taken, an extension of detention or a change of a preventive measure should be reasoned. When indicating the grounds for its decision concerning the extension of the detention, the court has to take into account not only the seriousness of a criminal offence with which a defendant was charged, but also other grounds and circumstances, as indicated in Articles 97 and 99 of the Code of Criminal Procedure. This requirement of the law was not complied with when the [Regional] Court determined the matter of the extension of the defendants’ detention. As follows from the materials submitted, when extending the detention of Ms Matyush... and identifying the grounds for the extension of the detention, the court referred only to the fact that the defendants were charged with serious and particularly serious criminal offences. Furthermore, the court decision did not indicate what had served as the grounds for the extension of the detention or whether the court could have concluded that the defendants would abscond, continue criminal activities, threaten witnesses and other parties to the proceedings, and so on. When the gravity of the charges is taken into account, [the court] should also have regard to all the legal characteristics of the criminal offence and of the person who committed it. In particular, it is necessary to consider the character and degree of a threat to society posed by the criminal offence in question, the state of health of the defendant, his family status, including the right of detainees to trial within a reasonable time or to release pending trial as provided for by Article 5 of the European Convention on Human Rights. As is rightfully pointed out in the grounds of appeal, the court did not take into account those circumstances and did not examine the [defendants’] arguments. ... Having regard to the fact that the court breached the requirements of the law while determining the issue of detention and that the case is currently at the final stage of court proceedings..., the [Supreme Court] considers that the defendants cannot influence other parties to the proceedings, that they have permanent places of residence, and that they were detained for a long time [over four years], which had a negative influence on the state of their health,... and the preventive measure should be changed to written undertakings not to leave the town.” 31. According to the Government, on 17 April 2003 a copy of the decision of the Supreme Court was sent by special courier to Omsk, where the applicant was being detained, and arrived there on 21 April 2003. The applicant was released on the same day. 32. On 21 April 2004 the Omsk Regional Court, composed of Mr Tsvetkov, the presiding judge, Ms Moskalenko and Ms Marchenko, lay assessors, found the applicant guilty of aggravated fraud and sentenced her to seven years’ imprisonment. 33. The applicant and her co-defendants appealed. They claimed that the Regional Court had been composed in breach of provisions of the new Code of Criminal Procedure in that the lay assessors should not have participated in the trial after 1 January 2004. 34. On 25 November 2004 the Supreme Court of the Russian Federation upheld the applicant’s conviction. As regards the complaint related to the lay assessors, the Supreme Court held as follows: “The allegations of the defendants ... concerning the unlawful composition of the [trial] court... that due to the entrance into force of the Russian Code of Criminal Procedure such category of cases should have been decided by a single judge, are unfounded. The case was scheduled for consideration by a judge and two lay assessors. The consideration of the case on the merits began at the first hearing of 14 August 2001 by the court composed of the presiding judge and two lay assessors, chosen by way of casting lots, i.e. in accordance with the provisions of the law on criminal procedure in force at the material time. Thus, the Supreme Court does not see any violation of the law in that the examination of the case had been finished by the same court which had started its examination because according to § 1 of Article 242 of the Code of Criminal Procedure a case should be examined by the same court and because the law on criminal procedure does not have retroactive effect.” 35. From the day of the arrest until her release on 21 April 2003 the applicant was detained in facility no. IZ-55/1 in Omsk. 36. According to certificates issued on 29 May 2006 by the director of the facility and produced by the Government, between 12 March 1999 and 22 November 2001 the applicant was detained in seven different cells measuring from 16.2 to 41.7 square metres. She was usually kept together with no more than seven inmates. The design capacity of the cells had not been exceeded. The Government submitted that at all times the applicant had had at least 4 square metres of personal space. They supported their assertion with the facility director’s certificate issued on 29 May 2006 which showed the number of detainees on 12 and 15 March and 18 and 21 December 1999, 22 October and 1 November 2000, and 12 and 18 February, 26 March and 22 November 2001. In another certificate issued on 29 May 2006 the director of facility no. IZ-55/1 stated that “while detained in those [seven] cells [the applicant] had had an individual bunk and bedding”. The Government did not provide any information on the number of detainees in cells where the applicant had been detained after 22 November 2001. 37. The applicant did not dispute the cell measurements. She alleged, however, that she had been afforded less than 2 square metres of floor surface as the cells had been severely overcrowded. Given the lack of beds, inmates had slept in shifts. 38. The Government, relying on the information provided by the director of the facility, submitted that all cells were equipped with a lavatory pan, a tap, a sink and a ventilation shaft. The lavatory pan was separated from the living area by a one-and-a-half-metre-high partition. The smaller cells had one window and the larger cells had two windows which measured 150 by 120 centimetres in width. The windows had a casement. Inmates could request warders to open the casement to let fresh air in. However, until an unspecified date in 2001 the windows had been covered with metal shutters blocking access to natural light and air. The cells were equipped with lamps which functioned day and night. Inmates were allowed to take a shower once a week for fifteen minutes. The cells were disinfected once a month. A central-heating system was installed in the building. The Government further stated that the applicant was given food three times a day “in accordance with the established norms”. Medical personnel at the facility checked the quality of the food three times a day and made entries in registration logs. The applicant had a one-hour walk daily. 39. According to the Government, detainees, including the applicant, were provided with medical assistance. They had regular medical check-ups, including X-ray examinations, blood tests, and so on. On her admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy. On 8 February 2002 a prison doctor diagnosed the applicant with acute respiratory disease and prescribed treatment. On 22 November 2002 the applicant was diagnosed with bronchopneumonia. She was transferred to the facility hospital, where she was treated until 23 December 2002. On two other occasions, from 20 January to 14 February 2003 and from 25 March to 22 April 2003, the applicant was admitted to the prison hospital with the diagnosis of bronchopneumonia. The Government gave a detailed description of the treatment administered to the applicant, including the type of medicine, dose and frequency. They also furnished a copy of the applicant’s medical record and medical certificates. 40. The applicant disagreed with the Government’s description and submitted that the sanitary conditions had been unsatisfactory. The cells were infested with insects but the administration did not provide any insecticide. The windows were covered with metal blinds which blocked access to natural light and air. Inmates had to wash and dry their laundry indoors, creating excessive humidity in the cells. Inmates were also allowed to smoke in the cells. The lavatory pan was separated from the living area by a partition affording no privacy to inmates. The food was of poor quality and in scarce supply. The applicant further argued that she had not been adequately treated in the prison hospital. She insisted that she had contracted a serious respiratory disease and had stayed in the prison hospital for a long time because the conditions of her detention had been unsatisfactory and because it had been extremely cold in winter in the cells. The applicant complained to various domestic officials, including the trial judge, about the conditions of her detention. No response followed. 41. For a summary of relevant domestic law concerning detention on remand see Shukhardin v. Russia (no. 65734/01, §§ 36-56, 28 June 2007). 42. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. 43. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited the Russian Federation from 2 to 17 December 2001. The section of its Report to the Russian Government (CPT/Inf (2003) 30) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows: “b. temporary holding facilities for criminal suspects (IVS) 26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day. The actual conditions of detention in the IVS establishments visited in 2001 varied considerably. ... 45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding. When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years. ... The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General’s Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee’s delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2). ... 125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony’s administration”. In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.” | 1 |
train | 001-87936 | ENG | GBR | ADMISSIBILITY | 2,008 | MORELLI v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Carmine Morelli, is an Irish national who was born in 1941 and lives in Stockport. He was represented before the Court by Ms A. Faulkner, a senior welfare rights officer in Stockport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 19 November 1987. On 11 October 2000, the applicant made a claim for widows’ benefits. On 17 October 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed and on 20 January 2002 his appeal was rejected. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-61228 | ENG | GBR | CHAMBER | 2,003 | CASE OF PERRY v. THE UNITED KINGDOM | 1 | Violation of Art. 8;Non-pecuniary damage - financial award | Georg Ress;Mark Villiger;Nicolas Bratza | 7. The applicant was born in 1964 and is currently detained in HM Prison Brixton. 8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade. 9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address. 10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent. 11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend. 12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997. 13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984. 14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused. 15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use. 16. The applicant's trial commenced in January 1999. 17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“voir dire”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible. 18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code. 19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment. 20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal. 21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords. 22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000. 23. Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. 24. In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; (c) there must be good reason to think that the use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism and (d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence. 25. Section 78(1) of PACE provides as follows: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” 26. In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case. 27. The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant: “D:2.6 The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade. D:2.10 The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action. D:2.11 The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16. However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so. D:2.12 A video identification must be carried out in accordance with Annex B. ... D:2.15 Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect: (i) the purposes of the parade or group identification or video identification; (ii) that he is entitled to free legal advice (see paragraph 6.5 of Code C); (iii) the procedures for holding it (including the right to have a solicitor or friend present); ... (vi) that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged; (vii) if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ... D:2.16 This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.” 28. Annex B set out the details for arranging a video identification, including how, the number and appearance of participants etc. | 1 |
train | 001-111224 | ENG | DEU | ADMISSIBILITY | 2,012 | BRÄUNIG v. GERMANY | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger | 1. The applicant, Mr Klaus Rudolf Bräunig, is a German national who was born in 1944. He is currently serving a sentence of life imprisonment in Diez prison, Rhineland-Palatinate. He was represented before the Court by Mr K. Wasserburg, a lawyer practising in Mainz, in cooperation with Mr O. Lagodny, a professor at Salzburg University. 3. The applicant was arrested in the night of 20 June 1970 while trespassing on a residential estate in a Mainz suburb where he was suspected of having engaged in voyeuristic activities. The arrest occurred within the scope of police surveillance measures carried out following the killing of two women, mother and daughter, in the night of 12 April 1970 in a nearby housing area in Mainz. On an evening a couple of days before the killings a man had been noticed in the garden of the victims’ house at night while observing the daughter through her bedroom window. There were thus grounds for suspecting that the two women had been killed by the said voyeur. 4. In the course of police interrogations carried out during the week following his arrest, the applicant first confessed having engaged in voyeuristic activities on several occasions in the past, then admitted to having assaulted a girl on two occasions in 1969 and, finally, he confessed to the killing of the two women in the night of 12 April 1970. On the occasion of subsequent interrogations and interviews during his pre-trial detention, the applicant - while maintaining his confession that he had engaged in voyeuristic activities in the past - repeatedly withdrew and renewed his confessions regarding the sexual assaults in 1969 and the killings in 1970. His description of the order and the way in which the killings had been committed differed from the account given on the occasion of his first confession. 5. On 13 August 1970 the applicant - now represented by counsel - finally revoked all previous confessions regarding the assault and killings and has protested his innocence ever since. 6. According to the bill of indictment submitted by the Public Prosecutor to the Mainz Regional Court on 30 March 1972, it was likely that the applicant had first killed the daughter and subsequently the mother in order to cover up the daughter’s murder. 7. In the course of the applicant’s subsequent trial it was established that during the period from 1967 to 1970 the applicant had been active as a voyeur on numerous occasions. He had approached the homes of several girls or young women in the dark in order to observe them from outside. On most occasions he had further tried to draw his victims’ attention to himself, asked them to have sexual intercourse and masturbated in front of their windows. His attempts to enter the women’s homes by force were generally to no avail. However, on two occasions in 1969 the applicant managed to enter the home of an unsuspecting young woman through an open window and knocked her down when she rejected his sexual advances. As regards the killings of the two women in April 1970, the court found it established that during the period from the end of March to 10 April 1970 the applicant had repeatedly observed the 17-year-old daughter at night through the window of her bedroom in her parent’s house in Mainz. In the night of 12 April 1970 the applicant broke into the family’s home with a view to having sexual intercourse with the girl. He first killed the mother who had woken up when he had entered the house with a knife he carried along. He then went to the daughter’s bedroom. When the latter rejected his sexual advances, the applicant - out of anger and sexual frustration - hit and stabbed the girl in the head and throat with his knife so that she bled to death. 8. In its judgment of 19 July 1972 (file no. 2 Ks 2/72) the Mainz Regional Court held that the applicant had killed both women out of base motives. The Regional Court based its findings in particular on the applicant’s detailed description of the crime scene in the course of the preliminary proceedings as well as on his account of the events given on the occasion of his first confession of the killings in June 1970. 9. Referring to the opinions of two psychiatric experts, the Regional Court considered that the applicant was suffering from a sexual deviation that had reached addictive dimensions and could considerably restrict his ability to control his acts in a sexual context. However, his sexual deviation did not amount to a mental illness that would exclude his criminal responsibility. In view of the particular gravity of the offences and the applicant’s guilt the Regional Court also saw no reason to mitigate the applicant’s sentence. 10. Consequently, the Regional Court found the applicant guilty on two counts of murder and sentenced him to life imprisonment in each case in accordance with Article 211 of the German Criminal Code. 11. On 6 December 1973 the Federal Court of Justice, after hearing the applicant and the Federal Prosecutor General (Generalbundesanwalt) rejected the applicant’s appeal on points of law as ill-founded. 12. By a decision of 22 June 1982, confirmed on appeal, the Bad Kreuznach Regional Court dismissed the applicant’s request for a reopening of the proceedings as inadmissible. 13. On 13 November 1984 the Koblenz Regional Court, having heard the applicant, the Diez prison authorities as well as the Mainz public prosecution authorities, concluded that in the case at hand the particular gravity of the applicant’s guilt justified the continuation of his detention for more than the minimum period of fifteen years envisaged for murder. However, the Court of Appeal specified that such finding did as a rule not exclude the suspension of the remainder of a life sentence at a later stage, for instance after a period of 18, 20 or 25 years. 14. In the following years various psychiatric and psychologist expert opinions were obtained by the Diez prison authorities on the question whether the applicant could be granted relaxations of his detention (Vollzugslockerungen) and whether his future release on probation was conceivable. 15. For instance, a psychiatric expert stated in an opinion rendered on 20 May 1985 that the applicant’s perversion had developed progressively and had finally escalated in destructive behaviour. The expert further found that the applicant’s insistence on his innocence had meanwhile reached a pathological quality in itself and prevented him from accepting therapeutic help. It was thus impossible from a psychiatric point of view to assess whether the applicant had actually committed the crimes or to give a reliable criminal prognosis for the future. Having regard to, inter alia, the applicant’s unobtrusive behaviour during detention, the expert saw no acute risk of recidivism and proposed to test the applicant’s capacity to cope with life outside prison on the occasion of relaxations of his detention. He nevertheless specified that a theoretical risk that the applicant would commit further crimes could not be excluded. 16. In a statement of 6 January 1989 the resident psychologist at Diez prison pointed out that the applicant still had problems in establishing interpersonal relations and trivialised his voyeurism. Thus, a potential danger that the applicant’s sexual perversion would resurge in the event of his release on probation could not be excluded. 17. However, in a statement of 12 November 1990 a Limburg psychotherapist who had provided regular outpatient psychological treatment to the applicant since July 1970 found that, having regard to the therapy carried out so far, there was “no compelling reason to assume” that the applicant had been intellectually capable of organising and committing the crimes. Consequently, it was also not to be expected that he would be capable of committing similar crimes in the future. 18. The applicant was granted first relaxations of his detention from September 1991. However these relaxations were later revoked as a consequence of an expert opinion by a professor of Mainz University rendered in September 1993. This expert stated that as a consequence of inappropriate therapy measures during his detention the applicant had taken to insist on his innocence and had become resistant to any further therapy attempts. The expert was of the opinion that irrespective of the fact that relaxations of the applicant’s detention in the past had not given cause for complaints, there was a high risk that he would reoffend if confronted with conflict situations similar to the one that had been at the origin of the murders. In this expert’s opinion the danger the applicant posed to society was not lower than at the time he had committed the crimes. 19. A further psychiatrist opinion of 4 October 1994 considered that the applicant had made considerable progress as regards his ability to establish interpersonal relationships and had learned to constructively deal with his sexuality. The expert further pointed out that the applicant had not abused previous relaxations of his detention and had not shown aggressive or sexually deviating behaviour in the course of his meanwhile 24 years of detention. He therefore suggested that relaxations of his detention be reinstated with a view to testing whether a conditional suspension of his life sentence could be considered in the future. 20. Consequently, in 1995, the applicant was transferred to open prison facilities, allowed to take up employment outside prison and to make his journeys to and back from work without supervision. He was further granted prison leave that he spent in an apartment rented by him for this purpose. 21. The same psychiatric expert who had rendered the opinion in 1994 addressed the possibility of the applicant’s conditional release on probation in a further opinion of 26 August 1996 commissioned by the Mainz Senior Public Prosecutor (Oberstaatsanwalt). The expert noted that the applicant had made further progress with a view to his social integration and that his conduct during relaxations of his detention had been unobjectionable. He therefore confirmed his previous finding that the applicant’s criminal prognosis was rather positive. He pointed out that, however, the applicant still lacked experience in establishing and maintaining sexual relations. While the risk of recidivism could be further reduced by accompanying therapeutic treatment, it was impossible to assess the likelihood that the applicant would commit further serious crimes if confronted with a situation of conflict in a sexual context. 22. In a statement of 8 August 1996 the Limburg psychologist who had attended to the applicant since 1970 (see § 17 above) expressed the view that as a result of specific therapeutic measures implemented since 1990 the applicant had gained in social competence and made progress regarding a possible social integration. He had learned to control his actions and therefore further relaxations of his detention should be considered. 23. By a decision of 10 November 1997 the Koblenz Regional Court held that the particular gravity of the applicant’s guilt had been compensated by the execution of his sentence for meanwhile over 27 years and thus did no longer require the continued execution of his life sentence. In line with the proposal of the public prosecution authorities, the court, after having heard the applicant on 9 September 1997, nevertheless refused the latter’s first request to suspend his detention on probation on the ground that there remained a risk that he would commit similar offences if released. 24. The applicant’s related appeal was dismissed by the Koblenz Court of Appeal on 14 January 1998. The Court of Appeal noted that if, as in the case at hand, the offence at issue qualified as murder, the safety interest of the public was of particular importance. A release on probation could not be considered if there remained an even remote risk that the convict would commit further serious crimes if released. While the findings in the numerous psychological and psychiatric expert opinions established over the years had been to some extent contradictory, they had nevertheless all confirmed that a risk that the applicant would commit further serious crimes threatening the life of others could not be excluded. The court specified that the statement of the applicant’s long-time therapist of 12 November 1990 (see § 17 above) which was at variance with the experts’ findings did not lead to a different conclusion since this therapist was lacking the required distance and impartiality. 25. On 11 August 1998 the applicant again requested that he be released on probation and submitted that his continued detention for meanwhile 28 years violated his human dignity. 26. On 8 June 1999 the Koblenz Regional Court commissioned an additional expert opinion on the likelihood that the applicant would commit further serious crimes if released. It was rendered by a deputy medical director (Oberarzt) of the Mainz psychiatric university clinic on 15 March 2000. This expert pointed out that the applicant’s irreproachable behaviour during the relaxations of his detention over several years constituted a positive criterion for his criminal prognosis. He nevertheless shared the view of previous experts that the applicant’s persevering denial of the crimes prevented him from appreciating and analysing the specific circumstances and motives which had led to the murders. It was thus difficult to assess the remaining risk of recidivism and it could not be excluded that the applicant still posed a threat to society. 27. By a decision of 29 January 2002 the Koblenz Regional Court, after hearing the said psychiatric expert as well as the applicant and referring to written statements from the Mainz public prosecution authorities as well as the Diez prison authorities, again ordered that the execution of the applicant’s detention be continued. In its decision-making the court took into account that the Diez prison authorities had given a favourable opinion on the applicant’s possible release on probation in view of the fact that he had never abused relaxations of his detention which had been implemented for meanwhile almost eight years. The Regional Court, relying in particular on the assessment by the said psychiatric expert, nevertheless held that the applicant’s criminal prognosis was still uncertain. This assessment was further supported by the resident psychologist at Diez prison. In a written statement of 13 November 2001 he had stated that the applicant’s lack of insight into his deed did not even allow for a positive criminal prognosis in the long term. 28. The applicant appealed the decision by written submissions of 21 February and 8 March 2002. He maintained, inter alia, that contrary to the court’’s criminal prognosis, were bound by the statement and assessment of facts as established in the Mainz Regional Court’s judgment of 19 July 1972. 29. On 22 April 2002 the Koblenz Court of Appeal, endorsing the Regional Court’s reasoning, dismissed the appeal as ill-founded. 30. The Court of Appeal held that, contrary to the applicant’s submissions, it had to be assumed that the offences had been committed as established in the first instance judgment of 19 July 1972. This finding was in line with the wording of Article 57 of the Criminal Code (see relevant domestic law below) stipulating that in their assessment whether a life sentence was to be suspended on probation the courts, shall, inter alia, take into account the circumstances of the convict’s crime. These circumstances of a case could only be established in the proceedings leading to the conviction. It was not the task of the court dealing with issues in relation to the subsequent execution of the convict’s sentence to reassess the facts. The only appropriate remedy for a convict alleging that new evidence had occurred following his conviction would be a request for a reopening of the proceedings. 31. The Court further noted that it followed from the experts’ opinions that the likelihood that the applicant would commit similar offences if released could not be assessed in a reliable way. Even the opinions established in 1994 and 1996 by the expert who had given a rather positive criminal prognosis for the applicant, based on his unobtrusive conduct during the execution and relaxations of his sentence, had concluded that it was unpredictable how the applicant would react if confronted with a situation of conflict within a sexual context. Subsequent psychological statements and opinions had also come to the conclusion that a risk of his reoffending could not be excluded even if the applicant was to be monitored closely. The Court of Appeal therefore considered that the applicant was a “ticking bomb” and that the risk that he would commit a serious violent crime was not merely theoretical irrespective of his irreproachable conduct during detention. While taking into account the applicant’s increasing interest to be released in view of his detention for meanwhile 32 years, the Court of Appeal concluded that in view of the gravity of the offences committed, the applicant’s denial of the deeds and the resulting doubts in respect of a positive criminal prognosis, the safety interest of the public still prevailed over the applicant’s interest to be released on probation. The continued execution of his life sentence was thus proportionate. 32. On 24 May 2002 the applicant complained about a violation of his right to be heard (Anhörungsrüge) and challenged the presiding judge at the Court of Appeal for bias. He alleged in particular, that the Court of Appeal had ignored his argument that the facts as stated in the Mainz Regional Court’s judgment of 19 July 1972 were not binding on the psychological experts. Furthermore, it had not addressed his concerns whether the indefinite execution of a life sentence was in compliance with the German Basic Law (Grundgesetz). His applications were rejected by the Koblenz Court of Appeal on 8 July 2002 and 22 July 2002, respectively. 33. On 24 May 2002 the applicant lodged a constitutional complaint against the decisions of the Koblenz Regional Court of 29 January 2002 and the Koblenz Court of Appeal dated 22 April 2002. On 2 September 2002, he extended his constitutional complaint to the decisions of the Koblenz Court of Appeal dated 8 July 2002 and 22 July 2002. 34. On 8 November 2006 the Federal Constitutional Court, by a leading decision (file no. 2 BvR 796/02) running to some 79 pages, rejected the applicant’s complaint as ill-founded to the extent he had challenged the refusal of the domestic courts to suspend his detention on probation. 35. The Federal Constitutional Court found that the execution of a life sentence beyond the period warranted by the particular gravity of a convict’s guilt on the ground that the latter still presented a threat to society did not as such violate his or her constitutionally guaranteed right to respect of human dignity or right to liberty. However, the protection of human dignity and the principle of the rule of law required that a detained person had a concrete and realistically attainable chance to regain his freedom at some later point in time. Such prospect of release was guaranteed by means of a strict scrutiny by the domestic courts whether an ongoing detention was still proportionate. The longer a detention lasted, the stricter the scrutiny of whether it was still proportionate had to be. A detainee’s ever increasing interest to be released in the course of a lengthy detention on the one hand was restricted by the State’s mandate to protect the rights of others and the safety interest of the public on the other. Where criminal offences such as murder were to be expected in the event of a potential recidivism, the safety interest of the public required particular protection. A release on probation could only be envisaged if the remaining risk for the safety interest of the public was justifiable. However, even in the event a convict had committed serious violent or sexual crimes, a release on probation could not be refused by the domestic courts simply on the ground that there existed a mere theoretical risk of recidivism (which in view of the limited possibilities of any kind of prognosis could in any event never be excluded). It rather had to be based on concrete factual circumstances establishing that such risk was unjustifiable having regard to the safety interest of the public. 36. The Federal Constitutional Court further pointed out that a convict’s interest in being released also had an impact on the procedural requirements to be observed by the courts when deciding on a possible suspension of a sentence of life imprisonment. In view of the indefinite duration of a life sentence, domestic law provided for a judicial examination of a request for a release on probation which could be lodged by the public prosecution authorities as well as the convict at any point in time. Furthermore, the conditions for a possible release had to be assessed by the authorities at an early stage in order to enable them to take appropriate measures to prepare a convict’s possible release. In this connection relaxations of detention were of particular importance since they offered the judge a broader and sounder basis for an assessment of the detainee’s criminal prognosis with respect to a life in liberty. When assessing the likelihood that a convict would commit further serious crimes if released, the courts were under an obligation to obtain the best possible clarification of the circumstances of a case and had to base their prognosis on a sufficiently substantiated and recent expert opinion. Finally, any court decisions on the continuation of a lengthy detention had to be carefully reasoned and disclose the basis of the judge’s assessment. In the event the continued detention was primarily justified by the safety interest of the public, it had to be considered whether the particular burden of a long-lasting deprivation of liberty could be countered by granting the convict certain privileges in daily prison routine, thus allowing him to retain some quality of life. Federal Constitutional Court found that the impugned decisions of the Koblenz Regional Court and Court of Appeal had complied with the aforementioned constitutional requirements. The domestic courts had struck a fair balance between the applicant’s right to be released and the safety interest of the public. The Court of Appeal, in its appeal decisions of 22 April and 22 July 2002, had not only taken into consideration the considerable length of the applicant’s detention of meanwhile 32 years but also his good conduct. It had further made a thorough assessment of the various expert opinions on the applicant’s criminal prognosis and provided arguments why it shared the evaluation of the external expert opinion of 2000 confirming that a risk of recidivism could not be excluded. On the basis of the expert’s assessment the Court of Appeal had concluded that such risk was not merely theoretical and had demonstrated that under certain conditions the applicant’s ability to control his actions was reduced to an extent that made it possible that he would commit similar serious offences even if he was to be closely monitored following a possible release. The Federal Constitutional Court, while noting that a more convincing reasoning of the courts’ decisions would have been desirable, conceded that the lack of clarification of the specific circumstances leading to the murders resulted from the applicant’s failure to reflect on the crimes. Under these circumstances, the Court of Appeal’s assessment that the likelihood of the applicant committing further serious crimes such as murder was of a degree that the safety interest of the public had to prevail over his interest to be released, had nevertheless been reasonable. 38. Finally, the Federal Constitutional Court pointed out that in view of the fact that no review of the applicant’s detention had occurred since the impugned decision of 2002, the public prosecution authorities were under an obligation to investigate ex officio why the applicant had not submitted a related request. 39. The Federal Constitutional Court’s decision was served on the applicant on 1 December 2006. 40. Following the Koblenz Court of Appeal’s decision of 22 April 2002 in the proceedings at issue, the Diez prison authorities ordered in June 2002 that the applicant’s cell and his apartment outside prison be searched. There had further been evidence that in the months of April and May 2002 the applicant had extended his journeys to and back from work on several occasions. On the occasion of the search of his apartment the Diez prison authorities seized, inter alia, binoculars, numerous magazines, photographs and video cassettes of a pornographic nature, ropes and adhesive tapes, as well as women’s underwear. 41. Consequently, the Diez prison authorities ordered that all relaxations of the applicant’s detention be removed on the ground that the outcome of the search had shown that there was a risk that he would abuse releases from prison in order to commit further serious crimes. 42. The resident psychologist at Diez prison, in a statement of 4 July 2002, pointed out that the applicant had stood the test of previous relaxations of detention and that the removal of his privileges implied the loss of his apartment, employment, personal environment outside prison and of all existing social perspectives. However, while the fact that the applicant had abused his journeys to work and the materials found in his flat did not constitute a clear indication for an acute risk of recidivism, the recent developments had made a reliable positive prognosis for the applicant even more difficult. 43. On 10 February 2003, the Koblenz Regional Court rejected the applicant’s request to have the relaxations of his detention reinstated. The Regional Court found that the prison authorities’ decision to remove the applicant’s privileges had been justified for the protection of the safety interest of the public. Considering the expert opinions rendered in the course of the applicant’s lengthy detention and taking into account that a significant amount of pornographic material had been seized in the applicant’s flat, the court was of the opinion that there remained a considerable risk that the applicant may reoffend. 44. The applicant’s appeal against the Regional Court’s decision was rejected by the Koblenz Court of Appeal on 10 June 2003 as inadmissible. On 11 July 2003 the applicant lodged a constitutional complaint. No further information was submitted to the Court in relation to the proceedings before the Federal Constitutional Court in this respect. 45. A subsequent request for reinstatement of relaxations of the applicant’s detention of 17 January 2007 was rejected by the Diez prison authorities on 16 January 2008. The prison authorities conceded that the applicant’s conduct since the removal of previous relaxations of his detention in June 2002 had been irreproachable. He had worked in the prison’s locksmith’s shop and maintained extensive contacts with the outside world like, inter alia, with his former employer and colleagues as well as his former therapist. The fact that he had also stood the test of several years of relaxations of his detention prior to 2002, the long duration of his imprisonment as well as his advanced age also were arguments in favour of granting him the right to unsupervised releases from prison. However, the applicant’s unaltered denial of his deeds and the fact that he trivialised his sexual deviation prevented any perspective of therapeutic progress. In this context the prison authorities also referred to an expert opinion obtained on 31 October 2005 stating that in view of the high remaining risk of recidivism relaxations of the applicant’s detention were only justifiable if combined with continuous and close monitoring. Accordingly, the prison authorities concluded that the protection of the rights at stake outweighed the applicant’s interest in social reintegration. Ever since the applicant was only granted occasional supervised releases from prison. 46. By written submissions of 18 December 2009 the applicant again requested that the remainder of his life sentence be suspended on probation and asked the Koblenz Regional Court to obtain an expert opinion on the likelihood that he would commit further serious offences if released. In a statement of 29 March 2010, the Diez prison authorities opposed the applicant’s release on probation since he still did not show any insight into the crimes. 47. By a decision of 14 May 2010 the Regional Court commissioned the expert opinion and appointed an expert proposed by the applicant. The expert opinion was rendered on 22 September 2010. The expert pointed out that leading forensic psychiatrists had established that the risk of recidivism following release did not depend on the offender’s insight into the offence committed. The expert therefore concluded that the fact that the applicant insisted on his innocence could not have a negative impact on his legal prognosis. However, there was nothing to establish that the applicant’s character had matured since he had committed the crimes or that any therapeutic progress had been made. It therefore remained impossible to assess the potential risk of recidivism, in particular in the long term, and it was unlikely that future expert opinions would come to a different assessment. The expert held that relaxations of the applicant’s detention, such as unsupervised releases from prison could be reinstated with a view to preparing the applicant’s placement in supervised accommodation (Betreutes Wohnen). Even if integrated in such supervised accommodation it would be necessary to closely monitor the applicant and provide counselling as regards his sexual behaviour. 48. On 15 November 2010 the Koblenz Regional Court, after hearing the applicant as well as the expert and having regard to the prison authorities’ statement of 29 March 2010, again rejected the applicant’s request that his life sentence be suspended on probation and held that a further similar request would be inadmissible if made within a period of two years. 49. The Regional Court, referring to the principles set out in the Federal Constitutional Court’s decision of 8 November 2006 with respect to the proportionality of the continued execution of a life sentence, concluded that the applicant’s continued detention was still justified. In its assessment the Regional Court referred in detail to the various expert opinions rendered over the years, in particular the expert opinion of 22 September 2010. While taking into account the significant duration of the applicant’s detention for meanwhile more than 40 years and his good conduct on the one hand, the court also considered the particular brutality characterising the crimes and the fact that the applicant did not show any insight into the deeds and his sexual deviation. The court nevertheless pointed out that the principle of proportionality required granting the applicant an opportunity to show that he was able to stand the test of relaxations of his detention and to improve his criminal prognosis. It therefore supported the expert’s proposal that closely monitored relaxations of the applicant’s detention be granted and held that prior to a possible placement of the applicant in supervised accommodation he would have to prove during a period of two years that he was capable of dealing with situations of conflict in a sexual context outside prison with a view to preparing a possible release on probation. 50. It appears that since 26 July 2011 the applicant has been granted the right to unsupervised releases from prison twice a week. 51. Article 1 § 1 of the German Basic Law (Grundgesetz) provides that human dignity shall be inviolable and that to respect and protect it shall be the duty of all State authority. Article 2 § 2 stipulates that the freedom of a person shall be inviolable and may be interfered with only on a statutory basis. 52. Pursuant to Article 211 of the Criminal Code (Strafgesetzbuch), the intentional killing of a person is to be classified as murder if certain aggravating elements are present. A murderer under this provision is any person who kills another person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence. 53. Murder is punishable by life imprisonment. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, inter alia, have a bearing on a subsequent decision regarding suspension of the latter part of the defendant’s prison sentence on probation. 54. Article 57(a) § 1 in conjunction with Article 57 of the Criminal Code stipulates that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence and provided that a suspension on probation can be justified while considering the safety interest of the public. In its assessment whether probation shall be ordered the courts shall take into account the personality of the convicted person, his past life, the circumstances of his crime, the extent to which the legal interest would be threatened in the event of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the expected effects the suspension of the sentence could have on him. 55. Following expiry of the minimum term of fifteen years, the courts decide on the suspension of the remainder of a convict’s life sentence ex officio. Furthermore they are under an obligation to decide on related requests by the applicant, his counsel or the prosecution authorities which may be lodged at any time in the course of an ongoing detention. 56. Article 454 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that the decision whether execution of the remainder of a prison sentence is to be suspended on probation (sections 57 to 58 of the Criminal Code), as well as the decision that prior to expiry of a certain time limit an application by the convicted person to this effect shall be inadmissible, shall be given by court order. The public prosecution office, the convicted person and the penal institution shall be heard. According to paragraph 2 of this provision the court shall obtain the opinion of an expert concerning the convicted person if it considers suspending execution of the remainder of a sentence of life imprisonment. The opinion shall, in particular, express a view as to whether there remains a risk that the convicted person is still posing the danger apparent from the offence of which he was convicted. | 0 |
train | 001-108494 | ENG | AZE | CHAMBER | 2,012 | CASE OF HAJILI v. AZERBAIJAN | 4 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election) | Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1962 and lives in Baku. He stood for the elections to the National Assembly (Milli Majlis) of 6 November 2005 as a candidate of the opposition bloc Azadliq. 6. The applicant was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the single-mandate Zaqatala Election Constituency no. 110. 7. There were a total of forty-one polling stations in the constituency. At the end of election day, the applicant obtained copies of official records of election results (səsvermənin nəticələrinə dair protokol) drawn up by all forty-one Polling Station Electoral Commissions (“PECs”). According to the copies of the PEC records in the applicant’s possession, he received the majority of votes in the constituency. 8. On 7 November 2005 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”), claiming that, after the submission of all the PEC records of results to the ConEC, the PEC records for Polling Stations nos. 23, 24 and 25 had been falsified in favour of one of his opponents. 9. On 14 November 2005 the CEC acknowledged receipt of the applicant’s complaint and also notified him that, on 12 November 2005, it had issued a decision to invalidate the election results for the entire Zaqatala Election Constituency no. 110. The decision, in its entirety, stated as follows: “Pursuant to Articles 19.4, 19.14, 25.2.22, 28.4, 100.12 and 170.2.2 of the Electoral Code and sections 3.5 and 3.6 of the Law of 27 May 2003 on Approval and Entry into Force of the Electoral Code, the Central Electoral Commission decides: 1. To invalidate the election results in Polling Stations nos. 1, 2, 6, 8, 10, 15, 17, 19, 20, 22, 24, 25, 26, 31, 33, 34, 36, 37 and 40 of Zaqatala Electoral Constituency no. 110 due to impermissible alterations [“yolverilməz düzəlişlər”] made to the PEC records of election results [“protokollar”] of those polling stations as well as infringements of the law [“qanun pozuntuları”] which made it impossible to determine the will of the voters. 2. To invalidate the election results in Zaqatala Electoral Constituency no. 110 due to the fact that the number of polling stations in which the election results have been invalidated constitutes more than two-fifths of the total number of polling stations in the constituency and that the number of voters registered in those polling stations constitutes more than one-quarter of the total number of voters in the constituency.” 10. On 14 November 2005 the applicant lodged an appeal against that decision with the Court of Appeal, arguing that the findings in the CEC decision were wrong. He argued that, while the CEC decision stated that “impermissible alterations” had been made to the results records of nineteen PECs, in reality such alterations had been made to the records of only three PECs (in Polling Stations nos. 23, 24 and 25). As for the PEC records for other polling stations, the photocopies of the same PEC records which were in his possession did not contain any such alterations or changes. According to those PEC records (and excluding the PEC records for Polling Stations nos. 23, 24 and 25), he had obtained the highest number of votes in the constituency. The applicant requested the court to quash the CEC decision of 12 November 2005 and to declare him the winner of the election in the constituency. 11. During the hearing held on 14 November 2005, the judges of the Court of Appeal did not independently examine the originals of the PEC and the ConEC records of results or hear witnesses called by the applicant. The Court of Appeal upheld the CEC decision by reiterating the findings made in that decision and concluding that the invalidation of the election results based on those findings had been lawful. 12. The applicant lodged a cassation appeal. In addition to the arguments advanced in his appeal before the Court of Appeal, he also complained, inter alia, that the Court of Appeal had refused to independently examine the primary evidence and had simply taken the CEC’s findings as fact. He also complained that the CEC had failed to consider the possibility of ordering a recount of the votes as required by Article 108.4 of the Electoral Code and to summon him as an affected party and hear his explanation as required by Article 112.8 of the Electoral Code. 13. On 23 November 2005 the Supreme Court rejected the applicant’s appeal and upheld the Court of Appeal’s judgment as lawful. 14. On 1 December 2005 the Constitutional Court ordered repeat elections to be held on 13 May 2006 for all electoral constituencies in which the results had been invalidated, including the applicant’s constituency. 15. After the votes in a polling station have been counted at the end of election day, the PEC draws up an official record of election results (in three original copies) documenting the results of the vote in the polling station (Articles 106.1-106.6). One copy of the PEC record, together with other relevant documents, is then submitted to the relevant ConEC within twentyfour hours (Article 106.7). The ConEC verifies whether the PEC record complies with the law and whether it contains any inconsistencies (Article 107.1). After submission of all PEC records, the ConEC tabulates, within two days of election day, the results from the different polling stations and draws up a record reflecting the aggregate results of the vote in the constituency (Article 107.2). One copy of the ConEC record of results, together with other relevant documents, is then submitted to the CEC within two days of election day (Article 107.4). The CEC checks whether the ConEC records comply with the law and whether they contain any inconsistencies (Article 108.1) and draws up its own final record reflecting the results of voting in all constituencies (Article 108.2). 16. If within four days of election day the CEC discovers mistakes, impermissible alterations or inconsistencies in the records of results (including the accompanying documents) submitted by ConECs, the CEC may order a recount of the votes in the relevant electoral constituency (Article 108.4). 17. Upon review of a request to declare invalid the election of a registered candidate, an electoral commission has a right to hear submissions from citizens and officials and to obtain necessary documents and materials (Article 112.8). 18. In the event of the discovery of irregularities aimed at assisting candidates who were not ultimately elected, such irregularities cannot be a basis for the invalidation of the election results (Article 114.5). 19. The ConEC or CEC may invalidate the election results for an entire single-mandate constituency if election results in two-fifths of polling stations, representing more than one-quarter of the constituency electorate, have been invalidated (Article 170.2.2). 20. According to former Article 106.3.6 of the Electoral Code in force at the material time, during the initial vote-counting at a polling station at the end of election day, if a voting ballot which had not been properly placed in the corresponding envelope was found in the ballot box, the vote on that ballot was considered to be invalid. Article 106.3.6 was subsequently repealed on 2 June 2008. 21. The relevant excerpts from the report read as follows: “Although constituency aggregate results were made available within the legal deadline, detailed results by polling station were only released on 10 November, four days after the election, despite the computer networking of all ConECs with the CEC. This made it difficult for candidates and observers to check that results had been reported accurately. Protocols from two constituencies, 9 and 42, were never posted publicly. ... The CEC invalidated the results of four constituencies [including Zaqatala Election Constituency no. 110] under Article 170.2 of the Election Code, which states that if a ConEC or the CEC cancels more than 2/5 of PECs representing more than 1/4 of the total electorate in a constituency, then the entire constituency result is considered invalid. ... At least ... two ConEC chairpersons [ConECs 9 and 42] were dismissed after election day for involvement in electoral malfeasance. The two ConEC chairpersons were arrested and charged with forging election documents. ... The CEC forwarded materials on possible criminal violations to the Prosecutor General’s Office regarding 29 PECs. ... The process of invalidation of aggregated results in four constituencies by the CEC did not have sufficient legal grounds or an evidentiary basis, nor was the process transparent. The CEC decisions on the invalidation of the election results in the four constituencies concluded that there were “unacceptable modifications performed on the protocols and law infringements which made it impossible to determine the will of the voters” but did not provide any factual basis to support this conclusion. ... Furthermore, when it invalidated results, the CEC did not make the required initial factual inquiry [as required by Article 170.2 of the Election Code], and ignored Article 108.4 of the Election Code, which authorizes the CEC to order a recount of votes in a constituency if the protocols and documents submitted by the ConEC reveal “mistakes, inadmissible corrections and inconsistencies.” Protocols of ConECs and PECs were not examined or reviewed at CEC sessions. Invalidation of results in a polling station was premised solely on the conclusion of an individual CEC member as to whether a protocol should be invalidated. The judgment of a single CEC member that there were deficiencies in the protocol was accepted as established fact without any explanation of the alleged defect or identification of the number of votes involved. Accordingly, there was no factual basis presented publicly for invalidating results in any of the four constituencies, which is particularly troubling since the CEC registered few complaints that alleged violations in these constituencies. ... The adjudication of post-election disputes in the courts largely disregarded the legal framework, and fell short of internationally accepted norms. ... In most cases, complaints and appeals were either dismissed without consideration of the merits or rejected as groundless by both the Court of Appeal and the Supreme Court. Opposition candidates appealed the CEC’s invalidation of results in constituencies 9, 42 and 110. The Court of Appeal upheld the three CEC decisions without any investigation or review of the primary documents and evidence, such as the PEC protocols. In constituency 9, the appellant petitioned the Court of Appeal to examine the protocols, which had been forwarded to the Prosecutor General’s office by the CEC. This petition was denied. In constituency 42, the appellant made an identical request and the court again denied the petition, ruling that it was impossible to obtain the protocols from the Prosecutor General within the legal deadline. The CEC was not able to explain or give any information as to any specific defect in an invalidated protocol or offer any explanation as to what change to a protocol was sufficient for invalidation. ... Proceedings in the Supreme Court did not correct the shortcomings noted above. The Supreme Court upheld each CEC decision.” | 1 |
train | 001-119278 | ENG | SMR | ADMISSIBILITY | 2,013 | CECCHETTI v. SAN MARINO | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Vincent Cecchetti, is a San Marinese national, who was born in 1956 and lives in Dogana. He was represented before the Court by Mr P. Reffi, a lawyer practising in San Marino. 2. The San Marinese Government (“the Government”) were represented by their Co-Agent, Mr G. Bellatti Ceccoli. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1994 the Personal Income Assessment Committee (Commissione degli Accertamenti – “the CA”), an administrative authority responsible for auditing tax declarations, sought to ascertain the correctness of the income declared by the applicant for the year 1991. By an assessment dated 22 September 1994 it found that the applicant had failed to declare an additional sum of 417,817 liras (approximately 215 euros (EUR)). It therefore ordered the applicant to pay tax on the aforementioned amount plus interest, and the sanction established by section 63 of Law no. 91/1984 equal to the amount of tax payable on the additional amount of undeclared income. 5. The applicant appealed against the decision before the Board of Estimate (Giunta di Stima – “the GS”), an administrative body of contentious jurisdiction in fiscal matters, on the basis that he had been unable to make submissions to the CA, notwithstanding a request to that effect. On 28 January 1998 the GS upheld the applicant’s appeal, declared the CA’s findings inadequate and proceeded with a new tax assessment. It concluded that the applicant had to pay income tax on the higher (unspecified) amount, together with interest on that amount and the sanction established by section 63 of Law no. 91/1984 in an amount equal to a quarter of the amount of tax payable on the additional income. This amounted to EUR 13.91 in tax on the higher amount of income and a sanction amounting to EUR 3.48. 6. On 23 April 1998 the applicant instituted proceedings before the ordinary courts, asking the judge (Commissario della legge) to declare the GS’s findings null and void on the basis, inter alia, that the decision had been ultra vires, as the GS did not have the competence to proceed with the new tax assessment. 7. By a judgment of 11 April 2002 the applicant’s appeal was dismissed. However, having authority to look at all the reasons which could make a decision illegitimate, namely jurisdictional competence, an incorrect application of the law and acting ultra vires, the Commissario della legge declared the GS’s decision null and void on the grounds that the latter had wrongly upheld the argument that the applicant’s submissions should have been heard. The case was remitted to the GS for fresh consideration. 8. The applicant lodged an administrative appeal on 26 February 2003 and by a decision of 17 February 2008, published on 6 March 2008, the administrative appeal judge quashed the first-instance court’s decision and upheld the appeal. It considered that the GS’s decision had been null and void on grounds of non ultra petita, the latter not having had the competence to assess the matter but rather having been under the obligation to send it back to the CA. The administrative appeal judge remitted the case to the CA. 9. None of the parties having appealed against the judgment, it became final. 10. The remittal of the case required proceedings to be restarted before the CA. Despite a question to that effect, neither the applicant nor the Government have informed the Court of the progress of those proceedings following the lodging of the application in 2008. 11. Section 40 of Law no. 91/1984 (“the Law”), in so far as relevant, reads as follows: “The Personal Income Assessment Committee is the competent authority for the auditing of income received by physical persons and the imposition of any eventual administrative sanctions.” 12. Section 48(4) of the Law provides that the Board of Estimate is competent to rectify errors committed by the Personal Income Assessment Committee. Section 48(5) of the Law provides that a decision of the Board of Estimate can be challenged before the ordinary courts on the basis of a violation or incorrect application of the law, lack of competence or abuse of power. 13. Section 63 of the Law, regarding omission, incompleteness and false declarations, in so far as relevant, reads as follows: “If the declaration does not contain one or more assets from which income is derived, the monetary penalty may vary between a quarter and twice the amount of the tax due and the tax owed in respect of the income received from the undeclared assets. ... [I]f, save for the above-mentioned provisions, an individual has declared a net income below that assessed, the penalty applicable may vary between a quarter and twice the amount of the tax due in respect of the undeclared amount. The sanction is increased by a quarter if the difference between the assessed income and that declared includes income received from abroad, and is halved if the tax due in respect of the undeclared amount is less than a quarter of that assessed. ... No administrative sanction is applicable if the taxpayer has committed a material error or omission or falsity in his or her declaration where there was no criminal intent (dolo), in so far as well-founded reasons are presented.” | 0 |
train | 001-61149 | ENG | ESP | CHAMBER | 2,003 | CASE OF PESCADOR VALERO v. SPAIN | 1 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 8. The applicant is a Spanish national who was born in 1941 and lives in Albacete. He is a law graduate and is employed by the University of Castilla-La Mancha (UCLM). 9. By a decision of 11 July 1996, the rector of UCLM ordered that the applicant be dismissed as director of administrative and service personnel (gerente) of the university campus at Albacete, a post to which he had been appointed by the rector himself in 1985. On 30 July 1996 the applicant applied to the Higher Court of Justice of Castilla-La Mancha for special judicial review of that decision, relying on the right to judicial protection of his fundamental rights in accordance with the Protection of Fundamental Human Rights Act (Law no. 62/1978 of 26 December 1978). By a decision of 18 November 1996, the court dismissed the application as unfounded. 10. In parallel, on 17 September 1996, the applicant had lodged an ordinary application for judicial review of the 11 July 1996 decision with the Higher Court of Justice of Castilla-La Mancha. The case was referred to the First Section of the court, whose President was J.B.L. During the hearing of the application, the Section, presided over by J.B.L., issued several orders. 11. On 14 May 1998 the applicant lodged an application with the Administrative Division of the Higher Court of Justice. Explaining that he had discovered that Judge J.B.L. was associate professor of law at UCLM and was receiving emoluments in that capacity, he applied for his removal in accordance with sections 219 and 223(1) of the Judicature Act (Ley Orgánica del Poder Judicial – “the LOPJ”) and requested the court to take evidence on the point in accordance with section 225(4) of the LOPJ. By a decision of 21 May 1998, the plenary Administrative Division of the Higher Court of Justice rejected the application for the judge’s removal for the following reasons: “Section 223(1) of the LOPJ lays down the condition that the removal must be applied for as soon as the grounds for removal are known. If the grounds are known prior to the dispute, the application for removal must be lodged at the start of the proceedings, failing which the application will be inadmissible. It is this last legal effect which applies in the present case, namely the inadmissibility of the application for removal of the judge of this Division, Mr J.B.L., since he has been for several years, and in any event had been long before the disputed decisions were taken, associate professor at the University of Castilla-La Mancha (which is essentially the ground for his removal). This fact cannot have escaped the attention of someone who was, until July 1996, the manager of the university campus at Albacete . Moreover, given that the application was drafted, in [the applicant’s] own words, ‘as soon as he became aware of the ground [for removal]”, he should have adduced evidence to that effect, namely that he had become aware only very recently and not prior to the dispute that J.B.L. was associate professor at the University of Castilla-La Mancha. However he provided no such evidence. Accordingly, an application for removal should have been lodged as soon as the applicant had been advised of the composition of the Division whose President was the person being challenged. As that was not done, the application is inadmissible.” 12. By a judgment on the merits of 10 May 1999, the First Section of the Administrative Division of the Higher Court of Justice, composed of three judges and presided over by Judge J.B.L., dismissed his application for judicial review and ruled that the decision of UCLM of 11 July 1996 to dismiss the applicant as manager of the university campus was lawful. 13. Relying in particular on Article 24 § 1 of the Constitution (right to a fair trial), the applicant lodged an amparo appeal with the Constitutional Court. The applicant pleaded the right to have his case heard by an independent and impartial tribunal and complained of the rejection of his application for the removal of Judge J.B.L., which he had sought as soon as he had become aware of the professional relations between that judge and UCLM. He submitted that he had not known the judge in his capacity as professor, and that he had had no reason to come across him in the course of his administrative duties at the university. In that connection, he observed that questions concerning the university teaching staff were the responsibility of the rector and were dealt with centrally at Ciudad Real, whereas he worked in Albacete. As manager of the Albacete campus, his duties were limited to the university’s administrative and service personnel. He concluded that to require him to prove a negative, namely that he had not previously known J.B.L., was to ask him to “prove the impossible”. Accordingly, the applicant considered that the Higher Court of Justice had not given him a fair hearing. 14. By a decision of 10 April 2000, the Constitutional Court dismissed the amparo appeal as ill-founded for the following reasons: “... Article 24 § 1 of the Spanish Constitution is infringed only if the court concerned reaches an unreasonable, manifestly wrong or arbitrary conclusion concerning a legal ground of inadmissibility ... In the present case, such defects cannot be inferred from the fact that [the applicant] was presumed to have known that one of the judges was an associate professor. Ordinary procedural defects do not in themselves infringe Article 24 § 1 of the Spanish Constitution. That Article is breached only when the procedural irregularity is decisive for the rights of the defence ... It is then for the applicant to prove the significance of the alleged irregularity for the final decision ... In this case, the alleged irregularities concerning the taking of evidence cannot serve as a basis for challenging the reasons adopted by the Division [of the Higher Court of Justice] in arriving at its judgment.” 15. The Constitution Article 24 “1. Everyone has the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests and in no circumstances may he be denied the possibility of defending himself. 2. Likewise, everyone has the right to be heard by a court established by law, the right to a defence and to the assistance of a lawyer, the right to be informed of any charges against him, the right to a public trial without undue delay and attended by all safeguards, the right to make use of evidence relevant to his defence, the right not to incriminate himself and not to confess his guilt, and the right to be presumed innocent. ...” 16. The Judicature Act Section 217 “Judges and magistrates must withdraw and may, where appropriate, be challenged on the grounds prescribed by law.” Section 219 “Grounds for withdrawal or, where appropriate, a challenge include: ... 9. The fact of having a direct or indirect interest in the dispute.” Section 221 “A judge or magistrate who believes that he falls within the scope of one of the grounds set out in the preceding sections shall withdraw from the case without waiting to be challenged. ...” Section 223 “A party wishing to challenge a judge must do so as soon as he becomes aware that a ground for challenge exists. If that party was aware of the ground for challenge prior to the dispute, he shall lodge his application at the start of the proceedings, failing which it shall be inadmissible. ...” | 1 |
train | 001-88681 | ENG | RUS | CHAMBER | 2,008 | CASE OF ANATOLIY VLADIMIROVICH ZAKHAROV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1939 and lives in Okha, a town in the Sakhalin Region. 5. The applicant owned a flat in a decrepit house. The local council decided to demolish the house, and on 27 June 2000 the applicant sued the council for a replacement flat. 6. On 28 October 2003 the Okha Town Court ordered the council to provide the applicant with a flat in Okha of the same quality as his demolished flat. This judgment became binding on 24 February 2004 but was never enforced. 7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. | 1 |
train | 001-84809 | ENG | UKR | CHAMBER | 2,008 | CASE OF KONOTENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13 | Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | 5. The applicant was born in 1963 and lives in Sidorovka, in the Rostov region of the Russian Federation. 6. On 18 May 1999 the Rovenky Court (Ровеньківський міський суд Луганської області) awarded the applicant 8,895.36 hryvnyas (UAH) against his former Ukrainian employer, the State-owned OJSC Mine “Dzerzhynskogo” (Державне відкрите акціонерне товариство «Шахта ім. Дзержинського»), in disability benefits and other payments. 7. This judgment was not appealed against, became final, and enforcement proceedings were instituted to collect the debt. 8. The debt was paid to the applicant in numerous small instalments, the last payment of UAH 363.46 having been made on 17 June 2005. 9. As explained by the bailiffs' service, the enforcement of the judgment had been delayed on account of numerous reasons, including a prolonged reorganization of the debtor, insufficient funds and a tax lien imposed on its property, as well as a statutory moratorium on the forced sale of the State property. 10. The relevant domestic law is summarised in the judgment in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19, 27 July 2004). | 1 |
train | 001-78561 | ENG | AUT | CHAMBER | 2,006 | CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA | 3 | Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 7. The applicant company is the owner and publisher of the weekly magazine News and has its registered seat in Vienna. 8. In June 2000 the Vienna City Counsel for Cultural Affairs (Kulturstadtrat), Mr Marboe, authorised the performance of Mr Schlingensief's “Container Action” during the Vienna International Festival (Wiener Festwochen). The staging took place in a container where actors figured as asylum seekers in Austria who were successively voted out for expulsion by the public. This container action met severe criticism by the public, inter alia, by members of the Austrian Freedom Party (FPÖ). 9. On 30 June 2000 the newspaper Kurier published an open letter to Mr Marboe written by the Austrian artist André Heller, in which he thanked and congratulated Mr Marboe for having allowed Mr Schlingensief's performance. One passage of the open letter read as follows: “... It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are. ... (German) ... Man kann von den Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers und wie diese seelenhygienisch heruntergekommenen Politemporkömmlinge und ihre sonstigen Bierzeltanimateure heißen mögen, nicht die geringste Einsicht in ihre eigene Peinlichkeit, Niedertracht und häufige Absurdität verlangen. ...” 10. Subsequently the FPÖ politicians quoted in this letter, except for Mr Mölzer, filed private prosecution proceedings for defamation against Mr Heller, which they withdrew later on. 11. On 7 September 2000 the applicant company published the following article on page 46 of its issue no. 36/00: “Lawsuit against André Heller FPÖ grandees sue critical artist André Heller. They are not 'spiritually depraved', they maintain. Böhmdorfer is suing Heller. He is not alone, though: Jörg Haider, Peter Westenthaler and Susanne Riess-Passer have all launched a powerful attack on André Heller with the assistance of the law firm Böhmdorfer-Gheneff Rechtsanwälte KEG. The reason is that the artist André Heller, a critic of the Government, wrote an 'open letter' in the Kurier lavishing praise on the Vienna city councillor for cultural affairs, Peter Marboe (ÖVP). Shortly before this, however, Peter Marboe had allowed Schlingensief's provocative container to be installed outside the Vienna State Opera House as a spectacle for the International Festival – despite bitter opposition from the Kronen Zeitung, a furious Vienna FPÖ and the Minister of Justice, Dieter Böhmdorfer, who threatened prosecution. André Heller wrote in the Kurier at the time: 'It is not to be expected that the Haiders, Böhmdorfers, Westenthalers, Riess-Passers, Mölzers, and whatever else these spiritually depraved political upstarts and their various beer-tent entertainers may be called, will have the slightest awareness of how embarrassing, dastardly and frequently absurd they are' (end of quotation). Böhmdorfer & Co. will not stand for this humiliation. They have instructed Böhmdorfer-Gheneff KEG, with which the Minister of Justice severed ties in March, to file a peppery lawsuit against Mr Heller. 'Dastardly'. In the private lawsuit it was stated that the allegations made in Mr Heller's letter were 'untrue' and that the 'unsubstantiated accusation' that Böhmdorfer & Co. were “dastardly” amounted to 'what would appear to be an absolutely classic case of defamation within the meaning of the Criminal Code'. The same applied to the expression 'spiritually depraved political upstarts'. Huberta Gheneff-Fürst, now the sole partner of the law firm to which the current Minister of Justice Mr Böhmdorfer still belonged six months ago, has called for André Heller to be given 'punishment commensurate with his guilt' as the person responsible for the deceitful smear. Last stop Maurer. As has happened in a number of similar cases, André Heller could be acquitted of defamation at first instance, since an artist really should have the right to express strong criticism. But at final instance Judge Ernest Maurer, known to be FPÖ-friendly, could come into the frame. Ernest Maurer was appointed to the Austrian Broadcasting Corporation's board of governors by the FPÖ, and that creates at least an appearance of bias. Suspicion. Even the President of the Judges' Association, Barbara Helige, is somewhat astonished at Ms Gheneff-Fürst, especially as the lawyer persists in retaining 'Böhmdorfer' in the law firm's name: 'If a former partner of the current Minister of Justice is stressing how important it is for Böhmdorfer's name to appear on the law firm's notepaper, the uninformed observer will suspect there is something political behind it.' Indeed.” Above the article a photo showing Mr Westenthaler standing between Mr Haider and Mr Böhmdorfer was published. 12. Mr Westenthaler, one of the FPÖ politicians concerned, filed a request for forfeiture of the applicant company's issue no. 36/00 of 7 September 2000. 13. On 9 October 2000 the St. Pölten Regional Court (Landesgericht), after having held a hearing, granted this request pursuant to section 33 § 2 of the Media Act and ordered the applicant company to pay the costs of the proceedings. 14. The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff within the meaning of Article 115 of the Criminal Code (Strafgesetzbuch). The fact that the article merely quoted the impugned statements and had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under section 33 of the Media Act. In the light of Article 10 of the Convention, the court nevertheless expressed doubts as to the constitutionality of section 33 of the Media Act as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings. Thus, in the court's view, comprehensive reporting and criticism about pending defamation proceedings would be rendered practically impossible. 15. The applicant company appealed, arguing that the forfeiture infringed its right to freedom of expression under Article 10 of the Convention. 16. On 4 April 2001 the Vienna Court of Appeal (Oberlandesgericht) upheld the Regional Court's decision in essence. The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting. The court referred in this regard to the repeated hints to Mr Böhmdorfer, the allusions to the political motivations and misuse of the law-suits and the passage concerning the outcome of the defamation proceedings before the Court of Appeal, which in particular expressed that an artist should have the right to sharp criticism. The court further noted that the passage at issue had to be assessed in the light of the article as a whole. In this regard, the court found that the reporting style used was typical for News, namely the use of special layout, highlighting certain words in bold or italics and adding pictures etc., which aimed at influencing the reader unconsciously. The first part of the article, including the passage at issue, might still be regarded as objective reporting when being assessed isolated. Furthermore, however, the subtitle of the subsequent passage, namely the word “dastardly” written in bold, caught the reader's eye and focused his mind in an unambiguous direction, incriminating the plaintiff. Even though the subsequent passage merely dealt with the contents of the law-suits, it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance. The court concluded that the article had not limited itself in objective citation. The first instance court had falsely classified the article as reporting on court proceedings as such reporting presumed the existence of court trials whereas in the present case there had only been a private prosecutors' action. When balancing the interests involved, i.e., the right to freedom of expression of the applicant company on the one hand, and the interest of the plaintiff not to be defamed, on the other, the court found in favour of the latter. It noted that even accepting that there was a public interest in the subject matter at issue, the allegation against the plaintiff, namely that he had a dastardly character without having provided any factual basis for this assertion, defamed him within the meaning of Article 111 of the Criminal Code and was worthless information for public debate. Therefore, it exceeded the limits of lawful criticism under Article 10 of the Convention. Thus, the interference with the applicant company's right to freedom of expression, namely the forfeiture of the above issue, was necessary and also proportionate to the aim pursued. This all the more as forfeiture concerned in general only older issues with no relation to the present actuality and with merely historical interest. 17. Finally, the Court of Appeal did not share the Regional Court's concern as regards a possible unconstitutionality of section 33 of the Media Act. The court noted that, in any way, the criteria set up under Article 10 of the Convention had to be considered when assessing whether or not a statement concerned established an offence within the meaning of Article 111 of the Criminal Code. 18. This decision was served on the applicant company's lawyer on 26 April 2001. 19. Article 111 of the Criminal Code (Strafgesetzbuch) provides: “1. Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine... 2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine...” 20. Article 115 of the Criminal Code provides: “1. Anyone who, in public or in the presence of several others, insults, mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not exceeding three months or a fine ... unless he is liable to a more severe penalty under another provision...” 21. A specific sanction provided for by the Media Act is forfeiture (Einziehung) of the publication concerned (section 33). Forfeiture may be ordered in addition to any normal sanction under the Criminal Code (section 33 § 1). 22. Forfeiture can also be ordered in separate so-called “objective” proceedings for the suppression of a publication, as provided for under section 33 § 2 of the Media Act, by virtue of which: “Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person cannot be secured or if conviction of such person is impossible on grounds precluding punishment, has not been requested or such a request has been withdrawn...” | 1 |
train | 001-58834 | ENG | ITA | CHAMBER | 2,000 | CASE OF BELVEDERE ALBERGHIERA S.R.L. v. ITALY | 1 | Violation of P1-1;Just satisfaction reserved | Christos Rozakis | 7. The applicant company, owner of the Belvedere Hotel at Monte Argentario, also owned 1,375 sq. m. of land that gave patrons of the hotel direct access to the sea. 8. On 19 May 1987 the Monte Argentario municipality passed a resolution approving a road-building scheme. The road was to pass over the applicant company's land. 9. On 25 May 1987 the mayor of Monte Argentario issued an order, under an expedited procedure, for the possession of the applicant company's land. On an unspecified date the authorities took physical possession of the land and began the road-building works. 10. The applicant company appealed to the Tuscany Regional Administrative Court (“the RAC”), contesting, inter alia, the lawfulness of the municipality's resolution of 19 May 1987 and of its occupation of the land. 11. By a judgment delivered on 2 December 1987, the Tuscany RAC allowed the applicant company's appeal; it quashed the municipality's resolution of 19 May 1987 and ruled that all subsequent action taken by it was invalid. The RAC found that the municipality had approved the road-building scheme without carrying out sufficient technical surveys beforehand. As a result, the approved scheme was unlawful and could not be considered as being in the public interest (non atto a realizzare un interesse pubblico). 12. That decision was lodged at the registry on 24 May 1988 and became final on 9 June 1989. 13. By letters of 8 July 1988, 11 August 1989 and 18 July 1990, the applicant company asked the Monte Argentario municipality to reinstate and return the land, pursuant to the judgment of the RAC. However, the municipality took no action. 14. The applicant company issued enforcement proceedings (giudizio di ottemperanza) in the Tuscany RAC for the reinstatement and return of the land in accordance with the judgment of 2 December 1987. 15. On 26 June 1991 the RAC dismissed those proceedings on the ground that the judgment of 2 December 1987 could not be enforced as there had been a constructive expropriation. 16. The RAC observed that although the judgment of 2 December 1987 had quashed the resolution of the municipality of Monte Argentario for procedural defects during the planning inquiry, that did not prevent the municipality from subsequently restarting the procedure and passing a fresh resolution – though it had not in any event done so. The RAC went on to say that as a result of the constructive-expropriation rule (occupazione acquisitiva), the applicant company was no longer the owner of the land, which had become the property of the municipality of Monte Argentario following completion of the road-building works. Despite its earlier judgment and the fact that the works carried out by the authorities were dangerous and contrary to the public interest, the fact that the authorities had completed the works meant that title to the land had been transferred. Consequently, restitution was impossible. However, as the transfer of property had been unlawful, the applicant company was entitled to claim damages in the civil courts. 17. The applicant company appealed against that decision to the Consiglio di Stato, its main contention being that, although the RAC had ruled that the authorities' conduct was unlawful before they had completed the works, the authorities had ignored the judgment. The fact that the constructive-expropriation rule had been applied in the instant case rendered the judgment devoid of purpose, since the authorities were free to act unlawfully with the sole aim of acquiring title to the land. 18. By an order of 5 June 1995, Section V of the Consiglio di Stato, before whom the appeal was pending, decided to refer the appeal to the full court. The order indicates that the section concerned considered that in the instant case the loss of title to the land as a result of the public works being carried out amounted to a denial of justice. If a decision of an administrative court favourable to the owner of the land, such as the decision of 2 December 1987, could not prevent the authorities taking possession of the land, the owner would be at their mercy. Furthermore, Section V of the Consiglio di Stato noted that the municipality of Monte Argentario had not reopened the planning inquiry or passed any further resolutions following the quashing of its resolution by the RAC. 19. In a decision of 7 February 1996 the Consiglio di Stato, sitting as a full court, dismissed the applicant company's appeal. It held that the application of the constructive-expropriation rule had not entailed a denial of justice in the instant case. It said that the road-building works had been largely completed by 7 August 1987 when the RAC had given its judgment. Thereafter, only additional work of minor importance had been carried out, such as the installation of lighting and the completion of the road surfacing. Consequently, 7 August 1987 had to be considered the date when title to the land was transferred because it was at that point that the change of user of the land had become irreversible, as a result of the completion of the works. The land could no longer be returned owing to the constructive expropriation. That date was also the starting-point of the statutory limitation period for claiming damages. 20. This statute governs the expedited expropriation procedure, which permits authorities to start building before expropriation. Once a scheme has been declared to be in the public interest and the plans adopted, the authorities may make an expedited possession order, for a limited period not exceeding five years, in respect of the land to be expropriated. The order will lapse if physical possession of the land is not taken within three months after its issue. After the land has been possessed, a formal expropriation order must be made and compensation paid. 21. During the 1970s, a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken. The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land. 22. There was a substantial divergence in the decisions of the Court of Cassation over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully. Unlawful possession means possession that is unlawful from the start, in other words obtained without authority, or that is initially authorised but subsequently became unlawful, either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made. 23. Under one line of case-law, the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession. No limitation period applied to such actions as the unlawful nature of the possession was continuing. The authorities could at any time issue a formal expropriation order. If they did so, the action in damages was transformed into a dispute over the compensation for expropriation, with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order (see, among other authorities, the judgments of the Court of Cassation nos. 2341 of 1982; 4741 of 1981; and 6452 and 6308 of 1980). 24. Under a second line, the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, Court of Cassation judgments nos. 1578 of 1976 and 5679 of 1980). 25. Under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly, that is to say on completion of the works in the public interest. He was entitled to claim damages (the sole authority is Court of Cassation judgment no. 3243 of 1979). 26. In a judgment of 16 February 1983, the Court of Cassation, sitting as a full court, resolved the conflict between the case-law authorities and adopted the third solution. In so doing, it established the constructive-expropriation rule (accessione invertita or occupazione acquisitiva). Under the rule, the public authorities acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed. If, initially, the land is possessed without authority, the transfer of property takes place when the works in the public interest are completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession. In the same judgment, the Court of Cassation stated that, on a constructive expropriation, the owner is entitled to compensation in full as the acquisition of the land has taken place without title (sine titulo). However, compensation is not paid automatically: the owner must lodge a claim for damages. In addition, the right to compensation is subject to a five-year limitation period that applies to actions in tort; the starting-point is the date the land is irreversibly altered. 27. Initially, it was held that no limitation period applied, since possession of the land without title was a continuing unlawful act (see paragraph 23 above). In its judgment no. 1464 of 1983, the Court of Cassation stated that the right to compensation was subject to a five-year limitation period (see paragraph 26 above). Subsequently, the First Division of the Court of Cassation said that a ten-year limitation period should apply (judgment nos. 7952 of 1991 and 10979 of 1992). On 22 November 1992 the full court of the Court of Cassation decided the issue finally, holding that the limitation period is five years and starts to run from the date the land is irreversibly altered. 28. Recent developments in the case-law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions. 29. In its judgment no. 874 of 1996, the Consiglio di Stato stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts, as otherwise the judicial decision would be devoid of purpose. 30. In judgment no. 1907 of 1997, the Court of Cassation, sitting as a full court, said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset. In such cases, the owner retained title to the land and could claim restitutio in integrum. In the alternative, he could seek damages. The unlawful nature of the possession in such cases was continuing and no limitation period applied. 31. In judgment no. 6515 of 1997, the Court of Cassation, sitting as a full court, said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts. In such cases, therefore, the constructive-expropriation rule did not apply. The owner, who retained ownership of the land, was entitled to claim restitutio in integrum. If he brought an action in damages, that entailed a waiver of his right to restitution. The five-year limitation period started to run from the date when the decision of the administrative court became final. 32. In judgment no. 148 of 1998, the First Division of the Court of Cassation followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset. 33. In this judgment, the Constitutional Court was called upon to decide firstly whether the constructive-expropriation rule was compatible with the Constitution. The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only, not rules established by the courts. Secondly, it held that the application to an action for compensation of the five-year limitation period laid down by Article 2043 of the Civil Code for claims in tort was compatible with the Constitution. The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest in the preservation of works for the public good outweighed the individual's interest in the right of property. 34. Under the Court of Cassation's case-law on constructive expropriations, compensation in full, that is to say damages for the deprivation of the land, is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession. 35. The Finance Law of 1992 (Article 5 bis of Legislative Decree no. 333 of 11 July 1992) superseded that case-law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations. In judgment no. 369 of 1996, the Constitutional Court declared that provision unconstitutional. 36. Under Finance Law no. 662 of 1996, which amended the provision that had been declared unconstitutional, compensation in full cannot be awarded for dispossessions effected before 30 September 1996. In such cases, compensation cannot exceed such amount, plus 10%, but without applying the 40% reduction, as would have been payable on a formal expropriation (one-half of the sum of the market value plus the income from the land, less 40%). In a judgment no. 148 of 30 April 1999, the Constitutional Court held that that provision was compatible with the Constitution. However, in the same decision, it said that compensation in full, up to the market value of the land, could be claimed where the dispossession and deprivation of the land were not in the public interest. 37. The applicant company complained that it had become impossible for it to recover its land as a result of the constructive-expropriation rule, which had been applied despite the decision of the Tuscany Regional Administrative Court (“the RAC”) quashing the building scheme and the possession order as being unlawful and not in the public interest. It alleged a violation of Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 38. The applicant company maintained that the interference with its right to peaceful enjoyment of its possessions was not compatible with Article 1 of Protocol No. 1. 39. It contended that constructive expropriation was contrary to the requirement of lawfulness for the following reasons: the authorities became owners of the land through unlawful conduct, namely by taking possession without title; landowners could not avail themselves of the procedural guarantees available on a formal expropriation; and the constructive-expropriation rule was not to be found in any statutory provision but had been established by the case-law and was considered to be “living law”. 40. Subsequent events had led the applicant company to consider that the requirement of lawfulness had not been complied with in the instant case. It observed that it was unable to obtain restitution of the land despite the decision of the Administrative Court – which had become final – retrospectively quashing all the authorities' acts, including the declaration that the scheme was in the public interest. The decision of the Consiglio di Stato refusing restitution of the land as a result of the application of the constructive-expropriation rule thus represented an unjustified interference with the applicant company's right to the peaceful enjoyment of its possessions. The applicant company noted that the constructive-expropriation rule left landowners at the mercy of the authorities, who – with the sole aim of appropriating land – could carry out works that were not in the public interest after taking possession of the land wholly unlawfully and then refuse to comply with judicial decisions declaring their conduct unlawful. 41. The applicant company added that the Tuscany RAC had been called upon to rule solely on the lawfulness of the authorities' acts and could not decide the merits of the case, that is to say whether the road-building works had been finished. On the other hand, the Consiglio di Stato, on an appeal on the issue of enforcement (ottemperanza), had jurisdiction to hear the merits and could therefore determine the date of completion of the works. 42. The applicant company observed finally that it was true that the measure of compensation claimable by an owner deprived of his land for works that were not in the public interest was compensation in full (see paragraph 34 above). However, damages could not be considered as compensation for the alleged loss even assuming they could be claimed by the applicant company. The applicant company was not asking the Court to rule on the authorities' conduct – the Tuscany RAC had already done so – but to give a decision on the Consiglio di Stato's dismissal of its application for restitution of the land. The applicant company concluded by inviting the Court to restore legality. 43. The Government submitted that the loss of the land by the applicant company did not infringe Article 1 of Protocol No. 1. 44. They observed firstly that the interference with the applicant company's right to peaceful enjoyment of its possessions was “provided for by law”, namely a rule established by the courts that had been consistently and unanimously applied since the Court of Cassation's judgment no. 1464 of 1983 (see paragraph 26 above). The Government referred in particular to the Court of Cassation's judgments nos. 3940 of 1988 and 12546 of 1992, the Consiglio di Stato's judgment no. 877 of 1991 and the case-law of the Constitutional Court. The rule established by the case-law thus constituted a clear, accessible and adequate legal norm and was an expression of the “living law”, that is to say the law effectively in force. 45. The Government observed secondly that the applicant company had been deprived of its land “in the public interest”. At the outset, the road-building scheme and the authorities' resolutions had been in the public interest. Although it was true that the authorities' acts had subsequently been quashed by the Administrative Court, the effect of the constructive-expropriation rule was that, once completed, municipal works became de facto a new scheme in the public interest. Completion of the works carried out by the authorities therefore had a dual effect: it entailed recognition that the work carried out was in the public interest and meant that the authorities' conduct ceased to be unlawful. 46. As a result of that mechanism, the land could no longer be returned to the applicant company as it was irreversibly deemed to have become public. 47. The fact that the deprivation of possession was unlawful until the works had been completed nevertheless afforded the owner the right to claim pecuniary compensation in the form of damages before the relevant courts. The Government maintained that it was still open to the applicant company in the instant case to bring an action in damages before the relevant courts, that such an action would enable it to obtain compensation in full and thus constituted a sufficient remedy for the interference with its right to peaceful enjoyment of its possessions. On that point, the Government referred to the judgment of the Court in the case of Zubani v. Italy (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-IV). 48. An action in damages was possible because, in the Government's submission, the five-year limitation period which had started to run on 7 August 1987 on completion of the works had been interrupted by the enforcement proceedings brought by the applicant company before the Consiglio di Stato. The Government added that, when dealing with an application for enforcement (ottemperanza) the Consiglio di Stato had jurisdiction to make findings of fact, including as to the date when the works were completed. Consequently, there was no inconsistency between its finding and the fact that the decision of the Tuscany RAC had become final, as the latter could not decide issues of fact. 49. An action in damages would enable the applicant company to obtain compensation in full since the declaration that the works were in the public interest had been quashed by the Tuscany RAC. The Government referred on that point to the Constitutional Court's judgment no. 148 of 30 April 1999 (see paragraph 36 above). 50. Lastly the Government explained that proceedings for pecuniary reparation had to be instituted by the applicant company as it had failed in its attempt to obtain restitution of the land. Damages would compensate it for the interference with its right to peaceful enjoyment of its possessions. 51. The Court reiterates that Article 1 of Protocol No. 1 contains three distinct rules: “The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule” (see, among other authorities, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37, partly following the terms of the Court's analysis in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 24, § 61; see also the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 31, § 56, and Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II). 52. The Court notes that it is common ground that there has been a deprivation of possessions. 53. In order to determine whether there has been a deprivation of possessions within the meaning of the second rule, the Court must not confine itself to examining whether there has been dispossession or formal expropriation, it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether that situation amounted to a de facto expropriation. (see the Sporrong and Lönnroth judgment cited above, pp. 24-25, § 63). 54. The Court notes that in the present case, by applying the constructive-expropriation rule in its decision, the Consiglio di Stato deprived the applicant company of the possibility of obtaining restitution of its land. In the circumstances, the Court finds that the effect of the judgment of the Consiglio di Stato was to deprive the applicant company of its possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (see Brumărescu v. Romania [GC], no. 28342/95, § 77, ECHR 1999-VII). 55. In order to be compatible with Article 1 of Protocol No. 1, such an interference must be “in the public interest”, “subject to the conditions provided for by law and by the general principles of international law” and must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see the Sporrong and Lönnroth judgment cited above, p. 26, § 69). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis cited above, § 58, and Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I). 56. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above, § 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it. 57. The Court does not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions. However, it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 47, § 110). 58. In that connection, the Court observes that the case-law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently (see paragraphs 22 to 36 above), a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and is, as a consequence, inconsistent with the requirement of lawfulness. 59. The Court also notes that under the rule established by the Court of Cassation in its judgment no. 1464 of 1983 every constructive expropriation follows the unlawful taking of possession of the land. The unlawfulness may exist at the outset or arise subsequently. The Court has reservations as to the compatibility with the requirement of lawfulness of a mechanism which, generally, enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli. 60. In any event, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention. 61. In the instant case, the Court notes that on 2 December 1987 the Tuscany RAC quashed with retrospective effect the resolution passed by the authorities as being unlawful and not in the public interest. However, that finding of the Tuscany RAC, in which it held that the occupation of the applicant company's land was unlawful and not in the public interest (see paragraph 11 above), did not result in restitution of the land, since the Consiglio di Stato held that the transfer of property to the authorities had become irreversible. 62. The Court considers that the interference in question was not compatible with Article 1 of Protocol No. 1. That conclusion makes it unnecessary for it to examine whether a fair balance was struck between the requirements of the general interest of the community and the need to protect individual rights. 63. Consequently, there has been a violation of Article 1 of Protocol No. 1. 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 65. The applicant company sought restitution and reinstatement of the land in question, those being the only measures which in its submission would remedy the alleged violation, since they would enable the position obtaining before the violation of Article 1 of Protocol No. 1 to be re-established. The applicant company also claimed compensation for pecuniary damage to be determined on an equitable basis or, if appropriate, through the assessment of an expert; it put the compensation at not less than 80,000,000 Italian lire (ITL) plus interest and index-linking covering at minimum its loss of enjoyment of the land for the period of deprivation of possession until restitution. The applicant company further claimed ITL 30,000,000 plus interest and index-linking for the non-pecuniary damage which the State's conduct had caused it. Lastly, it requested reimbursement of the costs incurred before the national courts and of ITL 8,000,000 for costs incurred before the Court. 66. The Government stated that restitution of the land was precluded by the constructive expropriation and maintained that the applicant company could obtain compensation for the alleged violation through the action in damages which it could bring in the Italian courts. Referring to the judgments of the Court in the cases of B. v. France (judgment of 25 March 1992, Series A no. 232-C), and De Wilde, Ooms and Versyp v. Belgium (judgment of 10 March 1972 (Article 50), Series A no. 14), the Government argued that the applicant company's claim for just satisfaction was inadmissible. 67. Should the Court not uphold that objection, the Government said that it would be impossible – for the reasons indicated by the Consiglio di Stato – for the land to be returned. They contended that restitution of the land was beyond the scope of Article 41 of the Convention. As regards pecuniary damage, the Government submitted that no sum could be awarded under that head since it was still open to the applicant company to seek damages before the national courts. As to non-pecuniary damage, the Government maintained that a finding of a violation would constitute sufficient just satisfaction. The Government considered that the sum requested for costs was excessive and left the issue to the discretion of the Court. 68. In the light of the reasons which led it to find a violation of Article 1 of Protocol No. 1, the Court considers that the Government's objection must be rejected. The act of the Italian government which the Court held to be contrary to the Convention was not an expropriation that would have been legitimate but for the failure to pay fair compensation; it was a taking by the State of land belonging to the applicant company, for which the latter had no redress (see, mutatis mutandis, the Papamichalopoulos v. Greece judgment of 31 October 1995, Series A no. 330-B, pp. 59-60, § 36). 69 | 0 |
train | 001-102910 | ENG | UKR | COMMITTEE | 2,011 | CASE OF VASYLIV v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13 | Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1928 and lives in Stryy, the Lviv Region. 5. On 18 March 2004 the applicant lodged a claim with the Stryy Court against the State Social Protection Department and the State Pension Fund for recovery of a yearly allowance, compensation for non-pecuniary damage and for re-calculation of her pension. 6. On 23 June 2004 the Stryy Court rejected the applicant’s claims as unsubstantiated. On 12 August 2004 the Stryy Court rejected the applicant’s request for interpretation of the judgment. 7. On 4 October 2004 the Lviv Regional Court of Appeal quashed the judgment of 23 June 2004 and remitted the case for new consideration. 8. On 28 October 2004 the parties appealed in cassation. The applicant had to re-lodge her appeal in cassation as she had initially failed to comply with procedural requirements. 9. On 2 March 2007 the Supreme Court transferred the case for consideration to the Higher Administrative Court. 10. On 11 February 2009 the Higher Administrative Court dismissed the parties’ appeals in cassation. 11. On 1 April 2009 the Supreme Court rejected the applicant’s request for extraordinary review of the decision of 11 February 2009. 12. The case is currently pending before the first-instance court. 13. In the course of the proceedings before the first-instance court and court of appeal there were seventeen hearings held. The applicant supplemented her claims on two occasions. She lodged requests for rectification of the hearing records, for studying the case-file, for obtaining additional evidence and for interpretation of the judgment. 14. In October 2004 the applicant and her daughter instituted defamation proceedings before the Stryy Court against the State Pension Fund and S., a private person. 15. On 1 December 2004 the Stryy Court left the claim without examination for the claimants’ failure to substantiate it and to pay the court fee. 16. On 28 February 2005 and 10 September 2007, respectively, the Lviv Regional Court of Appeal and the Khmelnytsk Regional Court of Appeal (acting as a court of cassation) upheld the decision of 1 December 2004. 17. In December 2004 the applicant and two other persons lodged with the Lychakiv Court an administrative claim against the Lviv Regional State Administration, alleging incorrect calculation of their pension and unlawfulness of the claim for debts issued by the local gas supplying company. 18. On 14 February 2005 the Galytskyy District Court of Lviv found that the claim did not fall to be examined in the framework of the administrative procedure and was to be dealt under the rules of civil procedure. Accordingly, it dismissed the claim. 19. On 18 April 2005 and 23 August 2006 the Lviv Regional Court of Appeal and the Higher Administrative Court, respectively, upheld the decision of 14 February 2005. 20. On 24 October 2006 the Supreme Court rejected the applicant’s request for extraordinary review of the ruling of 23 August 2006. 21. In April 2005 the applicant and her daughter instituted defamation proceedings in the Stryy Court against the State Pension Fund and S., a private person. 22. On 20 May 2005 the Stryy Court left the claim without examination for the claimants’ failure to pay the court fee. 23. On 18 July 2005 and 25 October 2007, respectively, the Lviv Regional Court of Appeal and the Khmetlnytsk Regional Court of Appeal (acting as a court of cassation) upheld the decision of 20 May 2005. | 1 |
train | 001-98815 | ENG | NLD | CHAMBER | 2,010 | CASE OF MAWAKA v. THE NETHERLANDS | 3 | No violation of Art. 3 (in case of expulsion to the Democratic Republic of the Congo);No violation of Art. 8 (in case of expulsion to the Democratic Republic of the Congo) | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 5. The applicant, who is a national of the DRC, was born in 1969 and lives in Rotterdam. 6. From September 1992 until January 1994 the applicant resided in Belgium, at which point he returned to Zaire (as the DRC was then called) after having obtained a laissez-passer from the Zairean Embassy in Brussels. 7. In 1994 the applicant was working in Kinshasa, the DRC, as the personal secretary of a prominent member of the opposition party Union pour la Démocratie et le Progrès Social (“UDPS”), who was also the editor of the opposition newspaper NSEMO. In October 1994 the applicant was contacted by unknown men who asked him to help assassinate his boss. The applicant refused, but a few weeks later his boss disappeared and was then found unconscious and badly beaten. He died a few days later in a local hospital. On 20 November 1994 the applicant was arrested and put in prison; he was never shown an arrest warrant. On 25 November 1994 the applicant was transferred to the central Makala prison in Kinshasa. During the interrogations he was told he had been arrested because he had refused to help assassinate his boss. He was also told he would not live to see 1995. The applicant was beaten during the interrogation. On 26 December 1994 the applicant managed to escape with the assistance of a guard who happened to be from the same tribe as the applicant. He stayed in the guard's house while travel documents were arranged and on 6 January 1995 the applicant flew to Belgium. After arriving in Brussels, the applicant was driven to the Netherlands where he requested asylum on 7 January 1995. 8. The applicant was granted a residence permit for the purposes of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd) on 2 July 1996 since there were sufficient grounds to believe that he would be persecuted should he return to the DRC. 9. On 27 July 1999 the applicant filed a request for naturalisation. On the basis of this request, the applicant was interviewed by an official from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) on 13 October 2000. During the interview the applicant was confronted with the fact that, on 2 January 1997, he had been convicted and sentenced to two years' imprisonment in Belgium for participation in a criminal organisation and possession of cocaine, by the Brussels tribunal de première instance. 10. On 4 October 1999 the applicant married Ms M. with whom he had already had a son who was born on 22 May 1999. Ms M., also a national of the DRC, requested a residence permit for the purpose of staying with her spouse (verblijfsvergunning voor verblijf bij echtgenoot) and the permit was granted to her. 11. By letter of 23 November 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) notified the applicant of her intention (voornemen) to revoke the applicant's residence permit pursuant to article 35 of the Aliens Act (Vreemdelingenwet), which allows the withdrawal of a residence permit on the basis of a criminal conviction of a certain severity. 12. In her letter the Deputy Minister noted that the applicant had enjoyed legal residence in the Netherlands since 2 July 1996 and that his conviction in Belgium dated back to 2 January 1997. She further concluded that, according to Dutch sentencing guidelines, a sentence of 10 months' imprisonment would have been imposed on the applicant had the offence been committed in the Netherlands. The Deputy Minister concluded accordingly that the length of the sentence, compared to the length of time the applicant had been living in the Netherlands, justified revoking the applicant's residence permit. Considering that the applicant had been granted asylum in the Netherlands, the Deputy Minister held that a forced return of the applicant would have to be in compliance with the non-refoulement principle contained in the UN Refugee Convention. In this regard the Deputy Minister considered that an individual report (ambtsbericht) from the Ministry of Foreign Affairs explained that there had already been some doubts, given certain inconsistencies in the applicant's story, when he had applied for asylum and that a new individual report had confirmed these doubts created by the inconsistencies. Moreover, since the applicant had left the DRC, regime changes had taken place in that country in 1997 and 2001. The Deputy Minister considered that since the applicant had not shown that he had anything to fear from the new regime, he had not established that he would still face a real and personal risk of persecution in his country of origin. Finally, the Deputy Minister considered that revoking the applicant's residence permit did not constitute an interference with the applicant's right to respect for family life under the Convention since the interests of public order outweighed the interests of the applicant. Furthermore, it had become known that the applicant and his wife had separated, that he had not had any contact with her or their child for some weeks and that there were no indications that he was actively participating in the upbringing of their son. In any event, since the applicant, his wife and their son all had Congolese nationality, there were no objective obstacles for them to continue their family life in the DRC. 13. In his written comments (zienswijze) of 19 December 2001, the applicant disputed the finding that he would have been sentenced to 10 months' imprisonment in the Netherlands for an offence similar to the one he had committed in Belgium. The applicant argued that there was no set indication of the length of a sentence but that the individual circumstances of the person concerned would always be taken into consideration. It was therefore not possible to determine what kind of sentence he would have received had he been tried by a Dutch court. The applicant further submitted that the grounds on which he had been granted his residence permit were still valid and that the reports used by the Deputy Minister in no way detracted from that. A forced return to the DRC would therefore entail a violation of the Convention. The applicant also submitted that he could exercise his family life only in the Netherlands, since his wife and child were living there. 14. On 4 July 2002 the applicant appeared before an official board of inquiry (ambtelijke commissie) and on 24 July 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor to the Deputy Minister of Justice – hereafter “the Minister”) issued a decision to revoke the applicant's residence permit. The Minister considered that the estimate of a 10-month sentence in the Netherlands for the Belgian offence was indeed correct, as an advisory letter from the prosecutor at the Regional Court of 's-Hertogenbosch (“Den Bosch”) stated that a 10-month sentence would have represented the minimum length of sentence the prosecutor could have sought based on the facts available to him. The Minister further noted that the applicant's statement regarding his arrest in Belgium before the official board of inquiry differed from the original statement he had given during the interviews that were conducted pursuant to his request for naturalisation on 13 October 2000. From these new statements the Minister concluded that the applicant had been fully aware of his actions when transporting the drugs across the border between the Netherlands and Belgium. The Minister further noted that although the applicant had stated during the hearing before the board that he had had no further contact with judicial authorities, he had in fact been convicted of a number of insurance offences as well as violations of the 1994 Road Traffic Act (Wegenverkeerswet 1994). Concerning the risk of persecution that the applicant would face upon his return to the DRC, the Minister considered that the reports of the Ministry of Foreign Affairs did disclose discrepancies in the applicant's story. The Minister further considered that it had been concluded in the intention to revoke the applicant's residence permit that the situation in the DRC had changed since the applicant had last been in that country and that he had failed to establish that he would still be at risk of persecution there. A forced return to the DRC would thus not be in violation of the UN Refugee Convention, nor would it be contrary to Article 3 of the Convention. Moreover, the applicant had been convicted of a drugs-related offence. For these reasons the Minister considered that the interests of the State in protecting public order outweighed the interests of the applicant. Finally, the Minister noted that the applicant and his wife (with whom he had been reconciled by then) and child all had Congolese nationality and that there were no objective obstacles for them to continue their family life in the DRC. 15. By submissions of 14 August 2002 and 3 September 2003 the applicant appealed against the decision of the Minister to the Regional Court of The Hague. On 26 February 2004 the Regional Court rejected the applicant's appeal. The Regional Court considered that the Minister had been correct in applying article 35 of the Aliens Act and that the estimated sentence of 10 months' imprisonment, had the offence been committed in the Netherlands, was reasonable as well. The Regional Court further determined that the Minister had been correct in taking notice of the reports from the Ministry of Foreign Affairs in finding that the applicant's original story contained inconsistencies. The resulting lack of credibility of the applicant's story was sufficient to show that the applicant would not face a real, personal risk of treatment contrary to Article 3 upon his return to the DRC. The Minister had therefore been entitled to attach more weight to the protection of public order in relation to the interests of the applicant. The Regional Court finally considered that the applicant had failed to establish a possible violation of Article 8. 16. On 22 March 2004 the applicant appealed against the judgment of the Regional Court to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State – “the Division”) on essentially the same grounds. The applicant added, however, that according to a letter dated 24 June 1998 from the prosecutor in Den Bosch (which the Minister had neglected to add to the case file and for which the Regional Court had reopened the proceedings so that it could be introduced), the prosecutor in Den Bosch did not have possession of the complete Belgian case file and had thus only been able to estimate the length of the sentence that could be imposed. Furthermore, a judicial sentencing document submitted in the proceedings showed that a similar offence in the Netherlands would attract a custodial sentence of only 8 months and 28 days. A sentence of that duration would not engage the consequences of article 35 of the Aliens Act, meaning that the applicant's residence permit would not be in jeopardy. 17. On 9 June 2004 the Division dismissed the applicant's appeal. The Division considered that the Minister had correctly applied the provisions of article 35 of the Aliens Act in determining the length of imprisonment had the offence been committed in the Netherlands, based on the information obtained from the prosecutor in Den Bosch. In particular, the Division considered that the indication of an 8 month and 28 day sentence applied solely in relation to the possession of cocaine and did not include the charge of participation in a criminal organisation. The remaining grounds of appeal submitted by the applicant were dismissed summarily as not raising any points of law warranting determination. 18. The applicant currently lives in the Netherlands and has since divorced his wife but continues to visit her and their child regularly. 19. After the introduction of the application the applicant informed the Court by a letter of 23 April 2008 that he had spent a number of days in an aliens' detention centre in France after being apprehended there without a valid residence permit. 20. The applicant's original asylum application was submitted under article 15 § 1 of the Aliens Act 1965 (Vreemdelingenwet), pursuant to which aliens coming from a country where they had a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, could be admitted by the Minister of Justice as refugees. 21. Since 1 April 2001 the admission, residence and expulsion of aliens have been governed by the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) is also applicable, except where otherwise stipulated. 22. Pursuant to article 115 § 7 of the Aliens Act 2000, an asylum-based right of abode that was valid at the time that Act entered into force automatically entails a permanent residence permit under that Act. 23. Under the policy laid down in article 35 § 1 (b) of the Aliens Act 2000 in conjunction with article 3.86 § 1 (c) of the Aliens Decree 2000, an alien who has been given a custodial sentence (at least part of which was not suspended) by a Dutch or foreign court in a judgment that has become final and conclusive, for intentionally committing an offence punishable by a custodial sentence of three years or more, could be refused permission for continued residence in the country. Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands, the more serious the offence has to be before it may justify refusing continued residence; the authorities thus apply a “sliding scale” (glijdende schaal). The seriousness of an offence is determined on the basis of the sentence attached to it. To determine whether an alien may be refused permission for continued residence, the length of the sentence imposed is compared to the length of time that the alien had been living in the Netherlands when he or she committed the offence. 24. The revocation of a residence permit is also assessed in the light of the principle of non-refoulement and whether returning the alien to his country of origin would be in violation of Article 3 of the Convention. 25. The respondent Government's policy on asylum seekers from the DRC is devised by the Deputy Minister of Justice (Staatssecretaris van Justitie) and, was temporarily – between July 2002 and December 2006 – devised by the Minister for Immigration and Integration. It is based on official country reports published by the Minister of Foreign Affairs and external sources. 26. At the time of the applicant's initial request for asylum, his application was assessed on the basis of the official country reports of 2 June 1992, 14 December 1993, 8 March 1994 and 14 September 1994 in conjunction with the US State Department's Country Reports on Human Rights Practices – Democratic Republic of Congo (formerly Zaire) of 1994 and 1995. 27. In the period when the applicant's residence permit was revoked, applications from the DRC were assessed on the basis of the Netherlands official country report of 8 November 2000. Since then further reports have been issued by the Netherlands Minister of Foreign Affairs in 2005, 2006, 2007, 2008 and the latest in January 2010. 28. The Netherlands authorities operate on the basis that the human rights situation in the DRC remains a cause for concern, but that it is not such that every asylum seeker should automatically be deemed a refugee within the meaning of the 1951 Convention relating to the Status of Refugees. The latest official country report of January 2010 classifies the general security situation as such: “During the entire reporting period the Congolese authorities were unable to control their territory in large parts of the country, as well as to ensure the safety of citizens and maintain their monopoly on the use of force. In both the North and South Kivu province the security situation remained under pressure due to military operations of the Congolese army against the FDLR, after which the FDLR resorted to large scale retaliations. Other rebel factions, including several Mai-Mai groups, caused a large decrease in security. In the Haut- en Bas-Uélé districts in the Orientale province there was an increase in attacks by the LRA despite military actions by the FARDC. In the district of Ituri militias of the FRPI and FPJC fought with the FARDC and launched assaults on villages. In all areas where FARDC units were stationed and active the security situation was such that soldiers displayed severe misconduct towards the civilian population. The former rebel faction CNDP, which had recently integrated into the FARDC, played a key role in these infractions. At the end of the reporting period the security situation in the Equateur province deteriorated because of violent confrontations between a number of ethnic groups who later turned against the FARDC. In the remaining parts of the country the security situation remained stable, although some security incidents occurred in the Bas-Congo province.” 29. The report describes the overall situation in the DRC as follows: “Efforts to stabilize the eastern region of the Democratic Republic of the Congo witnessed significant setbacks during the reporting period. The processes relating to the Goma statements of commitment (actes d'engagement) and the Nairobi communiqué stalled, and large-scale hostilities between the Armed Forces of the Democratic Republic of the Congo (FARDC) and the Congrès national pour la défense du peuple (CNDP), led by Laurent Nkunda, resumed on 28 August. The fighting, which spread throughout North Kivu, has further exacerbated the humanitarian crisis, displacing over 250,000 people and bringing the number of internally displaced persons in the eastern part of the country to more than 1.35 million. Exchanges of fire across the border between Rwanda and the Democratic Republic of the Congo, as well as a resurgence of armed groups in Ituri and a resumption of atrocities committed by the Lord's Resistance Army (LRA), further compounded the crisis in the area. While the security situation remained stable elsewhere in the Democratic Republic of the Congo, little progress was achieved in the key peace consolidation tasks, including the delivery of basic services and the extension of State authority. Preparations for local elections continued, but key legislation, without which the necessary preparatory work cannot proceed, has yet to be adopted, risking further delays in the conduct of the elections.” 30. Concerning freedom of speech in the DRC and the treatment of UDPS supporters, the report stated: “Generally individuals could privately criticize the government, its officials, and private citizens without being subject to official reprisals. However, on February 8, ANR agents in Goma arbitrarily arrested and detained a member of the Union for Democracy and Social Progress/Goma for discussing politics with local citizens. The victim, who was released on February 13 after the UNJHRO intervened, claimed that he was subjected to cruel, inhumane, and degrading treatment while in detention. No action had been taken against the responsible ANR agents by year's end.” 31. Concerning political rights and parties, the report stated: “The DRC is not an electoral democracy. The 2006 elections were a significant improvement over previous elections, but serious problems remained. The opposition Union for Social Democracy and Progress (UDPS) party did not participate as a result of the party leader's call for a boycott of the recent constitutional referendum. International observers noted voter registration irregularities and corruption. The campaign period included clashes between opposition militants and government forces as well as an attempt on opposition leader Jean-Pierre Bemba's life. The 2007 Senate elections were similarly plagued by political corruption, with allegations of vote buying. Local elections initially scheduled for 2008 were delayed until at least 2009.” 32. Regarding the treatment of failed asylum-seekers upon return to the DRC, the report noted: “34.02 The UNHCR response on the ill-treatment of failed asylum seekers returned to the Democratic Republic of Congo noted: 'The Congolese human rights NGO 'Voix des Sans Voix' informed the office that rejected asylum-seekers are received upon arrival at the airport by agents of DGM, who question them why they left and applied for asylum. The NGO had an office at the airport and are closely monitoring the situation. They mentioned that there were many failed asylum-seekers who are sent back by western European countries, but they are not aware of any of these persons detained and/or tortured upon return. They reported that some of the failed asylum-seekers had to pay some money to the police (5 to 10 USD).' 34.03 UNHCR's response also recorded that the International Office for Migration (IOM) Kinshasa, the Mission of the United Nations in the Democratic Republic of Congo (MONUC), the Association Africaine de Defense des Droits de l'Homme (ASADOH) and UNHCR staff who were '... at times present at the airport [in Kinshasa] ...' did not hold the information to confirm the existence of instances of the detention, abuse or torture of failed asylum-seekers. The UNHCR response concluded 'With the limited information available to UNHCR, it does not have evidence that there is a systematic abuse, including detention and mistreatment, of failed asylum-seekers returned to the DRC through Kinshasa airport.' 34.04 An e-mail from the British Embassy in Kinshasa via the FCO dated 11 October 2007 stated that at a meeting with a Policy Officer of the Asylum and Migration Affairs Division of the Netherlands MFA, the officer told them that he had spent a week talking to NGOs, international organisations and Embassies, he said that MONUC, UNHCR, IOM and all the NGOs he spoke to said that, while there were obviously serious human rights issues in DRC, returned failed asylum seekers were not targeted, nor were they singled out as a particular group by the authorities. All of his interlocutors had said that the stories of abuse that they had heard had all come from Europe, and that their investigations had shown the allegations to be either false, or doubtful due to lack of evidence.” | 0 |
train | 001-60815 | ENG | DEU | CHAMBER | 2,002 | CASE OF WITTEK v. GERMANY | 1 | No violation of P1-1 | Ireneu Cabral Barreto | 9. The first applicant was born in 1958 and the second applicant in 1948; they both live in Bad Münder (Germany). 10. Under a purchase agreement dated 26 May 1986, the applicants purchased a dwelling house in Leipzig, on the territory of the German Democratic Republic (GDR) for 56,000 East German marks. The house was built on land belonging to the State (volkseigenes Grundstück) over which the applicants obtained a usufruct (dingliches Nutzungsrecht) under Articles 287 et seq. of the Civil Code (Zivilgesetzbuch) of the GDR. 11. On 26 October 1989 the applicants made an official request for permission to leave the GDR, as they believed that they had been discriminated against on political grounds in their work. The applicants say that they were informed by the District Internal Affairs Department (Abteilung innere Angelegenheiten des Stadtbezirks) in Leipzig that to obtain permission to leave the GDR permanently they would have to transfer (veräussern) their property by sale or gift. 12. On 8 December 1989 the applicants purported to transfer the property to a couple, Mr and Mrs Böllmann, by a notarial deed of gift in which the dwelling house was stated to be worth 120,000 East German marks. In reality, Mr and Mrs Böllmann paid the applicants 55,000 German marks (DEM) into a Swiss bank account. 13. The applicants say that the true value of their house and land would today be approximately DEM 600,000. 14. That figure is disputed by the Government, who say that the applicants had possessed only a usufruct over the land. 15. Following German reunification, the applicants attempted to recover their house and their usufruct over the land, firstly from the purchasers and subsequently in proceedings in the civil and administrative courts of the Federal Republic of Germany (FRG). 16. On 21 March 1991 the applicants applied to the Leipzig Court of First Instance (Kreisgericht) for an order for restitution of their house and rectification of the entry in the land register (Grundbuch). 17. The Leipzig Court of First Instance rejected that application on 26 June 1991. 18. In a judgment of 5 March 1992, the Leipzig District Court (Bezirksgericht) dismissed an appeal by the applicants, holding that they had no right to restitution. It pointed out that no transfer of property had in fact taken place, as both the gift and the sale in the GDR were null and void. However, the applicants were not entitled to rely on that nullity, as they had opted for that form of contract in full knowledge of the facts and the purchasers had not taken advantage of any coercion (Zwangslage) to which the applicants may have been subject at the time. The application for restitution accordingly failed under the principle of good faith and fair dealing (Treu und Glauben). 20. The applicants then lodged an administrative appeal with the Leipzig City Council requesting the restitution of their property. They relied on the Property Act. 21. In a decision of 2 June 1994, the Leipzig City Council turned down their request on the grounds that the conditions set out in section 1(3) of the Property Act (see “Relevant domestic law and practice” below) were not satisfied, as the applicants had not shown that they had acted under duress (Nötigung). Duress linked to a departure from the GDR could only have existed prior to the opening of the border on 9 November 1989. Thereafter, it was clear that all restrictions on leaving the GDR had been lifted. 22. The applicants appealed against that decision to the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung offener Vermögensfragen) of the Land of Saxony, which dismissed their appeal, again on the grounds that the applicants had not acted under duress following the opening of the border on 9 November 1989, and in particular following the Resolution of Property Issues Order (Anordnung zur Regelung von Vermögensfragen – see “Relevant domestic law and practice” below) of 11 November 1989 and its publication on 23 November 1989. 23. In a judgment of 21 December 1995, the Leipzig Administrative Court (Verwaltungsgericht) found against the applicants following a hearing. It found that they were not entitled to restitution (Rücküber-tragungsanspruch) in the absence of any unfair dealings (unlautere Machenschaften) within the meaning of section 1(3) of the Property Act. The border had been opened on 9 November 1989, with the result that all citizens of the GDR had been free to leave the country, while the Resolution of Property Issues Order of 11 November 1989 stipulated that they were no longer required to transfer their property prior to their departure. However, the deed of transfer was only executed on 8 December 1989. It added that there had not been any deception (Täuschung) within the meaning of section 1(3) of the Property Act. The Administrative Court also found that even if the previous position had remained unchanged, the conditions set out in section 1(3) of Property Act would not in any event have been satisfied, as the applicants did not own the land but merely had a usufruct over it. Under GDR legislation – the State-Owned Land (Grants of Usufructs) Act of 14 December 1970 (Gesetz über die Verleihung von Nutzungsrechten an einem volkseigenen Grundstück) – persons entitled to a usufruct were required to use the land themselves. Even if the applicants had moved house within the GDR, the land would have reverted to the State and the applicants' only entitlement would have been to compensation. The applicants had been aware of that situation, which is why they had sought to transfer their property. 24. By two decisions of 2 September and 22 October 1996, the Federal Administrative Court (Bundesverwaltungsgericht) declined to examine an application for review by the applicants. It referred to its leading judgment of 29 February 1996 in which it had stated that instances of unfair dealings between 23 November 1989 (the date of publication of the Resolution of Property Issues Order in the Official Gazette (Gesetzblatt) of the GDR) and 31 January 1990 (when the Travel Order (Reiseverordnung) of the GDR dated 30 November 1988 was revoked) would be rare. The Leipzig Administrative Court had conducted a thorough review of the facts of the case and concluded that there had been no duress or deception within the meaning of section 1(3) of the Property Act. The Federal Administrative Court also referred to its leading judgment of 29 August 1996, in which it stated that there would not be unfair dealing within the meaning of section 1(3) of the Property Act in cases in which the obligation to transfer property had arisen under the State-Owned Land (Grants of Usufructs) Act of 14 December 1970 of the GDR. 25. In two decisions of 22 January 1997, the Federal Constitutional Court (Bundesverfassungsgericht) declined to hear constitutional appeals by the applicants against either the civil courts' or the administrative courts' decisions. It referred, inter alia, to its leading judgment of 8 October 1996 in which it had held that it was not unconstitutional for civil rights to be supplanted (verdrängt) by the provisions of the Property Act in cases involving the departure of GDR citizens for the FRG. Accordingly, the Federal Court of Justice's interpretation in the instant case was consistent with that authority. 27. During the reunification process in 1990, the two German governments began negotiations on the many property issues arising and subsequently issued the Joint Statement of the Federal Republic of Germany and the German Democratic Republic on the Resolution of Outstanding Property Issues (Gemeinsame Erklärung der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen), which became an integral part of the German Unification Treaty (Einigungsvertrag) of 31 August 1990. The negotiations covered both the questions of restitution of property that had been expropriated in the GDR to its owners and the transfer of property by citizens of the GDR on leaving the country. In the statement, the two governments said that in seeking solutions to the contentious property issues, they needed to find a socially acceptable balance (sozial verträglicher Ausgleich) between the competing interests, while taking into account the need for legal certainty and clarity and to protect the right of property. 28. The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was also a part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the reunified Germany after the reunification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, in order to achieve permanent legal order in Germany. 29. Section 1(3) of the Property Act provides: “This Act shall also apply to rights in or over immovable property and usufructary rights acquired by unfair dealings, such as abuse of power, corruption, duress or deception by the purchaser, the State authorities or third parties.” 30. The Property Act established the principle of a right to restitution for citizens of the GDR who had been forced to transfer their property in order to leave the country legally, save where restitution was precluded, as for instance if the purchasers had acted in good faith (redlicher Erwerb) (section 4(2) of the Act). In such cases, the former owners had a right to compensation under the Resolution of Outstanding Property Issues (Compensation) Act of 27 September 1994 (Gesetz über die Entschädigung nach dem Gesetz zur Regelung offener Vermögensfragen). 31. However, the rule set out in section 4(2) of the Property Act does not apply in principle if the transfer was made after the transitional date of 18 October 1989 (when Mr Erich Honecker, President of the Council of State (Staatsratsvorsitzender) of the GDR, resigned) and without the parties' agreement (however, see below for the decisions of the Federal Court of Justice on this point). 32. The legislature deliberately chose to give the administrative courts jurisdiction for the interpretation of the Property Act in litigation concerning the transfer of property by citizens wishing to leave the GDR, in order to avoid direct confrontation between former owners and new owners in the civil courts. To that end, it set up offices for the resolution of outstanding property issues which were responsible for deciding the disputes by carrying out investigations of their own motion (Amtsermittlungsgrundsatz), while also having regard to the general interest. 35. In two further leading judgments of 14 January and 12 May 2000 (Fifth Civil Division, nos. 439/98 and 47/99), the Federal Court of Justice held that the Property Act could apply to legal transactions entered into after the transitional date of 18 October 1989 if the factors vitiating consent would have resulted in the transfer being null and void in the light of the new situation obtaining in the GDR, both on the facts and in law. | 0 |
train | 001-82414 | ENG | GBR | ADMISSIBILITY | 2,007 | PARKES and BOSHER v. THE UNITED KINGDOM | 4 | Inadmissible | Josep Casadevall;Nicolas Bratza | The applicants, Mr Neil Anthony Parkes and Mr Richard Bosher, are British nationals who were born in 1960 and 1957. The latter lives in Surrey. They were represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 2 June 2000, leaving two children born in 1993 and 1997. His claim for widows’ benefits was made on 21 August 2000 and was rejected on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant’s wife died on 8 December 2000, leaving two children born in 1991 and 1993. His claim for widows’ benefits was made on 5 March 2001 and was rejected on 6 April 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV. | 0 |
train | 001-111467 | ENG | SWE | ADMISSIBILITY | 2,012 | ABDULGADIR AND MOHAMEDNUR v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicants, Ms Amulkheir Suleimen Abdulgadir and Ms Zemzem Saleh Mohamednur, are Eritrean nationals, who were born in 1940 and 1971 respectively. They were represented before the Court by Ms A. Lindblad, a lawyer practising in Stockholm. While the applicants, a mother and her adult daughter, are Eritrean nationals they have resided for most of their lives in Saudi Arabia. They arrived in Sweden on 7 September 2008 carrying valid passports and visas valid until 29 October 2008. They had come to stay with the first applicant’s son. On 30 October 2008 they applied for asylum and submitted that they would be at risk of ill-treatment and harassment on return to Eritrea. Allegedly, the second applicant would be called up for military service on return. Both applicants also referred to a risk based on their state of health as the first applicant suffered from old age in combination with Alzheimer’s disease and the second applicant was diagnosed with Systemic Lupus Erythomathosis (SLE), a chronic rheumatic disease. The second applicant submitted a medical certificate, issued on 4 August 2009 by chief physician E., which stated that she suffered from serious SLE and that she would have to undergo regular treatment and medication for long periods of time. On 4 September 2009 the Migration Board (Migrationsverket) rejected the applicants’ request for asylum. The Board noted that they had waited two months before applying for asylum which indicated that they were not in need of international protection. It was further noted that the second applicant had not been called up for military service, but she was likely to be excused from service due to her medical condition. She had visited Eritrea in 2004 without any problems and she had been able to travel legally to and from the country. With regard to the applicants’ state of health, the first applicant’s condition was not considered sufficiently serious. Furthermore, the Board noted that the second applicant had been admitted to hospital and had received medical treatment in Eritrea in 2004, although a diagnosis could not be established. The Board could not find that the second applicant had made plausible that she would not receive appropriate medical care in Eritrea. The applicants appealed to the Migration Court (Migrationsdomstolen) in Stockholm and submitted additionally that they belonged to a small religious minority and were subject to persecution in Eritrea. On 27 December 2010 the Migration Court rejected the applicants’ appeal. The court found that they had added new circumstances at a late stage of the proceedings and that there was no indication that they would be subjected to persecution due to their religious affiliation in Eritrea. Furthermore, it found no reason to believe that the applicants would be subjected to ill-treatment on the grounds that the second applicant had not done military service. The first applicant’s medical condition was not considered to be of such a serious nature as to constitute grounds for asylum. With regard to the second applicant’s medical condition, the court found that the submitted medical certificate did not substantiate that the illness was fatal. Furthermore, there was no indication that adequate care and medical treatment would not be available to the applicant in Eritrea. On 25 May 2011 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal. The applicants turned anew to the Migration Board and submitted, inter alia, a medical certificate concerning the first applicant and some correspondence from a physician working for the World Health Organisation (WHO) in Eritrea and from the Red Cross in Stockholm concerning the second applicant. The medical certificate, dated 17 January 2011, was issued by a general practitioner and stated that the first applicant had an alleged progressive memory problem and could occasionally not remember her daughter. There was no evidence, but strong indications of early Alzheimer’s disease. According to the submitted correspondence, not all of the drugs that the second applicant had received in Sweden were available in Eritrea and the management of complications such as thrombosis and, in the long run, renal complications was not possible there. There were allegedly difficulties in having haemodialysis since only two units were available for the whole country and there were regular breaks in service. On 29 September 2011 the Migration Board refused to review the case as it found no new circumstances which constituted impediments to the enforcement of the expulsion. Concerning the first applicant, it was noted that she had received effective medical treatment and that her Alzheimer’s disease had improved. With regard to the second applicant, the only medical certificate submitted had already been considered in the main proceedings. On 12 October 2011 the Migration Court rejected the applicants’ appeal with regard to a review of the case in accordance with Chapter 12, section 19 of the Alien’s Act. The applicants turned again to the Migration Board and submitted an additional medical certificate, issued by a specialist physician on 4 October 2011, concerning the second applicant. The certificate stated that if the necessary medication were stopped this would, within days or weeks, lead to fatal complications. On 7 October 2011 the Board noted that the medical certificate described the progression of SLE in general terms as well as general treatment methods. It had not been issued by the second applicant’s own doctor and the Board noted that no information was submitted concerning the applicant’s state of health for the period 2009-2011. The Board did not question the submitted mail correspondence with the WHO, but found that the applicant had failed to substantiate that there were no alternative medicines available in Eritrea. Furthermore, it was considered that the correspondence had taken place in 2009 and there was no new information on the applicant’s state of health or required medicines for treatment. The Board found that the applicants had failed to substantiate any impediments to enforcing the expulsion to Eritrea. On 13 October 2011 the applicants were deported to Eritrea, but no information has been submitted as to their situation following their return. The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). Chapter 5, section 1, of the Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation 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 well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, section 18, where new circumstances have emerged which imply there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to treatment as referred to in Chapter 12, sections 1 and 2, or that 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, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a reexamination (Chapter 12, section 19). The World Health Organisation report, Eritrea Country Cooperation Strategy 2009-2013 (pp. 3-5), published in 2009, stated that: “Since independence in 1991, Eritrea has made considerable progress in promoting equitable, accessible and affordable health services to the majority of its citizens with the support of its partners. This is demonstrated by the significant improvement of health indicators. The health infrastructure has made considerable progress. ... Over 60 different medical products are locally produced; key medicines are available in 95% of health facilities and there is no shortage of supplies and equipment. ... Chronic diseases like diabetes, hypertension, mental health and infectious diseases like tuberculosis, HIV/AIDS and other sexually transmitted diseases are treated free of charge. ... ...[T]he country still experiences acute shortage of human resources particularly at the peripheral level of the healthcare delivery system.” | 0 |
train | 001-89902 | ENG | RUS | CHAMBER | 2,008 | CASE OF TISHKEVICH v. RUSSIA | 4 | No violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1936 and lives in Novyi Urengoy, a town in the Tyumen Region. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1998 the applicant sued Mr T. for damages. On 26 November 2001 the Oktyabrskiy District Court of Tomsk held for the applicant. Mr T. was absent from this hearing because he did not live at the address to which the summons had been mailed. 7. On 10 December 2001 the applicant collected the writ of enforcement from the court and submitted it to bailiffs for enforcement. 8. On 13 February 2003 the bailiffs returned the writ to the applicant, because it contained wrong information on Mr T.’s identity. The applicant asked the court to rectify Mr T.’s identity, and on 23 December 2003 the court issued a new writ of enforcement. 9. On 30 December 2003 the bailiffs instituted enforcement proceedings and on 26 January 2004 they attached Mr T.’s at in Tomsk. 10. On 17 September 2004 the bailiffs transferred the enforcement file to the service having territorial competence over Mr T.’s residence. 11. On 9 September 2004 the District Court restored for Mr T. the time-limit for supervisory review of the judgment. On 20 October 2004 the Tomsk Regional Court stayed the enforcement pending the supervisory review. 12. On 9 March 2005 the Presidium of the Tomsk Regional Court granted Mr T.’s application for supervisory review, quashed the judgment, and remitted it for a rehearing. The Presidium found that the District Court had gone beyond the applicant’s claims by adjusting the award for ination, and had failed to notify Mr T. of the proceedings. 13. On 23 June 2005 the District Court adjourned the proceedings for the applicant’s persistent failure to appear. | 0 |
train | 001-57513 | ENG | DEU | CHAMBER | 1,986 | CASE OF KOSIEK v. GERMANY | 2 | Preliminary objection rejected (incompatibility);No violation of Art. 10 | C. Russo | 11. Mr. Rolf Kosiek, who is a German national born in 1934, lives in Nürtingen. After studying physics for several years, he sat his degree examinations (Diplomhauptprüfung) in November 1960 at the University of Heidelberg, where he took a doctorate in physics three years later. From 1 September 1962 to 31 October 1968, he worked in the First Institute of Physics at the same University, first as an employee (Angestellter) and then, from 1 April 1963, as a research assistant (wissenschaftlicher Assistent) with the status of temporary civil servant (Beamter auf Widerruf). His appointment, initially limited to four years and subsequently extended, was terminated with his agreement after he had been told by his Director that he could not expect a further extension. According to the Government, these assistantships are used to train scientists and give them an opportunity to prepare themselves for an academic career. For this reason they are deliberately awarded on temporary contracts which should have a maximum total duration of six years. 12. On 26 October 1962, shortly after taking up his duties, Mr. Kosiek signed a statement certifying that he had been given notice of the Federal Government’s decision of 19 December 1950 on anti-democratic activities by civil servants and of the decree issued on 12 September 1955 by the Land Government of Baden-Württemberg. Such a statement was required by the decree, whose first paragraph read: "It is taken for granted that candidates for civil-service posts shall not belong to any organisation which sets out to abolish the free democratic constitutional system (freiheitliche, demokratische Grundordnung) or support such tendencies in any other way, directly or indirectly. If necessary, appointment or employment should be regarded as having been brought about by wilful deceit (arglistige Täuschung)." The third paragraph stated that it was for the authorities concerned to take "the necessary action (disciplinary proceedings, dismissal)" "against staff (Bedienstete) who fail in their duty of loyalty". 13. In 1965, Mr. Kosiek joined the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD); he was chairman of the Rhine-Neckar branch from 1965 to May 1974. In 1968, he was appointed to the Executive Committee of the Baden-Württemberg section, of which he remained a member until 1978. In 1971, he was appointed the Executive Committee’s district agent for North Baden. He was also one of the three Land deputy chairmen, an appointment which was again renewed in June 1974. From autumn 1971, he served on the NPD Federal Executive Committee, where his responsibilities included university matters; he resigned in 1979. He left the NPD on 9 December 1980; he claims that he had already informed the Minister of Education and Culture, in January 1974, that he intended to leave the party as soon as he was given tenure. He was an NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May 1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to secure any seats in the Bundestag. Mr. Kosiek set out his political views in two books. The first of these, published in September 1972 and reprinted several times, is entitled "Marxismus? Ein Aberglaube! Naturwissenschaft widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is entitled "Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation"). 14. In 1970, he applied for a position as lecturer (Dozent) at the State Engineering College (Staatliche Ingenieurschule) in Koblenz. In March, he passed a test there, and the college asked the Ministry of Education and Culture (Ministerium für Unterricht und Kultur) of the Land of Rhineland-Palatinate to appoint him with effect from 1 March 1971. On 15 December 1970, the Ministry informed him that another applicant had been given the post. A year later, having learned through the press that his political activities in the NPD had been the main reason for his failure to secure the appointment, Mr. Kosiek went to court to compel the Land to employ him. His case was dismissed on 24 October 1972 by the Administrative Court (Verwaltungsgericht) of Neustadt an der Weinstrasse and, on 2 March 1977, by the Land Administrative Court of Appeal (Oberverwaltungsgericht), which refused him leave to apply to the Federal Administrative Court for review on points of law. The Court of Appeal held that he did not afford the guarantee required by section 9(1)(2) of the Land Civil Servants Act (in its version of 14 July 1970) that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law. It based its conclusions mainly on his book "Das Volk in seiner Wirklichkeit" (see paragraph 13 above). 15. In 1972, the applicant applied for a vacant post as lecturer (Dozent) at Nürtingen Technical College (Fachhochschule). With two of the other seven candidates he took a test and was interviewed. On 14 July 1972, the Lecturers’ Council (Dozentenrat) recommended the Ministry of Education and Culture to appoint him. On the same day, he was interviewed at the Ministry on the subject of his past activities as a member of the Land Parliament and his future political intentions. Immediately afterwards, he wrote to the principal of Nürtingen Technical College assuring him that he would, if appointed, keep his professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends; he added that he had no intention of appearing in public in Nürtingen or the surrounding area as a party militant - during the election campaign for the Bundestag, for example. The Ministry appointed him as a lecturer (Dozent zur Anstellung) with the status of probationary civil servant (Beamter auf Probe) at Nürtingen Technical College, with effect from 1 September 1972. The decision was taken by the Minister himself who, according to the Government, had known the applicant as a parliamentarian and had no doubts whatever about his loyalty to the Constitution. The Land Civil Servants Act, in its version of 27 May 1971, requires all candidates for civil-service posts - whether temporary or permanent - to give "a guarantee that they will consistently uphold the free democratic constitutional system within the meaning of the Basic Law" (sections 6(1)(2) and 8). By virtue of section 64(2) of the Act, civil servants shall undertake to bear witness (bekennen) to the said system by their every word and deed and to uphold it. Mr. Kosiek did not have to sign a declaration of loyalty: the decree of 12 September 1955 (see paragraph 12 above) had been repealed on 4 February 1969, and it was not until 15 October 1973 that the Land Minister of the Interior issued directives implementing the decree on the appointment of extremists to the civil service which the Federal Chancellor and the Prime Ministers of the Länder had adopted on 28 January 1972 ("Ministerpräsidenten-Beschluss" - see paragraph 17 below). On 9 November 1972, the applicant was sworn in before the principal of Nürtingen Technical College; he promised, inter alia, to abide by and uphold the Basic Law and the Land Constitution (section 65 of the Land Civil Servants Act). 16. On 17 October 1973, pursuant to section 24(1) and (2) of the Land Civil Servants Act, which makes it possible for the normal three-year probationary period to be shortened, the principal of the College requested that Mr. Kosiek be given tenure for life (Ernennung auf Lebenszeit). After examining whether the legal conditions for tenure were fulfilled (sections 6 and 8 of the Land Civil Servants Act - see paragraph 15 above), the Ministry replied that Mr. Kosiek’s attitude and political activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be dismissed. 17. On 13 February 1974, the applicant was interviewed on the subject of his attitude to the Constitution. On 28 February, the Ministry gave him notice of dismissal with effect from 30 June. Citing, inter alia, section 38(2) of the Land Civil Servants Act, which provides for dismissal of a probationary civil servant where he has not proved himself during the probationary period, and the decree of 28 January 1972 (see paragraph 15 above), it declared him unsuitable for the post (mangelnde Eignung): as a prominent NPD official, he had approved of NPD aims which were inimical to the Constitution (verfassungsfeindlich) and had thus shown that he did not support the free democratic constitutional system by his every word and deed and was not prepared to uphold it (section 64 of the Act). According to the Ministry, the NPD behaved in a manner hostile to the Constitution since, among other things, it rejected the idea of international understanding, human rights and the existing democratic order; specifically, it preached extreme nationalism and a racist ideology, and wished to abolish parliamentary government and the multi-party system. The decree of 28 January 1972 on the employment of extremists is designed to ensure uniformity of administrative practice in the matter; it reiterates civil servants’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Gemeinsames Amtsblatt - of certain Ministries of the Land, 1973, no. 34, p. 850): "2. Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles: 2.1. Candidates 2.1.1. A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service. 2.1.2. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule such doubt shall be sufficient reason for not appointing him. 2.2. Civil servants If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and shall consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst)." German civil servants’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391). 18. On 8 March 1974, the applicant lodged an objection (Widerspruch) against his dismissal. This was rejected by the Ministry on 3 May, and he instituted proceedings before the Stuttgart Administrative Court on 10 June. On 8 April 1975, the Ministry revoked its decision of 28 February 1974 on the ground that it had failed to consult the Staff Committee (Personalrat) of the Technical College beforehand. At the same time, it again dismissed the applicant on the same grounds as in February 1974 - having interviewed him again and consulted the Staff Committee in the meantime - with effect from 30 June 1975. On 9 May, the Stuttgart Administrative Court accordingly stayed (einstellen) the proceedings before it, holding that the issues raised had been settled. 19. On 2 May 1975, Mr. Kosiek lodged an objection against his second dismissal, arguing, inter alia, that the criticisms levelled at him had been unjustified. He asserted that it was common knowledge that he had personally and actively upheld the free democratic system. Since becoming a teacher he had resigned from several of his NPD posts, including those of chairman of the Rhine-Neckar branch, district agent for North Baden and member of the Federal Executive Committee responsible for university matters. In addition, he had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not appeared there in public. His membership of a party with aims allegedly inimical to the Constitution was no reason for dismissing him. The Technical College and the Staff Committee had supported him and had testified to his personal and professional abilities. Finally, the probationary period was now over: the period which he had previously spent as a temporary civil servant should be added to the two years and seven months which he had spent as a probationary civil servant. On 7 May, the Land Ministry of Education and Culture rejected his objection, mainly on account of the major role he had played in NPD activities. It also referred to the Federal Administrative Court’s ruling that mere membership of an unconstitutional party might justify a civil servant’s dismissal; that being so, it was unnecessary to establish whether the applicant had restricted his political utterances, and his professional qualifications were immaterial. Finally, probation did not end automatically under civil-service law; as he had not been established, Mr. Kosiek was still a probationer and could therefore be dismissed under section 38 of the Land Civil Servants Act. 20. On 9 June 1975, the applicant challenged the Ministry’s decision before the Stuttgart Administrative Court, claiming that no definite proof had been adduced therein that his attitudes had been inimical to the Constitution. In German case-law, membership of an organisation regarded as being inimical to the Constitution was merely a possible reason for doubting a civil servant’s constitutional loyalty, and every case had to be examined in detail. The Ministry’s overall judgment did not satisfy this requirement. The applicant had always actively upheld the free democratic system - in 1968, for example, when the University of Heidelberg had been occupied; or in 1970 in Ulm, when he had retrieved the flag of the German Democratic Republic and handed it over to the public prosecutor; or again, as a member of the Land Parliament. The same was true of his writings. He could not be held responsible for NPD statements or actions which might be regarded as inimical to the Constitution. In any case, the party approved of the free democratic system within the meaning of the Basic Law. When the Land Minister appointed him as a probationary civil servant, he knew that he had been a member of the Federal Executive Committee (since 1971), a member of the Land Executive Committee (since 1968), the Land Executive Committee’s district agent for North Baden (since 1971) and chairman of the Rhine-Neckar branch of the NPD (since 1965). It was thus illogical that his commitment to the NPD should be seen as making him personally unsuitable and justifying his dismissal. The same inconsistency was apparent in earlier statements by the Minister. In December 1972, he had repeatedly stated - in the Land Parliament, on television and in interviews with the press - that Mr. Kosiek was not opposed to the Constitution and that his four-year record in Parliament showed as much. 21. On 26 January 1977, the Stuttgart Administrative Court set aside the decisions of 8 April and 7 May 1975. The court held that the law and general principles precluded dismissing a probationary civil servant on grounds which had been known - and should have been taken into account - when he was appointed. The Ministry had based its decision on facts already known in 1972 which it had not regarded at the time as indicating personal unsuitability. It had been aware from the decisions of the Conference of Land Ministers of the Interior (25 February 1972), quoted in the disputed decision of May 1974, that the NPD was regarded as having aims inimical to the Constitution, and it had also known that the applicant was an influential member of the party and an NPD member of the Land Parliament. The fact that the Ministry had nonetheless appointed Mr. Kosiek showed that it regarded his personal conduct, notwithstanding his commitment to the NPD, as affording the necessary guarantee of allegiance to the Constitution. This had been clear from the Minister’s reply to a question put to him in the Land Parliament in December 1972. Thus, when it was being determined whether the applicant had proved himself during his probation, his political conduct was relevant only in so far as it had changed in the meantime. The applicant’s continuing commitment to his party could not be judged any differently from before, as the NPD’s aims had not changed in the meantime. As for his book "Marxismus? Ein Aberglaube!", which the Ministry had not originally been aware of, it was not sufficient proof of opposition to the Constitution. The court had beforehand called the applicant to give evidence explaining a number of passages in his book. It had sought such evidence notably in order to establish whether his theory of genetic and biological inequality in humans was based on racist views and whether Mr. Kosiek drew from it conclusions which were incompatible with the principles of equality and respect for human rights enshrined in the Basic Law. 22. The Ministry appealed against this judgment on 23 June 1977. It contended that it must be free to rectify any error made during the appointment procedure; it could not be compelled to establish a probationary civil servant who lacked one of the requisite qualifications. Moreover, it had since been found that the NPD did not accept the Basic Law but was actively opposed to it and the lawful institutions. The applicant’s new book, "Das Volk in seiner Wirklichkeit", confirmed his personal views of the Basic Law; the Koblenz Administrative Court of Appeal (see paragraph 14 above) had been right to conclude from it that he did not recognise the Federal Republic and its Constitution as positive values, but extolled National Socialism. Mr. Kosiek contended that a book which had not appeared until 1975 could not be taken into account in the present proceedings. In any case, it did not give any grounds for doubting his allegiance to the Constitution; the Koblenz Court of Appeal had incorrectly summarised it and had totally distorted the views he had expressed in it (see paragraph 14 above). For the rest, he essentially repeated the arguments he had adduced at first instance. 23. On 28 February 1978, the Administrative Court of Appeal of the Land of Baden-Württemberg allowed the appeal and dismissed the applicant’s action. In the light especially of the case-law of the Federal Constitutional Court, particularly its judgment of 22 May 1975 (see paragraph 17 above), it ruled that the impugned decisions were lawful. After reviewing in detail the Ministry’s arguments and evidence, the Court held that it had not been proved that the NPD was pursuing aims inimical to the Constitution, that is to say, was systematically (planvoll) and actively seeking to undermine the free democratic constitutional system, bring about its abolition or jeopardise the continued existence of the Federal Republic of Germany (Article 21 of the Basic Law). Mere membership of the NPD could not therefore be construed as a sign of doubtful allegiance. Many NPD statements nonetheless did indicate a worrying tendency, and, that being so, a political party’s constitutionally suspect (verfassungsrechtlich bedenklich) views might give grounds for ascertaining the personal views of a civil servant who was a party member. A civil servant, who was bound actively to uphold the free democratic system, might accordingly be required to dissociate himself explicitly from the objectionable views of his party. Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line. On the contrary, he had identified himself with it by his many militant activities. These, and the personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast serious doubts on his loyalty to the Constitution. In his book, which could legitimately be taken into consideration, he had played down or indeed praised, without the least reservation or criticism, circumstances and events that had marked the Third Reich. In this respect, the Land Administrative Court of Appeal shared the views of the Koblenz Court of Appeal, which had analysed the book in detail (see paragraph 14 above). Admittedly, the applicant maintained that he had written in appreciative terms only of the first phase of the Third Reich, but this showed merely that there were at least some aspects of National Socialism of which he approved, not that he disavowed it. As early as 1933, the most important fundamental rights had been suspended, separation of powers abolished, political parties disbanded, trade unions broken up and (what marked the beginning of the persecution of the Jews) "non-Aryan" civil servants dismissed. Without any reservation or criticism the applicant judged the circumstances, events and ideas of the Third Reich preferable to the current situation. It was thus impossible to believe that he also endorsed the fundamental views and principles of the Basic Law as being a priceless asset to be protected. The Ministry had rightly concluded that Mr. Kosiek did not give any guarantee that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law, and that he had accordingly failed to prove himself during his probation. It mattered little whether he had the necessary professional qualifications and had refrained from expressing any political views at the Technical College. Before appointing him the Minister had certainly been aware of his prominence in the NPD, but this did not make the disputed revocation of his appointment unlawful. Performance of duties as a probationary civil servant was of vital importance for determining whether a probationer could be relied on to be loyal to the Constitution. The applicant should have expected the Ministry to carry out, at the end of the probationary period, a further thorough and final assessment of matters already known to it. 24. With leave of the Court of Appeal Mr. Kosiek applied for review on points of law, but the Federal Administrative Court (Bundesverwaltungsgericht) found against him on 28 November 1980. The Ministry’s doubts about the applicant’s loyalty to the Constitution - prompted by his active membership of the NPD - were justified. In this connection, the Court of Appeal had erred in regarding membership of a party as relevant only if the party deliberately sought to undermine or destroy the free democratic system - in other words, was liable to banning by the Constitutional Court under Article 21 of the Basic Law. It was in fact sufficient if the party pursued aims that were incompatible with that system. The NPD did; and the applicant, far from repudiating its aims, had approved of them. The Ministry’s doubts had consequently not been prompted, as the Court of Appeal had held, by statements in the applicant’s book "Das Volk in seiner Wirklichkeit" but had been corroborated and strengthened by them. Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art, science, research and teaching, did not lead to any different conclusion. Academics had a large measure of professional independence but that did not absolve them from their duty of loyalty to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil servants, and a university lecturer with the status of probationary civil servant could be dismissed for unsuitability. The Ministry had been entitled to base its decision on Mr. Kosiek’s involvement with the NPD, notwithstanding that it had been aware of this at an earlier date, and on the content of the aforementioned book, which had been published only in 1975 and mentioned in the appeal proceedings. Lastly, the Federal Administrative Court dismissed various procedural complaints which had been raised before it. 25. On 16 March 1981, Mr. Kosiek applied to the Federal Constitutional Court to have the judgments of the Court of Appeal and the Federal Administrative Court set aside, on the ground that they contravened various Articles of the Basic Law. In particular, he challenged the objectivity and relevance of the evidence used against him and contended that the judgments complained of had been arbitrary. The courts which had given those judgments had made no attempt to establish whether the NPD and he had, by their statements, attacked the principles of the Basic Law. The NPD and he were not in fact pursuing aims that were incompatible with the Basic Law. The views expressed in his book were covered by freedom of expression and none of them bore on any principles of the free democratic system. Moreover, they were in line with the views of most present-day historians. The judgments in issue had accordingly infringed his right, secured in Article 3 of the Basic Law, not to be discriminated against on account of his opinions. In penalising a political opponent for holding views that were not directed against the democratic system, the authorities had disregarded his right to freedom of conscience and opinion, secured in Article 4. His dismissal and the criticisms of his book amounted to unlawful interference with his freedom of expression, contrary to Article 5(1) and (3). He had also been banned from his profession (Berufsverbot), a measure which was incompatible with Article 12, since he could no longer find a university lectureship at his age. In dismissing him, the Land, in defiance of Article 33(1), had deprived him of rights recognised by all the other Länder (except Bavaria), which did not harass NPD members. Despite his suitability, professional qualifications and efficiency, he was being arbitrarily refused access to a civil-service post, or prevented from remaining in one, contrary to Article 33(2) and (3). Lastly, his dismissal - based on circumstances which were both lawful and known at the time of his appointment - was contrary to Article 103. 26. Sitting as a panel of three judges, the Constitutional Court decided on 31 July 1981 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success. Citing its own case-law (judgment of 22 May 1975), it recalled firstly that the duty of loyalty to the State and the Constitution was one of the traditional principles of the civil service (Article 33(5) of the Basic Law). Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a civil-service post. Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal unsuitability. In this connection, membership of a party whose aims were incompatible with the free democratic system was a relevant consideration. In the particular case, examination of the judgments challenged did not disclose any breach of constitutional law. Neither the findings of fact nor the conclusions of the Court of Appeal and the Federal Administrative Court were tainted by arbitrariness. The applicant’s dismissal did not breach any of the rights he relied on. 27. As his appeal against dismissal had a suspensive effect, Mr. Kosiek was able to continue teaching at Nürtingen Technical College, but the dismissal became final after the Federal Administrative Court’s judgment of 28 November 1980. He was accordingly notified on 15 December 1980 that his employment was at an end. | 0 |
train | 001-109072 | ENG | GBR | CHAMBER | 2,012 | CASE OF HARDY AND MAILE v. THE UNITED KINGDOM | 3 | Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicants were born in 1946 and 1935 respectively and live in Milford Haven. 6. The present application concerns the construction and operation of two liquefied natural gas (“LNG”) terminals on sites at Milford Haven harbour (“The Haven”). 7. The applicants were members of an informal group of residents of Milford Haven opposed to the LNG terminals, called “Safe Haven”. Safe Haven was formed in May 2004 and had approximately fifteen members who met regularly. The applicant became involved in Safe Haven from August to October 2004. 8. Construction and operation of the LNG terminals at Milford Haven requires, inter alia, planning permission granted by the relevant local planning authority; hazardous substances consent granted by the Hazardous Substances Authority; compliance with the Control of Major Accident Hazards (“COMAH”) Regulations; compliance with international certification requirements for vessels; and compliance with byelaws, general directions and the Port Marine Safety Code. A brief outline of these requirements is set out below. For further details of the relevant domestic law see paragraphs 129-170 below. 9. Planning permission was required for the construction of the LNG terminals, including the jetties and piers, and the use of the land for that purpose. The power of the local planning authorities to grant planning permission for development was subject to Regulations which prohibited the grant of planning permission unless relevant environmental information had been taken into account. 10. The operation of the LNG terminals also required consent from the appropriate hazardous substances authority. The key role of the hazardous substances authority was to control the presence of hazardous substances on, over or under land. 11. The Health and Safety Executive (“HSE”) was a statutory consultee in respect of the applications made for hazardous substances consent. This meant that the hazardous substances authority was obliged to consult the HSE and to take account of its representations, but was not bound to follow them. The role of the HSE was to provide advice on the nature and severity of the risks presented by major hazards to people in surrounding areas so that they could be balanced against other material planning considerations. 12. The LNG terminals remain subject to COMAH Regulations, which apply mainly to the chemical industry but also to some storage activities, explosives and nuclear sites and other industries where threshold quantities of dangerous substances are kept or used. The purpose of the COMAH Regulations is to reduce the risk of major accidents to a level that is as low as reasonably practicable by imposing on-site safety control. 13. The HSE and the Environment Agency Wales (“EA”) monitor compliance with the COMAH Regulations of the LNG operations at Milford Haven. 14. The marine vessels used to transport LNG to Milford Haven are subject to certification for compliance with international standards. Compliance with those standards is monitored by the Maritime and Coastguard Agency (“MCA”) for England and Wales, an agency of the Department of Transport. 15. Milford Haven Port Authority (“MHPA”) has a statutory duty to provide, maintain, operate and improve port and harbour facilities in, or in the vicinity of, the haven. It has the power to make byelaws to regulate the use of the haven and to issue directions for the purpose of promoting or securing conditions conducive to the ease, convenience or safety of navigation in the haven and its approaches. 16. The Port Marine Safety Code (“the Code”), with which MHPA complies, was issued by the Department of the Environment, Transport and the Regions in March 2000, and has since been updated. It introduces a national standard for every aspect of port marine safety. It is supplemented by a Guide to Good Practice on Port Management Operations dealing with risk assessment and safety management. 17. In 2002 Petroplus, an oil refiner, applied to Pembrokeshire County Council, the relevant local authority, for planning permission to develop an LNG terminal on a site at Milford Haven harbour (“the Dragon terminal” or “the Dragon site”). The application was supported by an Environmental Statement. The planning application was duly advertised and publicised by Pembrokeshire County Council and MHPA and the HSE were consulted. Any member of the public who wished to do so was able to make comments regarding the proposed development. 18. Chapter 15 of the Environmental Statement, dated September 2002, dealt with operational safety. It noted that marine and navigational safety for the delivery of LNG by marine tankers to the jetty was recognised as an area of concern. Petroplus had therefore commissioned a marine risk assessment and a simulation of the manoeuvring and berthing of a large LNG tanker within the waterway, in conjunction with MHPA pilots. 19. The Statement identified the main risks arising in respect of the handling of LNG as fire and explosion. It noted that guidelines for assessment and tolerability of risks existed but that there was no definitive or prescriptive methodology in the United Kingdom. While this could lead to differences in the levels of tolerable risk in the United Kingdom compared to other countries, overall levels of risk tolerability were broadly similar across European Union and other safety conscious countries. Work which had been carried out in respect of risk assessment and evaluation included a Hazard Identification to identify major hazards; a quantitative risk assessment (“QRA”) in respect of major hazards identified; and a calculation of levels of individual and societal risk. 20. The Statement also considered environmental risk from potential incidents. As regards a possible spillage to surface water it noted: “... complete evaporation of the LNG would take place. As LNG and water are immiscible no residue would remain to cause ongoing pollution. The adverse phenomena would be a cooling of the water body local to the spillage as the LNG absorbs heat to evaporate. Given the large volume of water within the Milford Haven waterway it is most unlikely that this cooling would be of significance.” 21. In a section on “Marine Hazards and Navigation”, the Statement noted: “Petroplus is involving the MHPA in planning of the marine aspects of LNG terminal to ensure that its proposals will meet the Authority’s requirements for safe navigation and prevention of pollution. The involvement includes: Consultation in the development of a marine risk assessment for the development; Commissioning of real time simulation for the movement of LNG vessels in the Haven Waterway; Arranging for MHPA pilots to witness the operation of LNG vessels at a European terminal; and Further consultation during the design, construction and operational stages of the project.” 22. In the context of the real time ship simulation exercise conducted, the Statement clarified that MHPA pilots had been able to undertake trial navigation of an LNG vessel, including turning and berthing activities, under a variety of wind, wave and tidal conditions. It concluded that the output from the simulations had confirmed that the large LNG tankers could be safely operated in the Milford Haven waterway under certain restrictions regarding wind conditions set out in the Statement. The MHPA pilots who participated in the simulation exercise indicated that they were satisfied with the simulation and made recommendations as to maximum wind speed. 23. The Statement further noted that a risk assessment had been carried out on the effect of increased traffic in the haven from the introduction of LNG vessels. The findings were set out in some detail in the Statement, which explained that an average of 10,700 vessel movement took place in the haven each year and that an increase of between 100 and 240 movements per year could be expected once the LNG terminal was operational. The Statement concluded that the proposed operations would have little significant impact on the marine traffic environment of the haven. 24. As to mitigation measures for marine aspects, the Statement noted: “As the MHPA is responsible for safe marine operations in the Haven Waterway, mitigating measures would include: Continuing consultation of MHPA during the design, construction and operational stages of the project; Implementing further simulation exercises to assess additional aspects, such as strong wind conditions in the approach channel, emergency situations, failures and aborts; Implementing simulation training for all MHPA pilots who will handle LNG vessels prior to commencement of vessel operations; Application of conservative operational requirements, under specified wind conditions initially; with modification when the pilots become more experiences with the LNG vessels; Installation of wind monitoring facilities on the Petroplus berth.” 25. In its conclusions and management recommendations, the Statement summarised the impact of the proposed development on a wide variety of aspects including ecology and nature conservation, transport, social and economic issues, tourism and recreation, air quality and noise. On the safety aspects of the development, the Statement concluded that the level of risk presented by the LNG terminal was tolerable and observed that the operation of the terminal would be subject to ongoing inspection and audit by the HSE. 26. On 21 October 2002 MHPA submitted its views to Pembrokeshire County Council. It noted that: “As a Port Authority, we have a duty to assess anticipated building works in the waterway in respect of their impact upon navigation, and also of course have a responsibility for maintaining and regulating the use of the waterway in a safe and effective manner.” 27. MHPA indicated that its marine department had been working closely with marine advisers to Petroplus to assess the feasibility of LNG vessels transiting the port area and berthing at the proposed jetties with suitable modifications. This assessment had included periods using the MARIN simulator, based in the Netherlands, where a variety of different situations including different ways of approaching the berth, various sizes of ships and different weather and tidal conditions were all able to be trialled. The conclusion was that the identified and agreed means of navigation and operation “more than adequately” contained the risks associated with handling such vessels. MHPA also pointed to the benefit to the marine service community of the increase in traffic which would result from the development and the diversification into new sectors of activity. In short, MHPA was: “... supportive of [the] proposed development and have no concerns regarding safety or navigation in this respect”. 28. On 19 March 2003 Pembrokeshire County Council granted planning permission for an LNG terminal at the Dragon site. 29. On 25 April 2003, an application was made by Petroplus to extend the LNG terminal at the Dragon site. Again, Pembrokeshire County Council advertised and publicised the planning application and consulted various statutory consultees, including the HSE and MHPA. 30. A further Environmental Statement, dated April 2003, was prepared to consider the implications of the extension. It appears to have been a revised version of the original Statement. In the section on “operational safety”, the report addressed the potential increase in risk to safety which would arise from the increase in the stored quantity and throughput of LNG at the site. It noted that a revised safety report would be required under the COMAH Regulations to examine the hazards, risks and potential consequences of a major accident, to complement the report which had been accepted by the HSE for the existing installation. It further noted that a new risk assessment had been undertaken to consider the cumulative risk from the approved scheme together with the additional tank and regasification facilities, as well as ongoing operations. 31. The Statement noted that current movements per year at the Petroplus berths were in the region of 2,000, and that there were around 1,450 ferry movements. When the increase in movements was considered in the context of these statistics as well as the statistics for movements in the haven as a whole, it was clear that the increased traffic would have little significant impact on the marine traffic of the waterway. 32. The Statement concluded that the risks posed by the extended LNG terminal remained acceptable, observing that the expansion of the terminal would be subject to further scrutiny by the HSE under the COMAH Regulations. 33. A report prepared by the HSE for consideration on 2 September 2003 demonstrated some initial examination of the modalities and consequences of a major release from a delivery ship whilst moored at the jetty. The relevant section concluded: “It is clear that such plumes, centred on the jetty, are capable of engulfing the densely populated developments of Milford Haven (town), Neyland or Pembroke Dock. But without PCAG Guidance on the frequency to be assigned to the release, an ignition probability analysis cannot be undertaken to determine the significance in risk terms ... ... The paper has included some consideration of releases from delivery ships whilst moored at the jetty, but the analyses are incomplete due to shortage of data. A complete methodology could be developed over time.” 34. The application, together with the Environmental Statement and responses to the consultation, was considered at Pembrokeshire County Council’s Planning and Rights of Way Committee meeting on 21 October 2003. The minutes noted that the HSE had not advised against the granting of permission for the extension on safety grounds. They also recorded that MHPA strongly supported the proposal and was confident that the port had the capacity to handle the extra shipping traffic and that there would be no negative impacts on the satisfactory risk assessment already undertaken. 35. On 11 February 2004 Petroplus made a further planning application, accompanied by an Environmental Statement, dated January 2004, for amendments to the approved LNG terminal. The application was again publicised and was the subject of consultation. 36. On 10 September 2004 planning permission was granted for an extension at the Dragon site and for the amended scheme. 37. In the meantime, on 1 March 2004, Petroplus applied for hazardous substances consent for the storage of LNG. Pembrokeshire County Council consulted the HSE and MHPA and publicised the planning application. 38. A report dated 12 October 2004 by the Director of Development of Pembrokeshire County Council recorded that strong objections to the application had been received from residents of nearby areas calling, in particular, for “all health and safety information concerning the proposed Milford Haven LNG Terminals [to be] made publicly available and openly debated before any further consents are given to build”. It also noted that the HSE had confirmed that its statutory obligation was complete when all shore-based activities had been assessed and had been taken into account. Such activities, in the present case, would include the transfer of LNG from the ship to the shore and storage and regasification of the LNG. They would not, however, include the risks from ships moored at or approaching the jetty. The assessment of such risks would fall to the Maritime and Coastguard Agency. 39. The report continued: “The MCA has confirmed that as the national maritime administration, it would have responsibility for the safety of LNG tankers, transporting the cargo, whilst inside UK territorial waters. Although it would continue to have some general responsibility for the vessel when it passed from UK territorial waters into the Milford Haven Port Authority’s jurisdiction area, the MCA take the view that primary responsibility passes to the competent harbour authority. The MCA has stated that it would be reasonable to assume that there is some, unspecified increase in ‘risk’ by virtue of the explosive nature of LNG as a cargo. The Port Authority would be expected to allow the proposed activity to go ahead only where this risk has been reduced to ‘as low as reasonably practicable’. The mitigating actions initiated by the Port Authority would then be reflected in the Port’s safety management system which they are required to have in place through the Port Maritime Safety Code. The MCA have a range of responsibilities for various ‘operational’ aspects of the code including a general monitoring role for compliance with the Code by Port Authorities.” 40. MHPA’s submissions were recorded in the report as follows: “The Port Authority has confirmed its jurisdiction including responsibilities (and powers) to regulate the use of the Haven and the overarching views of the MCA on a UK basis ... The MCA’s role in regard to LNG ships specifically would be that of Port State Control Inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint. The Port Authority has confirmed that its marine personnel, including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The Port Authority state that the outcome has been to confirm that Milford Haven has the capability of handling these vessels safely. The Port Authority has also confirmed that the security issue addressed through the International Ship and Port Facility Security Code which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk. Port facilities including Petroplus have been required to produce a security plan before operations start and this plan has been and will continue to be approved by Transec as the UK Government body responsible for security.” 41. The report recommended that the application be approved. 42. On 7 December 2004 Pembrokeshire County Council approved the application for hazardous substances consent in respect of the Dragon Site. 43. On 28 April 2003 Qatar Petroleum and ExxonMobil applied for planning permission to develop an LNG terminal at another site at Milford Haven harbour (“the South Hook terminal” or “the South Hook site”). Unlike the Dragon terminal, the South Hook site fell within the authority of both Pembrokeshire County Council and Pembrokeshire Coast National Park Authority and an application was accordingly made to both bodies. In the same month, the operators of the site opened a public exhibition and visitors’ centre in the town centre of Milford Haven regarding the proposed development. The HSE and MHPA were, among others, consulted on the application. It was also advertised and publicised to allow members of the public to submit any views on the proposed development. 44. Qatar Petroleum and ExxonMobil instructed an Environmental Statement in respect of the proposed development. A draft dated April 2003 has been provided to the Court. It noted that the LNG industry had an excellent safety record and that the LNG transport and distribution industry in the United Kingdom had not experienced a major accident in a history of nearly forty years. A qualified risk assessment was also commissioned by the developers which identified potential hazards in respect of the LNG terminal. 45. Chapter 14 of the Statement dealt with major hazards. It was noted at the outset that the discussion of the hazards was general, but that a detailed and specific safety report was being prepared. 46. The Statement summarised the basic obligations arising under the COMAH Regulations, noting: “Operators of sites that come under COMAH have a general duty to take all measures necessary to prevent major accidents and limit their consequences to persons and the environment ... These sites are classified primarily according to inventory of hazardous substances, with approximately 750 being classified as ‘lower tier’, where operators must prepare a Major Accident Prevention Policy (MAPP). The remaining 350 sites, with larger inventories of dangerous substances, are classified as ‘top tier’ and are subject to additional requirements. These include submitting a Safety Report to the CA [competent authority – in this case the HSE and the EA], preparing and testing a site emergency plan, and providing information to local authorities to enable off-site emergency plans to be developed. The proposed installation will be top tier.” 47. As to assessment of risks, the Statement explained: “The COMAH Regulations govern land based industrial hazards. Under these, the proposed terminal will include the jetty, to the point where the loading arms connect to a berthed LNG carrier. The jetty comes within the jurisdiction of the Milford Haven Port Authority, which has responsibility for marine navigational safety and loss prevention issues within the 200 square mile Waterway. The close contact between the project and local expertise was recently manifested in a formal, two-day marine hazard identification exercise. Attendees included representatives of the Port Authority, pilots and tug masters, as well as master mariners from the project. Potential mitigation measures were identified in this exercise and are being evaluated for incorporation into the design ...” 48. It summarised the identified hazards. Most pertained to the on-site activities but two hazards were identified which would have an impact beyond the site itself. The first was the possibility of a vapour cloud with delayed ignition. Safeguards proposed related to the design of the containment tanks, an emergency shut down system to limit release and gas detention to identify leaks. The second was a ship collision at the jetty. Safeguards included emergency release coupling to allow the ship to depart quickly, an emergency shut down system and a firefighting system. 49. On 15 May 2003 MHPA responded to the consultation in support of the proposed development, in terms similar to their letter of 21 October 2002 in respect of the Dragon site (see paragraphs 26-27 above). 50. The minutes of a meeting of Pembrokeshire County Council’s Planning and Rights of Way Committee on 21 October 2003 recorded that the HSE had not advised against the granting of permission for the development on health and safety grounds and that MHPA supported the proposed development and had no concerns regarding safety or navigation. One letter of objection from a member of the public had been received. 51. On 12 November 2003, planning permission was granted by Pembrokeshire Coast National Park Authority in respect of the South Hook Site. 52. On 18 December 2003, planning permission was granted by Pembrokeshire County Council in respect of the South Hook Site. 53. In the meantime, on 21 January 2003, Qatar Petroleum and ExxonMobil applied to Pembrokeshire County Council and Pembrokeshire Coast National Park Authority for hazardous substances consent for the storage and gasification of LNG at the South Hook site. The application was publicised and the HSE and MHPA were consulted. 54. On 8 January 2004 the HSE provided observations in respect of the application for hazardous substances consent at the South Hook terminal. It noted that: “Our specialist team has assessed the risks to the surrounding areas from the activities likely to result if these Consents are granted. Only the risks from the hazardous substance for which the Consent is being sought have been assessed, together with the risk from these same substances in vehicles that are being loaded or unloaded ...” 55. On 10 February 2004, the Chief Executive of MHPA wrote to Pembrokeshire Coast National Park Authority with responses to questions asked. He observed that it was necessary to ensure that large LNG ships were managed in such a way that they were safely and effectively accommodated. He indicated that MHPA’s approach to accommodating the LNG vessels was by detailed risk assessment, taking into account the characteristics of the ships and the terminal to be used and making use of simulators and their own pilots and technical teams working with those of the project proposers, together with a wide range of specialist consultants, to determine the requirements to meet this objective. The result would take into account, for example, the number of tugs required for a movement; the number of pilots; whether tugs should be escorting the vessel; the limits on any weather conditions to allow a movement to take place; and the timing of any movement related to tidal conditions. He explained that MHPA did not intend to close the port while an LNG ship entered or left as it was not necessary and did not improve the situation. He continued: “... What we will probably be seeking to do (and I say probably because we are still very much involved in the risk assessment of a wide variety of scenarios) is that there will be a restriction on vessels being within a given distance of an LNG ship when transiting the Haven ... I also understand that some questions have been raised about the distance at which other vessels will be allowed to pass an LNG ship at the South Hook Jetty, given that this stretches some way into the Haven and that the main shipping channel in this vicinity is used by all other commercial ships being that their berths are further upriver. Again, we are researching this, testing on the simulators and undertaking risk assessments, but it is likely that we will be looking to undertake some dredging to widen the shipping channel to the South so that some vessels, including the ferry, will be able to pass the South Hook Jetty with an LNG ship alongside at a further distance than would be the case otherwise. We are also looking at other ways of controlling shipping passing the South Hook Jetty in such circumstances which could include criteria of speed, tugs in attendance, maybe even a ‘guard’ tug in the vicinity of the LNG ship and restricting any movements to one vessel at a time, certain weather conditions etc” 56. On 4 March 2004, the Western Telegraph newspaper published a question and answer article with ExxonMobil regarding the LNG terminal. Relevant extracts are quoted below: “Could LNG explode if there was a collision at sea or in the Haven? Or could it explode for any other reason? The South Hook sponsors have been working closely with organisations such as Milford Haven Port Authority to ensure that the possibility of a shipping incident is extremely low. Vessels are also designed to withstand significant impact. If an LNG release were to occur from a shipping incident, and if it were ignited, then the effect would be localised to the vessel and its immediate surroundings and unlikely to impact the land. The recent Health and Safety Executive assessment examined the consequence of such an incident and found no cause for local concern. ... What would happen if there were a spill on sea or on land? Health and Safety Executive experts have considered potential spill scenarios and have found no areas of concern. An incident at sea is extremely unlikely, and the current design of ship is aimed at minimising the likelihood of release in the event of collision. Milford Haven Port Authority has emphasised its ability to safely handle LNG shipping. ... Would it not be better if such a terminal was in a more uninhabited area? The HSE’s review has concluded there are no safety reasons to object to the proposed development. Our plans will be subject to a further safety review by the HSE, Environment Agency and the Coastguard under the Control of Major Hazards (COMAH) requirements. We, as operator, will have to demonstrate that all necessary measures have been taken to prevent major accidents. Any issues raised locally relating to safety systems, operating procedures and emergency response plans will have to be fully addressed.” 57. On 10 March 2004 Pembrokeshire Coast National Park Authority Planning Committee considered the application for hazardous substances consent. Concerns were raised at the meeting regarding a perceived absence of any QRA on tankers and the need to dredge the channel to increase its depth. 58. On 2 April 2004, Pembrokeshire County Council approved the application for hazardous substances consent in respect of the South Hook Site. 59. Pembrokeshire Coast National Park Authority approved the application on 19 August 2004. On the same day, the development planning officer of Pembrokeshire Coast National Park Authority, in a letter to the HSE, MHPA and Pembrokeshire County Council’s Emergency Planning Officer, highlighted concerns about the lack of comprehensive structure for assessing the risks of the project, saying: “Members however were still extremely concerned about safety issues and are hoping that the COMAH process is rigorous and very demanding and addresses all issues. This concern has arisen partly because of the fact that there does not appear to be one overriding Authority but a number of bodies involved whose responsibility does not overlap – and where the edge of that responsibility may be a bit blurred, and a genuine concern about exactly which body is responsible for what. The major concern appears to be the possible conflict between ships using the channel whilst an LNG slip is tied up at the jetty. Objectors seem to think that the space available is too narrow and that there is the potential for accidents if the jetty remains where it is ...” 60. ExxonMobil’s representatives were also advised of this concern by letter of 19 August 2004 and were asked to “ensure that the issue is fully addressed at the time of the COMAH submission”. 61. As set out above, the HSE played an important role in the planning and hazardous substances consent process and carried out its own assessments of the projects. In this context, it conducted a preliminary examination of potential marine spill scenarios, including the consequences of a major release from a delivery ship while moored at the jetty. However, it ceased work on this aspect of risk before it was concluded as marine risks were found to fall outside its ambit. 62. On 2 February 2006, in a letter to the Guardian newspaper, Geoffrey Podger, Chief Executive of the HSE, wrote: “Re your report on the gas terminals at Milford Haven: I am happy to make clear that the HSE gave independent advice in the public interest and was not swayed by any external pressure ... The reason the HSE examined the shore side operation but not the risk of an accident at sea is simply because we have no legal competence to assess risks from ships while at sea or under the direction of the ship’s master. We made this clear to the local authorities and suggested they consult others, including the Maritime and Coastguard Agency, to assess these risks prior to any consent being granted.” 63. Like the HSE, it can be seen from the above summary of the two projects that MHPA also participated in the planning process in respect of the LNG terminals. 64. On 23 February 2004 the Chief Executive of MHPA was asked which body had ultimate responsibility for assessing the risks involved in the movements of LNG tankers in Milford Haven. He replied on 25 February 2004, confirming that; “The Milford Haven Port Authority is responsible for the conservancy (management, regulation, provision of navigation aids and systems etc) of the Waterway. This includes the regulation and management of all shipping movements. We have a statutory responsibility to support all traffic and indeed, in common with all UK ports, cannot forbid a ship to enter (except in particular circumstances as laid down in appropriate Acts of Parliament). What we can and do lay down are the conditions under which movements will take place – e.g. time of entry, state of tide, number of pilots, number of tugs etc.” 65. On 27 September 2004, in a letter to Pembrokeshire County Council, the Harbourmaster of MHPA clarified the extent of MHPA’s responsibilities: “[MHPA] has navigational jurisdiction over the Waterway ... This jurisdiction includes responsibilities (and powers) to regulate the use of the Haven. Our primary objectives in this regard are to maintain, improve, protect and regulate the navigation and in particular the deep water facilities in the Haven ... Whilst the HSE have said that the Maritime and Coastguard Agency are the UK competent authority, this is correct inasmuch as they regulate shipping at sea and through legislation. As a competent authority they have an overarching view UK wide. Indeed, they advise on primary legislation which can affect the Port Authority and may act as auditors for the Port Marine Safety Code to which this Authority wholeheartedly subscribes. Their role in regard to LNG ships specifically would be that of Port State Control inspectors looking into the condition and standard of shipboard operations of the vessels from a safety standpoint. Marine personnel from the [MHPA], including pilots, have participated in risk assessments with teams from both proposed terminals facilitated by independent risk consultants. The outcome has been to confirm that Milford Haven has the capability of handling these vessels safely ... [Security] is addressed through the International Ship and Port Facility Security Code ... which sets out detailed security requirements for ships and port facilities based on risk assessments to determine the level of risk and the measures necessary to meet that risk. Port facilities throughout the Haven including Petroplus have been required to produce a security plan, appoint a security officer, provide additional security equipment, monitor and control access of people, cargo and stores as well as ensuring effective security communications. There will be a similar requirement for the South Hook terminal to prepare a security plan before they start operation.” 66. On 20 December 2004 the Chief Executive of MHPA responded to a letter from a Member of Parliament regarding the LNG terminals as follows: “As to the perception that we as a Port Authority are ‘reluctant’ to publish risk assessments ... this really flows from a lack of understanding of the role of the Port Authority. Unlike applications for the shore terminals where the process that is undertaken is very clearly defined and results on a go/no-go decision, our role as a Port Authority is different. We do not have the ability to deny access to any ship (other than in very specific and individual circumstances) given that the UK operates what can be loosely termed an ‘open ports policy’. What we do have is a responsibility to ensure that any shipping movements are managed in a safe and efficient manner. To this end we have undertaken, and continue to undertake, a wide range of risk assessments to determine the way in which this safe and effective management will be carried out. There is therefore no one single document or set of documents that clearly define the situation in which a ‘go/no-go decision’ can be determined, but rather a continuing process of scenario setting, risk assessment, trial, refining scenarios and identification of mitigation and prevention measures in which a wide number of variables are taken into account – some of which are still being developed as decisions as to the type of ships and their characteristics are being defined by the terminal operators and their teams.” 67. In a report dated 13 April 2005 Lloyd’s Register Risk Assessment Services, on the instructions of MHPA, examined and summarised high level statistics for worldwide accidents involving ships. Experience of a fire or explosion on board a ship large enough potentially to injure people nearby was “as likely per year as being struck by lightning”. The report observed that the likelihood of an LNG incident was extremely low and that there had never been a recorded incident of a major release of LNG from a ship to external atmosphere and no member of the public had ever been injured by LNG from a ship. The authors explained that the report carried a moderate level of error in light of the high level statistics used and concluded that more detailed research could be carried out to address the specific risks at Milford Haven. 68. In a paper of 20 May 2005, the Chief Executive of MHPA summarised the position regarding the LNG terminals. On the matter of risk assessments, the paper noted: “One of the concerns constantly banded about by Safe Haven ... is the lack of quantified risk assessment. This is a fallacy either through genuine misunderstanding or a deliberate refusal to accept what has been told. We have undertaken a significant amount of risk assessment both ourselves with the terminal operators, their advisers and making use of specialist third parties. The terminal developers themselves have also undertaken quantified risk assessment some of which related to shipping movements and we have made use of these in our own processes. To assist us in this we recently commissioned a report from Lloyds Register Risk Assessment Services looking specifically at the risk of incidents in Milford Haven large enough to potentially injure people nearby. Their conclusion was that there is as much risk of being struck by lightning as there is of being injured by any explosion including fire from LNG in the Haven ...” 69. On 9 June 2005 a journalist contacted MHPA asking what risk assessments it had undertaken in relation to plans to import LNG to the South Hook and Waterson sites, with specific regard to the marine-based risk. In an email response dated 15 June 2005, the Chief Executive of MHPA indicated that a number of risk assessments had been undertaken as part of the process of determining the way in which LNG ships would be managed. He referred to the commissioning of “studies and reports from experts and consultants”. He indicated that, as a port, the MHPA had a statutory duty to facilitate and support any use of the waterway, noting: “... as a port authority we have no say in the selection of the sites, our responsibility is managing the ships that will visit the sites chosen.” 70. Accordingly, he explained, the studies were not designed to determine whether MHPA would handle LNG ships, but rather how it would handle them. 71. In its summary grounds lodged with the High Court in subsequent judicial review proceedings (see paragraphs 80-94 below), MHPA provided details of the risk assessment work it had carried out. In particular, it stated: “The Authority has been and continues to be under the Port Marine Safety Code to assess safety. It has worked closely with the developers to ensure that what is proposed will be safe and has undertaken a series of robust risk assessments. In summary, the Authority has been an active participant in the process of risk assessment undertaken by [the developers] since Spring 2002. It has undertaken simulation tests and made specific recommendations about navigation and procedures to minimize hazards. The Authority has visited LNG tankers, other Port Authorities and terminals which handle LNG, trained pilots, harbour masters and managers and obtained and commissioned advice from consultants about potential hazards. ... The Authority’s risk assessment has been open in that it has, for example, explained what has been happening in its annual reports. Moreover, it has taken part in a range of public presentations and responded to any enquiries that it has received from interested members of the public and other stakeholders.” 72. The grounds set out, in paragraph 28, some of the specific risk assessments undertaken, including: (a) a marine traffic analysis of vessel movements through the port during a 25-day period in November 2002 by a marine and risk consultant, Marico Marine; (b) a concept risk assessment by South Hook LNG Terminal Company Ltd, with the participation of MHPA, dated 9-10 December 2002 identifying hazards, consequences and possible mitigation measures relating to potential use of Milford Haven port for the importation of LNG; (c) a report by the Maritime Research Institute Netherlands (MARIN), dated 14 February 2003, on simulations to check the nautical consequences of future 200,000m3 LNG carriers; (d) a March 2003 navigational risk assessment by Marico Marine; (e) MARIN report of 19 May 2003 on fast time simulations for large LNG ships; (f) a technical report dated 13 October 2003 by Det Norske Veritas (USA) Inc., a major classification society, in respect of South Hook LNG Terminal Company Ltd’s proposal assessing the marine risk associated with vessel manoeuvres in the channel and around the South Hook terminal for discharging cargo from LNG vessels; (g) a report dated 20 February 2004 by ABS Consulting, an international consulting operation experienced in the analysis of shipping collisions, for South Hook LNG Terminal Company Ltd, dealing with potential damage to LNG tankers due to ship collisions; (h) a report dated March 2005 from Burgoyne Consultants, international consulting engineers and risk consultants, updating a report on the potential consequences of fires and explosions involving ships carrying petroleum products (including LNG); (i) a November 2003 report commissioned by South Hook LNG Terminal Company Ltd from HR Wallingford, the former research facility for the Ministry of Defence, dealing with mooring safety and the possibility of disturbance caused to moored vessels; (j) a report by Gordon Milne, senior risk analyst at Lloyd’s Register of Shipping, commissioned by MHPA assessing the risk of explosion and gas release from LNG carriers. 73. MHPA refused to disclose any of these reports citing commercial confidentiality. 74. The summary grounds further indicated that: “6. SIGTTO [see paragraph 160 below] has worked with [MHPA] and confirmed to the best of their knowledge that [MHPA] and the terminal operators have done precisely what they would expect to be done in undertaking risk assessments and planning for LNG shipping.” 75. This was confirmed by SIGTTO in a letter dated 14 November 2006. 76. Pursuant to applicable civil procedure rules, a claim for judicial review of a decision must be filed promptly and in any event within three months of the decision under challenge (see paragraphs 179-180 below). 77. On 4 March 2005 the applicants filed an application for leave to apply for judicial review in respect of the grants of planning permission and hazardous substances consent for the South Hook and Dragon terminals. They alleged a failure to carry out a comprehensive environmental impact assessment of the project as a whole; a failure to have regard to the risks arising from marine traffic and to consider alternative locations for the LNG terminals; and a fundamental misunderstanding as to the characteristics of LNG in the event of an escape. 78. On 3 May 2005 the High Court ordered that an oral hearing be held to focus primarily on the issue of the delay in lodging the claim for judicial review, the applicants’ reasons for it and the practical implications of the delay for the operators. A two-day oral hearing subsequently took place. 79. On 26 July 2005 leave to apply for judicial review was refused on the grounds that the challenge was not made sufficiently promptly; that there was undue delay; and that quashing the planning and hazardous substances decisions would substantially prejudice the rights of ExxonMobil and Petroplus, would cause them substantial hardship and would be very detrimental to good administration. 80. Mr Justice Sullivan summarised the decisions being challenged in respect of the South Hook site as: (1) planning permission by Pembrokeshire Coast National Park Authority on 12 November 2003; (2) planning permission by Pembrokeshire County Council on 18 December 2003; (3) hazardous substances consent by Pembrokeshire County Council on 2 April 2004; and (4) hazardous substances consent by Pembrokeshire Coast National Park Authority on 19 August 2004. The decisions being challenged in respect of the Dragon site were: (1) planning permission by Pembrokeshire County Council on 19 March 2003; (2) planning permission by Pembrokeshire County Council for an extension on 10 September 2004; (3) planning permission by Pembrokeshire County Council for an amended scheme on 10 September 2004; and (4) hazardous substances consent by Pembrokeshire County Council on 7 December 2004. 81. As to the reason for the delay in applying for judicial review, Mr Justice Sullivan rejected the applicants’ contention that the delay resulted from a “labyrinthine decision-making process”. He accepted that there was a mass of material, but considered that this was because the claim form had adopted a “scatter gun” approach and sought permission to challenge not merely the decision on 7 December 2004 in respect of the Dragon site, but also the earlier decisions in respect of that site going back some 18 months, and the decisions going back some 12 months in respect of the South Hook site. He noted that, in so far as the applicants complained of the absence of a comprehensive environmental impact assessment or its failure to take account of marine risks, the complaints were directed towards the grant of planning permission itself, rather than hazardous substances consent. In relation to both sites, relevant planning permissions had been granted more than three months before the judicial review proceedings were brought. Sullivan J was satisfied that the applicants had known of the relevant decisions they wished to challenge by August to October 2004. 82. Having concluded that there was no good reason why the threemonth deadline for bringing judicial review proceedings had not been respected as regards all of the decisions except the 7 December 2004 decision and that there was no good reason that the 7 December 2004 decision was not challenged “promptly” as required by the relevant Civil Procedure Rules (“CPR”), Sullivan J went on to consider the extent of any hardship or prejudice to third party rights and detriment to good administration which would be occasioned if permission were nonetheless granted. He concluded that it was clear that the grant of relief to the applicants “would cause really significant damage in terms of hardship and/or prejudice” to the rights of the owners and operators of the South Hook and Dragon terminals. He further considered that it would be detrimental to good administration to allow a challenge to decisions going back as far as March 2003. 83. Finally, Sullivan J considered whether the public interest required that the application should proceed. In this context, he considered Article 2 of the Convention but concluded that the public interest did not merit the granting of permission out of time, noting: “81. Although much of the claimants’ skeleton argument before me was devoted to the merits of the claim, I have not heard full argument on the substantive issues which are vigorously contested by the defendants and the interested parties. They deny that there was any misunderstanding as to the characteristics of LNG in the event of an escape .... 82. ... It would not be possible to resolve the substantive matters in dispute without examining in considerable detail the decision-making processes that were employed by [Pembrokeshire County Council and Pembrokeshire Coast National Park Authority] in respect of each of the decisions under challenge. In these circumstances it would not be right to start from the premise that it would not be in the interests of good administration to maintain the decisions because they were unlawful, as on occasions the claimants’ submissions appeared to do.” 84. The judge commented: “83. I do not doubt that the issues raised in the claim are of considerable local importance in Milford Haven and the surrounding area. Equally, I do not doubt the genuineness of the claimants’ concerns and that they fairly represent Safe Haven’s concerns. But it is also fair to say that Safe Haven’s views are very far from being representative of the views expressed by the very wide range of consultees, including such bodies as the Town Council and relevant community councils ...” 85. The applicants sought permission to appeal the refusal of leave. 86. The judge ordered that an oral hearing be held to consider whether leave to appeal should be granted. A one-day hearing took place on 20 January 2006. 87. On 24 January 2006 the applicants indicated their intention, in the event that permission was granted, to apply for a disclosure order seeking disclosure of all the documents referred to in paragraph 28 of MHPA’s summary grounds (see paragraph 72 above) and any other documents relevant to the proceedings. The application notice specified that the application was made in order to “cover the situation should the Court grant permission to apply for Judicial Review”. They also applied for a protective costs order in respect of the second applicant, who had at that stage not been granted legal aid. 88. On 17 March 2006 Lord Justice Keene, with whom the other members of the Court of Appeal agreed, delivered the court’s judgment. He considered the applicants’ arguments under Article 2 of the Convention and explained: “26. It is obvious that public safety is potentially an issue of importance and that, if there is evidence that it has been overlooked or not properly considered by the decision-maker, then that may justify permission to seek judicial review. Public safety must be a material consideration in the decision-making process carried out by the hazardous substances authority, irrespective of Article 2 considerations ...” 89. However, he considered that although Sullivan J had not heard full argument on the substantive issues, he had been alive to the Article 2 and public safety issues which arose in the case. Keene LJ observed that: “27. ... The Milford Haven Port Authority is a statutory body required to ensure the safety of waters within its jurisdiction. The evidence before Sullivan J made it clear that the Port Authority was satisfied as to the safety of the terminal proposals, so far as its own sphere of responsibility was concerned, while the Health and Safety Executive had advised that it was content so far as the land-based activities were concerned. Both these bodies had advised the decision-makers, the County Council and the Park Authority, who were entitled to rely on the specialist advice received from those bodies.” 90. Keene LJ accordingly concluded that it was open to Sullivan J to find that the merits of the applicants’ claim did not outweigh the undue delay and the prejudice which permission to proceed would produce. 91. Observing that it was “strictly speaking unnecessary to scrutinise in greater depth” the planning decisions in light of his findings on delay, Keene LJ nonetheless addressed briefly the issues raised. 92. He noted that the essence of the applicants’ case was: “... that the decision-makers did not adequately consider what are called ‘marine risks’, namely the risks to those in the Milford Haven area from an escape of LNG from a ship. In particular, concern is expressed about the risk of the formation, in the event of such an escape, of a flammable gas cloud. It is stressed that a population of some 20,000 lies within a radius of just over 4 miles of the South Hook and Dragon sites ...” 93. However, Keene LJ disagreed that the risk assessment had been inadequate. He considered that the risk of collision “was undoubtedly dealt with by the Port Authority”, as counsel for the applicants conceded during the hearing. He pointed out that MHPA had advised both bodies responsible for granting planning permission and consents that it had the “capability of handling these vessels safely”. As to counsel for the applicants’ argument that an assessment of the risk of collision was insufficient and that there was a lacuna because of the absence of any assessment of the consequences for the local population of a vapour cloud, Keene LJ concluded: “32. I do not accept that the evidence before us, including the evidence submitted on behalf of the applicants since the oral hearing, demonstrates any such arguable lacuna. One has to bear in mind in this connection the very extensive assessments carried out by the Health and Safety Executive, because these provide the context for the Port Authority’s assessment. The Health and Safety Executive did assessments which considered both the consequences and the likelihood of an escape of LNG for all landbased and jetty-based activities. Those included the risk of catastrophic failure of an LNG storage tank at the terminal; the failure of a loading arm at the jetty while LNG was being transferred from ship to shore; and ‘major release from a delivery ship while tied up at a jetty’: see HSE responses to Park Authority, 5 March 2004, and the HSE Summary Grounds of Resistance, paragraphs 10 and 11. Having carried out these assessments, the Health and Safety Executive did not object to the proposal for either terminal on safety grounds. The applicants do not criticise the work done by the Health and Safety Executive. 33. That body made it clear in its response of 5 March 2004 that it was not responsible for advising on accidents ‘whilst the ship is not attached to the jetty’. But the Port Authority, which is responsible for advising on such accidents, did participate in an assessment process which led to a risk assessment submitted by the South Hook LNG Terminal Company Limited in December 2002 ‘to identify hazards, consequences and possible mitigation measures’ relating to the use of the port as proposed: see the Port Authority’s Summary Grounds of Resistance, paragraph 28(b) (emphasis added). It refers in those grounds to a number of other reports and exercises carried out, so that it could fulfil its statutory responsibilities for safety. In any event, once the Health and Safety Executive had concluded that there were no unacceptable risks to the local population arising from either a catastrophic storage tank failure on land or a major release of LNG from a tanker tied up at a jetty, the crucial element in any assessment of risk from a vessel not moored to the jetty must have been the risk of a collision. The risks to the population from a vapour cloud travelling over land or sea had already been considered by the Health and Safety Executive, since the jetties end far out in the Haven. What the Port Authority needed to concentrate on above all else was the risk of a collision, and that it seems to have done.” 94. Permission to appeal was refused. In a subsequent discussion of the application for disclosure, Keene LJ noted that it was related to the prospect of a substantive hearing had permission to bring judicial review proceedings been granted, and that permission had not been granted. Accordingly, no order as to disclosure was made. 95. Prior to the judgment being handed down, the applicants had been provided with a copy in draft for comment on typographical errors. The applicants’ legal advisers immediately recognised that the judgment contained an error of fact at paragraph 32, where Keene LJ had made reference to the HSE assessment of the consequences of a “major release from a delivery ship while tied up at a jetty” (see paragraph 93 above). The applicants’ solicitor wrote to the court on 15 March 2006 advising that no such assessment had in fact been carried out and requested the court to consider the implications of the factual error before confirming its conclusions in the draft judgment. In the event, no change was made to the relevant paragraph of the draft judgment before it was handed down in its final form. 96. On 10 April 2006, the applicants’ solicitor made an application to the Court of Appeal under the Civil Procedure Rules Part 52.17 to have the judgment of 17 March 2006 reopened (see paragraphs 181-182 below). The application was made on the basis, inter alia, of an obvious factual error. The solicitor noted in the application that although as a matter of routine such applications go back to the original tribunal, he would imagine that the members would recuse themselves in this case. 97. On 27 April 2006 Treasury Solicitors on behalf of the HSE advised all parties involved in the proceedings as well as the Court of Appeal of a mistake in the HSE’s Summary Grounds. The statement to the effect that the HSE’s comprehensive risk analysis included risks associated with “major release from a delivery ship while tied up a jetty” was incorrect. The correct position was that: “Risks that may arise from the presence of other substances, or from the presence of LNG on a delivery ship, either when sailing or when berthed, have not been taken into account in the assessment.” 98. On 8 May 2006 the Court of Appeal ordered that there should be an oral hearing on the question of permission in the Part 52.17 proceedings, limited to the question whether the application for permission to appeal should be reopened in light of the information provided by the HSE. 99. On 19 May 2006 the applicants’ solicitor requested that the matter go to a freshly constituted Court of Appeal and that the scope of the hearing be widened to allow them to canvass all of their complaints concerning the judgment. On 13 June 2006 the Court of Appeal declined to vary its order of 8 May 2006. 100. On 12 July 2006 the matter came before the original Court of Appeal. It heard and refused an application that its members recuse themselves. Counsel for the applicants accepted that there was no appearance of bias as a result of the narrow question whether the application for permission to appeal should be opened on the ground that the court was misled by the HSE’s summary of objections. However, he argued that the court appeared to be acting in a partisan way in circumstances in which it was prepared to reopen the question following receipt of a letter from the Treasury Solicitor confirming the true position, whereas it had not been prepared to reopen the matter when the applicants’ solicitor had made representations as to the issue of fact that was in dispute. Chadwick LJ, giving judgment for the court, held: “32. For my part, I can see no appearance of bias arising from that fact. The positions changed in an important respect when the letter from the Treasury Solicitor was received. Until that date, there was an issue of fact: whether or not the HSE had carried out the tests and risk assessments which they said they had carried out. That issue of fact arose because the applicants asserted that those risk assessments had not been carried out. The HSE, in a summary of grounds – the truth of which was verified by its solicitor – asserted that they had been. That question of fact had been determined against the applicants in the judgments which this court handed down on 17 March ... It is clear that it was determined against the applicants in reliance on what was said by the HSE in the summary grounds of objection. 33. In those circumstances, it would have been inappropriate for the court to reopen that question of fact in the period between making its judgments available in draft and the formal handing down of those judgments. The purpose of making the judgments available in draft is not to invite further submissions on questions of fact which have already been decided, but to enable the parties to draw attention to obvious errors of fact, such as a mis-name or a mis-date. Nor would it have been a proper ground for reopening the application for permission to appeal that the claimants, through their solicitors, continued to assert that the court had reached the wrong conclusion of fact on the evidence. But a significant change occurred when it became clear that the court had reached the conclusion of fact which it did as a result of being misled by the HSE though the statement of objections.” 101. On 19 July 2006, the Court of Appeal refused permission to reopen the application. Keene LJ highlighted that the error of fact arose in the context of his discussion of a matter which he had indicated was not strictly necessary in light of his other findings. He nonetheless considered the implications of the factual error identified and concluded that although MHPA might well have concentrated on the safety of navigation, it was clear that in light of the work it had done it felt able to advise that it had no concerns regarding safety or navigation in respect of the proposed developments. He concluded that: “20. ... The significance of the error in terms of public safety has to be seen in context. 21. That context is that both the HSE and the Port Authority had undoubtedly carried out a number of exercises and studies before advising the planning authorities that there was no objection on safety grounds. The HSE for its part had assessed the consequences of an escape of LNG from a land-based storage tank; from the failure of a loading arm at the jetty; and from the guillotine rupture of a thirty inch pipeline between the jetty and the storage tanks ... Those assessments have not been criticised. It is to be observed that the HSE assessments of the failure of a storage tank on land included that of a catastrophic failure, which would take place at a location not obviously more distant from the areas of population than the proposed jetties. Yet the HSE was satisfied that public safety would not be jeopardised, presumably because of the very low likelihood of such an incident. 22. The Port Authority for its part had carried out a range of studies referred to in its summary Grounds of Resistance at paragraph 28. Those were, as one might expect, largely directed towards an assessment of marine risks. They included a report from a Senior Risk Analyst at Lloyd’s Register of Shipping, commissioned to assess the risk of explosion and gas release from LNG carriers ... There was also evidence before the judge and before this court that there had never been an incident of major release of LNG from a ship to the external atmosphere ... 23. The Port Authority has statutory responsibilities for safety within the Haven and it advised the decision-makers, the County Council and the Park Authority, that there was no such risk to public safety as to warrant refusal of the applications. It was principally for the Port Authority to decide on what research was necessary for it to be so satisfied. It is not for this court or any court to try to second guess the Authority’s decision on what it needs by way of research in order to advise the decision-makers, unless it is obvious that it has neglected its statutory duties. The evidence falls far short of that. In short, the factual point now seen to be mistaken was of limited significance even on this aspect of the case. Moreover, as Mr Straker on behalf of the Port Authority submits, that Authority has powers, if at any time it should appear to it that the risks are likely to be greater than presently seem to be the case, to prevent the jetties being used for LNG unloading, and of course the planning authorities also have powers to revoke the consents with which these proceedings are concerned.” 102. Having set out the position as regards assessment of marine risk, Keene LJ concluded: “But in any event, I come back to the fundamental point, which I indicated earlier, namely that the mistake of fact now relied on by the applicants did not occur in an essential part of this court’s reasoning when it dismissed this application for permission to appeal.” 103. The applicants’ solicitor subsequently wrote to the then Head of Civil Justice asking for advice on what could be done. He replied that a new Part 52.17 application could be made, which would be considered by a Lord Justice who had not been on the original tribunal. The applicants’ solicitor duly lodged a new Part 52.17 application. 104. Lord Justice Wall considered the application and, concluding that the members of the tribunal had not erred in refusing to recuse themselves, dismissed the application by order of 2 October 2006. He concluded that there was no perception or appearance of bias in such a panel revisiting its earlier judgment in light of an identified error of fact. Indeed, in his view, it was manifestly sensible for it to do so. 105. The applicants sought leave to appeal to the House of Lords the decision of the Court of Appeal tribunal not to recuse itself. The House of Lords refused leave on 13 March 2007 on the grounds that it “discerned no error of law”. 106. In or around May 2007, the second applicant was advised by the Legal Services Commission that his application for legal aid in the judicial review proceedings had been granted. 107. On 23 December 2004 the applicants’ solicitor wrote to MHPA requesting access to environmental information. On 5 January 2005 MHPA answered that it did not see any benefit in responding. 108. On 7 January 2005, following the entry into force of the Environmental Information Regulations 2004 (see paragraphs 171-177 below), the applicants’ solicitor wrote again to MHPA. On 31 January 2005, he wrote a third time explicitly under the Environmental Information Regulations. On 1 February 2005, MHPA again answered that it did not see any benefit in responding. 109. On 15 February 2005 the applicants’ solicitor asked MHPA to reconsider its response in accordance with Regulation 11 of the Environmental Information Regulations (see paragraph 172 below). By letter dated 18 March 2005, MHPA responded that it remained to be convinced that the Environmental Information Regulations were applicable. 110. On 22 April 2005 the solicitor for the applicants wrote to the Information Commissioner asking him to confirm whether MHPA was a “public authority” for the purposes of the Environmental Information Regulations. 111. On 22 October 2005 a request was made to MHPA by members of the public under the Freedom of Information Act 2000 (see paragraph 178 below) to see all formal, documented risk assessments which had informed MHPA’s decision that it could handle LNG vessels safely. MHPA replied on 2 November 2005 that it was not subject to the Freedom of Information Act. It indicated that it sought to respond to questions and concerns but that it did not intend to make the large amounts of information obtained through the planning process publicly available as raw data, although the information had been made available to regulatory bodies and agencies. 112. On 10 November 2005 the applicants’ solicitor made a further request to MHPA to see copies of risk assessments and reports referred to in their summary grounds of defence lodged in the judicial review proceedings (see paragraph 72 above). He also requested copies of any subsequent marine risk assessments undertaken in respect of the LNG terminals. 113. On 14 November 2005 the Information Commissioner’s Office confirmed that MHPA did constitute a “public authority” for the purposes of the Environmental Information Regulations. It further advised that MHPA could nonetheless continue to refuse to disclose the information sought if it did not constitute “environmental information” for the purposes of the regulations, or if any of the exceptions to the disclosure obligation applied (see paragraphs 173-177 below). 114. By letter of 26 June 2006 MHPA replied to the applicants’ solicitor’s requests for disclosure under the Environmental Information Regulations. MHPA indicated that while it had concluded that it did fall within the ambit of those regulations, it was not required to disclose the risk assessments carried out in respect of the LNG terminals at Milford Haven, on the basis that these constituted operational, and not environmental, information. MHPA did, however, provide a copy of an Environmental Assessment undertaken prior to the widening of the channel opposite the two terminals. It also offered to provide such environmental information as could be extracted from operational reports, on the basis that the costs of doing so would have to be met by the applicants. The letter concluded: “... we have gone to great lengths to explain and describe not only the details of what we are doing but why, and the outcomes in terms of the formation of our plans for handling LNG ships. What we have not done is make freely available large volumes of information, as it is our firm belief, that to do so would be irresponsible and confusing for the public. The information needs to be put into context of not only the purposes for which it was obtained, but also the explanations and conclusions drawn from it. We maintain that the best way to do that is through personal contact, presentations and explanations on given courses of action ...” 115. On 29 June 2006 the applicants’ solicitor wrote to MHPA asking it to reconsider its decision and challenging the assertion that information pertaining to risk assessment did not constitute “environmental information” in terms of regulation 2 of the Environmental Information Regulations (see paragraph 177 below). 116. On 14 July 2006 MHPA responded. It advised that many of the risk assessments undertaken were not instructed in order to advise the planning authorities but in order to assess MHPA’s own operational requirements for handling LNG ships in Milford Haven. However, the assessments subsequently assisted MHPA in providing the necessary advice to the planning authorities. MHPA offered to extract relevant environmental information for the sum of approximately GBP 400. The solicitor for the applicants subsequently asked for information from two reports only, namely, a report by Gordon Milne, senior risk analyst at Lloyd’s Register of Shipping, commissioned by MHPA assessing the risk of explosion and gas release from LNG carriers (“the Milne report”); and (ii) relevant extracts containing environmental information of a report entitled “Qatargas II Project: Milford Haven Marine Concept Risk Assessment” (“the Qatargas report”). He requested a new quote on that basis. 117. On 28 September 2006 the Chief Executive of MHPA advised the applicants’ solicitor that he was unable to disclose any of the material requested as to do so could seriously jeopardise the fairness of the judicial review proceedings. He also relied on the refusal of the companies concerned to consent to the disclosure of material from the reports. In weighing up the public interest test, as required by the Environmental Information Regulations, he noted that notwithstanding the presumption in favour of disclosure, disclosure was not in the public interest in the present case as the information requested should not be made publicly available without an explanatory context and where it would cause unnecessary confusion or concern. The applicants’ solicitor replied on 29 September 2006 expressing his disappointment and disputing MHPA’s reliance on the exceptions set out in regulation 12 of the Environmental Information Regulations (see paragraphs 173-176 below). He referred the matter to the Information Commissioner. 118. On 16 November 2006 the applicants’ solicitor wrote to MHPA advising that in light of this Court’s findings in Giacomelli v. Italy, no. 59909/00, ECHR 2006XII, it would commence judicial review proceedings regarding the failure of MHPA to disclose documents unless the information was provided within twelve days. 119. On 12 March 2007 the Information Commissioner issued a Decision Notice under section 50(1) of the Freedom of Information Act 2000 (see paragraph 178 below) ordering disclosure of the Milne report and the Qatargas report. As regards the public interest test, the notice advised that: “In this particular case, the Commissioner believes that there is a very strong public interest in the disclosure of environmental information relating to the development of LNG terminals in Milford Haven. The LNG developments are locally controversial ... Disclosure of environmental information of the type requested in this case could add significantly to public knowledge of the risks posed by the development and better inform public debate. Furthermore, the Commissioner believes that there is a public interest in ensuring that the Port Authority is undertaking its duties effectively and that it adequately assesses and manages risk within the Haven. In terms of high-profile and potentially hazardous developments such as the LNG terminals, there is a legitimate public interest in demonstrating that public safety has been fully considered by all relevant authorities, including the Port Authority, at each stage of the development process.” 120. On 25 April 2007 MHPA appealed the ruling to the Information Tribunal. However, on 1 October 2007 it withdrew its appeal and provided redacted copies of the Milne Report and relevant extracts of the Qatargas report to the applicants. 121. While the MHPA appeal against the Information Commissioner’s ruling was outstanding, the first applicant sought leave to bring judicial review proceedings in respect of MHPA’s continuing refusal to disclose documents related to the risk assessments it claimed to have conducted with regard to the LNG terminals. 122. On 4 July 2007 permission was refused following an oral hearing. As regards information falling within the Environmental Information Regulations, Beatson J referred to the existence of an alternative remedy, namely an application to the Information Commissioner and the Information Tribunal. To allow judicial review, he said, would be duplication and would risk circumventing the system set out in the Regulations. 123. In respect of information not falling within those Regulations, Beatson J concluded that the applicant had failed to demonstrate an arguable case that there was an obligation to provide the information arising from a positive duty on the authority under Articles 2 and 8. He noted that MHPA had advised the decision-making authorities that the risks were so low as not to warrant the refusal of planning permission or hazardous substances consent and that the Court of Appeal had, in the earlier judicial review proceedings, found that the authorities were entitled to accept that advice. Accordingly, the activities in question could not be considered “dangerous” such as to give rise to an obligation under the Convention to allow the public access to the information. He further considered that insofar as the applicant sought disclosure of assessments required for the previous judicial review proceedings (see paragraph 87 above), the claim was an “improper use of judicial review”. He noted that the matter had been before Sullivan J in the original judicial review proceedings and found that had it been arguable that the applicants were entitled to this information, then the matter would have been dealt with then. He concluded that the application was either out of time or an attempt to reopen a matter which had already been decided. 124. The applicant sought leave to appeal the ruling. In a judgment dated 30 November 2007, the Court of Appeal dismissed the application. Toulson LJ indicated that while he did not consider that Beatson J had erred as regards the applicability of Articles 2 and 8, he would have allowed the applicant to argue the matter before the full court. However, he concluded: “11. As it seems to me, the plain and obvious purpose [of the present proceedings] is to endeavour to elicit material which could have been, and indeed to a point was, asked for in the earlier proceedings, in order to present continuing argument that those previous consents ought not to have been granted. This is exactly the sort of endeavour which the court ought not to support. This appellant has had the opportunity to seek these documents at the time of the earlier proceedings, and it seems to me that the conclusion arrived at by Beatson J was entirely apposite: that this is indeed a reformulation of what was being sought in those proceedings. Those proceedings have already occupied the time of the Administrative Court for a lengthy leave hearing, followed by two considerations by the Court of Appeal and it would be wholly wrong that permission should now be granted to bring judicial review in the present form.” 125. The applicants submitted to the Court a copy of an expert report by Dr R.A. Cox dated 7 September 2008 and prepared in the context of a complaint to the European Commission in 2008. In his report, Dr Cox reviewed the approach to and use of risk assessments by MHPA. He considered each of the reports referred to in its summary grounds (see paragraph 72 above), noting that the majority of the reports were never released and that only two of them, the ABS Consulting and Burgoyne Consultants reports, looked as though they might be relevant to the kinds of risk assessments that MHPA should have carried out. 126. The report concluded: “For most LNG projects, the risks due to spills on the sea are the highest risks involved in such projects, due to the particular difficulties of controlling a spill of LNG on water, the size of the ships’ cargo tanks, and the relatively high likelihood of a marine accident compared to a similarly large spill onshore. ... In particular, the risks to the onshore population, due to marine operations at Milford Haven, have fallen through a regulatory gap. The EU Seveso-2 Directive does not extend to port areas, and the authorities did not elect to use their other powers to evaluate this risk to an equivalent standard ...” 127. The applicants also submitted a letter from Dr Cox dated 29 April 2010, following a review of the Government’s observations in the case. In his letter, Dr Cox noted: “In short, the modular ‘risk assessment’ that MHPA rely on is a risk assessment only in the sense that it is a compendium of separate pieces of work that all touch upon the risks in some way but which have never been pulled together into a clear and convincing analysis concerning the overall degree of risk which the shore populations will have to bear, nor has it been shown that the safeguards that are planned will be sufficient to offset the very large potential consequences of a spill of LNG from a ship’s cargo tanks into the Haven.” 128. Dr Cox went on to explain the gaps in the risk assessment carried out, including the absence of any identification of locations in the port where a ship might become grounded or be involved in a collision; the failure to calculate the annual frequency of such incidents; the failure to evaluate the chance of immediate ignition of an LNG cloud in various scenarios; the failure to calculate the rate of LNG vapour evolution and cloud size in different conditions and the probability of scenarios where the LNG vapour reached the shoreline; and the failure to compute the risk to individuals on the shore. 129. Pursuant to section 57 of the Town and Country Planning Act 1990 (“the Planning Act”), planning permission is required for the carrying out of any development of land. 130. The power of the relevant local planning authorities to grant planning permission for development is subject to the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the EIA Regulations”). Regulation 3 of the EIA Regulations prohibits the grant of planning permission unless the planning authority has taken into account the relevant environmental information required when the project comprises environmental impact assessment development. 131. The EIA Regulations give effect to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended (“the EIA Directive”). Article 1(1) of the EIA Directive provides that it applies to the assessment of the environmental effects of public and private projects likely to have significant effects on the environment. Pursuant to Article 2(1), member States of the European Union are required to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Article 3(1) provides that the environmental impact assessment must identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project on human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage; and the interaction between all these factors. 132. Article 5(3) obliges the developer to furnish the authorities with information including a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects; the data required to identify and assess the main effects which the project is likely to have on the environment; and an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects. 133. Article 6 provides that member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time, in order to give them the opportunity to express an opinion before the decision on the request for development consent is taken. 134. Section 97 of the Planning Act allows a local planning authority to revoke or modify any planning permission that it has granted before the permitted operations have been completed, as it considers expedient. Under section 100 of the Planning Act, the Welsh Ministers have the power to direct a local planning authority to revoke or modify a planning permission if they consider it expedient to do so. Section 107 provides that compensation may be payable where planning permission is revoked or modified under these sections. 135. Section 102 of the Planning Act empowers the local planning authority to require that any use of the land be discontinued, or to impose conditions on the use of land or require that building works be altered, after the permitted operations have taken place. Pursuant to section 104 of the Planning Act, the Welsh Ministers have the power to make such an order if they consider it expedient to do so. Section 115 provides that compensation may be payable where planning permission is discontinued or made subject to conditions under these sections. 136. Any decision whether to exercise these powers, either by the local planning authority or by the Welsh Ministers, would in principle be susceptible to judicial review. 137. In R (CPRE) v. London Borough of Hammersmith and Fulham, leave to apply for judicial review in respect of a decision not to revoke outline planning consent under section 97 of the Planning Act was granted. The application was subsequently dismissed on its merits but, in obiter dicta, the judge observed that there was substance in the respondents’ submission that the application based on the refusal to revoke was really a back-door attempt to try and achieve what the court had already refused to do, namely to permit a challenge to the validity of previous planning decisions in respect of which leave to apply for judicial review had been refused on grounds of delay. 138. Section 4 of the Planning (Hazardous Substances) Act 1990 (“the Hazardous Substances Act”) provides that consent is required for the presence of a hazardous substance on, over or under land. As noted above, an application for consent must be made to the appropriate hazardous substances authority. The Planning (Hazardous Substances) Regulations 1992 specify which substances are hazardous substances and the quantity of such substances which require prior consent under the Hazardous Substances Act. 139. Section 9 of the Hazardous Substances Act allows the hazardous substances authority to impose such conditions on the grant of hazardous substances consent as it thinks fit. It may impose general conditions relating to the site and/or specific conditions relating to each substance included in the consent. 140. Section 13 of the Act gives the hazardous substances authority the power to vary or revoke a condition to which hazardous substances consent was previously subject. It provides: “(1) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted. (2) On such an application the hazardous substances authority shall consider only the question of the conditions subject to which hazardous substances consent should be granted. (3) If on such an application the hazardous substances authority determine– (a) that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted; or (b) that it should be granted unconditionally, they shall grant hazardous substances consent accordingly. (4) If on such an application the hazardous substances authority determine that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted, they shall refuse the application.” 141. Section 14 allows the hazardous substances authority to revoke a hazardous substances consent or modify it to such extent as it considers expedient if it appears, having regard to any material consideration, that it is expedient to revoke or modify it. 142. Such decisions are, in principle, susceptible to judicial review. The Government did not provide details of any case in which judicial review of the exercise of these powers has been sought. 143. The LNG terminals are subject to the COMAH Regulations as amended by the Control of Major Accident Hazards (Amendment) Regulations 2005, which implemented Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (“the Seveso II Directive”), as amended. 144. Regulation 4 of the COMAH Regulations provides for a duty on operators of installations to which the Regulations apply to take all measures necessary to prevent major accidents and limit their consequences to persons and the environment. 145. Pursuant to Regulation 5, every operator must without delay and within a three-month deadline, prepare and thereafter keep a document setting out its policy with respect to the prevention of major accidents (“MAPP document”). The policy must be designed to guarantee a high level of protection for persons and the environment by appropriate means, structures and management systems. It must be revised as required by any modification of the installation, the processes carried out or the quantity of hazardous substances present. 146. In the preparation of the MAPP document, a number of principles must be taken into account. The document must be in writing and should identify and evaluate major hazards, which should include an assessment of their likelihood and severity. It should address the organisation of personnel and their roles and responsibilities; procedures and instructions for safe operation; and procedures for monitoring, auditing and review. It should also include details of planning for emergencies. 147. Regulation 7 requires the operator of an installation to send to the competent authority a safety report, within a reasonable time and prior to the start of construction of the installation. The safety report must include, as a minimum, information on the management system and on the organisation of the establishment with a view to major accident prevention; a presentation of the environment of the establishment, including a description of the site, identification of installations and other activities of the establishment which could present a major accident hazard and a description of areas where a major accident could occur; a description of the installation, including the main activities which are important from the point of view of safety, sources of major accident risks and conditions under which a major accident could happen, together with a description of proposed preventive measures; an identification and accidental risks analysis and prevention methods, including a detailed description of the possible major accident scenarios and their probability or the conditions under which they occur including a summary of the events which may play a role in triggering each of these scenarios, the causes being internal or external to the installation and an assessment of the extent and severity of the consequences of identified major accidents; measures of protection and intervention to limit the consequences of an accident, including a description of the equipment installed in the plant to limit the consequences of major accidents, the organisation of alert and intervention; and a description of mobilisable resources, internal or external. The report must be reviewed and revised at five-yearly intervals at least. 148. Regulation 9 requires operators to prepare an emergency plan. Regulation 10 imposes a similar obligation on local authorities. The emergency plans must provide, inter alia, details of persons responsible for emergency procedures, the foreseeable conditions which could be significant in bringing about a major accident and how these conditions should be controlled and arrangements for limiting risks and providing warnings. 149. Regulation 14 addresses the provision of information to the public. It provides: “(1) The operator of an establishment shall– (a) ensure that persons who are likely to be in an area referred to in paragraph (2) are supplied, without their having to request it, with information on safety measures at the establishment and on the requisite behaviour in the event of a major accident at the establishment; (b) make that information available to the public.” 150. The area to which 14(1) refers is: “an area notified to the operator by the competent authority as being an area in which, in the opinion of the competent authority, persons are liable to be affected by a major accident occurring at the establishment.” 151. The minimum content of such information includes confirmation that the establishment is subject to the Regulations; an explanation in simple terms of the activities undertaken at the establishment; general information relating to the nature of the major accident hazards, including their potential effects on the population and the environment; adequate information on how the population concerned will be warned and kept informed in the event of a major accident; adequate information on the actions the population concerned should take, and on the behaviour they should adopt, in the event of a major accident; and details of where further relevant information can be obtained. The emergency plans must be reviewed and modified as required. 152. Regulation 18 requires the competent authority to prohibit the operation of any installation where the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient. It allows the competent authority to prohibit the operation of any installation where the operator has failed to submit the safety report within the time stipulated. 153. Milford Haven is the fourth largest port in the United Kingdom. Milford Haven Port Authority (“MHPA”) is a trust board which was established as an independent statutory body by the Milford Haven Conservancy Act 1958. Its powers have since been extended by the Milford Haven Conservancy Act 1975, the Milford Haven Conservancy Act 1983, the Milford Haven Port Authority Act 1986 and the Milford Haven Port Authority Act 2002 (“the 2002 Act”). 154. MHPA has the power to make byelaws to regulate the use of the haven, including the movement of vessels within it and the time, manner and condition in which vessels may enter or leave the haven. MHPA issued byelaws in 1984 and 1987 which apply to the sites on which the LNG terminals are located. Pursuant to the byelaws, the Harbourmaster of MHPA may give directions relating to activities covered by MHPA’s statutory duties. The Harbourmaster can therefore regulate the movement, speed and mooring of vessels as well as the loading and unloading of goods. He may take such reasonable steps as he thinks fit where masters of vessels fail to comply with his directions. Further, the byelaws include provisions controlling how vessels are to be navigated and manoeuvred within the haven. 155. Section 15 of the 2002 Act empowers MHPA to give directions for the purpose of promoting or securing conditions conducive to the ease, convenience or safety of navigation in the haven and its approaches. It may give general directions, applicable to all or to a specific class of vessels or, under section 17 of the 2002 Act, special directions to a particular vessel. As from 1 January 2006, MHPA has introduced general directions under the 2002 Act which largely reflect the byelaws. 156. Vessels seeking to enter the haven must confirm that they are in possession of relevant certification before entry is allowed. In the case of vessels transporting LNG, this includes a certificate of fitness for the carriage of liquefied gases in bulk. Vessels carrying dangerous substances are prohibited from entering the haven if visibility falls below a specified level. Further, before such dangerous substances may be handled within a harbour area, the harbour authority must prepare an effective emergency plan and consult with emergency services and any other appropriate body. 157. The Port Marine Safety Code introduces a national standard for every aspect of port marine safety. MHPA took the necessary steps to comply with the Code by 2001. The Code is based upon the principle that the duties in relation to marine operations in ports are discharged in accordance with the safety management system. The safety management system is informed by, and based upon, a formal risk assessment. The aim is to establish a system covering all marine operations to ensure that the risks of such operations are both tolerable and as low as reasonably practicable, and to identify the means of reducing such risk. Safety management plans include preparations for emergencies, and emergency plans need to be published. 158. The Code is supplemented by a Guide to Good Practice on Port Management Operations dealing with risk assessment and safety management. The risk assessment typically involves data gathering, familiarisation, hazard identification, risk analysis and assessment of existing measures and risk control. Risk is to be assessed in four ways, namely consequences to life, the environment, port authority operations and users. 159. The Dangerous Substances in Harbour Areas Regulations 1987 cover liquid dangerous substances in bulk. Before such substances can be handled within a harbour area, the harbour authority must prepare an effective emergency plan and consult with the emergency services and any other body it considers appropriate. MHPA has prepared an emergency plan and consulted as required. The process of assessment is continuous and changes in the level of risk are identified and addressed. 160. SIGTTO (The Society of International Gas Tanker and Terminal Operators Limited) is a non-profit-making company, formed to promote high operating standards and best practices in gas tankers and terminals throughout the world. It provides technical advice and support to its members and represents their collective interests in technical and operational matters. It has published several guidance papers on matters related to LNG. 161. The paper emphasises in its introduction that the level of marine risk is determined by the position chosen for the LNG terminal. As to jetty location, section 6 of the paper advises that they be placed “in sheltered locations remote from other port users”. Section 7 highlights the need for ignition controls extending around and beyond the immediate terminal area. 162. Section 1.1 of the paper notes: “... the hazards arising from [LNG], should it escape to atmosphere are: the eventual prospect of a gas cloud, many times the volume associated LNG with an accompanying risk of fire or explosion ... ... Release of LNG into the atmosphere of any area having within it low energy ignition agents carries with it a risk of fire or explosion. Such conditions will prevail in any port area where ignition agents are not effectively prohibited, as they are in installations specifically constructed for the handling of hydrocarbons.” 163. Section 1.3 highlights the risks occasioned upon collision between vessels: “... it is clear, their inherently robust constructions notwithstanding, that LNG tankers are vulnerable to penetration by collisions with heavy displacement ships at all but the most moderate of speeds. Such incidents ought to be treated as credible within any port where heavy displacement ships share an operating environment with LNG tankers.” 164. Section 1.4 of the publication observes: “Since there has never been a catastrophic failure of an LNG tanker’s hull and containment system there are no incident data upon which to construct scenarios following the release of large quantities of LNG into the atmosphere. However the behaviour of released LNG has been carefully studied in the light of certain important experiments involving controlled releases ... After a release of liquefied gas a cloud will develop and travel horizontally from the spill point under the influence of prevailing winds. The cloud will contain the gaseous components of the LNG ... and air. Mixing with air the cloud will develop flammable properties [through] much of its volume ... As it travels away from the spill point the cloud will warm, becoming progressively less dense. As it warms to ambient temperature it will become buoyant in air and disperse vertically. Pure methane is lighter than air ... but it is the temperature of the entire cloud, not just its gaseous component, [that] determines its behaviour. Other components too must warm to higher temperatures before vertical dispersal ensues. Meanwhile the cloud will continue to disperse in a generally horizontal direction, developing a shape similar to an elongated plume. In practice the geometry and behaviour of a gas cloud will be determined by the specific circumstances of the release. The single biggest determinant will always be the volume of LNG released. Thereafter the shape and behaviour of the cloud will be determined by the rate at which liquid gas is released to the atmosphere. Dispersal in specific incidences will also be greatly influenced by wind conditions, atmospheric stability, ambient temperature and relative humidity. The topography and surface roughness of the terrain over which a cloud moves will greatly influence dispersal characteristics ... When the gas cloud is no longer fed by fresh volumes of gas it will disperse in the atmosphere until its entire volume is diluted below the lower explosive limit for methane. Its flammable properties will then be extinguished and no further risk will remain.” 165. On assessing the cloud behaviour in a specific situation, section 1.4 provides the following guidance: “... First there must be established a realistic estimate of the maximum credible release, or spill. Second, the released gas cloud is modelled using realistic values for air temperature, wind forces and atmospheric stability at the location in question. From such analysis it is possible to predict with credible accuracy the likely scenario following a worst probable gas release into the atmosphere.” 166. Section 1.5 observes: “There has never been an incident involving the penetration or catastrophic failure of an LNG tanker’s containment system – indeed, the safety record for this class of ship is exemplary. Nevertheless, this safety record notwithstanding, the risk profile of LNG tankers presents a very serious residual hazard in port areas if the vital structure of the tanker is penetrated.” 167. Section 2 concludes: “Risk exposures entailed in an LNG port project should therefore be analysed by a Quantitative Risk Assessment (QRA) study. Such a study must involve the operations at the terminal and the transit of tankers through the port. Risk assessments do not of themselves improve safety, but they should be regarded as decision tools in order to satisfy company safety policy and the Authorities that risk is acceptable.” 168. The section specifies that QRA results should yield, as a minimum, a high confidence in there being a low risk of the tanker failing to maintain track during the transit; a high confidence of the tanker not encountering other vessels in situations that present risks of collision; no credible scenario leading to a high energy grounding that holds the prospect of the inner hull being penetrated; and no credible scenario that might lead to the tanker encountering a heavy displacement vessel in situations where the resulting collision impact could be sufficient to penetrate the transiting tanker’s inner hull. 169. Section 4 clarifies that: “The most important single determinant of risk attached to LNG operations in port areas is the selection of the site for the marine terminal – the location of the tanker berth(s).” 170. It provides that whatever the prevailing circumstances, no terminal should be sited in a position where it may be approached by heavy displacement ships which have an inherent capability to penetrate the hull of an LNG tanker. It adds that all port traffic must be excluded from the environs of an LNG marine terminal, having regard to the assessment made of the maximum credible spill and likely dispersal of the gas. 171. Aside from the provisions in the EIA Directive and the COMAH Regulations obliging States to ensure that certain information be made available to the public (see paragraphs 133 and 149-151 above), a public right of access to environmental information is established by the Environmental Information Regulations 2004. Regulation 5 sets out a duty to make available environmental information on request: “(1) Subject to ... [the provisions of the EIA Regulations], a public authority that holds environmental information shall make it available on request. (2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request. ...” 172. Regulation 5(4) stipulates that where the information made available is compiled by or on behalf of the public authority, it must be up to date, accurate and comparable, so far as the public authority reasonably believes. Regulation 9 obliges the public authority to provide advice and assistance to applicants, so far as it would be reasonable to expect the authority to do so. Regulation 11 allows an applicant to make representations to a public authority in relation to his request for environmental information if it appears to him that the authority has failed to comply with a requirement of these Regulations in relation to the request. 173. Regulation 12(1) provides that a public authority may refuse to disclose environmental information requested if: “(a) an exception to disclosure applies under paragraphs (4) or (5); and (b) ” 174. However, Regulation 12(2) stipulates that a public authority shall apply a presumption in favour of disclosure. 175. Regulation 12(4) provides that a public authority may refuse to disclose information to the extent that, inter alia: “(b) the request for information is manifestly unreasonable; (c) the request for information is formulated in too general a manner and the public authority has complied with regulation 9; ... (e) the request involves the disclosure of internal communications.” 176. Regulation 12(5) provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect, inter alia: “(a) international relations, defence, national security or public safety; ... (e) the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest; (f) the interests of the person who provided the information where that person– (i) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority; (ii) did not supply it in circumstances such that that or any other public authority is entitled apart from the Regulations to disclose it; and (iii) has not consented to its disclosure; or (g) the protection of the environment to which the information relates.” 177. Regulation 2 defines “environmental information” as having: “... the same meaning as in Article 2(1) of the [EIA] Directive, namely any information in written, visual, aural, electronic or any other material form on– (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).” 178. Section 50 of the Freedom of Information Act 2000 (“FOI Act”) allows any person to apply to the Information Commission for a decision as to whether a request for information made to a public authority has been dealt with in accordance with the FOI Act or the Environmental Information Regulations. The Information Commissioner has powers of enforcement if a public authority does not comply with the terms of decision notice. It is possible to appeal the decisions of the Information Commissioner to the First-Tier Tribunal and a further appeal to the Upper Tribunal is available on points of law. 179. Section 31 of the Supreme Court Act 1981 provides that the High Court may refuse an application for judicial review where there has been undue delay. The relevant subsections provide as follows: “(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant– (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. (7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.” 180. Rule 54.5 of the Civil Procedure Rules sets out specific time limits for filing a claim form in judicial review proceedings: “(1) The claim form must be filed– (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose. (2) The time limit in this rule may not be extended by agreement between the parties. (3) This rule does not apply when any other enactment specifies a shorter time limit for making the claim for judicial review.” 181. CPR Part 52.17 permits the re-opening of final appeals in the Court of Appeal in exceptional circumstances. It provides as follows: “(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless– (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy. (2) ... ‘appeal’ includes an application for permission to appeal.” 182. There is no further appeal from the decision of the judge on the application for permission. | 0 |
train | 001-60638 | ENG | FRA | GRANDCHAMBER | 2,002 | CASE OF MEFTAH AND OTHERS v. FRANCE | 1 | No violation of Art. 6-1 and 6-3-c as regards the fact that the applicant was not permitted to speak at the hearing in the Court of Cassation;Violation of Art. 6-1 as regards the failure to supply a copy of the Advocate-General's submissions;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 11. The applicants were born in 1960, 1950 and 1938 and live at Irigny, at Colombes and in Paris respectively. 12. The applicant was arrested on 15 April 1992 and charged by an investigating judge at Mâcon tribunal de grande instance with using a vehicle registration document that had been obtained illegally and handling a stolen vehicle. He was remanded in custody from 16 April to 18 May 1992. On 31 March 1994 he was committed to stand trial before the Mâcon Criminal Court. 13. In a judgment of 21 October 1994 the Mâcon Criminal Court dismissed the applicant's application to have the proceedings set aside as defective and, finding him guilty, imposed a suspended sentence of eight months' imprisonment and a fine of 10,000 French francs (FRF). The applicant appealed. 14. On 2 February 1995 the Dijon Court of Appeal upheld the judgment of the Criminal Court in its entirety. The applicant appealed to the Court of Cassation. 15. By a judgment of 17 January 1996 the Court of Cassation dismissed the appeal. 16. On 5 November 1994 the applicant was caught by a speed trap while at the wheel of his vehicle. The gendarmerie reported him for exceeding the speed limit by at least 40 k.p.h., namely by driving at 143 k.p.h. in a 90 k.p.h. speed-limit zone. 17. On 14 March 1995 the Melle Police Court found him guilty of the offence, and imposed a fine of FRF 1,500 and banned him from driving for twenty-one days. 18. On 15 December 1995 the Poitiers Court of Appeal upheld the conviction, and increased the fine to FRF 3,000 and the ban to three months. 19. By a judgment of 6 August 1996 the Criminal Division of the Court of Cassation dismissed the applicant's appeal. 20. On 11 November 1994 the police reported the applicant for two offences of failing to stop at a red traffic light. He was summoned to appear at the Paris Police Court for a hearing on 8 March 1995. 21. On 12 April 1995 the Paris Police Court found the applicant guilty of the offences. It imposed two fines of FRF 1,800 each and banned him from driving for one month. 22. On 27 October 1995 the Paris Court of Appeal upheld the judgment of the Police Court in its entirety. On 2 November 1995 the applicant appealed to the Court of Cassation. He sought communication of the advocate-general's written submissions in order to be able to reply to them, but to no avail. 23. By a judgment of 10 July 1996 the Court of Cassation dismissed the applicant's appeal. 24. The relevant provisions, as worded at the material time, read as follows: “Judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies may, in the event of a breach of the law, be set aside on an appeal on points of law to the Court of Cassation lodged by the public prosecutor or by the party adversely affected, according to the distinctions made hereafter. The appeal must be lodged with the Criminal Division of the Court of Cassation.” “Appellants in the Court of Cassation may lodge a pleading bearing their signature and containing the grounds of their appeal with the registry of the court against whose judgment they are appealing either when giving notice of appeal or within the following ten days. The registrar shall issue them with a receipt.” “After the expiry of that time-limit, convicted appellants may send their pleading directly to the Court of Cassation; the other parties may not avail themselves of this provision without being represented by a member of the Court of Cassation Bar. ...” “Save where the President of the Criminal Division decides otherwise, convicted appellants shall lodge their pleading with the registry of the Court of Cassation no later than one month from the date of the notice of appeal. The same rule shall apply to notices of acting lodged by lawyers representing an appellant in the Court of Cassation.” “The pleadings shall contain the grounds of appeal and cite the legal provisions that are alleged to have been infringed. ... They must be lodged within the prescribed time-limit. No further pleadings may be added to them once the reporting judge has filed his report. Any pleading setting out additional grounds that is lodged out of time may be declared inadmissible.” “The reports shall be presented at the hearing. The parties' lawyers shall make their observations after the report, if appropriate. The public prosecutor shall make his or her submissions.” 25. Current practice is for the advocate-general to inform the parties' lawyers before the day of the hearing of the tenor of his or her submissions and in cases where, at the request of the lawyers, there is an oral hearing, they are entitled to reply to his or her submissions orally or by a note sent to the court in deliberations (see Reinhardt and Slimane-Kaïd v. France, judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 666, § 106). 26. In cases in which representation by a member of the Conseil d'Etat and Court of Cassation Bar is not compulsory, an ordinance of 15 January 1826, Article 15 of which has not been repealed, lays down that the parties may make oral representations with the permission of the Court of Cassation. On the basis of the ordinance of 1826 the Court of Cassation accepts that it is possible for it to give the parties leave to address it, or for a member of the ordinary bar to speak on their behalf. Although it is for the Court of Cassation to decide whether or not to grant permission according to the circumstances (Court of Cassation, Criminal Division, 3 May 1990, Bull. crim. [Criminal Bulletin] no. 166), it appears that its practice is to refuse such applications (see the period 1990 to 2001 and the judgments available on the Légifrance Internet site) in terms similar to the following: “Regard being had to Article 37 of the Ordinance of 15 January 1826, which has not been repealed in so far as it concerns the procedure applicable before the Criminal Division; as [the appellant] has set out his grounds of appeal against the impugned decision in a pleading which he has lodged in person, his appearance in person before the Criminal Division does not appear to be either necessary or appropriate; it is not necessary to order it.” (judgment of 15 December 1999, appeal on points of law no. 99-80015) 27. As regards more particularly cases involving road-traffic offences (such as parking or speeding offences), there have been numerous decisions in which applications made by members of the ordinary bar have been turned down, the Court of Cassation holding as in the following decision: “[The appellant] has requested permission to appear before the Court of Cassation assisted by Mr [...], a member of the Paris Bar [...]. As [the appellant] has set out his grounds of appeal against the impugned decision in a pleading which he has lodged in person, his appearance in person before the Criminal Division does not appear to be essential.” (judgment of 16 May 2001, appeal on points of law no. 0086011) 28. Indeed, the Government acknowledge that such permission is rarely granted, the principle being that the members of the Conseil d'Etat and Court of Cassation Bar have a monopoly on making oral representations. They must consult the President of the Criminal Division beforehand regarding the ground of appeal on points of law for which they consider oral representations to be necessary. In 2001 oral representations were only made in some 40 or so appeals out of a total of 9,637 that were heard. 29. The members of the Conseil d'Etat and Court of Cassation Bar are the successors to the King's Bench attorneys, who practised during the Ancien Régime. Rights of audience before the King's Bench were reserved to attorneys who were royal officers and owned their official appointment (charge) from 1643 onwards. By the time of the Revolution in 1789 there were seventy-three attorneys at the King's Bench. The Revolution brought their activities to an end. They became counsel at the Tribunal of Cassation that was created in 1790, and subsequently, in 1804, members of the Court of Cassation Bar. Another group of lawyers practised at the Conseil d'Etat. The two groups were merged by an ordinance of 10 September 1817. That ordinance, which for many years served as the Bar Council Charter, was amended by a decree of 28 October 1991 (which codified the conditions of access to the profession and has since undergone a number of subsequent amendments; see also the law of 20 March 1948, which made women eligible to enter the profession, and the decree of 15 March 1978, allowing lawyers to practise in professional partnerships). The existence of a specialised bar is peculiar to France and Belgium (where only members of the Court of Cassation Bar belong to a separate bar council). 30. Members of the Conseil d'Etat and Court of Cassation Bar, unlike members of the ordinary bar, are ministerial officers. The number of official appointees has been irrevocably set at sixty since 1817. The conditions of access require in principle the candidate to be a practising lawyer, to have undergone special training and to have passed a professional entrance examination organised by the Bar Council (the legislation nevertheless provides for a number of exemptions and special means of access). Appointments are made by order of the Minister of Justice, on the basis of a reasoned opinion issued by the Bar Council, the Vice-President of the Conseil d'Etat and the President of the Court of Cassation. 31. In proceedings before the Court of Cassation, representation by a member of the Conseil d'Etat and Court of Cassation Bar is in principle compulsory, particularly in civil proceedings, unless an exemption is obtained. Members of the Conseil d'Etat and Court of Cassation Bar cannot represent the parties before the lower courts (although they may give advice and appear before the administrative courts of appeal and administrative courts). In proceedings before the Criminal Division of the Court of Cassation they are required to consult with the President of the Criminal Division before the hearing if they wish to make oral representations, in order to explain the points of law they wish to make orally and to determine by agreement the arrangements under which they will be allowed to do so. 32. Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a member State other than that in which the qualification was obtained provides, inter alia, at Article 5 § 3, sub-paragraph 2: “... in order to ensure the smooth operation of the justice system, member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers” (see also Court of Justice of the European Communities, 7 November 2000, Grand-Duchy of Luxembourg, Case no. 168/98). | 1 |
train | 001-58266 | ENG | SVK | CHAMBER | 1,999 | CASE OF MATTER v. SLOVAKIA | 3 | Violation of Art. 6-1;No violation of Art. 8 | Christos Rozakis | 5. The applicant is a Slovak citizen, born in 1925 and resident in Čadca. 6. In 1976 the applicant’s legal capacity was restricted. In 1983 the Čadca District Court (Okresný súd - “the District Court”) deprived the applicant of legal capacity entirely on the ground that he suffered from an explosive and vexatious form of paranoid psychosis. The District Court noted that the applicant had been undergoing out-patient psychiatric treatment for twenty years and that his personality had been deteriorating due to an increased syndrome of dementia. 7. On 18 February 1987 the District Court started, at the applicant’s request of 2 February 1987, proceedings pursuant to Section 81 (1) of the Code of Civil Procedure (see paragraph 41 below) with a view to determining whether the applicant’s legal capacity could be restored. The applicant refused to be examined by several experts and on 23 February 1989 the District Court decided that legal capacity could not be restored to him. 8. On 30 May 1990 the Supreme Court (Najvyšší súd) quashed the judgment on the ground that the District Court had not obtained an expert opinion as required by the law. The Supreme Court pointed out that the District Court had failed to avail itself of its rights under Section 52 of the Code of Civil Procedure and that it had disregarded, inter alia, Sections 6, 127 (1) and 187 (1) of the Code of Civil Procedure in conjunction with Section 10 (1) of the Civil Code. It ordered the District Court to examine the case again on the basis of a relevant expert opinion. The District Court appointed an expert on 26 June 1990. 9. As the applicant refused to be examined as an out-patient, the expert informed the District Court that an objective assessment of the applicant’s health required an in-patient examination. 10. On 1 April 1992 the District Court ordered that the applicant should be examined in a mental hospital pursuant to Section 187 (3) of the Code of Civil Procedure and appointed a new expert. The latter was asked to submit an opinion as to whether the applicant’s health had changed to such an extent that legal capacity could be restored to him. 11. On 13 May 1992 the District Court invited the applicant to come to the mental hospital in Sučany on 21 May 1992. The applicant was warned that he could be brought there pursuant to Section 52 (1) of the Code of Civil Procedure if he failed to comply. The applicant did not come to the hospital. 12. On 16 May 1992 the applicant lodged an appeal against the District Court’s decision of 1 April 1992. 13. On 17 July 1992 the Banská Bystrica Regional Court (Krajský súd - “the Regional Court”) informed the District Court that the aforesaid decision was premature as it was first necessary to appoint a guardian to represent the applicant. 14. On 9 September 1992 the District Court appointed the Čadca District Office (Obvodný úrad) as the applicant’s guardian. The applicant’s appeal against this decision was dismissed by the Regional Court on 28 December 1992 on the ground that he lacked capacity to lodge it. 15. On 28 September 1992 the Čadca District Prosecutor joined the applicant in the proceedings concerning the latter’s legal capacity. 16. On 20 October 1992 a representative of the authority appointed as the applicant’s guardian and the public prosecutor informed the District Court that they agreed with the applicant’s examination in a hospital. 17. On 30 November 1992 the Regional Court dismissed the applicant’s appeal against the District Court’s decision of 1 April 1992 as the applicant lacked standing to lodge it. The Regional Court held that an examination in a hospital was necessary within the meaning of Section 187 (3) of the Code of Civil Procedure as the applicant had refused to be examined by an expert. 18. On 19 April 1993 the Čadca District Office informed the District Court that it agreed to legal capacity being restored to the applicant. 19. On 3 May 1993 the District Court invited the applicant to come to the mental hospital in Sučany on 12 May 1993. The applicant was informed that he could be brought to the hospital if he failed to appear. The applicant did not comply with the court’s request. 20. On 19 August 1993 two policemen brought the applicant to the hospital in Sučany under an order by the president of the District Court. After a short period the applicant started co-operating with the expert. The examination was completed and the applicant was released from the hospital on 2 September 1993. 21. In his opinion submitted on 29 October 1993 the expert noted that the applicant, who had undergone a brain operation in 1984 and had had several heart attacks, suffered from a vexatious form of paranoid psychosis, from an organic psychosyndrome and from a heart disease. The expert concluded that legal capacity could partially be restored to the applicant and recommended a re-examination after two or three years. 22. On 23 November 1993 the District Court, following the expert’s opinion, restricted the applicant’s legal capacity in that he was not entitled to act before public authorities on his own, to conclude contracts, to assume obligations in writing and to work regularly. 23. In his appeal of 9 March 1994 the applicant requested that legal capacity should be restored to him entirely. He supplemented his appeal on 12 March, 28 April, 4 and 6 May as well as on 6 and 7 June 1994. He also requested that his case should be dealt with by another court. 24. On 30 August 1994 the Supreme Court dismissed the applicant’s request to have his case transferred to another court. The Supreme Court returned the file to the Regional Court and ordered it to establish whether the applicant challenged the Regional Court judges. 25. On 28 September 1994 the Regional Court transmitted the Supreme Court’s enquiry to the District Court which communicated it to the Čadca District Office. On 27 October 1994 the latter informed the District Court that it was not in a position to provide an answer. On 7 November 1994 the Regional Court asked the District Court for a reply. On 8 December 1994 the Regional Court addressed the request directly to the District Office. 26. On 9 February 1995 the Regional Court sent the file to the Supreme Court with the explanation that it had not been possible to obtain the requested information. The Regional Court expressed the view that the applicant had challenged all its judges. 27. On 6 March 1995 the Supreme Court decided that the Regional Court’s judges were not excluded. 28. On 29 May 1995 the Ministry of Justice requested the District Court to submit the case-file to it. 29. On 30 October 1995 the Regional Court quashed the first instance judgment of 23 November 1993 on the ground that the District Court had failed to comply with the obligation to hear the expert as required by Section 187 (3) of the Code of Civil Procedure. In view of the time which had elapsed after the delivery of the first instance judgment, the Regional Court considered it necessary to update the expert opinion. 30. On 5 February 1996 the District Court decided to obtain a second expert opinion on the applicant’s mental health and adjourned the proceedings. 31. On 31 October 1996 the District Court requested the Ministry of Health to indicate a medical authority which could prepare a second expert opinion. On 18 November 1996 the Ministry suggested that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava. 32. On 22 November 1996 the head of the Čadca District Office asked the District Court to discharge the District Office of the applicant’s guardianship. On 7 January 1997 the District Office proposed that Mr J. Jašurek, a lawyer practising in Čadca, be appointed guardian instead. In a letter dated 31 January 1997 the lawyer accepted the proposal. 33. On 25 March 1997 the Regional Court requested the District Court, in the context of different proceedings, to submit the file concerning the guardianship of the applicant to it. The Regional Court reiterated its request on 30 June 1997. 34. On 21 October 1997 the District Court ordered that the applicant be examined at the psychiatric clinic of the University Hospital in Bratislava. 35. On 22 October 1997 the District Court appointed Mr Jašurek as the applicant’s guardian. 36. On 3 November 1997 the applicant informed the head of the psychiatric clinic of the University Hospital in Bratislava that he disagreed with an examination. 37. On 16 October 1998 the District Court stayed the proceedings until the applicant’s health permitted his examination in Bratislava. 38. In a report of 21 January 1999 the doctor treating the applicant stated that the applicant was immobile and that he was not able to undergo an examination of his mental health in Bratislava. 39. On 30 April 1999 the District Court discharged Mr Jašurek, at his own request, of his duties as the applicant’s guardian. It appointed the Čadca County Office (Okresný úrad) as the guardian. 40. Section 10 of the Civil Code, so far as relevant, reads as follows: “1. An individual who, because of a lasting mental disorder, is entirely incapable of carrying out legal acts shall be deprived of legal capacity by a court. 2. A court shall restrict the legal capacity of an individual who, because of a lasting mental disorder ..., is not capable of carrying out certain legal acts. The extent of the restriction shall be specified in the court’s decision. 3. A court shall modify or quash the decision on deprivation or restriction of legal capacity when the reasons on which it was based no longer exist.” 41. The relevant provisions are as follows: “A court shall proceed with a case in co-operation with the parties so that a speedy and effective protection of rights be ensured and that the facts in dispute be reliably established.” “1. When a person summoned to an examination or before an expert fails to appear without an excuse, the president of the court’s chamber can order to bring him or her there subject to prior notice.” Section 81 (1) provides that in cases concerning, inter alia, a person’s legal capacity courts may start proceedings ex officio even if no formal action was brought. Under Section 127 (1) a court shall, inter alia, appoint an expert after having heard the parties when the decision depends on an assessment of facts requiring special knowledge. Pursuant to Section 187 (1), in proceedings concerning a person’s legal capacity, a guardian is to be appointed to the person concerned by the president of the court’s chamber. In such proceedings a court shall always hear an expert. Upon the latter’s proposal a court can order an examination of the person concerned in a hospital for no longer than three months if it is considered necessary for the determination of his or her state of health (Section 187 (3)). 42. When a court examines the question whether legal capacity can be restored to a person, it is not bound by the parties’ submissions. It may quash the original decision on deprivation or restriction of legal capacity. The court may also restrict a person’s legal capacity to such an extent as it deems it necessary even if it was not requested in the action or, as the case may be, in the initiative upon which it started the proceedings (Collection of judicial decisions and opinions, No. R 2/1984). 43. Courts should apply measures provided for, inter alia, in Section 52 of the Code of Civil Procedure rather than discontinue the proceedings when a participant remains inactive (Collection of judicial decisions and opinions, No. R 13/1977). | 1 |
train | 001-101899 | ENG | LVA | ADMISSIBILITY | 2,010 | KARULIS v. LATVIA | 4 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Jānis Karulis, is a Latvian national who was born in 1953. He is currently serving a prison sentence in Latvia. The applicant is represented by Ms. I. Lielpinka, a lawyer practising in Rīga. The respondent Government are represented by Mrs I. Reine. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 3 August 1999 the applicant was arrested and taken into custody on suspicion of a murder of his former co-inmate S., committed in 1996. 4. Questioned as a suspect, the applicant pleaded guilty to inflicting bodily injuries on the victim. The applicant contended that during their dispute S. threatened him with an axe. Aiming to hit the axe out of S’s hands, the applicant took a metal bar and accidentally hit S. on the head. Afterwards he hit S. three more times until the latter fell to the ground and let go of the axe. 5. Questioned as an accused the applicant, contended that S. had attacked him and, in order to defend himself, the applicant hit S. on the head until the latter fell to the ground. 6. On 7 December 1999 the applicant’s girlfriend O.B. was questioned as a witness and the testimony was video-recorded. She told that the murder took place in the applicant’s house where, after having a fight with S., the applicant took a metal bar and hit the victim in head. Then S. fell to the ground and the applicant continued to hit him on the head and face. After realizing that S. was dead, the applicant buried him in the garden. 7. During the pre-trial investigation O.B. refused to be cross-examined with the applicant, contending that the latter had threatened her. According to the materials of the case, in June 1998 she complained to the Olaine Police Department that the applicant had beaten her and injured her with a knife. At a later stage the criminal proceedings, which where instituted against the applicant at the O.B.’s complaint, were discontinued at O.B.’s request. 8. Upon the conclusion of the preliminary investigation, the applicant’s criminal case was transmitted to Rīga Regional Court. Throughout the first- and second-instance court proceedings the applicant was represented by state-appointed defence counsel, a member of the Latvian Bar Association. 9. The hearing of the applicant’s criminal case at Rīga Regional Court was held on 27 to 29 March 2001. 10. On 27 March 2001, at the beginning of the trial, the court observed that a summons sent to witness O.B. was returned to the court with a notice that she did not live at that address. 11. The applicant subsequently insisted on the attendance of witness O. B. In addition, for the first time the applicant asked the court to summon witness Z. on behalf of the defence. The applicant explained that during the pre-trial investigation he had not referred to this witness because he had expected that O.B. would refer to him. The applicant contended that witness Z. went to see him the day after the events at issue took place. 12. The court decided to commence adjudication of the criminal case and to leave the request open concerning witness O. B. 13. During the court adjudication the applicant confessed that he had inflicted bodily injuries on the victim, however, he contended that he had done so to defend himself against attack by the victim, who was allegedly holding an axe. 14. The court further questioned witness B. who testified, as he had during the pre-trial investigation, that the applicant had told him that he [the applicant] had won a fight with the victim and had buried the body. Further, disregarding the applicant’s objections, the court read out the statements made by O. B. during the pre-trial investigation, and also viewed a video record of O.B.’s statements. The applicant commented that O.B’s testimony was false, without providing detailed arguments as to which statements were false. 15. At 3.10 p.m. on 28 March 2001 the court announced a break in the adjudication of the criminal case and adopted a decision that the Olaine Police Department should bring witness O.B. to court compulsorily at 10 a.m. on 29 March 2001. 16. On 29 March 2001 the Olaine Police department informed the court that they had visited two addresses in Olaine and that O. B. could not be found at either of them. 17. As to witness Z., the court noted that it could not establish the exact whereabouts of the witness. The court also mentioned that witness Z. had not been referred to by the applicant during the pre-trial investigation and, according to the materials in the case file, he was not an eyewitness, therefore the request to summon this witness was dismissed. 18. On 30 March 2001 Rīga Regional Court found the applicant guilty of murder and sentenced him to twelve years’ imprisonment. The court recognised that the applicant’s statements concerning the circumstances of his fight with S. and the alleged necessity of self-defence (see paragraph 5) were inconsistent with his earlier testimony (see paragraph 4), O.B.’s statements and the expert report which described the multiple serious facial injuries inflicted on S. The court established that by hitting S. several times on the head and face the applicant intended to murder him. The court also relied on statements by witness B. given during the pre-trial investigation and the trial, and statements by a policeman on duty at the time. 19. The applicant appealed against the first-instance court judgment, asking for witnesses O. B. and Z. to be summoned for examination. He complained that the first-instance court had found him guilty taking into account solely the incriminating statements of witness O. B., whom he could not challenge or question. 20. On 5 September 2001 the Supreme Court summoned witness O.B. again, by sending the summons to another address, where she might possibly be located. On 10 September 2001 the summons was returned to the court with an indication that the addressee could not be reached there. 21. On 24 October 2001 at the beginning of the hearing the court observed that witness O.B. had not appeared. The applicant referred to a letter of an unspecified date from O.B., addressed to him, in which O.B. had expressed willingness to testify before the court. It appears that the letter did not contain an address for the witness. 22. When asked by the court, the applicant did not object to adjudication of the appeal on the merits. 23. During the appeal hearing, the applicant testified that he had inflicted bodily injuries on the victim and that “probably it was not necessary to hit him so many times”. As to O.B.’s testimony the applicant commented that O.B. had probably not seen that the victim had an axe. During the trial the applicant refused to watch the video statement given by witness O.B. 24. On 24 October 2001 the Criminal Chamber of the Supreme Court upheld the judgment, finding that the first-instance court had thoroughly analysed the evidence available and had expressly indicated in its judgment which facts it considered to be established as well as the reasons for its conclusion. 25. The applicant submitted a cassation appeal against the decision of the second-instance court. He complained that his procedural rights had not been observed because he could not question witness O.B. 26. On 5 December 2001 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law as manifestly ill-founded, at a sitting held in camera. It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings. The Senate concluded that O.B.’s witness statements had been sufficiently examined by the first- and second-instance courts. The Senate did not establish that there had been any violations of procedural and substantive law which would have stood in the way of a thorough, complete and objective investigation of the case. 27. The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005), are found in Pacula v. Latvia, no. 65014/01, §§ 34-39, 15 September 2009, and Ž. v. Latvia, no. 14755/03, § 56, 24 January 2008. | 0 |
train | 001-85010 | ENG | MDA | CHAMBER | 2,008 | CASE OF FLUX (No. 4) v. MOLDOVA | 4 | Violation of Art. 10 | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 5. On 6 December 2002 Flux published an article entitled “The Sabbath of the parvenus”. It reported the alleged overnight enrichment of the Speaker of Parliament, the President of the Parliamentary Communist faction and the son of the President of Moldova. The idea of the article was that before becoming public figures they had all been simple citizens without any significant fortune; however, their fortunes had considerably increased after the Communist Party had won the elections and they had become public figures. 6. The summary reads as follows: “The other day I was editing a news item concerning the two luxury cars used by the Speaker of Parliament, E. O., and I became more and more convinced that the term 'parvenu' had Moldovan origins. Our political scene is full of examples. For example, the first thing done by E .O. after becoming Speaker of Parliament, was to solve her housing problem. By abusing her position she was able to lay her hands on a huge apartment in downtown Chişinău, paid for by public money. Who was E. O. before becoming Speaker? A modest baker with a modest work history. Who is she now? A big boss! She cannot fit into a BMW and so she also needs a Mercedes Benz. Let's take another example. Who was Victor Stepaniuc before becoming an MP? A simple schoolteacher in the village of Costeşti with a modest IQ and a little bit hysterical. Who is he now? He is not only a Sulla of the Parliament, namely a dictator without whose approval even the flies do not fly in the Parliament building, but also a prosperous businessman. He is an agent at the Chişinău tobacco factory, he has made enormous profits from the sale of cigarettes, he owns buses, he controls the Chişinău-Ialoveni bus route, and in general he looks like a genuine Moldovan dandy with a silk tie, Italian suits, German shoes and dirt under his nails. Who was O. V. before his father Vladimir Voronin became the President of Moldova? A novice businessman specialised in the milking of profits from sugar plants in the north of the country. Who is he now? He is the most prosperous businessman in the country. He is the majority shareholder of bank F., the owner of construction company M, has contracts with the State worth millions and does business with Chişinău tobacco factory. He is a star and a VIP of the financial press and is held up as an example to young businessmen....” 7. On 12 December 2006 Mr Stepaniuc, the leader of the Communist parliamentary faction which had, at the time, 71 votes out of a total of 101 in Parliament, lodged an action against the applicant newspaper. He did not pay any court fee when lodging his complaint, nor did he appear in court at any stage of the proceedings or delegate anyone to represent him. He argued, inter alia, that: “...the defendants disseminated false and defamatory information about me ... ... Both in the title and in the body of the article I am described as follows: 'a dictator without whose approval even the flies do not fly in the Parliament building, but also a prosperous businessman. He is an agent at the Chişinău tobacco factory, he has made enormous profits from the sale of cigarettes, he owns buses, controls the Chişinău-Ialoveni bus-line, and in general he looks like a genuine Moldovan Dandy with a silk tie, Italian suits, German shoes and dirt under his nails.' None of these accusations is true and they are nothing more than dirty slander.” Mr Stepaniuc asked the court to declare the above statements defamatory, to make the defendants publish a retraction on the same page of the newspaper and pay him compensation in the amount of the maximum provided for by the Civil Code. 8. The case was put before Judge I.M., the President of the Buiucani District Court at the time for examination. 9. In its defence the applicant newspaper presented the court with copies of open letters addressed to the President of Moldova by a transport company in which Mr Stepaniuc was accused of appropriating several of its bus routes. 10. On 17 February 2003 the applicant newspaper informed the court that the information concerning Mr Stepaniuc's involvement in illegal activities in the tobacco business had been obtained from sources in the Moldovan secret service and submitted that the secret service had prepared a report about the alleged involvement of high-ranking officials in illegal activities at the Chişinău tobacco factory. The applicant newspaper informed the court that it had officially requested a copy of the report and asked that the case be adjourned until the secret service had provided the court with such a copy. 11. On 19 February 2003 Judge I. M. rejected the request to adjourn the case until after the secret service had provided the court with a copy of its report; however, he did order that the examination be postponed until 24 March 2003. 12. On 24 March 2003 the applicant newspaper informed the court that the secret service had failed to reply to its request and that consequently it had commenced a court action seeking an order to provide it with a copy of the report. The applicant newspaper requested that the defamation proceedings be adjourned pending the conclusion of those proceedings. 13. On 24 and 26 March and on 15 April 2003 Judge I. M. held hearings in the case and rejected the request for adjournment pending the conclusion of the other set of proceedings. He decided though to postpone the examination of the case until 30 April 2003. 14. On 30 April 2003 Judge I. M. examined the case in the absence of the parties and ruled in favour of Mr Stepaniuc. He found the statements complained of by the plaintiff (see paragraph 7 above) to be defamatory and ordered the newspaper and the author of the article to pay Mr Stepaniuc 3,600 Moldovan lei (MDL) (228 euros (EUR) at the time) and MDL 1,800 (EUR 114 at the time) respectively. He also ordered the newspaper to issue an apology within fifteen days. The defendants were also ordered to pay the court fees. 15. Judge I.M. gave the following reasons for his findings: “In the court's view, the title, the text and the meaning of the published information should be qualified as defamatory of the plaintiff because the defendants made statements of facts without adducing any evidence. In particular they submitted that V. Stepaniuc, contrary to the provisions of Article 70 of the Constitution, practises activities which are incompatible with his status of deputy and that he is an agent of the tobacco factory, makes enormous profits from trading cigarettes, and that he controls the Chişinău-Ialoveni bus route. During the examination of the case, the court had given the defendants the opportunity to present evidence... however, neither the newspaper, nor the author brought any evidence to confirm the truthfulness of the published information. Nor in the article itself did the defendants adduce any evidence. [a reproduction of Article 10 of the Convention follows] In the present case the information disseminated by the defendants cannot be treated as a value judgment and accordingly it cannot be protected by the provisions of the Convention stated above. The court also takes into consideration the fact that Mr Stepaniuc is a public figure and that in respect of such persons a higher degree of tolerance is required when it comes to defamation. However, the information spread by the defendants clearly exceeds the limits of any reasonable criticism against public persons in a democratic society.” 16. The applicant newspaper appealed against this judgment, arguing, inter alia, that Judge I. M. had lacked independence and impartiality on the ground of his close ties with Mr Stepaniuc and the Communist Party and his behaviour in other defamation cases between Mr Stepaniuc and Flux. The applicant newspaper also argued that the first-instance court had totally disregarded its arguments, namely the letters addressed to the President of Moldova (see paragraph 9 above) and refused to give it a chance to bring evidence concerning Mr Stepaniuc's involvement in the tobacco business, by refusing to adjourn the case until after the end of the proceedings between Flux and the secret service. The applicant newspaper also argued that its characterisation given to Mr Stepaniuc in the impugned article was a value judgment and that it could not be required to prove its truth. 17. On 26 June 2003 the Chişinău Court of Appeal dismissed the appeal and upheld the judgment of the first-instance court while repeating that the applicant newspaper had not adduced any evidence in support of its statements about Mr Stepaniuc. It did not refer to any of the arguments referred to in the applicant newspaper's appeal. 18. The applicant newspaper lodged an appeal on points of law. It argued, inter alia, that Judge I.M. lacked independence and impartiality and that the lower courts had refused to adjourn the proceedings until after the end of the proceedings between Flux and the secret service, thus affecting the fairness of the proceedings. The applicant newspaper informed the Supreme Court that it had finally managed to obtain a copy of an annex to the report concerning illegal activities at the Chişinău tobacco factory from the secret service and had attached it to its appeal. The annex was entitled “scheme of the criminal interactions between the tobacco gangs” and presented by means of a chart, the alleged interactions between the administration of the Chişinău tobacco factory, two criminal gangs, several companies and various high-ranking officials, including Mr Victor Stepaniuc. 19. On 5 November 2003 the Supreme Court of Justice reduced the compensation to be paid to Mr Stepaniuc by the newspaper and the author of the article to MDL 1,350 and MDL 180 respectively. It argued that Mr Stepaniuc was a public figure and therefore had to be more tolerant towards the press and, moreover, had failed to appear before the courts. The Supreme Court did not, however, depart from the findings of the first two instances in respect of the merits of the case and did not examine any of the applicant newspaper's arguments. 20. The relevant provisions of the Civil Code in force at the material time read: “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality. (2) Where the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” “(1) Non-pecuniary damage caused to a person as a result of circulation through the media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life, without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 months' minimum wages if the information has been circulated by a natural person.” | 1 |
train | 001-78603 | ENG | SVK | CHAMBER | 2,006 | CASE OF RADIO TWIST, A.S., v. SLOVAKIA | 1 | Violation of Art. 10 | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza | 6. The applicant is a broadcasting company which was established in 1991 and is registered in Bratislava. 7. At the relevant time the applicant company broadcast on five frequencies in Slovakia and had a daily audience of more than 400,000 listeners. The principles underlying its operations were democracy and independence. 8. At the relevant time Slovenská poisťovňa a.s. (“SP”) was a major insurance company in Slovakia. It was controlled by the State through the National Privatisation Agency (Fond národného majetku – “the FNM”). 9. Following the 1994 parliamentary elections, SP’s management board was appointed through a political agreement between the coalition parties then in power. The coalition included the Movement for a Democratic Slovakia (Hnutie za demokratické Slovensko – “HZDS”) and the Slovak National Party (Slovenská národná strana – “SNS”). 10. At that time the majority of seats in the bodies under the FNM’s control were held by HZDS appointees. 11. On 1 June 1996 SP’s supervisory board removed the individuals appointed by the SNS from the company’s board of directors and appointed a new management team. The outgoing management team did not accept this move. 12. On 3 June 1996 the former management team took over the SP headquarters. They were assisted by private security guards and a squad of State police, who had been assigned to this task by the President of the Slovak Police Corps, an SNS appointee. They forced the newly appointed management team to leave the premises, but a few days later the new management, assisted by their own private security service, regained control of the company and its premises. 13. The background to this struggle was, essentially, the wish of those involved to participate in SP’s privatisation. The removal of the SNSappointed management team caused a serious political crisis at government level. 14. At the relevant time Mr K. was Deputy Prime Minister and Minister of Finance and Mr D. was State Secretary at the Ministry of Justice. The posts of State Secretaries within ministries were filled through appointments by political parties. They were therefore political posts and did not form part of the civil service. 15. After the events complained of, Mr D. was elected as a judge to the Constitutional Court. 16. At 6 p.m. on 12 June 1996 the applicant company broadcast the recording of a telephone conversation between Mr K. and Mr D. in its news programme “Journal”. 17. The broadcast was preceded by comments by the applicant company’s journalist. The names of the persons involved were mentioned in full. The commentary went as follows: “As mentioned in our noon programme, we have managed to obtain a tape recording of a telephone conversation which suggests that [Mr K.], the Deputy Prime Minister and Minister of Finance, was involved in the events involving Slovenská poisťovňa a.s. Naturally, Radio Twist disapproves of any wiretapping unless it is done under a court order. We consider [the present recording] unlawful and dissociate ourselves from the manner in which it was obtained. But because, in this case, a matter of general interest is involved, one which cannot be concealed ... we seek to carry out our duty to inform the public. At the same time, we would like to ask the competent authorities about the security situation in our country, if wiretapping of ... senior officials is possible. The fact that senior officials are involved in activities concerning the above-mentioned case should be considered by those authorised to deal with it. And now to the tape which, due to its technical quality, is almost unintelligible. The other person speaking over the phone is probably [Mr D.], State Secretary at the Ministry of Justice.” 18. Immediately thereafter the recorded conversation between Mr K. and Mr D. was played. The transcript reads as follows. Mr K: “... the police, with the assistance of the policemen [and] some other security guards have entered and seized the building, they have emptied the building ...” Mr D: “But this is peculiar, the involvement of the policemen, what could have been the grounds for their action ...” Mr K: “Certainly, this was a failure by the security guards, those that were there at that moment, but this was a layman’s approach maybe, because ... It seems the policemen were rather hard according to all the circumstances. You know, the police raid was probably organised through [Mr H.], you know, the Slovak National Party. Well then, this was all I wanted to say, that there is that ...” Mr D: “Will you be chairing the meeting?” Mr K: “Yes, but the boss will arrive to speak on two items on the agenda.” Mr D: “I see. Otherwise, I have been charged with this task, because he is leaving for Banská Bystrica.” Mr K: “Good, it is clear, all I wanted to say ...” Mr D: “Nobody is going to interfere with my business ...” Mr K: “Well, of course not.” Mr D: “As he does not even know yet what I am doing ...” Mr K: “[The first name of Mr D.], it would therefore be most important ...” Mr D: “I shall go and personally inspect it in the morning, before the meeting starts ...” Mr K: “I would like to ask you to do this, as it will emphasise the fact that they have done it ...” Mr D: “That’s clear.” Mr K: “I had a phone call from there just half an hour ago ...” Mr D: “Very good, I also need to know this in order to speak about it there.” Mr K: “That will be extremely important.” Mr D: “All right then, first thing in the morning I shall submit the report about how things are going ...” Mr K: “Otherwise, you have to turn to me, this lady I have arranged, simply speaking, it is all organised by me, hence ...” Mr D: “Yes, yes.” Mr K: “Even if I am not present, I shall later go directly to the government session, but through this [Mrs M.], they know for sure, actually they are well-oriented on the subject ...” Mr D: “I have got my instructions.” Mr K: “It is clear, these instructions apply.” Mr D: “Well then, see you.” Mr K: “[The first name of Mr D.], thank you very much, see you ... bye ...” 19. The subsequent commentary by the journalist, in which the full names of those involved were again mentioned, stated. “And let us start to clarify things for a moment. The dealings around Slovenská poisťovňa surfaced in public on Monday 3 June 1996. To put it simply: the ten managers of Slovenská poisťovňa – let us call them Mr [T.] and Co. – were pushed out of their building after the weekend by a private security service. These security guards had been summoned by the new management team of Slovenská poisťovňa – let us call them Mrs [B.] and Co. Mr [T.] and Co. were supported by the police and, as documented by the taped phone conversation, it is evident that the President of the Police Corps, Major [H.] is a protégé of the Slovak National Party. The former management team, [T.] and Co., seized the building with police assistance and, as has been clear from the start, this was the building of Slovenská poisťovňa. This happened on Tuesday last week, and on the very same day these managers were again sitting in their chairs. As follows from the taped phone conversation, it is clear that the persons spoke together last Monday, 3 June, and that the State Secretary at the Ministry of Justice, [Mr D.], was a somewhat easier partner for Minister [K.] than the Minister of Justice, [Mr L.], who was in Banská Bystrica that day. We have verified this fact. Just to complete the information, it should be noted that last week’s Tuesday government session was chaired by Mr [K.]. Owing to the poor technical quality of the recording of the phone conversation between [Mr K.] and [Mr D.], I think it would be worthwhile listening to it once again.” ... “We asked for the opinion of the Ministry of Justice. [P.Š.], the Ministry’s spokesman, ... did not know of the contents of the recording as it had not yet been made public in Slovakia. Understandably, he did not therefore want to react to it. We expect the response of the Ministry tomorrow. We also turned to Minister [K.], who stated: ‘Look, I do not comment on things that are contrary to democracy. I think that journalists should perhaps choose a different approach since government officials have been tapped. So I will not comment on something that has been published without my consent. Undoubtedly, this information is about the fact that there has been certain pressure ... in Slovenská poisťovňa.’” 20. Mr D. filed a civil action against the applicant company in the Bánovce nad Bebravou District Court (Okresný súd) for protection of his personal integrity. He argued that the company had broadcast the telephone conversation despite the fact that it had been obtained in an illegal manner. The broadcast had interfered with his personal integrity by harming his reputation, dignity and respect for his person among the public. In addition, the statements broadcast included distorted and incomplete information that was capable of discrediting him. The plaintiff also referred to the fact that the information had subsequently been picked up by the Czech TV station Nova, and that several articles had been published in the Slovak dailies SME, Práca and Slovenská republika. As a result, the trust between the Minister of Justice and the plaintiff had been undermined. He acknowledged that, at the time that the recording was made, he had spoken with several persons and admitted that it was his voice on the recording. The recording and the comments as such had been taken out of context, and the telephone conversation had not been broadcast in its entirety. The plaintiff denied that the subject of the conversation had been the events as presented by the commentator, since his position did not authorise him to intervene in the case as suggested in the broadcast. 21. In its observations in reply, the applicant company stated that the recording of the conversation had been deposited in its mailbox by unknown persons. Speculation about such a recording had been circulating in the week prior to the broadcast, and as a result the coalition government had been threatened with a split. Prior to the broadcast the applicant company’s employees had tried to contact the persons concerned, in accordance with the company’s internal rules. Although the tape was almost unintelligible, as an information medium the applicant company had felt obliged to inform the public and to demonstrate what was going on in political circles at that time. In his commentary on the material broadcast, the journalist had stated that the applicant company disapproved of the manner in which the recording had been obtained. 22. The District Court heard the parties and three witnesses and examined a transcript of the impugned broadcast and other documentary evidence. 23. In a judgment delivered on 16 March 1999, the District Court ordered the applicant company to offer the plaintiff a written apology and to broadcast that apology within fifteen days. It was to read as follows: “We apologise to [Mr D.], the former State Secretary at the Ministry of Justice of the Slovak Republic, now judge of the Constitutional Court of the Slovak Republic, for having broadcast an unlawfully obtained recording of a telephone conversation on 12 June 1996 at 6 p.m.” 24. The applicant company was further ordered to pay 100,000 Slovakian korunas to Mr D. in compensation for non-pecuniary damage, and to reimburse his legal costs. 25. The District Court based its judgment, inter alia, on the following grounds. The applicant, as a licensed radio broadcasting company, had the right to use audio recordings for scientific and artistic purposes and for news reporting without a person’s previous consent. However, under the last sentence of Article 12 § 3 of the Civil Code, such use should not conflict with the justified interest of the person concerned. The applicant company had not been prevented from commenting on the situation which had arisen and from presenting its views. In order to do so, however, it had not been necessary to broadcast a tape obtained in an illegal manner. The District Court further noted that the plaintiff’s dignity as a public official had been diminished as the issue had been commented on in the press and on television. It therefore considered it appropriate to order the applicant company to compensate the plaintiff in respect of non-pecuniary damage under paragraph 2 of Article 13 of the Civil Code. 26. The applicant company appealed. It maintained that the Constitution did not subject the use of recordings to the prior establishment of their lawfulness and that it had not been formally shown that the recording had been unlawfully obtained. The plaintiff was a public official and the contents of the recording concerned the exercise of a public function. The recording had been discussed for several days prior to being broadcast. By broadcasting the telephone conversation, the applicant company had fulfilled its task of informing the public about issues of public interest. Finally, the applicant pointed out that the plaintiff had become a constitutional judge in the meantime, and that it had not been shown that he had suffered any damage as a result of the broadcast. 27. On 22 February 2000 the Žilina Regional Court (Krajský súd) upheld the judgment of the District Court. The Regional Court admitted that imparting of information by the media was an important instrument for supervising political power in a democratic society. Informing on and criticising matters of public interest were among the media’s most important tasks, and constitutional protection of such interests was ensured by the guarantees of freedom of expression and of the right to information. However, in the case under consideration the freedom of communication of users of telecommunications services had been violated, and an interference with the right to respect for privacy had occurred as a result of publicly broadcasting the telephone conversation. That fact was at the heart of the applicant company’s unjustified interference with the plaintiff’s personal rights since, as the Regional Court held, protection of privacy extended to the conversations of public officials. 28. Article 16 § 1 provides for protection of a person’s integrity and privacy. Restrictions are permissible only in cases provided for by law. 29. Article 22 guarantees secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages, kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2). 30. Paragraph 1 of Article 26 guarantees freedom of expression and the right to information. Paragraph 2 provides, inter alia, that everyone has the right to express his or her views and to freely seek, receive and impart ideas and information. Under paragraph 4, freedom of expression and the right to seek and impart information can be restricted by means of a law, where such restriction is necessary in a democratic society for the protection of, inter alia, the rights and freedoms of others. 31. Under Article 26 § 5, as in force at the relevant time, State authorities and local self-government authorities were obliged to provide information about their activities in an appropriate manner. Further details in this respect were to be laid down in a special law. 32. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code. 33. According to Article 11 natural persons have the right to protection of their personality, in particular of their life and health, civil and human dignity, privacy, name and personal characteristics. 34. Article 12 § 1 provides, inter alia, that audio recordings concerning natural persons or their statements of a personal nature may only be made or used with the consent of the person concerned. Under paragraph 2 of that Article such consent is not required where the documents or recordings are used for official purposes in accordance with the law. Article 12 § 3 provides that pictures and audio recordings can also be made and used in an appropriate manner without the consent of the person concerned for scientific and artistic purposes and also for news reporting by means of the press, film, radio and television. Such use cannot, however, be contrary to the justified interests of the person concerned. 35. Pursuant to Article 13 § 1, all natural persons have the right to request an order restraining any unjustified interference with their personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation. 36. Article 13 § 2 provides that in cases where the satisfaction afforded under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 37. The Act regulates citizens’ (občan) use of the press and mass media in accordance with the constitutionally guaranteed freedom of expression and the press (section 1(1)). Part (časť) V governs protection against abuse of freedom of expression and the press. It contains, inter alia, the following rules. 38. Legal protection is afforded to any person who makes use of his or her freedom of expression and the press (section 16(1)). 39. Under section 16(2) the publishing of information that threatens the legally protected interests of society or of citizens is considered an abuse of freedom of expression or the press. Protection of society and citizens against abuse of freedom of expression and the press is entrusted to the publisher, the chief editor, the editor and the author. Details are to be laid down in special legislation which, at the same time, will regulate the liability of the publisher for damage caused by the press or other mass media. | 1 |
train | 001-89066 | ENG | RUS | CHAMBER | 2,008 | CASE OF SERGEY KUZNETSOV v. RUSSIA | 3 | Violation of Art. 11 read in the light of Art. 10;Non-pecuniary damage - award | Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicant was born in 1957 and lives in Yekaterinburg. 5. On 18 March 2003 the applicant and two other persons (Mr Sh. and Ms M.) sent a notice to the head of Yekaterinburg town administration of their intention to stage a picket in front of the Sverdlovsk Regional Court. The picket was to take place between 25 and 28 March 2003 between 9 and 11 a.m. The declared purpose of the picket was “to attract public attention to violations of the human right of access to a court”. 6. On 19 March 2003 the head of the Committee for Public Relations and Mass Media of the Yekaterinburg town administration acknowledged receipt of the notice. He noted that, should the picket cause any inconvenience, such as blocking access to the court-house or impairing its normal functioning, the administration would have to intervene. 7. On 20 March 2003 the head of the Yekaterinburg public security police ordered that the police should maintain public order and traffic safety during the picket. 8. On 25 March 2003 the applicant and others held the picket. They distributed press clippings and leaflets about Mr Ovcharuk, the President of the Sverdlovsk Regional Court, who had allegedly been involved in corruption scandals, and collected signatures for his dismissal. 9. On 27 March 2003 Mr Dementyev, the first deputy president of the Sverdlovsk Regional Court, sent the following letter to the head of the Verkh-Issetskiy police department of Yekaterinburg: “With the consent of the Yekaterinburg town administration, a group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M., held a picket in front of the building of the Sverdlovsk Regional Court... The picket notice indicated that the purpose of the picket was ‘to attract public attention to violations of the human right of access to a court’. As the subsequent events demonstrated, the picket organisers misled the officials of the Yekaterinburg town administration as to the real purposes of their action. Instead of drawing public attention to the problems of judicial protection and violations of human rights, as it was indicated in the picket notice – if they believed that such problems existed – which would be hard to contradict because the said problems exist in reality, for three days the picket participants distributed printed leaflets and materials of a slanderous and insulting nature which targeted the president of the Sverdlovsk Regional Court personally. The information contained in the extract from the Novaya Gazeta newspaper was more than two years old. It had been checked by the Supreme Qualification Panel of Judges and the Prosecutor General’s Office and found to be slanderous, of which the picket participants, in particular Mr Sh. and Mr Kuznetsov, were perfectly aware. The above stated begs the conclusion that the picket organisers deliberately and maliciously changed the nature of the action and in that way misled the public whom, according to the picket notice, they merely intended to acquaint with the state of judicial protection of human rights. They have committed thereby an administrative offence by violating section 4 of the decree of the Presidium of the USSR Supreme Council of 28 July 1988, as amended by the Presidential decree of 25 May 1992, and, pursuant to section 8 of that decree, they are administratively liable under Article 20.2 § 1 of the Code of Administrative Offences... Accordingly, I ask you to institute administrative proceedings against Mr Sh., Mr Kuznetsov and Ms M. in accordance with Article 28.3 § 2 (1) of the said Code, prepare a report on an administrative offence and decide on the issue of their legal responsibility for that breach of law. You are requested to inform me of the decision taken.” 10. On 17 April 2003 an official of the Verkh-Issetskiy police department of Yekaterinburg compiled a report on administrative offences committed by the applicant under Article 20.2 §§ 1 and 2 of the Code on Administrative Offences. According to the report, the applicant had given notice of the picket too late, he had distributed leaflets of a slanderous and insulting nature against the president of the regional court and he had also obstructed the passage of citizens into the court-house. Court bailiffs Mr R. and Mr M. were listed as eyewitnesses. 11. On 21 April 2003 the head of the Verkh-Issetskiy police department forwarded the report and supplementary materials to the Verkh-Issetskiy District Court of Yekaterinburg. The matter was assigned to the justice of the peace of the 3rd Court Circuit of the Verkh-Issetskiy district of Yekaterinburg. 12. On 15 May 2003 the applicant challenged the judicial formation and requested that the matter be examined in a neighbouring region. He claimed that objective examination of the matter in Yekaterinburg was impossible because it had been initiated at the instigation of the high-ranking officials of the regional court. The justice dismissed his challenge, holding that under the Code on Administrative Offence there were no legal grounds to change the venue. 13. On 19 May 2003 the justice issued a ruling on an administrative offence (постановление по делу об административном правонарушении) in which she found the applicant guilty on three counts. 14. Firstly, the justice held that the applicant had breached the established procedure for organising a picket. He had sent the picket notice eight days before the picket date, whereas both the 1988 USSR Supreme Council’s decree and the local Yekaterinburg regulation on public assemblies established a ten-day notification period. 15. Secondly, the justice found the applicant to have breached public order during the picket. She relied on the following evidence: “The applicant’s guilt... is confirmed by the report on an administrative offence dated 17 April 2003; the statements by the witnesses Mr M. and Mr R. who testified in court that they worked as court bailiffs in the Sverdlovsk Regional Court. At about 9.10 a.m. on 25 March 2003 they had gone onto the porch of the Sverdlovsk Regional Court and seen some people with banners – among them Mr Kuznetsov holding the banner ‘Ovcharuk – resign’ – who were standing on the porch right in front of the entrance on the top floor, blocking the passage and distributing leaflets. When they had asked them to show their identity documents and go down the stairs, they had refused but they had gone down after a police officer had approached them. Judges coming to work had told them that the picket participants had blocked access to the court. [List of evidence showing the applicant’s guilt continues:] the report by the court bailiff Mr R. of 25 March 2003; the report by the police officer from the Verkh-Issetskiy police station Mr G. which indicated that between 25 and 28 March 2003 he had been responsible for public order during the picket in front of the Sverdlovsk Regional Court. The picket had been organised by Mr Kuznetsov, Mr Sh. and Ms M., who at 9 a.m. on the day of the picket were standing on the staircase at the entrance to the Sverdlovsk Regional Court and thus obstructing access to the building. Following his intervention and that by the court bailiffs, they had gone down to the pavement in front of the court-house and had not subsequently interfered with the normal functioning of the Regional Court... The judge does not accept the arguments by Mr Kuznetsov’s representative to the effect that Mr Kuznetsov did not block access to the Sverdlovsk Regional Court, because these arguments contradict the evidence that has already been examined in court and because they cannot be confirmed by the witnesses [for the defence] who were present at the picket from 9.30 a.m., because by that time the picket participants had already descended the staircase on orders of the police officer and were no longer blocking access... The photographs [produced by the defence and] examined in court cannot prove that Mr Kuznetsov did not block access to the court-house, because they depict solely the moment when they were taken rather than the entire time during which the picket had been held; moreover, the court does not know when the photographs were taken.” 16. Thirdly, the judge found that the picket had been conducted at variance with the aims listed in the notice: “According to the notice dated 18 March 2003, the initiative group of citizens comprising Mr Sh., Mr Kuznetsov and Ms M. held a protest action against violations of citizens’ right to judicial protection. As [the applicant’s representative] explained in court, the picket aimed at attracting public attention to the problems of judicial protection, such as refusals to accept a claim or unfair judgments. The witness Mr M. stated that he had brought and distributed a newspaper describing certain instances in which citizens’ rights to judicial protection had been breached. At the same time, the picket participants distributed extracts from the Novaya Gazeta newspaper containing A. Politkovskaya’s article ‘Ovcharuk and his team’ which in its contents did not correspond to the aims of the picket. The distribution of those extracts was not contested by the applicant’s representative in court and also confirmed by witnesses.” 17. The judge declared the applicant guilty under Article 20.2 §§ 1 and 2 of the Code of Administrative Offences and fined him 1,000 Russian roubles (RUB, approximately 35 euros (EUR)). 18. On 11 July 2003 the Verkh-Issetskiy District Court of Yekaterinburg, on an appeal by the applicant, upheld the ruling of the justice of the peace, endorsing the reasons that she had given. That judgment was final as no further ordinary appeal lay against it. 19. The Constitution guarantees the right to freedom of peaceful assembly and the right to hold meetings, demonstrations, marches and pickets (Article 31). 20. The Decree of the Presidium of the USSR Supreme Council no. 9306-XI of 28 July 1988 (in force at the material time pursuant to Presidential Decree no. 524 of 25 May 1992) provided that organisers of an assembly were to give written notice to the municipal authorities no later than ten days before the planned assembly (section 2). The authority was to give its response no later than five days before the assembly (section 3). Assemblies were to be conducted in accordance with the aims listed in the notice and with respect for Soviet laws and public order (section 4). Individuals who breached the established procedure for organising and holding assemblies incurred liability under the laws of the USSR and Soviet republics (section 8). 21. Article 20.2 § 1 of the Code on Administrative Offences provides that a breach of the established procedure for organising a demonstration, meeting, procession or picket shall be punishable by a fine of ten to twenty times the minimum monthly wage (that is, RUB 1,000 to 2,000 at the material time). Paragraph 2 of that Article stipulates that a breach of the established procedure for holding a demonstration, meeting or picket shall be punishable by a fine of ten to twenty times the minimum wage for organisers, or five to ten times the minimum wage for participants. | 1 |
train | 001-103251 | ENG | SVK | CHAMBER | 2,011 | CASE OF MICHALAK v. SLOVAKIA | 3 | Violations of Art. 5-4;Violation of Art. 5-5;Violation of Art. 13+8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | 5. The applicant was born in 1977 and lives in Poprad. 6. On 14 August 2002 the Prešov Regional Investigation Office commenced a criminal investigation into a suspicious money transfer between two bank accounts. 7. On 9 October 2002 the Prosecutor General ruled that the investigation should be supervised by the Trenčín Regional Prosecutor. It was observed that the suspected offence had been committed in the region of Prešov and that the Prešov Regional Prosecutor would normally have had jurisdiction to deal with it. It was, however, presumed that the offence had been part of a larger criminal transaction involving several individuals in various places and requiring extensive investigation. In order to ensure the effectiveness and expeditious determination of the proceedings, it was necessary to transfer jurisdiction to the Trenčín Regional Prosecutor. 8. On 29 November 2002 the Prosecutor General took a similar measure in respect of an investigation into irregularities in insolvency proceedings concerning bank A. 9. On 9 December 2002 the applicant and seven other individuals were charged with conspiracy and embezzlement on suspicion of having fraudulently and in an organised fashion drained money from the insolvency estate of A. The applicant for his part was suspected of having organised a bank transfer of the money in question. The decision was based on “previously obtained testimonies and documentary evidence”. 10. On 14 December 2002 the applicant was placed in detention pending trial. He remained detained until his release on 22 January 2004. The circumstances and decisions relating to his detention are described in paragraphs 19 to 80 below. 11. On 24 April 2003 the investigation in question was joined to inquiries in two other cases concerning murders which had connections with the insolvency proceedings in respect of bank A. 12. After the investigation had been completed, the applicant was invited to inspect the investigation file. He did so on 21 June and 30 July 2004. He discovered, inter alia, that the file contained information which had been obtained by monitoring his telephone calls. This information comprised the transcript of a specific phone call from the applicant’s mobile telephone and a list of outgoing and incoming calls in a specific period. 13. The applicant unsuccessfully complained to the prosecution service and the Constitutional Court that the monitoring of his telephone communications had been unlawful and unjustified. The details concerning his constitutional complaint are set out in paragraphs 81 and 82 below. 14. On 10 September 2004 the Trenčín Regional Prosecutor indicted the applicant and committed him to stand trial before the Prešov Regional Court (Krajský súd) on charges of conspiracy and embezzlement. The indictment was also directed against 13 other individuals, including two lawyers, and included charges of money laundering, murder and illegal possession of firearms. 15. On 14 October 2004 the Prešov Regional Court ruled that the case fell within the jurisdiction of the Special Court (Špeciálny súd), which had been established a short time before in order to try cases involving corruption, organised crime and other serious offences. Both the applicant and the prosecution service challenged this ruling. 16. On 19 January 2005 the Supreme Court (Najvyšší súd) upheld the jurisdiction of the Special Court. The applicant then unsuccessfully challenged this decision before the Constitutional Court, which rejected his constitutional complaint on 5 May 2005, and before the Prosecutor General. 17. On 1 July 2005 the case was transferred to the Special Court, which decided, on 12 December 2005, to hive off the applicant’s trial to a separate set of proceedings. 18. Following a judgment of the Constitutional Court of 20 May 2009 finding that the legislation establishing the Special Court was contrary to the Constitution and the subsequent replacement of that court by a newly established Specialised Criminal Court (Špecializovaný trestný súd) (for details see Fruni v. Slovakia, no. 8014/07), the applicant’s trial was transferred to the latter court and it is still pending there. 19. On 12 December 2002, at 6 a.m., the applicant was arrested on charges which had been brought on 9 December 2002. 20. On 13 December 2002, at 7 p.m., the regional prosecutor lodged a request with the Trenčín District Court (Okresný súd) that the applicant and the other suspects be placed in detention pending trial. 21. On the evening of 13 December 2002 the applicant’s brother appointed a lawyer to represent the applicant. At 10 p.m. the Trenčín District Investigation Office, in whose custody the applicant was at that time, refused the lawyer access to the applicant. 22. On the morning of 14 December 2002 the lawyer and the applicant met for about ten minutes. 23. On 14 December 2002, at 10 a.m., the District Court opened a hearing on the prosecutor’s request. One by one, the suspects were questioned. The applicant was questioned in the presence of his lawyer. Neither of them had access to the case file. At 7 p.m. the District Court ordered the detention of the applicant and the other suspects pending trial. 24. The District Court found that there was a well-founded suspicion against the accused. The investigation was in its initial stages and there was still much evidence to be gathered. This, together with the “character and circumstances of the offence”, gave rise to fears that the suspects would collude within the meaning of Article 67 § 1 (b) of the Code of Criminal Procedure (“the CCP”). Furthermore, the information available indicated that other criminal offences had been committed in connection with the insolvency of bank A. The accused were suspected of having been involved in those offences. This prompted fears that the accused would continue criminal activities within the meaning of Article 67 § 1 (c) of the CCP. 25. On 19 December 2002 the applicant lodged an interlocutory appeal (sťažnosť) against his detention and on 30 December 2002 he adduced further grounds of appeal. He argued first of all that the Trenčín District Court had no territorial jurisdiction to decide on his detention. The court competent to do so had been the court in the judicial district where the offence had purportedly been committed. The applicant further argued that he had not had adequate time and facilities to confer with his lawyer and to prepare his defence. Both the prosecutor’s proposal and the decision on detention had been so vague that it had been impossible to mount any meaningful defence. The applicant went on to argue that the suspicion against him had been ill-founded and that there had been no admissible evidence in support of it. There had been no reasons for detaining him and the decision had lacked adequate reasoning. 26. On 16 January 2003 the Trenčín Regional Court, sitting in private (neverejné zasadnutie), dismissed the applicant’s appeal. In summary reasoning, it simply referred to and fully concurred with the District Court’s reasons for detention. The decision was served on the applicant on 3 February 2003. 27. In the meantime, the applicant’s lawyer had unsuccessfully requested access to the case file on several occasions. 28. On 7 March 2003 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He challenged the above-mentioned decisions concerning his detention and claimed a violation of a number of his procedural rights. The applicant complained that: (i) the court which had issued the detention order had had no territorial jurisdiction in the matter; (ii) he had not had adequate time and facilities to confer with his lawyer and prepare his defence; (iii) he and his lawyers had been refused access to the case file; (iv) there had been no reasonable suspicion against him and no reason for detaining him; (v) the decisions had lacked adequate reasoning; and (vi) the proceedings had been too lengthy. The applicant sought a ruling setting aside the impugned decisions, releasing him and awarding him damages. 29. On 26 March 2003 the Constitutional Court declared admissible the complaint concerning the refusal of access to the case file, and the remaining complaints inadmissible. 30. As to the inadmissible complaints, the Constitutional Court observed that the territorial jurisdiction of the Trenčín District Court had been based on Article 26 of the CCP, pursuant to which territorial jurisdiction in matters concerning the preparatory stage of proceedings was vested in the court in the judicial district in which the prosecutor acted. The offences of which the applicant was suspected and the reasons for his detention had been stated and had been adequately explained. The applicant had known as far back as December 2002 how much time he had had to consult his lawyer. His constitutional complaint alleging that the time had been insufficient had been made in March 2003 – that is to say, outside the statutory two-month time-limit. The length of the proceedings in respect of the applicant’s detention had been acceptable, given that the applicant had not fully specified his appeal until 30 December 2002. 31. On 11 March 2004 the Constitutional Court delivered a judgment (nález) on the merits of the admissible complaint. It held that the absolute refusal of access to the case file had been incompatible with Article 5 § 4 of the Convention. However, this had had no material impact on the lawfulness and constitutionality of the detention as such. That finding was therefore sufficient compensation for any non-pecuniary damage the applicant might have sustained. 32. On 19 May 2003 the applicant applied for release or, alternatively, for his detention to be replaced by a pledge under Article 73 of the CCP that he would live in accordance with the law. 33. By law the requests fell to be determined first by the regional prosecutor, who dismissed them, and, on 21 May 2003, forwarded them ex officio to the District Court for judicial determination. 34. On 22 May 2003 the District Court, sitting in a private session, rejected the request for release. “Having examined the applicant’s request and the case file”, the District Court “established that the reasons for the applicant’s detention persisted”. The offences under investigation were very serious. The investigation had been carried out on a large scale and with due diligence, and given that it was in its early stages there was a well-founded fear that the applicant would collude with the other suspects and continue criminal activities. The District Court made no formal ruling in respect of the alternative proposal to replace the applicant’s detention with a pledge of lawful conduct. It merely observed in its reasoning that such a move was not possible if a person stood accused of such offences as the applicant did. The applicant lodged an interlocutory appeal. 35. On 7 August 2003 the Trenčín Regional Court, sitting in private, dismissed the applicant’s appeal. In summary reasoning it simply referred to and fully concurred with the reasons given by the District Court. 36. On 7 October 2003 the applicant challenged the decisions of 22 May and 7 August 2003 and the proceedings leading to them by means of a constitutional complaint. He alleged a violation of several of his procedural rights. 37. As in his previous complaint, the applicant objected that: (i) the court deciding on his detention had had no territorial jurisdiction in the matter; (ii) there had been an irregularity in the assignment of his appeal for determination by a specific chamber at the Regional Court; (iii) the decision-making process had been conducted in private and the applicant had had no opportunity to state his case orally; (iv) neither he nor his lawyer had been granted access to the case file; (v) the decisions had been arbitrary, (vi) had lacked proper reasoning and (vii) had been the outcome of proceedings that had not been speedy; (viii) finally, the total duration of the applicant’s detention had been excessive and (ix) the courts had failed to take a formal decision in respect of his petition for his detention to be replaced by a pledge of lawful conduct. The applicant sought a ruling that the challenged decisions be set aside and claimed 210,000 Slovakian korunas (SKK) in damages. 38. On 26 May 2004 the applicant supplemented his constitutional complaint by arguing that his detention was unlawful on the ground that, when it had begun, he had not been brought before a judge within the period of twenty-four hours required by Article 8 § 3 of the Charter of Fundamental Rights and Freedoms (Constitutional Law no. 23/1991 Coll.) (Listina základných práv a slobôd – “the Charter”). It was true that the time-limit for bringing an arrested person before a judge under Article 17 § 3 of the Constitution (Constitutional Law no. 460/1992 Coll.), as amended with effect from 1 July 2001 (Constitutional Law no. 90/2001 Coll.), was forty-eight hours. However, neither the Constitution nor any other legislation had repealed the Charter expressly and implicit repeal was not permissible. The Charter guaranteed him a broader extent of legal protection and had to be applied in his case. 39. On 16 December 2004 the Constitutional Court declared admissible the complaints listed under (ii), (iv) and (vi) - (ix) above. The remaining complaints were declared inadmissible for the following reasons. 40. The issue of the territorial jurisdiction of the Trenčín District Court had already been examined and determined in the Constitutional Court’s decision of 26 March 2003 (see paragraphs 29 and 30 above). The applicant had had ample opportunity to present his case in writing and with the assistance of a lawyer, and had in fact done so at length. The lack of an oral hearing therefore raised no issue under Article 5 § 4 of the Convention. The applicant’s continued detention was, as such, justified and lawful. As to the discrepancy between the time-limits for bringing an arrested person before a judge under the Charter (twenty-four hours) and the Constitution (forty-eight hours), the Constitutional Court held that, pursuant to Article 152 § 4 of the Constitution, the constitutional provision prevailed. 41. On 26 October 2005 the Constitutional Court delivered a judgment on the merits of the admissible complaints. The Constitutional Court found that there had been a violation of the applicant’s right under Article 5 § 3 of the Convention to a trial within a reasonable time or release pending trial, in that the courts had failed to take a formal decision on his request for his detention to be replaced by a pledge of lawful conduct. The Constitutional Court also found that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, in that: the applicant’s appeal had been determined by the wrong chamber of the Regional Court; the applicant had been refused access to the case file; and the proceedings had not been speedy. The applicant was awarded SKK 80,000 by way of compensation for non-pecuniary damage, and had his legal costs reimbursed. 42. The complaint that the impugned decisions lacked proper reasoning was dismissed as unfounded. 43. On 26 May 2003 the regional prosecutor requested that the Trenčín District Court authorise an extension of the detention of the applicant and all his co-defendants until 30 November 2003. Neither the applicant nor his lawyer was informed of the request. 44. On 2 June 2003, in a private session, the District Court acceded to the prosecutor’s request. Neither the applicant nor his lawyer was informed of the session. 45. “Having examined the prosecutor’s request and the case file”, the District Court “established that the request was well founded”. Although the investigation had been carried out with due diligence, it had not been possible to complete it within the period of six months which had elapsed from the start of the applicant’s detention. The reasons for keeping the defendants in detention, as established at the time of the detention order, still persisted. Their release might render the investigation and the whole proceedings difficult or even impossible. No appeal lay against the decision. 46. On 5 June 2003 the applicant’s lawyer phoned the Regional Prosecutor’s Office and was informed that, on 26 May 2003, the regional prosecutor had requested an extension of the applicant’s detention. On the same day the lawyer requested in writing that the District Court provide him with a copy of the request. 47. Copies of the decision of 2 June 2003 and of the prosecutor’s request were served on the applicant’s lawyer on 27 June 2003. 48. On 4 August 2003 the applicant challenged the decision of 2 June 2003 by means of a constitutional complaint. He argued in the main (i) that the court deciding on the extension of his detention had had no territorial jurisdiction in the matter; (ii) that the prosecutor’s request had not been made available to him in good time; (iii) that he had consequently had no opportunity to comment on it and to state his case orally (the decision had been made in private); and (iv) that the decision had been arbitrary and unjustified. 49. On 4 October 2003 the applicant supplemented his complaint by submitting substantially the same arguments as in his submission of 26 May 2004 (see paragraph 38 above). 50. On 30 June 2004 the Constitutional Court declared admissible the complaint that the extension of the applicant’s detention had been arbitrary and unjustified and declared the remaining complaints inadmissible. The decision was served on the applicant on 2 August 2004. 51. As to the inadmissible complaints, the Constitutional Court observed that the issue of territorial jurisdiction of the Trenčín District Court had already been examined and determined in the Constitutional Court’s decision of 26 March 2003 (see paragraphs 29 and 30 above). Under applicable law, there had been no legal duty to communicate a copy of the prosecutor’s request for extension of detention to the person concerned. The applicant’s lawyer ought to have known that, pursuant to Article 71 § 4 of the CCP, a request for an extension of a person’s detention had to be submitted to the competent court no later than ten days before the expiry of their detention. In the present case the deadline had been 2 June 2003. However, the applicant’s lawyer had not contacted the prosecution service until 5 June 2003 and his failure to do so at an earlier date could not be imputed to the authorities. The fact that the decision had been made in a private session was irrelevant because the prosecution service had also not been able to take part in that session. As to the discrepancy between the time-limits for bringing an arrested person before a judge under the Charter and the Constitution, the court found that it had had no relevance to the decision in question and, moreover, had been raised as an issue outside the statutory two-month timelimit. 52. On 11 January 2005 the Constitutional Court found that there had been a violation of the applicant’s rights under Article 5 §§ 3 and 4 of the Convention, in that the decision of 2 June 2003 had lacked adequate reasoning. The decision in question had contained a detailed description of the charges, the nature of which had themselves constituted a part of the reason for the applicant’s detention. However, the charges had concerned a group of suspects and it had not been clear from the charges which reasons for detention pertained to which suspects. Although such reasoning had been sufficient to detain the applicant in the initial stage of the proceedings, it had not been sufficiently detailed six months into the proceedings. The Constitutional Court remarked that this conclusion had no impact on whether the applicant’s detention after 2 June 2003 had or had not been justified in substance. It quashed the decision of 2 June 2003 and awarded the applicant SKK 20,000 in compensation for non-pecuniary damage. It also reimbursed his legal costs. As the applicant had been released in the meantime, there was no question of ordering the District Court to determine the matter anew. 53. On 27 August 2003 the applicant applied for release or, alternatively, for his detention to be replaced by a pledge of lawful conduct. He argued that most of the relevant evidence had already been taken and examined and that it had shown that he was innocent and that there were no reasons for detaining him. 54. The regional prosecutor dismissed the applicant’s requests and, on 12 September 2003, forwarded them to the District Court for judicial determination. 55. The applicant challenged the handling of the proceedings by the regional prosecutor – in particular, the length of such examination – by means of a constitutional complaint (for the outcome see paragraphs 60 and 62 below). 56. On 9 October 2003, in a private session, the District Court rejected the application for release. “Having examined the applicant’s request and the relevant files”, the District Court “established that the reasons for the applicant’s detention persisted”. It held specifically that there were a number of pieces of evidence which had been secured in the preparatory stage of the proceedings and which still had to be examined by the court. The way in which the suspected offence had supposedly been committed had prompted fears that the applicant would tamper with that evidence. 57. The District Court again made no ruling in respect of the alternative proposal to replace the applicant’s detention with a pledge of lawful conduct, observing that such a replacement could only be considered in connection with detention to prevent escape (Article 67 § 1 (c) of the CCP), which was not applicable to the applicant’s case. The applicant appealed. 58. On 29 October 2003, in a private session, the Trenčín Regional Court upheld the above-mentioned decision rejecting the applicant’s request for release. At the same time, it ruled that his detention was no longer justified by fears that he would continue criminal activities but merely by the fear that he would collude with other defendants. That concern stemmed from the “manner in which the offence had been committed and covered up and from the status of the accused”. The decision was served on the applicant on 11 November 2003. 59. On 11 January 2004 the applicant lodged another constitutional complaint, directed in the main against the actions and decisions of the District Court and the Regional Court. He again argued that the courts deciding on his detention had had no territorial jurisdiction in the matter. Furthermore, he complained that the assignment of his request for release to a District Court judge had not followed the procedure prescribed by law. In particular, the request had not been treated as an independent matter, which should have been randomly assigned to a judge through electronic means, but rather had been assigned to a specific judge who had been administratively designated by the President of the District Court to deal with all matters concerning the applicant. Moreover, the courts had not held a hearing and had thus deprived the applicant of the chance to plead his case. The decisions had been arbitrary and had lacked proper reasoning. The length of his detention had been excessive. 60. On 25 November 2004, by way of two separate decisions, the Constitutional Court declared admissible the complaint against the Trenčín Regional Prosecutor and inadmissible the complaint against the District Court and the Regional Court. The latter decision was served on the applicant on 24 January 2005. 61. As to the inadmissible complaint, the Constitutional Court observed that under the applicable procedural rules, the decision of the Regional Court of 29 October 2003 had become final and binding on that day. Notwithstanding that the decision had not been served until 11 November 2003, the relevant date for commencement of the statutory two-month period for lodging a constitutional complaint had been 29 October 2003. The complaint against the District Court and the Regional Court had been submitted on 11 January 2004, and had therefore been out of time. 62. On 25 May 2005 the Constitutional Court found that the Trenčín Regional Prosecutor had violated the applicant’s right under Article 5 § 4 of the Convention to a speedy decision concerning his detention, in that it had taken sixteen days for the prosecutor to take a decision in relation to the applicant’s requests of 27 August 2003 and to forward them to the District Court. The Constitutional Court took into account the fact that the proceedings concerning those requests had lasted a total of seventy-six days before the final decision was served. It granted the applicant reimbursement of his legal costs but no compensation in respect of non-pecuniary damage. The Constitutional Court held that it was not appropriate to order the prosecution service to compensate the applicant for any non-pecuniary damage, as the prosecution service’s share of responsibility for the overall duration of those proceedings was minor compared to that of the ordinary courts. 63. On 11 November 2003 the regional prosecutor requested that the Trenčín District Court authorise an extension of the detention of the applicant and all his co-defendants until 30 May 2004. No copy of the request was served on the applicant or his lawyer. 64. The applicant’s lawyer obtained a copy of the prosecutor’s request on his own initiative and, on 20 November 2003, the applicant filed his observations in reply. On the same day, in a separate submission, the applicant challenged the District Court for bias. The applicant complained, inter alia, that the prosecutor’s request had not been lawfully and randomly assigned to a judge through electronic means but rather had been assigned administratively by the President of the District Court to another judge following the departure of the judge electronically assigned from that court. 65. On 21 November 2003, in a private session, the District Court dismissed the challenge of bias and authorised an extension of the detention of all the defendants until 29 February 2004. It held that there were still a number of pieces of evidence to be examined by the court and that, if released, the applicant would pose a risk of interfering with such evidence. However, the time frame demanded by the prosecution was excessive and an extension until 29 February 2004 had to suffice. 66. The decision of 21 November 2003 stated that no appeal lay against it. The applicant nevertheless appealed and his appeal was dismissed by the Regional Court on 9 January 2004. That decision was served on him on 29 January 2004. The Regional Court acknowledged, inter alia, that assignment of cases to judges at District Courts was in principle to be carried out randomly through electronic means. In the applicant’s case, the judge electronically assigned had been appointed to the Regional Court. It had consequently been the responsibility of the President of the District Court to reassign the applicant’s case to another judge, which she had lawfully done. 67. On 22 March 2004 the applicant lodged a constitutional complaint, to which he added further grounds of complaint on 20 April and 28 May 2004. He argued: (i) that the twenty-four-hour period under the Charter for bringing him before a judge had not been observed; (ii) that the court deciding on the extension of his detention had had no territorial jurisdiction in the matter; (iii) that it had not been impartial; (iv) that the prosecutor’s request of 11 November 2003 had not been served on him and that he had been obliged to procure a copy of it himself; (v) that there had been no public hearing of his case and that he had been unable to plead his case; (vi) that the extension of his detention had been arbitrary and (vii) had lacked proper reasoning; (viii) that the proceedings in respect of his detention had not been speedy; and (ix) that the total duration of his detention had been excessive. The applicant claimed SKK 410,000 in compensation for nonpecuniary damage. 68. On 25 August 2004 the Constitutional Court declared admissible the complaints listed under (iv), (v), (vii); (viii) and (ix) above. The remaining complaints were declared inadmissible. 69. As to the inadmissible complaints, the Constitutional Court observed that the applicant had learned in November 2003 that the extension of his detention would be determined by the District Court. He had raised his complaint in that respect before the Constitutional Court in March 2004 – that is to say, outside the statutory twomonth time-limit. The complaint concerning delays in dealing with the prosecutor’s request before the District Court had also been submitted out of time. The proceedings before the District Court had ended with its decision of 21 November 2003, which the applicant had learned of no later than 1 December 2003 – that is, more than two months before he had lodged his complaint. The scope of the Constitutional Court’s review of the factual and legal conclusions of the ordinary courts was limited to constitutionally relevant errors, and the decisions concerning the impartiality of the District Court judges and the extension of the applicant’s detention fell outside the scope of that review. 70. On 26 January 2005 the Constitutional Court found that the fact that the prosecutor’s request of 11 November 2003 had not been served on the applicant had violated his rights under Article 5 § 4 of the Convention. The Constitutional Court allowed a small part of the applicant’s claim for reimbursement of his legal costs and dismissed his claim for compensation in respect of non-pecuniary damage. The Constitutional Court considered that such an award was not appropriate because the ordinary courts had conducted the proceedings in accordance with the existing statutory rules. 71. The remaining admissible complaints were also dismissed. The Constitutional Court found the reasons which had been given by the courts for extending the detention to be adequate and that the extended detention had been justified. The length of the proceedings concerning the extension of the applicant’s detention had been acceptable, in particular, in view of the factual and legal complexity of the case. 72. On 21 November 2003 the applicant applied for release and, alternatively, for his detention to be replaced by a pledge of lawful conduct. 73. On 24 November 2003 the Regional Prosecutor rejected the applicant’s requests and forwarded them, with a comment, to the Trenčín District Court for judicial determination. It was later established that, in his comment, the prosecutor opposed the applicant’s request “with reference to [his] arguments in the [second] request for extension of the applicant’s detention”. The comment had not been made available to the applicant. 74. On 4 December 2003 the applicant challenged the District Court for lack of territorial jurisdiction in the matter and the District Court judges involved in his case for bias. 75. On 9 December 2003 and 9 January 2004 respectively, the District Court and, on appeal, the Regional Court, dismissed the request for release. Both decisions were made in private, the latter being served on the applicant on 29 January 2004. The courts made no separate ruling concerning the applicant’s alternative request, merely observing in their reasoning that, in the circumstances, the request was not legally permissible. The courts concluded that the territorial jurisdiction of the District Court to deal with the case had been based on Article 26 § 1 of the CCP, and observed that the applicant’s challenge on the ground of bias had already been examined and dismissed in connection with the second extension of his detention (see paragraph 65 above). The courts held that the available evidence had borne out the suspicion against the applicant. The manner in which the offence had been committed and covered up, combined with the fact that some additional evidence still had to be examined by the trial court, gave rise to a fear that the applicant would collude with other defendants. His continued detention was therefore justified. 76. On 22 March 2004 the applicant lodged a constitutional complaint, which he fully specified on 26 May 2004. He contended: (i) that his detention had been illegal ab initio, in that the time-limit of twenty-four hours for bringing him before a judge under the Charter had not been complied with; (ii) that the courts deciding on his detention had had no territorial jurisdiction in the matter and had been biased; (iii) that the observations by the prosecution service in reply to his request for release had not been communicated to him; (iv) that the courts had held no hearing in relation to his application and that he had not been heard in person; (v) that the courts had failed to take a decision in relation to his alternative proposal and that his continued detention was unjustified; (vi) that the courts’ decisions had lacked adequate reasoning; and (vii) that the proceedings had not been speedy. 77. On 9 June 2004 the Constitutional Court declared admissible the complaints under points (iii) – (vii). The remaining complaints were declared inadmissible. 78. As to the inadmissible complaints, the Constitutional Court observed that the applicant had learned in December 2003 that the extension of his detention would be determined by the District Court. He had raised his complaint before the Constitutional Court in March 2004 – that is, outside the statutory two-month time-limit. The complaint concerning delays in dealing with the prosecutor’s request before the District Court had also been submitted out of time. The proceedings before the District Court had ended with its decision on 9 December 2003, which the applicant had learned of no later than 16 December 2003 – that is, more than two months before he had lodged the constitutional complaint. In any event, the complaints concerning the territorial jurisdiction and impartiality of the courts had been repetitive of earlier complaints and had warranted no fresh examination. Lastly, as to the twenty-four-hour time-limit under the Charter, the Constitutional Court observed that the Constitution took precedence over all other legislation and that the time-limit of forty-eight hours under the Constitution had been observed. 79. On 8 October 2004 the Constitutional Court found that the courts’ failure to take a decision in relation to the applicant’s alternative proposal to replace his detention by a pledge of lawful conduct had violated his rights under Article 5 § 3 of the Convention. Furthermore, the Constitutional Court found that the courts’ failure to ensure that a copy of the prosecutor’s comment in reply to the applicant’s requests of 21 November 2003 had been served on the applicant had violated his rights under Article 5 § 4 of the Convention. The applicant was granted a small part of his claim for reimbursement of his legal costs, but no compensation in respect of nonpecuniary damage. The Constitutional Court considered that such an award was not appropriate because, inter alia, the ordinary courts had conducted the proceedings in accordance with the applicable statutory rules. 80. The remaining admissible complaints were dismissed. The applicant had had, and in fact had made full use of, the chance to present his case in writing and with legal assistance. In the light of this fact, the lack of a hearing had entailed no substantial ramifications for his rights. The suspicion against the applicant and the danger of collusion had been established; the investigation was ongoing and expeditious; the applicant’s continued detention had been justified. As to the length of the proceedings concerning the applicant’s request for release, in line with its decision on the admissibility of the present complaint, the Constitutional Court reviewed only that part of the proceedings which had taken place before the Regional Court. It found no lack of speed in relation to their determination. 81. On 21 August 2004 the applicant lodged a constitutional complaint alleging that the monitoring of his telephone calls had been unlawful, arbitrary and unjustified. He relied, inter alia, on Article 8 of the Convention. 82. On 16 March 2005 the Constitutional Court declared the complaint inadmissible for non-exhaustion of ordinary remedies. It came to the conclusion that the applicant was entitled to raise an objection against the evidence obtained from the monitoring in the course of the ongoing criminal proceedings against him. If the applicant did so, the courts would have to examine whether that evidence had been obtained lawfully. The ordinary courts’ power of review excluded a review by the Constitutional Court. The Constitutional Court further concluded that the applicant could seek redress under civil law. 83. On 12 January 2006 the applicant lodged a request under section 9 of the State Liability Act 1969 with the Ministry of Justice for payment of SKK 1,358,907.80 by way of compensation in respect of unlawful detention. He relied on the Constitutional Court’s judgment of 11 January 2005 (see paragraph 52 above). 84. As the Ministry had failed to respond, on 11 July 2006 the applicant lodged the claim with the Trenčín District Court. 85. In observations of 18 May 2007 the Ministry submitted that, under section 5(1) of the Act, any compensation for wrongful detention only came into question where the prosecution had been dropped or the person concerned had been acquitted, none of which was the case as regards the applicant. As the charges against the applicant had not been dropped, neither could he be compensated under section 4(1) of the Act for wrongful prosecution. 86. On 9 November 2007 the action was stayed pending the outcome of the applicant’s criminal trial. 87. The relevant provisions and judicial practice are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (nos. 20271/06 and 17517/07, §§ 31 to 33, 40 and 47, 23 November 2010); Gál v. Slovakia (no. 45426/06, §§ 19 to 22 and 27, 30 November 2010); Michalko v. Slovakia (no. 35377/05, §§ 39 to 41, 65 and 77, 21 December 2010). 88. The relevant provisions are summarised in the Court’s judgments in the cases of Štetiar and Šutek v. Slovakia (cited above, §§ 34 to 37); Gál v. Slovakia (cited above, §§ 23 to 26); Michalko v. Slovakia (cited above, §§ 42 to 45). 89. The relevant provisions are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 44 to 46); Gál v. Slovakia (cited above, §§ 28 to 30); Michalko v. Slovakia (cited above, §§ 70 to 75). 90. The applicable rules are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 48 to 51); Gál v. Slovakia (cited above, §§ 31 to 34); Michalko v. Slovakia (cited above, §§ 78 to 81). 91. The relevant provisions and judicial practice are summarised in the Court’s judgment in the case of Štetiar and Šutek v. Slovakia (cited above, §§ 38, 39 and 41 to 43); Michalko v. Slovakia (cited above, §§ 46, 47 and 66 to 69). 92. By its judgment of 31 May 2007 in an appeal on points of law (no. 4 Cdo 177/2005) concerning an action for damages under the State Liability Act 1969, the Supreme Court upheld the view that neither that Act nor an action for protection of personal integrity provided a legal basis for awarding compensation in respect of non-pecuniary damage caused by unlawful detention. The State Liability Act 1969 was, however, to be interpreted in line with Article 5 § 5 of the Convention which presupposed compensation for nonpecuniary damage and which, pursuant to Article 154c § 1 of the Constitution, prevailed over the statutory text. 93. The relevant statutory provisions and further judicial practice are summarised in Michalko v. Slovakia (cited above, §§ 48 to 64); Osváthová v. Slovakia (no. 15684/05, §§ 37 to 46, 21 December 2010); Pavletić v. Slovakia (no. 39359/98, §§ 50 to 52, 22 June 2004) and Havala v. Slovakia ((dec.), no. 47804/99, 13 September 2001). 94. The relevant statutory provisions and judicial practice are summarised in Furdík v. Slovakia ((dec.), no. 42994/05, 2 December 2008), Kontrová v. Slovakia (no. 7510/04, §§ 33 to 35, ECHR 2007VI (extracts)), Nešťák v. Slovakia (no. 65559/01, §§ 48-52, 27 February 2007), Pavlík v. Slovakia (no. 74827/01, §§ 62 to 66, 30 January 2007), Kvasnica v. Slovakia ((dec.) no. 72094/01, 26 September 2006), Babylonová v. Slovakia (no. 69146/01, § 21, ECHR 2006VIII), Kontrová v. Slovakia (cited above (dec.), 13 June 2006) and Varga v. Slovakia ((dec.), no. 47811/99, 22 June 2004). 95. The Constitutional Court has dealt with monitoring of telephone communications in cases nos. IV. ÚS 76/05, I. ÚS 274/05, I. ÚS 117/07, III. ÚS 80/08, IV. ÚS 121/09, II. ÚS 280/09 and III. ÚS 180/2010. 96. The Constitutional Court declared inadmissible cases no. IV. ÚS 76/05 (on 16 March 2005), no. IV. ÚS 121/09 (on 9 April 2009), no. II. ÚS 280/09 (on 10 September 2009) and no. III. ÚS 180/2010 (on 4 May 2010) because the complainants had had, but had not used, the chance to challenge in their criminal trials evidence obtained by monitoring telephone communications and/or because the complaints were manifestly ill-founded. In none of those cases did the Constitutional Court require the complainants to seek protection of their rights and interests by way of an action for protection of personal integrity for the purposes of exhaustion of ordinary remedies under section 53(3) of the Constitutional Court Act. 97. In cases nos. I. ÚS 274/05 (on 14 July 2006), I. ÚS 117/07 (on 4 February 2009), and III. ÚS 80/08 (on 27 May 2008), the Constitutional Court found a violation of the complainants’ rights and freedoms under the Constitution and the Convention on account of monitoring their telephone communications and awarded them compensation in respect of nonpecuniary damage. In none of those cases is there any indication that the complainants had sought protection of their rights and interests by way of an action for protection of personal integrity, nor that the Constitutional Court had required them to do so for the purposes of exhaustion of ordinary remedies under section 53(3) of the Constitutional Court Act. 98. In the judgments mentioned in the preceding paragraph, the Constitutional Court held that a judicial warrant for monitoring telephone communications was not subject to appeal. It was not reviewable by the ordinary courts, upon which the warrant was binding. The individuals concerned nevertheless had to have a remedy against the warrant – both in relation to the evidence obtained by the monitoring and the fact of the monitoring itself. However, the individuals concerned could not seek a court order in respect of the fact of the monitoring itself before the ordinary courts, be they criminal or civil, in the context of protection of personal integrity. | 1 |
train | 001-23123 | ENG | SVK | ADMISSIBILITY | 2,003 | JURIK v. SLOVAKIA | 4 | Inadmissible | Matti Pellonpää | The applicant, Mr Tibor Jurík, is a Slovakian national, who was born in 1966 and lives in Bánov. 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 25 August 1999 the Nitra Regional Court convicted the applicant of extortion. The applicant appealed. The Supreme Court scheduled a hearing for 25 November 1999. On the latter date the case was adjourned due to the absence of the applicant’s lawyer. After the decision to adjourn the case had been announced, the presiding judge imposed a procedural fine of 10,000 Slovakian korunas (SKK) on the applicant pursuant to Article 66 (1) of the Code of Criminal Procedure. The decision with reasons was served on the applicant at a later date. It stated that, despite previous warnings, he had unduly interrupted the presiding judge, had disrespected the latter’s instructions and that he had disturbed the conduct of the hearing. Under Article 66 (1), a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine amounting up to SKK 50,000. Pursuant to Article 66 (4), the decision on such a procedural fine may be challenged by a complaint which has suspensive effect. Under Article 169b, a person who seriously and repeatedly disturbs a court hearing or who repeatedly behaves in an offensive manner or disparages the court shall be punished by a prison sentence of up to two years or by a fine. Article 53 (1) provides that a court may impose a fine between SKK 5,000 and 5,000,000 in cases when the perpetrator obtained material benefit from a premeditated offence. Pursuant to Article 53 (2) (a) courts may otherwise impose a fine when such a punishment is foreseen in the special provisions of the Criminal Code. | 0 |
train | 001-61029 | ENG | ITA | CHAMBER | 2,003 | CASE OF CLUCHER v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicants were born in 1954, 1956 and 1952 respectively and live in Rome. 9. The applicants are the owners of a flat in Rome, which they had let to G.D. 10. In a writ served on the tenant on 19 May 1984, the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate. 11. By a decision of 15 October 1984, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by 31 May 1987. 12. On 17 June 1987, the applicants served notice on the tenant requiring her to vacate the premises. 13. On 30 July 1987, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 14 September 1987. 14. Between 14 September 1987 and 29 February 2000, the bailiff made thirty attempts to recover possession. 15. Each attempt proved unsuccessful as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicants were not entitled to police assistance in enforcing the order for possession. 16. On 3 July 2000, the applicants recovered possession of their flat. 17. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
train | 001-113937 | ENG | HUN | CHAMBER | 2,012 | CASE OF HENDRIN ALI SAID AND ARAS ALI SAID v. HUNGARY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion) | András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque | 6. The applicants, brothers, were born in 1992 and 1989 respectively. When introducing the application, they were staying at the Debrecen Reception Centre for Refugees, located in Hungary. 7. On 1 September 2010 the applicants were transferred from the Netherlands to Hungary under the Dublin II procedure. They were handed over to the Budapest Regional Directorate of the Office of Immigration and Nationality (“OIN”), the competent alien policing authority, and interviewed with the assistance of a Kurdish-Hungarian interpreter on the same day. 8. The applicants related that they had left Iraq illegally in early August 2009, travelled through Syria and Turkey and intended to reach the Netherlands. They had arrived in Hungary, also illegally, later in August 2009 and had immediately been intercepted by the police. They had applied for asylum on 1 September 2009. On 7 September 2009 the asylum procedure had however been terminated because they had absconded. They had travelled illegally, apparently assisted by traffickers, to the Netherlands, where they had joined their father and applied for asylum. The Netherlands had started the Dublin II procedure and Hungary had agreed to their readmission. On 1 September 2010 they had been transferred to Hungary under this scheme. 9. They alleged that they had been persecuted in Iraq because of their father’s former service in Saddam Hussein’s army and their Kurdish ethnicity. They also claimed that they had no family members living in Iraq. 10. After the interview, the alien policing authority ordered the applicants’ expulsion to Iraq, also imposing a five-year entry ban. According to the decision, the expulsion was necessary because they did not fulfil the requirements of legal residence in Hungary. The authority then requested OIN’s asylum directorate to assess whether the principle of “non-refoulement” was applicable. It replied in the negative. 11. In the expulsion decision it was mentioned that the applicants’ illegal entry and lack of residence permits constituted a threat to public order. Considering their age and family status, their expulsion would have no negative effect, since they had no connection to Hungary, did not speak Hungarian and had no skills and therefore their livelihood was not secured and the chances of finding employment were low. It was also established that they did not have Hungarian or EU national family members living in Hungary, and although their relatives lived in the Netherlands, they also had some in Iraq, so their social reintegration on return was possible. The applicants were entered into OIN’s asylum registry, but the ongoing asylum procedure was not referred to when the reasons for expulsion were addressed. OIN concluded that the enforcement of immigration rules had priority over the personal and family interests of the applicants, and that expulsion was a necessary and proportionate measure. 12. Simultaneously, the execution of the expulsion was suspended by the OIN’s alien policing authority because the means and conditions necessary for its enforcement were not secured, namely the applicants did not have any travel documents or tickets. 13. The alien policing authority ordered at the same time the applicants’ alien policing detention for 72 hours, purportedly in order to secure their expulsion. The detention was based on section 54(1)(b) of the Third Country Nationals Act (see below), according to which the immigration authority shall have the power to detain the person in question in order to secure the expulsion if “he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion”. However, no facts or personal circumstances were presented justifying such a conclusion. The applicants were committed to the Nyírbátor alien policing facility. 14. The asylum authority formally registered the applicants’ asylum claim only on 2 September 2010, despite the fact that they had been asylum seekers from their very arrival in Hungary, in that they had been transferred under the Dublin procedure from the Netherlands; they had explicitly mentioned at the interview with the alien policing authorities on 1 September 2010 that they had left Iraq because they had been persecuted and that they had already applied for asylum when they had first entered Hungary in September 2009. 15. A preliminary interview was conducted, and on 14 September 2010 the asylum applications were admitted to the in-merit procedure. Despite this fact, the applicants remained in alien policing detention although asylum seekers were entitled to accommodation in an open refugee reception centre. According to section 55(3) of the Asylum Act (see below), once the asylum application is admitted to the in-merit procedure, the alien policing authority shall, at the initiative of OIN’s asylum authority, terminate the asylum seeker’s detention. However, such an initiative was not taken. 16. On 3 September 2010 the Nyírbátor District Court prolonged the detention until the execution of expulsion was secured or 30 September 2010. Although the initial detention had been based (see above) on section 54(1) of the Third Country Nationals Act, the court found that it had been lawfully ordered under section 55 of the Act (see below) and that its prolongation was necessary. It held that sections 55, 54(1)(b) and 54(3) of that Act were applicable in the case. In the reasoning, reference was made to the fact that the applicants had arrived in Hungary illegally and applied for asylum in 2009 then again in September 2010, as well as to the contents of the expulsion order. No particulars relating to the ongoing asylum procedure were mentioned. 17. The detention was prolonged on 24 September, 26 October, 26 November and finally on 17 December 2010, until 28 January 2011. On each occasion, the District Court limited the reasoning to stating that the initial reasons for the detention given in the first court decision were still in place. 18. On an unspecified date, the applicants were transferred to the Debrecen Reception Centre for Refugees, an open facility. “(2) Any third country national whose application for refugee status is pending may be turned back or expelled only if his or her application has been refused by a final and enforceable decision of the refugee authority.” “(1) In order to secure the expulsion of a third-country national, the immigration authority is entitled to detain a person if: ... b) he/she has refused to leave the country, or, based on other substantiated reasons, is allegedly delaying or preventing the enforcement of expulsion; ... (3) Detention under the immigration laws may be ordered for a maximum duration of 72 hours and extended by the court of jurisdiction by reference to the place of detention until the third-country national’s departure, or for a maximum of 30 days. (4) Detention ordered under the immigration laws shall be terminated immediately: a) if the conditions for carrying out expulsion are secured; b) if it becomes evident that expulsion cannot be executed; or c) after six months from the date when the detention was ordered.” “(1) The immigration authority may order the detention of a third-country national prior to expulsion in order to secure the conclusion of the immigration proceedings pending, if his/her identity or the legal grounds of his/her residence has not been conclusively established.” “(1) Where the Dublin Regulations cannot be applied, the decision to determine as to whether an application is considered inadmissible lies with the refugee authority. (2) An application shall be considered inadmissible if: a) the applicant is a national of any Member State of the European Union; b) the applicant was granted refugee status in another Member State; c) the applicant was granted refugee status in a third country, where this protection also applies at the time of examination of the application, and the country in question is liable to re-admit the applicant; d) the applicant has lodged an identical application after a final refusal.” “(1) If the refugee authority finds an application admissible, it shall proceed to the substantive examination of the application ... (3) If the refugee authority proceeds to the substantive examination of the application and the applicant is detained by order of the immigration authority, the immigration authority shall release the applicant at the initiative of the refugee authority.” “(1) In the order admitting the request to the in-merit phase, the refugee authority shall assign the asylum seeker – upon the latter’s request – to a private accommodation or, in the absence of such, to a dedicated facility or another accommodation, unless the asylum seeker is subjected to a ... measure restraining personal liberty. ... (2) During the in-merit examination and the eventual judicial review of the decision adopted therein, the asylum seeker is obliged to stay at the designated accommodation. (3) The in-merit procedure shall be completed within two months from the adoption of the decision ordering it.” “If the foreign national expresses his/her intention to file an application for recognition as a refugee during the alien policing procedure ... his/her statement shall be recorded by the proceeding authority, which shall then inform without delay the refugee authority and the reception centre responsible for accommodating those being in the preliminary asylum procedure, forwarding the minutes and the fingerprint recording sheet at the same time.” | 1 |
train | 001-84066 | ENG | HUN | ADMISSIBILITY | 2,007 | SZEMELY ES VAGYONOROK FUGGETLEN SZAKSZERVEZETI SZOVETSEGE v. HUNGARY | 4 | Inadmissible | null | The first applicant, Személy- és Vagyonőrök Független Szakszervezeti Szövetsége, is an unregistered trade union. The second applicant, Mr Sándor Csánics, is a Hungarian national, who was born on 20 February 1955 and lives in Érd. He is the president of the trade union. The applicants were represented before the Court by Mr I. Barbalics, a lawyer practising in Nagyatád. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ previous application (no. 70563/01) was declared inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention, on 19 November 2002. After having pursued a petition for review before the Supreme Court, the applicants renewed their complaints. On 13 February 2007 the Second Section of the European Court of Human Rights declared the application partly inadmissible. On 13 February 1998 Mr Csánics and nineteen other individuals founded the applicant trade union. On 20 February 1998 Mr Csánics requested its registration. He submitted the articles of association, a list of the officers and other relevant documents. On 27 February 1998 the Pest County Regional Court ordered the applicants to amend the articles of association and to submit further information. On 21 April 1998 the trade union modified its articles of association and submitted the new version to the Regional Court. In the ensuing non-contentious (nemperes) proceedings, on 24 April 1998 the Regional Court held deliberations in camera and decided to refuse to register the trade union, since the applicants had failed to submit all the information required and therefore their request had not met the legal requirements. The Regional Court relied on the documents submitted by the applicants. On 10 June 1998 the applicants retained Mr M.R., a lawyer, to represent them before the Supreme Court. His power of attorney was attached to the case file. This mandate has never been withdrawn. On the applicants’ appeal – which did not contain any argument concerning the Regional Court’s in camera deliberations – the Supreme Court, acting as a second-instance court, upheld the first-instance decision on 24 May 2000. The applicants lodged a petition for review with the Supreme Court. On 27 October 2000 the applicants retained another lawyer, Ms E.D. to represent them before the review bench of the Supreme Court. Her power of attorney mandate was also attached to the case file. On 14 December 2000 the Supreme Court ordered the applicants to amend the petition. On 30 January 2001 the review bench of the Supreme Court upheld the second-instance decision. This decision was served on Mr M.R. on 14 March 2001. The Government submitted the acknowledgement of receipt which had been stamped at the despatching Post Office on 12 March 2001 and the handwritten note, indicating that it contained a copy of this decision, showing its receipt two days later by the addressee. It appears that Mr M.R. did not inform the applicants of the decision. The decision of the review bench of the Supreme Court was handed over to the applicants, upon their request, on 9 February 2004. “... (2) If authorisations have been given to more than one person, the party may be represented by any of them; however, only one representative may proceed in each act of the lawsuit; a contrary stipulation is invalid...” “(1) An authorisation may concern the entirety of the lawsuit or certain individual acts in the procedure. (2) An authorisation which concerns the entirety of the proceedings entitles the representative to make any and all declarations and acts concerning the case ...” (4) The restriction of an authorisation is valid only if this is evident from the mandate itself.” “The termination of the authorisation flowing from withdrawal, repudiation or the death of the party shall have effect for the court from the date of its reporting, and it shall effect for the opponent from the date of its disclosure to him. “If the party authorised a representative to carry on the lawsuit, the judicial documents shall be served on him instead of the party...” | 0 |
train | 001-114099 | ENG | MDA | CHAMBER | 2,012 | CASE OF GHIMP AND OTHERS v. THE REPUBLIC OF MOLDOVA | 3 | 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);Pecuniary and non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 6. The applicants were born in 1977, 1969, 1961 and 1959 respectively and live in Budesti and Chişinău. 7. The present case concerns the circumstances surrounding the death of Leonid Ghimp, who was the first applicant’s husband, the second and the third applicants’ sibling and the fourth applicant’s brother-in-law. 8. Leonid Ghimp, who was thirty-five years old at the time of the events in question and the father of two children aged six and ten years old, worked as a truck driver. On Saturday 10 December 2005 at approximately eight o’clock in the morning he went to work in order to load his truck and prepare it for the following Monday. According to witnesses, he finished work at approximately 2 p.m. After that and before going home, he spent time enjoying drinks with his co-workers, first at their workplace and later in two bars. At approximately 10.00 p.m. he left the bar and took a taxi. He subsequently had a dispute with the taxi driver because the driver had allegedly not taken him to the agreed destination. Because he refused to pay the fare, the taxi driver drove him to Ciocana police station. According to witnesses from the police station, the taxi driver left after a short time and after being paid by Leonid Ghimp. The report of the latter’s arrest, however, stated that he had been found drunk and sleeping at a bus station. There was no mention of the incident with the taxi driver in the report. 9. According to the applicants, at the police station, Leonid Ghimp was beaten up by three police officers: A.P., S.C. and I.B, and was left lying in the corridor on a dirty concrete floor. He was released the next morning at approximately 11 a.m. 10. According to the accused police officers, Leonid Ghimp was not beaten up at the police station and was told that he was free to go shortly after being brought in. However, being severely intoxicated he refused to leave and preferred to sleep on the floor until the next morning. 11. After being released at approximately 11 a.m. the next day, Leonid Ghimp went home. According to his wife and a person who had seen him walking home, he was pale and walking very slowly. He told his wife that he had stomach ache and spent all day in bed. Only later during the evening, after the pain had intensified, did he tell his wife about the beating at the police station. He told her that the pain had started after a blow to his stomach which had caused him to feel a sharp pain and lose his breath. Later during the night Leonid Ghimp started vomiting and his wife called an ambulance, which took him to a hospital. On 12 December 2005 at 6.35 a.m. Leonid Ghimp died in hospital. 12. On an unspecified date the first applicant informed the Prosecutor’s Office of Leonid Ghimp’s account of his beating at Ciocana police station. On 5 January 2006 criminal proceedings were initiated by the Ciocana Prosecutor’s Office. 13. An autopsy report dated 23 January 2006 stated that his death had resulted from diffuse purulent peritonitis after a perforated ulcer of the small intestine. The perforated ulcer had developed after a blow with a blunt object with a small impact area, possibly on the night of 10 December 2005. 14. In another forensic report dated 31 May 2006, a panel of forensic doctors composed of doctors G.M., N.S. and I.C., after examining the victim’s medical documents and his exhumed corpse, came to a similar conclusion, namely that he had died as a result of a rupture of the small intestine resulting in intestinal contents flowing into the abdominal cavity and causing bacterial contamination of the abdominal cavity – in other words, purulent inflammation of the peritoneum. According to the doctors, the injury causing his death had resulted from a blow from a blunt object with a small surface area to Leonid Ghimp’s stomach, possibly on the evening of 10 December 2005. The doctors did not find any traces of alcohol in his blood and concluded that he had been sober at the time of his death. They also concluded that there was a chance that his life could have been saved had he gone to a hospital within the first few hours after being injured. 15. During the criminal investigation, the prosecutor in charge of the case questioned numerous witnesses, including police officers from Ciocana police station. The three police officers suspected of ill-treating Leonid Ghimp denied that he had been treated violently and unanimously maintained that he had been found drunk and sleeping at a bus stop and brought to the police station. They also stated that after questioning him, Leonid Ghimp had refused to go home because it was late and he had no money and preferred to sleep on the floor of the police station. All the police officers submitted that Leonid Ghimp had been intoxicated but that he had not presented any signs of violence or injuries. 16. Two other police officers from Ciocana police station, who were not suspects, submitted that the victim had come to the police station together with a taxi driver, whom he had been refusing to pay for a fare. After several minutes the taxi driver had been paid by Leonid Ghimp and had left the premises of the police station. The police officers also denied having witnessed acts of violence against Leonid Ghimp and also stated that he had preferred to sleep on the floor in the corridor of the police station rather than go home. 17. A witness, O.O., who had been brought to the police station on the same evening (10 December 2005), stated that she had had an argument with her family and had been taken to Ciocana police station from her home. At the police station she had been in the same room as a man who had had an argument with a taxi driver. She had understood that from the discussion which that man had had with three police officers. Because he had continued to refuse to pay the taxi driver, the police officers had beaten him up in front of her. She had seen the police officers punching the man until he had collapsed to the floor. Then one of the police officers had grabbed the man by his coat, dragged him into the corridor and left him lying on the concrete floor. She had later been released after being forced to sign a document stating that she was being fined for appearing drunk in public. As in Leonid Ghimp’s case, the report of her arrest stated that she had been arrested on the street. 18. The prosecutor also questioned the people with whom Leonid Ghimp had spent the day on 10 December 2005. All of them stated that he had appeared to be in good health and had not shown any signs of illness throughout the entire day. The prosecutor’s attempt to find the taxi driver who had brought Leonid Ghimp to the police station was not successful. 19. On 6 July 2006 one of the accused police officers, A.P., changed his initial statement. He admitted to having lied in his previous statement and admitted that Leonid Ghimp had been brought to the police station by a taxi driver. He submitted that another co-accused, police officer I.B., had punched the victim several times in the stomach area. Then I.B. had taken money from the pocket of Leonid Ghimp’s trousers and had paid the taxi driver. After that, he had punched Leonid Ghimp several more times. A.P. also stated that the beating had taken place in his presence and that of two other people, a police officer and a person who had been brought to the police station that evening and had been in the same room. A.P. stated that he had decided to change his initial statement because he had felt remorseful and sorry for Leonid Ghimp’s children and wife. His statement was given in the presence of a lawyer between 10.17 p.m. and 11 p.m. and was videotaped. At the time of his questioning he was not detained in custody. 20. During further questioning of the other two police officers suspected of ill-treating Leonid Ghimp, they also admitted that he had been brought by a taxi driver to the police station – not found sleeping at a bus stop as had been mentioned in the report of his arrest and as initially stated by them. They continued, however, to deny having ill-treated him. 21. The prosecutor also examined the room where questioning usually took place in the Ciocana police station and in which the victim had allegedly been beaten up, and discovered numerous blood stains on the walls and furniture. 22. During the subsequent court proceedings, suspect A.P. changed his statement again and submitted that nobody had ill-treated Leonid Ghimp on the evening of 10 December 2005. When asked why he had admitted on 6 July 2006 to one of the co-accused having ill-treated Leonid Ghimp in his presence, he replied that he could not remember having made such a statement because he had been very tired and hungry on that day, as he had been on duty the previous night and had worked around the clock. He remembered, however, that the prosecutor had threatened him and had used a swear word in doing so and that he had not been assisted by a lawyer of his choice. He also argued that at the time of questioning he had not realised the questioning was being filmed. 23. On 9 July 2007 the Ciocana District Court found police officers A.P., S.C. and I.B. guilty of acts of violence against Leonid Ghimp causing his death. They were also found guilty of making false statements in the report of Leonid Ghimp’s arrest and in the report of witness O.O.’s arrest and were each sentenced to eight years’ imprisonment. The court also ordered them to pay compensation to the first applicant in respect of non-pecuniary damage in the amount of 300,000 lei (MDL) and ruled that the rest of the claims made by her be examined in separate civil proceedings. 24. The police officers appealed against conviction. During the appeal proceedings, one of the officers, I.B., presented a new version of events, namely that Leonid Ghimp had fallen down in the police station and that a table had fallen on top of him. On 7 November 2007 the Chişinău Court of Appeal partially allowed the officers’ appeals and reduced I.B.’s sentence to six years’ imprisonment and that of A.P. and S.C. to five years each. 25. On 11 March 2008 the Supreme Court of Justice allowed an appeal on points of law brought by the officers and, after concluding that the case had not been thoroughly examined, quashed the judgment of the Court of Appeal and ordered a re-examination of the proceedings by the same court. 26. On 6 June 2008 the Chişinău Court of Appeal acquitted the police officers of all charges. A.P.’s statement of 6 July 2006 was excluded on the grounds that it had been obtained in breach of the provisions of the Code of Criminal Procedure, namely that it had been obtained late in the evening when A.P. had been very tired and in the absence of a lawyer of his choice. In excluding A.P.’s statement the court relied on the statement of a psychologist, who submitted that in cases of extreme tiredness a person may be prone to making false self-incriminating statements. As to the statement of O.O., the court considered it unreliable because she had reason to resent the police officers who had arrested her on 10 December 2005. Moreover, some of the assertions she had made in her statement were considered to be contradictory. As to the findings of the panel of forensic doctors, the court held that they were refuted by the statements of one of the experts who had signed the report dated 31 May 2006, I.C. That expert had been invited to testify by one of the accused police officers. He had changed his opinion and had stated that Leonid Ghimp’s injuries could have been caused between 6.35 a.m. on 9 December and 6.35 a.m. on 10 December 2005 that is prior to his detention. In accepting I.C.’s new opinion, the court did not explain why it preferred it over the conclusion of the panel of forensic doctors or what had made I.C. change his opinion after two years had passed. In so far as the charges of making false statements in the arrest reports were concerned, the court found that the accused had indeed made false statements; however, as there was no personal gain involved, they were acquitted. 27. On 27 January 2009 a panel of the Supreme Court of Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office and by the first applicant. The Prosecutor’s Office challenged this judgment with an extraordinary appeal. 28. On 1 March 2010 the Plenary Supreme Court of Justice accepted the extraordinary appeal and quashed both the judgment of the Court of Appeal and that of the Supreme Court of 27 January 2009. The Supreme Court found, inter alia, that the findings of the first panel of forensic doctors could not be rebutted by the opinion of a single doctor and that only the opinion of another panel of doctors could be acceptable. A fresh re-examination of the appeal against the judgment of 9 July 2007 was ordered. 29. During the proceedings, the Court of Appeal ordered a repeated forensic examination in respect of the circumstances of Leonid Ghimp’s death by a panel of doctors from the National Institute of Forensic Medicine. In the meantime, I.C., the expert who had testified during the previous proceedings before the Court of Appeal (see paragraph 26 above), had become the chief doctor of the National Institute of Forensic Medicine. 30. In an expert report dated 1 November 2010, a panel of doctors reached, on the basis of medical documents, a conclusion identical to that expressed by I.C. during the previous proceedings before the Court of Appeal (see paragraph 26 above), namely that the victim’s injury had been caused between 6.35 a.m. on 9 December and 6.35 a.m. on 10 December 2005. According to the report, the rupture of his intestine had initially been incomplete and only on 12 December 2005 had it become complete, causing Leonid Ghimp’s death. 31. On 28 February 2011 the Chişinău Court of Appeal upheld the appeals lodged by the officers, reversed the judgment of the Ciocana Disctrict Court of 9 July 2007 and acquitted the officers of all the charges against them. In so doing, the Court of Appeal attributed substantial weight to the new forensic report of 1 November 2010. 32. On 29 May 2012 the Supreme Court of Justice dismissed an appeal on points of law lodged by the Prosecutor’s Office. 33. The Police Act of 18 December 1990 states: “Police officers are only entitled to use force and special fighting techniques for the purpose of ending criminal activities and for neutralising resistance to lawful demands in cases in which non-violent methods are not sufficient to discharge their obligations.” | 1 |
train | 001-94593 | ENG | SVN | ADMISSIBILITY | 2,009 | SELIC v. SLOVENIA | 4 | Inadmissible | Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | The applicant, Mr Franc Selič, is a Slovenian national who was born in 1937 and lives in Laško. He was not represented before the Court. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 June 1991, in the context of a real estate dispute, the applicant brought an action before the Celje Basic Court (Temeljno sodišče v Celju) against J.L. On 26 May 2000 the renamed Celje District Court (Okrožno sodišče v Celju) delivered a judgment rejecting the applicant’s claim. The applicant appealed against this judgment. On 4 October 2001 the Celje Higher Court (Višje sodišče v Celju) dismissed his appeal. On 20 December 2001 the applicant lodged an appeal on points of law. On 15 January 2003 the appeal on points of law was partly dismissed on procedural grounds and partly rejected by the Supreme Court (Vrhovno sodišče). The applicant subsequently lodged a constitutional appeal which was dismissed by the Constitutional Court (Ustavno sodišče) on 20 September 2004. The Constitutional Court’s decision was served on the applicant on 1 October 2004. | 0 |
train | 001-88314 | ENG | GBR | ADMISSIBILITY | 2,008 | DEAN v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Melvyn Dean, is a British national who was born in 1949 and lives in Stoke on Trent. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 23 October 1998. On 20 February 2000, the applicant made a claim for widows’ benefits namely Widow’s Payment and Widow’s Pension. Subsequently the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 17 December 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law. The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007. | 0 |
train | 001-58262 | ENG | HUN | GRANDCHAMBER | 1,999 | CASE OF REKVÉNYI v. HUNGARY | 1 | No violation of Art. 10;No violation of Art. 11;No violation of Art. 14+10;No violation of Art. 14+11 | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 7. At the material time, the applicant was a police officer and the Secretary General of the Police Independent Trade Union. 8. On 24 December 1993 Law no. 107 of 1993 on certain amendments to the Constitution (az Alkotmány módosításáról szóló 1993. évi CVII. törvény) was published in the Hungarian Official Gazette. This Law amended, inter alia, Article 40/B § 4 of the Constitution to the effect that, as from 1 January 1994, members of the armed forces, the police and security services were prohibited from joining any political party and from engaging in any political activity (see paragraph 13 below for the text of the Article). 9. In a circular letter dated 28 January 1994, the Head of the National Police requested, in view of the forthcoming parliamentary elections, that police officers refrain from political activities. He referred to Article 40/B § 4 of the Constitution as amended by Law no. 107 of 1993. He indicated that those who wished to pursue political activities would have to leave the police. 10. In a second circular letter dated 16 February 1994, the Head of the National Police declared that no exemption could be given from the prohibition contained in Article 40/B § 4 of the Constitution. 11. On 9 March 1994 the Police Independent Trade Union filed a constitutional complaint with the Constitutional Court claiming that Article 40/B § 4 of the Constitution, as amended by Law no. 107 of 1993, infringed constitutional rights of career members of the police, was contrary to the generally recognised rules of international law and had been adopted by Parliament unconstitutionally. 12. On 11 April 1994 the Constitutional Court dismissed the constitutional complaint, holding that it had no competence to annul a provision of the Constitution itself. 13. The relevant Articles of the Constitution of the Republic of Hungary (Law no. 20 of 1949, as amended on several occasions) provide: “Career members of the armed forces, the police and the civil national security services shall not join any political party and shall not engage in any political activity.” “A fegyveres erők, a rendőrség és a polgári nemzetbiztonsági szolgálatok hivatásos állományú tagjai nem lehetnek tagjai pártnak és politikai tevékenységet nem folytathatnak.” “In the Republic of Hungary everyone shall have the right to freedom of expression and to receive and impart information of public interest.” “A Magyar Köztársaságban mindenkinek joga van a szabad véleménynyilvánításra, továbbá arra, hogy a közérdekű adatokat megismerje, illetőleg terjessze.” “… [T]he Government shall ensure that the provisions of the Constitution of the Republic of Hungary are implemented.” “A Magyar Köztársaság alkotmánya … végrehajtásáról a Kormány gondoskodik.” “The Government shall submit to Parliament such bills as are necessary to implement the Constitution.” “A Kormány köteles az alkotmány végrehajtásához szükséges törvényjavaslatokat az Országgyűlés elé terjeszteni.” 14. Law no. 17 of 1989 on referenda, as in force at the material time, provided: “No signatures may be collected … from persons serving in the armed forces or armed bodies on station or while such persons are discharging their duties …” “Nem gyűjthető aláírás … fegyveres erőknél és fegyveres testületeknél szolgálati viszonyban levő személyektől, a szolgálati helyen vagy szolgálati feladat teljesítése közben …” “Citizens eligible to vote or stand in elections … shall have the right to participate in referenda …” “A népszavazásban … való részvételre választójoggal rendelkező állampolgárok … jogosultak.” 15. Law no. 34 of 1989 (as amended on several occasions) on parliamentary elections, as in force at the material time, provided: “In the Republic of Hungary every Hungarian citizen … who has attained his [or her] majority (hereinafter: “constituent”) shall have the right to vote in parliamentary elections.” “A Magyar Köztársaságban az országgyűlési képviselők választásán választójoga van … minden nagykorú magyar állampolgárnak (a továbbiakban: választópolgár).” “Everyone who is entitled to vote and has a permanent residence in Hungary shall be entitled to stand for election.” “Mindenki választható, aki választójoggal rendelkezik és állandó lakóhelye Magyarországon van.” “Constituents … of each individual constituency shall be entitled to nominate candidates [in relation to that constituency] …” “Az egyéni választókerületben a választópolgárok … jelölhetnek.…” “Constituents shall be entitled to collect nomination coupons, expound election programmes, promote candidates and organise election campaign meetings …” “Bármely választópolgár gyűjthet jelöltet ajánló szelvényeket, ismertethet választási programot, népszerűsíthet jelöltet, szervezhet választási gyűlést …” “Nomination coupons may not be collected … from persons serving in the armed forces or armed bodies … on station or while such persons are discharging their duties …” “Nem gyűjthető jelöltet ajánló szelvény … a fegyveres erőknél, a rendőrségnél … szolgálati viszonyban lévő személytől, a szolgálati helyen vagy szolgálati feladat teljesítése közben …” 16. Law no. 55 of 1990 on the legal status of members of Parliament, as in force at the material time, provided: “Employers of employees who are candidates in parliamentary elections … shall grant them unpaid leave on request from the moment of their registration as candidates until the end of the elections or, where they are elected, until they take up their seat.” “Az országgyűlési képviselő … jelöltet jelöltségének nyilvántartásba vételétől a választásának befejezéséig, illetve megválasztása esetén a mandátuma igazolásáig a munkáltató – kérésére – köteles fizetés nélküli szabadságban részesíteni.” “Paragraph 1 … [of Section 1] shall apply as appropriate to candidates … serving … in the … police …” “A … rendőrségnél … szolgálati viszonyban … álló képviselőjelöltre az [1.§] (1) … bekezdés rendelkezéseit kell megfelelően alkalmazni.” “A member of Parliament … shall put an end to any situation incompatible with his office within a period of thirty days from the moment he takes up his seat …” “A képviselő a mandátuma érvényességének megállapításától … számított harminc napon belül köteles a vele szemben fennálló összeférhetetlenségi okot megszüntetni …” 17. Law no. 64 of 1990 on the election of members of local authorities and mayors, as in force at the material time, provided: “Constituents shall be entitled to expound election programmes, canvass on behalf of candidates or organise election campaign meetings … from the thirty-fifth day prior to the date of the elections.” “Bármely választópolgár – a szavazást megelőző 35. naptól – ismertethet választási programot, népszerűsíthet jelöltet, szervezhet választási gyűlést …” “A constituent who exercises his right to vote in an individual constituency shall be entitled to nominate candidates [in relation to that constituency] …” “Jelöltet ajánlhat az a választópolgár, aki a választókerületben választójogát gyakorolhatja …” 18. Law no. 34 of 1994 on the police (“the 1994 Police Act”), which entered into force on 1 October 1994, provides: “The police shall discharge their duties in a manner free from any party influence.” “A Rendőrség a feladatának ellátása során pártbefolyástól mentesen jár el.” “If a police officer wishes to stand as a candidate in elections to Parliament, to a local authority or to the office of mayor, he shall in advance notify the head of the police department [concerned] of his intention to do so. In such cases his service shall be suspended from the sixtieth day preceding the elections until the day on which the results of the elections are published.” “Ha a rendőr országgyűlési vagy helyi önkormányzati képviselői, illetőleg polgármesteri választáson jelöltként indul, köteles e szándékát a rendőri szerv vezetőjének előzetesen bejelenteni. A választás napját megelőző 60. naptól kezdődően a választás eredményének közzétételéig a szolgálati jogviszonya szünetel.” “Police officers shall have the right to join professional or other organisations which are aimed at protecting or representing their interests and are related to their professional duties, and to hold office therein; they shall not suffer any disadvantage in their careers on account of their membership and activity. Police officers shall inform the head of the police department [concerned] of their existing or intended membership of organisations unrelated to their professional duties. The head of the police department [concerned] may prohibit the police officer in question from becoming or remaining a member of such organisation if it is incompatible with the profession or duties of a police officer, or if it interferes with or endangers the interests of the force. Such a prohibition shall take the form of a decision. An appeal against such a decision lies to the head of the superior police authority. The decision of the superior authority on the appeal may be challenged in the courts.” “A rendőr a hivatásával összefüggő szakmai, érdekvédelmi, érdekképviseleti szervezetnek tagja lehet, abban tisztséget vállalhat, e tagsági viszonya és tevékenysége miatt szolgálati jogviszonya körében hátrányt nem szenvedhet. A rendőr köteles a hivatásával össze nem függő társadalmi szervezettel fennálló, illetőleg az újonnan létesülő tagsági viszonyt előzetesen a rendőri szerv vezetőjéhez bejelenteni. A rendőri szerv vezetője a tagsági viszony fenntartását vagy létesítését megtilthatja, ha az a rendőri hivatással vagy szolgálati beosztással nem egyeztethető össze, illetőleg a szolgálat érdekeit sérti vagy veszélyezteti. E döntést határozatba kell foglalni. A határozat ellen a felettes szerv vezetőjénél panasszal lehet élni. A felettes szervnek a panasz kivizsgálása eredményeként hozott határozata a bíróság előtt megtámadható.” 19. Decree no. 1/1990 of 10 January 1990 of the Minister of the Interior (“the 1990 Regulations”), which laid down service regulations for the police, was in force until 30 March 1995 and provided: “… No party political activity may be carried out on police premises; no questions related to party politics shall be discussed during staff meetings.” “… A rendőrségen pártpolitikai tevékenység nem folytatható, munkahelyi értekezleteken pártpolitikai kérdések nem tárgyalhatók.” “With the exception of political parties, police officers shall … be entitled to form and maintain social organisations [társadalmi szervezet] (trade unions, mass movements, organisations protecting their interests, associations, etc.) provided that their aims are not contrary to the legal provisions and rules regulating police service.” “Rendőrök önmagukból – párt kivételével – … a szolgálati viszonyra vonatkozó jogszabályokkal, rendelkezésekkel nem ellentétes célú társadalmi szervezetet létrehozhatnak és működtethetnek (szakszervezet, tömegmozgalom, érdekképviseleti szervezet, egyesület stb.).” “Police officers shall be entitled to join any social organisation [társadalmi szervezet], including a political party, which has been lawfully founded and registered by a court. Police officers shall not enjoy any advantage or suffer any detriment in their career on account of their membership of an organisation or their party affiliation.” “A rendőr bármely törvényesen megalakult, illetve bíróság által nyilvántartásba vett társadalmi szervezetnek – beleértve a politikai pártot is – tagja lehet. Szervezeti hovatartozása, pártállása miatt szolgálati viszonya keretében semmiféle előnyben vagy hátrányban nem részesíthető.” “Party badges and symbols shall not be displayed on police premises. While on duty, police officers shall refrain from wearing badges showing their political preference.” “A rendőrség hivatali helyiségeiben, körleteiben pártok jelvényei, jelképei nem helyezhetők el. A rendőr szolgálatban politikai hovatartozására utaló jelvényt nem viselhet.” “Police officers shall not engage in activities as experts or advisers in relation to questions of police service upon request from political parties unless authorised to do so by the Minister of the Interior.” “A rendőr pártok részére a rendőri szolgálattal összefüggő kérdésekben szakértői, szaktanácsadó feladatokat csak a belügyminiszter engedélyével végezhet.” “On police premises the exercise of the right to freedom of assembly is subject to the approval of the common superior of all the organisers [of any assembly].” “A rendőrség objektumaiban a gyülekezési jog csak a szervezők közös elöljáróinak engedélyével gyakorolható.” “Police officers shall have the right to participate in lawfully organised … gatherings (such as peaceful assemblies, processions and demonstrations) in their leisure time. On such occasions they shall refrain from wearing uniform unless the aim of the gathering is the representation or protection of interests related to [police] service. They shall refrain from carrying their service gun or other firearms lawfully in their possession. Where the gathering is ordered to be dissolved, they shall immediately leave.” “A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen (békés összejövetelen, felvonuláson, tüntetésen). Ilyen esetben egyenruhát csak akkor viselhet, ha a rendezvény célja a szolgálati viszonnyal összefüggő érdekek képviselete, védelme. Szolgálati vagy más jogszerűen tartott lőfegyverét nem tarthatja magánál. Ha a rendezvény feloszlatására kerül sor, köteles a helyszínt azonnal önként elhagyni.” “Police officers shall … be entitled to make statements upon request from the press or radio or television stations on questions related to road safety, public safety or certain offences provided that, [in so doing,] they maintain the confidentiality of service secrets, observe the principle of the presumption of innocence, respect personality rights [személyiséghez fűződő jogok] and do not prejudice the examination and investigation of cases …” “A rendőr, a sajtó, a rádió és a televízió megkeresése alapján a közlekedés-, a közbiztonság kérdéseiről, egyes bűncselekményekről, a szolgálati titok megőrzésével, az ügyek vizsgálatának és felderítésének veszélyeztetése nélkül, valamint az ártatlanság vélelmének figyelembe vételével és a személyiséghez fűződő jogok tiszteletben tartásával … nyilatkozhat …” “… [Police officers] shall be entitled to give lectures on – or to participate in radio or television programmes concerning – politics, science, literature or sport without prior authorisation but on condition that no reference is made to their police service.” “… [A rendőr] politikai, tudományos, szépirodalmi és sport témájú előadásokat, szereplést (a rádióban és a televízióban is) engedély nélkül vállalhat rendőri állására való utalás nélkül.” “Police officers shall have the right to make statements and publish articles in Ministry of the Interior publications without permission, while observing the rules on service and official secrets.” “A Belügyminisztérium lapjaiban a szolgálati- és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat.” “Police officers shall not be entitled to publish textbooks and documentary literature related to police activities save with prior authorisation …” “A rendőri vonatkozású kérdéseket tárgyaló szak- és tényirodalmi művet a rendőr csak előzetes engedéllyel jelentetheti meg …” “Police officers shall be entitled to publish works of fiction … and works on science, politics or sport … that are unrelated to police activities without permission but on condition that no reference is made to their police service.” “A rendőr – a rendőri állásra való utalás nélkül – szabadon közölheti, illetve kiadhatja a nem rendőri vonatkozású szépirodalmi …, tudományos, politikai kérdéseket tárgyaló, sporttal foglalkozó műveit …” 20. Decree no. 3/1995 of 1 March 1995 of the Minister of the Interior (“the 1995 Regulations”), which was adopted under the 1994 Police Act in order to implement its provisions and which laid down service regulations for the police, entered into force on 31 March 1995. It provides: “Police officers, in their capacity as representatives of the police or experts, shall not give statements to the press or participate in radio or television programmes or in films, unless permitted to do so by the Head of the National Police or one of his deputies. No permission is needed for giving scientific or cultural lectures or for other public appearances of a similar nature (including participation in radio or television programmes) if no reference is made to police service.” “A rendőr a rendőrség képviselőjeként, szakértőjeként a sajtóban, a rádió és televízió műsoraiban, filmekben csak az országos rendőrfőkapitány, illetve helyettesei előzetes hozzájárulásával szerepelhet. A rendőri állásra utalás nélkül tartott tudományos, kulturális előadások megtartásához, ilyen irányú egyéb közszerepléshez beleértve a rádióban és televízióban történő szereplést is) engedély nem kell.” “Police officers shall have the right to make statements and publish articles in police publications without permission, while observing the rules on service and official secrets.” “A rendőrség lapjaiban a szolgálati és az államtitokra vonatkozó szabályok betartásával a rendőr engedély nélkül nyilatkozhat és publikálhat.” “Members of the police force, in their capacity as police officers, shall not make public appearances unless authorised to do so by the head of the police department. On such occasions police officers shall refrain from making political statements and shall evince a neutral attitude towards any social organisation [társadalmi szervezetek].” “Nyilvános szerepléshez (ha az rendőrként történik) engedélyt kell kérni a rendőrfőkapitánytól. A rendőr ilyen közéleti szereplése során tartózkodjék a politikai nyilatkozatoktól, magatartása a társadalmi szervezeteket illetően semleges legyen.” “Police officers shall have the right to participate in lawfully organised … gatherings in their leisure time. On such occasions they shall refrain from wearing uniform and carrying their service gun or other firearms lawfully in their possession. Where the gathering is ordered to be dissolved, they shall immediately leave .” “A rendőr szabad idejében részt vehet a … jogszerűen tartott rendezvényen. Ilyen esetben egyenruhát nem viselhet. Szolgálati vagy más jogszerűen tartott lőfegyverét nem tarthatja magánál. Ha a rendezvény feloszlatására kerül sor, köteles a helyszínt azonnal önként elhagyni.” | 0 |
train | 001-68562 | ENG | RUS | CHAMBER | 2,005 | CASE OF GOROKHOV AND RUSYAYEV v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 6. The applicants were born in 1952 and 1961 respectively and both live in Moscow. 7. The applicants took part in the liquidation of the consequences of the nuclear accident at the Chernobyl nuclear plant. They were recognised as handicapped, becoming entitled to a special disability pension. 8. In 2000 the applicants brought a civil action against the social security authorities, claiming that the amounts of their disability pensions had not been properly calculated. They maintained that the social security authorities should have increased their pensions in line with the increase of the minimal wage in Russia, but failed to do so. 9. On 29 January 2001 the Nikulinskiy District Court of Moscow satisfied their claims awarding the first applicant 11,568.98 Russian roubles (RUR), and the second applicant RUR 14,862.5. The arrears awarded to the applicants by the District Court constituted more than 58 per cent of the amounts received by the applicants from the social security authorities within the contested period. On 18 April 2001 this decision was upheld by the Moscow City Court. 10. Later this year the applicants brought a new action claiming the outstanding amounts of the disability pensions due to them for the period starting from January 2001. They also claimed penalties for the delayed payment of their pensions during this period. 11. On 21 June 2001 the Nikulinskiy District Court awarded the first applicant RUR 10,351 and the second applicant RUR 13,274 as the outstanding amount of their pensions for the period January – June 2001. The sums awarded by the District Court as arrears constituted approximately 50 per cent of the amount paid to the applicants by the social security authorities during this period. Both applicants were also entitled to penalties, to be recovered from the social security authorities. The penalties were calculated on the basis of the amounts due to the applicants for the period between January and June 2001. On 28 November 2001 this decision was upheld in the main by the Moscow City Court, which only reduced the amount of penalties to RUR 1,000 for each applicant. 12. On an unspecified date between May and September 2001 the applicants obtained writs of execution in respect of the first judgments of the Nikulinskiy District Court of January 2001. In December 2001 the applicants obtained execution writs in respect of the decisions rendered by the District Court in June 2001. These execution writs were forwarded to the bailiffs. However, for a certain period of time the judgments of the Nikulinskiy District Court remained unexecuted. 13. In December 2001 the Ministry of Justice of the Russian Federation, which was in charge of the bailiffs, informed the applicants that the execution of the above judgments was conditional upon the availability of budgetary funds allocated for these purposes by the federal legislature and could not be carried out through the bailiffs. The applicants were advised to send their writs of execution directly to the Ministry of Finance, a State body in charge of distributing budgetary funds. 14. However, as follows from the letter of 5 March 2002, the Ministry of Finance was no longer responsible for distributing the pension funds. Consequently, in 2002 the execution writs were forwarded to the Ministry of Labour and Social Security. 15. In April 2002 the bailiffs discontinued the enforcement proceedings. The applicants challenged the discontinuation, and on 1 November 2002 the Nikulinskiy District Court of Moscow ordered the resumption the enforcement proceedings. 16. On 1 November 2002 the above judgments were enforced. The authorities paid RUR 22,919.32 to Gorokhov and RUR 29,136.40 to Rusyayev. On 5 November 2002 the money were received by the applicants. On 20 February 2004 the authorities offered the applicants additional compensation on certain conditions. However, the applicants rejected this offer. 17. The Russian Law on Enforcement Proceedings (no. 119-FZ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1). Pursuant to this Law, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility. 18. Article 1064 § 1 of the Civil Code of the Russian Federation provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. 19. Under Article 1069 of the Civil Code a State agency or a State official shall be liable to a citizen for damage caused by their unlawful actions or failures to act. Such damage is to be compensated at the expense of the federal or regional treasury. | 1 |
train | 001-103785 | ENG | ALB | CHAMBER | 2,011 | CASE OF DELVINA v. ALBANIA | 4 | Violation of Art. 6-1;Violation of Art. 13+6-1;Violation of P1-1 | Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano | 6. The applicants were born in 1932, 1934 and 1942, respectively, and live in Albania. 7. In 1950 a plot of land measuring 1,600 sq. m., which belonged to the applicants' father, was confiscated without compensation by the State, which subsequently constructed a building on the plot of land. 8. On 1 July 1991 the Italian Embassy in Albania purchased two buildings in Tirana, one of which was situated on the applicants' inherited plot of land. The transaction was concluded through an inter-State agreement validated by means of note verbale exchanges between the two governments. The relevant property titles were not entered in the Tirana Property Register. 9. The Albanian Government subsequently used the income from the transaction to purchase the premises of the Albanian Embassy in Rome (see also Vrioni and Others v. Albania and Italy, nos. 35720/04 and 42832/06, §§ 7-16, 29 September 2009 for a similar description of facts). 10. Under the Property Restitution and Compensation Act, the applicants lodged an application with the Tirana Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) claiming title to their father's property. 11. On 28 July 1999 the Commission recognised the applicants' father's property title over 1,600 sq. m. and acknowledged the fact that the plot of land was occupied by the Italian Embassy in Albania. Since buildings had been constructed on the land, the Commission ruled that their owner, the Italian Government, had to pay rent for the land or repurchase the land by agreement. 12. The applicants were also issued with a certificate of registration of property by the Registry Office: registration no. 137, dated 9 August 1999. 13. The applicants claimed that they sent letters to the Italian Embassy to enter into a lease or to sell the plot of land according to the Commission's decision. However, the Italian Embassy explained that the property had been transferred to them through the exchange of notes verbales in 1991. 14. The applicants filed an action on 16 January 2003 to recover the property and to obtain damages from the Italian authorities. 15. On 22 June 2004 the Tirana District Court quashed the Commission's decision as regards the physical return of the property to the applicants, since that plot of land had been lawfully occupied by the Italian Embassy since 1991. Instead, it ruled that the applicants should be compensated for 1,600 sq. m in one of the ways provided for by law. The Court of Appeal and the Supreme Court, by way of reasoned decisions, upheld the District Court's decision on 25 March 2005 and 6 June 2006, respectively. On 24 November 2006 the applicants lodged a constitutional complaint with the Constitutional Court. 16. On 8 December 2006 the Constitutional Court, sitting as a bench of three judges, declared the application inadmissible. 17. The relevant provisions of the Albanian Constitution read as follows: Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 18. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007. 19. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows: 20. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015. 21. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices. 22. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007. 23. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification. 24. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation. 25. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act's entry into force, the Government had to approve the list of properties to be allocated to the IkCF. 26. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices. 27. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate's Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure. 28. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision. 29. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015. 30. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF. 31. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties' which had not been the subject of a Commission decision. 32. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices' decisions. 33. According to section 5, the claimant or the State Advocate's Office had the right to appeal against the central Agency's decision within thirty days of its notification to the Tirana District Court. 34. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011. 35. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices. 36. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF. 37. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions, between 2005 and 2009, in respect of the award of financial compensation to former owners. 38. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission's decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency's decision, were eligible to apply for financial compensation. 39. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency's decision that recognised his right to compensation. Only those former owners who had not received previous compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991). 40. Applications would be examined in chronological order on the basis of the Commission's / regional Agency's decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m. 41. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee. 42. None of those decisions provided for the award of compensation to holders claims arising out of a final, enforceable court decision. 43. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country. 44. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. According to that decision, the reference price per square metre for the area in which the applicants' property was located was valued at ALL 180,000. 45. The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties covered by the IkCF. 46. By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties covered by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity. 47. The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal. 48. To date, it would appear that no such list has yet been approved. | 1 |
train | 001-77490 | ENG | POL | CHAMBER | 2,006 | CASE OF CZERWINSKI v. POLAND | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Nicolas Bratza | 4. The applicant was born in 1937 and lives in Brześć Kujawski, Poland. 5. On 29 January 1985 the applicant initiated before the Włocławek District Court (Sąd Rejonowy) civil proceeding concerning the division of his late parents’ estate. The estate consisted of two plots of land, 16 hectares in area, and one house. 6. Subsequently, the court held hearings and ordered expert opinions. 7. In 1993 the court held hearings in June and November. Subsequently, the court ordered expert opinions and in September 1994 it stayed the proceedings. Upon the applicant’s appeal the proceedings were resumed on 5 June 1995. The next hearing was held in July 1996 but subsequent hearings were held at more regular intervals. 8. Between September 1997 and March 1999 no hearings were held. During this period, the court ordered an expert opinion which was submitted in April 1998. A hearing scheduled for January 1999 was cancelled and took place in March 1999. Subsequently, the court ordered another expert opinion to be prepared and held the next hearing on 25 April 2000. 9. At least on two occasions, in 1996 and 2000, the presiding judge changed and the proceedings had to start from the beginning. 10. On 4 May 2000 the Włocławek District Court gave judgment. The court divided up the estate in question. 11. A party to the proceedings lodged an appeal against the judgment. 12. On 13 February 2001 the Włocławek Regional Court (Sąd Okręgowy) dismissed the appeal. 13. 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 performance of the duties entrusted to him.” 14. 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 three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.” 15. 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 more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§1223, ECHR 2005.... | 1 |
train | 001-22214 | ENG | ITA | ADMISSIBILITY | 2,002 | GAUDIO v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Leonardo Gaudio, is an Italian national, who was born in 1951 and lives in Bari. He is represented before the Court by Mr A. Amenduni, a lawyer practising in Bari. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is the manager of the Italian monthly newspaper Il Gazzettino di Adelfia. In December 1990 an article was published about Mr F.B., who was the mayor of Adelfia until August 1988. It was entitled “Mayor [F.]B. seeks reimbursement on the basis of false invoices” (“Il Sindaco [F.]B. chiede rimborsi con fatture false”). In the article the applicant expressed himself as follows: “The Adelfia Council settled some entertainment expenses incurred on 4 September of the same year [1988] by the then mayor, the socialist F.B., on the occasion of the passing through Adelfia of the long-distance runner L. M. Two invoices do not correspond to the day of the celebration. (...) The first invoice is dated 7 August 1988. (...) If the celebration was held on 4 September only, how is it possible that the ceremony had taken place some months in advance and on different days?” “Il Comune di Adelfia liquidava alcune spese di rappresentanza sostenute il 4 Settembre dello stesso anno [1988] dall’allora Sindaco, il socialista F.B., in occasione del passaggio da Adelfia del podista L.M. Due fatture non trovano alcun riscontro con il giorno in cui si e’ svolta la manifestazione (...) La prima fattura porta la data del 7 Agosto 1988 (...) Se la manifestazione si e’ svolta nella sola giornata del 4 settembre, com’e’ possibile che i convenevoli sono stati consumati con alcuni mesi di anticipo ed in giorni differenti?”. Copies of the invoices were also published. In 1988, the Adelfia City Council had been dissolved by a judgment of the Regional Administrative Court. On 5 August 1988 a Government Commissioner had been appointed and on 8 August 1988 Mr F.B., the mayor, had handed over to him. On 24 September 1991, acting on a complaint by Mr F.B., the judge responsible for preliminary investigations committed the applicant for trial. He was accused of defamation. On 31 January 1992 the District Court found the accused guilty of defamation within the meaning of Article 595 of the Criminal Code, granting mitigating circumstances. It sentenced the applicant to a fine of 800,000 Italian lire (ITL) and ordered him to pay costs and damages to be determined in separate proceedings. The court held that the defamatory nature of the article was evidenced principally by the fact that the applicant had associated the mayor’s name with a request for reimbursement of false invoices without the necessary checks of the truth of the events. In particular, the court noted that the applicant had only verified that Mr F.B. was Adelfia’s mayor at the time of the issue of the invoices and that if he had ascertained the truth more fully, the applicant would have noticed the errors in the Government Commissioner’s deliberation of 25 November 1988. In fact, the latter had wrongly linked both the invoices of 22 June 1988 and 7 August 1988 to the passing through of the long-distance runner on 4 September 1988. In reality that event had taken place on 7 August 1988 and the invoice of 22 June 1988 had been issued for a mineral-water supply to the City Council. The court held that the defamatory nature of the article was also evidenced by the fact that the article had been published more than two years after the event. The court added that the invoices could be not considered false because they had been issued for services which had really been provided. The court concluded that the applicant was not entitled to assert the right to report current events (diritto di cronaca) and comment on them (diritto di critica) because, in the absence of the truth of the facts and of their objective reference, the article appeared to be the result of a specific intention to muckrake in respect of a particular person with a defamatory aim. The applicant appealed. Relying on the right to report current events and to comment on them, he submitted that the divulgation of the news was justified by the public interest in knowing how the Adelfia City Council was spending public money. He alleged that the article also contained a putative truth (putativamente vera) because he had examined the Government Commissioner’s deliberation and the enclosed documents. Consequently, he had acted in good faith in relation to the inexactitudes he was accused of. Evidence was heard from the applicant who declared that before publication he had telephoned the long-distance runner who told him that he had not taken part in any celebration on 7 August 1988 because he had left Adelfia the day before. In a judgment of 11 March 1996 the Court of Appeal acquitted the applicant because the facts did not amount to a crime. The court confirmed that the invoices could not be considered false because they had been issued for services which had genuinely been carried out. Nevertheless, it held that the applicant’s doubts and considerations about irregularities in the proceedings had been justified by adequate evidential support, namely the Government Commissioner’s deliberation, that is, a public document. Consequently the court held that the applicant had sufficiently ascertained the facts before publication and concluded that he had been acted in good faith about the inexactitudes he was accused of. The General Prosecutor and Mr F.B. lodged an application with the Court of Cassation. In a judgment of 10 October 1996 the Court of Cassation overturned the judgment of the Court of Appeal of 11 March 1996 and remitted the case to another division of the same court to re-examine it. The Court of Cassation held that the grounds of the Court of Appeal’s judgment of 11 March 1996 were affected by flawed logic, because it had confirmed that the invoices could not be considered false, but held that the applicant had sufficiently ascertained the facts before publication. The court alleged that the applicant, as the manager of the newspaper, could not have been unaware that on 4 September 1988, when the long-distance runner was passing through, Mr F.B. was no longer mayor, that the entertainment expenses could not be attributed to him and that the invoice expenses were genuine and not to be linked with the celebrations of 4 September 1988. In a judgment of 27 June 1997 the Court of Appeal re-examined the case, upheld the District Court’s judgment of 31 January 1992 and awarded costs against the applicant. The court held that the absence of good faith was evidenced first by the fact that the title of the article associated the mayor’s name with a request for reimbursement of false invoices; second by the fact that the applicant, as the manager of the newspaper, could not have been unaware of the political events in Adelfia and, in particular, that Mr F.B. was no longer the mayor at the time of the celebrations of 7 August 1988; and finally, by the fact that the applicant had stated that Mr F.B. had asked for reimbursements regardless of the fact that Mr F.B.’s name was written neither on the invoices nor in the Government Commissioner’s deliberation. The applicant lodged an application with the Court of Cassation. First, he stressed an error in the Court of Cassation’s judgment of 10 October 1996 in relation to the date on which the long-distance runner had been passing through (it was on 7 August 1988 and not on 4 September 1988). He also stressed an error in the Court of Appeal’s judgment of 27 June 1997 which had stated that on 7 August 1988 Mr F.B. was no longer the mayor, whereas he had given the court the documentary evidence that Mr F.B. had handed over to the Government Commissioner on 8 August 1988. In relation to the accusations of defamation, the applicant alleged that he had noticed the error in the Government Commissioner’s deliberation about the date of the long-distance runner celebrations and about the City Council session of 22 June 1988 which the supply of mineral-water was destined to, because on that date no session had taken place. The applicant also alleged that before publication he had telephoned the long-distance runner who told him that he had never taken part in the celebration of 7 August 1988 because he had left Adelfia the day before. Finally, the applicant held that his aim was not to defame anyone, but to inform readers how public money was being spent by public authorities. In a judgment of 27 November 1997, deposited with the registry on 18 February 1998, the Court of Cassation dismissed the application and upheld the Court of Appeal’s decision of 26 June 1996. The court held that the applicant’s allegations were irrelevant because he had not, in any case, given evidence that the invoices were false and that they had to be attributed to Mr F.B. Consequently, the court declared the appeal inadmissible and sentenced the applicant to a fine of ITL 1,000,000 and awarded costs against him. | 0 |
train | 001-96455 | ENG | POL | CHAMBER | 2,010 | CASE OF JAREMOWICZ v. POLAND | 2 | Preliminary objection joined to merits and dismissed (victim);Violation of Art. 12;Violation of Art. 13;Non-pecuniary damage - award | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 7. The applicant was born in 1973 and lives in Głogów. He is detained in Wołów Prison. 8. The facts of the case, as submitted by the applicant, may be summarised as follows. 9. Throughout 2003 the applicant was serving a sentence of imprisonment in Wrocław Prison No. 1, following his conviction for attempted burglary by the Głogów District Court on 13 February 2001. He completed the sentence on 15 January 2004 and, on an unknown later date, was transferred to Wołów Prison. 10. On 9 June 2003 the applicant asked the Governor of Wrocław Prison No. 1 for leave to have visits from a certain M.H. in prison. M.H. had been detained in the same prison from 10 July to 17 December 2002. At the relevant time, she was detained in another Wrocław Prison (at Kurkowa Street). The request was refused. 11. On 16 June 2003 the applicant asked the Wrocław Regional Court – the Penitentiary Division (Sąd Okręgowy – Wydział Penitencjarny) for leave to marry M.H in prison. On 20 June 2003 M.H. made a similar request to the Penitentiary Division of the same court, asking for leave for her and the applicant to marry in prison. Their requests were referred to the Governor of Wrocław Prison No. 1. 12. On 18 July 2003 the Governor refused both requests. The refusals were phrased in an identical way. The replies read, in so far as relevant, as follows: “Replying to your request of 16 June 2003, which was referred to me by the Penitentiary Division of the Wrocław Regional Court, I hereby inform you that I refuse to give you leave to marry M.H. on the prison premises. The question of your having visits from M.H. was already decided negatively earlier (on 10 June 2003), in connection with your request of 9 June 2003. I now maintain that earlier standpoint taken by the Governor ... . Analysing your family situation one can see that M.H. is not a member of your family or a “close person” (osoba bliska) within the meaning of Article 102 § 2 of the [Code of Execution of Criminal Sentences]. Neither you nor M.H. are able to substantiate your relationship in the period prior to her stay in [this prison] in connection with her pre-trial detention from 10 July 2002 to 17 December 2002. In view of the foregoing, I refuse your request.” 13. On 23 July 2003 the applicant unsuccessfully appealed to the Wrocław Regional Court against the refusal. 14. The applicant also complained to, and sought assistance from, the Ombudsman (Rzecznik Praw Obywatelskich). On 21 July 2003 the Ombudsman informed the Governor of Wrocław Prison of the applicant’s complaint and asked him to consider the possibility of granting him visits from his fiancée who was apparently his only close person, especially given their intention to get married and the fact that the applicant had volunteered for participation in a therapeutic rehabilitation programme based on deepening contact with close persons. On 1 August 2003 the Governor informed the Ombudsman that the principal ground for refusal to grant the applicant visits from M.H. and leave to marry her in prison was the fact that they could not prove that they had had a relationship before her detention in the same prison which “made his attempts to obtain the leave ‘premature’.” On 13 August 2003 the Ombudsman wrote back to the Governor, stating that he had reservations about the grounds for the refusal of leave to marry and asking him to conduct an enquiry into the applicant’s allegations and to reconsider the possibility of granting him visits from M.H. 15. On 9 September 2003 the prison authorities prepared a report on the enquiry which was later transmitted to the Ombudsman. The report read, in so far as relevant, read as follows “Undoubtedly, [the applicant] became illegally acquainted with M.H. during her detention on remand in this establishment (from 10 July to 17 December 2002). In his complaint, [the applicant] states that ‘I [had] got to know a girl who stayed in this remand centre more than a year ago’. It is difficult to call “fiancées” persons who get to know each other in this manner (kites, writing on their hands – often without seeing each other). This contact, which was made in prison (certainly illegally) and which by the nature of things is very superficial, is not a worthy contact from the point of view of the applicant’s rehabilitation. For that reason, the applicant’s requests [for leave to marry M.H. in prison] had received negative opinions from his supervising officer [wychowawca].” 16. On 25 September 2003 the Ombudsman replied to the applicant’s complaint. The letter reads, in so far as relevant, as follows: “I would like to inform you that, as unequivocally emerges from the findings relating to your wish to get married to M.H. in prison, your relationship with Ms M[...] H [...] developed in an illegal manner during her detention on remand in the prison in which you remain. It was precisely your illegal relationship maintained by means of, among other things, sending kites (za pomocą grypsów) in prison which, in the opinion of the prison administration, was decisive [for considering] your union unworthy from the point of view of your social rehabilitation. At the same time, I would like to add that, as emerges from the information I have received, this matter is at present being examined by the Wrocław Regional Court, from which you should get a reply. In view of the foregoing, acting upon the Ombudsman’s authorisation, I consider the matter as clarified in its entirety and I do not see any indication of your rights having been infringed by the [prison] administration.” 17. Meanwhile, on 24 September 2003 the applicant had complained to the Minister of Justice about the refusal to give him leave to contract a marriage in prison. The complaint was referred to the Wrocław Regional Director of the Prison Service (Dyrektor Okręgowy Służby Więziennej) who, on 17 October 2003, addressed the matter as follows: “In reply to your complaint of 24/09/2003 addressed to the Ministry of Justice and concerning the decision of the Governor of Wrocław Prison No. 1 refusing to grant you leave to contract a marriage on the prison premises, I would like to inform you that, according to the rules on competence [in such matters], your complaints have been examined by the Wrocław Regional Inspectorate of the Prison Service (Okręgowy Inspektorat Służby Więziennej). Following an enquiry it has been ascertained that, indeed, the administration of Wrocław Prison No. 1 did not give you leave to contract a marriage on the premises of the penitentiary establishment. You were notified of the reasons for it by, inter alia, the letter of 18 July 2003 .... At the same time, I inform you that this decision did not infringe the applicable legal provisions. No provision obliges a governor of a penitentiary establishment to grant a detained person leave to contract a marriage in the establishment run by him. In view of the foregoing, I do not see any grounds for upholding your complaint.” 18. On 2 October 2003 the Wrocław Regional Court-Penitentiary Divisions examined the applicant’s appeal of 23 July 2003 but did not take any decision on the matter. 19. On an unspecified date in November 2003 the Deputy Governor of the Wrocław Prison issued a certificate addressed to the Wrocław Civil Status Office (Urząd Stanu Cywilnego) confirming that the applicant had obtained leave to marry M.H. in prison. 20. The Government submitted that, according to information supplied by the Wrocław Prison’s authorities, the applicant did not marry M.H. in prison. 21. Article 102 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) lists the rights of a convicted person. It reads, in so far as relevant, as follows: “A convicted person has, in particular, the following rights: ... 2) to maintain relationships (więzi) with the family and other close persons; ... 10) to make applications, complaints and requests to an authority competent to deal with the subject-matter and to present them, in the absences of third parties, to the prison administration, heads of organisational units of the Prison Service, penitentiary judge, prosecutor and the Ombudsman.” 22. Detailed rules on the procedure referred to in paragraph 10 is laid down in the Minister of Justice’s Ordinance of 13 August 2003 on dealing with applications, complaints and requests by persons detained in prisons and remand centres (Rozporządzenie Ministra Sprawiedliwości w sprawie sposobów załatwiania wniosków, skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych), 23. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a penitentiary judge, a governor of a prison or a remand centre, a regional director or the Director General of the Prison Service or a court probation officer. Applications relating to the execution of prison sentences are examined by a competent penitentiary court. The remainder of Article 7 of the Code reads as follows: “3. Appeals against decisions [mentioned in paragraph 1] shall be lodged within seven days of the date of the pronouncement or the service of the decision; the decision [in question] shall be pronounced or served with a reasoned opinion and an instruction as to the right, deadline and procedure for lodging an appeal. An appeal shall be lodged with the authority which issued the contested decision. If [that] authority does not consider the appeal favourably, it shall refer it, together with the case file and without undue delay, to the competent court. 4. The Court competent for examining the appeal may suspend the enforcement of the contested decision ... 5. Having examined the appeal, the court shall decide either to uphold the contested decision, or to quash or vary it; the court’s decision shall not be subject to an interlocutory appeal.” 24. Under the provisions of the Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) the registrar of the relevant Civil Status Office (Kierownik Urzędu Stanu Cywilnego) may refuse to solemnise marriage only if there exists any statutory obstacle rendering the marriage null and void, such as age, legal incapacity, mental disorder, bigamy, close affinity of the parties or adoptive relationship (Articles 5, 10 11, 12, 13, 14 and 15). In case of doubt, the registrar should ask the competent court to rule on whether the marriage can be contracted (Article 5). 25. Pursuant to Article 4, a marriage before the registrar may not be concluded before 1 month after the persons concerned have made a written declaration that they have no knowledge of any statutory obstacle to the solemnisation of their marriage. At their request and for important reasons, the registrar may solemnise the marriage before the expiry of that term. 26. Article 6 of the Family and Custody Code lays down the rules for a proxy marriage. Contracting a marriage through a representative is subject to leave that can be granted by a family court in the non-contentious procedure. It depends on two principal conditions. First, the court must be satisfied that there exist “important reasons” justifying the departure from the normal procedure. Secondly, the applicant’s signature on a proxy must, on pain of being null and void, be made in the presence of a notary, who confirms its authenticity by a special declaration. The Supreme Court’s case-law and practice of the domestic courts in respect of a proxy marriage is very scant. A few existing rulings of the Supreme Court relate to applications for leave to contract proxy marriages with Polish women made by foreign persons and date back to the 1970s. 27. The Recommendation of the Committee of Ministers to member states on the European Prison Rules (Rec(2006)2) (“the European Prison Rules”), adopted on 11 January 2006, sets out the following standards in respect of the enforcement of custodial sentences that are relevant in the context of the present case. Rule 3 reads: “Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.” Rule 24 reads, in so far as relevant: “1. Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 2. Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum of contact. ... 4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. Rule 70 reads, in so far as relevant: “1. Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or any other competent authority. ... 3. If the request is denied or a complaint rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority.” | 1 |
train | 001-95995 | ENG | UKR | ADMISSIBILITY | 2,009 | RYBKA v. UKRAINE | 4 | Inadmissible | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | The applicant, Mr Yevgeniy Mikhaylovich Rybka, is a Ukrainian national who was born in 1971 and lives in Kyiv. The applicant was represented by Ms L. Pankratova, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 July 2001 the applicant, together with his wife and son, went to Sebastopol for a private visit. At around 6 p.m. that evening they went to the bus station with the applicant's sister-in-law, to catch the bus home. At the bus station three persons wearing plain clothes approached the applicant as he stood alone outside the station hall. Two of these persons took the applicant by the arms, while the third said: “Militsiya” (Міліція) and waived a paper in front of the applicant's face. The applicant could not read the paper. The persons attempted to push the applicant into a minibus, which had no official police signs. The applicant resisted and the persons allegedly started beating him. They managed to handcuff the applicant and to push him into the minibus. Meanwhile, the applicant's sister-in-law arrived and was thrust into the same minibus. According to the applicant, he was further beaten in the minibus. The applicant and his sister-in-law were taken to the Nakhimovskyy District Police Station in Sebastopol. At the police station the applicant was forced to stand handcuffed against the wall for an hour. Subsequently, he was allegedly undressed and searched in the presence of his sister-in-law. On the same day the applicant was questioned by the police, who enquired whether he belonged to a neo-Nazi organisation, taking into account his hairstyle and the symbol on the t-shirt he wore. The applicant explained that he was a journalist; that he did not belong to any type of extremist organisation and that he had come to Sebastopol for private purposes. The applicant's wife went to the police station, where she was also questioned by the police and gave the same explanations. At around half past ten in the evening of the same day, the police told the applicant that he had been apprehended on suspicion of being a member of the neo-Nazi organisation “S”. The applicant remained in detention. On 29 July 2001 the applicant was taken to the Nakhimoskyy District Court of Sebastopol (the Nakhimovskyy Court). The police officers told the applicant that he would be tried for failing to comply with their lawful orders. On the same day a judge of that court found the applicant guilty of wilful disobedience to the lawful orders of the police, an administrative offence, on 28 July 2001, and issued a reprimand against him. The court's resolution stated that it was final and was not subject to appeal. Subsequently, the applicant was released. According to the applicant, the court proceedings were not public, as neither his wife nor his colleagues were allowed to enter the court room. The applicant was not given an opportunity to study his case file and to consult a lawyer either before or during these proceedings. On 30 July 2001 the applicant underwent a medical examination, according to which he was found to be suffering from minor bodily injuries which could have been caused on 28 July 2001. On 9 August 2001 the applicant complained to the prosecutors, alleging that he had been ill-treated by the police officers on 28 July 2001. In a letter of 11 September 2001 the Sebastopol Prosecutor's Office informed the applicant that on 7 August 2001 the prosecutors had adopted a decision refusing to initiate a criminal investigation against the police officers. Relying on the findings of the Nakhimovskyy Court of 29 July 2001, the prosecutors concluded that the police officers had not abused their power and that there was no indication that an offence had been committed. The applicant did not challenge the decision of 7 August 2001 before the domestic courts since, in his view, it was based on the court's resolution, which was not subject to appeal. On 20 September 2001 the applicant lodged with the Supreme Court a request for leave to appeal in cassation against the resolution of 29 July 2001 under the new transitional cassation procedure. On 24 October 2001 the Nakhimovskyy Court informed the applicant that his appeal in cassation would be considered by the Sebastopol Court of Appeal. On 26 October 2001 the President of the Sebastopol Town Court of Appeal quashed the resolution of 29 July 2001 on the grounds that the Nakhimovskyy Court had failed to verify the lawfulness of the orders given by the police officers and that it had applied a sanction which had not been envisaged by the relevant law. The Court of Appeal remitted the case to the Nakhimovskyy Court for fresh consideration. On 23 November 2001 the latter court invited the applicant to attend the hearing, scheduled for 10 December 2001. In his letter of 4 December 2001 the applicant informed the court that he would not be able to attend the hearing for health reasons. On 15 December 2001 the applicant received a letter from the court inviting him to a new hearing, scheduled for 17 December 2001. According to the applicant, he was still undergoing medical treatment on the latter date and was therefore unable to attend that hearing. On 27 December 2001 the Nakhimovskyy Court held a hearing in the applicant's case and delivered a resolution, the relevant parts of which read as follows: “...On 28 July 2001 ... [Mr] Rybka wilfully disobeyed the lawful order of the police officers in the course of [an] identity check at the bus station in the town of Sebastopol. [Mr] Rybka's guilt [is] proven by the reports of the police officers, [Messrs ...], according to which [Mr] ... presented [to Mr Rybka] a police identity card and informed [him] that [he was] being stopped by the police officers for an identity check. However, [Mr] Rybka tried to run away and resisted, thereby damaging the police officers' uniforms. The police officers made similar submissions before the court... [Mr] Rybka failed to appear for the court hearing, [although he had been] repeatedly informed [of the date and time of the hearing]; in accordance with his earlier submissions, [he] did not plead guilty, and explained that one of the police officers had showed him a police identity card, but [he] had not been able to read it. Thereafter, he was shown to the “Gazel” minibus. Since his sister-in-law told him that [the persons apprehending him] were not police officers, he started resisting, and that was why force had been used against him. The court considers that [Mr] Rybka's actions contain the corpus of the administrative offence envisaged by Article 185 of the [Code on Administrative Offences]. However, since the time-limit for imposing administrative sanctions, provided for in Article 38 of the [Code on Administrative Offences], has expired, the court considers that the proceedings against [Mr] Rybka must be discontinued. Pursuant to ..., [the court] Decided: To discontinue the proceedings against [Mr] Rybka, Yevgeniy Mikhailovich. The decision is final [and] is not subject to appeal.” The applicant was not informed about the date or time of the hearing of 27 December 2001. He received a copy of the court's resolution on 15 September 2002. Article 32 of the Code on Administrative Offences, as worded at the material time, provided that administrative detention could be imposed and applied in exceptional circumstances for certain administrative offences for a maximum period of fifteen days. Under Article 38 an administrative sanction could be imposed within two months following the day on which an offence was committed. Article 185 envisaged the following sanctions for wilful disobedience to the orders of a police officer: a fine in the amount of eight to fifteen times the statutory non-taxable monthly income; a 20% salary deduction over a period of one to two months (corrective works); or administrative detention for up to fifteen days, if, in view of the particular circumstances of the case and with regard to the personality of the offender, the imposition of more lenient sanctions appeared insufficient. According to Article 285, a copy of the resolution in an administrative offence case had to be handed over or sent to the person concerned within three days following the completion of the case. Pursuant to Article 287, a first-instance court's resolution imposing an administrative sanction was final and not open to appeal, save in cases envisaged in the law. Article 290 provided that a prosecutor could lodge an extraordinary appeal (“protest”) against the court's resolution. According to Article 294, a court resolution concerning an administrative offence could be reviewed either by the same judge who had adopted it in the first place, upon an extraordinary appeal lodged by a prosecutor, or by the president of a higher court on his or her own motion. On 24 September 2008 the Parliament of Ukraine made changes to the Code, by which it introduced an appeal procedure in administrative offence cases. In particular, under the amended Articles 287 and 294 of the Code, the parties to administrative offence proceedings have the right to appeal against court resolutions in their cases within ten days following their delivery. Such appeals must be submitted through the court of first instance that adopted the contested resolution. That court must, within three days, refer the appeal or appeals, together with the case file, to the court of appeal, which, in its turn, has twenty days to consider the case. The cases are dealt with by a judge of the criminal chamber of the court of appeal in an open hearing. The judge has the power to reject the appeal, to quash the resolution and discontinue the proceedings or adopt a new resolution, and to change the resolution. The judge's decision is final and not subject to any further appeal. The relevant parts of the Explanatory Report to Protocol No. 7 (ETS No. 117) prepared by the Steering Committee for Human Rights and submitted to the Committee of Ministers of the Council of Europe, which concern Article 2 of Protocol No. 2, read as follows: “17. This article recognises the right of everyone convicted of a criminal offence by a tribunal to have his conviction or sentence reviewed by a higher tribunal. It does not require that in every case he should be entitled to have both his conviction and sentence so reviewed. Thus, for example, if the person convicted has pleaded guilty to the offence charged, the right may be restricted to a review of his sentence. As compared with the wording of the corresponding provisions of the United Nations Covenant (Article 14, paragraph 5), the word "tribunal" has been added to show clearly that this provision does not concern offences which have been tried by bodies which are not tribunals within the meaning of Article 6 of the Convention. 18. Different rules govern review by a higher tribunal in the various member States of the Council of Europe. In some countries, such review is in certain cases limited to questions of law, such as the recours en cassation. In others, there is a right to appeal against findings of facts as well as on the questions of law. The article leaves the modalities for the exercise of the right and the grounds on which it may be exercised to be determined by domestic law. 19. In some States, a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal. The right to apply to a tribunal or an administrative authority for leave to appeal is itself to be regarded as a form of review within the meaning of this article. 20. Paragraph 2 of the article permits exceptions to this right of review by a higher tribunal: - for offences of a minor character, as prescribed by law; - in cases in which the person concerned has been tried in the first instance by the highest tribunal, for example by virtue of his status as a minister, judge or other holder of high office, or because of the nature of the offence; - where the person concerned was convicted following an appeal against acquittal. 21. When deciding whether an offence is of a minor character, an important criterion is the question of whether the offence is punishable by imprisonment or not...” | 0 |
train | 001-103367 | ENG | SVK | CHAMBER | 2,011 | CASE OF BUBLAKOVA v. SLOVAKIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 4. The applicant was born in 1973 and lives in Košice. 5. On 30 January 2002 the applicant initiated divorce proceedings and asked the Košice II District Court to determine her and her husband's rights and duties in respect of their minor daughters. 6. On 7 April 2006 the District Court adopted a judgment in the case. 7. On 19 April 2006 the applicant lodged a length of proceedings complaint with the Constitutional Court. 8. The District Court's judgment was served on the applicant on 12 May 2006 and, in the absence of an appeal, it became final on 4 July 2006. 9. On 13 September 2006 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It held that the District Court, by adopting the judgment and delivering it to the parties, had taken all required steps in order to eliminate the state of the applicant's legal uncertainty. This role of the District Court had ended by adopting the decision on the merits, that is before the complaint was lodged with the Constitutional Court. This decision became final on 4 July 2006 and the District Court could not deal with the merits of the case after the initiation of the constitutional proceedings. It was the Constitutional Court's practice to protect one's right to a hearing without unjustified delay only if the length of proceedings complaint was lodged at a time when the alleged violation still persisted. The decision was served on the applicant's lawyer on 19 October 2006. | 1 |
train | 001-58042 | ENG | TUR | CHAMBER | 1,997 | CASE OF KALAÇ v. TURKEY | 2 | No violation of Art. 9 | C. Russo;John Freeland | 7. Mr Faruk Kalaç, a Turkish citizen born in 1939, pursued a career as judge advocate in the air force. In 1990 he was serving, with the rank of group captain, as the high command’s director of legal affairs. 8. By an order of 1 August 1990 the Supreme Military Council (Yüksek Askeri Sûrasi), composed of the Prime Minister, the Minister of Defence, the Chief of Staff and the eleven highest-ranking generals in the armed forces, ordered the compulsory retirement of three officers, including Mr Kalaç, and twenty-eight non-commissioned officers for breaches of discipline and scandalous conduct. The decision, which was based on section 50 (c) of the Military Personnel Act, section 22 (c) of the Military Legal Service Act and Article 99 (e) of the Regulations on assessment of officers and non-commissioned officers, made the specific criticism, in the applicant’s case, that his conduct and attitude "revealed that he had adopted unlawful fundamentalist opinions". 9. In a decision of 22 August 1990 the President of the Republic, the Prime Minister and the Minister of Defence approved the above order, which was served on the applicant on 3 September. The Minister of Defence ordered the forfeiture of the applicant’s social security (health insurance) card, his military identity card and his licence to bear arms. 10. On 21 September 1990 Mr Kalaç asked the Supreme Administrative Court of the Armed Forces (Askeri Yüksek idare Mahkemesi) to set aside the order of 1 August 1990 and the measures ordered by the Ministry of Defence. 11. In a judgment of 30 May 1991 the Supreme Administrative Court of the Armed Forces ruled by four votes to three that it did not have jurisdiction to entertain the application to set aside the order of 1 August 1990, on the ground that under Article 125 of the Constitution the decisions of the Supreme Military Council were final and not subject to judicial review. In that connection it observed that under the Military Legal Service Act members of the military legal service had the status of military personnel. Their compulsory retirement for breaches of discipline was regulated in the same manner as that of other army officers. In their dissenting opinion the three members of the minority referred to the principle of the independence of the judiciary enunciated in Article 139 of the Constitution. They expressed the view that security of tenure for both civilian and military judges, which was protected by that Article, formed a lex specialis in relation to the other provisions of the Constitution and that decisions of the Supreme Military Council which infringed that principle should therefore be subject to review by the Supreme Administrative Court of the Armed Forces. The court set aside, however, the refusal to issue social security cards to the applicant and his family. 12. On 9 January 1992 the court dismissed an application for rectification lodged by Mr Kalaç. 13. The relevant provisions of the Constitution are as follows: "None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions." "Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of 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 influence thereby." "All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review. ..." "Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post. The exceptions laid down by law concerning judges or public prosecutors who have been convicted of an offence requiring their dismissal from the service, those whose unfitness to carry out their duties for medical reasons has been finally established or those whose continued service has been adjudged undesirable shall remain in force." "Supervision of judges and public prosecutors as regards the performance of their duties in accordance with laws, regulations, subordinate legislation and circulars (administrative circulars, in the case of judges), investigations into whether they have committed offences in connection with, or in the course of, their duties, or whether their conduct and attitude are compatible with the obligations arising from their status and duties and, if necessary, inquiries concerning them shall be made by judicial inspectors with the permission of the Ministry of Justice. The Minister of Justice may also ask a judge or public prosecutor senior to the judge or public prosecutor in question to conduct the investigation or inquiry." "The organisation and functions of military judicial organs, the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law in accordance with the requirements of military service." 14. Section 22 (c) of the Military Legal Service Act provides: "Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act. ... Where their conduct and attitude reveal that they have adopted unlawful opinions." 15. Section 50 (c) of the Military Personnel Act provides: "Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council." 16. Article 99 of the Regulations on assessment of officers and noncommissioned officers provides: "Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held: ... (e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions." | 0 |
train | 001-107119 | ENG | GBR | ADMISSIBILITY | 2,011 | FIRKINS v. THE UNITED KINGDOM | 4 | Inadmissible | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Lee Raymond Michael Firkins, is a British national who was born in 1974 and currently detained at HMP Whitemoor. He was represented before the Court by Ms J Hickman, a lawyer practising in London with Hickman and Rose Solicitors, assisted by Mr J. Wood QC and Mr J. Lyons, counsel. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. On the evening of 5 November 2003 Mr and Mrs Fisher were shot and killed with shotguns in the course of a robbery at their house near Wadebridge, Cornwall. Forensic evidence of footwear patterns, and the fact that two windows had been smashed on different sides of the house, suggested at least two robbers. The evidence also suggested that they had been killed after 19.00. The house was adjacent to a petrol station which the couple had run. 4. That evening the applicant and his brother, Robert, had visited relatives in Foxhole and St Dennis, Cornwall, twelve miles south of the murder scene. On their own admission, they had carried out a series of crimes in the south-west of England shortly following the murder. This included the armed robbery of a petrol station which lay between St Dennis and the Fishers’ garage, which the applicant admitted to having committed. A shotgun had been fired in the course of that robbery. The brothers also admitted to robbing a B & Q store in the area. There were also three incidents of serious assaults by the brothers, during the last of which a shotgun had also been produced. After the Fishers’ murder, two shotguns were found where the brothers had buried them on a beach. Both admitted possession of them, though no specific connection with the murders was established. 5. The brothers were charged with the Fishers’ murder. Their defence was they had travelled together to visit their relatives, had tried to obtain cannabis via one relative, and had then gone to a public house while the relative sought unsuccessfully to obtain the cannabis. They had not been anywhere near the Fishers’ home or garage. However, evidence was called by the prosecution as to the use of a mobile telephone which the brothers had been carrying that evening. From records of which telephone masts had serviced the mobile telephone that evening, the prosecution sought to determine when telephone calls had been made and from where. The evidence showed that the telephone had been used up to 18.50 that evening and was then silent until 20.46 when a three minute call was received from Robert’s girlfriend. The prosecution submitted that the telephone mast evidence, particularly that relating to the 20.46 call, was consistent with it being received in a car moving away from the murder scene and that it was impossible for it to have been received at the public house, as the brothers maintained. Moreover, the evidence of the girlfriend at trial was that Robert had been in a tearful and emotional state during the call, though he denied this. 6. In addition to this evidence, and the telephone evidence above, the prosecution relied on what it considered to be the improbability of the brothers’ account of travelling so far as they did to buy a few pounds’ worth of cannabis. It also relied on the fact that the brothers claimed to have left the public house without finding out if their relative had successfully obtained the cannabis. The prosecution further relied on the evidence of two other witnesses who had heard conversations between the brothers: one testified that Robert had said to Lee “what are we going to do about this Wadebridge thing?”; the other testified that Robert had spoken about Wadebridge. Finally, the prosecution were allowed to rely on the other robberies and one of the assaults which the applicant and his brother had committed as evidence of their propensity to commit robbery and to use sudden and exceptional violence. 7. At trial, against Robert only, the prosecution led additional evidence from three prisoners who alleged that, while in prison on remand before the trial, Robert had either admitted or had made incriminating remarks regarding the shootings. The most significant of the three witnesses was a police informant, Z, who testified that Robert had admitted the shootings. The second of the three witnesses testified inter alia that Robert had returned to his cell, after being interviewed by the police, worried about the telephone evidence. The third testified that he had overhead Robert tell someone that Lee was going to take the blame for the shootings and that he, Robert, had done them. 8. At the close of the defence case, the prosecution conceded that the evidence which had been led against the applicant was insufficient to permit a jury to return a guilty verdict against him. However, it maintained that a guilty verdict could be returned by way of the Hayter approach (see relevant domestic law and practice below). This would allow the jury to consider first the case against Robert (including the additional evidence against him which had been given by the three prisoners) and then, if they found Robert guilty, to apply that conclusion in determining whether the applicant was also guilty. The jury were accordingly directed by the trial judge as follows: “... you must consider the case against each defendant separately. The evidence against each defendant is different, and therefore your verdicts need not be the same. It is a matter for you how you set about your task and in which order you consider the cases against the defendants, but I suggest that you approach your deliberations first by considering the case against and for Robert Firkins. Much of the evidence in the case has relevance both to Robert Firkins and to Lee Firkins, but the evidence of [the three witnesses] about the confessions, or incriminating remarks, that Robert Firkins allegedly made is evidence only in the case against Robert Firkins, and is not evidence in the separate case against Lee Firkins. The reason is simply that an admission of guilt by one defendant, even if it includes an assertion of the guilt of another defendant, cannot be evidence against that other defendant. It would make no difference whether the alleged admission was to a fellow prisoner or to the police in interview; it is only evidence against the defendant who says it, and not against the other defendant who is not present when it is said. So here, if you find that Robert Firkins made all, or any, of the alleged confessions or incriminating remarks, Lee Firkins was not present, had no chance to hear and dispute the truth of the admissions, and such admissions and assertions are not evidence against him. Thus, in the case of Robert Firkins there is additional evidence, should you accept it, of [the three prison witnesses] which is not evidence against Lee Firkins. That is why, as I have already said, the evidence against each defendant is different, and therefore your verdicts need not be the same. However, there is a further and crucial consideration which is relevant when you go on to consider the case against and for Lee Firkins, and it is this. If, as a result of considering the evidence of [the three witnesses], together with the other evidence in the case against Robert Firkins, you are sure that Robert Firkins was guilty of the murders of Carol and Graham Fisher, you could properly use that finding of guilt in your consideration of the case against Lee Firkins. You would not then be treating the evidence of [the three prison witnesses] as evidence against Lee Firkins; what you would be doing - and it is a matter for you whether, and to what extent, you do - what you would be doing would be using the fact that you had found Robert Firkins guilty as a fact in the case against Lee Firkins. If you think about it, that is perfectly logical. While certain evidence – [the three witnesses] – cannot be evidence against Lee Firkins for the reasons that I have explained, it would be odd, would it not, if, having considered all the evidence against Robert Firkins and found him guilty, the fact of his guilt could not be taken into account, together with all the evidence, as a fact in the case against Lee Firkins. But you could only take it into account in the case of Lee Firkins if you were sure of the following matters - (1) as I have said, that Robert Firkins is guilty; (2) that the two defendants were together at all material times on the night of 5th November, and therefore they were together at the murder scene. There is of course no dispute that they were together at all material times. (3) that the murders involved two people acting together in what the law calls a joint enterprise, of which more in a moment; and (4) that the deaths of Mr. and Mrs. Fisher resulted from the carrying into effect of that joint enterprise.” 9. Having directed the jury on the applicable law of joint enterprise, the trial judge continued: “Should you choose to adopt my suggestion first to consider the case against Robert Firkins, then your approach should be as follows. If you have found Robert Firkins guilty, then, when looking at the case of Lee Firkins, if you are sure that, with the intention to commit the offences of murder, he took some part in committing them with Robert Firkins, then, he, Lee Firkins, is also guilty. As I have said, if you found Robert Firkins guilty you could use the fact of his guilt in your consideration of Lee Firkin’s case. However, I emphasise you must not take into account in the case against Lee Firkins any of the evidence of [the three prison witnesses] as to what Robert Firkins may have said to them, or have been overhead to say, either about his own involvement or his brother’s involvement. That evidence remains inadmissible in the case against Lee Firkins. It is for these reasons that I strongly advise you, as a matter of logic and good sense, to consider first the case of Robert Firkins. If you find him guilty, you may use the fact of his guilt in the way I have just described, together with all the other evidence, both against and for Lee Firkins, in your consideration of the case of Lee Firkins. If, in following that advice, you found Robert Firkins not guilty, you would be compelled to find Lee Firkins not guilty, because the evidence against Lee Firkins, without using the conviction of Robert Firkins as evidence against him, is, I direct you, insufficient to find Lee Firkins guilty.” 10. The jury were also warned that they should treat the evidence given by the three witnesses as to what Robert had said in prison with caution, given the potential risks associated with such “cell confession evidence”. 11. On 26 January 2006, the applicant and his brother were convicted of both counts of murder by the jury. They appealed against their convictions to the Court of Appeal. The appeals were dismissed on 17 December 2008. In respect of the applicant’s contention that the Hayter approach had been unfairly applied in his case, the Court of Appeal observed: “The Crown had made it clear before the trial began that it would contend that the Hayter approach was likely to apply in this case, so that if on the evidence admissible against him Robert were to be convicted, and the jury was sure that he was with Lee at all material times that evening, Lee’s conviction could properly follow. The Judge was invited to refuse to leave the case to the jury on that basis; it was submitted that Hayter should be confined to the case where the conviction of A is a legal pre-condition to the possible conviction of B, and that the effect of leaving the Hayter approach to the jury would be to make the confession of Robert in effect admissible against Lee although in law it was not. The first argument is not pursued here: Hayter was not so limited. The second is also not pursued and is precisely the submission which was rejected by the Lordships in Hayter. Mr Wood [counsel for the applicant]’s argument here is that the Judge should have refused to leave the Hayter approach to the jury because it put the conduct of Lee’s defence in an impossible position. He had, he suggests, no locus standi to challenge the evidence of ‘Z’ and others and could not for example apply under s 100 Criminal Justice Act 2003 to put in bad character material against them. We are very doubtful about that. If, via Hayter, there was evidence which was potentially damaging to Lee, it seems to us that Lee must be able to challenge it. The wording of s 100 does not seem to us to shut him out from contending that there is a matter of substantial importance in issue in the proceedings. But this question of law does not arise, and we have not heard full argument about it. That is because Mr Wood conceded with proper frankness that for tactical reasons (doubtless sound) Lee had decided not to challenge the evidence of ‘Z’ but to rely on the challenge mounted by Robert. Thus the Judge was never called upon to rule what steps Lee could or could not take. We agree that there is a judgment to be made by the Judge in any case in which the Hayter line of approach is advanced, and that if the reasoning from the conviction of A to the conviction of B would be unsafe, he should not leave it to the jury. But in the present case it was not unsafe. If Robert had committed this offence, and Lee and Robert were, as they both insisted and the other evidence strongly suggested, together throughout the evening, then so had Lee. The Judge set out with absolute precision the conditions under which this line of reasoning could be applied. ....Like other aspects of his direction, this had been submitted in draft to counsel for their consideration. Mr Wood submitted that the Judge should have warned the jury of the possibility that Robert and Lee might be lying about being together, perhaps because Lee was sheltering Robert. No one suggested that when the directions were under consideration, and we are unable in any event to see why the Judge should have been under any such duty when not one of the three parties in the trial had ever suggested any such thing to the jury.” 12. Defendants who are charged with joint offences are normally tried jointly, unless, in the interests of justice, an order is made for them to be tried separately. 13. Where defendants are tried separately, section 74(1) of the Police and Criminal Evidence Act 1984 allows the prosecution to adduce the fact that a person other than the accused has been convicted of an offence, for the purpose of proving that that person committed the offence. 14. Under section 76 of the same Act, a confession made by an accused person may be given in evidence against him. At common law, such a confession is not normally admissible against any other person implicated in it. 15. In R v. Hayter [2005] 1 WLR 605, the defendant Hayter stood trial for murder with two co-accused, Bristow and Ryan. The deceased was Bristow’s husband. The prosecution’s case was that Bristow had arranged a contract killing of her husband: Ryan was the man who actually shot and killed the deceased and Hayter was the middleman between Bristow and Ryan. The evidence against Ryan was a confession he had made to his girlfriend. The trial judge directed the jury that, if they were satisfied that Bristow and Ryan were guilty of murder, it would be open to them to take account of those findings of guilt in deciding whether to convict Hayter. All three defendants were convicted. In Hayter’s appeal against conviction, a majority of the House of Lords (Lord Bingham, Lord Steyn and Lord Brown) found that the trial judge had directed the jury not to take into account Ryan’s confession in the case against Hayter. Thus, there was no infringement of the common law rule prohibiting the admissibility of one accused’s conviction against another accused. There was no good reason why Ryan’s guilt could not be used by the jury as a fact against Hayter. It was of no significance that Ryan’s guilt had been established by his own out of court confession. 16. Lord Rodger and Lord Carswell dissented. Lord Rodger observed that the effect of this approach was to give the jury the power to turn inadmissible evidence into admissible evidence. Lord Carswell observed that the majority’s conclusion impermissibly breached the principle that, in determining whether there was a case to answer against each defendant, the trial judge had to consider the evidence against each defendant as it then stood. In doing so, only the evidence admissible against each defendant could be taken into account. At that stage, the only evidence admissible against Hayter was insufficient to prove his guilt. | 0 |
train | 001-120544 | ENG | SVN | ADMISSIBILITY | 2,013 | BRADEŠKO AND RUTAR MARKETING D.O.O. v. SLOVENIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 1. The applicant, Mr Boštjan Bradeško, is a Slovenian national, who was born in 1965 and lives in Domžale. The applicant company, Rutar Marketing, is a limited liability company registered in Slovenia. They were represented before the Court by M. Grilc, R. Grilc and R. Vouk, lawyers practising in Klagenfurt. 2. The Slovenian Government (“the Government”) were represented by their Agent, Ms A. Vran, State Attorney. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is the director of Rutar Center, which is a furniture store owned by the applicant company. 5. On 21 September 2005 and 8 March 2006 the Market Inspectorate of the Republic of Slovenia (hereinafter referred to as “the Inspectorate”) carried out inspections at Rutar Center. 6. On 28 April 2006 the Inspectorate issued a decision stating that the applicant company had failed to pay interest to customers who had put down an advance deposit to reserve their orders with the store. The decision illustrated the applicant company’s practice by listing three examples which concerned in total approximately 30 euros (EUR). It was found guilty of violating section 41 of the Consumer Protection Act. In addition, the applicant was found guilty of failing to fulfil his supervisory role so as to prevent the above violation from occurring. The applicant company was fined approximately EUR 12,500 and the applicant approximately EUR 1,250. 7. On 15 May 2006 the applicants made an application for judicial review in which they alleged that the Inspectorate had wrongly established the facts; in particular, they argued that by signing a contract which included the general terms and conditions of purchase, the customers had waived their statutory right to the payment of interest. The applicants contended that the Inspectorate should have checked with each individual customer whether they had waived the right to the payment of such interest before imposing the fines. Consequently, they alleged that the relevant law had been wrongly applied and requested that ordinary court proceedings be opened. 8. On 9 July 2008 the Ljubljana Local Court, in summary proceedings (see paragraph 13 below), delivered a judgment rejecting the application for judicial review as unfounded. Referring to the Inspectorate’s decision, reports of the Inspectorate concerning the aforementioned inspections, a written statement by the applicant company of 28 September 2005 relating to one of those reports (dated 21 September 2005), and a report the Inspectorate had drawn up after the application for judicial review had been made, the court found that the facts had been properly established by the Inspectorate and that the application was unfounded. In particular, the court observed that the rights enjoyed by the consumers by virtue of the Consumer Protection Act could not be excluded or limited by contract. Moreover, it found that the customers had not been given the option to pay for the goods in full on delivery. The applicant company was ordered to pay EUR 450 and the applicant EUR 200 in court fees. The judgment, which included an instruction that there would be no right of appeal, was served on them on 4 August 2008. 9. On 25 September 2008 the applicants requested to the Supreme Public Prosecutor to lodge a request for the protection of legality (extraordinary appeal) before the Supreme Court. They argued, in particular, that the sanction had been disproportionate and unlawful. As regards the latter, they argued that the minimum fines prescribed for the offence in question had been reduced to EUR 3,000 for a company and EUR 1,200 for an individual by the Amendment to the Consumer Protection Act, which had entered into force on 15 January 2008. The court, in their submission, had failed to take that into account and to impose a lower fine in accordance with the legislation or, alternatively, give the applicants a right of appeal against the judgment which, under the Minor Offences Act, was permitted in cases where the fine imposed was higher than the minimum fine prescribed. The applicants made no complaints with regard to the lack of an oral hearing before the local court. 10. On 27 October 2008 the Supreme Public Prosecutor replied to the applicants, informing them that he had no intention of lodging a request for the protection of legality in their case. He explained that although they were correct in arguing that a lower fine should have been imposed on them in line with the amended Consumer Protection Act, their case was not important enough for the development of jurisprudence, nor had they argued that it had had any serious consequences for them. 11. Section 41 of the Consumer Protection Act reads, in its relevant part, as follows: “(1) If the company expressly or implicitly provides for the purchase of goods or services subject to a full or partial deposit and delivers the goods or service after the receipt of that deposit, it is obliged to pay ... interest to the customer ...” Section 77 provides, in so far as relevant: “(1) ... a company shall be issued with a fine of between 3,000,000 [approximately EUR 12,500] and 10,000,000 Slovenian tolars if: ... 16. it does not specify in the final invoice, and pay the customer, the interest due on the deposit paid at the interest rate ... (section 41); (2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between 300,000 [approximately EUR 1,250] and 1,000,000 Slovenian tolars.” 12. Section 22 of the Amendment to the Customer Protection Act, which entered into force on 15 January 2008, amended section 77 as follows: “(1) ... a company shall be issued with a fine of between EUR 3,000 and EUR 40,000 if: ... (2) As punishment for the offence mentioned in the preceding paragraph, the director of the company ... shall be issued with a fine of between EUR 1,200 and EUR 4,000.” 13. For details of the relevant provisions of the Minor Offences Act, in particular those concerning “summary proceedings”, see Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011). As regards the right of appeal in such proceedings ‒ an issue of particular relevance to the present case ‒ section 66(2) reads, in so far as relevant, as follows: “An appeal may be lodged against ... decisions of the court of first instance ... in cases where the fine imposed was higher than the minimum fine prescribed for that offence ...” Such an appeal may be lodged on any grounds, except points of fact. 14. A request for the protection of legality is an extraordinary appeal that may be lodged by the Supreme Public Prosecutor, either proprio motu or on the initiative of a party to the proceedings or another person entitled to do so under the Minor Offences Act, against any final judicial decision issued in the minor offences proceedings. It can be used to complain about a violation of the rules of substantive or procedural law. These requests are dealt with by a three-member panel of the Supreme Court. 15. The 2007 Amendment to the Constitutional Court Act, which entered into force on 15 July 2007, limits the availability of constitutional appeals by, inter alia, excluding in principle the possibility to challenge decisions issued in proceedings concerning minor offences. However, in exceptional circumstances such cases can be examined if they raise an important constitutional question extending beyond that particular case. The relevant provisions of the Act read as follows: “(1) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [alleged] did not have significant consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions: - issued in small-claims disputes ...; - concerning costs of proceedings, where such decision alone is challenged in the constitutional appeal; - issued in trespass to property disputes; - issued in minor offence cases. (3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.” “(1) A constitutional appeal shall be rejected: - if it does not concern an individual act by which a state authority, local authority, or a holder of public power decided on the rights, obligations or legal interest of the complainant; - if the complainant does not have a legal interest in a decision on the constitutional appeal; - if it is not admissible, except in the instance referred to in the third paragraph of the preceding section; - if it was not lodged in due time; ... (2) A constitutional appeal shall be accepted for consideration: - if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant; or - if it concerns an important constitutional question which goes beyond the importance of the actual case. ...” 16. The Constitutional Court held in its decision no. 120/97 of 21 May 1997 that the guarantees of a fair trial applicable to criminal proceedings should, in principle, also apply to minor offences proceedings, in particular as regards the right of the accused to participate in the proceedings and express their views on all relevant factual and legal issues. The court’s views were confirmed on a number of occasions in its subsequent case-law, notably in decision no. Up-3663/07 of 10 September 2009, in which it found that the applicant should have been given the opportunity to exonerate himself from the charges by producing a witness who could confirm that he had not been present at the scene of the minor offence at the time it had been committed. 17. In that decision the Constitutional Court explicitly stated: “Regardless of the fact that the court is not obliged to accept all the evidence submitted by the defence, it must accept the evidence which is relevant from the perspective of substantive law and for which the defence has shown with a sufficient degree of probability that it exists and is legally relevant. The court may dismiss evidence submitted if taking further evidence is redundant because the case is clear, if the fact to be proved by the evidence submitted has already been proved or has no influence on the case, or if the means of evidence are unsuitable or unattainable.” 18. Moreover, in decision no. Up-1293/10 of 21 June 2012 the court found a violation of the Constitution on the grounds that the local court had refused to hold an oral hearing, which had deprived the applicant of an opportunity to have examined the incriminating witnesses on whose statements the decision had been based. Similar issues were also examined in another recent decision, no. Up-1544/10 of 21 June 2012. Finally, decision no. Up-953/07 of 9 April 2009, also adopted under the new admissibility criteria, included, inter alia, an examination of the penalty imposed for the minor offence in question. | 0 |
train | 001-76986 | ENG | BGR | ADMISSIBILITY | 2,006 | TAKEVA v. BULGARIA | 4 | Inadmissible | Peer Lorenzen | The applicant, Mrs Dobrina Tzvetanova Takeva, is a Bulgarian national who was born in 1948 and lives in Pleven. She was represented before the Court by Mr N. Rounevski, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 December 1994 the applicant entered into an employment agreement with a private insurance company (“the defendant”) under which she was appointed to the position of chief accountant of its branch office in the town of Pleven. On 18 February 1998 the executive director of the company issued an order for terminating the applicant’s employment agreement on the grounds that she did not meet the requirements for the position. The order was not immediately served on the applicant. Despite the fact that the applicant was on sick leave between 19 February and 29 March 1998, the order for terminating her employment agreement was served on her on 11 March 1998 and, thus, her employment was terminated. On 14 July 1998 the applicant initiated an action against the defendant for unlawful dismissal and argued, inter alia, that she satisfied the requirements for the position and that her employment agreement could not have been terminated while she was on sick leave. She sought both reinstatement to her previous position and damages. The Pleven District Court conducted four hearings between 14 October 1998 and 7 June 1999 during which time it obtained an expert’s opinion in respect of the damages suffered by the applicant. At the hearings of 14 October 1998 and 7 June 1999 the defendant objected to the court’s jurisdiction in the case. The first objection was rejected, but the second was upheld after the defendant presented evidence that its Pleven branch office had in the meantime been closed on 4 November 1998. The Pleven District Court found that the court at the seat of the defendant had jurisdiction following the said closure of the branch office and transferred the case to the Sofia District Court. In a decision of 29 July 1999 the Sofia District Court, in camera, found that it did not have jurisdiction in the case and forwarded the case file to the Sofia City Court to make a final determination on the matter. In a decision of 14 September 1999 the Sofia City Court, in camera, ruled that the Sofia District Court had jurisdiction in the case and transferred the case file back to it. The parties to the proceedings were informed of the decision on 2 December 1999. The case was then transferred to the Sofia District Court which received it on 14 January 2000. The Sofia District Court conducted two hearings on 22 March and 31 May 2000, the first of which was postponed due to the improper summoning of the applicant. In a judgment of 30 June 2000 the Sofia District Court found partially in favour of the applicant and declared her dismissal unlawful, but dismissed her claims for reinstatement and damages. The defendant and the applicant appealed against the judgment on 7 and 28 August 2000, respectively. On 4 September 2000 the defendant was instructed to deposit the corresponding court fees for its appeal, which it did on 19 September 2000. Its appeal and that of the applicant were then registered with the Sofia City Court on 23 October 2000. The first hearing of the parties’ appeals was scheduled for 30 April 2001, but the Sofia City Court postponed it for unspecified reasons to 2 July 2001. At the hearing of that date, the court instructed the applicant to present the original of her work booklet so as to verify the accuracy of the certified photocopies presented to the court in respect of her subsequent employment and adjourned the hearing. The next hearing was conducted on 25 February 2002, when the case was declared ready for decision. In a judgment of 19 March 2002 the Sofia City Court quashed part of the first-instance court judgment in the case and instead reinstated the applicant to her former position and awarded her damages. The court’s finding in favour of the applicant was based on the fact that she had been dismissed while she was on sick leave, which negated the need to examine in substance the grounds of her dismissal and whether she in fact met the requirements for the position. Neither party appealed against the judgment, so it entered into force on 10 May 2002, at the latest. | 0 |
train | 001-112198 | ENG | GBR | CHAMBER | 2,012 | CASE OF MUNJAZ v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - award | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | 6. The applicant was born in 1947. After a number of periods in prison and hospital the applicant was admitted to Ashworth Special Hospital (“Ashworth”) from prison under sections 47 and 49 of the Mental Health Act 1983 on 19 July 1984. He remained an in-patient until March 1992, when he was discharged by the Mental Health Review Tribunal. About a year later he was arrested and charged with a number of offences and was admitted, from prison, to a medium secure unit in August 1993. In that unit he became increasingly psychotic, aggressive and violent. He was placed in seclusion and transferred to Ashworth on 1 March 1994. While at Ashworth he has been secluded on a number of occasions for the protection of others: between 26–30 May 2001, 2–20 June 2001, 18 December 2001–2 January 2002 and 28 March–5 April 2002. Each period of seclusion involved confinement to his bedroom or another room; however, during each period of seclusion, the applicant was allowed periods of association either with staff or other patients. These periods ranged from five minutes to over eight hours. In the first period of seclusion, he had approximately six and a half hours’ association in total; in the second, fifty one hours’ association; in the third, twenty-seven hours’ association; and in the fourth, twenty-one hours’ association. There was only one day, 22 December 2001, when the applicant was not allowed any association at all. 7. Each period of seclusion was made by Ashworth pursuant to its seclusion policy (“the policy”: see paragraphs 26–28 below). There is a national Code of Practice, issued by the Secretary of State for Health under the Mental Health Act, which includes a section on seclusion of psychiatric patients (see paragraphs 23–25 below). The applicant maintains that the hospital’s seclusion policy differs substantially from the Code, particularly by reducing the number and frequency of reviews of his seclusion by a doctor from that laid down in the Code. 8. The applicant first challenged Ashworth’s seclusion policy on this basis in the High Court in 1999. On 10 October 2000, the High Court found that the hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified. 9. Ashworth did not change its policy and the applicant commenced further judicial review proceedings on 12 July 2001. In December 2002, the hospital adopted a new policy, providing for medical review of the continuation of the use of seclusion twice daily on days 2-7 of the seclusion and thereafter three reviews a week by a doctor and a weekly multidisciplinary review. The applicant continued to challenge the legality of the policy on the grounds that from day 8 onwards it did not comply with the review procedures found necessary by the High Court. He also argued that the Code of Practice suggested that there should be medical reviews every four hours. Finally he argued that the hospital’s policy was incompatible with Articles 3 and 8 of the Convention. On 5 July 2002, the High Court ruled that the minimum level of severity required for Article 3 was not met and there was no breach of Article 8. It also found that the Code of Practice was merely guidance. The High Court also accepted the evidence of Ashworth that the applicant had not remained in seclusion for longer than had been necessary, and that there was no evidence that more frequent reviews would have reduced the time spent in seclusion. 10. The applicant appealed to the Court of Appeal and, on 16 July 2003, it allowed his appeal. Relying on X v. the United Kingdom, no. 6840/74, Commission decision of 2 May 1997, Decisions and Reports (DR) 10, p. 5 (cited in the judgment as A. v. the United Kingdom (1980) 3 EHRR 131), it found that seclusion of a detained psychiatric patient was capable of amounting to a breach of Article 3. On the basis of this Court’s ruling in Keenan v. the United Kingdom, no. 27229/95, §§ 108-112, ECHR 2001III, it also found that the Code of Practice, in so far as it regulated seclusion, had to have a status and weight consistent with the State’s obligation to avoid ill-treatment of patients detained by the State. Where there was a risk that agents of the State would treat their patients contrary to Article 3, the State should take steps to avoid this through the publication of a Code of Practice, which its agents were obliged to follow unless they had good reason to depart from it. 11. The Court of Appeal also held that seclusion would breach Article 8 of the Convention unless it could be justified under Article 8 § 2. In considering the need for any interference to be “in accordance with law” in terms of Article 8 § 2, it found that the transparency and predictability required by this provision were supplied by the Code of Practice. It found: “It would fly in the face of the original purposes of the Code if hospitals or professionals were in fact free not to follow it without a good reason. It is clear that section 118(2) (see para 4 above) cannot have been intended as a ‘take it or leave it’ provision. In relation to those matters where a patient’s human rights are or may be engaged, the arguments for according the Code the greater status are compelling. Where there is a risk that agents of the state will treat its patients in a way which contravenes Article 3, the state should take steps to avoid this through the publication of a Code of Practice which its agents are obliged to follow unless they have good reason to depart from it. Where there is an interference with the rights protected by Article 8, the requirement of legality is met through adherence to a Code of Practice again unless there is good reason to depart from it. The same will apply where the Code deals with the deprivation of liberty within the meaning of Article 5.... We conclude that the Code should be observed by all hospitals unless they have a good reason for departing from it in relation to an individual patient. They may identify good reasons for particular departures in relation to groups of patients who share particular well-defined characteristics, so that if the patient falls within that category there will be a good reason for departing from the Code in his case. But they cannot depart from it as a matter of policy and in relation to an arbitrary dividing line which is not properly related to the Code’s definition of seclusion and its requirements.” It concluded that the hospital’s seclusion policy was unlawful. While the court considered Article 5 of the Convention on its own motion, relying on this Court’s rulings in Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, Aerts v. Belgium, judgment of 30 July 1998, Reports of Judgments and Decisions 1998V and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, it found that seclusion did not amount to a further deprivation of liberty. 12. Ashworth appealed to the House of Lords. On 13 October 2005 the House of Lords (by a majority of three to two) allowed the appeal. 13. In the lead speech, Lord Bingham (with whom Lord Hope and Lord Scott agreed) found that the Code of Practice was only guidance and he was satisfied that the hospital had shown good reasons for departing from it. He stated: “21. It is in my view plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2) [of the Mental Health Act 1983 – see paragraph 22 below], any departure would call for even stronger reasons. In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires. 22. The extensive evidence adduced by the Trust makes clear that the Code was very carefully considered. This is indeed evident from the policy itself, which reproduces important parts of the Code and contains cross-references to it. But the policy did depart from the Code in providing for less frequent medical review after Day 7. As the [High Court observed], the Trust ‘has explained the justification for the policy in very considerable detail’. ... 23. In considering the frequency of medical review after Day 7 the Trust were in my opinion entitled to take account of three matters in particular. First, as pointed out in the Introduction to the policy, the Code was directed to the generality of mental hospitals and did not address the special problems of high security hospitals, containing as they inevitably do the most potentially dangerous patients in the country. Secondly, the Code did not recognise the special position of patients whom it was necessary to seclude for longer than a very few days. It has been the experience of the Trust that the condition of those secluded for more than a week does not change rapidly, and that it is in any event unsafe to rely on an apparent improvement without allowing enough time to pass to give grounds for confidence that the improvement will endure. Thirdly, the statutory scheme, while providing for the Secretary of State to give guidance, deliberately left the power and responsibility of final decision to those who bear the legal and practical responsibility for detaining, treating, nursing and caring for the patients. 24. The witness statements submitted by the Trust are very strongly challenged in statements and evidence on behalf of Mr Munjaz, Mind and the Mental Health Act Commission. This is a highly controversial subject, on which professional opinions differ. The 7-day divide between short-term and long-term secluded patients is criticised. So is the practice, adopted at Ashworth, of allowing secluded patients to spend periods of time, sometimes lengthy periods, in closely supervised association with other patients. There are differences of practice, not all of them fully explained, between Ashworth, Broadmoor and Rampton. It is not, however, for the courts to resolve debatable issues of professional practice, but to rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful. In the present case, even with the intense scrutiny called for, I cannot regard the long and detailed statements submitted by the Trust as failing to show good reasons for adopting the policy it has adopted, even though there are many eminent professional experts who take a different view.” 14. Lord Bingham found that Article 3 was not breached by the policy. He held as follows: “29...Despite much learned argument addressed to the House, I do not find it necessary to discuss the extent or probability of the risk or the extent to which it must be foreseen. For I agree with [the High Court] that the policy must be considered as a whole, that the policy, properly operated, will be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than 7 days and that there is no evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights. The patient must be the subject of recorded observation by a nurse at least every 15 minutes and of recorded review by two qualified nurses every 2 hours, one of them (where practicable) not involved in the decision to seclude. In the ordinary course of things it is the nurses who know the patient best, and the nurse in charge of the ward can terminate seclusion at any time. There must be a daily review by a ward manager or site manager of a different ward: these, as the evidence shows, are senior and experienced people. There must be 3 medical reviews each week, one of them involving the patient’s responsible medical officer. There must in addition be a weekly review by a multi-disciplinary patient care team, including the patient’s RMO [Resident Medical Officer]. The seclusion of the patient must be monitored by the hospital’s Seclusion Monitoring Group, which includes the medical director, the hospital director, the head of psychology, the senior nurse, the head of social care, 2 nurses, the ward manager and a non-executive director of the Trust, some of whom must have seen the patient. It reports to the hospital’s Clinical Governance Committee. The Mental Health Act Commission must be informed once a patient has been secluded for 7 days and must thereafter receive regular progress reports: as already noted, it has statutory power to visit and investigate any complaint. The patient may, wherever possible, be visited by a relative. The patient or his representative may appeal to the medical director or his deputy, who must review the case and take account of any representations made. The patient may seek judicial review of the decision to seclude him or continue to seclude him, or to challenge the conditions in which he is secluded. It cannot in my opinion be said, bearing in mind that the standard set must obtain in all member states of the Council of Europe, that a policy containing these safeguards exposes a patient secluded for more than 7 days to any material risk of treatment prohibited by article 3.” 15. On Article 5, Lord Bingham endorsed the Court of Appeal’s finding that it did not apply and added: “The approach to residual liberty which appears to have prevailed in Canada (see Miller v The Queen (1985) 24 DLR (4th) 9) does not, as I understand, reflect the jurisprudence of the European Court. I do not for my part regret this conclusion since, as the Court of Appeal pointed out (in para 70 of its judgment), improper use of seclusion may found complaints under article 3 or article 8, and article 5(4) provides that a successful challenge should result in an order that the detainee be released, not in an order that the conditions of his detention be varied. I would not, for example, understand article 5(4) as enabling a prisoner, lawfully detained, to challenge his prison category. In any event, the Ashworth policy, properly applied as one must assume, does not permit a patient to be deprived of any residual liberty to which he is properly entitled: seclusion must be for as short a period and in conditions as benign as will afford reasonable protection to others who have a right to be protected.” 16. On Article 8 of the Convention, Lord Bingham doubted that seclusion, when properly used in order to protect others from violence and intimidation and when used for the shortest period necessary, was an interference with a patient’s Article 8 rights. He considered that “a detained patient, when in his right mind or during lucid intervals, would not wish to be free to act in such a way [to be violent or intimidating] and would recognise that his best interests were served by his being prevented from doing so.” However, for Lord Bingham, if there were an interference then the “in accordance with law” requirement of Article 8 § 2 had not been breached. He found (at paragraph 34 of the judgment): “The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder... it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable. It is common ground that the power to seclude a patient within the hospital is implied from the power to detain as a ‘necessary ingredient flowing from a power of detention for treatment’ treatment”: see Auld LJ in R v Broadmoor Special Hospital Authority, Ex p S, H and D (5 February 1998, unreported) and the Court of Appeal judgment in the present case, para 40. The procedure adopted by the Trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.” 17. Lord Hope, in agreeing with Lord Bingham, stated: “In my opinion there is nothing that is arbitrary about the way in which Ashworth has departed from the Code in the framing of its Policy. A careful reading of it shows that it is based very substantially on the Code’s guidance, and that where it departs from it – with regard to the frequency of reviews in particular – it does so because of its perception of the way seclusion needs to be used in the special circumstances that obtain at Ashworth. The system that it lays down has been carefully designed to deal with its use for much longer periods than the Code’s guidance was designed for. Its purpose is to ensure that its use for these longer periods is not resorted to at random or arbitrarily. Following the Code’s example, that is the whole purpose of the Policy. 97. As for the question whether Ashworth was free to depart from the Code as a matter of policy, and not just in relation to individual patients or groups of patients, I do not see why this should be so, provided of course that it can demonstrate that it had a good reason for doing so. The distinction which the Court of Appeal made between a departure in the case of individual patients or groups of patients and a departure which takes the form of a written policy for dealing with a particular form of intervention is elusive, and I do not think that it can be regarded as acceptable. There is an obvious danger that, if the Code could be departed from in the case of individual patients or groups of patients where no written guidance was available, decisions to do this would be open to attack as being arbitrary because their consequences were unregulated and unpredictable. That, precisely, is what Ashworth’s Policy seeks to avoid. Good clinical and medical practice dictates that seclusion should only be used in particular situations to protect others and subject to particular conditions to ensure that the patient is not harmed or secluded for any longer than is necessary. The purpose of the Policy is to ensure that the conditions under which it is to be resorted to are clearly understood and carefully observed so that decisions that are taken about the management of this procedure are consistent and not arbitrary. 98. I am in full agreement with all that my noble and learned friend Lord Brown of Eaton-under-Heywood has said about this case except with regard to the issues raised by article 8(2) of the Convention, as to which I have the misfortune to disagree with him. The point that divides us is whether the practice of seclusion carried out at Ashworth in accordance with the Policy is “in accordance with the law.” As his quotation from para 39 of the Court’s judgment in Hewitt and Harman v United Kingdom (1991) 14 EHRR 657 reminds us, it is the quality of the law that matters rather than the form it takes. The touchstones by which its quality is measured are, as Lord Brown says, its transparency, its accessibility, its predictability and its consistency. Where these qualities are present the measure protects against the abuse of power and against conduct which is arbitrary. There is no doubt that the Code satisfied these tests, notwithstanding the fact that there is no statutory obligation to comply with it. In my opinion Ashworth’s Policy, which is careful in all these respects to follow the Code’s example, does so too. It is, of course, true that Ashworth could alter its Policy. But if it did so every departure from the Code would have to be justified in the same way as the Policy itself has had to be justified. I do not think that the fact that Ashworth has its own Policy opens the door to further departures from the Code that could be described as arbitrary. 99. Assuming, of course, that Ashworth has shown - as it has - clearly, logically and convincingly that it had cogent reasons for departing from the Code in these particular respects in favour of its own Policy, I would hold that its decision cannot be said to have been unlawful. Concerns that a departure from the Code in this instance will lead to widespread variations in practice and undermine its status generally or that your Lordships’ judgment lowers the protection offered by the law to mentally disordered patients are misplaced, in my opinion. The requirement that cogent reasons must be shown for any departure from it sets a high standard which is not easily satisfied. The protection which the law provides to ensure that any departures are compatible with Convention rights is an additional safeguard. This has been amply demonstrated in practice since the Code was promulgated. Ashworth is the only place where a hospital has departed from what the Code says about seclusion in favour of its own policy. While I would respectfully endorse everything that Lord Brown says in the last paragraph of his speech [paragraph 127, quoted below], I believe that it would be wrong to see this judgment as opening the door to substantial departures from the Code on the part of individual hospitals. The decision of the majority should not be seen as an invitation to other hospitals to do this and resort to their own policies. The status of the Code remains unchanged, and so does the need to show cogent reasons if in any respect it is departed from. 18. Lord Scott, in agreeing that Ashworth’s policy was in accordance with the law for the purposes of Article 8, emphasised the duty the hospital owed to protect patients and staff from harm. Once it was accepted that Ashworth had no statutory obligation to have a seclusion policy that conformed in every respect to the Code and that Ashworth’s seclusion policy was rational and reasonable in itself despite its divergences from the Code, there could be no room for any suggestion that the implementation of Ashworth’s seclusion policy for the safety of other inmates was otherwise than in accordance with the law. 19. Lord Brown concurred in respect of Articles 3 and 5 and dissented in respect of Article 8. He did not find that the hospital’s policy was “in accordance with law” for the purposes of Article 8 § 2, since it did not have sufficient “quality of law”. In his view, for the requirements of Article 8 § 2 to be met, the Code of Practice had to be given the higher status of the force of law, disentitling individual hospitals to depart from it on policy grounds. He concluded: “125. Not without some considerable hesitation I have reached the conclusion that the Code must indeed be given this higher status. Without such a Code the legal position would be this. The only authority for seclusion would be, in the case of patients detained under the 1983 Act, the implied power of control over those lawfully detained; in the case of informal patients, the common law doctrines of necessity and self-defence. The actual use of seclusion in individual cases would not be regulated save insofar as each hospital practising it would be required to adopt, publish and practise a rational policy of its own. That, of course, is precisely what Ashworth does. But by the same token that Ashworth is permitted to adopt its own policy, so too may other hospitals. Much of the factual focus of the appeal was upon those of Ashworth’s patients who are detained for over seven days. But Ashworth’s policy departs from the Code much earlier than this: only for the first 12 hours does Ashworth conduct medical reviews at 4 hourly intervals as specified by the Code; from then until the end of the seventh day such reviews occur twice (rather than six times) a day. Other hospitals too may think it unnecessary to conduct reviews as frequently as provided for by the Code. And of course there is nothing to stop Ashworth altering its policy whenever it thinks it right to do so. The policy of an individual hospital can be changed with infinitely greater ease than the Code itself. ... 127.The Secretary of State’s Foreword to the 1999 issue of the Code stated that: ‘the Code should be followed’ until necessary new legislation came into force. It ended: ‘The Code provides essential reference guidance for those who apply the Act. Patients and their carers are entitled to expect professionals to use it.’ Under the ruling proposed by the majority of your Lordships, patients and their carers must be reconciled instead to substantial departures from the Code on the part of individual hospitals who may prefer to follow a different policy of their own. It is my reluctant conclusion that not only will these patients and carers be disappointed in their expectations but that the practices in the event adopted by any such hospital (rational though I acknowledge they must certainly be) will not have the necessary legal quality to render them compatible with the rule of law. Unless it is to the Code that one can look for regulation carrying the force of law it is not in my opinion to be found elsewhere. Hospital policies themselves provide too insubstantial a foundation for a practice so potentially harmful and open to abuse as the seclusion of vulnerable mental patients.” 20. Lord Steyn dissented on all three points. On Articles 3 and 8 he approved the reasoning of the Court of Appeal. On the status of the Code of Practice, by section 118(1) of the Mental Health Act 1983 (which directs the Secretary of State to prepare such a code) he found: “...in section 118(1) Parliament had authorised a Code with some minimum safeguards and a modicum of centralised protection for vulnerable patients. This is inconsistent with a free-for-all in which hospitals are at liberty to depart from the published Code as they consider right. Indeed, it seems unlikely that Parliament would have authorised a regime in which hospitals may as a matter of policy depart from the Code. After all that would result in mentally disordered patients being treated about seclusion in a discriminatory manner, depending on the policy adopted by the managers and clinicians in particular hospitals.” He also found Article 5 to be applicable, stating as follows: “Under English law a convicted prisoner, sentenced to imprisonment, retains all his civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] AC 1, at 10G, per Lord Wilberforce. To that extent the prisoner has a residual liberty. The concept of residual liberty is a logical and useful one as demonstrated by the decision of the Canadian Supreme Court in Miller v The Queen (1985) 24 DLR (4th) 9. The reasoning in Miller shows that in a case of a prisoner where solitary confinement is unlawfully and unjustly superimposed upon his prison sentence the added solitary confinement can amount to ‘prison within a prison’: it is capable of constituting a material deprivation of residual liberty ... It would also be wrong to assume that under the jurisprudence of the ECHR residual liberty is not protected. There is relevant European authority not placed before the Court of Appeal. In Bollan v United Kingdom, App No. 42117/98, the European Court of Human Rights, albeit in an admissibility decision, considered the point. The complaint was a comparatively weak one: the prisoner had been confined to her cell, unlawfully it was said, for some two hours. The evidence was that she was a heroin addict who objected to that restriction on her residual liberty. In European terms the case simply did not reach the necessary threshold of severity. The European Court of Human Rights dealt with the legal principles arising under the ECHR as follows: ‘It is undisputed in the present case that Angela Bollan was lawfully detained in Corton Vale prison pursuant to a court order remanding her in custody pending sentence for a criminal offence. Nor is it disputed that the prison was an appropriate establishment for that type of detention or that there was anything inappropriate concerning her place of detention within the prison. The principal issue is whether the decision of the prison officers to leave Angela Bollan in her cell until lunchtime - a period of less than two hours - in itself disclosed an unjustified and unlawful deprivation of her liberty within that prison. The court does not exclude that measures adopted within a prison may disclose interferences with the right to liberty in exceptional circumstances. Generally however, disciplinary steps, imposed formally or informally, which have effects on conditions of detention within a prison, cannot be considered as constituting deprivation of liberty. Such measures must be regarded in normal circumstances as modifications of the conditions of lawful detention and therefore fall outside the scope of Article 5 § 1 of the Convention (see Application no. 7754/77, dec. 9.5.77, D.R. 11, p 216. In appropriate cases, issues may arise however under articles 3 and 8 of the Convention.’ (My emphasis) Plainly, the ECtHR has not ruled out as a matter of principle the concept of residual liberty. On the contrary, it accepts that there is scope for such a doctrine. It will be noted also that the ECtHR observed that in such cases ‘in appropriate cases, issues may arise however under articles 3 and 8 of the Convention’. To that it must be added that, if substantial and unjust seclusion of a mentally disordered patient cannot in our domestic law be protected effectively under articles 3 and 8, the case for protection under article 5 becomes ever stronger. It follows that a substantial period of unnecessary seclusion of a mentally disordered patient, involving total deprivation of any residual liberty that the patient may have within the hospital, is capable of amounting to an unjustified deprivation of liberty.” 21. The relevant domestic law and practice are set out in the speech of Lord Bingham in the House of Lords’ judgment in the present case (paragraphs 4-17) and may be summarised as follows. 22. Section 118 (1) of the Mental Health Act 1983 provides: “1) The Secretary of State shall prepare, and from time to time revise, a code of practice— (a) for the guidance of registered medical practitioners, managers and staff of hospitals and mental nursing homes and approved social workers in relation to the admission of patients to hospitals and mental nursing homes under this Act and to guardianship and after-care under supervision under this Act; and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder.” Before preparing or altering the Code of Practice the Secretary of State is required to consult such bodies as appear to him to be concerned (subsection (3) of the same section). The Code and any revised Code must be laid before Parliament, and either House may within a specified period require its alteration or withdrawal (subsections (4) and (5)). The Code must be published (subsection (6)). By section 120(1) of the 1983 Act the Secretary of State is required to keep under review the exercise of the powers and the discharge of the duties conferred or imposed by the Act so far as they relate to the detention of patients under the Act, and is further required to make arrangements for persons authorised by him in that behalf to visit and interview privately patients detained in hospital under the Act and to investigate complaints made by persons who are or have been detained under the Act. By section 121(2) the Secretary of State must direct that these functions shall be performed by the Mental Health Act Commission, an authoritative professional body established under section 11 of the National Health Service Act 1977 and continued by section 121(1) of the 1983 Act. 23. The Code of Practice was promulgated in March 1999. Chapter 19, entitled “Patients presenting particular management problems”, addresses seclusion. Paragraph 19.16 defines seclusion as follows: “Seclusion is the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others. Seclusion should be used; • as a last resort • for the shortest possible time Seclusion should not be used; • as a punishment or threat • as part of a treatment programme • because of shortage of staff • where there is any risk of suicide or self- harm.” 24. Paragraph 19.17 provides: “Hospitals should have clear written guidelines on the use of seclusion which: • ensure the safety and well being of the patient; • ensure the patient receives the care and support rendered necessary by his or her seclusion both during and after it has taken place; • distinguish between seclusion and ‘time-out’ (see paras 18.9-18.10); • specify a suitable environment taking account of patient’s dignity and physical well being; • set out the roles and responsibilities of staff; • set requirements for recording, monitoring, reviewing the use of seclusion and any follow-up action.” 25. The procedure for seclusion is set out at paragraphs 19.18-19.21: “19.18 The decision to use seclusion can be made in the first instance by a doctor or the nurse in charge. Where the decision is taken by someone other than a doctor, the RMO or duty doctor should be notified at once and should attend immediately unless the seclusion is only for a very brief period (no more than five minutes). 19.19 A nurse should be readily available within sight and sound of the seclusion room at all times throughout the period of the patient’s seclusion, and present at all times with a patient who has been sedated. 19.20 The aim of observation is to monitor the condition and behaviour of the patient and to identify the time at which seclusion can be terminated. The level should be decided on an individual basis and the patient should be observed continuously. A documented report must be made at least every 15 minutes. 19.21 The need to continue seclusion should be reviewed • every 2 hours by 2 nurses (1 of whom was not involved in the decision to seclude), and • every 4 hours by a doctor. A multidisciplinary review should be completed by a consultant or other senior doctor, nurses and other professionals, who were not involved in the incident which led to the seclusion if the seclusion continues for more than: • 8 hours consecutively; or • 12 hours intermittently over a period of 48 hours. If the need for seclusion is disputed by any member of the multidisciplinary team, the matter should be referred to a senior manager.” 26. The policy of Ashworth Hospital applicable to the applicant is as follows. The introduction to the policy states at paragraph 2.4: “The Code of Practice provides guidance on how registered mental health practitioners, managers and staff of hospitals should proceed when undertaking duties under the Act. The Code of Practice revised in March 1999 was written to encompass a wide range of mental health services and does not specifically consider the special situation of a high security hospital.” 27. The policy repeats verbatim the definition of seclusion in the Code of Practice and the Code’s statements on when seclusion should be used and that it should not be used as a punishment or threat or as part of a patient’s treatment. Paragraph 6 of the policy addresses the decision to seclude and provides: “6.3 The decision to use seclusion will be made usually in the first instance by the nurse in charge of the ward. It must be clear which individual made the decision. The RMO or deputy and the Ward Manager or deputy should be informed immediately. 6.4 The doctor and Ward Manager or deputy will attend the ward as soon as possible within the hour to assess the situation and review with the nurse in charge whether or not seclusion is required to continue and assess alternative responses. The doctor will record in the notes any agreed level of observation or intervention in excess of the standard seclusion observation.” A nurse is to be readily available within sight and sound of a room in which a person is secluded at all times, and a paper recording of direct visual observation of the patient is to be made at least every 15 minutes (paragraph 7.1). Paragraph 8 provides for the keeping of detailed records and for a detailed plan for management of the ending of seclusion to ensure its ending at the earliest possible time. 28. The review of seclusion and possible challenges to it are set out in paragraphs 9-11 of the policy which provide as follows: “9 Review 9.1 The RMO [Resident Medical Officer] is responsible for the use of seclusion. Regular reviews must take place involving the RMO or deputy and Ward Manager or deputy. The details of these are given below. 9.2 If a doctor was not present at the time of seclusion, he must initiate a review on arrival within one hour and then at: 9.2.1 First day - medical review at 4, 8, 12 and 24 hours; 9.2.2 Day 2 to day 7 - twice per day; 9.2.3 Day 8 onwards:- [1] daily review by Ward Manager or Site Manager from different ward; [ii] three medical reviews every 7 days [one being by the RMO]; [iii] weekly review by multi-disciplinary patient care team to include RMO; [iv] review by Seclusion Monitoring Group as per paragraph 10 below; 9.3 If at any review at 8 hours or subsequently the doctor is not a consultant psychiatrist the doctor doing the review must consult with the patient’s responsible medical officer or the duty consultant and this should be fully documented. 9.4 The senior manager/nurse will conduct a review on arrival on the ward within one hour of the decision to seclude and then in accordance with the agreed review schedule. 9.5 The nurse in charge will ensure that the patient’s Consultant Psychiatrist, or their deputy is informed at the earliest opportunity. Others involved in the patient’s care should also be informed. 9.6 Two qualified nursing staff will carry out a review of the seclusion every two hours. They will record the outcome in the observation record and they will both sign the entry. 9.7 Where practicable one of the nursing staff who carries out a review of seclusion should not have been involved in the original decision to seclude. 9.8 A Consultant Psychiatrist [who will be the RMO if available or their designated deputy, e g out of hours or during absence from hospital] must see the patient within 72 hours or on the first working day. If waiting until the first working day causes a delay, the duty Registrar must discuss the patient’s care with the duty Consultant or RMO and seek agreement to the delay. 9.9 If the patient remains in seclusion for more than 8 hours continuously or for 12 hours intermittently within a period of 48 hours, an independent review of the need to continue seclusion will take place for this purpose. This should involve, where practicable, one or more clinicians who were not directly involved in the decision to seclude the patient as well as members of the Patient Care Team. However, at least one clinician taking part in the review must not have been involved in the decision to seclude the patient. 9.10 There is an appeal process available to all secluded patients, separate from and additional to the procedures set out within this paragraph. This process is set out at paragraph 16. 10 Monitoring arrangements 10.1 All seclusion used within the hospital is reviewed by a multi-disciplinary group known as the Seclusion Monitoring Group (SMG). 10.2 The functions of the group are as follows: • to monitor the implementation and adherence to the policy and procedure for the use of seclusion • to monitor and review the use of seclusion throughout the hospital • to monitor and review patients secluded under conditions of paragraph 8 of the seclusion procedure • to receive and analyse data relating to seclusion and to monitor overall trends in the use of seclusion • to review documentation for the collection of information about the use of seclusion and alternative management strategies • to examine training and educational needs to support staff mechanisms and make recommendations to the Hospital Authority Board • to prepare and submit reports to Clinical Teams, Executive Directors, Authority Board • to consider any other matters relating to seclusion that occur • to share and disseminate good practice, hospital wide. 10.3 The Seclusion Monitoring Group is chaired by the Medical Director and reports to the Clinical Governance Committee. 11 The use of seclusion for patients posing management problems 11.1 Any patient for whom the clinical team has to institute seclusion in excess of seven days, will be individually brought to the attention of the Medical Director or in their absence the Executive Nurse Director, by the chairperson of the patient’s clinical team, with a resume of the reasons for the continuing use of seclusion, the care and treatment which the patient will be receiving and what is hoped will be achieved. 11.2 The Medical Director will inform the Chief Executive and request a formal case presentation to the next planned meeting of the SMG. 11.3 The Medical Director and Executive Nurse Director, or two representatives of the Seclusion Monitoring Group acting on their behalf, must see the patient whether or not they are familiar with the case. 11.4 Following the case presentation at 10.2, monitoring arrangements will be agreed between the SMG and the patient’s clinical team. 11.7 Each patient’s case will be reviewed weekly by the clinical team and a written report sent monthly to the Seclusion Monitoring Group. At the initial review meeting, and with the patient’s consent, consideration will be given by the team to notifying the patient’s key relative(s). 11.8 After six months, the Medical Director and Executive Nurse Director will participate in a clinical team review. The case will then be discussed at the Executive Team Meeting. 11.9 The Mental Health Act Commission will be informed if seclusion continues beyond 7 days and will receive progress reports on a regular basis.” 29. The Government provided the following information on the nature of Ashworth hospital, and the practice of seclusion there, in the form of witness statements, which had been before the domestic courts in the present case. Those statements were prepared by various senior clinicians at the hospital, including the applicant’s Responsible Medical Officer. 30. Ashworth is one of three hospitals in England providing high security accommodation for persons detained under the Mental Health Act. It includes patients who cannot be reached by treatment and whose persistent illness renders them predictably dangerous. The aim of seclusion at Ashworth is to contain severely disturbed behaviour which is likely to cause harm to others. The majority of those secluded go into and come out of seclusion within seven days. Those who are secluded for more than seven days are likely to be secluded for much longer periods. The common factor in such patients is a danger to others which is not liable to be resolved in the short term, and the decision to terminate seclusion is one to be made over days or even weeks, because of the need to be satisfied of the enduring nature of changes to the patient. Even in such cases, reviews and other safeguards exist to ensure that the patient will not be secluded for longer than necessary, including the possibility of more frequent medical reviews, if necessary. 31. The approach of Ashworth is to allow secluded patients the most liberal regime that was compatible with their presentation. Most patients are secluded in their own rooms and, only if that is not possible, in modified bedrooms or, in the most serious cases, in special seclusion rooms. Staff are always within sight and sound. Meals can be taken in-room or, if the risk permits, on the ward. Secluded patients received regular and frequent visits. Periods are also spent “in association” outside the room, either with staff or other patients, and can last up to several hours. Walks in a secure garden and occupational therapy are also possible. 32. “Count Me In” is a national census of inpatients in mental health and learning disability services in England and Wales, which is carried out jointly by the Healthcare Commission, the Mental Health Act Commission and the National Institute for Mental Health in England. The 2007 census found that approximately 3% (957 of 31,187 patients surveyed) had experienced one or more episodes of seclusion in their period of admission (or in the previous three months, whichever was shorter). 33. The Mental Health Act Commission is a statutory body under section 121 of the Mental Health Act 1983 and has the task, inter alia, of reviewing the operation of the Act and publishing a biennial report (section 121 (11)). Chapter 11 of the Mental Health Act Commission’s Tenth Biennial Report (2001-2003) addressed the legality and practice of seclusion at length. It found that many hospitals failed to comply with the Code of Practice’s provisions on seclusion and recommended that it was now appropriate to provide a framework of statutory regulation of seclusion (at paragraphs 11.17 and 11.24 of the report). A similar recommendation was made in its Eleventh Biennial Report (paragraphs 4.224 et seq.). 34. The Parliamentary Joint Select Committee on Human Rights considered seclusion of mental health patients as part of its report entitled “Deaths in Custody” (Session 2003-2004, Third Report, 14 December 2004. The Committee concluded (at paragraphs 235 and 245): “We remain concerned at the evidence we have received, including from the statutory body responsible for review of mental health services, attesting to the low level of compliance with guidelines on the use of seclusion and of physical force against vulnerable people who have been deprived of their liberty. This situation carries a serious risk of breach of rights under Article 2, Article 3 and Article 8 of the Convention. ... [W]e remain concerned at the under-enforcement of guidance in this highly human rights-sensitive area. We are not confident that Convention compliance can be effectively and comprehensively ensured without some statutory obligations in this area. This should include statutory obligations on all health authorities to keep comprehensive records of all violent incidents.” 35. In its report on the Mental Health Act 2007, during its passage as a Bill, the Joint Committee returned to the issue of seclusion and recommended: “We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary.” 36. The Mental Health Alliance (a coalition of seventy-five organisations working in the field of mental health) also campaigned for an amendment to the Mental Health Act 2007 to provide statutory regulation of seclusion. It adopted the views of the Joint Committee and the Mental Health Act Commission set out above. The proposed amendment was not adopted. 37. On 17 December 1991, in resolution 46/119, the General Assembly of the United Nations adopted “Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care”. Principle 11 is entitled “Consent to treatment” and at paragraph 11 it provides: “Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient’s medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.” 38. Recommendation Rec2004 (10) of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder, where relevant provides as follows: “Article 25 – Reviews and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment 1. Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right: i. to appeal against a decision; ii. to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; iii. to be heard in person or through a personal advocate or representative at such reviews or appeals. 2. If the person, or that person’s personal advocate or representative, if any, does not request such review, the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals. ... Article 27 – Seclusion and restraint 1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2. Such measures should only be used under medical supervision, and should be appropriately documented. 3. In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person’s medical records and in a register.” 39. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is required to draw up an annual general report on its activities. The substantive sections of those reports are collected in CPT/Inf/E (2002) 1 - Rev. 2006: “the CPT Standards”. Chapter V of the CPT standards covers involuntary placement in psychiatric establishments and paragraph 49 provides: “Reference should also be made in this context to the seclusion (i.e. confinement alone in a room) of violent or otherwise "unmanageable" patients, a procedure which has a long history in psychiatry. There is a clear trend in modern psychiatric practice in favour of avoiding seclusion of patients, and the CPT is pleased to note that it is being phased out in many countries. For so long as seclusion remains in use, it should be the subject of a detailed policy spelling out, in particular: the types of cases in which it may be used; the objectives sought; its duration and the need for regular reviews; the existence of appropriate human contact; the need for staff to be especially attentive. Seclusion should never be used as a punishment.” 40. In Miller v The Queen (1985) 24 DLR (4th) 9), 12 October 1984, the Supreme Court of Canada considered whether a prisoner who had been placed within a “Special Handling Unit” at his normal place of detention could bring habeas corpus proceedings to challenge that placement. In finding that he could, the court stated that a prisoner was not without some rights or residual liberty and that there may be significant degrees of deprivation of liberty within a penal institution. In effect, a prisoner had the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution (Le Dain J for the Court at paragraph 32). | 0 |
train | 001-111179 | ENG | RUS | CHAMBER | 2,012 | CASE OF SOLIYEV v. RUSSIA | 3 | Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention;Take proceedings) | Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1974 and lives in Kazan. 6. In September 2009 the applicant left Uzbekistan for Russia looking for employment. On 8 September 2009 he arrived in the city of Kazan, Russia. 7. On 24 December 2009 the Uzbek security service charged the applicant with attempting to overthrow the constitutional order, belonging to a religious group (the Islamic Movement of Uzbekistan) and dissemination of subversive materials. 8. On the same date, an Uzbek judge issued an arrest warrant against the applicant. His name was put on a wanted list. 9. On 30 March 2010 the Russian police arrested the applicant, who had gone to the premises of the migration authority in order to apply for a temporary residence permit. The police relied on Articles 91 and 92 of the Code of Criminal Procedure (“the CCrP”) concerning the arrest of suspects. According to the respondent Government, the presence of the applicant’s name on the wanted list justified his arrest (Article 61 of the Minsk Convention). 10. On the same date, the Uzbek authorities confirmed to the Russian authorities that the applicant’s name was still on the wanted list. 11. A deputy town prosecutor applied to the Vakhitovskiy District Court of Kazan seeking the applicant’s detention with a view to extradition. On 1 April 2010 the District Court confirmed the lawfulness of the applicant’s arrest and authorised his detention until 8 May 2010 in anticipation of an eventual extradition request. The court referred to Articles 97 § 1, 99, 108 and 466 of the CCrP. The court noted that the applicant was a foreign national and had no permanent place of residence in Russia; a foreign court had issued an arrest warrant against him and his name had been put on a wanted list; he had fled justice in Uzbekistan; and thus there was a risk that he would flee again or continue his criminal activity. 12. On 15 April 2010 the applicant applied to the Tatarstan Department of the Federal Migration Service for asylum. 13. On 4 May 2010 the Uzbek Prosecutor General’s Office sent a formal extradition request to the Russian Prosecutor General’s Office. 14. On 7 May 2010 the District Court examined a prosecutor’s request and extended the term of the applicant’s detention until 8 July 2010, with reference to Article 109 § 2 of the CCrP. 15. Before the expiry of the previous detention order, for unspecified reasons on 25 May 2010 the District Court issued a new detention order, extending the applicant’s detention until 30 September 2010, with reference to Article 109 § 2 of the CCrP. 16. The applicant considered that it was impracticable in such circumstances to appeal against the detention order of 7 May 2010. 17. On 4 August 2010 the Russian Prosecutor General’s Office authorised the applicant’s extradition. 18. The applicant was notified of this decision on 23 August 2010. He brought judicial review proceedings against the extradition order, claiming that as his asylum proceedings were pending, the enforcement of the extradition order was suspended. He also asserted that if extradited he would run a serious risk of torture or inhuman treatment. 19. In the meantime, on 26 August 2010 the applicant was informed that his asylum request had been dismissed. He appealed to a higher migration authority. 20. On 20 September 2010 the Supreme Court of Tatarstan held a hearing on the applicant’s appeal against the extradition order. The applicant’s counsel pleaded that in the event of his extradition the applicant would be subjected to torture, like many other individuals charged in relation to religious or extremist activities. On the same date the Supreme Court of Tatarstan dismissed the case, considering that the allegations of ill-treatment had been based on mere assumptions and that the applicant had applied for asylum only when criminal proceedings against him had already been pending in Uzbekistan. 21. The applicant appealed to the Supreme Court of Russia. It appears that on an unspecified date it quashed the judgment of 20 September 2010 and ordered the re-examination of the extradition case. 22. On 30 September 2010 the District Court extended the applicant’s detention until 30 November 2010. It is stated in the detention order that “if the defendant decides to lodge an appeal, he has the right to ask, within three days of receipt of the detention order, for his personal participation in the appeal hearing”. On 30 September 2010 the applicant also signed a note confirming receipt of a copy of the detention order and that he had been informed of his rights to “participate in the appeal hearing and to have legal assistance”. 23. On 4 October 2010 the applicant’s lawyer lodged a statement of appeal, arguing that there was no evidence that the applicant would flee justice or reoffend; that his application for refugee status was pending; and that the prosecutor’s extension request had been submitted to the district court less than seven days before the expiry of the previous detention order, in breach of Article 109 § 8 of the CCrP. The statement of appeal did not contain any request for the lawyer’s and/or the applicant’s participation in the appeal hearing. 24. On 5 October 2010 the prosecutor made observations in reply, stating that the applicant’s arguments had been unfounded and that the application for refugee status had been dismissed. 25. According to the Government, the applicant and his counsel had been informed in advance of the date and time of the appeal hearing. On 8 October 2010 the Supreme Court of Tatarstan heard a prosecutor and upheld the detention order. Neither the applicant nor his lawyer had been present at the appeal hearing. 26. On 25 November 2010 the district court extended the applicant’s detention to 30 January 2011. 27. Having re-examined the extradition case, on 10 December 2010 the Supreme Court of Tatarstan annulled the extradition order. With reference to the international reports and other material submitted by the applicant and the European Court’s case-law on the matter, the court considered that there was a persistent practice of torture of detained suspects or convicts in Uzbekistan and that the applicant also faced a risk of such mistreatment. The court also noted that “in a number of judgments the European Court has held that the mere fact of detention in this country created a risk of ill-treatment”. 28. The applicant was released on the same day. 29. On 3 February 2011 the Supreme Court of Russia examined the prosecutor’s subsequent appeal and upheld the judgment of 10 December 2010. The appeal court noted that there had been a material difference between the criminal offences mentioned in the extradition request and the corresponding offences under the Russian Criminal Code; that the extradition order had been issued before the final decision had been taken on the applicant’s refugee application; and that there had been indications of a risk of ill-treatment in Uzbekistan, in particular in the absence of any relevant assurances on the part of the Uzbek authorities. 30. Article 376 of the Russian Code of Criminal Procedure (“the CCrP”) provided at the time that the parties should be informed of the date, time and place of an appeal hearing and that the court had to decide whether the defendant’s presence was necessary. A convicted defendant, who was in detention and who had asked for his personal participation in the appeal hearing, was to be allowed to do so by way of personal presence in the courtroom or by way of a video link. A party’s failure to appear before the appeal court was not to halt the appeal proceedings. 31. The Constitutional Court considered that Article 376 of the CCrP should be read in conjunction with Articles 16, 50 and 51 of the CCrP, thus requiring the provision of legal assistance in appeal proceedings, if requested by the defendant or in the circumstances provided by the law (including in cases of mandatory legal assistance) (decision no. 251-O-П of 8 February 2007). 32. The Constitutional Court interpreted Article 376 of the CCrP as applicable to appeal proceedings concerning the issue of detention (decision no. 66-O of 22 January 2004; see also decision no. 201-Д11-1 of the Supreme Court of Russia of 20 January 2011). | 0 |
train | 001-75707 | ENG | TUR | CHAMBER | 2,006 | CASE OF DOLGUN v. TURKEY | 4 | Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | null | 4. The applicant was born in 1934 and lives in Mersin. 5. On 20 July 1993 the General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicant in Mersin in order to build a motorway. A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place. 6. Following the applicant’s request for increased compensation, on 16 June 1994 the Mersin Civil Court awarded him additional compensation in the amount of 343,826,000 Turkish liras (TRL), plus interest at the statutory rate, applicable at the date of the court’s decision, running from 20 July 1993, the date of transfer of the title deeds. 7. On 1 June 1998 the Court of Cassation upheld the judgment. 8. On 17 May 2000 the General Directorate of National Roads and Highways paid the applicant TRL 1,336,460,000, interest included. 9. The relevant domestic law and practice are set out in the Akkuş v. Turkey judgment of 9 July 1997 (Reports of Judgments and Decision 1997-IV). | 0 |
train | 001-117684 | ENG | AUT | CHAMBER | 2,013 | CASE OF I.K. v. AUSTRIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia);Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 7. The applicant, a Russian national of Chechen origin, was born in 1976 and lives in Vienna. 8. The applicant left Chechnya for Kyrgyzstan and Poland in April 2004, with his mother. They arrived in Austria in November 2004 and lodged an asylum request there. 9. He claimed in his asylum proceedings that in 2001 his father had been shot before his eyes. The applicant’s father had worked in the security services of former President Maskhadov, a separatist leader, which was why he and his family had been persecuted. Furthermore, the applicant had been arrested four times and only released after the payment of a ransom. The applicant stated that he had been ill-treated during those arrests and also that in 2004 Russian soldiers had brutally beaten him in the course of an identity check. 10. On 5 March 2007 the Federal Asylum Office (Bundesasylamt) dismissed the applicant’s asylum request as unfounded. It found the applicant’s story contradictory and unconvincing and also found that he had failed to substantiate the existence of any real risk to himself. 11. It seems that the applicant’s mother’s asylum request was also dismissed, for the same reasons. 12. The applicant and his mother appealed. However, after an oral appeal hearing, the applicant withdrew his appeal on 28 April 2009 due to allegedly wrong legal advice he received at the time. 13. On 12 May 2009 the Asylum Court (Asylgerichtshof) allowed the applicant’s mother’s appeal and granted her the status of a recognised refugee. As regards her flight story it found as follows: “The following has been established concerning the appellant and her reasons for fleeing: The appellant claims to be a Russian Federation national of Chechen ethnic origin and, prior to fleeing, lived in the village of Kurchaloy in Chechnya. It is credible that in the event of her return to her country of origin, the appellant would be under threat from State authorities or third parties on account of her membership of a particular social group. The appellant alleged that she was under threat from Russian and Chechen security forces because of her husband’s previous activities. It has been found plausible that the appellant’s husband was an officer for a Chechen security agency and was murdered by the security forces on 5 November 2001 in the village of Kurchaloy. The findings as to the appellant and her reasons for fleeing result from the descriptions given by the persons examined at the hearing, which – in this respect – are consistent and credible. The appellant was able to give a description of her husband’s murder that was clear and consistent with her previous statements, thereby conveying the impression of having actually experienced what she was talking about. The witness C.S. gave a convincing statement confirming that the appellant’s husband worked for a Chechen security agency.” 14. After referring to a number of general country reports on Russia and the north Caucasus region, the Asylum Court continued its legal assessment of the facts of the applicant’s mother’s case, as follows: “Regard being had to the findings concerning the situation of Chechens in the Russian Federation, the appellant faces an objective risk of persecution in view of the facts established as to her reasons for seeking asylum. The appellant’s husband was murdered in his homeland because of his work for a Chechen security agency. Accordingly, the appellant is already known to the Russian and pro-Russian authorities and has come specifically to their attention. This means that she is in particular danger of being arrested by the security forces in Chechnya, and in such an eventuality there is a significant probability that she would be at risk of suffering human rights violations. Moreover, in view of the situation in Chechnya and the fact that the appellant is known by name to the authorities, it cannot be assumed with sufficient certainty that she would not be exposed in other parts of the Russian Federation, for example, to attacks of any kind warranting asylum or that she could expect effective protection from the authorities against such attacks. Accordingly, the appellant – who, moreover, is suffering from post-traumatic stress disorder – has no reasonable internal flight alternatives available either.” 15. On 4 June 2009 the applicant lodged a new asylum request. In interviews conducted in the course of those asylum proceedings, the applicant repeated the initial reasons he had given for leaving Chechnya, and informed the authorities that he had married a Russian national in March 2008 and that the couple had two children together, born in 2009 and 2010. When asked if his mother was alive, the applicant stated his mother’s name and that she lived with him and his family in the same apartment. He explained that his family therefore all lived in Austria and that he would like to be with them and work there. When the applicant was notified that he had not lodged any new facts, he stated that he knew that, but that he did not have any new facts to offer or information in that regard. 16. The applicant confirmed that he still had relatives and friends in Chechnya and that a cousin of his had returned to Chechnya from Austria in 2010. A brother of his father lived in Ingushetia. Referring to his criminal convictions (see paragraphs 25 and 26 below) the applicant stated that he regretted his mistakes. Finally, in the interview on 5 January 2011 the applicant stated, when asked whether he was taking any medication at the moment, that he was not. 17. On 11 January 2011 the Federal Asylum Office rejected the applicant’s subsequent asylum request as res judicata. It established the applicant’s identity and reiterated the proceedings in his respect. In the context of the applicant’s private and family life in Austria, the Federal Asylum Office referred to his mother, wife and children, confirming that they were all recognised refugees in Austria and citing their file numbers. Indicating various country reports, inter alia by the German Federal Foreign Office of 2010, the United States Department of State Report on Russia of 2010, the Office for Foreigners (Poland), CEDOCA, the Documentation and Research Centre of the Office of the Commissioner General for Refugees and Stateless Persons (Belgium) and the country of origin information available to the Federal Asylum Office, it noted that the general security situation and the protection of human rights in the north Caucasus region had deteriorated again in 2008 and 2009. In some cases of individuals who had decided to follow rebel groups, the authorities were reported to have retaliated by burning down the houses of their relatives. The numbers of abductions had also increased again, to seventy-four cases in the first half of 2009. The Federal Asylum Office further referred to the amnesty regime introduced in 2006 and the surge of house burnings in 2008 and 2009. 18. In conclusion and as regards the applicant’s submissions, the Federal Asylum Office stated that the applicant’s initial reasons for leaving had already been considered unconvincing in the first proceedings and that the applicant had not forwarded any new relevant information in the new proceedings. 19. An appeal by the applicant against this decision was granted suspensive effect. In his appeal the applicant claimed deficiencies of the proceedings and a wrong legal assessment of the established facts by the Federal Asylum Office. He claimed that, because he was still at real risk of persecution if he returned to Chechnya and because of the deterioration of the security situation there, his subsequent asylum request could not be considered a res judicata. 20. On 1 April 2011 the Asylum Court dismissed the appeal as unfounded. In the summary of the facts of the case, it referred to the applicant’s mother, wife and children, while again citing the file numbers of their asylum proceedings. 21. As regards the nature of a res judicata, it reiterated that a new decision on the merits of an application could only be based upon a change of circumstances which was significant enough to allow the conclusion, either alone or in combination with other facts, that those reasons for which the former application had been dismissed were to be evaluated differently in the present proceedings. Referring to long-standing administrative jurisprudence, it further stated that the credibility of the alleged new facts had to be evaluated anew in the context of all former investigation results in the event that those alleged new facts could prima facie lead to a different outcome of the proceedings. 22. The Asylum Court went on and established that the applicant’s reasons for leaving Chechnya presented in the subsequent proceedings had already been deemed unconvincing by the previous final decision. It therefore confirmed that the applicant had not presented any relevant new information with regard to his asylum request. Furthermore, the applicant was not suffering from any severe psychological or physical illness, and still had friends and family living in Chechnya. 23. With regard to the applicant’s right to respect for his family life, it considered that the applicant’s removal to Russia would constitute an interference with his family life, since the applicant lived with his mother, wife and two minor children, who were all recognised refugees, but found that the applicant had never had secure residence status in Austria, even when he had married, and that he had not shown that he had substantially integrated into Austrian society. On the other hand, the applicant had been convicted four times of criminal offences such as theft and aggravated bodily harm, and an exclusion order in respect of residence until September 2013 had been issued in 2007, which had led to the conclusion that the public interest in the applicant’s removal outweighed his private interest in respect of his family life in Austria. 24. On 10 June 2011 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicant’s application for legal aid to enable him to lodge a complaint. That decision was served on the applicant’s counsel on 18 July 2011. 25. The applicant was convicted of theft and attempted theft on 29 November 2005 and 29 March 2006, fined 100 euros (EUR) and sentenced to one month’s imprisonment, suspended with probation. On 22 May 2007 the Krems Regional Court (Landesgericht Krems) convicted the applicant of trafficking under the 2005 Aliens Police Act (Fremdenpolizeigesetz) and of aggravated bodily harm, and sentenced him to ten months’ imprisonment. Finally, on 6 February 2008, the Vienna Regional Court (Landesgericht Wien) again convicted the applicant of aggravated bodily harm and sentenced him to an additional two months’ imprisonment. 26. On 27 June 2007 the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited residence ban (unbefristetes Rückkehrverbot) against the applicant. Due to an amendment of the 2005 Aliens Police Act, the validity of the residence ban was later reduced to ten years, i.e. until 24 July 2017. 27. On 2 August 2011 the Vienna Federal Police Authority summoned the applicant to arrange for his removal. It seems that a travel certificate had been requested. 28. On 17 January 2012 the Court applied an interim measure under Rule 39 and requested the Austrian Government to stay the applicant’s removal to Russia until further notice. 29. From 28 June to 6 July 2011 the applicant was treated as an inpatient at Otto Wagner Hospital in Vienna for a depressive episode. The discharge letter of 7 July 2011 stated that he had been admitted suffering from a severe depressive episode and suicidal thoughts, so that his medication could be adjusted. He was prescribed Cipralex and Mirtabene when he was released. For his health to continue to improve it was recommended that he should continue to have his family’s support and that removal to Russia would be irresponsible from a psychiatric point of view. 30. On 27 June 2011 and after one consultation, Vienna General Hospital confirmed that the applicant was suffering from post-traumatic stress disorder and a medium-level depressive episode and recommended pharmacological and psychotherapeutical treatment. It also advised against removing him to Russia. 31. A diagnostic letter from Wilhelminen Hospital in Vienna dated 12 May 2010 stated that a CT scan had shown a facial bone conversion in his right ventral maxilla that would correspond with the applicant’s statement that he had been physically abused in Chechnya. 32. Section 68 § 1 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) provided that submissions from individuals who request modification of a ruling which is not, or is no longer, subject to appeal, shall be rejected as res judicata. In this context the 2005 Asylum Act (Asylgesetz 2005) included in its section 75 § 4 a reference to section 68 of the Code of General Administrative Procedure that “Decisions rejecting or dismissing a request under the [former versions of the] Asylum Act ... shall constitute res judicata in proceedings under this Federal Act concerning the same facts.” 33. The Austrian Administrative Court has observed in its jurisprudence as follows (see judgment of the Administrative Court of 21 November 2002, no. 2002/20/0315): “An alleged change in circumstances may entitle and require the authority to give a fresh decision on the merits – once it has carried out any necessary investigations of its own motion under section 28 of the 1997 Asylum Act – only where such a change, by itself or in combination with other facts, would be of legal relevance to the question of asylum; a different legal assessment of the request must not be prima facie inconceivable. Furthermore, the alleged change in circumstances must have at least a credible basis which is relevant to the question of asylum and to which to the above-mentioned prospect of a positive decision can be linked. To that end, as soon as it begins to examine the admissibility of the (fresh) asylum request, the authority must address the credibility of the asylum-seeker’s allegations and, where appropriate, the evidential value of any certificates. Should the authority’s investigations conclude that, contrary to the party’s allegations, a change in circumstances which is prima facie capable of giving rise to a different assessment has not in fact occurred, the asylum request must be rejected in accordance with section 68(1) of the Code of General Administrative Procedure (see decision of 19 July 2001, no. 99/20/0418, with further references; see also the case-law recapitulated in Walter/Thienel, Verwaltungsverfahrensgesetze I, 2nd ed., notes 73 et seq. on section 68 of the Code of General Administrative Procedure).” 34. This section gives a short overview of selected reports from various easily accessible sources on the security and human rights situation in Chechnya available at the time of the applicant’s subsequent asylum proceedings in Austria. 35. The Commissioner stated that the north Caucasus has been a region of major interest and concern from the very beginnings of the office of the Commissioner of Human Rights in 1999. 36. The Commissioner noted that the lifting of the decade-long counterterrorist operation in the Chechen Republic had not been accompanied by a diminution in the activities of illegal armed groups. Federal and Chechen authorities had carried out over 100 special operations in the first half of 2009 (see paragraphs 21-23). The report further noted an increase in the number of abductions and disappearances in Chechnya since the end of 2008. In some cases, the involvement of law-enforcement officials had been alleged (see paragraph 30). Finally, the lack of effective investigations of repeated human rights violations, the alleged involvement of law-enforcement officials in crimes, and the deficiencies of the judiciary, were concerns which had been raised by both the current Commissioner and his predecessor (see paragraph 39). 37. He concluded the report with regret, in view of the fact that stability in the north Caucasus region had yet to be achieved. Increased activity by illegal armed groups, the lack of effective investigations of disappearances and killings, and murders of human rights activists were of particular concern. Patterns of impunity persisted, even though there were indications of serious efforts to reinforce the rule of law. The difficult economic situation was one of the destabilising factors, and the need for economic development and further social reconstruction was evident (see paragraph 64). 38. This report described the north Caucasus region of Russia as remaining an area of particular concern. The government’s poor human rights record in the north Caucasus worsened as the government fought insurgents, Islamist militants, and criminal forces. Local government and insurgent forces reportedly engaged in killing, torture, abuse, violence, politically motivated abductions, and other brutal or humiliating treatment, often with impunity. In Chechnya, Ingushetia and Dagestan, the number of extrajudicial killings and disappearances increased markedly, as did the number of attacks on law-enforcement personnel. Authorities in the north Caucasus appeared to be acting outside federal government control. Although the Chechen government announced a formal end to counterterrorist operations, there was an increase in violence during the summer, which continued through the remainder of the year. Federal and local security forces in Chechnya, as well as the private militia of Chechen president Ramzan Kadyrov, allegedly targeted families of suspected insurgents for reprisals and committed other abuses. There were also reports of rebel involvement in bombing civilian targets and of politically motivated disappearances in the region. Some rebels were allegedly involved in kidnapping for ransom. According to the Internetbased news agency Caucasian Knot, 342 members of law-enforcement agencies lost their lives and 680 were injured during the year in actions involving insurgents. Thousands of internally displaced persons were living in temporary centres in the region: the centres failed to meet international standards. 39. Under the heading “Use of Excessive Force and Other Abuses in Internal Conflicts”, it was noted that during the year complex and inter-connected insurgencies caused continuing instability in the north Caucasus, with a marked upsurge in incidents committed by government and insurgent forces during the year. Overall, there were increases in disappearances, killings, and other abuses. There were reports that federal and local security forces seeking to quell the insurgencies were continuing to use excessive force and to engage in human rights abuses, including torture, summary executions, disappearances, and arbitrary detentions. Authorities in the north Caucasus were reportedly acting with impunity, and some observers alleged that the federal government had ceded de facto control of the region to local authorities. Rebels were also continuing to commit human rights abuses, including major acts of terrorism and summary executions. 40. As regards abductions, the report stated that Government personnel, rebels and criminal elements were continuing to engage in abductions in the north Caucasus. Officials and observers disagreed on the numbers involved. Human rights groups believed that the numbers of abductions were under-reported, due to the reluctance of detainees’ relatives to complain to authorities for fear of reprisals. The Memorial NGO reported that during the year there were ninety kidnappings in Chechnya, while the MAShR NGO reported 234 disappearances in Ingushetia and thirty-one disappearances in Dagestan. It stated that there was no accountability for government forces involved in abductions. There were continued reports that abductions were followed by beatings or torture to extract confessions, and that abductions were conducted for political reasons. Criminal groups in the region, possibly with links to rebel forces, frequently resorted to kidnapping. 41. Finally, under the heading “Physical Abuse, Punishment and Torture”, it could be read that armed forces and police units were reported to have frequently abused and tortured people in holding facilities where federal authorities took them to separate fighters and those who were suspected of aiding rebels from ordinary civilians. 42. The Amnesty International report stated that there were continuing reports of human rights violations, including arbitrary detention, torture and ill-treatment, and extrajudicial executions, by law-enforcement officials in Chechnya, Dagestan and Ingushetia. There was also an ongoing concern that investigations of these violations were not effective, resulting in widespread impunity. 43. The present report was an update to the organisation’s report of 2007 and used sources from human rights organisations, such as the Human Rights Centre of the Russian NGO Memorial, Amnesty International and Human Rights Watch, as well as the results of a meeting with six human-rights activists from the north Caucasus and a Chechen human-rights specialist. The report stated that the security situation in the whole north Caucasus region had deteriorated. In summer 2009 the number of those killed in “special operations” conducted by security services or in terrorist attacks had doubled. The Centre for Strategic and International Studies CSIS reported 442 deaths between May and August 2009 in the whole region (see page 4). 44. The report cited arbitrary arrests, secretive detention, torture and ill-treatment, disappearances and abductions, death in detention and extrajudicial executions, the burning of houses, displacements and forced recruitments as the most severe violations of human rights (see page 10 et seq.). 45. Members of non-governmental organisations, journalists, members of the political opposition, victims and their relatives, witnesses and lawyers, relatives of armed rebels or of members of the security services, young religious men and internally displaced persons were considered to be those most at risk of being subjected to serious human rights violations in the region. Furthermore, returnees from abroad were, according to a member of Memorial, at particular risk. They were under suspicion of having fled because of their membership of the armed opposition and of having returned with considerable financial resources. 46. In this context the report referred to a letter from the Austrian office of the United Nations High Commissioner for Refugees (“the UNHCR”) of 7 April 2009 that stated, as regards asylum requests by refugees from Chechnya, that while the military and security situation in Chechnya had significantly improved, there were still instances of human-rights violations that could lead to well-founded asylum requests by Chechens. Such requests should therefore be fairly and efficiently examined by the authorities. As regards those who had already been recognised as refugees, the UNHCR recommended that they should in any event be able to keep their legal status. Any return to the Russian Federation should be done on an exclusively voluntary basis (see page 20, including a link to the cited document by the UNHCR office in Austria). 47. The Court summarised newer relevant country reports only recently in its judgement Bajsultanov v. Austria (see Bajsultanov v. Austria, no. 54131/10, §§ 38 et seq, 12 June 2012). Where available, updated information once more depicts the following situation: 48. The report for 2011 identified as one of the most significant problems during that year in its executive summary that the rule of law was particularly deficient in the north Caucasus, where the conflict between the government and insurgents, Islamist militants and criminal forces had led to numerous human rights abuses by security forces and insurgents, who were reportedly engaging in killing, torture, physical abuse and politically motivated abductions. In addition, the government of Ramzan Kadyrov in Chechnya was continuing to violate fundamental freedoms, engage in collective retribution against families of suspected militants, and foster an overall atmosphere of fear and intimidation. 49. More precisely, the report stated under the heading “Use of Excessive Force and Other Abuses in Internal Conflicts” that violence was continuing in the north Caucasus republics, driven by separatism, inter-ethnic conflict, jihadist movements, vendettas, criminality and excesses by security forces. Dagestan continued to be the most violent area in the north Caucasus; Kabardino-Balkaria also saw an increase in violence compared with the previous year, while violence continued to decrease in Chechnya, Ingushetia and North Ossetia. 50. It further noted that government personnel, rebels and criminal elements were continuing to engage in abductions in the north Caucasus. The head of the prosecutor general’s office for the north Caucasus stated in June that more than 2,100 disappearances remained unsolved in the north Caucasus republics. Security forces in Chechnya, Dagestan and Ingushetia frequently abducted or detained individuals for several days without immediate explanation or charge. Human rights groups believed the number of abductions was under-reported because victims’ relatives were reluctant to complain to authorities due to fear of reprisals. Generally, there was no accountability for government security personnel involved in abductions. Memorial reported at the beginning of the year that at least eight Russian citizens from the north Caucasus had been kidnapped since September 2010. According to Caucasian Knot, in the first eleven months of 2011 there were sixty-four disappearances, twenty-eight of which took place in Dagestan, twenty in Chechnya, thirteen in Ingushetia and three in Kabardino-Balkaria. Human rights groups alleged that security forces under the command of Kadyrov played a significant role in abductions, either on their own initiative or in joint operations with federal forces, including abductions of family members of rebel commanders and fighters. 51. Under the heading “Physical abuse, punishment and torture” the paper mentioned that armed forces and police units in the region reportedly abused and tortured both rebels and civilians in holding facilities. The burning of homes of suspected rebels, a mechanism of collective punishment in use since 2008, was reportedly continuing. 52. As regards the security situation in the north Caucasus, the report found that it remained volatile, and serious human rights abuses were being committed by both armed groups and security officials. The rapid post-conflict reconstruction of Chechnya continued with high levels of federal funding, though unemployment remained a problem. Activity by armed groups declined compared to other regions in the north Caucasus. Law-enforcement operations continued to give rise to reports of serious human rights violations. In a letter to the human rights NGO The Interregional Committee Against Torture, a senior Chechen prosecutor acknowledged that investigations of enforced disappearances in Chechnya were ineffective. 53. As regards the north Caucasus the report stated that according to official statements, the number of insurgent attacks in the north Caucasus doubled in 2010 compared to 2009. In 2011 the Islamist insurgency remained on the rise, especially in the Republic of Dagestan. The authorities’ use of torture, abduction-style detention, enforced disappearances and extrajudicial killings in the course of their counter-insurgency campaign, coupled with impunity for these abuses, had antagonised the population of the north Caucasus. 54. Chechen law-enforcement and security agencies under Ramzan Kadyrov’s de facto control were continuing to resort to collective punishment of relatives and suspected supporters of alleged insurgents. Memorial documented eleven abductions of local residents by security forces between January and September 2011. Five of those abducted subsequently “disappeared”. 55. Increasingly, victims refused to speak about violations due to fear of official retribution. In a letter to a Russian NGO in March 2011 federal authorities stated that police in the Chechen Republic sabotaged investigations of abductions of local residents, and sometimes covered up for perpetrators. The letter marked the first public acknowledgment of the importance of federal investigative authorities in investigating abuses in Chechnya. | 1 |
train | 001-60537 | ENG | POL | CHAMBER | 2,002 | CASE OF ERYK KAWKA v. POLAND | 3 | Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | Christos Rozakis | 8. On 13 January 1996 the applicant was arrested by the police and brought before the Gliwice District Prosecutor (Prokurator Rejonowy). On the same day, the prosecutor charged the applicant with robbery and detained him on remand because there existed a reasonable suspicion that he had committed the offence and because of the serious nature of that offence. 9. On 5 February 1996 the applicant sent a letter to the Gliwice District prosecutor, asking to be informed of the reasons for his detention. That letter was deemed to be an application for release. It was examined as such and rejected on 12 February 1996. 10. On 11 March 1996 the applicant was indicted on the charge of robbery. 11. On 17 June 1996 the Gliwice District Court convicted the applicant as charged and sentenced him to four years and six months' imprisonment and three years' deprivation of his civic rights. 12. The relevant domestic law is described in the judgment Niedbała v. Poland, no. 27915/95, §§ 18-20 and 24-31, 4 July 2000, unreported. | 1 |
train | 001-71321 | ENG | UKR | CHAMBER | 2,005 | CASE OF CHERGINETS v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award | null | 4. The applicant was born in 1972 and lives in the village of Yelizavetovka, the Dnepropetrovsk Region. 5. On 20 November 2001 and 5 February 2003 the Dneprovsky District Court of Dneprodzerzhynks (hereafter “the District Court”) awarded the applicant a total of UAH 14,987 against the Dneprodzerzhynksy Zavod Elektroispolnitelnyh Mekhanizmov Company (hereafter “the Company”) in salary arrears. Both judgments became final and were sent to the Dneprovsky District Bailiffs’ Service of Dneprodzerzhynks (hereafter “the Bailiffs”) for compulsory enforcement. 6. On 14 May 2003 the District Court rejected the applicant’s complaint about the Bailiffs’ alleged inactivity. The court pointed out that the judgments given in the applicant’s favour could not be executed in due time and in full on account of the debtor’s lack of funds, the moratorium on the forced sale of the property of State-owned enterprises and a lien placed on the company’s assets to secure the payment of taxes. On 22 July 2003 the Dnipropetrovsk Regional Court of Appeal quashed this decision and remitted the case for fresh consideration. On 11 December 2003 the proceedings were discontinued on the applicant’s request. 7. On 11 November 2003 the judgment of 20 November 2001 was enforced in full. On 20 October 2004 the sum awarded to the applicant by the judgment of 5 February 2003 was transferred to his account. However, the amount of UAH 136.18 was deducted by the bank as a processing fee. 8. The relevant domestic law may be found in the judgment of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22). | 1 |
train | 001-5050 | ENG | NLD | ADMISSIBILITY | 2,000 | AANNEMERSBEDRIJF GEBROEDERS VAN LEEUWEN B.V. v. THE NETHERLANDS | 3 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a limited liability company under Netherlands law (besloten vennootschap met beperkte aansprakelijkheid) which has its registered seat in Woerden. It was declared bankrupt in 1983. It is represented before the Court by Mr W.T.J.G. Osse, a lawyer practising in Houten (the Netherlands). Mr Osse is also the trustee (curator) in the applicant company's bankruptcy proceedings. A. On 14 September 1982 the applicant company was subjected to a search of its premises by the public authorities. They confiscated the administration of the applicant company because there was a suspicion that the applicant company had been drawing up false invoices. The applicant company ceased trading. On 24 August 1983 the Regional Court (Arrondissementsrechtbank) of Utrecht declared the applicant company bankrupt and appointed Mr Osse as trustee in the bankruptcy proceedings. On 5 September 1985 the applicant company was notified of the closure of the preliminary judicial investigation (gerechtelijk vooronderzoek). On 11 October 1985 the applicant company received a notification that the prosecution would not be pursued in view of the time which had elapsed since the alleged offences had been committed. Despite repeated requests, the administration of the applicant company was not returned to it by the public authorities until 29 January 1987. On 26 April 1990 the trustee in the bankruptcy proceedings initiated civil proceedings against the State claiming compensation on behalf of the applicant company for the actions of the police and justice officials. He argued that these actions had retrospectively lost all justification given that the charges had been dropped. On 22 April 1992 the Regional Court of The Hague gave judgment rejecting the trustee's claims. The trustee lodged an appeal with the Court of Appeal (Gerechtshof) of The Hague. On 21 October 1993 the Court of Appeal, in an interlocutory judgment, held that the actions of the State, although initially justified, had in fact lost all justification and that as a result the State was liable to pay damages. However, the obligation to pay damages might be mitigated, or lapse altogether, in light of circumstances which might appear from statements made by management personnel of the applicant company before the police in the criminal investigation. In order to establish whether or not this was the case, the Court of Appeal requested the State to submit documents from the criminal investigation file. The State submitted statements made to the police by the applicant company's managing directors in which it was admitted that false invoices had been drawn up and that taxes and social security contributions had been unlawfully withheld. On 27 October 1994 the Court of Appeal confirmed the decision of the Regional Court. The judgment included quotations from the above-mentioned statements of the managing directors. The Court of Appeal's reasoning included the following: (Dutch) “Op grond van deze verklaringen en de overige inhoud van het door de Staat overgelegde strafdossier is voldoende komen vast te staan dat er in de periode van in ieder geval 1980 tot de beëindiging van de bedrijfsactiviteiten in september 1982 valse facturen in de administratie van Van Leeuwen B.V. zijn opgenomen, dat er op diverse bouwwerken gebruik is gemaakt van werknemers die niet op de verzamelloonstaten waren verantwoord en dat er binnen deze vennootschap sprake was van een zogenaamd zwartgeldcircuit terwijl de directie wist dat daardoor aan de Staat en de betrokken sociale fondsen schade zou worden toegebracht door een geringere betaling of afdracht van belastingen en sociale premies. Deze feiten zijn in deze procedure ook niet uitdrukkelijk door de curator betwist.” (Translation) “It is sufficiently established on the basis of these statements and the other information contained in the case-file of the criminal proceedings that during the period from, at least, 1980 until trading ceased in 1982 forged invoices were entered into Van Leeuwen B.V.'s books, that on various building sites use was made of employees who were not accounted for on the consolidated pay slips and that there existed within this company a so-called circuit of illegal funds (zwartgeldcircuit), the management being aware that this would cause detriment to the State and the social-security bodies concerned through a reduction in payments of taxes and social-security contributions. Nor have these facts been explicitly contested by the trustee in the present proceedings.” and (Dutch) “Bij de beoordeling van de schadevordering van de curator is voorts van belang dat het hof het aannemelijk oordeelt, zoals de Staat gemotiveerd heeft gesteld, dat een verdere strafvervolging niet direct zinvol was (niet in het algemeen belang) nadat het faillissement ... was uitgesproken, maar dat die situatie anders zou komen te liggen bij een spoedige opheffing van het faillissement en dat tot seponering van de zaak is besloten nadat in 1985 door het voortduren van het faillissement duidelijk was geworden dat met dit laatste risico geen rekening meer behoefde te worden gehouden, temeer nu de bedrijfsactiviteiten vanaf september 1982 waren beëindigd.” (Translation) “In reviewing the trustee's claim for damages it is further significant that the Court of Appeal accepts that, as the State has argued, proceeding with the prosecution would not really serve any useful purpose (would not be in the general interest) after [the applicant company] was declared bankrupt ... , but that the situation might be different if the bankruptcy proceedings were to be terminated speedily, and that it was decided not to proceed after it had become clear in 1985, from the continuation of the bankruptcy proceedings, that it was no longer necessary to take this latter risk into account, the more so since trading had ceased from September 1982 onwards.” and (Dutch) "De hiervoor ... vermelde feiten en omstandigheden vormen het bewijs van een ernstige vorm van fraude die strenge en straffe maatregelen van de zijde van de Staat rechtvaardigen. ... Gelet op de uiteenlopende ernst van voormelde aan Van Leeuwen B.V. toe te rekenen omstandigheden en het enige steekhoudende verwijt dat de Staat bij de (trage) teruggave van de administratie van de vennootschap kan worden gemaakt, brengt de billijkheid mee dat de op de Staat in beginsel rustende verplichting tot vergoeding van de ... schade geheel komt te vervallen." (Translation) "The facts and circumstances mentioned above ... constitute evidence of a serious form of fraud justifying the taking of severe and strict measures by the State. ... Having regard to the varying degrees of seriousness of the aforementioned circumstances for which Van Leeuwen B.V. can be held responsible and the fact that the only convincing reproach which can be made of the State concerns the tardy return of the company's administration, principles of equity lead to the conclusion that the obligation on the State to provide compensation for the damage ... has ceased to exist." The Court of Appeal also took into account the statement of the State according to which it had not been considered in the public interest to proceed with the criminal prosecution of the applicant company given that the applicant company had been declared bankrupt and had ceased trading. On 22 December 1995 the Supreme Court rejected the appeal on points of law (cassatie) which had been filed on behalf of the applicant company. | 0 |
train | 001-93628 | ENG | MDA | CHAMBER | 2,009 | CASE OF BAROUL PARTNER-A v. MOLDOVA | 3 | Violation of Art. 6-1;Violation of P1-1;Just satisfaction reserved | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant, Baroul Partner-A, is a company incorporated in Moldova. 6. In 2000, in accordance with the Law on the Privatisation Programme for the years 1997-2000, the Government put up for sale their portion of the shares (199,875 shares, representing 65.86%) in the Soroca Gravel and Granite Quarry Co. (“the quarry”). 7. The applicant company participated in the auction and, having offered the highest price, purchased the stock in February 2000 at a price of 12.5 Moldovan lei (MDL) per share. The total price of the purchased stock was MDL 2,498,437.5. 8. In 2003 the Court of Accounts carried out a check on the privatisation activity of the Government and in a decision of 3 January 2004 found that in 1996 the quarry had received from a third State-owned company twenty-seven railway carriages without any title and that those carriages had remained in the quarry's possession throughout its subsequent existence without ever being included in the accounting documents. 9. On an unspecified date in 2004 the Department of Privatisation initiated proceedings for unjust enrichment against the quarry, claiming compensation for the railway carriages. The proceedings ended with a final judgment of the Supreme Court of Justice of 11 November 2004, by which the quarry was ordered to pay the State MDL 972,000, representing the cost of the carriages as established by an expert report. The judgment was enforced in 2005. 10. On 29 July 2006 the Centre for the Fight against Economic Crime and Corruption (“CFECC”) initiated criminal proceedings in respect of the privatisation of the quarry. The activity of the quarry was blocked as a result of the seizure of the accounting documents, the refusal to extend licences for extraction of granite and gravel, and other measures taken against the quarry by the State authorities. It appears that the criminal investigation is still pending before the CFECC and that the case has never been brought before the courts. 11. On 15 December 2006 the Prosecutor General's Office initiated, on behalf of the Government, court proceedings against the Department of Privatisation and the applicant company, seeking the annulment of the contract of sale of the State-owned stock. It argued that since at the date of the sale of the shares the quarry had not included the twenty-seven carriages in its accounting documents (see paragraphs 8 and 9 above), the price of each share had been fixed at only MDL 12.5, whereas it should have been MDL 13.88. The Prosecutor General's Office did not make reference to the proceedings which ended with the judgment of the Supreme Court of Justice of 11 November 2004. In its pleadings before the court, the Prosecutor's Office argued that its action was not time-barred since the time-limit did not apply to its court actions. 12. In its observations and pleadings, the Department of Privatisation disagreed with the Prosecutor General's action and argued that the applicant company had participated in an auction organised by the Government and had won it by offering the highest price for the shares. The auction was organised in accordance with the relevant regulations. The question of the carriages which had not been included in the quarry's accounting documents in 1996 had been resolved by the Department of Privatisation by way of civil proceedings which ended with the judgment of the Supreme Court of Justice of 11 November 2004 in favour of the Department of Privatisation. That judgment was enforced in 2005. 13. In its observations and pleadings, the applicant company argued that the Prosecutor General's action was time-barred. It was contrary to the principle of legal certainty and equality of arms to allow the Prosecutor General to challenge administrative acts in the courts without the latter being subject to any time limitations. In any event, the provision of the old Civil Code exempting the Prosecutor General from complying with the general three-year time-limit only referred to claims against kolkhozs (collective farms), non-governmental organisations, cooperatives and citizens. The applicant company did not fall within any of those categories. Finally, the dispute over the carriages had already been resolved by a final judgment of the Supreme Court of 11 November 2004. 14. On 12 April 2007 the Economic Court upheld the Prosecutor General's action and found the arguments adduced by him to be well-founded. Referring to the applicant company's objection concerning the Statute of Limitations, the court found that the three-year time-limit was applicable to the Prosecutor General's court action. At the same time, according to the court, the time-limit was to be calculated from the date when the Prosecutor General's Office found out or must have found out about the problem with the carriages. In the court's opinion, that date was 3 January 2004, the date of the Court of Accounts' decision (see paragraph 8 above). Accordingly, the action was lodged within the three-year limit. As to the applicant's objection concerning the existence of a final judgment concerning the same dispute, the court found that objection ill-founded because the first set of proceedings had concerned the issue of compensation while the second concerned the issue of the annulment of the privatisation. The Economic Court ordered the annulment of the contract of sale of shares, the return of 199,975 shares to the State and the return to the applicant company of the price paid for them, MDL 2,498,437.5. 15. The applicant company appealed against this judgment and argued, inter alia, that the Economic Court had on its own initiative come up with a solution for the Prosecutor General's problem with the time-limit. Furthermore, the applicant disagreed with this solution and argued that the time-limit should be calculated from the date when the shares were bought. It submitted that there were no impediments preventing the Prosecutor General from finding out about the problem of the carriages before the Court of Accounts had issued its decision in January 2004 and relied in this connection on the official commentary to the Civil Code. The applicant company also submitted that there had been no impediments to the Court of Accounts conducting its investigation earlier, and argued that accepting the Economic Court's line of thinking amounted to accepting that the Prosecutor's Office could challenge transactions concluded very many years ago by arguing that it had just found out about their illegality. The applicant company further submitted that the dispute was identical to that which ended with the judgment of the Supreme Court of 11 November 2004 and that the judge of the Economic Court who had examined the case had been influenced by the Government. 16. On 12 July 2007 the Supreme Court of Justice dismissed the applicant company's appeal and upheld the reasoning given by the lower-instance court. The judgment became final and an enforcement warrant was issued, under which the applicant company was obliged to transmit to the Government 199,875 shares in the quarry. 17. During the enforcement proceedings, the Government realised that in spite of the favourable outcome of the proceedings for them, they had not gained control over the quarry. Notably, they learned that in 2002 the quarry had issued 349,738 new shares as a result of the applicant company's adding new extraction equipment worth MDL 3,147,642 to its assets. The new shares were registered by the National Commission of Movable Assets on 20 May 2002. As a result, the ratio of the shares in the quarry's stock obtained by the Government after the proceedings had ended with the judgment of 12 July 2007 represented 30.59% and the applicant company maintained control over the quarry. 18. On 21 August 2007 the Prosecutor General's Office, on behalf of the Government, applied to the Economic Court for a supplementary judgment. It argued that the meaning of the judgment of the Supreme Court of Justice of 12 July 2007 had been to put the parties in the position they had been prior to February 2000, when the State held 65.86%. However, that was not possible because of the issue of new shares in 2002. Accordingly, the court was requested to annul the decision of the quarry's shareholder's meeting concerning the issue of 349,738 shares and the decision of the National Commission of Movable Values on 30 May 2002 concerning the registration of the new shares. 19. In its submissions to the Economic Court the applicant company argued that the Prosecutor General's Office, acting on behalf of the Government, had not requested the annulment of the issue of 349,738 shares in its initial court action. According to Article 250 of the Code of Civil Procedure, a supplementary judgment could be issued only if the court had omitted to rule in respect of a claim made by one of the parties to the proceedings. Since the Prosecutor's Office only sought the annulment of the sale of 199,875 shares, his new request could not be treated in a supplementary judgment. In any event, the issue of the new shares took place in 2002 and, therefore, the Prosecutor Office's action was time-barred. The approach taken by the court in respect of the time-limit in the main proceedings was inapplicable to the new request of the Prosecutor General's Office because the Court of Accounts did not refer to the problem of the issue of new shares in its judgment of 3 January 2004. Accordingly, the Prosecutor could not claim to have found out about that only in January 2004. 20. On 6 September 2007 the Economic Court upheld the Prosecutor General's action. Referring to the applicant company's objection that no claim about the annulment of the issue of new shares had been made during the proceedings which had ended on 12 July 2007 and that the new request could not be examined in a supplementary judgment, the court found that the claim was implicit in the Prosecutor General's Office's action, seeking that the State be reinstated in its right of ownership of 65.86% of the quarry's shares. According to the court, it was impossible to make such a reinstatement without annulling the shares issued in 2002. Since the court failed to rule on that problem, it was necessary to treat it in a supplementary judgment. The court ordered the annulment of the new shares arguing that otherwise the Government would own only 30.59% of the quarry's stock, a situation contrary to the judgment of 12 July 2007, where it was ordered that the Government be reinstated in its right of ownership of 65.86% of the shares. The court did not refer to the applicant company's objection based on the time-limit. 21. The applicant company appealed against the judgment and argued, inter alia, that in its initial action the Prosecutor General's Office had requested the annulment of the sale of the shares in 2000 but not the reinstatement of the State in its right of ownership of 65.86% of the quarry's shares. In support of this submission the applicant company cited parts of the Prosecutor General's application before the first-instance court. It argued that the Economic Court had misrepresented the prosecutor's claims. The applicant company also submitted that the first-instance court had failed to address its Statute of Limitations objection. 22. On 18 October 2007 the Supreme Court of Justice dismissed the applicant company's appeal. It found that since the sale of the shares of 2000 had been declared void, the parties had to be reinstated in their initial position, namely the position before the act of sale when the State owned 65.86% of the shares. Therefore, it was correct for the Economic Court to adopt a supplementary judgment clarifying the situation. 23. On 24 December 2007 the applicant company applied to the Economic Court and requested it to explain how the judgment of 6 September 2007 was to be enforced in terms of restitution of its contribution as a result of which the quarry had issued new shares in 2002 (see paragraph 17 above). 24. On 3 March 2008 the Economic Court issued a new judgment explaining that the applicant company was to be paid by the Government MDL 3,147,642, the value of the shares issued in 2002. The Government appealed against this judgment. 25. On 3 April 2008 the Supreme Court of Justice upheld the Government's appeal, quashed the judgment of 3 March 2008 and ordered a re-examination. 26. On 7 July 2008 the Economic Court re-examined the applicant company's request. It did not order that the value of the shares issued in 2002 be returned to the applicant but that the latter be returned the extracting equipment which had been added to the quarry's assets in 2002 (see paragraph 17 above). The applicant company appealed and argued that the solution given by the Economic Court was contrary to domestic legislation. However, the appeal was dismissed by the Supreme Court of Justice on 4 September 2008. 27. Since the mining equipment had been used and was useless to the applicant company, it has not been recovered by it from the quarry. 28. The relevant provisions of the Civil Code, in force at the relevant time, provide: The general limitation period for protection through a court action of the rights of a [natural] person is three years; it is one year for lawsuits between State organisations, collective farms and any other social organisations. The competent court ... shall apply the limitation period whether or not the parties request such application. The limitation period starts running from the day on which the right of action arises. The right of action arises on the day when a person comes to know or should have come to know that his right has been breached... Expiry of the limitation period prior to initiation of court proceedings constitutes a ground for rejecting the claim. If the competent court ... finds that the action has not commenced within the limitation period for well-founded reasons, the right in question shall be protected. The limitation period does not apply: ... (2) to claims by State organisations regarding restitution of State property found in the unlawful possession of ... other organisations ... and of citizens;”. 29. The relevant provisions of the new Civil Code, in force after 12 June 2003, read as follows: “(1) The civil law does not have a retroactive character. It cannot modify or suppress the conditions in which a prior legal situation was constituted or the conditions in which such a legal situation was extinguished. The new law cannot alter or abolish the already created effects of a legal situation which has been extinguished or is in the process of execution.” 30. In a judgment of 20 April 2005 (case nr. 2ra-563/05) the Supreme Court of Justice dismissed the plaintiff's contentions based on the provisions of the new Civil Code on the ground that the facts of the case related to a period before the entry into force of the new Civil Code and that, therefore, the provisions of the old Civil Code were applicable. | 1 |
train | 001-86222 | ENG | RUS | CHAMBER | 2,008 | CASE OF GUSEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture;Violation of Article 5 - Right to liberty and security | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev | 6. The applicant was born in 1981 and lives in St Petersburg. 7. In 1998 a criminal case was opened against the applicant on suspicion of theft, an offence under Article 158 § 1 of the Criminal Code. The applicant signed an undertaking to appear. 8. On 2 February 2000 the Primorskiy District Court of St Petersburg convicted the applicant of theft and sentenced him to probation of an unspecified duration. Counsel for the applicant appealed. 9. On 5 July 2000 the St Petersburg City Court upheld the conviction but relieved the applicant from punishment by virtue of the Amnesty Act of 26 May 2000 (cited in paragraph 45 below). 10. In early 1999 a criminal case was opened against the applicant on suspicion of his having stolen, in January 1999, car parts valued at 200 Russian roubles (RUB, less than 8 euros). The prosecutor preferred the charge of theft aggravated by repetition and substantial damage, an offence under Article 158 § 2 of the Criminal Code. 11. On 19 April 2000 the Primorskiy District Court ordered the applicant’s retrieval and arrest for the following reasons: “On 2 February 2000 [the applicant] received a copy of the bill of indictment in this criminal case. He was summoned, by a phone call, to the court hearing at 10 a.m. on 18 April 2000, but he did not appear at that time. Due to [the applicant’s] absence the examination of the case was adjourned until midday on 19 April 2000 to find out whether there had been any valid reasons for his absence. At about 4 p.m. on 18 April 2000 [the applicant’s] mother called the court on the phone and said that she and her son had been advised belatedly by her relatives – who had taken the phone call – about the court hearing on 18 April, and that was the reason why her son had not appeared at the court. [The applicant’s] mother also told [the registry] that [the applicant] had no illness preventing him from appearing before the court and no medical certificate. During that conversation [the applicant’s] mother was informed that the court hearing was scheduled for midday on 19 April 2000. At the court hearing at midday on 19 April 2000 [the applicant] failed to appear once again. The case was rescheduled for 4 p.m. on 19 April 2000. At about 4 p.m. [the applicant’s] mother again telephoned the court and said that, although she and her son had known about the scheduled court hearing, he would not appear before the court unless the summons was sent by mail. Under these circumstances the court has reasons to believe that [the applicant] is absconding from justice, that he refuses to appear before a court and interferes with timely examination of the case. In this connection the court considers it necessary to order retrieval of [the applicant] and vary the measure of restraint to that of placement in custody.” 12. On 23 April 2000 the applicant was taken into custody. 13. Counsel retained by the applicant’s mother asked the Primorskiy District Court to commission an expert examination of the applicant’s mental health and to release him pending trial. 14. On 10 May 2000 the District Court held as follows: “According to the available case file materials, [the applicant] was repeatedly, on three occasions between 18 and 19 April 2000, summoned to a court hearing and failed to appear without a valid reason. [The applicant] is charged with an offence which is classified as a serious crime, and in such cases a custodial measure may be imposed for the sole reason of the dangerousness of the committed offence. [The applicant’s] explanation that he did not appear in court because his mother had asked him not to is without substance because [the applicant] is an adult who should have been aware of the consequences of a violation of the undertaking given by him, as well as of the fact that liability for his failure to appear would be his and not his mother’s.” 15. The court remanded the applicant in custody sine die and ordered a psychiatric examination. It appears that the decision was not appealed against. The following hearing in the case was fixed for 25 September 2000. 16. On 25 September 2000 counsel for the applicant asked the District Court to vary the legal characterisation of the applicant’s act, to prefer a lesser charge of non-aggravated theft and to discontinue proceedings on the basis of the Amnesty Act of 26 May 2000. The District Court granted the lawyer’s request, finding as follows: “The investigators had characterised Mr Gusev’s acts as repetitive theft, having regard to the fact that he had already been charged [with theft] on 11 August 1998. However, on 2 February 2000 Mr Gusev was convicted of that offence... and, by the appeal decision of 5 July 2000... was relieved from punishment. Thus, the acts of Mr Gusev lack the constituent element of repetition. It has not been shown that Mr Gusev caused substantial damage to the victim P. because he is charged with theft of a car jack and a pump valued at 200 roubles. It does not appear that the small amount of 200 roubles was important for the victim and there is no information about his income or dependants.” 17. Having thus established that the aggravating circumstances had ceased to exist or had not been made out, the District Court characterised the applicant’s act as non-aggravated theft under Article 158 § 1 of the Criminal Code and discontinued the second criminal case against him on the basis of the Amnesty Act of 26 May 2000. However, the District Court held that the applicant should remain in custody on the basis of the arrest warrant of 22 September 2000 (see below). 18. In the meantime, on 17 May 2000 an investigator with the Primorskiy District Police Department of St Petersburg initiated a third criminal case against the applicant (case no. 160556) on suspicion of his having stolen certain items from a car in December 1999 which were valued at RUB 4,600 (EUR 170). The investigator designated the act as repetitive theft, an offence under Article 158 § 2 of the Criminal Code. 19. On 22 September 2000 Ms M., an investigator with the investigations department of the Primorskiy District Police Department, ordered the applicant’s placement in custody. On the same day the arrest warrant was approved by a deputy prosecutor of the Primorskiy District. 20. On 20 and 28 November 2000 counsel for the applicant lodged a complaint against the detention order of 22 September 2000. He submitted that the order had been unlawful and unjustified because it had referred to the “gravity” rather than the “dangerous nature” of the offence charged. 21. On 28 December 2000 counsel lodged a further complaint. He claimed, in particular, that Article 5 § 1 (c) of the Convention did not provide for such a ground for pre-trial detention as the “gravity of the offence” and that the prosecutor’s statements about the applicant’s intention to abscond or obstruct the establishment of the truth were not substantiated. He further pointed out that a copy of the order had not been served on the applicant and the procedure for lodging an appeal had not been explained to him. In any event, his authorised detention had expired on 22 November 2000 and no documents in the case file indicated that it had been extended. Finally, the applicant’s lawyer pointed to the appalling conditions of the applicant’s pre-trial detention. 22. On the same date the Primorskiy District Court dismissed the challenge. It found as follows: “The decision to impose the chosen measure of restraint was read out to [the applicant] on 25 September 2000 at the Primorskiy District Court of St Petersburg following the pronouncement of the judgment. Likewise, the procedure for lodging an appeal against the detention order was explained to him. However, [the applicant] refused to sign that document, and [the investigator M.], lacking professional experience, omitted to make an appropriate note thereof. At present the periods of preliminary investigation and pre-trial detention of [the applicant] have been extended in accordance with the law. [The applicant] is charged with a serious crime and its dangerousness alone may be, pursuant to Article 96 of the Code of Criminal Procedure, the ground for... holding him in custody. In these circumstances, dangerousness of the crime to which the law refers is in itself sufficient to anticipate undesirable conduct on the part of the accused, including continuation of criminal activities and absconding upon commission of a crime, in other words the reference in the law to the dangerous nature of a crime enables the investigative authorities to anticipate these very events to which the [European] Convention refers. No information showing that [the applicant] cannot remain in the investigative ward was provided to the court.” 23. On 3 and 30 January 2001 counsel appealed against the court decision of 28 December 2000. He indicated, in particular, that the provision of the Code of Criminal Procedure relied upon by the first-instance court had been struck down as incompatible with the Constitution by the Constitutional Court in the part which provided for placement in custody on the sole ground of the dangerous nature of an offence. 24. On 6 February 2001 the St Petersburg City Court dismissed the appeal as unsubstantiated. 25. In the meantime, on 16 January 2001 the third criminal case against the applicant and his co-defendants was submitted for trial by the Primorskiy District Court. On 24 January 2001 the applicant’s lawyer made a new request for the applicant’s release pending trial. 26. On 1 February 2001 the Primorskiy District Court issued a decision to schedule the first trial hearing for 3 May 2001. In the same decision the court dismissed the lawyer’s request for release, stating that the measure of restraint had been imposed “lawfully and reasonably, taking into account the gravity of the charge and the information on his character”. It did not specify for how long the applicant should remain in custody. Counsel for the applicant appealed, relying on the same grounds as before. On 27 March 2001 the St Petersburg City Court upheld the decision of 1 February 2001. 27. It appears that the hearing scheduled for 3 May 2001 was adjourned. 28. On 6 July 2001 the Primorskiy District Court again adjourned the criminal proceedings until 25 September 2001, because counsel for the applicant’s co-defendant failed to appear. It also extended the applicant’s pre-trial detention until 16 October 2001 as, in the court’s opinion, “[his] release would impede a thorough, complete and objective examination of the case”. 29. The applicant appealed against the decision. He pointed, in particular, to the inhuman and degrading conditions of his detention in facility no. IZ-47/1. He also submitted that he had a permanent residence in St Petersburg and lived with his disabled mother, five younger brothers and four sisters and that there were no grounds to believe that he would abscond. A supplementary appeal on points of law was lodged by his lawyer. 30. On 4 September 2001 the St Petersburg City Court dismissed the appeals, finding the extension order had been lawful and justified because “the arguments set out in the appeals had been known to the trial court which [had] had due regard to them”. 31. On an unspecified date the applicant’s mother made another request for the applicant’s release pending trial. 32. On 26 September 2001 the Primorskiy District Court examined the request and, upon finding that the maximum detention period of nine months would expire in October 2001, ordered the applicant’s release against a written undertaking not to leave the city. 33. By a judgment of 10 July 2003, the Primorskiy District Court convicted the applicant of aggravated theft and sentenced him to four years’ imprisonment conditional on two years’ probation. The applicant was relieved from the punishment by virtue of the Amnesty Act of 26 May 2000. The applicant did not appeal against the conviction. 34. On 23 April 2000 the applicant was taken into custody and placed in remand centre IZ-47/1 of St Petersburg, commonly known as “Kresty”. 35. The applicant was held in cell 430 until 1 May 2000, then in cell 106 until 9 August 2000 and in cell 79 after that date. In his submission, each cell measured six to eight sq. m and accommodated ten to thirteen persons simultaneously. Part of each cell was occupied by a table, toilet bowl and bed, so that the living space was 0.2 to 0.4 sq. m per inmate. The Government indicated the floor space of each cell as 8 sq. m and asserted that the number of detainees detained in each cell was impossible to establish as the relevant documents had been destroyed. 36. The applicant indicated that he had never had a separate bed. In cell 430 he had shared the bed on the third tier with two other inmates. In cell 106 he had not been allowed by the informal “chief” of the cell to sleep on a bed, he had slept on the floor or under the bed. In cell 79 he had shared the bed on the third tier with another inmate. No bedding had been provided by the facility, until 9 May 2000 he had slept on wooden planks and covered himself with his clothing. In their post-admissibility submissions the Government enclosed a certificate issued by the remand centre director on 21 December 2006, according to which the applicant had had a separate bed and personal bedding at all times. 37. In support of his contentions, the applicant submitted written statements by Mr P., who had been held in the same remand centre from October 1997 to March 2000 and by Mr B., who had stayed there from January 2001 to at least February 2005. Although they had not shared cells with the applicant, they attested, in particular, to the general overcrowding of the remand centre in 2001 and the lack of sleeping places and bedding. 38. The applicant further submitted that the windows in all cells had bars and iron shutters on them which blocked access to daylight and air. The shutters covered the entire window and it was forbidden to open them. The Government claimed that the cells had been “naturally ventilated” through the holes in the walls. The applicant denied that, indicating that ventilation holes in the walls had been patched with concrete. In their initial submissions on the admissibility and merits of the case, the Government indicated that on 11 June 2001 the temperature in the cell had been 20.5o C. In their submissions following the admissibility decision, the Government enclosed a certificate issued by the director of the remand centre on 21 December 2006. It said that the temperature in the cells had been taken and recorded on a quarterly basis and the average temperature had been 22o C in summer and 18o C in winter. 39. The Government stated that the cells had been equipped with sanitary installations separated from the living space by a folding screen. They enclosed a certificate issued by the director of the remand centre on 27 December 2006 which attested to that fact. The applicant submitted that there had been no folding screen and that it had been prohibited to separate the cell from the toilet bowl located about fifty centimetres from the table. 40. Section 22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should be afforded four square metres of personal space in the cell. 41. A repetition of criminal offences exists if the suspect has committed two or more offences characterised under the same provision of the Criminal Code (Article 16 § 1). Criminal offences are not considered repetitive if the proceedings in respect of the previously committed offence have been discontinued or if the criminal record of that offence has been extinguished or purged (Article 16 § 2). 42. Article 158 § 1 established that simple theft was punishable by up to three years’ imprisonment. Article 158 § 2 (b) and (g) established that repetitive theft entailing substantial damage was punishable by up to six years’ imprisonment. Article 158 § 3 established punishment for theft committed by a person who had been previously convicted of theft or extortion on two or more occasions. 43. On 26 May 2000 the State Duma of the Russian Federation adopted an act of amnesty in commemoration of the 55th anniversary of the victory in the Great Patriotic War of 1941-45 (Second World War). 44. The Amnesty Act provided that criminal proceedings in cases pending before investigative bodies or courts were to be discontinued if, in particular, the person was charged with a criminal offence committed before the entry into force of the Amnesty Act and punishable with no more than three years’ imprisonment (section 8 (a)). 45. The Amnesty Act also provided that the convicts who had been sentenced to probation should be relieved from punishment (section 6). 46. The Amnesty Act was to be implemented by investigative bodies in respect of suspects whose cases were being investigated or by courts in respect of defendants whose cases had been submitted for trial (section 1 of the State Duma Resolution no. 399-III on the procedure for application of the Amnesty Act). 47. The Russian Constitution of 12 December 1993 establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22). A decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”). 48. Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment (Article 96 of the CCrP). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they have committed. 49. After the arrest the suspect was placed in custody “pending investigation” for an initial two-month period (Article 97 of the CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction. 50. Once the investigation had been completed and the defendant had received the charge sheet and finished reading the case file, the file was submitted to a trial court. From that day the defendant’s detention was “before the court” (or “pending trial”). Until 14 March 2001 the Code of Criminal Procedure set no time-limit for detention “pending trial”. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention “during trial” could not normally exceed six months from the date the court received the file. | 1 |
train | 001-22693 | ENG | HRV | ADMISSIBILITY | 2,002 | OSTOJIC v. CROATIA | 1 | Inadmissible | Christos Rozakis | The applicant, Mr Dragan Ostojić, is a Croatian citizen of Serbian origin, who was born in 1936 and lives in Barajevo. Yugoslavia. He is represented before the Court by Mr Nenad Stanković, a lawyer practicing in Borče, Yugoslavia. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant owned a house where he lived with his family and adjacent stable and wooden house in the village Ostojići, Croatia. On 5 August 1995 the applicant, due to a military action by the Croatian Army, left Croatia and went to live in Yugoslavia. The applicant alleges that after his departure his property in Croatia was devastated sometime between 5 August 1995 and 30 June 1996 by the members of the Croatian Army. The applicant alleges further that the Croatian authorities impeded his return to Croatia. He was able to obtain Croatian identity documents only in 1999 and to enter Croatia only in March 2000. In the meantime Parliament introduced two changes to the law governing compensation for damage caused by terrorist acts and the war-related damage. Firstly, on 17 January 1996 the Croatian parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation damages for terrorist acts may not be sought. So far the Croatian authorities have not enacted any new legislation regulating the matter. Secondly, on 6 November 1999 Parliament introduced a change of the Civil Obligations Act which provided that all proceedings concerning actions for damages resulting from acts of members of the Croatian army or police when acting in their official capacity during the war in Croatia were to be stayed. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima) reads as follows: “Responsibility for damages caused by death, bodily injury or by abstraction or destruction of another person’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the authority whose officials were, according to the laws in effect, under a duty to prevent such damages.” The relevant parts of the Act on Changes of the Civil Obligations Act read (Zakon o izmjenama i dopunama Zakona o obveznim odnosima - Official Gazette no. 7/1996) as follows: “Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) is to be repealed.” “Proceedings for damages instituted pursuant to Section 180 of the Civil Obligations Act are to be stayed. Proceedings referred to in § 1 of this section will be continued after enactment of a special legislation that will regulate responsibility for damages resulting from the terrorist acts.” Section 184 (a) of the Act on Changes of the Civil Obligations Act (Zakon o dopunama Zakonu o obveznim odnosima, Official Gazette no. 112/1999) provides that all proceedings instituted against the Republic of Croatia for damages caused by members of the Croatian army or police when acting in their official capacity during the Homeland War in Croatia from 7 August 1990 to 30 June 1996 are to be stayed. | 0 |
train | 001-113648 | ENG | LVA | CHAMBER | 2,012 | CASE OF MITKUS v. LATVIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 4. The applicant was born in 1959. The facts of the case may be summarised as follows. 5. On 20 July 1999 the applicant was arrested on suspicion of extortion. While in detention awaiting the trial in the extortion case, on 26 November 1999 the applicant was charged with having committed robbery on 18 July 1999. 6. On 29 March 2000 the applicant submitted a complaint to the Public Prosecutor’s Office attached to the Rīga Regional Court, maintaining his innocence with regard to the charges of robbery and pointing out that his alibi could be proved by his neighbours, who had seen him working in the yard of his residence on the day in question. Similar complaints were addressed to the Prosecutor General’s Office on 11 July 2000 and on 11 August 2000. 7. On 7 July 2000 a confrontation was carried out between the applicant and a witness M.B. The applicant’s counsel was present. According to the record of the confrontation, M.B. confirmed the applicant’s involvement in the robbery and the applicant denied it. When given an opportunity to put questions to M.B., the applicant did not have any. 8. On 25 August 2000 the pre-trial investigation in the applicant’s criminal case was completed and he was given an opportunity to read the materials in the case file. After reading the case file the applicant submitted several written requests, including a request to hold an identity parade to determine whether the victim of the robbery could identify him in a line-up. 9. On 26 September 2000 a prosecutor rejected the applicant’s requests. With regard to the identity parade, the prosecutor considered that it would serve no useful purpose as the victim had stated that he would not able to recognise his attackers. 10. On 9 April 2001 the Rīga City Zemgale District Court convicted the applicant of extortion and sentenced him to a prison term of two and a half years. That judgment eventually became final after the applicant revoked his appeal. 11. From 26 June to 2 July 2002 hearings in the robbery case took place in the Rīga Regional Court. At the hearing, apart from the applicant and his two co-accused, the following witnesses were present and testified: U.I., who explained that he had driven all the accused persons to the victim’s residence; A.Š., the victim’s neighbour, who had not seen the act of robbery but had heard some conversations through the doors of his apartment and had later seen that the victim had been beaten; two minor girls, who had noticed a car in which goods taken from the victim’s apartment were being loaded and had written down its licence number; L.G., the applicant’s former partner, who testified that she had seen the applicant at home on the day of the robbery; B.B., a friend of L.G., who had also seen the applicant at home on the day of the robbery; T.B., the applicant’s neighbour, who had seen the applicant working in the yard of his house on the day of the robbery; S.B., the applicant’s neighbour, who on the day of the robbery had worked in the yard together with the applicant, and three other witnesses. 12. The court then turned to the question of whether the pre-trial statements of the victim and the witness M.B. could be read out in their absence. The applicant insisted that they had to be questioned in court. On 10 June 2002 the victim had written to the court and indicated that he was unable to attend the hearing “owing to a disability”. The court decided to read out the victim’s pre-trial statements. 13. On 27 June 2002 the court ordered that M.B. be brought to the hearing by the police under constraint, since he had failed to appear at the court without a legitimate excuse. On the following day the police informed the court that M.B. was not residing at the address known to the court. The court then decided to read out the pre-trial statements of M.B. The applicant again insisted that M.B. had to be questioned in person because his testimony directly implicated the applicant in the commission of the crime. The court nevertheless read out the statements obtained during the pre-trial investigation, according to which M.B. had attempted to enlist U.I.’s help in recovering his stolen motorcycle and that the three accused had also joined in. M.B. had waited in the car outside the victim’s apartment building, so he did not see what happened inside but saw the accused carrying out a TV set and other items, which they loaded into the boot of the car and eventually took with them 14. On 2 July 2002 the Rīga Regional Court adopted a judgment by which the applicant was convicted of robbery and sentenced to 8 years’ imprisonment. The court held that the applicant and his co-accused had gone to the victim’s apartment to help M.B. find his stolen motorcycle. It considered that the applicant’s guilt had been established by the testimonies of the applicant’s co-accused, the victim, M.B., U.I., A.Š., and the two minor girls who had written down the number of the licence plate of the car used to transport the victim’s stolen property. The court considered that there was no reason not to believe the pre-trial statements of M.B. and that slight discrepancies in the testimony of U.I. could be explained by the fact that three years had passed since the events in question. The court did not believe the testimonies of the witnesses who confirmed that on the day of the robbery the applicant had been working in the yard of his house, because those witnesses had been questioned at the applicant’s request and because too long a time had passed since the day of the robbery and they could not possibly remember what the applicant had been doing on that particular day. 15. On 5 August 2002 the applicant submitted an appeal, which he amended on 19 September 2002. He complained inter alia about the victim’s absence from the hearing, which had been justified with reference to his disability; yet, according to the information available to the applicant, his disability was not such as to prevent him from attending the trial. Further, the applicant alleged that his defence had been impaired by the absence of M.B. from the court hearing, especially because M.B. had a reason to falsely accuse him because of their strained personal relationship. He complained that two other people – S.K-a and S.K-s – had not been summoned to the court and that their testimonies given during the pre-trial investigation had not even been read out. The applicant requested that the victim, M.B., S.K-a and S.K-s be summoned to the appeal hearing. 16. On 13 February 2003 the Criminal Chamber of the Supreme Court rejected the applicant’s appeal against the judgment of the first-instance court, essentially relying on the reasoning of the first-instance court and without specifically addressing any of the above-mentioned issues raised by the applicant in his appeal. 17. On 3 March 2003 the applicant submitted an appeal on points of law to the Senate of the Supreme Court. He essentially repeated the submissions he had made in his appeal. 18. On 2 April 2003 the Ministry of Justice sent the applicant a letter, explaining, inter alia, that there had been a delay with regard to the hearing of his case in the Rīga Regional Court because of “objective reasons” – the heavy workload of that court. 19. On 23 April 2003 the Senate of the Supreme Court rejected the applicant’s appeal on points of law. In its decision the Senate pointed out, inter alia, that during the trial at the court of appeal the applicant had not repeated his request that – among others – M.B. and the victim be summoned to the hearing. The Senate therefore held that the applicant’s complaint about their absence was ill-founded. 20. On 21 March 2003 the Prisons Administration (Ieslodzījuma vietu pārvalde) sent a letter to the applicant informing him that in 2002 a blood test had disclosed that he was HIV positive. Subsequently, additional tests had revealed that the applicant was also infected with hepatitis C. 21. On 31 March 2003 the applicant sent a letter to the Prisons Administration, inter alia expressing his belief that he had been infected in Central Prison in circumstances unknown to him. The applicant also explained that he had never used intravenous drugs and that he was not a homosexual. 22. On four occasions in 2003 the Human Rights Bureau received letters from the applicant in which he explained that he had been infected with HIV while in Central Prison. However, he consistently reiterated that he did not know in what circumstances he had been infected. 23. On 30 April 2003 the applicant lodged a claim with the Rīga Regional Court seeking damages from Central Prison because he had been infected with HIV by the fault of the prison staff. 24. On 25 July 2003 the administration of Central Prison submitted its response. It pointed out that on 26 July 1999, upon the applicant’s arrival at Central Prison, his HIV test had been negative. On 24 September 2002 the test had been positive, which made the representatives of Central Prison believe that the initial test could have been performed during the “window” period and that the applicant had been infected before his arrest or, alternatively, that he had been infected while in prison because of failure to observe personal hygiene or by way of a sexual intercourse. It was also noted that all the blood samples in Central Prison were taken using single-use vacuum containers, which excluded the possibility of being infected during the taking of a blood sample. 25. In his reply of 24 November 2003 the applicant indicated that, on the contrary, when his blood was taken in 1999, a multiple-use glass syringe had been used. He contended that he could not have been infected by his cell-mates and that, instead, he had been infected with HIV and hepatitis C in 1999 when the medical staff of Central Prison had used a multiple-use syringe to take a sample of his blood. 26. On the same day the applicant amended his claim, additionally alleging that because of the negligence of the prison’s medical staff he had been infected with hepatitis C. 27. On 4 February 2004 Central Prison replied to the applicant’s statement of 24 November 2003, pointing out, inter alia, that Central Prison had used single-use syringes since the beginning of the 1990s and that there were no multiple-use syringes in the medical centre of that prison in 1999. 28. On 12 February 2004 the Rīga Regional Court rejected the applicant’s claim. The judgment noted that the very fact of being placed in prison placed people at a risk of being infected with HIV and hepatitis C. The nurse who had taken the applicant’s blood sample in 1999 had testified before the court that exclusively single-use syringes had been used for blood tests in Central Prison since 1996 or 1997. The court considered that the respondent had proved that a single-use syringe had been used when taking the applicant’s blood sample. It also noted that it was impossible to pinpoint exactly when the applicant had been infected with hepatitis C, since he had not been tested for that disease upon his arrival at Central Prison in 1999. 29. On 17 February 2004 the applicant submitted an appeal against the judgment of the first-instance court, which he disputed in a general manner. A week later he amended his appeal and noted that, while single-use syringes might indeed have been available in Central Prison, they had not been used for his blood test in 1999. He also requested that his presence at the hearing be ensured. 30. In a letter of 15 June 2004 the Supreme Court informed the applicant that the hearing concerning his appeal would be held on 30 September 2004. The applicant was invited (aicināts) to attend the hearing. On 20 September 2004 the administration of Jelgava Prison sent confirmation to the Supreme Court that the applicant had attested by his signature that he had received the above information. 31. On 30 September 2004 the Civil Chamber of the Supreme Court held a hearing and issued a judgment with regard to the applicant’s appeal. In the judgment the court pointed out that “the plaintiff has not appeared [at the hearing] because he is detained”. There was no further analysis of the question of the applicant’s absence. The appeal court essentially dismissed the appeal by relying on the same grounds as the first-instance court. The respondent’s representatives and the nurse from Central Prison were reported to have stated that Central Prison had used exclusively single-use syringes since 1998. 32. On 11 October 2004 the applicant lodged an appeal on points of law. Among other things he complained that he had not been transported to the appeal court hearing. 33. On 25 October 2004 and then again on 22 December 2004 the applicant complained to the Prosecutor General that he had been infected with HIV because of negligence on the part of the medical staff of Central Prison. The applicant’s complaint requested “the initiation of criminal proceedings against the persons responsible for infecting me with HIV and hepatitis C”. The Prosecutor General forwarded the applicant’s claim to the Ministry of Justice, which on 12 January 2005 refused to initiate an internal investigation concerning the actions of the prison staff because the applicant’s appeal on points of law was still pending before the Senate of the Supreme Court. 34. In the meantime, on 20 December 2004 the Senate, by a decision of a preparatory meeting (rīcības sēde), had dismissed the applicant’s appeal on points of law. The Senate did not address the applicant’s complaints about his absence from the appeal court hearing. 35. At a hearing held on 27 August 2003 in the case concerning the applicant’s alleged infection, he had left to the court’s discretion the decision whether to open the trial to the public. The court had decided to hold a closed hearing. 36. At the hearing on 24 November 2003 the applicant expressed his desire for the trial to be open to the public, as long as no photos were taken. The representative of Central Prison objected to opening the trial to the public, since the case concerned sensitive medical information. The court allowed the applicant’s request and the trial was opened to the public. 37. On 25 November 2003 a daily newspaper, Rīgas Balss, published an article entitled “Prison Doctors Accused of Injecting AIDS”, where it was stated that “prisoner Andris M.” had lodged a complaint against Central Prison alleging that he had been infected with AIDS because of the fault of the doctors at the prison. The article also included a photograph of the applicant behind bars, in three-quarters profile, where his facial features were clearly distinguishable. It also reported that the trial had not been open to the public and further described the applicant as a recidivist, who had been convicted six times and was currently serving a prison term of eight years in Jelgava Prison. 38. On 12 February 2004 another hearing was held in the trial between the applicant and Central Prison. The applicant told the court that he did not object to the presence of representatives of the media at the hearing, but added that no pictures should be taken and that his name should not be published. If video recordings were to be made, the applicant insisted that his face should not be visible and his name should not be shown. The court acceded to the applicant’s demands and prohibited the representatives of the media from disclosing the applicant’s identity, while otherwise authorising media coverage of the trial. 39. On 16 June 2004 the applicant lodged a claim with the Rīga Regional Court, naming the publisher of Rīgas Balss (SIA “Mediju Nams”) as the respondent and requesting non-pecuniary damages for moral and psychological harm caused to him when Rīgas Balss published the above-mentioned article, which included his photo in which he was fully recognisable. The claim was based on an alleged infringement of personal data protection legislation and an alleged violation of criminal law which, in accordance with the Civil Law, created an obligation to pay damages. 40. In its response the publisher pointed out that the applicant had implicitly consented to the disclosure of his personal data when he had lodged a claim against Central Prison. Furthermore, he had not asked for the trial to be closed to public. At an unspecified later date the respondent publisher amended its observations, indicating that the disputed article had merely put together information that had been in the public domain. Furthermore the applicant himself had striven to make the information about his case as widely available as possible. 41. On 21 December 2004 the Rīga Regional Court adopted a judgment by which it dismissed the applicant’s claim. It expressed the opinion that data protection legislation was applicable to the applicant, as he could be identified from the photograph published in the newspaper. It also agreed that the applicant had not consented to the publication of his personal data, since during the trial he had asked not to be filmed or photographed. Thus the respondent newspaper had contravened the law by publishing sensitive personal data. Nevertheless, the applicant had failed to prove the existence of any damage and/or had not referred to any legal basis for the damages claimed; therefore his claim for compensation had to be dismissed. 42. On 23 December 2004 the applicant appealed. Among other things he indicated specific types of damage he had allegedly suffered. On 14 January 2005 the applicant submitted additional comments to the appeal court in which he emphasised that the publication of his data and photo had been prohibited by the court during the hearing of 24 November 2003 in the case against Central Prison. 43. On 11 April and 9 May 2005 the applicant asked the appeal court when his appeal would be heard and also requested that his presence at the hearing be ensured. 44. On 2 February 2006 the Civil Chamber of the Supreme Court held an appeal hearing. Its verbatim record indicates that the court noted that the applicant had not appeared at the hearing and, after asking for the opinion of the respondent, it decided to proceed in the applicant’s absence. 45. On the same date the Supreme Court adopted its judgment, in which it was pointed out that the applicant had not been escorted to the hearing and that the case could be heard in his absence. No further comments in this regard were made. 46. As to the substance, the court held that the media were not subject to the data protection legislation and that there were no legal grounds for compensating the non-pecuniary damage allegedly caused to the applicant by the publication. 47. On 27 February 2006 the applicant lodged an appeal on points of law. He complained, among other things, that the case had been heard by the appeal court in his absence. 48. On 26 April 2006 the Senate of the Supreme Court, by a decision of a preparatory meeting, dismissed the applicant’s appeal on points of law. The Senate considered that the applicant had merely disputed the assessment of facts by the first-instance and appeal courts and therefore his appeal on points of law did not meet the procedural requirements. The decision did not mention the applicant’s complaint about his absence from the appeal hearing. 49. As in force at the material time, section 10 (1) of the Law of Civil Procedure provided that civil proceedings were to be conducted on an adversarial basis (“sacīkstes formā”). In practice it meant the following: Each party shall prove the facts forming the basis of its claims or objections. ... Evidence shall be submitted by the parties and by other participants. If it is not possible for the parties or other participants to submit evidence, the court shall ask (izprasīt) for such evidence on the basis of a reasoned request.” 50. As in force at the relevant time, section 138 of the Criminal Law provided for criminal responsibility for inadequate performance of professional duties by a medical professional resulting in serious or life-threatening injuries, a person’s death or infection with HIV. Under section 56 (1) of the Criminal Law the statute of limitations for this crime was five years. 51. Article 3 of the Code of Criminal Procedure as in force at the relevant time obligated prosecutors to initiate criminal proceedings every time signs of a criminal offence (noziedzīga nodarījuma pazīmes) were discovered. According to Article 107 criminal proceedings could be initiated only in those cases when there was a sufficient basis (pietiekams pamats) to believe that a criminal offence had been committed. 52. Article 109 provided as follows: “[A] prosecutor ... has to accept materials, applications and declarations concerning a criminal offence that has been committed ..., including in cases which do not fall under his jurisdiction. In relation to the materials, application or declaration received one of the following decisions shall be taken: to initiate criminal proceedings; to refuse to initiate criminal proceedings; to submit the application or declaration to [a competent institution]. ... Applications and declarations concerning crimes shall be examined immediately but at the latest within ten days of their receipt. ...” 53. Article 112 of the Code of Criminal Procedure provided that a copy of a prosecutor’s decision to refuse to initiate criminal proceedings was to be sent to the person who had submitted the complaint. The complainant was also to be informed of his or her right to appeal against the decision. 54. At the relevant time Article 241 of the Code of Criminal Procedure provided that the trial in the first-instance court had to start no later than one month after a criminal case had been received at that court. 55. According to the Law of Civil Procedure as in force at the relevant time, the parties to a case had a right to participate in hearings (section 74 (2) (2)). However, a hearing could proceed even if a party to the case failed to appear in court (section 156). Nevertheless, according to section 209 a court had an obligation to postpone a hearing if a party was not present because he or she had not been informed of the time and place of the hearing or if he or she had not appeared for reasons the court found to be justified. A court had a choice whether to postpone a hearing if a party who had been informed of the time and place of a hearing failed to appear for unknown reasons (section 210). 56. Under section 11(1) of the Personal Data Protection Law the processing of sensitive personal data is prohibited, except if the data subject has given his or her written consent for the processing of his or her sensitive personal data. 57. Section 5(1) of the Personal Data Protection Law provides, among other things, that section 11 does not apply if personal data is processed for journalistic, artistic or literary purposes, and it is not prescribed otherwise by law. Section 5(2) of that law, however, provides that section 5(1) has to be applied in compliance with the right to private life of an individual and the freedom of speech. 58. In accordance with section 7(6) of the Law on Press and Other Mass Media it is prohibited to publish information concerning the state of health of individuals without their consent. 59. On 23 January 1970 the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a Declaration on Mass Communication Media and Human Rights, the relevant part of which reads as follows: 1. There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by Article 8 of the Convention on Human Rights. The exercise of the former right must not be allowed to destroy the existence of the latter. 2. The right to privacy consists essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially... 7. The right to privacy afforded by Article 8 of the Convention on Human Rights should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media. National legislations should comprise provisions guaranteeing this protection.” 60. Recommendation Rec (89) 14 on “The ethical issues of HIV infection in the health care and social settings”, adopted by the Committee of Ministers of the Council of Europe on 24 October 1989, reads as follows in so far as is relevant to the present case: “Public health authorities are recommended: in relation to reporting of cases: to ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non-identifiable basis; to avoid any possible discriminatory use of sensitive health-related data; to avoid discouraging individuals from seeking voluntary testing, in relation to the patient-health care worker relationship: to strongly support respect for confidentiality, if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection.” | 1 |
train | 001-57492 | ENG | GBR | CHAMBER | 1,987 | CASE OF GILLOW v. THE UNITED KINGDOM (ARTICLE 50) | 2 | Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | C. Russo | 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 19 December 1984. The case originated in an application (no. 9063/80) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission in 1980 by Mr. Joseph and Mrs. Yvonne Gillow, British citizens. 2. By judgment of 24 November 1986, the Court held, inter alia, that there had been a breach of Article 8 (art. 8) of the Convention by reason of the way in which the Guernsey Housing Laws were applied in the applicants’ case (Series A no. 109, paragraphs 57-58 of the reasons and point 2 of the operative provisions, pp. 23-24 and 29). The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, reference should be made to paragraphs 9-37 of the above-mentioned judgment (ibid., pp. 8-17). 3. The applicants had reserved their position on the application of Article 50 (art. 50) until after having knowledge of the Court’s judgment on the merits. In these conditions, neither the Government of the United Kingdom ("the Government") nor the Commission were able to take any stand on the issue. In its judgment of 24 November 1986, the Court accordingly reserved the question, and invited the applicants, duly represented by a lawyer in accordance with Rule 30 of the Rules of Court, to file within the forthcoming three months any claim for just satisfaction that they might have (ibid., paragraph 76 of the reasons and point 6 of the operative provisions, p. 29). 4. Having duly appointed a lawyer, Mr. and Mrs. Gillow, in a memorial of 17 February 1987, claimed just satisfaction in respect of material and moral damage, as well as costs and expenses. In accordance with the President’s directions, the Government filed a memorial on 24 April. On 19 May, the Secretary to the Commission informed the Registrar that its Delegate did not intend to submit any observations. 5. On 22 May 1987, the Chamber decided that, in the particular circumstances, there was no need to hold oral hearings and directed the Registrar to ask the applicants for particulars of the costs and expenses claimed. This information was received on 20 July and 3 August 1987. The Government and the Commission commented thereon on 5 and 21 August 1987, respectively. 6. On 30 June, Mrs. Gillow informed the Court that her husband had died on 8 June 1987. 7. Subsequently, Mr. Cremona, Mr. Ganshof van der Meersch, Mr. Gölcüklü and Mr. Russo, substitute judges, replaced Mr. Thór Vilhjálmsson, Mr. Lagergren, Mr. Pettiti and Mr. Macdonald, who were prevented from taking part in the final deliberation on 24 and 25 August 1987 (Rules 22 § 1 and 24 § 1). | 0 |
train | 001-112013 | ENG | UKR | CHAMBER | 2,012 | CASE OF LUTSENKO v. UKRAINE | 2 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest;Prompt information);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 18+5 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security);Non-pecuniary damage - award | André Potocki;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 7. The applicant was born in 1964 and lives in Kyiv. He is a former Minister of the Interior and the leader of the opposition party Narodna Samooborona. 8. On 2 November 2010 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., under Article 191 § 3 of the Criminal Code. The GPO asserted that while he was Minister of the Interior from December 2007 to January 2010 the applicant had unlawfully arranged for different work-related benefits for his driver – the aforementioned Mr P. On the same date, the applicant gave a written undertaking not to abscond to the investigator. 9. On 5 November 2010 the applicant was formally charged. 10. During the pre-trial investigation, the applicant appeared for all investigating activities and the investigator had no complaints about his cooperation. 11. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code on the grounds that the applicant had arranged for the allocation of a one-room apartment to his driver Mr P. 12. The two criminal cases were joined together (hereinafter – “the first criminal case”). 13. On 13 December 2010 the GPO completed the investigation in the case and formally indicted the applicant on both counts, having, however, reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code. The applicant was summoned to appear before the investigator in order to study the criminal case file against him. 14. On 15 December 2010 the applicant was given only the minority of the criminal case file for familiarisation, being informed that the rest of the materials were not available. The investigator summoned the applicant to study the case file on 16 and 17 December 2010. 15. On 17 December 2010 the applicant and his lawyer appeared before the investigator to study the case file. However, the investigator did not provide them with the complete file, referring to the fact that some materials were still with the Pechersky Court. The investigator served on the applicant a summons to appear on 20 through 24 December 2010 in order that his familiarisation with the case file be continued. 16. On 20 and 21 December 2010 the case file materials were stated to be not ready, despite the applicant’s desire to acquaint himself with them. 17. On 22 December 2010 the investigator informed the applicant that he had decided that all accused and their lawyers would be given only one volume of the file at a time, and the next volume would be given only after all of them had completed their familiarisation with the previous one. He added that the copy of the list of materials of each volume would be given after such familiarisation. On the same date, the applicant’s representative asked to be allowed to make digital photos of the materials in the case file. His request was rejected. 18. On 22 and 23 December 2010 the applicant and his lawyer were acquainted with the materials in the case file. 19. On 24 December 2010 the applicant’s representative was busy representing a client in another set of proceedings, of which he had informed the investigator in advance. 20. On 8 December 2010 the applicant was served with a summons to appear before the investigator on 14 December 2010. 21. On 14, 16, 17, 20 and 24 December 2010 he failed to appear to study the case file. 22. On 15, 21, 22 and 23 December 2010 the applicant came to the GPO to study the case file. 23. On 20 December 2010 the investigator issued a resolution establishing the order of studying the case file. The applicant was notified of this order on 21 December 2010. 24. On 18 December 2010 the weekly newspaper Zerkalo Nedeli (Mirror Weekly) published an interview with the applicant entitled “Yuriy Lutsenko: I try to think less about the bad things ...”. In this interview, he denied all accusations against him. Being asked about statements made by his former deputy minister, Mr K., the applicant said: “For reasons unknown to me K. [...] says that I allegedly called him to my office, gave him a resolution prepared for his signature and told him that he should sign it. How is this confirmed? Only by the words of a man who is frightened by something... What confirmed his words? Nothing. All charges are based not on documents that I signed, but on oral instructions which I allegedly gave. Why in this case I did not give such oral instructions to my other subordinates and on other occasions is a mystery...” 25. On 24 December 2010 GPO investigator V. instituted another set of criminal proceedings against the applicant for abuse of office under Article 364 § 3 of the Criminal Code (hereinafter – “the second criminal case”). The applicant was suspected of unlawful authorisation of search and seizure activities against an individual. The same day the investigation in the first criminal case was resumed. Five days later, the two cases were joined. 26. On 25 December 2010 the same investigator prepared an application to the Pechersky Court, seeking to have the preventive measure applied to the applicant in respect of the first criminal case changed from an undertaking not to abscond to pre-trial detention. The investigator stated that the applicant had not complied with his procedural decisions and had attempted to avoid participating in the investigation by, in particular, systematically failing to appear before the investigator at the fixed time. He further noted that the investigation had been completed on 13 December 2010 and that the applicant had been indicted. On 14 December 2010, being summoned to the GPO’s premises in order to study the case-file, the applicant had failed to do so and, according to Internet sources, had held a press conference instead. According to the investigator, during the press conference the applicant: “... with a view to avoiding criminal responsibility for crimes committed, distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial on the merits, gave comments regarding the charges against him. Thus, Y. Lutsenko disclosed materials of the pre-trial investigation, distorted information about his case known to him, tried to impose his views on society as to his alleged innocence and to blame others for the crime committed, although during the entire time of the pre-trial investigation Y. Lutsenko refused to give any testimony on the merits of the charge against him.” The investigator further noted in his application that the applicant had failed to study the case file in an appropriate manner. According to him, on 15 December 2010 the applicant was given the case-file materials and was informed that he was able to study the case file everyday from 9 a.m. to 6 p.m. However, on that date he only studied the case-file materials for five minutes. On 16, 17, 20 and 24 December 2010 the applicant failed to appear at all and on 21, 22 and 23 December the applicant only studied the case file for around two hours. Moreover, the applicant continued giving interviews in order to distort public opinion and to influence the investigation and trial. The investigator concluded that the applicant should be detained because he had committed a serious crime, had impeded the investigation by purposefully delaying the investigation, had constantly avoided appearing before the investigator, had not complied with the investigator’s decisions and had put pressure on witnesses by discrediting them, therefore seeking to avoid criminal liability. 27. On the same date the First Deputy Prosecutor General approved the above application for the applicant’s arrest. 28. On Sunday 26 December 2010 at 12.45 a.m. the applicant was arrested near his house by officers of the Security Service and the GPO investigator in the framework of the second criminal case. 29. According to the applicant, during his arrest, he was not informed of the reasons for his arrest and was not given a copy of the charge sheet. The investigator also refused to give a copy of the charge sheet to the applicant’s representative. According to the Government, the applicant was served with a copy of the decision to institute the second criminal case against him, but refused to sign it. 30. The record of the applicant’s arrest indicated that witnesses had pointed to the applicant as a person who had committed a crime and that his detention was necessary in order to prevent him from avoiding participating in or jeopardising the investigation, to exclude the possibility of continuation of criminal activities by him and to ensure his isolation from society. It was further indicated that there was other (unspecified) information that gave grounds to suspect the applicant of committing a crime. The arrest record also contained reference to Article 364 § 3 of the Criminal Code. According to the record, the applicant refused to sign it. 31. On 27 December 2010 the applicant was taken to the Pechersky Court. His lawyer found out about the hearing twenty minutes prior to its start. At the beginning of the hearing, the applicant’s lawyer asked for the media to be present, given that the applicant’s arrest involved a matter of significant public interest. The prosecutor objected to this request on the grounds that the proceedings did not concern the applicant’s arrest in the second criminal case, but rather the GPO’s application in relation to the first criminal case to alter the preventive measure concerning the applicant from a written obligation not to abscond to that of being held in custody. According to the applicant, only at this point did he and his lawyer find out that the hearing concerned the GPO’s application to change the preventive measure affecting the applicant and not the grounds for his arrest. The applicant complained of irregularities in his arrest, but the prosecutor repeatedly stressed that his arrest was not under examination at the hearing. The applicant and his lawyer then asked the court to adjourn the hearing in order to study the GPO’s application and its supporting materials and to present documents concerning the applicant’s personal situation. The court rejected the request as unsubstantiated. It noted in particular that the applicant had already explained his personal situation and that nobody had contested its veracity. 32. The court allowed the application and ordered the applicant’s detention, accepting the GPO’s reasoning and also finding that there were no personal circumstances pertaining to the applicant that would prevent his being held in custody, that the applicant had sought to evade investigative actions and decisions of the investigator, that he was accused of a crime punishable by imprisonment from seven to twelve years, that he had not admitted his guilt and had refused to make a statement, and that he was capable of influencing the investigation and putting pressure on the witnesses, either personally or through others. The court further rejected written request by seven Members of Parliament for the applicant’s release on bail on their guarantee. 33. The applicant’s lawyer appealed against the decision of 27 December 2010 to the Kyiv City Court of Appeal, considering it unfounded. In his appeal, he claimed, inter alia, that the applicant had not violated his obligation not to abscond, that studying the case file was the applicant’s right and not an obligation, and that the investigator had not given him all the materials in the case file and had knowingly restricted his right of access to the case file. The lawyer further stated that he and his client had not known the grounds for arrest well in advance of the hearing and that the court had refused to postpone the hearing, having put them, therefore, in a disadvantageous position, in violation of the principle of equality of arms. He complained that there was no evidence or information proving that the applicant would seek to evade the investigation or jeopardise it. The lawyer also pointed out that the first-instance court had referred to the fact that the applicant had refused to admit his guilt and to make a statement as grounds for his arrest, thereby violating the applicant’s constitutional rights. 34. On 5 January 2011 the Kyiv City Court of Appeal rejected the appeal and upheld the decision of the first-instance court. It rejected the applicant’s complaints as being unsupported by the case-file materials. It also rejected written request by twenty nine Members of Parliament, supported by the Ukrainian Ombudsman, for the applicant’s release on bail on their guarantee. 35. On 16 February 2011 the Pechersky Court prolonged the applicant’s detention up to four months. This decision was upheld by the Kyiv Court of Appeal. 36. On 21 April 2011 the Kyiv City Court of Appeal prolonged the applicant’s detention for up to five months. It noted that despite the fact that the applicant had completed the study of the case-file materials, there were still investigative actions to be conducted with the applicant’s co-defendant, Mr P., and the lawyers. It further noted that there were no grounds to change the preventive measure applied to the applicant, taking into account the gravity of the charges against him, his family status and state of health. 37. On 23 May 2011 the Pechersky Court upheld the applicant’s detention pending trial without fixing any deadline. 38. On 27 February 2012 the applicant was found guilty and sentenced to four years’ imprisonment and confiscation of property. 39. On 16 May 2012 the Kyiv City Court of Appeal upheld the judgment of the first instance court. The applicant appealed in cassation and these proceedings are still pending. 40. The relevant provisions of the Constitution of Ukraine provide: “...Bodies exercising State power and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner envisaged by the Constitution and the laws of Ukraine.” “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and [then] only on the grounds and in accordance with the procedure established by law. ... Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of defence counsel. Everyone detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs...” Article 62 “A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through the process of law and established by a court verdict of guilty...” “A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law...” 41. Relevant provisions of the Code read as follows: “1. Misappropriation or embezzlement of somebody else’s property by a person to whom it was entrusted... 2. Misappropriation, embezzlement or conversion of property by malfeasance... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if repeated or committed by a group of persons [acting] upon their prior conspiracy, shall be punishable by restraint of liberty for a term of three to five years, or imprisonment for a term of three to eight years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years. 4. Any such actions as provided for by paragraphs 1, 2 or 3 of this Article, if committed in respect of a large amount... 5. Any such actions as provided for by paragraphs 1, 2, 3 or 4 of this Article, if committed in respect of an especially large amount, or by an organized group, shall be punishable by imprisonment for a term of seven to twelve years, with a prohibition on the right to occupy certain positions or engage in certain activities for a term of up to three years and confiscation of property.” 1. Abuse of authority or office, namely the intentional use of authority or official position contrary to the official interests [of the State] by an official for financial gain or other personal benefit or the benefit of any third parties, where it causes substantial damage to legally protected rights, freedoms and interests of individual citizens, or to State and public interests, or the interests of legal persons... 2. The same act, if it causes any grave consequences... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if committed by a law enforcement officer, shall be punishable by imprisonment for a term of five to twelve years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years and forfeiture of property. 1. Exceeding authority or official powers, namely the intentional commission of acts by an official which patently exceed the rights and powers vested in him/her, where it causes substantial damage to the legally protected rights and interests of individual citizens, or State and public interests, or the interests of legal persons... 2. Exceeding authority or official powers accompanied with violence, use of weapons, or actions that cause pain or are derogatory to the victim’s personal dignity... 3. Any such actions as provided for by paragraph 1 or 2 of this Article, if they cause grave consequences, shall be punishable by imprisonment for a term of seven to ten years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years. 42. Relevant provisions of the Code read as follows: “... The accused has the right to ... get acquainted with all materials in the case file after the [conclusion of the] preliminary investigation or inquiry...” “... The suspect has the right to ... request the review by a court or prosecutor of the legality of his detention, lodge complaints against the actions and decisions of ... the investigator...” “...From the moment of his entry into the case, counsel for the defendant has the right: ... (3) to get acquainted with the materials which substantiate the detention of a suspect or choice of preventive measure or indictment, and, after the [conclusion of the] pre-trial investigation, with all materials in the case file...” “A body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds: (1) if the person is discovered whilst, or immediately after, committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found on the body of the suspect or on the clothing which he is wearing or which is kept at his home. For each case of detention of a criminal suspect, the body of inquiry shall be required to draw up a record mentioning the grounds [for detention], the motives [for detention], the day, time, year and month [of detention], the place of detention, the explanations of the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel as from the moment of his arrest, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee. A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which served as grounds for detention shall also be sent to him. The body of inquiry shall immediately inform one of the suspect’s relatives of his detention... Within seventy-two hours after the arrest the body of inquiry shall: (1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article; (2) release the detainee and select a non-custodial preventive measure; [or] (3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her. If the detention is appealed against to a court, the detainee’s complaint shall be immediately sent by the head of the detention facility to the court. The judge shall consider the complaint together with the request by the body of inquiry for application of the preventive measure. If the complaint is received after the preventive measure was applied, the judge shall examine it within three days after receiving it. If the request has not been received or if the complaint has been received after seventy-two hours of detention, the complaint shall be considered by the judge within five days after receiving it. The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring that the detention is lawful or allowing the complaint and finding the detention to be unlawful. The ruling of the judge may be appealed against within seven days from the date of its adoption by the prosecutor, the person concerned, or his or her defence counsel or legal representative. Lodging such an appeal does not suspend the execution of the court’s ruling. Detention of a criminal suspect shall not last for more than seventy-two hours. If, within the terms established by law, the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.” “An accused must appear upon the investigator’s summons at the fixed time. In case of failure to appear without valid reasons, the accused shall be taken to the investigator by force...” “When charging an accused, the investigator must explain to the accused that during the pre-trial investigation he or she is entitled to: ... (2) make a statement about the charges against him or her or refuse to make a statement and to answer questions; ... (6) with the permission of the investigator, be present at the performance of certain investigative actions; (7) after the completion of the pre-trial investigation, get acquainted with all the materials in the case file...” “Preventive measures shall be imposed on a suspect, accused, defendant or convicted person in order to prevent him or her from attempting to abscond from an inquiry, investigation or the court, to obstruct the establishment of the truth in a criminal case or to pursue criminal activities, and in order to ensure the enforcement of procedural decisions. Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect, accused, defendant or convicted person will attempt to abscond from the investigation and the court, or if he or she fails to comply with procedural decisions, or obstructs the establishment of the truth in the case or pursues criminal activities. If there are insufficient grounds for the imposition of preventive measures, the suspect, accused or convicted person shall sign a written statement undertaking to appear upon notification by the inquirer, investigator, prosecutor or the court, and shall also undertake to notify them of any change in his place of residence. If a preventive measure is applicable to a suspect, he or she shall be charged within ten days from the time of imposition of the measure. In the event that the indictment is not issued within that time, the preventive measure shall be annulled.” “In resolving the issue of imposing a preventive measure, in addition to the circumstances specified in Article 148 of this Code, such circumstances as the gravity of the alleged offence, the person’s age, state of health, family and financial status, type of employment, place of residence and any other circumstances relating to the person shall be taken into consideration.” “A written undertaking not to abscond is a written commitment by a suspect or an accused not to leave his or her place of permanent residence or temporary address without the permission of the investigator. If the suspect or accused breaches this written undertaking not to abscond, it may be replaced by a more stringent preventive measure. The suspect or the accused shall be informed about this upon giving the written undertaking not to abscond.” “At the stage of the pre-trial investigation, a non-custodial preventive measure shall be selected by the body of inquiry, investigator or prosecutor. In the event that the body of inquiry or investigator considers that there are grounds for selecting a custodial preventive measure, with the prosecutor’s consent [it or] he shall lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful manner and is sufficient for charging the person. The application shall be considered within seventy-two hours of the time at which the suspect or accused is detained. In the event that the application concerns the detention of a person who is not currently deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality. Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel, if the latter appeared before the court, and shall make an order: (1) refusing to select the preventive measure if there are no grounds for doing so; [or] (2) selecting a preventive measure in the form of taking of the suspect or accused into custody. The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to select a custodial preventive measure for him or her. The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days from the date on which it was made. The lodging of an appeal shall not suspend the execution of the judge’s order.” “After deciding that the evidence collected in the case is sufficient to warrant an indictment, and after complying with the terms of Article 217 of this Code, the investigator shall inform the accused that the investigation of his case has ended and that he has the right to get acquainted with all of the materials in the case file personally and/or with the assistance of counsel... If the accused has not shown any interest in familiarising himself with the materials in the case file with the participation of counsel, he shall be personally provided with all of the materials in the case file for familiarisation. In the course of this familiarisation process, the accused has the right to make extracts (to copy in writing) and to lodge motions. The investigator must allow all accused persons, even if there are several in one case, to familiarise themselves with all the materials in the case file... ...Preliminary investigation materials presented for familiarisation shall be filed and numbered. During the presentation of the materials of the pre-trial investigation, the investigator shall be obliged to provide the accused, upon request of the latter, with a duly certified copy of the list of the materials in the case file... The time afforded to the accused and his counsel for familiarisation with all materials in the case file shall not be limited.” 43. The Government submitted two decisions of the domestic courts in which individuals had been awarded compensation for their unlawful detention. 44. In a decision of 17 January 2007, the Odessa Regional Court of Appeal awarded damages to a person who had been arrested by the police on 22 November 2005 but released the next day following the intervention of a prosecutor, who had found that person’s arrest unlawful and quashed the police’s decision to arrest. On 5 December 2005 the Bilgorod-Dnistrovskiy Local Court passed a resolution confirming the unlawfulness of the arrest. 45. In a decision of 11 October 2007, the Kyiv Court of Appeal awarded damages to a person who had been detained for twenty-two hours on 7 and 8 July 2002 at a police station without any documentation and had then been released. In this case, the person’s detention was found unlawful by the same court of appeal on 25 May 2006, as the person’s arrest and detention had not complied with Article 106 of the Code of Criminal Procedure. 46. The Country Reports on Human Rights Practices of the US Department of State (hereafter “the Reports”) for 2010, released on 8 April 2011, noted with respect to Ukraine: “d. Arbitrary Arrest or Detention The constitution and the law prohibit arbitrary arrest and detention; however, in practice problems remained. There was a sharp increase in charges brought against opposition politicians after the appointment of a new prosecutor general on November 4, giving rise to the appearance of selective and politically motivated prosecution by the Yanukovych government. Between November 1 and December 31, prosecutors brought charges against former prime minister Yulia Tymoshenko and more than eight high-level members of her government for abuse of office and/or misuse of state funds during their tenure. The questioning of accused individuals by government prosecutors, which often lasted for hours at a time over a period of several days, and the denial of bail in certain cases further exacerbated the perception of politically motivated prosecution (see section 4). The government contended that the prosecutions were not targeting the opposition, and that there were many ongoing investigations of members of the governing party; however, with only a few exceptions these were low-level, career officials. On December 12, the UHHRU [the Ukrainian Helsinki Human Rights Union] and the Kharkiv Human Rights Group issued a statement that the government’s criminal prosecutions were only aimed at members of the opposition. As a result, the government’s actions "spell the effective use of criminal court proceedings for political ends... and run counter to democratic values based on equality of all before the law and undermines the foundations of criminal justice," the statement said. On December 26, police detained former interior minister Yuriy Lutsenko in Kyiv on allegations of embezzlement, abuse of office, and forgery. The appeals court denied his petition for bail and approved the prosecutor general’s request for a two-month detention. Local human rights observers and opposition commentators described Lutsenko’s arrest as politically motivated, given the administrative nature of his alleged offenses. Lutsenko alleged that the prosecutor’s office ignored his constitutional rights throughout the investigation, in particular, delaying access to and denying time to review case materials and creating other "artificial barriers" to his right to become acquainted with the case...” “The European Parliament, ...G. whereas 12 former high-ranking officials from the Tymoshenko government are in pre-trial detention, including the former Interior Minister, Yuri Lutsenko, one of the leaders of the People’s Self-Defence Party, who has been charged with abuse of office and misappropriation of funds and was arrested on 26 December 2010 for alleged non-cooperation with the prosecution, and the former First Deputy Minister of Justice, Yevhen Korniychuk, who was arrested on 22 December 2010 on charges of breaking the law in connection with public procurement procedures for legal services, H. whereas Mr Lutsenko was not released from pre-trial detention when his trial opened on 23 May 2011, despite the fact that detention for alleged non-cooperation in the investigation of his case is an extremely disproportionate measure, I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights... N. whereas the EU continues to emphasise the need for respect to be shown for the rule of law, incorporating fair, impartial and independent legal processes, while avoiding the danger of giving rise to any perception that judicial measures are being used selectively; whereas the EU considers these principles especially important in a country which aspires to enter into a deeper contractual relationship based on a political association, 1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends; 2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied, particularly in the cases of Ms Tymoshenko and Mr Lutsenko, former Interior Minister, and notes that Mr Lutsenko has been in custody since 26 December 2010; expresses its support for the Ukrainian Human Rights Commissioner, Nina Karpachova, who has asked the Ukrainian Prosecutor General to consider the possibility of applying preventive measures that do not involve detention... 4. Stresses that ongoing investigations of prominent Ukrainian political leaders should not preclude them from actively participating in the political life of the country, meeting voters and travelling to international meetings; calls, therefore, on the Ukrainian authorities to lift the travel ban, both domestically and internationally, on Yulia Tymoshenko and other key political figures...” 47. In April 2011, Freedom House issued the above report under the title Sounding the Alarm: Protecting Democracy in Ukraine. The relevant extracts from the report read as follows: “Corruption ... the government’s anticorruption campaign lacks credibility. Authorities point to the prosecution of former prime minister Tymoshenko and former interior minister Yuriy Lutsenko as a signal that corruption will not be tolerated and that politicians are not above the law. However, these cases are not focused on charges of personal enrichment, but rather on administrative abuses. The government is correct that the prosecutions send a strong signal, but that signal is actually a warning to other would-be opposition figures not to challenge the authorities... Judiciary The Yanukovych government has made judicial reform one of its top priorities. Much is at stake, as one of the most serious accusations leveled against the administration is that it is using the justice system—and specifically the prosecutor general’s office and the SBU—to punish political opponents. Arguably no other issue has generated as much attention and criticism from inside Ukraine and from the international community than this perception of selective prosecutions, especially against former prime minister Tymoshenko and her associates. The level of concern has led the U.S. and other Western embassies, as well as officials in Brussels, to issue public statements highlighting this issue. Tymoshenko’s is the most prominent case, but charges have been brought against nearly a dozen other top officials from her government, including former interior minister Yuriy Lutsenko and Ihor Didenko, the former deputy chief executive of the national energy company, Naftogaz Ukrainy. The charges brought against them, while not inconsequential, are nonetheless seen by many observers as a misuse of the judicial process. This is not to imply that the government and prosecutor general’s office should not vigorously pursue all cases of corruption, or that former senior officials should be immune from fair prosecution. But the authorities have an extra burden to pursue such cases in a credible fashion, something they have failed so far to do. The government and prosecutor’s office, anticipating such criticism, note that more than 350 current officials are being investigated for or charged with corrupt activities. None of these individuals, however, hold enough power or influence to suggest that justice is being pursued fairly and blindly. The highest-ranking official currently under investigation in Kyiv is Bohdan Presner, former deputy minister for environmental protection in Yanukovych’s administration. Even if it disputes the claims of selective prosecution, the government understands that, at a minimum, it has a perception problem. As one official acknowledged, the judicial powers should not behave the way they have behaved of late. The same official unfavorably compared the situation today to that before the Orange Revolution, and expressed concern that the judicial system agrees to whatever law enforcement agencies request. Indeed, the strong perception among many observers is that the judicial system does not serve as a check or balance against the executive branch. Such concerns are not allayed by comments from the head of the Constitutional Court, who is reported to have said that Yanukovych can always rely on the loyalty of the court, or by a top law enforcement official who said that Yanukovych can count on us... Conclusions and Recommendations ...In that spirit, to prevent further democratic backsliding in Ukraine, and to support constructive initiatives both inside and outside the government, the assessment team recommends the following: For President Yanukovych and his government: ... Halt politically motivated prosecutions carried out by the prosecutor general’s office against former leading political figures, while maintaining a credible campaign to root out corruption and foster accountability...” 48. As part of their Legal Monitoring in Ukraine, the Danish Helsinki Committee issued on 28 April 2011 a “Preliminary Report on the trials against former Minister of Interior Yurij Lutsenko and former First Deputy Minister of Justice Yevhen Korniychuk”. The relevant parts of the report read as follows: “... It is not the purpose of the monitoring of the criminal cases to establish whether the defendants are guilty or innocent. Ukraine ranks very high on international lists of corruption and any honest attempt to fight it will be welcomed by the international community, even if it should be against politicians from the former regime. Smooth transfer of power from one government to the next is however so important an element in a functioning democracy and prosecution against so many members of a former government so seldomly seen, even in that part of the world, that the present government must understand and accept international skepticism as to its motives. Especially as the present government generally is considered to have a poor record in fighting corruption and could have an evident interest in removing prominent political opponents from future elections. ... The case against Yurij Lutsenko Yurij Lutsenko belonged to the Socialist Party during 1991-2006, when he established the People´s Self-Defense Party. He was Minister of Interior in 2005-2006 and again in 2007-2010. He is now Deputy Editor-in-Chief of the newspaper “Silski Visti”. During Mr. Lutsenko’s work in the ministry at that time opposition politicians, among others the present Vice Prime Minister Borys Kolesnikov and the late ex-governor of Kharkiv Oblast Yevhen Kushnariov, were investigated and detained, and the office of the oligarch and member of the parliament from the Party of Regions Rinat Akhmetov was searched. Investigation against Mr. Lutsenko was opened on 2.11.2010. On 5 November 2010 he accepted a decision by the investigator of a preventive measure in the form of prohibition against leaving his registered residence. The charges were changed on 13.12.2010 and the pre-trial investigation declared finished on the same day, resulting in 47 volumes of case-file. The final charges concerned violation of Art. 191, para. 5, (misappropriation of state property in especially gross amount through abuse of office by an organized group) and Art. 365, para. 3 (excess of official powers that caused grave consequences), for the following alleged actions: 1. unlawful promotion of Mr. Lutsenko’s driver to the rank of police officer, leading to losses caused to the state because of increased salary and payment of other benefits. 2. allowing expenses for the organization of the annual Militsia´s Day festivities in 2009 in violation of a resolution of the government to halt such expenses. 3. having exceeded his power as Minister in connection with the police monitoring of a driver of the former head of the Security Service, who was suspected of complicity in the poisoning of former President of Ukraine Mr. Yushchenko. On 24.12.2010 the investigation was reopened. Lutsenko was arrested on 26 December 2010 for having violated Article 135 of the Criminal Procedure Code of Ukraine by having avoided to acquaint himself with the materials of the case at the time dictated by the investigator. On several days Mr. Lutsenko had failed to appear citing his attorney´s involvement in another criminal case, and on the days where he actually did turn up, he was found to have deliberately drawn out this process. Additionally he had allegedly disclosed via the mass media information gathered by pre-trial investigation in his criminal case. On 21.4.2011 the Kyiv City Court of Appeal extended the detention of Mr. Lutsenko for another month till 27th of May. Few days before the court hearing Mr. Lutsenko finished reviewing the case-file. The prosecution, however, requested further extension due to the fact that legal representatives of Mr. Lutsenko failed to finalize their familiarizing with the case-file against Mr. Lutsenko. Observations, discussions and conclusions: ... 2. According to the Ukrainian Criminal Procedure Code, any preventive measures, including custody, are applied when there are grounds to believe that a person will try to abscond or avoid carrying out procedural decisions, impede the course of justice or continue their criminal activities, as well as to ensure the enforcement of procedural decisions. The law itself is not that different from the legislation of other countries. What is different is however the widespread use of pre-trial detention, as also seen by the detention of Mr. Lutsenko and Mr. Korniychuk, neither of whom would probably have been detained in countries with another legal tradition. A total figure of about 40.000 detained at any time has been mentioned. The European Court of Human Rights dealt in its judgment of 10.2.2011 in the case of Kharchenko vs. Ukraine with the excessive use of detention in Ukraine. The problems of the use of detention in general and in these two cases seem to have been more generally recognized also by authorities in Ukraine. The Monitor learned that the Ombudsman personally has intervened in both cases and informed the courts and the President of Ukraine that the use of detention in general and in these individual cases in her opinion was a violation of their human rights. In most countries such an intervention in a pending case from an ombudsman to the President on activities of the judiciary would probably lead to raised eyebrows; it is mentioned here only to demonstrate the point on violation of human rights. ... 3. In neither of the monitored cases have individual reasons to support the need of pre-trial detention been given by the court. In the Lutsenko case the court only refers that: “the case materials have data that indicate a possibility by Yurij Lutsenko personally and through others in the future to hamper the exercise of procedural decision in the case and the effect on witnesses”. This clearly is not an individual justification for the legality of the use of detention with regard to the specific facts of the case, as required by the European Court on Human Rights. 4. In the Lutsenko case the investigator gave him and his lawyer a “schedule” dictating which pages of the files they were to read every day in preparation of his defense, and only gave them access to the files they were instructed to review on that very day. The investigator did not take into consideration whether the defense lawyer had other obligations, which could keep him from preparing this case within the dictated time frame. The defense did not get his own copy of the files, and in neither the Lutsenko nor the Korniychuk cases were the defense allowed by the investigator to photograph or photocopy the files or parts thereof. The defense lawyer during his preparations and during the trial will only have his personal handwritten notes to support his memory. As seen from point 3 above, the court even justified the detention of Lutsenko by the fact that he and his defense lawyer were too slow in reading through the files, thus delaying the trial and not respecting a procedural decision of the investigator. It is unheard of and must be a violation of the European Convention Article 6, paragraph 3.b) that it is up to the decision of the investigator how and when the defendant and his lawyer are to prepare themselves for the upcoming trial. That can not be a procedural decision in the hands of the investigator or the prosecutor, but a right of the defendant and his lawyer. It does not allow fair working conditions or equality of arms that the defense lawyer does not have his own copy of the file and access to all of the files simultaneously. ... 6. During the court session in the Lutsenko case on 25.2.2011 the chairman of the Court of Appeal informed the audience that he had received a written note from Mr. Lutsenko through his lawyer requesting that Mr. Lutsenko be present in the court room. The judge however turned this request down as the note was not “certified by the prison director”. The court therefore had not requested Mr. Lutsenko to be brought from the Detention Center to the court building and the court session took place without defendant. The court can have had no doubt that Mr. Lutsenko wanted to be present nor that the note, which it had received from the defendant’s lawyer, was written by Mr. Lutsenko. The decision indicates a biased attitude in the judiciary against granting the accused person his legal rights and letting him benefit from the assumption of innocence. That also seems to indicate a lack of understanding of or respect for one of the basic principles of human rights: Justice must not only be done but must also be seen to be done. 7. In the Lutsenko case the defense lawyer complained about having only received from the court a notice of the session, in which the question of extension of the detention was to be dealt with, 15 minutes before the meeting. With such a short notice he was unable to meet. The prosecutor claimed that the defense lawyer had been informed 1 hour before the meeting and that he himself had not known of the session earlier. In any case this is not a fair way for the court to inform the parties to the trial about a session, for which they need to prepare themselves and where it is essential that the persons with specific knowledge of the case can meet. ... 10. The Monitor was impressed by the widespread opinion that the Ukrainian courts cannot be considered independent at least in cases related to politics. The judiciary certainly has a problem with its credibility in the public. As the decisive factor of such situation the composition of the Higher Council of Justice was pointed at with its heavy bias in favour of the representation from the President of Ukraine or his affiliated party and the membership of the Prosecutor General and his 2 deputies, the Head of the Security Service etc. after the Judicial Reform in the summer of 2010. The judicial reform has in other ways improved the conditions of the legal system, but the Higher Council of Justice has obtained an unacceptable decisive influence on the appointment of, the disciplinary measures against and the dismissal of judges. The judicial reform law was criticized by the Council of Europe’s Venice Commission. 11. According to a public statement by the Deputy Prosecutor General the prosecution last year initiated 600 disciplinary cases against judges and information indicates that at least 38 judges have been dismissed against an average of 6½ the former years. This is a strong indication that the independence of judges is under strong pressure and that the prosecution has a dominating influence on the future of judges. Prosecutors should not be responsible for disciplining judges; that disturbs the point of balance between prosecution and judiciary. 12. It has also been mentioned that judges are not appointed for an unlimited time until they have served for five years. Their first appointment is made by the President of Ukraine upon proposal of the Higher Council of Justice. After that period their permanent appointment is to be approved by the Parliament where one party and its allies hold a solid majority. That gives judges little room for political independence especially during those initial 5 years in the office. ... 14. The Monitor has been surprised to see a statement by the newly appointed Prosecutor General Viktor Pshonka that he considers himself to be a member of the team of the President and will fulfil his orders. One would rather expect him to express his loyalty to the law and his independence from the political life. 15. This corresponds to many statements about a history of political influence on the prosecution and the courts. Reportedly one of the main reasons for launching the case against Mr. Lutsenko is to pay back for his actions as Minister of Interior against some of the persons who have now come to power. ... 17. It has also been mentioned by several persons that there is a tradition of leaving political investigations open and unconcluded for long periods, sometimes years. This practice can keep the defendants well occupied with meetings with the investigator, keeping them from other activities, and also serves as a Damocles sword to the defendants, knowing that the investigator or the prosecutor at any time can forward cases against them with grave consequences. If the purpose of the investigation is to promote a political aim not protected by the law by prosecuting somebody for acts for which others are not being prosecuted, and thus not treat everybody equally according to the law, the justice is selective and therefore unfair. The charges raised against the former ministers seem to the experienced eye somewhat far-fetched and one would rather expect them to result in a political than a criminal responsibility, if any at all. This monitoring can not and can not be expected to answer with certainty the question of whether these cases are the result of selective justice. If so it however tells about the legal system and tradition of a country, not about the guilt or innocence of an individual. Selective justice and abuse of criminal justice system is a violation of Article 6 on Fair Trial of the European Convention on Human Rights and falls short of the country’s international obligations to ensure respect for the rule of law principles. Ukraine has been monitored by the Council of Europe as to the implementation of the commitments and obligations undertaken when joining that organization. The President of Ukraine issued on 10.1.2011 a decree according to which Ukraine is to fulfill its obligations towards CoE and established a mechanism to oversee it. This process should not be solely focused on the legislative reform. The main problems have been in the culture, tradition and implementation, on top of the outdated and deficient legislation itself (e.g. Ukrainian Criminal Procedure Code dates back to 1961 and its reform is long overdue). Based on the above observations of the monitoring of the cases against Mr. Korniychuk and Mr. Lutsenko it can be concluded that it would be unwise to stop that monitoring now.” | 1 |
train | 001-115332 | ENG | HUN | ADMISSIBILITY | 2,012 | DEBÚT ZRT AND OTHERS v. HUNGARY | 4 | Inadmissible | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen | The applicants, DEBÚT Zrt., EGÚT Zrt. and Colas Dunántúl Zrt. are privately held companies limited by shares, registered under Hungarian law, with their seats in Debrecen, Eger and Zalaegerszeg, respectively. The applicants are construction companies, against which the Competition Office conducted investigations on suspicion of an unlawful cartel agreement. The applicants and other companies were suspected of having shared the market for public road constructions between themselves. Under section 65/A of the Act Prohibiting Unfair Market Practices, on 27 February 2004 the Budapest Regional Court authorised the Office’s investigators to enter the applicants’ premises and those of other related enterprises without prior notification and to search for direct evidence of their unlawful cartel agreement. No appeal lay against the authorisation. The investigators carried out ‘dawn raids’ (that is, unannounced house searches very early in the morning) on the premises of several enterprises, including those of the applicants, and drafted an enquiry report on their findings. The applicants could have complained about the measure within three days but did not do so. On 14 July 2005 the Competition Board, the decision-making body of the Office, published on the Office’s website its preliminary opinion drawn up on the basis of the report. In its decision of 22 September 2005 the Competition Board established that the applicants and other companies had indeed divided the market between themselves and imposed substantial fines on them. The applicants sought judicial review. They argued that the Board’s decision had been adopted in biased proceedings and based partly on documents which had been retrieved in a manner contrary to Articles 6 and 8 of the Convention. On 6 February 2008 the Budapest Regional Court dismissed the action, holding that the Competition Office had conducted lawful proceedings and carried out properly reasoned and justified raids on the applicants’ business premises. On 15 October 2008 the Budapest Court of Appeal upheld this judgment. On 3 November 2009 the Supreme Court dismissed the applicants’ petition for review. All three court instances addressed the merits of the applicants’ arguments about the admissibility of the documents as evidence and the lawfulness of the procedure. | 0 |
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