partition
stringclasses 3
values | itemid
stringlengths 8
10
| languageisocode
stringclasses 1
value | respondent
stringlengths 3
135
| branch
stringclasses 4
values | date
int64 1.96k
2.02k
| docname
stringlengths 11
228
| importance
int64 1
4
| conclusion
stringlengths 12
5.89k
| judges
stringlengths 8
416
⌀ | text
stringlengths 64
316k
| binary_judgement
int64 0
1
|
|---|---|---|---|---|---|---|---|---|---|---|---|
train | 001-81476 | ENG | ITA | CHAMBER | 2,007 | CASE OF PROVIDE S.R.L. v. ITALY | 3 | Violation of Art. 6-1;No violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings | Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Luigi Ferrari Bravo;Mindia Ugrekhelidze;Vladimiro Zagrebelsky | 5. The applicant is a company governed by Italian law with its registered office in Brembate di Sopra (Bergamo). 6. On 10 March 1992 the applicant company brought proceedings against M.R. and the I. company in the Alemmo San Salvatore (Bergamo) Magistrate's Court, seeking damages for the harm sustained in a road traffic accident, which the applicant company assessed at 1,495,090 Italian liras ((ITL) – 772.14 euros (EUR)). 7. Preparation of the case for hearing began on 28 April 1992. On 29 September 1992 the applicant company requested an adjournment and on 19 January 1993 it filed pleadings. Of the eight hearings scheduled between 15 June 1993 and 4 October 1995, six involved the examination of witnesses and the parties, one was adjourned at the applicant company's request and the last was adjourned of the court's own motion. On 24 January 1996 the defendants requested an expert inquiry and the Magistrate's Court reserved its decision. By an order made in camera on the same date the court rejected the request. On 20 March and 6 November 1996 the parties made their submissions. On 5 March 1997 judgment was reserved. 8. By judgment of 30 April 1998, the text of which was deposited with the registry on 29 May 1998, the Magistrate's Court upheld the applicant company's claim. 9. On 6 September 2001 the applicant company brought an action in the Venice Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining that the length of the proceedings described above had been excessive and seeking just satisfaction for the non-pecuniary damage sustained. 10. By decision of 29 November 2001, the text of which was deposited with the registry on 27 December 2001, the Court of Appeal found that a reasonable time had been exceeded but dismissed the claim for compensation since the applicant company had failed to prove that it had sustained any damage. In respect of pecuniary damage, the Court of Appeal observed that the applicant company had not claimed to have sustained any such harm and that, accordingly, no sum could be awarded under that head. As to non-pecuniary damage, the Court of Appeal asserted that, although legal entities could sustain damage of that nature as a result of unreasonably lengthy proceedings, such damage could exist only where certain types of loss had been incurred and, in order to be quantified, required specific proof which had not been supplied in this case. The Venice Court of Appeal ordered the applicant company to pay the State ITL 2,450,000 (EUR 1,265.31) for the costs of the proceedings. 11. The applicant company appealed on points of law, contending that once it had been found that a reasonable time had been exceeded, legal entities were not required to adduce proof of damage which clearly gave rise in itself (in re ipsa) to loss. 12. By judgment of 4 February 2003, the text of which was deposited with the registry on 15 April 2003, the Court of Cassation dismissed the appeal and ordered that the costs be shared between the parties. According to the Court of Cassation, the Pinto Act did not recognise any damage arising in re ipsa but required that proof be provided in accordance with section 2 of the Act. Such an approach, moreover, was consistent with the Court's case-law under Article 41 of the Convention. 13. By letter of 30 January 2003 the applicant company informed the Court of the outcome of the domestic proceedings and requested it to resume the examination of its application. 14. The relevant domestic law and practice are set out in Cocchiarella v. Italy ([GC], no..64886/01, §§ 23-31, ECHR 2006-V). | 1 |
train | 001-72680 | ENG | FRA | CHAMBER | 2,006 | CASE OF VAN GLABEKE v. FRANCE | 1 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award | András Baka;Antonella Mularoni;Elisabet Fura;Jean-Paul Costa;Karel Jungwiert;Mindia Ugrekhelidze | 4. The applicant was born in 1946 and lives in Roubaix. 5. On 21 March 2002 the applicant was arrested by the police on the public highway and taken in the course of the evening to Lommelet de Saint-André Psychiatric Hospital, where she was compulsorily admitted at the request of a third party. The Government submitted that the applicant had been “picked up” on the public highway by a police officer who had asked for her to be admitted to hospital. They added that her admission had been ordered on the basis of two medical certificates issued by different doctors to the effect that she required hospital treatment. The applicant disputed that account and stated that she had been arrested while cycling to the shops and taken to the police station, where she had promptly been examined by a doctor who had been requisitioned to draw up a medical certificate for her admission to hospital. 6. She submitted that after her admission at the hospital she had immediately been undressed and made to lie down with all four limbs attached to the bedposts in a seclusion cell, without being given any explanation. She had not undergone a medical examination on arrival but had been injected with unknown substances. She had remained in that position for five days, and was released only briefly at mealtimes. 7. She remained in the hospital until 8 April 2002, without being allowed to receive visits or to make or receive telephone calls. 8. In the meantime, on 23 March 2002, the applicant's mother applied by registered letter to the President of the Lille tribunal de grande instance for her daughter's immediate discharge. The parties have been unable to establish the date on which the letter was received. However, in a letter of 8 April 2002, Lille State Counsel replied that he was not empowered to deal with the subject matter of her correspondence and that her daughter was required to apply directly to him to be discharged. On 28 March 2002 Afcap in turn applied to the President of the Lille tribunal de grande instance for the applicant's immediate discharge. 9. On 22 April 2002 State Counsel's Office decided to take no further action on that application as it was devoid of purpose. 10. Neither the President of the Lille tribunal de grande instance nor the judge responsible for matters relating to personal liberties and detention (juge des libertés et de la détention – “the liberties and detention judge”) ever gave a ruling on the applications. 11. The following provisions of the Public Health Code are relevant to the present case: “Persons who have been admitted to hospital without their consent or have been detained in any public or private institution for patients being treated for mental disorders, or their guardian if they are minors, their guardian or adviser if they are above the age of majority and a court order for such appointment has been made, their spouse or cohabitant, a parent or a person capable of acting in their interests or, where appropriate, a court-appointed adviser in relation to personal welfare may appeal at any time by means of an application to the President of the tribunal de grande instance for the judicial district in which the institution is situated, who, in his capacity as urgent-applications judge, shall, after hearing representations from each party and carrying out the necessary checks, order their immediate discharge where appropriate. An appeal to the same effect may be lodged by a person who has requested the patient's compulsory admission or by State Counsel, of his own motion. The President of the tribunal de grande instance may also of his own motion make an order at any time for the discharge of a person who has been compulsorily admitted to hospital. To that end, any interested parties may bring to his attention any information they consider useful about the patient's circumstances. N.B. Section 49 XI of Law 2000-516 of 15 June 2000 amends Article L. 351 of the Public Health Code as follows: in the first paragraph, 'President' is replaced by 'liberties and detention judge'; at the start of the last paragraph, 'President of the tribunal de grande instance' is replaced by 'liberties and detention judge'. This amendment has not been inserted into the wording of the new Article L. 3211-12 of the Public Health Code (former L. 351), as resulting from Ordinance no. 2000-548 of 15 June 2000.” “A person with a mental disorder cannot be admitted to hospital without his consent at the request of another unless (1) his disorder makes it impossible for him to consent; and (2) his condition requires immediate treatment and constant monitoring in a hospital environment. An application for compulsory admission may be made either by a member of the patient's family or by a person capable of acting in his interests, but not by any medical personnel serving in the institution in question. The application must be handwritten and signed by the person making it. If the person is unable to write, the application shall be received by the mayor, the police superintendent or the director of the institution, who shall take formal note of it. It shall contain the surname, forenames, profession, age and home address both of the person making the application and the person whose admission is being requested, together with an indication of the nature of the relationship between them and, where relevant, their degree of kinship. The application for admission shall be accompanied by two detailed medical certificates issued less than fifteen days previously, attesting that the conditions laid down in the second and third paragraphs above are satisfied. The first medical certificate may be issued only by a doctor not practising in the institution to which the patient is to be admitted; he shall observe the person's mental state, indicate the particular features of his disorder and explain the need for his compulsory admission. It must be confirmed by a certificate issued by a second doctor who may practise in the institution to which the patient is to be admitted. The two doctors shall not be related by blood or marriage, up to the fourth degree inclusive, either to each other or to the directors of the institutions referred to in Article L. 32221, or to the person making the application or to the person whose admission is being sought.” “A person admitted at the request of another to an institution referred to in Article L. 3222-1 shall likewise cease to be detained there as soon as his discharge is requested by: ... (3) if the person is unmarried, the ascendants; ...” | 1 |
train | 001-114517 | ENG | GBR | CHAMBER | 2,012 | CASE OF M.M. v. THE UNITED KINGDOM | 3 | Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1951 and lives in County Tyrone, Northern Ireland. 6. In April 2000 the girlfriend of the applicant’s son wished to leave Northern Ireland with the applicant’s ten-month old grandson and return to live in Australia following her separation from the applicant’s son. In order to try and force her son and his girlfriend to reconcile their differences, and in the hope that her grandson would not return to Australia, the applicant disappeared with her grandson at 6 p.m. on 19 April 2000 without the parents’ permission. The police were called and the child was returned unharmed on the morning of 21 April 2000. 7. The applicant was subsequently arrested for child abduction. At a police interview on 24 April 2000, in the presence of her solicitor, the applicant confirmed that she had been aware at the time that she took her grandson that her conduct amounted to child abduction. 8. By letter dated 10 October 2000 the Director of Public Prosecutions recorded his decision that the public interest did not require the initiation of criminal proceedings against the applicant and that no such proceedings should therefore be brought. Instead, he indicated that a caution should be administered. 9. The applicant received a caution for child abduction which was formally administered on 17 November 2000. 10. On 6 March 2003, in reply to a query from the applicant, the police advised her that her caution would remain on record for five years, and so would be held on record until 17 November 2005. 11. On 14 September 2006 the applicant was offered employment as a Health Care Family Support Worker within Foyle Health and Social Services Trust (“the Trust”) through Westcare Business Services (“Westcare”), subject to vetting. She was asked to disclose details of prior convictions and cautions. She accordingly disclosed details of the incident of April 2000 and her subsequent caution on the form provided, and consented to a criminal record check. Westcare contacted the Criminal Records Office of the Police Service of Northern Ireland (“Criminal Records Office”) to verify the details disclosed. The existence of the caution was duly verified. 12. On 31 October 2006 Westcare withdrew the offer of employment, indicating that it had taken into account the verification by the Criminal Records Office of the caution for child abduction. 13. The applicant subsequently sought to challenge her acceptance of the caution in November 2000 by letter to the Criminal Records Office. In an undated letter, the Criminal Records Office replied to her in the following terms: “... in a case where someone agrees to be cautioned by the police for a particular offence, by doing so they are accepting that they were guilty of the offence in the first place. This information is printed on the caution form, which you signed on 17th November 2000. Regrettably there is no way to change that. The case cannot be brought back to a court because the whole idea of the caution was to keep it out of court in the first instance. I should also point out that the information given to Sgt Dunne and which he relayed to you in 2003, about the weeding date for an adult caution, was correct at that time but there has since been a policy change. Normally an adult caution will be weeded after a period of five years, provided the defendant has not been convicted of any further offences. However following the murder of the schoolgirls in Soham England and the subsequent Bichard Report the weeding policy was changed in relation to all cases where the injured party is a child. The current policy is that all convictions and cautions, where the injured party is a child, are kept on the record system for life.” 14. The letter concluded: “I fully appreciate that the offence in your case was not the normal type of offence and that the child did not suffer any harm and that it was never your intention that he should suffer any harm. The offence code under which the offence comes for computing purposes classes the offence as ‘child abduction’ (by other person). Which means a person other than a parent of the child. ... Perhaps you would be good enough to contact me ... in order that we might discuss the matter and perhaps find some means of ameliorating the consequences of the information given above.” 15. By letter dated 6 May 2006 to the applicant’s solicitor, the Criminal Records Office confirmed that in signing the caution form the applicant had accepted guilt for the offence in question and that nothing could be done to change the criminal record. The applicant’s solicitor subsequently informed her that there did not appear to be any action which she could take in relation to the removal of the caution. 16. By letter dated 6 December 2006 Detective Superintendent Thomson of the Northern Ireland Police Service confirmed that he would not delete the caution from police records. However he proposed, with the applicant’s agreement, to add a comment to the effect that the incident was domestically related and that in any vetting context the applicant should be approached for an explanation. 17. In January 2007 the Northern Ireland Legal Services Commission (“the LSC”) refused an application for legal aid, made by the applicant’s solicitor, to review the Trust’s decision not to employ the applicant. The solicitor informed the applicant that she could appeal the LSC’s decision at a cost of GBP 500 for representation by counsel, but the applicant could not afford to instigate legal proceedings without public funding. 18. In February 2007 the applicant was interviewed for a position as a Family Support Worker. The interview letter advised that the position was a regulated one under Article 31 of the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003 and she was asked to complete a consent form and bring it to the interview. 19. On 29 March 2007 the applicant was informed that her application for the position was unsuccessful. No reasons were provided. 20. At the relevant time the purpose of a formal caution was set out in Police Force Order no. 9/96 issued by the Royal Ulster Constabulary, namely: “(a) to deal quickly and simply with less serious offenders; (b) to divert offenders in the public interest from appearance in the criminal courts; and (c) to reduce the likelihood of re-offending.” 21. The Order further noted: “... a formal caution is not a form of sentence ... (a) A formal caution is nonetheless a serious matter. It is recorded by police; it may be relevant in relation to future decisions as to prosecution, and it may be cited in any subsequent criminal prosecutions. Properly used, caution is an effective form of disposal. ...” 22. Article 29(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (as subsequently amended) provides that: “... the Secretary of State may by regulations make provision for recording in police records convictions for such offences as are specified in the regulations.” 23. The regulations made by the Secretary of State under this provision are the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. These regulations identify the relevant convictions as being those for offences punishable by imprisonment, as well as a number of additional specified offences. The regulations do not make any reference to cautions. 24. According to the Government, the recording of cautions in Northern Ireland takes place under the police’s common law powers to retain and use information for police purposes. That power is subject to the provisions of the Data Protection Act 1998 (see generally paragraphs 65-71 below). 25. According to the Government, the policy and practice of the Police Service in Northern Ireland (“PSNI”) at the time of the issue of the applicant’s caution in 2000 was to delete cautions from the individual’s criminal record after five years. 26. However, following publication of the Bichard Report in 2006 (see paragraphs 31-32 below), the PSNI changed its practice so as to retain information on adult cautions for the rest of a person’s life. 27. The chief constable of PSNI is a member of the Association of Chief Police Officers of England and Wales and Northern Ireland (“ACPO”). 28. Pursuant to the ACPO Code of Practice 1995 (“the 1995 ACPO Code”), in cases of conviction for an offence that carried the possibility of imprisonment, a record of the conviction had to be retained for a period of twenty years. Exceptions to this included cases where the conviction was for an offence against a child or young person, where the record was to be retained until the offender was 70 years old, subject to a minimum 20-year retention period; and cases involving rape, where the record was to be retained for the life of the offender. 29. Records of cautions (assuming there were no other convictions or further cautions) were to be retained for a five-year period. 30. The 1995 ACPO Code was updated in 1999 and subsequently replaced by another code of practice in 2002. Neither instrument substantially altered the provisions regarding retention of data relating to cautions. 31. Following the murders of two young girls in August 2002 by a caretaker employed at a local school, a review of the United Kingdom’s police forces was announced by the Home Secretary. An inquiry was set up, to be conducted by Sir Michael Bichard. 32. The Bichard Inquiry Report (“the Bichard report”) was published in June 2004. It reviewed current practice as regards retention of data on convictions and cautions and concluded (at paragraph 4.41) that “there were a number of problems with the review, retention or deletion of records.” The report recommended that: “A Code of Practice should be produced covering record creation, review, retention, deletion and information sharing. This should be made under the Police Reform Act 2002 and needs to be clear, concise and practical. It should supersede existing guidance.” 33. In July 2005 the Secretary of State adopted a Code of Practice on the Management of Police Information (“the 2005 Code of Practice”). The Code applies directly to police forces in England and Wales and is available for adoption by other police forces. The Government did not clarify whether the Code has been adopted by the PSNI. 34. Paragraph 1.1.1 of the Code explains that police forces have a duty to obtain and use a wide variety of information, including personal information. The Code clarifies that responsibility for the management and use of information lies with the chief officer of the police force. It recognises the existing legislative framework for the management of information relating to data protection and human rights set out in the Data Protection Act (see paragraph 65-71 below). 35. The Code sets out a number of key principles including, inter alia, the duty to obtain and manage information; the importance of recording information considered necessary for a police purpose; and the need to review information and consider whether its retention remains justified, in accordance with any guidance issued. 36. In 2006 ACPO published Guidance on the Management of Police Information. This Guidance was applied by the PSNI. A second edition was published in 2010 (“the MOPI Guidance”), and is also applied by the PSNI. 37. Chapter 7 of the MOPI Guidance deals with review, retention and disposal of police information not contained on the Police National Computer (“PNC”). The PNC is the system for recording conviction data in England and Wales; the Causeway system is used in Northern Ireland. The MOPI Guidance notes at the outset that: “7.2.1 ... Public authorities, including police forces, must act in a way that complies with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.” 38. The MOPI Guidance also refers to the need to comply with the principles of the Data Protection Act (see paragraph 65-71 below). 39. The MOPI Guidance sets out the framework for decision-making in respect of retention of police information. It provides that records should be kept for a minimum period of six years, beyond which time there is a requirement to review whether retention of the information remains necessary for a policing purpose. Relevant questions are whether there is evidence of a capacity to inflict serious harm, whether there are concerns relating to children or vulnerable adults, whether the behaviour involved a breach of trust, whether there is evidence of links or associations which might increase the risk of harm, whether there are concerns as to substance misuse and whether there are concerns that an individual’s mental state might increase the risk. In any review, the MOPI Guidance notes that there is a presumption in favour of retention of police information provided that it is not excessive, is necessary for a policing purpose, is adequate for that purpose and is up to date. 40. The MOPI Guidance also contains a review schedule based on the seriousness of offences. Under the review schedule, information is divided into four categories. Group 1 is called “Certain Public Protection Matters”, which includes information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (or historical offences that would be charged as such if committed today). Such information should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes. The MOPI Guidance continues: “Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject’s date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. This must be done every ten years ... Due to the seriousness of this group, no distinction is made between the type or classification of information that can be retained for 100 years; information retained under this grouping can include intelligence of any grading. There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proven as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid unnecessary damage to the person who is the subject of the record.” 41. The other categories are “Other Sexual, Violent or Serious Offences (Group 2), in respect of which information should be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm; “All Other Offences” (Group 3), in respect of which police forces may choose to use a system of time-based, automatic disposal if it is considered that the risk of disposal is outweighed by the administrative burden of reviewing the information or the cost of retaining it; and “Miscellaneous” (Group 4), which covers a variety of other cases and entails different guidance on retention in each one. 42. The ACPO Retention Guidelines for Nominal Records on the Police National Computer 2006 (“the ACPO Guidelines”) came into effect on 31 March 2006. The ACPO Guidelines form part of the guidance issued under the MOPI Code and are applied by PSNI. 43. The ACPO Guidelines explain that: “1.3 The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data. The restriction of access is achieved by setting strict time periods after which the relevant event histories will ‘step down’ and only be open to inspection by the police. Following the ‘step down’ other users of PNC will be unaware of the existence of such records, save for those occasions where the individual is the subject of an Enhanced Check under the Criminal Records Bureau vetting process ... ” 44. They continue: “2.8 ...the Nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been Convicted (including cautions, reprimands and warnings), dealt with by the issue of a Penalty Notice for Disorder, Acquitted, or dealt with as a ‘CJ Arrestee’ [a person who has been arrested for a recordable offence under the Criminal Justice Act 2003 but in respect of whom no further action was taken].” 45. The general principle set out in paragraph 3.1 of the ACPO Guidelines is that when a nominal record is created or updated on the PNC by virtue of an individual being convicted, receiving a Penalty Notice for Disorder, being acquitted or being a CJ Arrestee, the record will contain the relevant personal data together with details of the offence which resulted in the creation of the record. The record will be retained on PNC until that person is deemed to have attained 100 years of age. 46. Paragraph 4.32 of the ACPO Guidelines clarifies that chief officers are the “data controllers” (within the meaning of the Data Protection Act 1998 – see paragraphs 65-71 below) of all PNC records, including DNA and fingerprints associated with the entry, created by their forces and that they have the discretion in exceptional circumstances to authorise the deletion of any such data. Appendix 2 of the ACPO Guidelines outlines the procedure to be followed in deciding whether a particular case will be regarded as “exceptional” and states: “Exceptional cases by definition will be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond reasonable doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.” 47. According to the Government, from the date on which the caution was administered to the applicant until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police for police purposes only. 48. Part V of the Police Act 1997 (“the 1997 Act”) now sets out the legislative framework for the disclosure of criminal record information in Northern Ireland. The relevant provisions entered into force in Northern Ireland on 1 April 2008. 49. Section 113A deals with criminal record certificates (“CRCs”). Section 113A(3) defines a CRC as follows: “A criminal record certificate is a certificate which– (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or (b) states that there is no such matter.” ...” 50. Section 113A(6) defines “central records” as such records of convictions and cautions held for the use of police forces generally as may be prescribed. In Northern Ireland, the relevant records are prescribed in the Police Act 1997 (Criminal Record) (Disclosure) Regulations (Northern Ireland) 2008 as information in any form relating to: convictions held in the criminal history database of the Causeway System; and convictions and cautions on a names index held by the National Police Improvement Authority for the use of police forces generally. The term “relevant matter” is defined in section 113A(6) of the 1997 Act as including “spent” convictions and cautions (see paragraphs 61-64 below). Pursuant to section 65(9) of the Crime and Disorder Act 1998 , the reference to a “caution” in section 113A is to be construed as including warnings and reprimands. 51. The Secretary of State must issue a CRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question. Section 113A(6) defines “exempted question” as follows: in respect of a conviction, a question which the Secretary of State has by order excluded from the provisions on “spent” convictions under the 1974 Act or the 1978 Order; and in respect of a caution, a question which the Secretary of State has by order excluded from the provisions on “spent” cautions under the 1974 Act; as noted above there is no corresponding provision in Northern Ireland. In respect of Northern Ireland, the Secretary of State subsequently made an order excluding the provisions on “spent” convictions in relation to questions directed, inter alia, at assessing the suitability of persons to work with children and vulnerable adults. 52. Section 113B deals with enhanced criminal record certificates (“ECRCs”). As with a CRC, the Secretary of State must issue an ECRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a “prescribed purpose”. 53. The “prescribed purposes” are defined in the Police Act 1997 (Criminal Records) (Disclosure) Regulations (Northern Ireland) 2008 as amended and include the purposes of considering the applicant’s suitability to engage in any activity which is regulated activity relating to children or vulnerable adults, as defined in legislation. 54. Section 113B(3) provides: “An enhanced criminal record certificate is a certificate which– (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information.” 55. Section 113B(4) provides that before issuing an ECRC the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose” and ought to be included in the certificate. 56. Pursuant to section 113B(5), the Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose”, ought not to be included in the certificate in the interests of the prevention or detection of crime but can, without harming those interests, be disclosed to the registered person. 57. The Secretary of State must send to the registered person who countersigned the application a copy of the enhanced criminal record certificate, and any information provided in accordance with subsection (5). 58. The MOPI Guidance explains the circumstances in which police information will be disclosed: “6.3.1. ... The Police Act 1997 creates a statutory scheme for the disclosure of criminal records and police information on potential employees to prospective employers. The CRB is responsible for the scheme and for ensuring that employers have sufficient information to make a judgment on the suitability of a potential employee to work with children or vulnerable adults.” 59. The Guidance further refers to the possibility of sharing information under common law powers. In such cases, a policing purpose must be established and the decision to disclose data must strike a balance between the risk posed and the need for confidentiality of data under the Human Rights Act and the Data Protection Act. 60. As noted above, the ACPO Guidelines work on the basis of restricting access to police information rather than deleting data. Recordable offences are split into categories “A”, “B” and “C” depending on the seriousness of the offence, with category A being the most serious offences. These categories mirror Groups 1, 2 and 3 set out in the MOPI Guidance. The Guidelines set strict time periods after which relevant data will “step down” and only be open to inspection by the police. The aim is to ensure that following step down, other users of the PNC will be unaware of the existence of the relevant records, save in cases of requests for criminal record checks. For example, the ACPO Guidelines state, at paragraph 4.19, that: “4.19 In the case of an adult who is dealt with by way of a caution in respect of an offence listed in category ‘A’, the conviction history will ‘step down’ after a clear period of 10 years, and thereafter only be open to inspection by the police.” 61. Pursuant to legislation, those convicted of certain offences may become “rehabilitated” after a certain period of time has elapsed. The relevant legislation in England and Wales is the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The legislation which applies in Northern Ireland is the Rehabilitation of Offenders (Northern Ireland) Order 1978 (“the 1978 Order”). 62. Pursuant to the 1978 Order, any person who has been convicted of an offence capable of rehabilitation and has not committed any other offence during the rehabilitation period is to be treated as rehabilitated at the end of the rehabilitation period. 63. The effect of rehabilitation is that the person is treated for all purposes in law as a person who has not committed, or been charged with, prosecuted for or convicted of the offence in question, i.e. the conviction is considered “spent”. If asked about previous convictions, a person is to treat the question as not relating to spent convictions and may frame his answer accordingly; he is not to be liable or prejudiced for his failure to acknowledge or disclose a spent conviction. Spent convictions are not a proper ground for dismissing or excluding a person from employment. However, the Secretary of State is empowered to provide for exclusions, modifications or exemptions from the provisions on the effect of rehabilitation. 64. The 1978 Order makes no reference to cautions. However, the 1974 Act (which does not apply in Northern Ireland) contains a Schedule introduced in 2008 which provides protection for spent cautions. According to Schedule 2, a caution is to be considered a spent caution at the time that it is given. The effects of rehabilitation in respect of a caution are the same as those described above which apply to a conviction. As with convictions, the Secretary of State may, by order, provide for exclusions or exemptions. 65. The Data Protection Act (“the DPA 1998”) was adopted on 16 July 1998. The main provisions of the Act entered into force on 1 March 2000. 66. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. 67. Pursuant to section 1 of the DPA 1998, “personal data” includes data which relate to a living individual who can be identified from those data. Section 2 of the Act defines “sensitive personal data” as personal data consisting, inter alia, of information as to the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings. 68. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, including that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (paragraphs 5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing is necessary for the purposes of performing an obligation imposed by law on the data controller in connection with employment (paragraph 1), the processing is necessary for the purpose of, or in connection with, any legal proceedings or is otherwise necessary for the purposes of establishing, exercising or defending legal rights (paragraph 6), or is necessary for the administration of justice or for the exercise of any functions conferred on any person by or under an enactment (paragraph 7). Section 29 provides a qualified exemption from the first data protection principle in the case of personal data processed, inter alia, for the prevention or detection of crime. 69. The third principle provides that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 70. The fifth principle stipulates that personal data processed for any purpose shall not be kept for longer than is necessary for that purpose. 71. The Information Commissioner created pursuant to the Act has an independent duty to promote the following of good practice by data controllers and has power under section 40 of the Act to make orders (“enforcement notices”) in this respect. Section 47 of the Act makes it a criminal offence not to comply with an enforcement notice. Section 48 of the Act gives data controllers the right to appeal against an enforcement notice to the First Tier Tribunal, if an enforcement notice raises a point of law. Section 13 sets out a right to claim damages in the domestic courts in respect of contraventions of the Act. 72. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” 73. Section 4 of the Act provides: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...” 74. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that: “Subsection (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 in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” 75. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. 76. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful. 77. In R (X), the Court of Appeal considered the compatibility with Article 8 of the Convention of the disclosure of additional information under the predecessor of section 113B(4) of the 1997 Act in the context of an enhanced criminal records check. The appellant had applied for a job as a social worker and had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The chief constable, as he was required to do, issued an ECRC. It contained details of the allegations of indecent exposure under the heading “other relevant information”. 78. Lord Woolf CJ noted at the outset that while it was accepted by both parties that the information included in the ECRC might offend against Article 8 § 1, it was not suggested that the legislation itself contravened that Article. He explained: “20. ... No doubt this is because disclosure of the information contained in the certificate would be ‘in accordance with the law’ and ‘necessary in a democratic society’, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.” 79. On the question of the balance between competing interests, Lord Woolf CJ indicated (at paragraph 36) that: “Having regard to the language of section 115 [the predecessor of section 113B], the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.” 80. He continued (at paragraph 37): “This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.” 81. On the application of Article 8, assuming that it was engaged, he noted (at paragraph 41): “... [H]ow can the Chief Constable’s decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.” 82. The case of R (R) concerned the issue of a “reprimand or warning” to a young person for alleged offences of indecent assault. Unlike the issue of a caution, the issue of a reprimand or warning did not require the person’s consent. However, like a caution, the issue of a reprimand/warning required the individual to admit to the offence. The issue of the reprimand/warning in the case had given rise to an obligation that the young offender in question be subject to registration pursuant to the Sex Offenders Act 1977. The claimant alleged that the reprimand had violated Article 6 of the Convention because it had been issued without his consent and the consequences of its issue, including the need to register on the Sex Offender Register, had not been properly identified to him. 83. The House of Lords unanimously rejected the claim. Lord Bingham of Cornhill doubted whether Article 6 had been engaged at all, but even assuming that it was, he concluded that it had ceased to apply once the decision had been made not to prosecute the claimant. He noted that there was little case-law from this Court as to the meaning of “determination” of criminal charges and expressed the view that the determination of a criminal charge, to be properly so regarded, must expose the subject of the charge to the possibility of punishment, whether in the event punishment was imposed or not. He considered therefore that a process which could only culminate in measures of a preventative, curative, rehabilitative or welfare-promoting kind would not ordinarily involve the determination of a criminal charge. He accordingly concluded that neither the warning of the claimant nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, Lord Bingham noted, it was acknowledged by the police force that there had been no valid waiver by him of his fair trial right. 84. The claimant challenged the inclusion under section 113B(4) of the 1997 Act of other information provided by the chief constable on an ECRC regarding alleged offences of which he had been found not guilty. 85. The High Court upheld the challenge and quashed the decision on the basis that the decision-maker had not taken reasonable steps to ascertain whether the allegations that had been made had been true and why the claimant had been acquitted. On the facts of the case it was clear that the Magistrates’ Court had acquitted the claimant because it took the view that he was innocent in the full sense of the word. The High Court observed: “I stress, however, that this decision is very specific to the facts of this case. I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted. The circumstances surrounding the acquittal are all important. There will be instances where an alleged offender is acquitted but only because the Magistrates (or Jury) entertain a reasonable doubt about the alleged offender’s guilt. The tribunal of fact may harbour substantial doubts. In such circumstances, however, it might well be perfectly reasonable and rational for a Chief Constable to conclude that the alleged offender might have committed the alleged offence ...” 86. The Divisional Court considered a claim by an individual aggrieved by the disclosure in an ECRC of three allegations of sexual abuse of autistic persons in his care, where he had been interviewed by the police about one of the allegations but no charges were pursued. 87. The judge conducted a detailed analysis of the allegations and concluded: 58. It follows that in my judgment the decision to disclose the three allegations was lawful ... I recognise how painful such disclosure must be for the claimant, and how damaging its consequences may be. It seems to me, however, that all this follows inevitably from the terms of the legislation and is fully in line with the legislative policy as explained by Lord Woolf in R (X) v Chief Constable of the West Midlands Police. In relation to employment with children or vulnerable adults, it is information of which an employer should be aware. It is then for the employer to decide whether the employment of the person concerned involves an unacceptable risk. 59. I am troubled by the fact that the claimant’s new employer in this case apparently operated a blanket policy of insisting on a ‘clean’ certificate, so that the disclosure of the three allegations led inevitably to the claimant’s dismissal on the transfer of his employment to that employer on a reorganisation at work. The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a ‘clean’ certificate leaves no room for taking into account what the employee may have to say. That is a matter of particular concern if it leads to the dismissal of an existing employee or of someone whose employment is transferred to the employer on a reorganisation. On the basis of the limited material available to the court, I confess to some surprise that the claimant was advised in this case that he had no reasonable prospect of success in a claim for unfair dismissal resulting from the application of such a policy ...” 88. The question for examination by the Court of Appeal in its judgment handed down on 19 October 2009 was whether certain principles of the Data Protection Act 1998, namely principle 1 (personal data shall be processed fairly and lawfully), principle 3 (personal data shall be adequate relevant and not excessive) and principle 5 (personal data shall not be kept for longer than necessary), required the police to delete certain old convictions from the PNC. Lord Justice Waller noted at the outset: “1. ... The complaint in each case follows the disclosure of the convictions pursuant to a request by the ... CRB ... or, in one case, a request by one of the individuals herself, and it is important to emphasise at the outset that the complaint about retention flows in reality not from the retention itself but from the fact that, if retained, disclosure may follow. In respect of each of those convictions the Information Tribunal (the IT) has upheld the view of the Information Commissioner (the IC) that they should be deleted. However the ramifications are far wider than these five cases since, if these convictions must be deleted and if the police are to treat people consistently, the application of any viable system of weeding would probably lead to the deletion of around a million convictions.” 89. He clarified the effect of the “stepping down” policy on disclosure in the context of criminal records checks, noting: “3. ... [I]t seems that both the Police and the IT understood that the result of stepping down would be that in certain circumstances the CRB would not have access to ‘stepped down’ convictions when preparing ‘standard disclosure certificates’ (as opposed to ‘enhanced disclosure certificates’) under Part V of the Police Act 1997. It is now accepted that that is not accurate. Under Part V of the 1997 Act ‘stepped down’ convictions are required to be revealed even on ‘standard disclosure certificates’, and thus although ‘stepping down’ prevents disclosure in many circumstances to persons other than the police, it does not prevent disclosure by the police in many others including the circumstances under which disclosure was made of four of the convictions the subject of this appeal.” 90. Waller LJ noted that PNC information was used for employment vetting. He observed that CRCs and ECRCs would contain details of spent convictions which, he indicated, provided an important protection to employers. He noted: “... Some emphasis is placed by [counsel for the intervenor] that no statutory obligation is placed on the police to retain data under the Police Act 1997, but on any view Part V of the Act seems to recognise that the data will be there to be provided.” 91. Taking as an example the case of one of the individuals concerned, Waller LJ considered the purposes for which the data had been recorded: “35. ... [I]t seems to me to be clear that one of the purposes for which the police retained the data on the PNC was to be able to supply accurate records of convictions to the CPS, the courts and indeed the CRB. ‘Rendering assistance to the public in accordance with force policies’ clearly covers the roles the police seek to perform in those areas and if there was any doubt about it the recipients include ‘Employers’ ‘the courts’ and ‘law enforcement agencies’.” 92. He continued: “36. If one then poses the question whether the Data being retained is excessive or being retained for longer than necessary for the above purposes there is, it seems to me, only one answer, since for all the above a complete record of convictions spent and otherwise is required. That seems to me to be a complete answer to the appeal ...” 93. Even if a narrower approach to police purposes were adopted, Waller LJ considered that the retention of the data was lawful under the DPA 1998. He noted: “43. ... If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter ... It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.” 94. He continued: “44. I emphasise the word ‘retention’ because if there is any basis for complaint by the data subjects in this case, it seems to me to relate to the fact that in certain circumstances this information will be disclosed, but that is because Parliament has made exceptions to the Rehabilitation of Offenders Act. What is more, the circumstances in which there will be disclosure are circumstances in which the Data Subject would be bound to give the correct answer if he or she were asked. It is not as it seems to me the purpose of the 1998 [Data Protection] Act to overrule the will of Parliament by a side wind.” 95. As to the complaint of one of the individuals concerned, S.P., that she had been assured in 2001 that the reprimand she had received aged thirteen would be removed from her record when she was eighteen if she did not get into anymore trouble and that the retention of the reprimand on the PNC after her eighteenth birthday was therefore unfair under the first data protection principle, Waller LJ, with whom Lord Justice Hughes agreed, held: “48. ... It seems to me that if it is fair to retain convictions under the new policy it does not become unfair to do so simply because the data subject was told of what the policy then was when being convicted or reprimanded. Furthermore, the deletion of this reprimand leading (as it would have to) to deletion of many others would be likely to prejudice the prevention and detection of crime and the apprehension or prosecution of offenders. The court and the CPS need the full information, never mind the fact the police are of the view that for their operational purposes they need the same.” 96. Finally, on the argument raised by the individuals that retention of the data violated Article 8 of the Convention, Waller LJ indicated that he was not persuaded that Article 8 § 1 was engaged at all in relation to the retention of the record of a conviction. He was of the view that disclosure might be another matter, but reiterated that the appeal before him was not about disclosure. Even if his conclusion were wrong, he considered that the processing was in accordance with the law and necessary in a democratic society. 97. On the Article 8 question, Lord Justice Carnwath noted as follows: “78. ... [W]ith regard to the Human Rights Convention, it is significant that the [Data Protection] Directive is itself specifically linked to the need to respect ‘fundamental rights and freedoms, notably the right to privacy...’, and that it refers in that respect to the European Convention on Human Rights (Preamble (2), (10)). This suggests that the maintenance of such a complete register of convictions, as implicitly endorsed by Article 8(5) of the Directive, should not normally raise any separate issues under the Convention.” 98. He referred to “considerable doubt” as to whether recording the mere fact of a conviction could ever engage Article 8 in any case, distinguishing S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR, on the basis that it concerned the data of unconvicted persons and was, in his view, accordingly no authority for the proposition that a record of the mere fact of a conviction engaged Article 8. 99. As regards the specific facts of S.P.’s case, given the assurance that she had received from the police that the reprimand would be removed when she reached the age of 18 and the manner in which the police had sought to justify their subsequent decision not to do so, Carnwath LJ considered that the decision of the first-instance tribunal that the retention of the data was unfair and in breach of the first data protection principle could not be faulted in law. 100. Permission to appeal was refused by the Supreme Court on 24 February 2010. 101. In its judgment in R (L), handed down on 29 October 2009, ten days after the Court of Appeal’s ruling in Chief Constable of Humberside, the Supreme Court considered the Court of Appeal’s ruling in R (X) (see paragraphs 77-81 above) in the context of a case concerning disclosure of police information under the predecessor of section 113B(4) in the context of an ECRC. The appellant had secured a job as a playground assistant and the school required an ECRC to which the appellant consented. The ECRC disclosed that the appellant had been suspected of child neglect and non-cooperation with social services. The appellant had not been charged with, or convicted of, any offence, nor had she received a caution. Her employment was subsequently terminated and she brought judicial review proceedings, arguing that the disclosure of the information had violated her rights under Article 8. At issue was whether the requirement in the 1997 Act that chief officers provide information which “might be relevant” and “ought to be disclosed” when an ECRC was requested, was proportionate. 102. As to whether Article 8 was engaged by the mere retention of data, after reviewing the case-law of this Court, Lord Hope indicated (at paragraph 27): “This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute ... It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant’s ECRC was of that kind.” 103. He therefore considered that decisions taken by chief constables in the context of ECRCs were likely to fall within the scope of Article 8 in every case as the information in question was stored in files held by the police. He noted that the approach taken by the police to questions of disclosure at the time was modelled on Lord Woolf CJ’s ruling in R (X) (see paragraphs 77-81 above). 104. Lord Hope indicated that the approach to disclosure under the applicable legislation involved a two-part test. In the first instance, the chief constable was required to consider whether the information might be relevant. Having concluded in the affirmative, he then had to turn his mind to the question whether the information ought to be included in the certificate. This required consideration of whether there was likely to be an interference with the individual’s private life and, if so, whether the interference could be justified. This raised the question whether the Court of Appeal in R (X) had struck the balance between the competing interests in the right place. 105. Turning to examine the approach of the Court of Appeal in that case, Lord Hope first endorsed the views expressed there as to the compatibility of the legislation itself with Article 8 (see paragraph 77 above). He noted that, as in that case, the appellant in the present case did not argue that the legislation itself contravened Article 8 and accepted that it could be interpreted and applied in a manner that was proportionate. Lord Hope continued: “42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place ... [T]he use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) [now section 113B(4) – see paragraphs 55 above] information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ...” 106. He noted in this regard that it was no answer to these concerns that the ECRC was issued on the application of the persons concerned. While he accepted that they could choose not to apply for a position of the kind that required a certificate, he considered that they had, in reality, no free choice in the matter if an employer in their chosen profession insisted, as he was entitled to, on an ECRC. He observed: “43. ... The answer to the question whether there was any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.” 107. Lord Hope considered that the effect of the approach taken to the issue in R (X) had been to tilt the balance against the applicant too far. The correct approach, he explained, was that neither consideration had precedence over the other. He proposed that the relevant guidance to officers making a decision on disclosure under the provisions should be amended: “45. ...so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption was for disclosure unless there was a good reason for not doing so.” 108. Lord Neuberger, who indicated that his judgment largely echoed that of Lord Hope, was also firmly of the view that Article 8 was engaged in the case, noting: “68. ...An enhanced criminal record certificate ... which contains particulars of any convictions (potentially including spent convictions) or cautions ..., or any other information ‘which might be relevant’ and which ‘ought to be included in the certificate’ ...will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those ‘regularly caring for, training, supervising or being in sole charge of’ children), an adverse ECRC ... will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields ...” 109. He further observed: “69. ... Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant ...” 110. Lord Neuberger also rejected the argument that Article 8 was not engaged because under the relevant legislation the claimant herself had requested the ECRC, noting: “73. ... Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person’s Convention right, it cannot avoid the engagement of the right by including in the fetter’s procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by-pass Convention rights.” 111. He considered the aim of Part V of the 1997 Act, namely to protect vulnerable people, to be unexceptionable and explained how this was achieved by the requirement that relevant information available to the police about an applicant for a post involving responsibility for such vulnerable people be provided to the prospective employer. He continued: “75. ... It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC ... will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section ...” 112. Turning to consider whether there was an infringement of Article 8 in the case, Lord Neuberger was prepared to proceed on the basis that there was “nothing objectionable” in the requirement that an ECRC had to contain details of convictions and cautions, even though, he noted, it might on occasions be “rather harsh” on the person concerned. However, like Lord Hope, he was of the view that where other information provided by the chief constable was concerned, the decision on whether to include it in an ECRC had to incorporate a proportionality assessment and it might well be necessary to seek the prior views of the person concerned. 113. Lords Saville and Brown agreed with Lord Hope and, in the case of Lord Brown, Lord Neuberger. 114. Lord Scott, in the minority, considered (at paragraph 57) that if the compilation and retention of the information was unexceptionable, and the information was relevant to the appellant’s suitability for the employment sought, then it was difficult to see on what basis her attack on the inclusion of the information in the ECRC could succeed. He continued: “58. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7).” 115. Lord Scott accordingly endorsed the approach taken in R (X). 116. Following R (L), the High Court quashed a decision by the chief constable to disclose details of a sexual allegation made against the claimant in an ECRC on grounds of procedural impropriety, because the claimant’s views had not been sought and because the decision to disclose was disproportionate to the level of risk disclosed. The court granted an injunction to prevent future disclosure. 117. On appeal, the Court of Appeal upheld the decision to quash the disclosure on grounds of procedural impropriety but, emphasising that the primary decision-maker was the chief constable who would take a fresh decision on the basis of the material now before him, allowed the appeal against the injunction. 118. In R (F and another) v Secretary of State for the Home Department, the respondents were convicted sex offenders subject to notification requirements under section 82 of the Sexual Offences Act 2003 (SOA 2003), whereby all those sentenced to 30 months’ imprisonment or more for a sexual offence are registered on the sex offenders register and subject to a lifelong duty to notify police of their living and travelling arrangements, with no right for review. The question in the appeal was whether the absence of any right to review rendered the notification requirements disproportionate to the legitimate aims they sought to pursue and thus incompatible with Article 8 of the Convention. Lord Phillips noted: “41. The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with offenders’ article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The issue is whether the notification requirements, as embodied in the 2003 Act, and without any right to a review, are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The respondents’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.” 119. He found that the notification requirements were capable of causing significant interference with Article 8 rights. However, he continued (at paragraph 51): “... This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.” 120. He concluded: “56. No evidence has been placed before this court or the courts below that demonstrates that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can. 57. ... I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable. 58. For these reasons I have concluded that ... the notification requirements constitute a disproportionate interference with article 8 rights because they make no provision for individual review of the requirements.” 121. The Supreme Court issued a declaration that section 82 of the SOA 2003 was incompatible with the Convention. 122. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides: “Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; ... e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” 123. Article 6 deals with “special categories of data” and stipulates that personal data relating to criminal convictions may not be processed automatically unless domestic law provides appropriate safeguards. 124. Pursuant to Article 9, derogations are permitted where they are necessary in a democratic society in the interests of, inter alia, public safety, the suppression of criminal offences or protecting the rights and freedoms of others. 125. The Committee of Ministers adopted Recommendation No. R (87) 15 regulating the use of personal data in the police sector on 17 September 1987, in the context of a sectoral approach to data protection intended to adapt the principles of the Data Protection Convention to the specific requirements of particular sectors. An Explanatory Memorandum (“EM”) sets out the background to the Recommendation’s adoption, and notes at paragraph 4: “Given the increased activities of police forces in the lives of individuals necessitated by new threats to society posed by terrorism, drug delinquency, etc as well as a general increase in criminality, it was felt even more necessary to establish clear guidelines for the police sector which indicate the necessary balance needed in our societies between the rights of the individual and legitimate police activities when the latter have recourse to data-processing techniques.” 126. It further observes that concerns which prompted the elaboration of the Data Protection Convention in regard to the increasing recourse to automation in all sectors are most acutely felt in the police sector, for it is in this domain that the consequences of a violation of the basic principles laid down in the Convention could weigh most heavily on the individual. 127. As regards the derogations permitted under Article 9 of the Data Protection Convention, the EM reiterates that they are only permitted if provided for by law and necessary in a democratic society in the interests of, inter alia, the “suppression of criminal offences”. It continues: “20 ... Bearing in mind that the European Court of Human Rights in its judgment in the Malone Case laid down a number of strict criteria (precision, certainty, foreseeability, etc), it is thought that the principles contained in this non-binding legal instrument can provide helpful guidance to the legislator as to the interpretation of the derogation in Article 9, paragraph 2, of the Data Protection Convention when regulating the collection, use, etc of personal data in the police sector. This point should be borne in mind, for example, in the context of paragraph 2.1.” 128. Principle 1.1 of the Recommendation provides: “Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation.” 129. The EM emphasises the importance of such supervisory authority enjoying genuine independence from police control. 130. Principle 2 concerns collection of data and includes the following: “2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.” 131. The EM explains that Principle 2.1 excludes an “open-ended, indiscriminate” collection of data by the police and expresses a “qualitative and quantitative” approach to Article 5(c) of the Data Protection Convention. The Principle attempts to fix the boundaries to the exception in Article 9 of the Data Protection Convention by limiting the collection of personal data to such as are necessary for the prevention of a real danger or the suppression of a specific criminal offence, unless domestic law clearly authorises wider police powers to gather information. 132. Storage of data is addressed in Principle 3. Principle 3.1 provides that as far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. The EM explains: “49. Personal data when collected will subsequently be the subject of a decision concerning their storage in police files. Principle 3.1 addresses the requirements of accuracy and storage limitation. The data stored should be accurate and limited to such data as are necessary to enable the police to perform its lawful tasks ... 50. This principle is important given the fact that the commitment of personal data to a police file may lead to a permanent record and indiscriminate storage of data may prejudice the rights and freedoms of the individual. It is also in the interests of the police that it has only accurate and reliable data at its disposal.” 133. Principle 5 deals with communication of data. Principle 5.1 permits communication of data between police bodies, to be used for police purposes, if there exists a legitimate interest for such communication within the framework of the legal powers of these bodies. In respect of communication to other public bodies, Principle 5.2 stipulates: “5.2.i. Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this. 5.2.ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 134. As to the possibility of communicating indispensable data to public bodies under Principle 5.2.i.b, the EM explains that it is recognised that certain public bodies engage in activities which are similar in some ways to police activities and that information held by the police may be of value to those activities. Regarding the possibility of communicating data to prevent a serious and imminent danger, the EM recalls that this will only “exceptionally” allow communication and that the danger must be both serious and imminent, given that Principle 5.2.ii is only concerned with exceptional cases justifying communication. 135. As regards communication to private parties, Principle 5.3 provides: “5.3.ii. The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority. 5.3.ii. Communication to private parties is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 136. The EM acknowledges that it may occasionally be necessary for the police to communicate data to private bodies, although not on the same scale as envisaged in the case of mutual assistance between the police and other public bodies. It continues: “Once again, Principle 5.3 treats these as exceptional cases, requiring a clear legal obligation or authorisation (for example the consent of a magistrate), or the consent of the supervisory authority. In the absence of these factors, Principle 5.3 repeats the same conditions set out in Principle 5.2.ii.” 137. Concerning Principle 5 generally, the EM notes: “Outside the framework of communication within the police sector, the conditions governing transfer are stricter, given the fact that the communication may be for non-police purposes stricto sensu. The exceptional nature of the circumstances allowing communication set out in Principles 5.2 and 5.3 is stressed. It will be noted that circumstances a and b in both Principles 5.2.ii and 5.3.ii are specifically referred to as ‘exceptional’.” 138. Principle 7 deals with length of storage and updating of data. Pursuant to Principle 7.1 measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. It further provides: “... For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.” 139. The EM explains that it is essential that periodic reviews of police files are undertaken to ensure that they are purged of superfluous or inaccurate data and kept up to date. It notes that Principle 7.1 lists certain considerations which should be borne in mind when determining whether or not data continue to be necessary for the prevention and suppression of crime or for the maintenance of public order. 140. Principle 7.2 provides: “Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.” 141. The EM notes that domestic law may authorise the means for laying down such rules or that, alternatively, rules could be formulated by the supervisory authority itself in consultation with police bodies. It explains that where the police themselves elaborate rules, the supervisory authority should be consulted as to their content and application. 142. Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21 June 1984) notes in its preamble that any use of criminal record data outside the criminal trial context may jeopardise the convicted person’s chances of social reintegration and should therefore be restricted “to the utmost”. It invited member States to review their legislation with a view to introducing a number of measures where necessary, including provisions limiting the communication of criminal record information and provisions on rehabilitation of offenders, which would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law. 143. The TFEU sets out in Article 16 the right to the protection of personal data concerning them. It requires the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law; and the rules relating to the free movement of such data. 144. The EU Charter of Fundamental Rights includes the right to protection of personal data. Article 8 of the Charter reads: “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.” 145. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Data Protection Directive”) provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows Member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13). 146. Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (“the Data Protection Framework Decision”) was adopted on 27 November 2008. Its purpose is to ensure a high level of protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data in the framework of cross-border police and judicial cooperation in criminal matters while guaranteeing a high level of public safety. 147. Article 3 of the Data Protection Framework Decision provides that personal data may be collected by the competent authorities only for specified, explicit and legitimate purposes and may be processed only for the same purpose for which data were collected. Processing of the data must be lawful and adequate, relevant and not excessive in relation to the purposes for which they are collected. Article 5 provides that appropriate time-limits must be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures must be in place to ensure that these time-limits are observed. 148. In January 2012 the European Commission published proposals, based inter alia on Article 16 TFEU, for the comprehensive reform of the EU’s data protection framework. The proposals are currently under negotiation. | 1 |
train | 001-76179 | ENG | MLT | CHAMBER | 2,006 | CASE OF ZARB v. MALTA | 3 | Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1971 and is currently detained at Corradino prison (Malta). 5. On 5 April 1991 the applicant, accused together with other persons of various counts of aggravated theft (including theft in various factories and car theft), was arraigned before the Court of Magistrates sitting as a Court of Criminal Inquiry. 6. The prosecution concluded the case on the merits on 12 October 1993. It produced further evidence on charges of recidivism on 14 January 1994. 7. The legal qualification of the charges was presented on 14 April 1994, on which date the Court of Magistrates started to hear the evidence for the defence. 8. In a judgment of 15 February 1995, the Court of Magistrates acquitted the applicant of two of the charges, namely receiving stolen goods and theft of a car. It found the applicant guilty of the remaining six charges of theft and sentenced him to four years’ imprisonment. 9. The applicant appealed against his conviction and sentence. Four of his co-accused appealed, challenging exclusively the reasonableness of their sentence. 10. The defendants introduced a number of requests for release on bail, for the examination of new witnesses and for leave to present further submissions. This led to the adjournment of the case on several occasions, in particular on 29 February 1996 and on 13 March 1997, dates scheduled for the delivery of the judgment. The examination of the case was suspended from 14 January until 8 October 1999 because the presiding judge was ill. 11. The delivery of the judgment was scheduled first for 9 January, then for 30 October 2001; however, the proceedings were adjourned as some of the accused wished to present further submissions and because the presiding judge had been assigned to a foreign tribunal. By an order of 3 October 2002 the Court of Criminal Appeal adjourned the proceedings sine die awaiting the outcome of the constitutional claim which the applicant had introduced in the meantime (see infra, under B. “The applicant’s constitutional claim”). 12. The proceedings were resumed after the determination of the applicant’s constitutional claim, and on 15 January 2004 the Court of Appeal gave its final judgment. It reaffirmed that its role was not to interfere with the first court’s appreciation of the evidence, as long as it was satisfied that the conclusions reached by the Court of Magistrates were lawful and reasonable. In the light of the material before it and having regard to the fact that the applicant had admitted his guilt, the Court of Criminal Appeal confirmed the first-instance judgment. 13. In the meantime, on 5 April 2002 the applicant had filed a constitutional claim with the Civil Court (First Hall). Invoking Article 6 of the Convention and Article 39 of the Constitution of Malta, he complained about the length of the criminal proceedings and alleged that his trial had not been fair. 14. In a judgment of 15 May 2003, the Civil Court dismissed the applicant’s claim. 15. The Civil Court observed that no delay could be imputed to the prosecution or to the trial court. The case was a rather complex one, as it involved many counts and a number of accused persons. Moreover, the Court of Magistrates had to hear several witnesses and to obtain many documents. Notwithstanding this, most of the requests for bail were decided on 17 April 1991, which was only twelve days after the date of the arraignment. Some of the accused failed to appear at several hearings, thus obliging the trial court to adjourn the proceedings. There were also difficulties in controlling the various accused, as their behaviour during the hearings had obstructed the normal course of justice. As some of them did not respect the bail conditions, the police had to take action for the revocation of bail and the Court of Magistrates had to decide on this issue. Some witnesses were untraceable and others, albeit properly summoned, did not attend the sittings. There had been no excessive delay in the inquiries and it had to be taken into account that it was necessary to exhibit the record of the inquiry for every single charge. The prosecution had concluded the case within a reasonable time and the proceedings before the Court of Magistrates were conducted without any unnecessary delay. 16. As to the proceedings before the Court of Criminal Appeal, they were prolonged because of the great number of claims presented by the defence and the need to obtain several reports from prison officials and/or psychiatric experts on the behaviour of the defendants, with a view to considering the progress they had made while in prison. Apart from the period between 14 January and 8 October 1999, the case was never left dormant. 17. Therefore, notwithstanding the fact that the case had been pending for about eleven years, there had been no substantial delay. It was true that most of the delay had been caused by the requests of other accused and not of the applicant himself. However, the Court of Criminal Appeal considered that, the crimes being connected, it would not have been consonant with the proper administration of justice to separate the defendants’ respective situations. 18. On 27 May 2003 the applicant appealed against the Civil Court’s judgment to the Constitutional Court. 19. In a judgment of 31 October 2003, the latter quashed the impugned judgment in so far as it concerned the applicant’s complaint relating to the length of the criminal proceedings and declared that there had been a breach of the “reasonable time” principle. It also ordered the Attorney General to pay the applicant 100 Maltese liras (Lm – approximately 240 Euros) as just satisfaction. It held that each party had to bear its own costs. The Constitutional Court confirmed the Civil Court’s judgment for the remainder. 20. The Constitutional Court considered that there had been some delay at the appeal stage. The case was not particularly complex as the appeals concerned almost exclusively the measure of the penalty. Notwithstanding this, the case remained undecided for almost six years and six months and in November 2001 it was eventually referred to a new presiding magistrate. Even if it was true that the defendants presented a number of claims which had the effect of slowing down the proceedings, the Court of Criminal Appeal had the duty to ensure that the duration of the trial was not excessive. As most of these claims had been introduced by the other defendants, and not by the applicant himself, there had been a violation of the “reasonable time” principle in respect of the latter. | 1 |
train | 001-85300 | ENG | POL | CHAMBER | 2,008 | CASE OF WROBLEWSKI v. POLAND | 4 | No violation of Article 5 - Right to liberty and security | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 5. The applicant was born in 1976 and lives in Toruń. As it appears from the documents submitted, he is currently detained in the Toruń Remand Centre. 6. On 29 August 2002 the applicant was detained and subsequently remanded in custody by the Chełmno District Court on charges of rape and murder by a detention order of 31 August 2002. The latter was upheld on 18 September 2002 by the Toruń Regional Court. 7. On several occasions, namely 25 November 2002, 25 February, 28 May, 29 September 2003 and 21 January 2004 the applicant’s pre-trial detention was prolonged. The Toruń Regional Court relied in its decisions on the reasonable suspicion that the applicant had committed the offences and on the severity of the likely sentence. According to its reasoning, the applicant’s detention was the only measure which could secure the proper conduct of the proceedings in view of the extensive body of evidence which was to be considered in the case. The court stressed that the evidence already collected in the case, including mechanoscopic and olfactory expert opinions, comparative hair analysis, testimonies of witnesses and an experimental reconstruction of the crime scene indicated a high probability that the applicant had committed the crimes. Moreover, a psychiatrist’s examination and the observation of the applicant in a mental institution had been ordered by the court, as well as a genetic and chemical comparative analysis of available evidence. The court further added that the applicant had a previous criminal record. 8. The applicant submitted that his appeals against some of the above decisions were dismissed by the Gdańsk Court of Appeal on 18 December 2002, 18 March, 11 June 2003 and 25 February 2004. 9. On 19 May 2003 the Chełmno District Prosecutor lodged a bill of indictment against the applicant with the Toruń Regional Court. The prosecutor requested to have 14 experts and 56 witnesses summoned to testify. 10. On 10 July 2003 the first hearing in the applicant’s case was scheduled for 20 August 2003; however the start of the trial had to be postponed, since the applicant’s counsel had asked the court to relieve him of his duties. The newly ex officio appointed lawyer informed the court that he was not able to fulfil his duties, as he had earlier been appointed as counsel of the auxiliary prosecutors – the victim’s parents. The Toruń Regional Bar immediately appointed another lawyer at the request of the court. 11. On 1 August 2003 the applicant’s counsel requested that the composition of the court to hear the applicant’s case be decided by the drawing of lots. 12. On 28 November 2003 the court scheduled the first hearings for 22 and 23 December 2003. On 3 December 2003 a supplementary drawing of lots was necessary as one of the lay judges could not take part in the proceedings. 13. The first hearings before the Toruń Regional Court were held on 22 and 23 December 2003. 14. Between 3 March and 24 May 2004 the Toruń Regional Court held 14 hearings. On 24 May 2004 the applicant requested the withdrawal of the presiding judge. His motion was dismissed by the Toruń Regional Court on the same day. 15. Between 21 September and 23 November 2004 the Toruń Regional Court held 7 hearings. On 25 November 2004 the applicant’s detention on remand was extended until 28 February 2005. 16. Between 10 January and 20 June 2005 the Toruń Regional Court held 10 hearings. 17. On 23 June 2005 the Toruń Regional Court found the applicant guilty as charged and sentenced him to 25 years’ imprisonment. The judgment ran to 167 pages. 18. The applicant, the prosecutor, as well as the auxiliary prosecutors, appealed. 19. On 30 May 2006 the Gdańsk Court of Appeal quashed the judgment and remitted the case for re-examination to the Toruń Regional Court. The proceedings are still pending. The applicant is still in detention in respect of the charges against him. 20. On 16 May 2002 the applicant was sentenced to 4 years and 6 months’ imprisonment for double rape. 21. On 5 February 2003 the Regional Court upheld the first–instance judgment. 22. As it transpires from the Government’s submissions, which were not contested by the applicant, he was serving the sentence imposed between 10 June 2003 and 9 February 2004, as well as between 29 February 2004 and 9 September 2007. 23. As it further transpires from the Government’s submissions, which were not contested either by the applicant, between 9 and 29 February 2004 he was serving a term of imprisonment imposed on 17 May 1996 by the Nowe Miasto Lubawskie District Court in another set of criminal proceedings. 24. Moreover, during the period between 21 May 2003 and 10 June 2003 the applicant was serving a term of imprisonment imposed by the Grudziądz District Court on 11 April 2001 for drunk driving. 25. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are described in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. | 0 |
train | 001-90627 | ENG | HRV | CHAMBER | 2,009 | CASE OF COSIC v. CROATIA | 2 | Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1943 and lives in Požega. 5. The applicant has served as a teacher in various elementary schools in Croatia. In 1966 she began her service in an elementary school in Čaglin. In 1970 she gave birth to a son who remained living with her until 2004. As a single mother she was granted a specially protected tenancy (stanarsko pravo) of a flat in Čaglin. In 1984 the applicant was transferred to an elementary school in Požega, a town in the same region. The school provided her with a flat, which it had temporarily leased from its then owner, the Yugoslav People’s Army (YPA). 6. The lease expired in 1990. In 1991 the State took over all property of the YPA, thereby becoming the owner of the flat. The school then asked on several occasions for the lease to be extended but these requests were ignored by the competent authorities. However, since no request for her eviction was made and no other flat was provided for her by her employer, the applicant remained living in the flat and continued paying a monthly rent to the State. 7. On 7 January 1999 the State brought a civil action against the school and the applicant in the Požega Municipal Court (Općinski sud u Požegi), seeking the applicant’s eviction. The State argued that since the applicant’s lease had expired she had no further legal entitlement to occupy the flat. 8. On 30 October 2002 the court granted the State’s claim and ordered the applicant to vacate the flat within fifteen days even though, as it noted, the applicant had no other place to stay. The court did so because it was satisfied that the State owned the flat and the applicant had no legal entitlement to occupy it. The judgment concluded as follows: “The evidence presented in the proceedings lead this court to finding the plaintiff’s claim to be well-founded. The Government’s Decree of 2 October 1991 resulted in all possessions of the former YPA [Yugoslav Peoples Army] coming into the ownership of the Republic of Croatia ... Before the above Decree had been enacted, a contract in relation to the lease of the flat in question was concluded ... between the YPA ... and the school ... The contract was concluded to last for a limited period of time - until 31 December 1990 when the school was obliged to return the flat ... The contract was concluded pursuant to section 36 of the then valid Act on Financing of the YPA ... That Act allowed the YPA to lease its property ... On the basis of the contract [between the YPA and the school], the school ... entered into further contracts with the second respondent Katarina Ćosić allowing her to temporarily occupy the flat and obliging her to pay rent as well as all other expenses connected with the use of the flat, while maintaining the second respondent’s obligation to return the flat to the YPA after the expiry of the contract. Neither the [initial] contract nor the additional contracts between the school and the second respondent are a basis for acquiring a specially protected tenancy of the flat in question. ... Thus, irrespective of the time [the second respondent] has occupied the flat and irrespective of the fact that the respondents continued to be in possession of the flat even after all contracts [concerning the flat] had expired, there is no legal basis for the second respondent to have acquired any rights on the flat in question ... Although this court is aware of the respondent’s unenviable position, it has to adopt its decisions exclusively on the basis of the laws and therefore, relying on the facts of the case, it has decided as in the operative part of this judgment.” 9. The first-instance judgment was upheld by the Požega County Court (Županijski sud u Požegi) on 13 March 2000 and by the Constitutional Court (Ustavni sud Republike Hrvatske) on 9 February 2006. Both these courts endorsed the reasoning of the first-instance court that the applicant had no legal entitlement to occupy the flat. 10. Section 161, paragraph 1 of the Act on Ownership and other Rights in Rem (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows: “The owner has the right to seek repossession of his or her property from the person in whose possession it is.” | 1 |
train | 001-57609 | ENG | CHE | CHAMBER | 1,983 | CASE OF ZIMMERMANN AND STEINER v. SWITZERLAND | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 6. Mr. Werner Zimmermann and Mr. Johann Steiner were born in 1937 and 1904 respectively. Mr. Zimmermann is a fitter and resides at Uster (Zürich); Mr. Steiner is retired and resides at Bargen (Berne). Until 30 September 1976, each of the applicants was the tenant of a flat, Mr. Zimmermann in Kloten and Mr. Steiner in Rümlang; these localities are close to Zürich-Kloten airport, which is in the territory of, and operated by, the Canton of Zürich. 7. In 1974, the applicants sought compensation from the Canton of Zürich for the damage caused by the noise and air pollution resulting from the operation of the airport; Mr. Zimmermann claimed a lump sum of 28,242 SF and Mr. Steiner a lump sum of 54,199 SF. Having been unable to arrive at a settlement with them, the Canton applied on 17 June 1974 for assessment proceedings to be opened under section 57 of the Federal Expropriation Act of 20 June 1930. The case was referred to the Federal Assessment Commission having jurisdiction in the matter, namely the Commission for the Tenth District; on this occasion it was presided over by a judge of the St. Gallen Higher Court and also comprised an architect, an engineer and the registrar of that court (sections 59 et seq. of the above-mentioned Act, Order of 24 April 1972 on the Federal Assessment Commissions and Order of 17 May 1972 on the Federal Assessment Districts). 8. The Assessment Commission rejected the applicants’ claims by a decision of 6 October 1976, which was served on them on 7 March 1977. It recognised that under Swiss case-law and legal theory tenants could in principle rely on the law of nuisance (voisinage) set out in the Civil Code (Articles 679 and 684); however, it considered that the applicants were alleging non-pecuniary damage and not damage to property, whereas only the latter fell to be taken into account under the Federal Expropriation Act. 9. On 18 April 1977, Mr. Zimmermann and Mr. Steiner lodged with the Federal Court an administrative-law appeal against the Federal Assessment Commission’s decision (section 77 § 1 of the Federal Expropriation Act). The Federal Court sought the views of the Assessment Commission on 27 April. The latter filed its observations on 18 May 1977 and the administrative authorities of the Canton of Zürich filed theirs on 24 May 1977. This concluded the pleadings (procédure contradictoire). 10. The applicants’ lawyer wrote to the Federal Court on 8 September 1978 to enquire about the state of the proceedings. It replied, on 21 September, that it had not yet been able to deal with the case because of its excessive workload, but hoped to be able to give a decision during the coming months. The Federal Court enclosed with its letter a copy of the observations filed by the Canton of Zürich. The applicants reverted to the matter on 15 March 1979. In a letter of 23 March, the judge acting as rapporteur of the First Public-Law Chamber of the Federal Court informed them that, save for unforeseen circumstances, a decision would be given before the court vacation. On 29 June 1980, the applicants’ lawyer again asked the Federal Court for information about the state of the proceedings. On 11 July, the judge acting as rapporteur, whilst expressing his regrets about the delay in examining the case, replied that judgment would be delivered after the court vacation. 11. The First Public-Law Chamber of the Federal Court dismissed the appeal on 15 October 1980. Its judgment, which was fifteen pages in length, began by analysing the situation of residential and agricultural tenants in the event of expropriation. It went on to observe that when - in 1967 and 1958 respectively - the applicants signed their leases, which were renewable every three months, they were aware of the nuisance to which they would be subjected; they had not established that it had grown noticeably worse in the meantime (section 41 of the Expropriation Act). 12. According to the statistics supplied by the Government, from 1969 to 1979 the total number of appeals rose from 1,629 to 3,037, that is an increase of 86%. The rate of growth was 107% for public-law appeals (1,336 against 634) and as much as 318% for administrative-law appeals (590 against 141). As early as 1970, the Federal Assembly decided to increase the number of members of the Federal Court from 26 to 28 and the number of substitute judges from 12 to 15; thereafter the Public-Law and Administrative-Law Chamber had 11 members instead of 9. In its report for 1971, published on 1 February 1972, the Federal Court drew attention to a build-up in the volume of litigation; it stated that "despite the increase, in 1970, in the number of judges", it would "already have to consider at an early date the measures to be taken to deal with the growth in the quantity of cases". In November 1973, the Federal Court submitted to the Federal Government a number of urgent proposals designed to reduce this excessive workload; at the same time it suggested that a thorough review be undertaken of the whole organisation of the Federal courts, especially in public- and administrative-law matters, as regards its objectives and its relationship with the administration of the Cantonal courts. In its message of 22 May 1974 to the Federal Assembly, the Federal Government put forward draft texts designed, on the one hand, to modify the Federal Constitution of the Courts Act as regards the Public-Law and Administrative-Law Chamber of the Federal Court and, on the other hand, to amend the Federal Decree fixing the number of registrars and secretaries; it proposed that the number of judges be increased from 28 to 30 and the number of registrars and secretaries from 24 to 28. In its preliminary observations, the Federal Government stated: "The cases coming before the Public-Law and Administrative-Law Chamber of the Federal Court constitute a task which, for a long time now, has been growing continuously and threatening to become an excessive workload of a permanent nature; in the long term and having regard to the Court’s present organisation, it will not be possible to keep abreast of this task without there being detrimental effects on the quality of the handling of cases and, at the end of the day, on protection under the law." However, the Federal Court itself requested that these reforms be deferred, pending a full-scale revision of the Federal Constitution of the Courts Act; this revision has not yet been effected (see paragraph 16 below). 13. In its report for 1977, dated 14 February 1978, the Federal Court recorded that there had been no diminution in the growth of its caseload, above all in the area of public and administrative law. It attributed this not only to the extension of the Confederation’s powers in administrative matters but also to the fact that citizens were having increased resort to the guarantees which the law afforded to them vis-à-vis the public authorities. On 14 December 1977, the Federal Court had recommended to the Federal Government urgent measures similar to those it had sought in 1973. As a result, in 1978 the Federal Assembly took a first series of decisions. It increased the number of Federal judges from 28 to 30 and, with effect from 1 February 1979, the number of registrars and secretaries from 24 to 28. It also decided to split the Public-Law and Administrative-Law Chamber into two Public-Law Chambers. The Federal Court, for its part, adopted on 14 December 1978 revised Rules of Procedure which also came into force on 1 February 1979. Public-law and administrative-law cases are now distributed, according to their subject-matter, amongst the different Divisions of the Federal Court. 14. These reforms were to prove insufficient. In its management report for 1979, dated 12 February 1980, the Federal Court recorded that 3,037 cases had been brought and 2,786 disposed of during the year; however, it had been necessary to carry over to 1980 the examination of some 1,565 cases that is more than half of those registered in 1979. The Federal Court observed that the vast majority (84%) of the cases remaining on its list concerned public and administrative law and stated: "In these areas, if no immediate solution is found, a litigant will in future have to wait for years before the Court rules on his case. In a State governed by the rule of law, such a situation is incompatible with the role that should be played by the Supreme Court." The Federal Government therefore proposed in their message of 17 September 1980 to the Federal Assembly that the number of registrars and secretaries be increased from 28 to 60. It should be noted that these are not junior administrative staff but highly-qualified lawyers who play an essential role in the functioning of the Federal Court (Rule 10 of the Federal Court’s Rules of Procedure, dated 14 December 1978); indeed they act in a consultative capacity during deliberations (Rule 12, second paragraph). 15. In its management report for 1980, dated 6 February 1981, the Federal Court pointed out that the situation was still serious. It regretted that the two legislative Chambers had not yet been able to adopt the Government’s proposals and added: "Owing to its overwhelming workload, the Court is now no longer able, in certain areas, to fulfil its role as guardian of the law, even though for its part it is doing everything possible, as regards internal organisation, to keep abreast of its obligations." On 20 March 1981, the Federal Assembly adopted a Decree raising from 28 to 40 the posts for registrars and secretaries of the Federal Court and also increasing its administrative staff. These measures led to some improvement: in its report for 1981, dated 12 February 1982, the Federal Court noted that for the first time since 1975 it had succeeded in disposing of almost as many cases (3,164) as had been registered (3,187); however, it had been obliged to adjourn 1,787. It concluded from this that "for some years more it will remain burdened by an excessive workload and will therefore not be able to decide cases within a time which would, having regard to their nature, appear reasonable in terms of the Constitution and the Convention". 16. Quite apart from these decisions intended to cater for the immediate problem, the Federal committee of experts preparing a full-scale revision of the Federal Constitution of the Courts Act of 16 December 1943, designed to reduce the Federal Court’s workload and accelerate its proceedings, completed its work at the end of 1981. Recently, the Federal Office of Justice and Police submitted a preliminary draft text to the Government, with a view to setting in motion a consultation procedure which should be terminated in 1983. 17. The Federal Court has itself taken practical steps aimed at coping with its backlog of pending business. Believing that to process cases in chronological order would give rise to serious injustices, it has, in particular, utilised a system, known as "sorting", based on the degree of urgency and the human implications of each case. | 1 |
train | 001-106419 | ENG | HRV | CHAMBER | 2,011 | CASE OF HRDALO v. CROATIA | 3 | Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed | Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 5. The applicant was born in 1958 and lives in Dubrovnik. 6. On 27 November 2003 the Government of Croatia appointed the applicant Head of the Dubrovnik-Neretva County State Administration Office with effect from 1 January 2004. 7. Meanwhile, on 30 June 2002 the applicant’s neighbour Mrs I.Š.-H. filed a criminal complaint against him with the police authorities in Dubrovnik. She alleged that on 29 June 2002 the applicant had demolished a separating wall erected between their backyards by her husband and broken one of the windows of her house. In her statement of 13 January 2003, Mrs I.Š.-H. added that during the incident of 29 June 2002 the applicant had also shouted that she and her family should come out so that he could kill them. 8. On 12 December 2003 the Metković Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Metkoviću) indicted the applicant before the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) accusing him of the criminal offences of uttering threats and damaging another’s property, and invited the court to issue a penal order in accordance with section 446 of the Criminal Procedure Act (see paragraph 21 below). 9. On 18 December 2003 a single judge of the Dubrovnik Municipal Court issued a penal order (kazneni nalog) against the applicant under section 446 of the Criminal Procedure Act, finding him guilty as charged and imposing a prison sentence of two months, suspended for two years. The applicant was not informed of, and did not participate in, those proceedings. The order was served on the applicant on 3 January 2004. 10. On 9 January 2004 the applicant lodged an objection (prigovor) against the penal order arguing that he had not committed the criminal offences for which he had been convicted, and that he had not been given an opportunity to defend himself and present evidence. 11. On 8 May 2006 the Dubrovnik Municipal Court set aside its penal order of 18 December 2003 and dropped the charges against the applicant under section 353 of the Criminal Procedure Act without any further explanation. 12. Meanwhile, by a decision of 17 March 2004 the Government of Croatia removed the applicant from his position as Head of the Dubrovnik-Neretva County State Administration Office on the grounds that he had been found guilty of a criminal offence by the judgment of the Dubrovnik Municipal Court of 18 December 2003. The decision reads as follows: D E C I S I O N “Nikša Hrdalo is hereby relieved of his duties as Head of the Dubrovnik-Neretva County State Administration Office. R e a s o n s Section 52(3) of the State Administration System Act provides that the heads of the regional offices of the State administration are appointed and removed by the Government of Croatia upon a proposal of the State secretary of the Central Public Administration Office on the basis of a previously conducted public competition. By a decision of the Government of Croatia ... of 27 November 2003 Nikša Hrdalo was appointed Head of the Dubrovnik-Neretva County State Administration Office. By judgment no. K 386/03 of the Dubrovnik Municipal Court of 18 December 2003, Nikša Hrdalo was found guilty of a criminal offence against the rights and freedoms of man and the citizen defined in Article 129 § 2 of the Criminal Code and classified as uttering threats, in conjunction with a criminal offence against property defined in Article 222 § 1 of the Criminal Code and classified as damaging another’s property. [As a consequence, he] received ... a prison sentence of two months and fifteen days, suspended for two years. Having regard to foregoing, the State secretary of the Central Public Administration Office considered that keeping Nikša Hrdalo as Head of the Dubrovnik-Neretva County State Administration Office could harm the probity of the civil service. In accordance with the above, the State secretary of the Central Public Administration Office proposed that the Government of Croatia relieve Nikša Hrdalo of his duties as Head of the Dubrovnik-Neretva County State Administration Office. The Government of Croatia accepted this proposal. That being so, it was decided as indicated in the operative part.” The operative part of the decision was published in the Official Gazette of the Republic of Croatia no. 36/2004 of 22 March 2004. 13. On 18 March 2004 the daily newspaper Slobodna Dalmacija reporting from the Government’s meeting of 17 March 2004, reported on the applicant’s removal from office. A small article entitled “Removals and appointments [Razrješenja i imenovanja]” in its relevant part read as follows: “In Dubrovnik-Neretva County the Government relieved Nikša Hrdalo, the incumbent Head of the State Administration Office, of his duties. ... Nikša Hrdalo was relieved of his duties because of a non-final judgment imposing a ... prison sentence of two months and fifteen days, suspended for two years, for a criminal offence against a freedom of man.” 14. On 31 March 2004 the same daily published an article entitled “Removed because of a non-existent ‘judgment’ [Smijenjen zbog nepostojeće presude]?”, which described the circumstances surrounding the applicant’s removal from office and gave him the opportunity to present his view. 15. On 20 April 2004 the applicant brought an administrative action in Administrative Court against the Government of Croatia challenging the decision on his removal. 16. On 24 June 2004 the Government of Croatia submitted their reply to the applicant’s action. That reply was not forwarded to the applicant. The relevant part of the Government of Croatia’s reply read as follows: “...The decision which is the subject of this administrative dispute does not disclose any breach of law raised by the plaintiff. The decision to relieve Nikša Hrdalo of his duties as Head of the Dubrovnik-Neretva County State Administration Office was adopted in accordance with section 52(3) of the State Administration System Act. ... It is undisputed that, by judgment no. K 386/03 of the Dubrovnik Municipal Court of 18 December 2003, Nikša Hrdalo was found guilty of a criminal offence against the rights and freedoms of man and the citizen – uttering threats – defined in Article 129 § 2 of the Criminal Code, in conjunction with a criminal offence against property – damaging another’s property – defined in Article 222 § 1 of the Criminal Code, and that he received ... a prison sentence of two months and fifteen days, suspended for two years. The plaintiff argues that the present case concerns a penal order issued in accordance with section [446] of the Criminal Procedure Act, to which he objected within the statutory time-limit, and that therefore there is no final judgment [against him] which could constitute an impediment to recruitment to the civil service set out in section 8 of the Civil Servants Act. However, the plaintiff ignores the fact that his removal from office was not owing to the existence of impediments to recruitment to the civil service set out in section 8 of the Civil Servants Act. The discovery that, at the time of recruitment to the civil service or at the time of appointment to the position of Head of the Dubrovnik-Neretva County State Administration Office, an impediment set out in section 8 of the Civil Servants Act had existed, would have resulted in the termination of employment in the civil service by operation of law, pursuant to section 118 ... of the Civil Servants Act. However, the present case does not concern such circumstances or the termination of employment in the civil service. Rather, [it concerns] the plaintiff’s removal from his position as Head of the State Administration Office ..., where the impugned decision is not based on impediments to recruitment to the civil service but on circumstances concerning the plaintiff which were considered liable to ... harm the probity of the State Administration Office and the entire civil service. Criminal proceedings pending against a head of a State administration office may give a negative impression to the public and arouse suspicion as regards the diligent and lawful conduct of those employed in the State administration office run by such a person. The plaintiff contests the right of the Government of Croatia to remove a head of [a State administration] office at their own discretion ... Contrary to the plaintiff’s argument, we consider that the Government of Croatia are entitled to remove a head of a State administration office at their own discretion because that is undoubtedly provided for by section 52 of the State Administration System Act. ... Given that the contested decision was adopted in the procedure and in the manner prescribed by law, and that grounds ... for quashing or declaring [it] null and void do not exist, we propose that the Administrative Court dismiss the action as unfounded.” 17. On 15 September 2004 the Administrative Court dismissed the applicant’s action finding that the contested decision of 17 March 2004 had been based on section 30(4) of the Government of Croatia Act (see paragraph 23 below) and section 52(3) of the State Administration System Act (see paragraph 22 below). The relevant part of the Administrative Court judgment reads as follows: “... the said laws indisputably show that the Government of the Republic of Croatia ... are entitled to remove a head of a State administration office ... at their own discretion ... ... in the reasoning for their decision, the defendant authority [that is, the Government of Croatia] ... stated the circumstances which influenced that decision. In particular, having regard to the complaints submitted about the plaintiff’s work, and the fact that criminal proceedings are pending against him before the Dubrovnik Municipal Court ... for a criminal offence against the rights and freedoms of man and the citizen (the criminal offence of uttering threats defined in Article 129 § 2 of the Criminal Code), in conjunction with a criminal offence against property (the criminal offence of damaging another’s property defined in Article 222 § 1 of the Criminal Code), the State secretary of the Central Public Administration Office in its proposal ... of 15 March 2004 considered that the plaintiff should be relieved of [his] duties as Head of the State Administration Office because keeping him in that position could harm the probity of the civil service. That proposal was accepted by the defendant authority which, at the session held on 17 March 2004, adopted a decision on his removal. Contrary to the plaintiff’s arguments, by doing so [the defendant authority] did not examine ... whether his [career in the] civil service should be terminated pursuant to section 118 of the Civil Servants Act, in which case it should be taken into account whether or not a civil servant had been convicted by a final judgment of a criminal offence against the rights and freedoms of man and the citizen. However, pending criminal proceedings for such a criminal offence, or even the adoption of a non-final judgment, may, given the position of the head of a State administration office, harm the probity of the office run by such a person and the entire civil service. Namely, the conduct of the plaintiff which led to the institution of those criminal proceedings, and its negative connotations in the public perspective, harms his personal reputation and may arouse suspicion among citizens as regards the diligent and lawful operation of the State administration office run by such a person.” 18. On 15 January 2005 the applicant lodged a constitutional complaint against the Administrative Court’s judgment alleging violations of, inter alia, his constitutional rights to a fair hearing, presumption of innocence, and respect for his dignity, reputation and honour. He argued that he had been removed from office on the basis of a non-final conviction secured in criminal proceedings of which he had not been aware and in which he had not had the opportunity to participate. 19. On 12 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint and served its decision on him on 29 November 2006. The relevant part of that decision reads as follows: “The complainant further alleges a violation of Article 28 of the Constitution which provides that everyone shall be [presumed] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement. The contested judgment was not delivered in proceedings in which the complainant’s guilt was being determined, but [in proceedings] where the lawfulness of [an] administrative decision ... was examined. The Constitutional Court therefore finds that the complainant’s [right] provided for in Article 28 of the Constitution has not been breached by the contested judgment. ... The complainant also alleges a violation of Article 35 of the Constitution, which guarantees to everyone respect for, and legal protection of, his personal and family life, dignity, reputation and honour. The Constitutional Court finds that the complainant’s [right] provided for in Article 35 of the Constitution had not been breached by the contested judgment because that judgment and the prior decision were rendered in lawfully conducted proceedings and are based on relevant legislation.” 20. The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: “Everyone shall be [presumed] innocent and no one may consider him guilty of a criminal offence until his guilt has been established by a final court judgement.” “Everyone shall be guaranteed respect for, and legal protection of, his personal and family life, dignity, reputation and honour.” 21. The relevant part of the Criminal Procedure Act (Official Gazette of the Republic of Croatia nos. 110/1997, 27/1998 (corrigendum), 58/1999, 112/1999, 58/2002, 143/2002 (corrigendum), 62/2003 (consolidated text) and 115/2006), which was in force between 1 January 1998 and 1 January 2009, reads as follows: A judgment dismissing the charges shall be adopted in the event that: 1) the court has no jurisdiction in the matter; 2) the proceedings were conducted without having been requested by an authorised prosecutor; 3) the prosecutor dropped the charges during the trial; 4) the required request or consent for prosecution has not been provided, or the authorised person or State body has withdrawn the request or consent; 5) the defendant has already been finally convicted or acquitted in respect of the offence in issue or the criminal proceedings against him or her have been terminated ...; 6) the defendant is exempt from criminal prosecution owing to amnesty or pardon, or if criminal prosecution has become barred owing to statutory limitation or the existence of other circumstances excluding criminal prosecution.” “In respect of criminal offences under the competence of a single judge and where the State Attorney has learned of a criminal offence from a reliable criminal complaint, he or she may ask in an indictment that a court issue a penal order (kazneni nalog) whereby the court shall impose on the defendant a sentence or an alternative measure without holding a trial. ...” 22. The relevant provision of the State Administration System Act (Zakon o sustavu državne uprave, Official Gazette of the Republic of Croatia nos. 75/1993, 48/1999, 15/2000, 59/2001, 190/2003 (consolidated text), 199/2003 and 79/2007), as in force at the material time, read as follows: “The head of the regional State administration office is appointed and removed by the Government of Croatia upon a proposal of the State secretary responsible for public administration on the basis of a previously conducted public competition.” 23. The relevant provision of the Act on the Government of the Republic of Croatia (Zakon o Vladi Republike Hrvatske, Official Gazette nos. 101/1998, 15/2000, 117/2001, 199/2003 and 77/2009 – “the Government of Croatia Act”), which entered into force on 5 August 1998, reads as follows: “A decision (rješenje) shall be adopted on appointments or dismissals or other individual matters within the Government’s purview.” 24. The Civil Servants Act (Zakon o državnim službenicima i namještenicima, Official Gazette no. 27/2001) was in force between 30 March 2001 and 1 January 2006. 25. Section 8(1) set out impediments to recruitment to the civil service and provided that such an impediment existed in respect of a person who had been convicted by a final judgment for, inter alia, a criminal offence against the rights and freedoms of man and the citizen, or a criminal offence against property. 26. Section 118 provided that a civil servant’s employment was to be terminated by operation of law, inter alia, when the judgment by which he or she had been convicted for a criminal offence referred to in section 8(1) of the same Act became final, or when it was discovered that an impediment referred to in the same section had existed at the time of recruitment. 27. Sections 52-59 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) provide for the remedy of reopening of proceedings before the Administrative Court and regulate the procedure following a petition for reopening. In particular, section 52 reads as follows: “Proceedings ... shall be reopened upon a petition by a party: 1) if the party learns of new facts or discovers, or gains the opportunity to use, new evidence on the basis of which the dispute would have been resolved more favourably for him or her had these facts or evidence been presented or used in the previous court proceedings; ... 3) if the decision was based on a judgement rendered in a criminal or civil case and that judgement was later set aside by another final court decision; ... A reopening shall be allowed on the grounds set forth in subsections (1) and (5) of this section, only if the party was unable, through no fault of his or her own, to raise these grounds in the previous proceedings.” 28. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis. 29. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows: “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional Protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first-instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated. (2) The proceedings referred to in paragraph (1) of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings. (3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” | 1 |
train | 001-119706 | ENG | RUS | CHAMBER | 2,013 | CASE OF E.A. v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicant was born in 1966. After his release from detention in 2008 the applicant resided in the town of Perm. 7. The applicant arrived in Russia from Uzbekistan in 2002 or 2003. He was arrested on 11 August 2003 in the town of Perm in relation to criminal proceedings against him (see paragraph 25 below). 8. During his admission to Perm detention centre no. 1 in August 2003 the applicant had a check-up and was questioned about his past illnesses. According to the documents submitted by the Government, since the 1990s the applicant had been suffering from pulmonary tuberculosis and had received treatment in Uzbekistan. According to the applicant, in 1995 and 1998 he had pneumonia and had no pulmonary tuberculosis before his arrest in August 2003. 9. The applicant had a chest fluorography examination in the detention centre and was examined by a chest physician who prescribed treatment (such as ethambutol and B6 vitamin) in relation to his tuberculosis. On 18 August 2003 a blood sample from the applicant was submitted for HIV testing (an “enzyme-linked immunosorbent assay”). An additional similar test and a confirmatory test (“western blot”) were carried out on 3 and 4 September 2003 respectively. 10. The case file contains a document dated 9 September 2003 which appears to be the record of the HIV-related initial physical examination (involving, inter alia, vital signs, lymph nodes, skin, thorax and lungs). The applicant’s weight was 73 kg. The reference to the HIV stage is not legible. The next check up was scheduled for February 2004. The Government also submitted the applicant’s “epicrisis” record for 2003, which indicates HIV stage 2Б under the domestic classification (see paragraph 29 below). It is indicated in the record that during 2003 the applicant did not request any treatment or medication. Another document entitled “Plan for treatment in 2003” indicated that the applicant was to be examined in February 2004. This document did not specify any treatment, including HIV-related medication. 11. It can be seen from the typed copy of the applicant’s medical file that on several occasions in late 2003 and early 2004 he was examined by a chest physician who maintained his medication in relation to tuberculosis. 12. After the closure of the criminal proceedings against him (see paragraph 25 below), in June 2004 the applicant was transferred to prison no. 12 in the Perm region. Subsequently, he also spent periods of time in prison no. 9, as well as in the psychiatric and other units of the hospital for detainees (August - October 2004, February - March 2005, July 2005 and several months in 2006 and 2007). The applicant was treated, inter alia, for tuberculosis, gonorrhoea, haemorrhoids, hepatitis C, a psychiatric condition, and in relation to acts of self-mutilation. 13. In particular, in September 2004 the applicant was admitted to tuberculosis hospital no. 7 in relation to the progression of his infection with the hepatitis C virus. He had a number of blood tests, such as a full blood count (including leukocytes, erythrocytes, and lymphocytes), a urine test, a chest fluorography, an X-ray and an abdominal ultrasound scan, and was examined by a chest physician and a neurologist. It appears that, although scheduled, a consultation by an infectious disease specialist was not provided. It is indicated in one of the documents submitted by the Government that the applicant’s weight dropped to 60.5 kg in September 2004. However, it can be seen from the record of a check-up done on 1 October 2004 that his weight was then 70 kg. This record mentions HIV stage 2 or 3 (not clearly legible). The next check-up was scheduled for April 2005. 14. The Government submitted a handwritten medical document (which appears to relate to 2004) bearing the stamp of prison no. 9 and indicating HIV stage 3A. 15. It appears that in April 2005 the applicant was examined by an infectious disease specialist who prescribed laboratory testing for bilirubin and some laboratory tests in relation to liver function. The record of a check-up of the applicant of 25 July 2005 indicates HIV stage 2Б. The next check-up was scheduled for 25 January 2006. 16. In July 2005 the applicant complained that he was not being provided with adequate medical treatment in relation to his diseases, in particular as regards his HIV infection. The Kizel prosecutor’s office in charge of the supervision of prisons examined the applicant’s complaint and stated that the applicant had been provided with medical care free of charge, and that he had been regularly admitted to a medical facility and had consultations by infectious disease specialists. The prosecutor’s office also mentioned that no funds had been allocated to prison no. 12 for out-patient treatment of HIV-positive detainees in 2005 and thus the relevant medication had not been available there. 17. In March 2006 the applicant was again hospitalised and his discharge certificate refers to HIV stage 3. In July 2006 he had a periodic check-up; the record indicates HIV stage 3 (corrected from “4”). 18. In July 2006 the applicant complained about the issue of medical care to the Federal Department for the Execution of Sentences. This authority stated in reply that an infectious disease specialist had concluded that antiretroviral therapy (ART) was not necessary. Another similar complaint was examined in August 2006 by the Kizel prosecutor’s office in charge of the supervision of prisons. Dismissing the applicant’s complaint, this authority mentioned that prison hospital no. 9 had facilities for carrying out an immunological assessment, should it be prescribed for the applicant. So far there had been no indications for such an assessment. 19. In September 2006 the Medical Office of the Regional Department for the Execution of Sentences examined and dismissed the applicant’s further complaint relating to his HIV treatment. They stated that the applicant had received the necessary testing and medication, as well as consultations by specialist doctors, including an infectious disease specialist. They indicated that a decision on immunological assessment had to be taken by a medical professional. The applicant’s illnesses and their staging had not, at the relevant time, required ART. 20. Between October 2006 and May 2007 the applicant was kept in hospital no. 7 in the Perm region, on account, in particular, of the aggravation of his pulmonary tuberculosis. According to the Government, in October 2006 the applicant failed to comply with unspecified recommendations made by the regional centre for the prevention of and fight against AIDS and infectious diseases (“the AIDS centre”). 21. The applicant had a check up in January 2007; the record indicates HIV stage 4Б. In March 2007 he underwent an immunological assessment. It appears that he started a highly active antiretroviral therapy (HAART) regimen in April 2007. In early 2008 the regimen was adjusted. 22. The applicant sought early conditional release. By a judgment of 4 September 2008 the Solikamsk Town Court of the Perm Region granted his application and ordered his release, considering that his continued detention was not necessary for the purposes of his “correction”. The applicant was released soon thereafter. The court ordered him to report to the supervising authority and not to change his place of residence without prior notice to that authority. 23. According to the applicant, the administration of the detention facility told him that he had fifteen days to leave Russia or he would be deported. 24. According to the Government, in October 2008 and January 2009 the applicant attended the AIDS centre, where he confirmed that he was taking medication. 25. On 15 April 2004, rejecting the applicant’s plea of self-defence, the Leninskiy District Court of Perm convicted the applicant of causing injuries to one person and causing fatal injuries to another person. The court sentenced the applicant to six years and one month of imprisonment. On 25 May 2004 the Perm Regional Court upheld the judgment. The applicant made submissions through a videoconferencing facility from the remand centre. 26. The applicant served his sentence of imprisonment from June 2004 to September 2008, when he was released (see paragraphs 12 and 22 above). 27. By Decree no. 170 of 16 August 1994 the Federal Ministry of Health adopted Guidelines relating to HIV/AIDS Diagnosis and Treatment (section 1) and Dispensary Supervision (section 2). The Guidelines state as follows. 28. There is a clear link between the illness’s progress and the reduction of CD4 lymphocytes, the latter process being the main feature of HIV pathogenesis (point 1.1.). Staging of HIV should be determined depending on clinical and other relevant considerations listed in the Guidelines (points 1.3. and 1.5.). An HIV-positive person should be subjected to an initial examination confirming the HIV diagnosis and determining the stage of the illness and any concomitant illnesses. The initial examination should include, inter alia, HIV serological testing (an enzyme-linked immunosorbent assay test and a western blot test) and a CD4 cell count (point 2.1. of the Guidelines). Subsequent examinations should be carried out in accordance with the gravity of the patient’s state of health, or on a periodic basis. A subsequent examination at HIV stage 2 or 3 should be carried out in twelve months for a CD4 cell count of below 500, and in twenty-four months for a CD4 cell count of above 500 or if unknown. 29. Basic therapies include ART and prophylaxis to prevent secondary diseases. Antiretroviral therapy should be prescribed at stages 2A, 3A, 3Б and 3B (under the Russian classification) during periods of clinical activity and with regard to the clinical data (point 1.6.2.1. of the Guidelines). As to periods of remission, sustaining ART should be provided, with regard to clinical and immunological assessment. Depending on the CD4 level, the therapy should be constant or administered in three-month periods with three-month interruptions. If the CD4 level is not known, no sustaining therapy should be provided in certain situations or at stage 3A. 30. Federal Law no 38-FZ on the Prevention of HIV Propagation in Russia provided, in its pre-January 2005 version, that the State guaranteed the availability of the relevant examinations for detecting HIV infection; diagnosis and treatment; and provision of free medical care to HIV-positive Russian citizens (section 4 of the Law). 31. In 2004 the World Health Organisation (WHO) published its Guidelines “Scaling up Antiretroviral Therapy in Resource-Limited Settings. Guidelines for a public health approach.” They read as follows: “WHO recommends that, in resource-limited settings, HIV-infected adults and adolescents should start ARV therapy when the infection has been confirmed and one of the following conditions is present. *Clinically advanced HIV disease: -WHO Stage IV HIV disease, irrespective of the CD4 cell count; -WHO Stage III disease with consideration of using CD4 cell counts <350/mm3 to assist decision-making. *WHO Stage I or II HIV disease with CD4 cell counts <200/mm3... ... The treatment of patients with WHO Stage IV disease (clinical AIDS) should not be dependent on a CD4 cell count determination. However, where available, this test can be helpful in categorizing patients with Stage III conditions with respect to their need for immediate therapy. For example, pulmonary TB can occur at any CD4 count level and, if the CD4 cell count level is well maintained (i.e. >350/mm3), it is reasonable to defer therapy and continue to monitor the patient. For Stage III conditions a threshold of 350/mm3 has been chosen as the level below which immune deficiency is clearly present such that patients are eligible for treatment when their clinical condition portends rapid clinical progression ... For patients with Stage I or Stage II HIV disease the presence of a CD4 cell count <200/mm3 is an indication for treatment. In cases where CD4 cell counts cannot be assessed the presence of a total lymphocyte count of 1200/mm3 or below can be used as a substitute indication for treatment in the presence of symptomatic HIV disease. While the total lymphocyte count correlates relatively poorly with the CD4 cell count in asymptomatic persons, in combination with clinical staging it is a useful marker of prognosis and survival. An assessment of viral load (e.g. using plasma HIV-1 RNA levels) is not considered necessary before starting therapy. Because of the cost and complexity of viral load testing, WHO does not currently recommend its routine use in order to assist with decisions on when to start therapy in severely resource-constrained settings. It is hoped, however, that increasingly affordable methods of determining viral load will become available so that this adjunct to treatment monitoring can be more widely employed. It should be noted that the current WHO Staging System for HIV Infection and Disease for Adults and Adolescents was developed several years ago and has consequent limitations. Adaptations at the level of national programmes may therefore be appropriate. Nevertheless, it remains a useful tool for assisting in defining parameters for initiating therapy in resource-limited settings and thus has continued to be applied in this revision.” Under these Guidelines, if CD4 testing was, at the time, not available, it was recommended that ART be offered to patients with: (i) WHO Stage IV disease, irrespective of the total lymphocyte count; (ii) WHO Stage III disease, irrespective of the total lymphocyte count, the recommendation to start ART in all patients with stage III disease without reference to total lymphocyte counts reflecting, in the WHO’s opinion, the consensus of expert opinion; and (iii) WHO Stage II disease with a total lymphocyte count ≤ 1200/mm3. A total lymphocyte count of ≤ 1200/mm3 could be substituted for the CD4 count when the latter was unavailable and HIV-related symptoms existed. It was not useful in the asymptomatic patient. Thus, in the absence of CD4 cell testing, asymptomatic HIV-infected patients (WHO Stage I) should not be treated because there was currently no other reliable marker available in severely resource-constrained settings. 32. In 2004 the WHO also published “HIV/AIDS Treatment and Care. WHO Protocols for countries of the Commonwealth of Independent States”. The Protocols provide that the initial evaluation of an HIV positive patient must, inter alia, include routine laboratory assessments (haemoglobin, white blood cell count and differential, urinalysis, liver function tests, creatinine) and a CD4 cell count. ART should be started at (i) stage IV irrespective of CD4 cell count; (ii) stage III disease if symptoms present (including, but not restricted to, chronic diarrhoea of unknown aetiology, prolonged fever of unknown aetiology, pulmonary tuberculosis, recurrent invasive bacterial infections, or recurrent/persistent mucosal candidiasis), with consideration given to using CD4 cell counts < 350/mm3 to assist decision making. A CD4 count is advisable to assist with determining the need for immediate therapy. For example, pulmonary TB may occur at any CD4 level and other conditions may be mimicked by non-HIV aetiologies (for example, chronic diarrhoea, prolonged fever); (iii) stage I or II disease with CD4 cell counts = 200/mm3. The precise CD4 level above 200/mm3 at which ART treatment should be started is not established. ART is recommended for all patients with TB with a CD4 count < 200 cells/mm3 and should be considered for patients with CD4 < 350 cells/mm3. 33. In 2006 the WHO issued revised guidelines: “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” (with previous updates from 2003). They read as follows: “In resource-limited settings the decision to initiate ART in adults and adolescents relies on clinical and immunological assessment. In order to facilitate the rapid scale-up of ART programmes with a view to achieving universal access to this therapy, WHO emphasizes the importance of using clinical parameters in deciding when to initiate it. However, it is recognized that the value of clinical staging in deciding when to initiate and monitor ART is improved by additional information on baseline and subsequent (longitudinal) CD4 cell counts. While WHO continues to advocate wider availability of affordable point-of-care CD4 cell count testing, the lack of a CD4 count should not delay the initiation of ART if the patient in question is clinically eligible. WHO encourages national programmes to increase access to CD4 measurement technologies ... Clinical staging is intended for use where HIV infection has been confirmed by HIV antibody testing. It should form part of the baseline assessment (first visit) on entry into a care and treatment programme and is used to guide decisions on when to start co-trimoxazole prophylaxis and when to start and switch ART in situations where CD4 testing is not available ... ART results in improvement in clinical status and brings about effective reversal of the clinical stage in patients with symptomatic disease. However, the value of clinical staging in monitoring the efficacy of ART, defining ART failure and determining when to switch ART is less clear. Studies are urgently needed to address the use of clinical criteria (clinical stage on treatment) in deciding when to switch ART in the absence of CD4 cell counts or viral load testing. The optimum time to commence ART is before patients become unwell or present with their first opportunistic infection. Immunological monitoring (CD4 testing) is the ideal way to approach this situation. A baseline CD4 cell count not only guides the decision on when to initiate ART but is also essential if CD4 counts are to be used to monitor ART ... The benchmark threshold marking a substantially increased risk of clinical disease progression is a CD4 cell count of 200 cells/ mm3. Although it is never too late to initiate ART, patients should preferably begin the therapy before the CD4 cell count drops to or below 200 cells/mm3 [A-III]. The optimum time to initiate ART with a CD4 cell count of 200−350 cells/ mm3 is unknown. Patients with CD4 cell counts in this range require regular clinical and immunological evaluation. The treatment of patients with WHO clinical stage 4 disease should not depend on a CD4 cell count determination: all such patients should initiate ART [A-III]. For WHO clinical stage 3 conditions, a threshold of 350 cells/ mm3 has been identified as a level below which functional immune deficiency is present and ART should be considered. This level also conforms to what is indicated in other consensus guideline documents. 4 CD4 cell counts can be helpful in categorizing patients with stage 3 conditions in respect of their need for immediate therapy. For example, pulmonary tuberculosis or severe bacterial infections can occur at any CD4 count level and it is reasonable to delay ART and continue to monitor patients with CD4 cell counts above 350 cells/ mm3. However, the initiation of ART is recommended for all HIV-infected individuals with pulmonary TB and CD4 counts below 350 cells/ mm3 ... and also for patients with severe bacterial infections who have CD4 counts below this value.” 34. According to the WHO Clinical Protocols on HIV/AIDS Treatment and Care, adopted in 2007, the core component of treating HIV-positive persons is the provision of ART, including HAART, combining three or more drugs. The initial evaluation of a patient should include confirmation of HIV infection status with the potential time of infection established, if possible; a detailed personal, family and medical history; a physical examination; laboratory and other examinations; specialist examinations, as appropriate; and clinical and immunological staging. Clinical staging (stage 3 or 4) and CD4 counts are the best primary markers and viral load the secondary marker for deciding whether to start ART. 35. In 2010 the WHO issued a revised and updated version of the Guidelines “Antiretroviral therapy for HIV infection in adults and adolescents. Recommendation for a public health approach.” The revised text indicates that all adolescents and adults with HIV infection and CD4 counts of or less than 350 cells/mm3 should start ART, regardless of the presence or absence of clinical symptoms. Those with severe or advanced clinical disease (WHO clinical stage 3 or 4) should start ART irrespective of their CD4 cell count. All patients should have access to CD4 cell-count testing to optimise pre-ART care and ART management. Viral-load testing is recommended to confirm suspected treatment failure. Irrespective of CD4 cell counts, patients co-infected with HIV and tuberculosis should be started on ART as soon as possible after starting TB treatment. 36. The United Nations Guidelines on HIV/AIDS and Human Rights, under the heading “Freedom from Cruel, Inhuman or Degrading Treatment or Punishment” state that denial to prisoners of access to HIV-related health care can constitute cruel, inhuman or degrading treatment, whereas prisoners suffering from AIDS should be considered for early release and given proper treatment outside prison. 37. The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” | 1 |
train | 001-92094 | ENG | MDA | CHAMBER | 2,009 | CASE OF HYDE PARK AND OTHERS v. MOLDOVA (No. 4) | 3 | Remainder inadmissible;Violation of Art. 11;Violation of Art. 5-1;Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. At the time of the events giving rise to the application, Hyde Park (the first applicant) was registered with the Moldovan Ministry of Justice as a non-governmental organisation lobbying, inter alia, for freedom of expression and the right to peaceful assembly. In 2007 its members decided to discontinue the organisation’s registration on grounds of alleged pressure and intimidation by the State. In particular, they complained of the refusal of the Ministry of Justice to register amendments to the organisation’s articles of association, the repeated freezing of its bank account, the arbitrary arrest of its members, attempts to shut down its newspaper, among other things. Several of the organisation’s leaders requested political asylum in western countries. It was decided to continue the organisation’s activity under the same name but without registering it with the State authorities. It was also decided that the new unincorporated association would become the former organisation’s successor. After removal of the organisation from the Government’s list of non-governmental organisations on 2 June 2008, Hyde Park’s activities continued as before on the basis of its new articles of association. The association continued editing its newspaper, its Internet page and continued staging protests and demonstrations. 6. The other applicants are members and supporters of Hyde Park: Oleg Brega, Anatolie Juraveli, Roman Cotelea, Mariana Galescu, Radu Vasilascu, Vitalie Dragan, Angela Lungu and Anatol Hristea-Stan. They were born in 1973, 1988, 1987, 1982, 1983, 1967, 1988 and 1953 respectively and live in Pepeni, Durlesti and Chişinău. 7. On 30 June 2006 the first applicant applied to the Chişinău Municipal Council for authorisation to hold a peaceful demonstration at the junction of Banulescu-Bodoni and Stefan cel Mare streets, not far from the Government building, between 1 and 31 August 2006, to protest against the refusal of the Ministry of Culture to install a monument dedicated to the poet Liviu Rebreanu, donated by the Government of Romania. 8. On 18 July 2006 the Chişinău Municipal Council authorised the holding of a demonstration in writing, but only on 1 August 2006. It stated that it considered that one day of protest was sufficient in order to bring Hyde Park’s concerns to the Government’s attention. 9. On 25 July 2006 Hyde Park challenged the Municipal Council’s decision in court. 10. On 29 August 2006 the Chişinău Court of Appeal found that the Municipality’s refusal had been unlawful, quashed its decision of 18 July 2006 and ordered the Municipal Council to authorise the first applicant to hold a demonstration in front of the Government building between 29 and 31 August 2006. The court ordered that its judgment should come into force immediately. 11. On 30 August 2006 the applicants requested authorisation from the Municipality on the basis of the judgment of 29 August 2006. However, the Municipality refused to comply with the judgment on the ground that it was not final. 12. On the same day at 5 p.m. the applicants started their demonstration at the place indicated in the judgment of the Court of Appeal. At 5.15 p.m. the applicants were approached by a group of police officers who asked whether they had authorisation. The applicants showed them the judgment of the Court of Appeal. From a video which was made by the police and which is part of the domestic case file a police officer can be seen attempting to convince Mr Brega to stop the demonstration. The latter refuses and argues that Hyde Park has a court judgment authorising the demonstration. At the same time Mr Brega speaks through a megaphone declaring that Moldova is a totalitarian State where there is no freedom of speech and that it will have to answer for all its illegal behaviour before the Strasbourg Court. He accuses the police and the State authorities of illegal behaviour. Suddenly, a person wearing a Special Forces uniform attacks one of the Hyde Park members from behind and violently throws him to the ground. The other participants observe the attack and are immediately surrounded by a group of police officers and taken to a police van. Nobody appears to resist and a female voice, apparently one of the participants, calls on somebody not to resist arrest. According to the applicants, two of the participants (Mr Juraveli and Mr D.) were thrown to the ground by Special Forces officers. 13. At the police station, the police officers took the applicants’ belongings including their mobile telephones. The minutes of arrest indicated, inter alia, that the applicants’ belongings had been taken for storage. The applicants were locked in different cells in groups of three or four persons. The two female applicants were put in a separate cell. According to the applicants, they were not allowed to make any telephone calls or to consult a lawyer. The cells were small, humid and dirty. They smelled of urine and faeces. They did not have windows, the electric light was always on and there were only two wooden benches inside. The applicants were held in detention for approximately forty hours during which time they were not provided with any food. They were only provided with water and occasionally taken to a toilet. Only after the intervention of several human rights NGOs and after sixteen hours of detention, were their relatives allowed to bring them food. The Government disputed the applicants’ description of the conditions of detention. 14. On 1 September 2006 at approximately 10 a.m. the applicants were taken to court where their mobile telephones and cameras were returned to them and where they learned about the charges against them for the first time, namely holding an unauthorised demonstration (Article 174 § 1 of the Code of Administrative Offences (the “CAO”)), resisting arrest (Article 174 § 5 of the CAO) and insulting police officers (Article 174 § 6 of the CAO). After receiving their belongings, the applicants alleged that all the video and audio files concerning the demonstration had been deleted from their telephones by the police. 15. During the proceedings Mr Brega and Ms Galescu requested the court to order an expert evaluation of their mobile telephone records in order to determine whether the police had deleted files from them; however, their request was rejected and the proceedings were adjourned. The applicants were released at noon. 16. On 3 October 2006 the Buiucani District Court continued the administrative proceedings against the applicants and found all of them (except for the first applicant) guilty of holding and participating in an unauthorised demonstration contrary to Article 174 § 1 of the CAO. The court found that after obtaining a favourable judgment from the Court of Appeal, they should have applied to the Municipal Council for authorisation. The court fined each applicant except for Mr O. Brega (the president of Hyde Park at the time) 200 Moldovan lei (MDL). Mr O. Brega was fined MDL 500. All the applicants were acquitted of the charges concerning the insulting of police officers and resisting arrest after the court viewed a video of the arrest made by the police officers and found that there was no justification for bringing these accusations. 17. All the applicants appealed against this decision in so far as it concerned their participation in an unlawful assembly and argued, inter alia, that Hyde Park had applied to the Municipal Council for authorisation on 30 August 2006; however, their request had been dismissed on the ground that the judgment of the Court of Appeal of 29 August 2006 was not yet in force. They also repeated their request to have an expert evaluate their mobile telephone records. 18. On 26 October 2006 the Chişinău Court of Appeal upheld the applicants’ appeal while finding that the applicants’ demonstration was lawful by virtue of the judgment of the Court of Appeal of 29 August 2006 (see paragraph 10 above). The applicants were acquitted of the charges relating to their participation in an unlawful assembly. 19. In the meantime, on 18 September 2006 the applicants lodged a criminal complaint against the police officers who had arrested them. They complained that they had been abused, illegally detained, that their right to privacy of correspondence had been violated, that their right to freedom of assembly had been violated and that they had suffered inhuman and degrading treatment in addition to the refusal to execute the court decisions. 20. Between September 2006 and September 2007 the criminal proceedings initiated at the applicants’ request were dismissed and re-opened four times. On each occasion, the Prosecutor’s Office dismissed the complaint and later the courts, or the hierarchically superior prosecutor, quashed the prosecutor’s decision and ordered a re-examination. The reasons for dismissal were the testimonies of police officers and police witnesses who confirmed the allegations that the applicants had insulted the police and resisted arrest. As to the allegation concerning the tampering with the applicants’ mobile telephones and deleting files from them, the Prosecutor’s Office accepted the testimony of a police officer who confirmed that two mobile telephones had been seized during the applicants’ detention but denied the allegations that somebody had tampered with them. As to the video of the event filmed by the police representatives (see paragraph 12 above), the Prosecutor’s Office argued that it had been lost and that, therefore, it could not be examined. On 27 September 2007 the Rascani District Court quashed the last decision dismissing the applicants’ complaints and ordered a re-examination. After that date, the applicants did not hear any more from the Prosecutor’s Office about the status of their complaint. On 10 January 2008 the applicants wrote to the Prosecutor General’s Office to enquire as to the stage reached in their proceedings, but they did not receive a reply. A copy of that letter with a stamp of the Prosecutor General’s Office on it was annexed to the applicants’ observations. According to them, it was only from the Government’s observations that they learned that their complaint had been dismissed again on 12 November 2007. The Government disputed the applicants’ submissions concerning the letter of 10 January 2008 which the applicants stated they had sent to the Prosecutor General’s Office. They did not dispute, however, the authenticity of the Prosecutor General’s stamp on the copy of that letter. 21. On 1 November 2006 the Supreme Court of Justice examined the appeal on points of law lodged by the Municipal Council against the judgment of the Court of Appeal of 29 August 2006. It quashed that judgment and dismissed the applicants’ action, finding that the Municipal Council’s decision of 18 July 2006 was lawful. The Supreme Court also ruled that the ruling of the Court of Appeal concerning the immediate enforcement of its judgment had been unlawful. 22. The relevant provisions of the Assemblies Act of 21 June 1995 read as follows: (1) Assemblies shall be conducted peacefully, without any sort of weapons, and shall ensure the protection of participants and the environment, without impeding the normal use of public highways, road traffic and the operation of economic undertakings and without degenerating into acts of violence capable of endangering the public order and the physical integrity and life of persons or their property. Assemblies shall be suspended in the following circumstances: (a) denial and defamation of the State and of the people; (b) incitement to war or aggression and incitement to hatred on ethnic, racial or religious grounds; c) incitement to discrimination, territorial separatism or public violence; d) acts that undermine the constitutional order. (1) Assemblies may be conducted in squares, streets, parks and other public places in cities, towns and villages, and also in public buildings. (2) It shall be forbidden to conduct an assembly in the buildings of the public authorities, the local authorities, prosecutors’ offices, the courts or companies with armed security. (3) It shall be forbidden to conduct assemblies: (a) within fifty metres of the parliament building, the residence of the President of Moldova, the seat of the government, the Constitutional Court and the Supreme Court of Justice; (b) within twenty-five metres of the buildings of the central administrative authority, the local public authorities, courts, prosecutors’ offices, police stations, prisons and social rehabilitation institutions, military installations, railway stations, airports, hospitals, companies which use dangerous equipment and machines, and diplomatic institutions. (4) Free access to the premises of the institutions listed in subsection (3) shall be guaranteed. (5) The local public authorities may, if the organisers agree, establish places or buildings for permanent assemblies. (1) Not later than fifteen days prior to the date of the assembly, the organiser shall submit a notification to the Municipal Council, a specimen of which is set out in the annex which forms an integral part of this Act. (2) The prior notification shall indicate: (a) the name of the organiser of the assembly and the aim of the assembly; (b) the date, starting time and finishing time of the assembly; (c) the location of the assembly and the access and return routes; (d) the manner in which the assembly is to take place; (e) the approximate number of participants; (f) the persons who are to ensure and answer for the sound conduct of the assembly; (g) the services the organiser of the assembly asks the Municipal Council to provide. (3) If the situation so requires, the Municipal Council may alter certain aspects of the prior notification with the agreement of the organiser of the assembly.” (1) The prior notification shall be examined by the local government of the town or village the latest 5 days before the date of the assembly. (2) When the prior notification is considered at an ordinary or extraordinary meeting of the Municipal Council, the discussion shall deal with the form, timetable, location and other conditions for the conduct of the assembly and the decision taken shall take account of the specific situation. (6) The local authorities can reject an application to hold an assembly only if after having consulted the police, it has obtained convincing evidence that the provisions of sections 6 and 7 will be breached with serious consequences for society. (1) A decision rejecting the application for holding an assembly shall be reasoned and presented in writing. It shall contain reasons for refusing to issue the authorisation... (1) The organiser of the assembly can challenge the refusal in the administrative courts.” 23. The relevant provisions of the Criminal Code read as follows: (1) Illegal deprivation of liberty, if it is not a kidnapping, shall be punishable with community work of 120-240 hours or imprisonment of up to 2 years. (2) The same offence committed b) against two or more persons; d) by two or more persons; shall be punishable with imprisonment of 3 to 8 years. (1) Violation of the right to freedom of assembly by way of illegal hindering of a demonstration, rally or action of protest or hindering of persons from taking part in them...: a) committed by an official; b) committed by two or more persons ; c) accompanied by acts of violence which are not dangerous to life or health, shall be punishable with a fine of four to eight thousand Moldovan lei or with community work of 180-240 hours, or with imprisonment of up to two years.” 24. The relevant provisions of the Code of Administrative Offences, in force at the material time, read: 2. The organisation and holding of an assembly without prior notification to the Municipal Council or without authorisation from the Council, or in breach of the conditions (manner, place, time) concerning the conduct of meetings indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between MDL 500 and 1,000. ... 4. Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 200 and 300. Resisting a police officer [...] in the exercise of his or her duties of ensuring public order and the fight against crime shall be punishable by a fine up to MDL 300 or detention of up to thirty days. Insulting police officers ... in the exercise of their duties ... shall be punishable by a fine of up to MDL 200 or imprisonment of up to fifteen days. Persons who ... breached the rules concerning the organisation and holding of assemblies ... resisted a police officer or behaved offensively towards him... may be detained until the case is examined by a court... ...” 25. The relevant provisions of Law No. 1226 on Pre-Trial Detention read as follows: (3) The detainees shall be subjected to body searches.... They shall not be allowed to have money, precious objects and objects forbidden in places of detention. Money shall be transferred into their personal accounts, while precious objects and other objects shall be stored.” 26. More detailed rules concerning detainees’ belongings and their storage by the authorities in charge of detention facilities are contained in the Government’s Decision no. 583, of 26 May 2006: 373. Money, precious objects and forbidden objects must be taken away from detainees... 375. During detention the goods mentioned in paragraph 373 above shall be transmitted to the accounting department of the detention facility for storage... 376. The forbidden objects and substances shall be taken away from detainees when they are discovered. 377. The right to take away forbidden objects is vested in the representatives of the administration, guardians and other employees of the penitentiary system. 378. The taking away of goods shall be carried out by at least two representatives of the administration, in the presence of the detainee whose goods are taken away. 379. Minutes of the removal of possessions shall be drawn up and copied three times by the participants. One copy for the detainee whose goods have been removed, another for the accounting department and the third copy for the detainee’s personal file. 380. The minutes shall contain the following information: The name of the detention facility; Date, time and place of the removal of goods; Reason for the removal of goods; First name, last name, position and grade of the persons who participated in the removal; First name and last name of the detainee whose goods are removed; An exhaustive list of the goods removed indicating denominations, quantity, brand, series, number, registration number... Signatures of all the participants, including that of the detainee... 381. The minutes shall also contain details relating to the price of the object/s, their material, and any distinguishing features. 382. If the detainee is not in agreement with the minutes, he has the right to write his objections in the minutes. 383. Money and other valuables shall be transmitted urgently (not later than one day) to the accounting department. The removed goods shall be registered in a special register for valuables. 384. Any money removed shall be transferred to the detainee’s bank account...” According to Annex No. 7 to this Government Decision, it is forbidden for detained persons to have mobile telephones. | 1 |
train | 001-109046 | ENG | SWE | CHAMBER | 2,012 | CASE OF VEJDELAND AND OTHERS v. SWEDEN | 2 | Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Nona Tsotsoria;Vladimiro Zagrebelsky | 7. The applicants were born in 1978, 1981, 1987 and 1986 respectively. The first applicant lives in Gothenburg and the other applicants live in Sundsvall. 8. In December 2004 the applicants, together with three other persons, went to an upper secondary school (gymnasieskola) and distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an organisation called National Youth and the leaflets contained, inter alia, the following statements: “Homosexual Propaganda (Homosexpropaganda) In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances (avarter) to embracing this deviant sexual proclivity (böjelse). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society (folkkroppen) and will willingly try to put it forward as something normal and good. -- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold. -- Tell them that homosexual lobby organisations are also trying to play down (avdramatisera) paedophilia, and ask if this sexual deviation (sexuella avart) should be legalised.” 9. For distributing the leaflets, the applicants were charged with agitation against a national or ethnic group (hets mot folkgrupp). 10. The applicants disputed that the text in the leaflets expressed contempt for homosexuals and claimed that, in any event, they had not intended to express contempt for homosexuals as a group. They stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education dispensed in Swedish schools. 11. On 11 July 2005 the District Court (tingsrätten) of Bollnäs found that the statements in the leaflets had clearly gone beyond what could be considered an objective discussion of homosexuals as a group and that the applicants’ intention had been to express contempt for homosexuals. It therefore convicted the applicants of agitation against a national or ethnic group, and sentenced the first and second applicants to two months’ imprisonment, the third applicant to a suspended sentence (villkorlig dom) combined with a fine, and the fourth applicant to probation (skyddstillsyn) combined with 40 hours of community service. 12. The applicants as well as the prosecutor appealed against the judgment to the Court of Appeal (hovrätten) for Southern Norrland. The applicants requested the court to reject the charges, to consider the criminal act minor, or at least to reduce the punishments. The prosecutor appealed as regards the first three applicants, requesting the court to consider the criminal act to be aggravated or at least to increase the punishments. 13. On 14 December 2005 the Court of Appeal, referring to the Supreme Court’s judgment of 29 November 2005 in the case NJA 2005 p. 805 (see below under “Relevant domestic law and practice”), rejected the charges against the applicants on the ground that a conviction would amount to a violation of their right to freedom of expression as guaranteed by the Convention. 14. The Office of the Prosecutor-General (Riksåklagaren) appealed against the judgment to the Supreme Court (Högsta domstolen) and requested it to convict the applicants of agitation against a national or ethnic group, arguing that it would not amount to a violation of Article 10 of the Convention in the circumstances of the present case. The applicants disputed the appeal. 15. On 6 July 2006 the Supreme Court convicted the applicants of agitation against a national or ethnic group. The majority of judges (three out of five) first considered decisive for the outcome of the case whether the interference with the applicants’ freedom to distribute the leaflets could be considered necessary in a democratic society and whether the interference with their freedom of expression could be deemed proportionate to the aim of protecting the group of homosexuals from the violation that the content of the leaflets constituted. The majority then held: “In the light of the case-law of the European Court of Human Rights regarding Article 10, in the interpretation of the expression “contempt” in the provision regarding incitement against a group,, where, in particular, the following should be considered. The handing out of the leaflets took place at a school. The accused did not have free access to the premises, which can be considered a relatively sheltered environment as regards the political actions of outsiders. The placement of the leaflets in and on the pupils’ lockers meant that the young people received them without having the possibility to decide whether they wanted to accept them or not. The purpose of the handing out of the leaflets was indeed to initiate a debate between pupils and teachers on a question of public interest, namely the objectivity of the education in Swedish schools, and to supply the pupils with arguments. However, these were formulated in a way that was offensive and disparaging for homosexuals as a group and in violation of the duty under Article 10 to avoid as far as possible statements that are unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding. The purpose of the relevant sections in the leaflets could have been achieved without statements that were offensive to homosexuals as a group. Thus, the situation was in part different from that in NJA 2005 p. 805, where a pastor made his statements before his congregation in a sermon based on certain biblical quotations. The above-mentioned reasons taken together lead to the conclusion that Chapter 16, Article 8 of the Penal Code, interpreted in conformity with the Convention, permits a judgment of conviction, given the present circumstances of this case.” 16. The minority (two judges) found that convicting the applicants would not be proportionate to the aims pursued and would therefore be in violation of Article 10 of the Convention. Hence, the minority wanted to acquit the applicants but gave separate reasons for this conclusion, at least in part. One of them was of the view that the prosecution was not formulated in such a way that the Supreme Court could take into consideration that the leaflets had been distributed at a school and addressed to the pupils, while the other found it natural that the leaflets had been aimed at pupils and agreed with the majority that an overall assessment of the circumstances had to be made. 17. The first three applicants were given suspended sentences combined with fines ranging from SEK 1,800 (approximately 200 euros (EUR)) to SEK 19,000 (approximately EUR 2,000) and the fourth applicant was sentenced to probation. 18. Chapter 16, Article 8 of the Penal Code (Brottsbalken, SFS 1962:700) provides that a person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation, should be convicted of agitation against a national or ethnic group. The offence carries a penalty of up to two years’ imprisonment. If the offence is considered minor the penalty is a fine, and if it is considered to be aggravated the penalty is imprisonment for no less than six months and no more than four years. 19. Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on 1 January 2003. According to the preparatory work on that amendment, as reproduced in Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation, and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda. The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain offenders to attack individuals on account of their sexual orientation derived from the hate, threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of Nazi and other right-wing extremist groups in the country. 20. The Supreme Court, in its judgment of 29 November 2005 (case NJA 2005 p. 805) concerning statements made by a pastor during a sermon which were deemed to have expressed contempt for homosexuals as a group within the meaning of Chapter 16, Article 8 of the Penal Code, considered that the legislation was in accordance with the Convention. However, the Supreme Court found that, the word “contempt” in the provision regarding incitement against a group had to be interpreted more restrictively than the preparatory work appeared to indicate if an application of the provisions that was in line with the Convention was to be achieved. The Supreme Court then found that an application of the provision that was in line with the Convention would not permit a judgment convicting | 0 |
train | 001-59480 | ENG | FIN | CHAMBER | 2,001 | CASE OF K.S. v. FINLAND | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Georg Ress | 8. In May 1991 the applicant was dismissed, with six months’ notice, from his post as tax inspector, and immediately suspended from office. He was deemed unable to perform his duties adequately and found to have continuously failed to comply with, or to have neglected, his obligations as a civil servant. His appeals were rejected, in the last resort by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). 9. In February 1992 the Unemployment Fund (työttömyyskassa, arbetslöshetskassan) for Lawyers and Legal Associates refused to pay the applicant a salary-related unemployment benefit for the period 28 November 1991 - 8 January 1992. The Fund had regard to an opinion from the Employment Commission (työvoimatoimikunta, arbetskrafts-kommissionen) of Vaasa which concluded that the applicant had himself caused his dismissal. Under domestic law the Unemployment Fund was bound by the Employment Commission’s opinion. The applicant had received a copy thereof in the beginning of December 1991. 10. The applicant appealed to the Board for Unemployment Benefits (työttömyysturvalautakunta, arbetslöshetsnämnden), essentially contesting the Employment Commission’s opinion, as adhered to by the Unemployment Fund in an unsigned computer-printed decision. The appeal was first processed by the Unemployment Fund which requested the Employment Commission to comment on it. Having received the Employment Commission’s opinion, the Unemployment Fund forwarded it to the Board for Unemployment Benefits together with the appeal itself and the Unemployment Fund’s own opinion. 11. The Employment Commission’s opinion referred to the Supreme Administrative Court’s decision upholding the applicant’s dismissal. The opinion further stated that no such evidence had been presented which would have warranted a change of the Employment Commission’s earlier opinion. The Unemployment Fund’s opinion referred to the earlier stages of the proceedings and noted that unemployment funds were authorised to dispatch electronically signed decisions. The opinion further stated that no evidence had been presented which could be considered by the Unemployment Fund and that, accordingly, its decision should stand. 12. None of the above opinions were communicated to the applicant in the proceedings before the Board for Unemployment Benefits. In its decision of 31 January 1994 the Board summarised the facts, the applicant’s appeal and the opinions of the Employment Commission and the Unemployment Fund. The Board then dismissed the appeal, considering that a person who had himself caused the termination of his employment was not entitled to unemployment benefits for a period of six weeks. As the applicant’s suspension from office had resulted in his dismissal, he was deemed to have caused the termination of his employment himself. He was therefore not entitled to unemployment benefits for the period in question. The Board relied on section 9 of the Act on Unemployment Benefits (työttömyysturvalaki, lagen om utkomstskydd för arbetslösa 602/1984). 13. The applicant appealed further to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). In an opinion requested by the Insurance Court the Unemployment Fund considered that no such evidence had been presented which it had been unaware of when making its decision of 1992. Accordingly, that decision should be upheld. The Unemployment Fund’s opinion was not communicated to the applicant in the course of the proceedings. The Insurance Court also obtained from the Supreme Administrative Court its decision regarding the applicant’s dismissal. 14. In its decision of 9 March 1995 the Insurance Court upheld the decision of the Board for Unemployment Benefits, referring to the reasons stated therein. 15. Section 9, subsection 1, of the Act on Unemployment Benefits stipulates that a person who causes the termination of his or her employment shall not be entitled to an unemployment benefit for a period of eight weeks. According to established practice, the period is shortened to six weeks in certain circumstances. If a dismissal has been challenged the withdrawal of unemployment benefits should normally be based on a decision which has acquired legal force (section 9, subsection 2). The competent employment commission shall issue an opinion in respect of someone’s entitlement to unemployment benefits. Such an opinion is binding on the competent unemployment fund (section 3, subsection 2). 16. According to section 39, subsection 4, and section 42, subsection 4, an appellant shall be given an opportunity to be heard in a matter before the Board for Unemployment Benefits or the Insurance Court, if such new evidence is presented of which the appellant is not aware. 17. At the relevant time the Insurance Court applied mainly the principles derived from the rules of procedure of the courts of appeal. Insofar as relevant, the Code of Judicial Procedure provided as follows. According to Chapter 25, sections 17 to 20, the opposing party was to be heard in proceedings before appellate courts. According to Chapter 25, section 19, subsection 1, a copy of the observations of the opposing party was to be forwarded to the appellant on request. According to Chapter 26, section 6, the court of appeal was to request written observations from the parties when it obtained evidence on its own initiative and such evidence could affect the decision in the case, unless such hearing of the parties was manifestly unnecessary. 18. From 1 April 1999 onwards the Insurance Court has been applying the Act on Administrative Judicial Procedure (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) except with regard to extraordinary proceedings, in respect of which special rules apply (section 9 of the Act on the Insurance Court, as amended by Act no. 278/1999). | 1 |
train | 001-89862 | ENG | UKR | CHAMBER | 2,008 | CASE OF MIROSHNIK v. UKRAINE | 3 | Remainder inadmissible;Violations of Art. 6-1;Violation of P1-1;Non-pecuniary damage - award | Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 5. The applicant was born in 1955 and resides in the village of Akimovka, the Zaporizhzhya region, Ukraine. 6. In December 1998 the applicant was dismissed from the military forces. 7. On 8 June 1999 the Zaporizhzhya Garrison Military Court (“the Zaporizhzhya Court”) ordered the Zaporizhzhya Regional Military Enlistment Office to pay the applicant 1,260.91 Ukrainian hryvnyas (UAH) for his uniform expenses for the period up to 31 December 1998. 8. On 11 February 2000 the enforcement proceedings were discontinued because of the debtor’s lack of funds and because, according to Article 5 of the Economic Activities of the Armed Forces Act, the property of the Armed Forces could not be used to enforce a court decision. 9. According to the applicant, on 16 October 2001 the decision was enforced in part by the debtor. At 21 August 2007 the decision had not been enforced in full. 10. In June 1999 the applicant instituted proceedings in the Zaporizhzhya Court against his former employer, the Akimovskiy District Military Enlistment Office, claiming an allowance due to him for the period of January-February 1999. The applicant stated that though he was officially dismissed on 31 December 1998, he had actually left the forces on 16 February 1999. 11. On 23 June 1999 the court found for the applicant and awarded him UAH 442.03 for the unpaid allowance to be paid by the Enlistment Office. 12. On 17 August 1999 the South Regional Military Court quashed that decision and remitted the case for a fresh consideration. 13. On 3 November 1999 the Zaporizhzhya Court found against the applicant. 14. On 7 December 1999 the South Regional Military Court upheld that decision. 15. On 11 July 2000 the Supreme Court quashed the decisions of 3 November 1999 and 7 December 1999 upon a protest, lodged by the President of the Supreme Court (at the applicant’s request), and remitted the case for a fresh consideration. 16. The applicant lodged an additional claim asking to change the date of his dismissal and requesting the payment of an insurance premium, compensation for pecuniary and non-pecuniary damage, and the enforcement of the decision of 8 June 1999. 17. On 3 November 2000 the Zaporizhzhya Court, considering the case in the applicant’s presence, changed the date of his dismissal and ordered the Enlistment Office to pay him UAH 791.78 for the unpaid allowance and other payments. 18. The applicant did not appeal against the decision. 19. In a letter of 30 January 2004, the applicant informed the Court that the decision of 3 November 2000 had been enforced in full, without specifying the date of enforcement. 20. In August 2000 the applicant instituted proceedings in the Zaporizhzhya Court against the Enlistment Office and the Ministry of Defence with claims similar to those in the second set of proceedings. 21. On 31 August 2000 the court returned the applicant’s claim, stating that he had failed to pay the court fee and to enclose any evidence in support of his claim as required by the legislation. 22. The applicant neither appealed against that decision nor submitted his claim anew. 23. In November 2000 the applicant instituted proceedings in the Central Regional Military Court against the Ministry of Defence contesting the lawfulness of his dismissal from the military service and seeking compensation for damage. The applicant also clamed that the defendant had been unlawfully ignoring the court decisions in his favour. 24. On 12 December 2000 the court returned the applicant’s claim for res judicata reasons, stating, in particular, that such a claim had already been considered by the courts. 25. On 23 January 2001 the Supreme Court quashed that decision and remitted the case for a fresh consideration, finding that the applicant’s claim had not been considered by the courts before. 26. On 5 March 2001 the Central Regional Military Court returned the applicant’s claim for failure to indicate all the requisites of the claim, and to enclose any evidence in its support, as required by the legislation. 27. The applicant states that this decision was sent to him too late to enable him to appeal against it within the fixed time-limit. The applicant did not submit any request for an extension of the time-limit for appeal. 28. On 12 April 2001 the Supreme Court rejected an appeal by the applicant against the decision of 5 March 2001 under the extraordinary review procedure. 29. The relevant domestic law regarding enforcement of court decisions is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004) 30. The relevant provisions of the Constitution read as follows: “The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine. Influencing judges in any manner is prohibited ...” “In the administration of justice, judges are independent and subject only to the law ...” 31. Section 123 of the Code provided that garrison military courts, as first-instance courts, had jurisdiction over civil cases where military servicemen challenged the lawfulness of acts or decisions taken by military officials or military bodies as well as over other civil cases where military servicemen’s rights and freedoms were claimed to be violated, except for cases falling within the jurisdiction of the regional military courts. The regional military courts, as first-instance courts, had jurisdiction over civil cases where the lawfulness of acts or decisions taken by military officials or military bodies having the level of a military association or higher, were challenged. 32. In accordance with Sections 289 and 325 of the Code, appeals against decisions of military garrison courts were to be submitted to the military regional courts. Appeals against decisions of the military regional courts were to be submitted to the Supreme Court. 33. Sections 20, 38-1, 38-3 of the Act provided that the military courts were incorporated into the system of the general courts of Ukraine. They exercised judicial power in the Armed Forces of Ukraine and other military formations allowed by Ukrainian legislation. The judges of the military courts were elected by the Verkhovna Rada of Ukraine for ten years. The candidates, on passing a competitive examination the first time, were elected for five years. Only an acting officer in the army could become a judge of the military court. 34. Section 38-10 of the Act envisaged that the financing, logistics, maintenance and archiving of the military courts and the Military Chamber of the Supreme Court were performed by entities of the Ministry of Defence at the expense of the Ministry of Justice and the Supreme Court, using part of the State Budget allocated specifically for those purposes. 35. According to Section 38-11 of the Act the servicemen of the military courts were considered to be in military service and constituted a part of the staff of the Armed Forces of Ukraine. The judges of the military courts were awarded military ranks by the President of Ukraine upon the joint submission of the Minster of Justice and the Chairman of the Supreme Court (as regards the judges of the military garrison courts, military regional courts, and naval courts) or upon the sole submission of the Chairman of the Supreme Court (as regards the judges of the military chamber of the Supreme Court). 36. Section 43 of the Act provided that a military chamber was incorporated into the structure of the Supreme Court. According to Section 49 of the Act the chambers of the Supreme Court could consider cases as, inter alia, the court of appeal instance. The Act was repealed on 7 February 2002. 37. According to Section 11 of the Act the independence of judges was guaranteed by the manner of their appointment, termination and suspension of their office; by the special procedure of awarding military ranks to the military judges; by the special procedure of administration of justice; by the secrecy of the decision-making process; by prohibition of interference with the administration of justice; by the establishment of the legal responsibility for contempt of court; by the judges’ right to resign; by the judges’ inviolability; by the provision of the technical and informational conditions necessary for the operation of the courts; by the material support and social welfare programs provided for the judges; by the special procedure of the courts’ financing; and by the system of judicial self-government. 38. Section 44 of the Act foresaw that judges of the military courts who needed to improve their living conditions were provided with an appropriate flat or house by the Ministry of Defence within the term of six months from the date of their appointment. 39. Section 3 of the Act provided that the Armed Forces of Ukraine were subordinate to the Ministry of Defence. | 1 |
train | 001-85901 | ENG | SWE | ADMISSIBILITY | 2,008 | PERSSON v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | The applicant, Mr Urban Persson, is a Swedish national who was born in 1957 and lives in Storfors. He was represented before the Court by Mr P. Bergqvist, a lawyer practising in Huddinge. The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned and ran a private limited company (later called Urban Persson Bil AB) which, from January 1997, imported and sold cars from Germany. The applicant alleged that in August 1997 the Swedish Tax Authority orally informed him that VAT had to be paid in Germany and not in Sweden, where it was fifteen per cent higher. He applied these rules. In August 1998, however, the Tax Authority asserted that VAT had to be paid in Sweden and not in Germany. Realising that he would thereby be charged VAT and a tax surcharge in Sweden, and that the VAT paid in Germany would not be refunded, and that consequently he would go bankrupt, he burned all his bookkeeping records. By a letter of 27 August 1998 the Tax Authority announced that it would revise the applicant’s tax assessment. It had noted that the applicant had advertised numerous cars for sale in the papers but hardly paid any VAT in Sweden. On 8 December 1998 the Tax Authority made an announced visit to inspect the applicant’s business records. On 27 January 1999 the applicant’s company went bankrupt. The public receiver established that no cars remained in the company’s possession. On 25 August 1999 the Tax Authority procured an audit report concerning the applicant and his company. The report stated that on 8 December 1998 the applicant had told the tax officials who made the official visit that he suffered from memory loss after having slipped and injured his head and therefore could not remember where he had put the business records. Subsequently, the auditors of the Tax Authority had on several occasions requested to see the records but their requests had been in vain. By a decision of 21 October 1999 the Tax Authority determined the applicant’s taxable income for 1998 and 1999 and the appropriate tax and tax surcharge to be paid. The decision also contained a discretionary assessment as to the profit made by the company and as to whether the company or the applicant ran the business. In December 1999 a newspaper ran an article on the administrative proceedings against the applicant, without naming him. The newspaper article contained information from the Tax Authority, including the finding that the applicant had sold at least one hundred and seventy cars without paying VAT and that he had not been in possession of any sort of accounting records. It was mentioned that if the case were pursued by the prosecution the applicant risked incurring a prison sentence. On 16 March 2001 the applicant complained of the Tax Authority’s decision of 21 October 1999 before the administrative courts, making various allegations and maintaining that his personal tax debt should be set at 0 Swedish kronor (SEK). The applicant did not apply for free legal aid in those proceedings. The Tax Authority issued a revised decision on 27 June 2001. By a judgment of 4 June 2002, the County Administrative Court (Länsrätten i Värmlands Län) found against the applicant and on 4 June 2004 the Administrative Court of Appeal (Kammarrätten i Göteborg) found against him in part. Leave to appeal to the Supreme Administrative Court (Regeringsrätten) was refused on 27 May 2005. In the meantime, by a letter of 29 December 2000 the Tax Authority informed the prosecution authorities that it suspected that the applicant had committed a bookkeeping offence. Unbeknown to the applicant, on 22 January 2001 the prosecution authorities opened a file on him. By a letter of 12 September 2002 the applicant was informed that the public prosecutor had opened a preliminary investigation against him and that he was suspected of having committed a bookkeeping offence with aggravating circumstances. He was summoned to an interview with the Tax Crime Unit within the Tax Authority, which had been instructed by the prosecution to carry out an investigation. The said interview was held on 2 October 2002. Another one was held on 16 January 2003. On 4 April 2003 an indictment as regards the applicant was submitted to the District Court (Kristinehamns Tingrätt), before which the applicant, represented by counsel, made submissions. He confirmed that he had burned all the accounting records. He had thought that he would thereby be able to reach a friendly settlement with the Tax Authority. He estimated that the company had sold approximately one hundred and thirty-five cars with a turnover for the relevant years of around SEK 9.7 million, equal to approximately 1.06 million euros (EUR). In addition a witness was heard and substantial written evidence submitted. By a judgment of 26 June 2003 the District Court convicted the applicant of two offences with aggravating circumstances, one being the lack of bookkeeping and one the obstruction of tax revision. Taking the applicant’s own information as to the company’s turnover into account, the District Court sentenced him to one year’s imprisonment. In addition, he was deprived of his right to run a business (näringsförbud) for five years. On 17 July 2003 the applicant appealed against the conviction to the Court of Appeal (Hövrätten for Västra Sverige). In the alternative, he maintained that there were no aggravating circumstances and that he should therefore maintain the right to run a business. In any event, he submitted, the sentence should be reduced and suspended. In support of that submission, he claimed to be a victim of a violation of Article 6 of the Convention in that there had been a long period between receiving notification on 8 December 1998 that he was suspected of having committed an offence and receving a summons on 12 September 2002 to an interview, that is, a period of forty-five months, which, he submitted, had caused him significant psychological suffering. By a judgment of 17 October 2003 the Court of Appeal upheld the District Court’s judgment in its entirety. It did not comment specifically on the length-of-proceedings issue. The District Court’s judgment was appended to the Court of Appeal’s judgment. On 18 December 2003 the applicant requested leave to appeal to the Supreme Court (Högsta Domstolen), which was refused on 13 January 2004. Domestic provisions of relevance to the present case are found mainly in the 1942 Code of Judicial Procedure (rattegångsbalken), the 1962 Penal Code (brottsbalken) and the Tax Offences Act (skattebrottslagen; SFS 1971:69). Provisions governing the conduct of preliminary investigations are contained in Chapter 23 of the Code of Judicial Procedure. Save in a few exceptional cases, a preliminary investigation is initiated as soon as there is reason to believe that an offence subject to public prosecution has been committed (Section 1). During the investigation an inquiry is made concerning who may be reasonably suspected of having committed the offence and whether sufficient reason exists for prosecution (Section 2). A suspect is not informed that a preliminary investigation has been initiated. A decision to initiate a preliminary investigation is made either by the police authority or by the prosecutor (Section 3). If the investigation has been initiated by the police authority and the matter is not of a simple nature, the prosecutor assumes responsibility for conducting the investigation as soon as someone is reasonably suspected of the offence. A prosecutor conducting a preliminary investigation may require the assistance of the police authority (ibid.). A preliminary investigation regarding a bookkeeping offence with aggravating circumstances is conducted by the prosecutor. Pursuant to section 2 of the Criminal Investigations (Participation of the Swedish Tax Agency) Act (lagen om Skatteverkets medverkan i brottsutredningar, SFS 1997:1024), the prosecutor is entitled to seek the assistance of a criminal investigator at the Tax Agency. A preliminary investigation is conducted as expeditiously as possible and in such a manner that no one is unnecessarily exposed to suspicion or put to unnecessary cost or inconvenience (Chapter 23, Section 4, of the Code of Judicial Procedure). Special requirements for expedition apply in certain circumstances, inter alia, when the suspect is under the age of eighteen or when he is remanded in custody. There are no rules stipulating that a preliminary investigation must be concluded within a certain time-limit. If there is no longer any reason for pursuing the investigation, it will be discontinued (Chapter 23, Section 4, of the Code of Judicial Procedure). During the preliminary investigation, anyone who is reasonably likely to possess information relevant to the inquiry may be questioned (Chapter 23, Section 6, of the Code of Judicial Procedure). Chapter 23, Section 18, of the Code of Judicial Procedure contains provisions regarding the suspect’s right to be informed of the investigation. When the investigation has advanced so far that a person is reasonably suspected of having committed the offence, he will, when he is questioned, be notified of the suspicion against him. In so far as it is possible without detriment to the investigation, the suspect and his defence counsel will be informed continuously of developments in the investigation. They are also entitled to state what inquiries they consider desirable and necessary. Upon conclusion of the preliminary investigation, the prosecutor decides whether to bring charges against the individual concerned (Chapter 23, Section 20, of the Code of Judicial Procedure). The latter does not contain any formal time-limits in this respect, but it is made clear in the preparatory rules (NJA 111943 p. 316) that a prosecutor will bring charges against the suspect as soon as the circumstances so permit. The Code of Judicial Procedure contains no particular provisions concerning how rapidly a case will be examined and determined in cases where no coercive measures are involved. It does, however, provide that the courts will set the dates for the main hearing as soon as possible (Chapter 45, Section 14). Furthermore, it is implied that they will decide on a case as soon as possible, having regard to, inter alia, the nature of the case. A person who, intentionally or through carelessness, neglects the obligation to maintain accounts in accordance with, inter alia, the Bookkeeping Act (bokföringslagen; SFS 1976:125; replaced by a new Bookkeeping Act; SFS 1999:1078) by failing to enter business transactions into the accounts or to preserve accounting records, or by entering false information into the accounts or in some other way, will, if in consequence the course of the business or its financial results or status cannot be assessed, be convicted of a bookkeeping offence (bokföringsbrott). At the material time, the penalty for a bookkeeping offence was imprisonment for a maximum of two years, or, if the crime was a petty one, a fine; if the crime was committed with aggravating circumstances, imprisonment for not less than six months and not more than four years was to be imposed (Chapter 11, Section 5, of the Penal Code as worded before 1 January 2000). Following amendments to Chapter 11, Section 5, which entered into force on 1 July 2005, a petty offence carries a penalty in the form of a fine or imprisonment for a maximum of six months and the maximum punishment for an offence with aggravating circumstances is imprisonment for six years. A person who, intentionally or through gross negligence, disregards the obligation to keep accounts or such obligations to maintain and save accounting records as are prescribed for certain persons who are obliged to supply information, and who thereby causes a risk that official control activities when assessing or levying taxes or charges will be seriously obstructed, is to be sentenced for “obstruction of tax revision” (försvårande av skatterkontrol) to a fine or imprisonment for a maximum of two years, or, if the offence is one with aggravating circumstances, to imprisonment for not less than six months and not more than four years (Section 10, sub-section I, of the 1971 Tax Offences Act). 3. The content of judgments and decisions The requirements in Swedish law as regards the content of judgments in criminal cases are found in the Code of Judicial Procedure. Pursuant to Chapter 30, Section 5, a judgment is in writing and specifies in separate sections: 1. the court, the time and place of pronouncement of the judgment; 2. the parties, their attorneys or counsel, and the defence counsel for the defendant; 3. the conclusion of the judgment (domslutet); 4. the parties’ claims and the circumstances upon which they are founded; and 5. the reasoning of the judgment (domskälen), including a statement of what has been proved in the case. A judgment rendered by a superior court will, to the extent necessary, describe the judgment of the lower court. If a party is entitled to appeal, the judgment will inform him of the steps he must take in that case. In certain cases the courts may render a judgment in a so-called simplified form (förenklad form). One relevant example is a judgment by a higher court upholding the judgment of a lower court (Chapter 30, Section 6, of the Code of Judicial Procedure). In such a case the appellate court has to state the reasons in support of its judgment only when they differ from those given in support of the appealed judgment (section 22 of the Ordinance concerning Cases and Matters before the General Courts; förordningen om mål och ärenden i allmän domstol; SFS 1996:271). If the appellate court upholds the lower court’s judgment, it means that it shares the assessment of the lower court with regard to both the final judgment and the reasoning. In the preparatory rules (NJA 111943 p. 221) it is stated that the Supreme Court does not need to state reasons in a decision refusing leave to appeal. | 0 |
train | 001-81193 | ENG | MDA | CHAMBER | 2,007 | CASE OF TOCONO AND PROFESORII PROMETEISTI v. MOLDOVA | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Nicolas Bratza | 5. In 1991, immediately after the collapse of the Soviet Union, Tocono, the Chişinău Municipal Council and the Ministry of Education took the initiative to create the first private high school in Moldova (“the school”). In view of the lack of legislation regulating private education, the Government issued Decision no. 473 of 29 August 1991, in which they confirmed that Tocono was the school's sole founder and that the school was to be financed from the local budget, donations, fees and money invested by Tocono. 6. In the autumn of the same year the school, called the Experimental High School, was opened. 7. On 9 December 1991 the Government issued Decision no. 685 amending the previous decision and naming as co-founders of the school five other legal entities which had invested in it. 8. Between 1991 and 2001 the school existed without State registration, owing to the lack of any legislation governing that area. 9. In 2001, after the enactment of legislation concerning private education, the school was required to obtain State registration. 10. On 10 December 2001, following a request by the school's head teacher, the Government issued Decision no. 1375, repealing Decision no. 685. On 20 December 2001 it was published in the Official Gazette and entered into force. 11. On 28 December 2001, Tocono and a group of teachers from the school, who had joined forces to create a foundation called “Professorii Prometeişti”, registered new articles of association for the school in accordance with the new legislation. The new articles stated that there were only two founders - Tocono and Profesorii Prometeişti- and that the school would thenceforth be called S.R.L. Prometeu. The same day the newly created entity was issued with a State registration certificate. 12. On 10 June 2002, following a request by the school's former co-founders, the Government issued Decision no. 718 repealing Decision no. 1375. 13. On 25 June 2002 four of the former co-founders mentioned in Decision no. 685 brought an action against the Chamber of State Registration and against S.R.L. Prometeu, seeking to have the registration of the new entity S.R.L. Prometeu declared null and void on the ground that they should also have been included as co-founders of the school in accordance with decision No. 685. 14. On 11 December 2002 the Court of Appeal dismissed the action. It found, inter alia, that at the date of registration of the new school (28 December 2001), Decision no. 685 had no longer been in force. 15. The plaintiffs lodged an appeal with the Supreme Court of Justice. 16. On 30 April 2003 a panel of the Supreme Court of Justice, composed of judges V.M., I.P. and V.B., upheld the appeal, quashed the judgment of the Court of Appeal and ruled in favour of the former co-founders. It observed, inter alia, that the request for registration of S.R.L. Prometeu had been lodged with the Registration Chamber on 13 December 2002, when Decision no. 685 of 9 December 1991 had still been in force. It also decided to exclude the Profesorii Prometeişti Foundation from the list of founders of the school. 17. The applicants did not learn of the composition of the panel until the day of the hearing. They alleged not to have known at the time of the hearing that, three years earlier, Judge V.B.'s son had been expelled from the school for misbehaviour, truancy and bad grades, an expulsion carried out by the head teacher of the school and by teachers who formed part of the Profesorii Prometeişti Foundation. As a result of the incident the judge had allegedly threatened the school authorities with retaliation. 18. The relevant parts of the Code of Civil Procedure as in force at the material time read as follows: Article 19 Grounds for challenging a judge A judge shall not be admitted to sit in a case or may be challenged in the following cases: (1) if he or she participated in an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor or registrar; (2) if he or she is personally interested, directly or indirectly, in the outcome of the proceedings or if there are other reasons to doubt his or her impartiality; (3) if he or she, his or her spouse or his or her ascendants or descendants have any interest in the outcome of the proceedings...; (4) if his spouse... is a relative of one of the parties to the proceedings...; (5) if he or she is a guardian... of one of the parties to the proceedings. ... Article 23 The request to challenge a judge If the circumstances indicated in Article 19 ... are present, the judge shall be obliged to withdraw from the case. For the same reasons the parties to the proceedings may challenge [a judge]. A challenge must be declared, and reasons given, before the examination of the merits of the case. A challenge may be declared later only if the party to the proceedings learned about the reasons for the challenge after the beginning of the proceedings. If the circumstances [indicated above] become known to the court after the examination of the case has begun, the court shall be obliged to inform the parties in order to decide on the matter of [incompatibility].” | 1 |
train | 001-79346 | ENG | SWE | CHAMBER | 2,007 | CASE OF WASSDAHL v. SWEDEN | 4 | Violation of Art. 6-1 | null | 4. The applicant was born in 1947 and lives in Orsa. 5. On 28 May 1996 the Tax Authority (skattemyndigheten) of the County of Kopparberg sent a preliminary consideration (övervägande) to the applicant informing him that it was considering disallowing the deduction he had made for the interest he had paid on debts in the amount of 2,000,000 Swedish kronor (SEK), as well as his declared capital gains for the sale of stocks in the amount of SEK 775,000, that he had made in his tax return for 1995. Further, it was considering imposing tax surcharges (skattetillägg) amounting to SEK 147,000 (approximately 15,800 euros [EUR]), i.e. 40% of the increased tax liability on the sum of SEK 1,225,000. 6. The preliminary consideration was based on an investigation of a company which had done business with a substantial number of private persons. As concerned the applicant, it appeared that he had borrowed SEK 40,000,000 from the company and commissioned it to buy stocks for the same amount on his behalf. The applicant then sold the stocks back to the company at a fixed date, upon which he had made a capital gain. At the same time, he repaid the loan together with interest to the company. As the capital gain corresponded to the interest, they were set off against each other. In the Tax Authority’s view, the transactions had in reality never taken place and the applicant had simply received two statements of account and a promissory note in order to use them to obtain tax advantages. 7. The applicant was requested to submit any comments he might have to the Tax Authority by 22 July 1996, which he did. He claimed that the transactions had taken place and that his tax return should be approved. 8. On 27 September 1996 the Tax Authority decided to follow its preliminary consideration. With regard to the imposition of tax surcharges, it found that the applicant had submitted incorrect information about the purported transactions. 9. On 3 January 1997 the applicant appealed against the decision, disputing the Tax Authority’s findings. He maintained that there were no grounds for disallowing the deductions or imposing tax surcharges on him. 10. On 30 April 1997 the Tax Authority made its obligatory re-assessment of its decision of 27 September 1996 but upheld it. It then forwarded the appeal to the County Administrative Court (länsrätten) of the County of Dalarna. 11. On 29 May 2000 the County Administrative Court rejected the applicant’s appeal after having held an oral hearing. It agreed with the Tax Authority’s conclusion that no transactions had in reality taken place between the applicant and the company, for which reason they could not be included in his tax return. Moreover, the court found that the applicant had submitted incorrect information to the Tax Authority and that there were no grounds on which to remit the tax surcharges. 12. On 30 June 2000 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Sundsvall, maintaining his claims. On 30 January 2002 he made further submissions to the court, stating inter alia that his rights under Article 6 of the Convention had been violated as he had not had access to the same material as the Tax Authority, and since the tax surcharges had been incorrectly imposed on him. 13. By judgment of 15 April 2002 the Administrative Court of Appeal upheld the lower court’s judgment in full, without giving any new reasons of its own. 14. On 27 May 2002 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), relying on the same grounds as before the lower courts and expanding them further. 15. On 11 September 2003 the Supreme Administrative Court refused leave to appeal. 16. On 25 November 2003 the applicant sued the Swedish State, through the Chancellor of Justice, before the District Court (tingsrätten) in Stockholm. He sought SEK 6,850,000 (approximately EUR 736,000) in damages on the grounds that the Tax Authority and the administrative courts had not afforded him a fair procedure, having withheld certain information from him, and that the proceedings had been of excessive length. He invoked national legislation as well as the Convention and its case-law. 17. The State contested the suit, claiming that it had not caused the applicant any injury, either by fault or neglect, for which he could claim damages. 18. In a judgment of 21 December 2004, the District Court rejected the applicant’s claims. As concerned the length of the proceedings, the court considered that the administrative courts’ examination of his tax case had not taken so long as to incur the State’s liability for damages. 19. On 27 December 2004 the applicant appealed to the Svea Court of Appeal (hovrätten), maintaining his claims. 20. On 2 November 2005 the Court of Appeal upheld the lower court’s judgment in full. With regard to the complaint about the length of the proceedings, the court, without giving any reasons, found that the tax proceedings could not be considered to have been of excessive duration. 21. On 12 October 2005 the applicant appealed to the Supreme Court (Högsta domstolen) where the case is still pending, awaiting a decision on leave to appeal. | 1 |
train | 001-92865 | ENG | AUT | CHAMBER | 2,009 | CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 2) | 2 | Remainder inadmissible;No violation of Art. 10 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant, a limited liability company with its seat in Vienna, is the owner of the daily newspaper Der Standard. 6. In its issue of 14 May 2004 Der Standard published an article in the domestic politics section under the heading “Gossip mongering” (“Kolportiert”). The article, which was entitled “A society rumour” (“Ein bürgerliches Gerücht”) commented on certain rumours relating to the marriage of Mr Klestil, the then Federal President. The article also appeared on the website of Der Standard. It read as follows: “If the stories circulating between the outlying district of Döbling and the city centre are to be believed, there is only one topic of conversation at the moment among the socalled upper crust of Viennese society: the marriage of the departing presidential couple Thomas Klestil and Margot Klestil-Löffler [bold print in the original]. Rumour has it that not only is he about to leave office, but she is about to leave him. The latter claim has of course set tongues wagging furiously in bourgeois – and not-so-bourgeois – circles. People here like nothing better than to be able to express outrage about one of their own. In addition to the allegedly less-than-blissful domestic situation on the Hohe Warte [the Federal President’s residence], there has been persistent gossip recently about the supposedly close ties between the First Lady, who is her husband’s junior by 22 years, and other political figures. Head of the FPÖ parliamentary group Herbert Scheibner [bold print in the original], for instance, is reported to be close to her (Scheibner has accompanied the presidential couple on a number of foreign trips). Ms Löffler is also said to be well acquainted with the husband of the Canadian ambassador (unsurprisingly, given her post as head of the American department of the Foreign Affairs Ministry). The fact that the President’s wife took a few days off recently to organise the move from the official residence to the couple’s newly renovated home in Hietzing fuelled further speculation. So much so, in fact, that Klestil – never squeamish about putting his emotions on display – had the following pre-emptive statement published in his information bulletin, News [an Austrian weekly]: ‘Rumours of a separation are nothing but idle gossip’ he said. He added: As of 8 July we will be embarking on a new phase of our life together. Any assertions to the contrary are untrue. Be that as it may, the people are concerned for the well-being of their President. Apparently, the public information desk of the President’s Office has recently had more callers than ever before enquiring about the state of the President’s marriage. And more than a few of the callers made their enquiries in the ultra-refined tones of Schönbrunn.” 7. The article was accompanied by a picture of Mr Klestil and Mrs Klestil-Löffler, looking in different directions. 8. On 18 May 2004 Mr Klestil and Mrs Klestil-Löffler brought proceedings under sections 6 and 7 of the Media Act (Mediengesetz) against the applicant company, claiming that the article published in Der Standard of 14 May 2004 reported on their marriage and family life and thus interfered with the strictly personal sphere of their lives. 9. By judgment of 15 June 2004 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) ordered the applicant company to pay compensation of 5,000 euros (EUR) to the first claimant, Mr Klestil, and EUR 7,000 to the second claimant, Mrs Klestil-Löffler. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimants’ costs. 10. The Regional Court, referring to section 7 of the Media Act, held that the applicant company had reported on the strictly personal sphere of the claimants’ lives in a manner that was likely to undermine them in public. It analysed the contents of the impugned article as alleging, on the one hand, that Mrs Klestil-Löffler intended to divorce and, on the other hand, that she had close contacts with two men, thus describing her as a double adulteress and Mr Klestil as a deceived husband. In reply to the applicant company’s defence that the article merely reported on a rumour, the Regional Court noted that even the dissemination of a rumour could breach section 7 of the Media Act, if it conveyed the impression that there was some truth in it. 11. As to the applicant company’s request to take evidence in order to show that the rumour had actually been spread at the time, the court noted that in cases concerning an infringement of the strictly personal sphere of a person’s life, section 7 § 2 of the Media Act excluded the proof of truth (Wahrheitsbeweis), unless the statement at issue was directly related to public life. Such a direct link would exist, for instance, where a publication reported on the state of health of the Federal President which might prevent him from exercising his functions. However, the state of his marriage did not have any bearing on his capacity to exercise his functions nor did it have any other link with public life. 12. In assessing the amount of compensation, the Regional Court had regard to the fact that Der Standard was a widely read newspaper and to the considerable degree of insult suffered by the claimants. In addition it noted that it was highly uncommon in Austria to report on (true or untrue) details of the private lives of politicians. Having regard to the above considerations and the need to deter other media from making similar publications, a relatively large amount of compensation appeared justified. The difference in the sums awarded was to the fact that the second claimant was described as a double adulteress, while the first claimant was “merely” depicted as a deceived husband. 13. The applicant company appealed. As a point of law it submitted that the Regional Court had wrongly refused its request for the taking of evidence. In its view the publication was directly related to public life within the meaning of section 7 § 2 of the Media Act. The claimants, being public figures, had made their private life part of their “marketing strategy”. Like no other presidential couple before, they had kept the public informed about their marriage, starting with the first claimant’s divorce from his former wife and his remarriage, to the second claimant. Moreover, the first claimant had relied heavily on family values during his first electoral campaign. He therefore had to accept that the public had an interest in being informed about his private life. 14. As regards points of fact, the applicant company argued that the Regional Court had wrongly assessed the contents of the article at issue. Read in its proper context, the article did not state that Mrs Klestil-Löffler actually intended to divorce and even less that she was an adulteress. On the contrary the article rather aimed at exposing the idle gossip propagated in certain upper-class circles. It clearly pointed to the absurdity of the rumour by explaining that the allegedly close ties of the second claimant with Mr Scheibner and with the husband of the Canadian ambassador had perfectly unsuspicious reasons. Seen in that light, the article did not even relate to the strictly personal sphere of the presidential couple but made fun of the gossip in bourgeois society. 15. As regards the sentence the applicant company claimed that the compensation awards were excessive. 16. While the appeal proceedings were pending, Mr Klestil died. By decision of 2 September 2004 the Vienna Regional Criminal Court discontinued the proceedings as regards Mr Klestil. On 9 December 2004 the Vienna Court of Appeal (Oberlandesgericht), on an appeal brought by Mr Klestil’s estate, quashed the Regional Court’s decision. 17. By a judgment of 20 January 2005 the Vienna Court of Appeal upheld the Regional Court’s judgment of 15 June 2004. 18. It confirmed that in the present case, the proof of truth was excluded by section 7 § 2 of the Media Act. The applicant company’s argument that the claimants were public figures and had exposed their private and marital life to the public eye like no other presidential couple before was not convincing. While the first claimant had relied on his family life and on his then marriage in his first campaign some twelve years ago, his marriage with Mrs Klestil-Löffler had not played a role in his second campaign nor otherwise during his second period in office. Moreover, his second and last period in office had been drawing to a close at the time of the publication. In sum, the Regional Court had rightly found that the publication at issue was not directly related to public life. Consequently, it had rightly refused to take the evidence proposed by the applicant company. 19. There was no basis for the applicant company’s assertion that the article was aimed at unveiling the hypocrisy of the so called upper crust of Viennese society or that it described the rumours about the claimants’ marriage as absurd. The Regional Court had rightly understood the article’s contents as conveying rumours about the Federal President’s marriage as if there was some truth in them. 20. Finally, as regards the amounts granted in compensation, the Court of Appeal found that deterring other media from similar publications was not a relevant criterion. Nevertheless the other considerations relied on by the Regional Court justified the compensation awards. 21. On 11 June 2004 Mr Scheibner brought proceedings under sections 6 and 7 of the Media Act against the applicant company in respect of the electronic version of the article, which had been published on the website of Der Standard and in respect of the print version. He alleged that the passage referring to him contained an untrue statement amounting to defamation. 22. By judgment of 20 July 2004 the Vienna Regional Criminal Court ordered the applicant company to pay EUR 4,000 to Mr Scheibner as compensation for the publication in the printed version of Der Standard and EUR 2,000 as compensation for the publication on the website. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimant’s costs. 23. The court, arguing along the same lines as in its judgment of 15 June 2004 (see paragraphs 10-11 above), held that the applicant company had reported on the strictly personal sphere of the claimant’s life in a manner that was likely to undermine him in public. It analysed the contents of the impugned article as alleging that the claimant, Mr Scheibner, who was a married man, had a close relationship with Mrs Klestil-Löffler and therefore described him as an adulterer. Thus, his strictly personal sphere was affected. However, it found that the publication did not amount to defamation within the meaning of Article 111 of the Criminal Code (Strafgesetzbuch). 24. As to the amount of compensation it considered that the insult as regards Mr Scheibner weighed less heavily than as regards the claimants in the first set of proceedings. In sum, compensation awards of EUR 4,000 as regards the publication in the paper version of Der Standard and EUR 2,000 for the publication on the website, which was less widely read, appeared appropriate. 25. The applicant company and Mr Scheibner appealed, whereby the applicant company relied on the same grounds as in its appeal in the previous set of proceedings. 26. On 22 December 2004 the Vienna Court of Appeal dismissed the applicant company’s appeal but partly granted Mr Scheibner’s appeal. It held that the impugned statement also breached Article 6 of the Media Act, since it fulfilled the objective elements of defamation as defined in Article 111 of the Criminal Code. The claimant was accused of adultery, which even in a liberal society was still considered an unlawful and dishonourable act. It considered however, that this had no influence on the amount of compensation to be paid, which was therefore upheld. 27. As to the applicant company’s appeal, the Court of Appeal again confirmed the Regional Court’s reading of the contents of the article. It added that the placement of the article in the domestic politics section and its presentation including the picture of the presidential couple supported this assessment. Furthermore, the appellate court noted that the applicant company had not argued before the Regional Court that the publication was directly related to public life within the meaning of Article 7 § 2 of the Media Act. 28. In any case, Mr Scheibner, though a public figure, had a right to respect for the strictly personal sphere of his life. Rumours about an alleged relationship between him and the wife of the Federal President had no link with his public functions and responsibilities and did therefore not justify the reporting at issue. 29. Once the judgment of the Court of Appeal had become final, Mr Scheibner brought proceedings under the Civil Code (Allgemeines Bürgerliches Gesetzbuch) requesting an injunction ordering the applicant company to refrain from publishing any statement alleging that he had a relationship with Mrs Klestil-Löffler. 30. At the hearing of 22 April 2005 before the Vienna Commercial Court (Handelsgericht), the applicant company entered into a settlement with Mr Scheibner undertaking to refrain from publishing any such statement. The Commercial Court noted that according to constant case-law, a judgment under section 6 of the Media Act had binding effect in subsequent civil proceedings relating to the same facts. It ordered the applicant company to pay Mr Scheibner’s procedural costs. 31. The Commercial Court’s judgment was served on the applicant company’s counsel on 25 May 2005. The applicant company did not appeal. 32. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation” has been defined in Article 111 of the Criminal Code (Strafgesetzbuch), as follows: “(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... (2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... (3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 33. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. In the version in force at the material time, it read as follows: “(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ... (2) The right referred to in paragraph 1 above shall not apply where: (i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies; (ii) the statements published are true and are directly related to public life; (iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or (iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.” | 0 |
train | 001-103548 | ENG | CZE | CHAMBER | 2,011 | CASE OF ANDRLE v. THE CZECH REPUBLIC | 2 | No violation of Art. 14+P1-1 | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant is a Czech national born in 1946 who lives in Vysoké Mýto (the Czech Republic). 6. The applicant was married from 1971 until 1998, when he divorced. On 28 May 1998 the applicant applied for custody of two of his four children, born in 1982 and 1985, maintaining that since August 1997 he and his wife had not lived together and that he cared for the two minor children himself. In a judgment of 16 July 1998 the Ústí nad Orlicí District Court awarded the applicant custody of the two children. 7. On 14 November 2003 the Czech Social Security Administration (Česká správa sociálního zabezpečení) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section 32 of the Pension Insurance Act, which was, in his case, sixty-one years and ten months. 8. The applicant challenged the administrative decision before the Hradec Králové Regional Court (Krajský soud), arguing that given the fact that he had cared for two children, he was entitled to retire at the age of fifty-seven and had therefore reached the pensionable age. 9. On 1 December 2004 the Regional Court stayed the proceedings in the applicant's case pending the outcome of the proceedings before the Constitutional Court (Ústavní soud), which was called upon to review the constitutionality of section 32 of the Pension Insurance Act in another case (no. Pl. ÚS 53/2004) brought before it by the Supreme Administrative Court (Nejvyšší správní soud). The Hradec Králové Regional Court joined the proceedings in that case as an intervening party. 10. In judgment no. Pl. ÚS 53/2004 of 16 October 2007 the Constitutional Court dismissed the Supreme Administrative Court's petition to repeal section 32 of the Pension Insurance Act, finding that it was not discriminatory and was therefore compatible with Article 1 and Article 3 § 1, in conjunction with Article 30 § 1, of the Charter of Fundamental Rights and Freedoms. 11. On 12 December 2007 the Regional Court dismissed the applicant's action, referring to the Constitutional Court's judgment no. Pl. ÚS 53/2004. 12. By a judgment of 13 June 2008 the Supreme Administrative Court dismissed a cassation appeal by the applicant, relying on the aforesaid judgment of the Constitutional Court. 13. Subsequently, the applicant lodged a constitutional appeal in which he alleged, inter alia, a violation of Article 14 of the Convention and Article 1 of Protocol No. 1. 14. On 30 October 2008 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded, emphasising, in particular, the discretion afforded to the legislature to implement preferential treatment, the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued. 15. Article 1 provides that all people are free with equal dignity and equal rights. Their fundamental rights and freedoms are inherent, inalienable, imprescriptible, and not subject to repeal. 16. Under Article 3 everyone is guaranteed the enjoyment of his or her fundamental rights and basic freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership of a national or ethnic minority, property, birth, or other status. 17. Article 30 provides that citizens have the right to adequate material security in old age and during periods of incapacity to work, as well as in the case of the loss of their household provider. 18. Differentiated age limits for men and women for entitlement to State retirement pensions were first introduced by the Social Security Act (no. 55/1956), which became effective on 1 January 1957. In general, the pensionable age for men was set at sixty years, while for women it was set at fifty-five years. 19. The Social Security Act (no. 101/1964), effective from 1 July 1964, specified differentials in female pensionable age based on the number of children women raised. The explanatory report on the bill noted the following: “This differentiated age limit for acquiring the right to retire reflects the different situation in the lives of mothers who, when they took care of children, also carried out duties in the family in addition to their employment duties.” 20. The State Pension Insurance Act (no. 155/1995), effective since 1 January 1996, provides for the basic State pension insurance coverage, laying down the conditions for eligibility for pensions, including retirement pensions, and the methods for calculating and paying out pensions. The pension scheme works on the pay-as-you-earn principle, whereby employees pay contributions from their income, which serve the purpose of financing pensions for today's pensioners from the national budget. Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners. 21. At the relevant time, section 32(1) of the State Pension Insurance Act provided as follows: “(1) The pensionable age is (a) for men, 60 years, (b) for women: 1. 53 years provided they have raised at least five children, 2. 54 years provided they have raised three or four children, 3. 55 years provided they have raised two children, 4. 56 years provided they have raised one child, or 5. 57 years, if the insured persons had attained that age by 31 December 1995.” Section 32(2) provided that for insured persons who reached the abovementioned age limits between 1 January 1996 and 31 December 2006 the pensionable age was to be gradually raised by two months for men and four months for women for each calendar year, even incomplete, between 31 December 1995 and the date of reaching the above-mentioned age limits. Section 32(4) provided at the relevant time: “(4) The requirement for a woman to raise children in order to become entitled to an [earlier] State retirement pension has been satisfied if the woman personally takes care, or has taken care, of children for at least ten years before the children reach the age of majority. However, if a woman starts to raise a child after the child has reached the age of eight years, the requirement of raising children has been met if the woman personally takes care, or has taken care, of the child for at least five years before the child reaches the age of majority; however, the foregoing shall not apply if the woman stopped taking care of the child before the child reached the age of majority.” 22. According to the Government's submissions, women are called upon to prove that they have raised children for the statutory period by completing a statutory declaration appended to their application for the retirement pension. 23. Owing to complex demographic changes, the State pensionable age for all persons has thus been gradually rising. Since 2003 the Government have made efforts to push through two amendments of the State Pension Insurance Act envisaging a gradual equalisation of men's and women's retirement age regardless of the number of children raised. However, owing to difficult political negotiations with certain political parties and trade unions, the only possible solution was to reach a compromise. 24. As a result, the amended Act no. 155/1995, effective from 1 January 2010, provides in section 32 as follows: “(1) The pensionable age is (a) for men, 60 years, (b) for women: 1. 53 years provided they have raised at least five children, 2. 54 years provided they have raised three or four children, 3. 55 years provided they have raised two children, 4. 56 years provided they have raised one child, or 5. 57 years, in the case of insured persons born before 1936. (2) For insured persons born after 1936 and before 1968 the pensionable age is determined according to the table annexed to this Act, which calculates the increased pensionable ages by adding extra months. (3) For insured persons born after 1968 the pensionable age is (a) for men, 65 years, (b) for women: 1. 62 years provided they have raised at least four children, 2. 63 years provided they have raised three children, 3. 64 years provided they have raised two children, or 4. 65 years.” 25. By this judgment, the Plenary of the Constitutional Court rejected the Supreme Administrative Court's petition for the repeal of section 32 of the Pension Insurance Act. It held that a particular legal framework which gave an advantage to one group or category of persons compared to another could not in itself be said to violate the principle of equality, and that the legislature had discretion to implement preferential treatment. The approach at stake was based on objective and reasonable grounds and pursued a legitimate aim. The court came to the conclusion that the proposed repeal would be contrary to the principles of legal certainty and minimal restrictions on human rights as women would lose preferential treatment whereas men would not receive the same benefits. Therefore, the solution to the unequal treatment of men and women required a complex and prudent adjustment of the whole pension scheme. In its observations to the Constitutional Court the Ministry of Labour and Social Affairs submitted that among the European Union Member States a similar provision was effective for a temporary period only in Slovakia and to a limited extent in Slovenia. | 0 |
train | 001-69571 | ENG | NLD | CHAMBER | 2,005 | CASE OF NAKACH v. THE NETHERLANDS | 3 | Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings | David Thór Björgvinsson | 7. The applicant, Mr Bensaid Nakach, is a Moroccan national, who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre “Veldzicht” in Balkbrug, Netherlands; in July 2002 he was transferred to the secure institution “De Kijvelanden” in Poortugaal, near Rotterdam, Netherlands. 8. On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived. 9. On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution. 10. On 10 October 1995 the 's-Hertogenbosch Court of Appeal upheld the judgment of the Regional Court. 11. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996. 12. The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date. 13. The placement order was prolonged for an additional two years in September 1998. 14. On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years. 15. The applicant appealed to the Arnhem Court of Appeal (gerechtshof). 16. A hearing was held on 9 April 2001. The Government state that the registrar (griffier) took notes and that these were kept in the case file. 17. The Court of Appeal gave its decision on 23 April 2001; it found that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety and accordingly upheld the decision of the Breda Regional Court. Summaries of an expert report and of statements made at the hearing by an expert and by the applicant's counsel are contained in this decision; they cover approximately a page and a half. 18. On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April. 19. A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage: “In reply to your request of 28 June last I must inform you that no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal. The reason is that no ordinary remedy lies against the decisions concerned and the workload of the Court of Appeal does not admit of structural activities 'just to fill the archives' (voor het archief). For that reason, also, the decisions in question tend to render the statements made more extensively than would be the case if in fact an official record were prepared (in addition).” 20. A person who has been found guilty of certain serious crimes and who, at the time of committing the offence, suffered from a mental deficiency or derangement may be placed at the Government's disposal if required in the interests of the safety of others or, more generally, in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall be confined in a secure institution in the interests of public safety (Article 37b § 1). 21. According to Article 38d of the Criminal Code, the person concerned shall be placed at the disposal of the Government for an initial period of two years which may be prolonged, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons, or such further extension is necessary for the protection of other persons (Article 38e). 22. A hearing shall be held in public by the review chamber (raadkamer) of the Regional Court (Article 509m § 1). 23. An appeal against the decision of the Regional Court lies to the Arnhem Court of Appeal (Article 509v § 1). 24. The Court of Appeal's decision, which shall contain the specific reasons underlying it, is final; no ordinary legal remedy is available to challenge it (Article 509x § 2). 25. The provisions of the Code of Criminal Procedure prescribing the content of the review chamber's decisions and the official record of its hearings are the following: “1. The decision taken by the review chamber shall be reasoned. If it is laid down that the hearing shall be public, the decision shall be pronounced publicly. 2. The decision shall state the names of the judges of the chamber (college) which gave it and the date on which it was given. It shall be signed by the president and the registrar who attended the hearing. 3. If the president is prevented from signing, another judge of the review chamber shall sign. If the registrar is prevented from signing, this shall be mentioned in the decision. 4. Unless otherwise provided, the decision shall be transmitted to the suspect and other participants in the proceedings without delay. ...” “1. The registrar shall prepare an official record of the hearing by the review chamber, which shall contain the summary content (den zakelijken inhoud) of the statements made and of any further events that have occurred at that hearing. 2. If a suspect, a witness or expert, or a suspect's counsel or a lawyer desires any statement to be recorded in his own words, that shall be done as far a possible in so far as the statement does not exceed reasonable limits. 3. The official record shall be finalised (vastgesteld) by the president or one of the other judges of the review chamber and the registrar [together] and signed as soon as possible after the end of the hearing. Should the registrar be prevented, this shall be done without his co-operation and the fact of his having been thus prevented shall be mentioned at the end of the official record. 4. The official record shall be added to the case file together with the decision and any other documents submitted during the hearing.” 26. In a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, the Supreme Court declared null and void a decision of a trial court because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record. 27. In two other judgments, delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) respectively, decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held. | 1 |
train | 001-60168 | ENG | FRA | CHAMBER | 2,002 | CASE OF FRETTE v. FRANCE | 1 | No violation of Art. 14+8;Violation of Art. 6-1;Costs and expenses partial award | Nicolas Bratza | 9. In October 1991 the applicant made an application for prior authorisation to adopt a child. A social inquiry was opened by the Paris Social Services, Child Welfare and Health Department. On 18 December 1991 the applicant had a first interview with a psychologist from the Department, during which he revealed that he was a homosexual. He submits that during the interview he was strongly urged not to continue with the adoption process. 10. In a decision of 3 May 1993 the Paris Social Services Department rejected the applicant's application for authorisation to adopt. The reasons given for the decision were that the applicant had “no stable maternal role model” to offer and had “difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child”. The decision was taken on the basis of various inquiries leading, among other things, to a social services report of 2 March 1993, which included the following statements: “... Mr Fretté seems to us to be a sensitive, thoughtful man who shows consideration for others. He discusses his emotional life and his homosexuality with a great deal of honesty and simplicity. He spoke to us of a number of relationships which have had a major impact on his life, particularly one with a male friend who has now died. It should be added that he is now the auxiliary guardian of this friend's child. ... His humanistic, altruistic cast of mind prompts him to take an interest in the problems of the Third World. He sponsors two Tibetan children, one of whom is a baby. He is able to talk sensibly and intelligently about the boy over whom he has guardianship. He is not personally responsible for the boy, who is in the care of his grandmother, but he plays a highly active part in his upbringing. His ideas about bringing up children are well thought out and imbued with a spirit of tolerance. Mr Fretté has been thinking about adopting since 1985. He is aware that his homosexuality may be an obstacle to being granted authorisation to adopt because of the prevailing views of society. In his opinion, his choice of emotional and sexual lifestyle has no bearing on his desire to bring up a child. His application is a personal undertaking not a militant gesture. Since 1985 he has met many homosexual men with children. He even once considered having a child with a female friend but the plan came to nothing because of a lack of maturity on both sides. This friend is nonetheless still very interested in Mr Fretté's plan to adopt and has even promised to act as a female role model for the child. Mr Fretté's application to adopt a child is motivated by a desire to provide a child with affection and a proper upbringing. In his view the essential thing is to love and care for a child, adoption, for him, being no more than a social and legal procedure. Mr Fretté has the support of the friends around him. It seems, however, that his family either do not know of his plans or have misgivings about them. His desire for a child is genuine but he has difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child. For example, it was only when we visited his home that he realised how unsuitable his flat is for a child to live in. As a result he began considering the possibility of moving. When questioned as to how he regarded his role in society as a single father he said he did not have an answer. He considers himself capable of managing the day-to-day life of a child and thinks that he will in due course find the answers to the questions about his homosexuality and the absence of an adoptive mother that will occur to the child as he or she grows up. Mr Fretté is perfectly aware of the importance of telling the child about his parentage. He shows understanding towards women who are impelled to abandon their children. He refuses to have any fixed ideas about the characteristics of the child he would like to adopt. Nonetheless, he has been thinking that he would prefer as young a baby as possible and that he may begin searching in Korea or Vietnam. Mr Fretté has undoubted personal qualities and an aptitude for bringing up children. A child would probably be happy with him. The question is whether his particular circumstances as a single homosexual man allow him to be entrusted with a child.” 11. On 21 May 1993 the applicant asked the authorities to reconsider their decision but his application was dismissed by a decision of 15 October 1993 indicating, among other things, that the applicant's “choice of lifestyle” did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home from a family, child-rearing and psychological perspective. 12. On the same day the applicant lodged an application for judicial review of that decision with the administrative court, seeking to have the decisions dismissing his application for authorisation quashed. 13. In a judgment of 25 January 1995 the Paris Administrative Court set aside the decisions refusing the applicant authorisation, citing the following grounds, inter alia: “In dismissing Mr Fretté's application for authorisation to adopt a child, the main reasons given by the authorities were that Mr Fretté had 'no stable maternal role model' to offer and found it difficult 'to envisage the practical consequences of the upheaval occasioned by the arrival of a child'. The first reason is a circumlocution, by which the authorities could only have meant to refer to Mr Fretté's unmarried status, which could be lawfully relied on in support of the impugned decision but, under the provisions of Article 9, paragraph 2, of the decree of 23 August 1985, could not lawfully constitute the sole reason for the decision. Neither is there any evidence in the case file to substantiate the second reason given, which seems in fact to be erroneous in view of the information provided in the reports drawn up by the social services. The reason given for the decision of 15 October 1993, by which the Director of Social Services, Child Welfare and Health dismissed Mr Fretté's appeal and confirmed the initial decision examined above, was Mr Fretté's 'choice of lifestyle'. Through this euphemistically worded reason the authorities were alluding to Mr Fretté's homosexuality. As the authorities themselves acknowledge in their defence pleadings, this aspect of Mr Fretté's personality could only have constituted a reason to refuse authorisation if it had been combined with conduct that was prejudicial to the child's upbringing. The social services report prepared by Mrs S. and Mrs D. credits Mr Fretté with 'undoubted personal qualities and an aptitude for bringing up children', finds that 'a child would probably be happy with him' and only raises a question as to the compatibility of Mr Fretté's adoption plans with the 'particular circumstances' of his being 'a single homosexual man'. The social inquiry conducted by the French Vice-Consul's deputy in London noted Mr Fretté's educational skills, which he shows as much in his private life as in his professional activities. The psychiatrist, Dr D., detected 'no psychological impediment' to Mr Fretté's plan and although the psychologist, Mrs O., recommended that authorisation be refused, she gave no reason for her opinion and drew attention elsewhere in her report to 'Mr Fretté's affective qualities and aptitude for bringing up children and his deep understanding of adoption-related issues'. Whereas the social services reports produced included information, particularly with regard to Mr Fretté's family, which, since they could have no valid bearing on the authorities' decision, infringed his right to respect for his private life, none of the documents included in the case file made it possible to establish or even suggest that Mr Fretté's lifestyle reflected a lack of moral rigour or emotional stability, or a risk that he would abuse the adoption process, or any other conduct indicating that his plan to adopt presented a risk to any child he might adopt. Thus, those who took the contested decisions in the instant case wrongly interpreted the provisions cited above. Mr Fretté's application to have the aforementioned decisions of 3 May and 15 October 1993 set aside is well-founded.” 14. The Paris Social Services appealed against that judgment to the Conseil d'Etat. 15. The Government Commissioner, Mrs C. Maugüe, made her submissions at the hearing of 16 September 1996. She submitted that the Paris Social Services' application to have the contested judgment set aside was well-founded, addressing the court as follows: “The case raises the following question: In spite of Mr F.'s undoubted personal and intellectual qualities, did the authorities have good reason to consider that he did not provide sufficient guarantees to offer a child a home because of his choice of lifestyle? In the light of the information in the case file, this question is elevated to a matter of principle. This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects Mr F. has a genuine aptitude for bringing up children. The only thing that prompted the authorities to refuse authorisation was the fact that Mr F. was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological, child-rearing and family point of view. However, nothing in the case file suggests in any way that Mr F. leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child's interests. Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ... It is certain that a number of factors would tend to indicate that the Paris Social Services made an error in assessing the evidence. The first and undoubtedly the strongest argument is that since the major reform of the laws on adoption introduced by the Act of 11 July 1966, single persons, whether men or women, have been entitled to adopt. ... Deciding ... by judicial interpretation that an unmarried homosexual man does not provide sufficient guarantees from a psychological and family perspective to adopt a child introduces discrimination between adoption candidates on grounds of their choice of private life which was not expressly intended by Parliament. The second argument in favour of the Administrative Court's ruling is that a person's right to lead the sex life of his or her choice should not, of course, be contested. This is one of the key components of the right to respect for private life guaranteed, inter alia, by Article 8 of the European Convention on Human Rights and Article 9 of the Civil Code. There is no longer any discrimination against homosexuality at domestic level ... Pau Court of Appeal, 25 April 1991, no. 91-40734). Conversely, another court found that a father who had 'immoral homosexual relations incompatible with the exercise of parental authority' could not exercise that authority (Rennes Court of Appeal, 27 September 1989, no. 89-48660). Similarly, in a judgment in which it was found that, because of the father's homosexual practices, it would be particularly dangerous for the moral and physical well-being of his children to spend their holidays with him, it was held that there were serious grounds to justify refusing the father that right (First Civil Division of the Court of Cassation (Cass. civ. I), 13 January 1988, no. 86-17784). More recently the Court of Cassation granted a homosexual donor parental authority over a child born by artificial insemination to a mother who was herself involved in a homosexual relationship (Cass. civ. I, 9 March 1994, Mme L. c. M. L.; D 1995.197 note E. Monteiro; D 1995 summary 131, observations by D. Bourgault-Coudeyville). The courts do not therefore presume that because someone is a homosexual, he or she is disqualified from exercising parental rights. The discussion focuses mainly on the child's interests and the dangers that such circumstances may pose to the child's mental health. Lastly, authorisation is merely an administrative decision taken prior to the adoption process. ... 2.2. Nonetheless, I consider, for a number of reasons, that the Paris Social Services did not commit any error in assessing the evidence when it held that Mr F. did not provide the necessary guarantees. A number of factors led me to this conclusion. Firstly, the right of everyone to the sex life of their choice should not be confused with a hypothetical right to have children. ... Secondly, the pertinence of the comparison with the case-law on custody of children and parental authority is clearly limited. The examples cited above relate only to a previously established family tie or one which corresponds to an actual line of descent. It is one thing to preserve a filial tie between a child and parents who are separating or who wish to confirm their links with him or her but another to allow the establishment of a family tie between a child and an adult out of nothing ... Thirdly, the question whether a child is in danger of being psychologically disturbed by his relationship with an adult who cannot offer him or her the reference point of a distinct father and mother, in other words a model of sexual difference, is a very difficult one which divides psychiatrists and psycho-analysts. Adopted children are all the more in need of a stable and fulfilling family environment because they have been deprived of their original family and have already suffered in the past. This makes it all the more important that they do not encounter any further problems within their adopted family. ... There is no agreement on the answer to that question. If there is any consensus it lies instead in the growing awareness that the rights of the child set the limits of the right to have children and that the child's interests cannot always be reconciled with current developments. This being so, I believe that when dealing with such a sensitive question, whose implications are more ethical and sociological than legal, it is up to Parliament to take a stance on what amounts to a choice for society. The courts, for their part, should not be anticipating shifts in public opinion, but responding to them. This brings me to my fourth argument, which is that the question whether one or more homosexuals should be entitled to adopt is not one which Parliament can be said to have determined. ... Fifthly, there should be no underestimating the part that authorisation plays in the adoption procedure. Admittedly, this is only one stage in the adoption process but it is a crucial one because the adoption cannot go ahead without it. ... It should be added, as a concluding remark regarding authorisation, that I am aware that what I propose has the drawback that it appears to encourage candidates for adoption to conceal the truth if they feel that their choice of lifestyle amounts to an absolute impediment to their being granted authorisation. However, there are two reasons why I think that this problem can be overcome. Firstly, the question will not arise very often because, as was mentioned above, the scarcity of children eligible for adoption compared to the demand usually prompts the social services to reject requests from single candidates. Secondly, the aim of the inquiries conducted prior to the granting of authorisation is precisely to ensure that the candidate can offer a child a suitable home and this inevitably means that the experts investigate his or her private life. Although the inquisitorial nature of these inquiries has sometimes been condemned (see for example J. Rubellin-Devichi, Revue française de droit administratif, 1992, pp. 904 et seq.), they do have the merit of ensuring that authorisation is then granted in full knowledge of the facts. My final argument is that if you have any remaining scruples about the fact that in considering the legality of a refusal of authorisation you are ruling on a matter which it is usually for the ordinary courts to decide in their capacity as the judges of matters of personal status, your scruples may be partly allayed by the fact that the position you will be taking will not entirely prevent the ordinary courts from authorising the adoption of a child by a homosexual in certain cases if they consider it compatible with the child's interests. When the new law on adoption was introduced recently, a new Article 353-1 was added to the Civil Code, the second paragraph of which provides that if authorisation is refused or not granted within the statutory time, the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that this is compatible with the child's interests. ... It follows from the foregoing that the Paris Social Services are justified in maintaining that the Paris Administrative Court was wrong to rule in the judgment appealed against that the two impugned decisions should be set aside.” 16. In a judgment of 9 October 1996 the Conseil d'Etat set aside the Administrative Court's judgment and, ruling on the merits, rejected the applicant's application for authorisation to adopt. It decided, inter alia, as follows: “In a decision of 3 May 1993, upheld by a further decision of 15 October 1993 in response to an application for reconsideration, the chairman of the Paris Council ... rejected Mr Fretté's application for authorisation to adopt a child on the ground that although the applicant's choice of lifestyle was to be respected, the type of home that he was likely to offer a child could pose substantial risks to the child's development. From the information in the case file, particularly the evidence gathered when Mr Fretté's application was being considered, it emerges that Mr Fretté, regard being had to his lifestyle and despite his undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a child-rearing, psychological and family perspective – for adopting a child. The Paris Administrative Court was thus wrong, when setting aside the contested decisions, to rely on the argument that, in refusing the authorisation sought by Mr Fretté on the aforementioned ground, the chairman of the Paris Council had applied these provisions incorrectly. However, since the appeal procedure has had the effect of transferring all the issues of fact and law to the Conseil d'Etat, it is for the latter to examine the other submissions made by Mr Fretté before the Paris Administrative Court. ... The grounds given for the contested decisions satisfy the requirements of the law. ...” 17. The relevant provisions of the Civil Code provide as follows: “Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twentyeight years of age.” “Adoption may also be applied for by any person over twenty-eight years of age.” (the age-limit was thirty at the material time, namely prior to the adoption of Law no. 96-604 of 5 July 1996) 18. The Family and Social Welfare Code lays down the rules on the taking of children into State care and the conditions for their adoption. It describes the authorisation procedure as follows: “ ... Children in State care may be adopted by persons given custody of them by the social services wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt by the head of the children's welfare service under the conditions laid down by decree ...” “Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.” 19. Decree no. 85-938 of 23 August 1985 established the arrangements for appraising applications for authorisation to adopt a child in State care as follows: “Any person wishing to obtain the authorisation contemplated in the second paragraph of Article 63 of the Family and Social Welfare Code must submit an application to that end to the head of the children's welfare service of the département in which he or she resides.” “In order to assess the application, the head of the children's welfare service shall conduct all the investigations required to ascertain what kind of home the applicant is likely to offer the children from a psychological, child-rearing and family perspective ...” “Decisions to refuse authorisation must be supported by reasons as laid down in section 3 of the Law of 11 July 1979 cited above. The applicant's age or matrimonial status or the presence of children in his or her household may not constitute the sole reason for a refusal.” “The decision by the head of the children's welfare service shall apply for three years. A further application for authorisation may be made when that period has expired. Further applications shall be assessed under the same procedure. ...” 20. According to data collected by the French authorities, some 11,500 applications for authorisation were made in 1999. About 8,000 applications were examined that year and the usual average of some 10% were rejected. At the time there were around 2,000 children in State care awaiting adoption. In 1999 the authorities issued some 4,000 visas to foreign children following their adoption by persons residing in France. 21. At the material time, Article 55 of the Decree of 30 July 1963 on the organisation and functioning of the Conseil d'Etat required lawyers to be advised at least four days before the sitting if any cases in which they were due to appear were on the list of cases to be heard and to be notified of the issues raised in reports to the Conseil d'Etat. The obligation to notify therefore applied only in respect of lawyers. 22. As regards private individuals, a decision of the Conseil d'Etat of 16 March 1966 (Paisnel, Reports, p. 216) pointed out: “There is no rule stating that appellants must receive [notice of the date on which their case is to be heard]. If they have not appointed a legal representative, it is for them to ask to be notified of the date on which their case is to be heard or to consult the notice boards installed for this purpose at the registry of the Judicial Division. This rule, which provides that the parties are summoned to the hearing only if they have appointed a lawyer, should be seen in the light of the rule laid down in section 67 of the Ordinance of 31 July 1945, under which only members of the Court of Cassation and the Conseil d'Etat Bar (the avocats aux conseils) may plead during hearings before these courts.” 23. Since 1 January 2001 all parties to proceedings before the Conseil d'Etat have been automatically informed of the date of the hearing. As in the past, the lists of cases for hearing are displayed at the Judicial Division secretariat and so are accessible to the public. 24. At the hearing the Government Commissioner speaks after counsel for the opposing parties have addressed the court and so the parties to the case cannot speak after him (see Kress v. France [GC], no. 39594/98, § 48, ECHR 2001-VI). Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner's submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins. 25. By section 45 of the Ordinance of 1945, cases for which it is not compulsory to be represented by a lawyer include applications for judicial review of the decisions of the various administrative authorities. | 1 |
train | 001-102642 | ENG | HUN | COMMITTEE | 2,011 | CASE OF JANOS LAKATOS v. HUNGARY | 4 | Violation of Art. 6-1 | András Sajó;Kristina Pardalos | 4. The applicant was born in 1931 and lives in Miske. 5. On 2 August 1992 two plaintiffs brought an action in trespass against the applicant before the Kalocsa District Court. After several hearings, a judgment was given on 8 September 1994. On 28 February 1995 the Bács-Kiskun County Regional Court quashed this decision and remitted the case. 6. In the resumed proceedings several hearings took place. On 18 December 1998 the District Court delivered a partial judgment. On appeal, on 24 August 1999 the Regional Court suspended the proceedings pending the adjudication of those claims which were unaffected by the partial judgment. 7. On 10 January 2000 the District Court held a hearing. On 2 May 2000 it suspended the proceedings pending the termination, on 7 February 2002, of a related land registry dispute. 8. Upon the resumption of the case on 11 December 2002 another hearing was held and an expert appointed. The expert opinion was submitted on 16 June 2003. Between 8 July 2003 and 14 March 2004 the proceedings were again suspended pending the termination of related administrative proceedings. 9. On 5 July 2004 the District Court adopted a partial judgment concerning damages. On appeal, on 6 January 2005 the Regional Court partly upheld the first instance decision while remitting some claims. 10. On 13 September 2005 the first instance proceedings continued. Another expert was appointed who filed his opinion on 12 October 2005. On 17 November 2005 and 7 February 2006 further hearings took place. 11. On 15 February 2006 the District Court gave judgment, finding partly for the plaintiffs. On appeal, on 22 November 2006 the Regional Court heard the parties and appointed an expert who filed his opinion on 5 January 2007. 12. On 20 November 2007 the Regional Court gave judgment. On 24 June 2009 the Supreme Court dismissed the applicant's petition for review. | 1 |
train | 001-120960 | ENG | ROU | CHAMBER | 2,013 | CASE OF CONSTANTIN TUDOR v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1975. He is currently detained in Rahova Prison. 7. By a final judgment of 28 September 2004 the Court of Cassation sentenced the applicant to twelve years’ imprisonment for human trafficking. 8. On 20 February 2008 the applicant was detained by the Bucharest Police Department after being returned from Turkey, where he had fled in 2002, and started serving his prison sentence. 9. In his initial letter addressed to the Court on 28 April 2009 the applicant expressly stated that his rights guaranteed by Article 3 of the Convention had been breached in so far as, inter alia, he had been quartered (cazat) in Jilava Prison, a penitentiary notorious as a place of torture and physical and mental terror because of inhuman and degrading detention conditions. He further contended that his assertions had already been proved before the Court in the case of Bragadireanu v. Romania, no. 22088/04, 6 December 2007, and that they were supported by successive reports of the European Committee for the Prevention of Torture (CPT). 10. The applicant was detained in Jilava Prison between 10 March and 25 September 2008, as well as between 2 October and 2 December 2008. 11. Between the second part of March and the first part of June 2008 the applicant was detained in cell no. 614 measuring 42.75 sq. m, which he shared with between 19 and 20 other inmates. 12. Between the second part of June and the first part of September 2008 the applicant was detained in cell no. 502 measuring 13.50 sq. m, which he shared with between 3 and 6 other inmates. 13. For the last two days of September 2008, as well as between the second part of November and the first day of December 2008, the applicant was detained in cell no. 611 measuring 42.39 sq. m. The occupancy rate of the cell was 5 inmates for the last two days of September 2008 and between 7 and 10 for the remainder of the period spent by the applicant in Jilava Prison. 14. In respect of the hygiene conditions, the Government submitted that every year the prison administration signed contracts for rodent and pest control with specialised companies. Disinfection of the detention rooms was carried out at least once every three months. Moreover, the quality of the drinking water was examined regularly by the prison administration with the aid of a specialised laboratory. Furthermore, the applicant had been provided with a special food diet approved by the prison doctor, which was prepared and served in accordance with the required hygiene conditions. The food was fresh and of good quality. 15. Since 2006 significant rehabilitation work had been carried out by the prison authorities. The heating network, the sewerage and the water supply systems had been repaired. Some sections of the prison and detention rooms had also been modernised. 16. On 23 September 2000 and 9 September 2002 the applicant was hospitalised in the psychiatric unit of the Săpunari Hospital and was diagnosed with organic personality syndrome. He was prescribed treatment for his condition. 17. On an unspecified date in 2006 the applicant was diagnosed with spinal disc hernia. The examining doctor recommended that the applicant undergo surgery. 18. Between 13 March and 2 December 2008 the applicant was subjected to several other medical examinations – both in prison and in civilian hospitals – that confirmed the above-mentioned diagnoses, and he was prescribed treatment with various medicines. The prison authorities provided him with the prescribed treatment for his organic personality syndrome and his spinal disc hernia. 19. On 21 August 2008 the applicant filed a request with the prison doctor to be allowed to be examined in connection with his spinal disc hernia at the A.D. private clinic at his own expense. 20. On 1 September 2008 the doctor, M.M., granted the applicant’s request and indicated that he was scheduled for a nuclear magnetic resonance (NMR) scan at the E. private clinic. 21. On an unspecified date the applicant was taken to the E. clinic for the NMR, but the scan was not carried out because of his excessive weight, which could have damaged the machine. 22. On 22 September 2008 the applicant was taken to the H. private clinic, where the NMR scan was carried out free of charge. 23. On 6 October 2008 the applicant was examined in respect of his spinal disc hernia by doctor G.V., a specialist neurosurgeon from Bagdasar Hospital in Bucharest, and was recommended treatment with Tramadol, Famotidina and Movalis. An appointment was made for a re-examination of his condition. 24. On 31 October 2008 doctor G.V. re-examined the applicant in respect of his spinal disc hernia. He recommended that the treatment with Tramadol and Famotidina be continued and that the applicant be monitored in the infirmary prior to his surgery. 25. According to information submitted by the Government on 12 December 2008, the applicant refused to be admitted to the Rahova prison infirmary and on 15 December 2008 the Bagdasar Hospital informed the prison authorities by telephone that the applicant’s surgery had been temporarily postponed. 26. On 19 December 2008 the applicant’s surgery was re-scheduled by doctor G.V. for 9 March 2009. 27. According to the information submitted by the Government, on an unspecified date the applicant informed the prison doctor that his family had contacted doctor G.V. and asked him to re-schedule his surgery for 24 June 2009. The applicant’s statement was confirmed by doctor G.V. by telephone. 28. On 16 April 2009 the applicant was re-examined by doctor G.V. in respect of his spinal disc hernia. He was recommended treatment for twenty-one days and his surgery was scheduled for 24 June 2009. 29. According to the applicant’s medical file, his medical condition continued to be examined and monitored by specialist doctors in private and prison hospitals. 30. On 29 June 2009 the applicant was taken to Rahova Prison Hospital for a neurosurgical examination. However, the neurosurgeon was absent and his examination had to be re-scheduled for a later date. 31. On 14 July 2009 the applicant was examined by doctor C.S., a specialist neurologist working for the Bucharest Prison Hospital. According to her report, the applicant was suffering from lumbar pain. She prescribed treatment and recommended an urgent neurosurgical examination in respect of his condition. 32. Between 13 August and 14 December 2009 the applicant’s medical condition was regularly examined in both prison and private hospitals. On 24 August and 30 September 2009 the medical reports produced in respect of his conditions recorded that the applicant’s general state of health was good. 33. On 14 January 2010 the applicant was temporarily released from prison, as required by the final judgment of 11 December 2008 (see paragraph 43, below), and in March 2010 he was operated on for spinal disc hernia. 34. On 15 April 2010 the applicant returned to prison after his spinal disc hernia surgery. 35. On 26 April 2010 the Mina Minovici Forensic Medical Institute produced a forensic report in respect of the applicant’s medical condition. It concluded that after the spinal disc hernia the applicant needed physiotherapy for his recovery, which could be provided in prison hospitals. 36. Between April 2010 and 16 December 2010 the applicant’s medical conditions were monitored regularly by prison hospitals. According to the medical records drawn up on 16 December 2010 by the Rahova Prison doctor, his general medical condition was good. 37. On 3 August 2010 the applicant refused to be hospitalised in Rahova Prison Hospital and he requested to be taken to civilian hospitals for his post-surgical recovery treatment. 38. In a letter of 13 January 2011 the Rahova Prison authorities informed the Government that the applicant had been provided free of charge with the medical treatment prescribed by doctors for the entire time he was detained in that prison. 39. On 13 October 2008 the applicant lodged a complaint with the judge responsible for the execution of prison sentences in respect of the conditions of detention in Jilava Prison and a lack of adequate medical care. The applicant also claimed compensation. He complained of inhuman and degrading treatment because: (i) the prison cells were infested with vermin; (ii) the quality of the food and drinking water was poor; (iii) proper facilities for personal and food hygiene were lacking; and (iv) the cells lacked furniture and the general living conditions of the detainees were poor. On 15 October 2010, at the hearing before the judge responsible for the execution of prison sentences, the applicant stated that his complaint concerned a lack of medical care for his spinal disc hernia and insufficient medical treatment for his organic personality syndrome. 40. By a decision of 23 October 2008 the judge responsible for the execution of sentences dismissed the applicant’s complaint. The judge held that the Jilava Prison authorities had taken the necessary steps to combat the vermin infestation of the cells as they had signed pest control contracts with a number of companies and the cells were disinfected at least once every three months. Moreover, the judge held that the applicant’s complaints concerning the poor quality of the food and drinking water and the lack of food and personal hygiene facilities were unfounded, as: (i) the food at the prison was prepared and stored on the basis of guidelines set by the Ministry of Justice; (ii) the quality of the drinking water had been found to comply with legal requirements according to an expert report of the Apa Nova water testing laboratory; (iii) the applicant had access to the prison facilities necessary to ensure his personal hygiene; and (iv) he was under an obligation to clean and air his room in accordance with the daily schedule for detainees. The judge also held that there was no evidence that the general living conditions for detainees as provided for in Law No. 275/2006 had not been met in the applicant’s case. Finally, the judge held that the applicant was being provided with adequate medical care. He was kept under medical surveillance, was prescribed the medical treatment that the doctors considered appropriate for his medical condition and, in addition, his request to be treated at A.D.’s natural private clinic at his own expense had been examined according to the relevant legal provisions. The judge also rejected the applicant’s claim for compensation, finding that the applicant could not bring a claim for compensation on the basis of the procedure provided for by Law No. 275/2006 and that he therefore had to bring separate proceedings seeking compensation. The applicant appealed against the judge’s decision. 41. On an unspecified date in 2008 the applicant brought proceedings in the Bucharest County Court seeking temporary release from prison on medical grounds. The domestic court ordered an expert forensic report in respect of the applicant’s medical condition. 42. According to the expert forensic report produced by the Mina Minovici Medical Forensic Institute on 28 November 2008, the applicant was suffering from, inter alia, a spinal disc hernia which required surgery and specialised post-surgery recovery. Consequently, the forensic expert report recommended the discontinuance of the applicant’s prison sentence for three months on the ground that the applicant’s spinal disc hernia could not be operated on in a prison hospital. 43. By a final judgment of 11 December 2008 the Bucharest County Court allowed the applicant’s action seeking his temporary release from prison on medical grounds and ordered his immediate release. 44. On 12 December 2008 the Rahova Prison authorities informed the Bucharest District Court that the applicant could not be released as the Bucharest Court of Appeal had issued a separate arrest warrant in his name on 17 December 2005 in a separate set of proceedings concerning human trafficking. 45. On 19 December 2008 the Bucharest County Court informed the Rahova Prison authorities that the applicant’s pre-trial detention on the basis of the arrest warrant of 17 December 2005 had been extended by an interlocutory judgment of 18 December 2008. It does not appear from the evidence in the file that the applicant appealed against the interlocutory judgment of 18 December 2008. 46. By a final judgment of 14 January 2009 the Bucharest District Court dismissed the applicant’s appeal against the decision of the judge responsible for the execution of sentences dated 23 October 2008, upholding the decision and finding that there was no evidence that the applicant’s rights as a detainee had been breached. 47. On 19 February 2009 the applicant was subjected to a psychiatric evaluation in the Jilava Prison Hospital. The medical report confirmed that the applicant’s organic personality syndrome had improved. 48. By final interlocutory judgments of 13 March, 29 May, 3 June, 29 July, 24 August, 12 November and 15 December 2009 the Bucharest Court of Appeal dismissed the applicant’s actions seeking the discontinuance of the pre-trial detention ordered against him on 17 December 2005. By a final interlocutory judgment of 29 May 2009 the Bucharest Court of Appeal also dismissed the applicant’s request for the suspension of the proceedings on medical grounds. Neither of the parties has provided the Court with the reasoning part of the interlocutory judgments delivered by the Bucharest Court of Appeal. 49. On 13 January 2010 the Bucharest Court of Appeal informed the Rahova Prison authorities that following its interlocutory judgment delivered on the same day, the applicant’s pre-trial detention ordered on the basis of the arrest warrant issued on 17 December 2005 had been revoked and the applicant had been placed under an obligation not to leave town. 50. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Law no. 275/2006, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 21-23, 29 April 2008); Gagiu v. Romania (no. 63258/00, § 42, 24 February 2009); and Măciucă v. Romania (no. 25763/03, § 14, 26 May 2009). 51. Excerpts from the relevant parts of the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) on prison conditions are given in the case of Bragadireanu v. Romania ( no. 22088/04, §§ 73-75, 6 December 2007). 52. The relevant parts of the report of the Romanian Helsinki Committee of 12 June 2008 in respect of the detention conditions in Jilava Prison read as follows: “... the basement of the old part of the prison building was completely flooded with waste water ... Consequently, rats and cockroaches (and bed bugs according to some detainees) have infested the cells in that part of the building. Moreover, most cells were also infested with lice, mainly due to worn out bed mattresses. No delousing operation could be effective as long as the mattresses were not replaced ... The prison management claimed it had engaged several pest control companies, which all gave up after taking note of the situation in the prison. Another notorious problem was the extremely poor water quality (muddy and filled with impurities) - unfit for drinking and risky even for washing ... In terms of detention space, the total area of detention space was 3034.81 sq. m, while the population was 1460, meaning 2.08 sq. m of available detention space per detainee, half of the minimum norm recommended by the CPT ... The kitchen area was totally unhygienic and the food quality was poor ...” | 1 |
train | 001-57619 | ENG | GBR | CHAMBER | 1,989 | CASE OF SOERING v. THE UNITED KINGDOM | 2 | Violation of Art. 3 (possible);No violation of Art. 6-3-c (possible);No violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo;J.A. Carrillo Salcedo;N. Valticos | 11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia. 12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicant’s girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud. 13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriff’s Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill them. They rented a car in Charlottesville and travelled to Washington where they set up an alibi. The applicant then went to the parents’ house, discussed the relationship with them and, when they told him that they would do anything to prevent it, a row developed during which he killed them with a knife. On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each. 14. On 11 August 1986 the Government of the United States of America requested the applicant’s and Miss Haysom’s extradition under the terms of the Extradition Treaty of 1972 between the United States and the United Kingdom (see paragraph 30 below). On 12 September a Magistrate at Bow Street Magistrates’ Court was required by the Secretary of State for Home Affairs to issue a warrant for the applicant’s arrest under the provisions of section 8 of the Extradition Act 1870 (see paragraph 32 below). The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after serving a prison sentence for cheque fraud. 15. On 29 October 1986 the British Embassy in Washington addressed a request to the United States authorities in the following terms: "Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed." 16. On 30 December 1986 the applicant was interviewed in prison by a German prosecutor (Staatsanwalt) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as having said, inter alia, that "he had never had the intention of killing Mr and Mrs Haysom and ... he could only remember having inflicted wounds at the neck on Mr and Mrs Haysom which must have had something to do with their dying later"; and that in the immediately preceding days "there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth’s parents". The prosecutor also referred to documents which had been put at his disposal, for example the statements made by the applicant to the American police investigator, the autopsy reports and two psychiatric reports on the applicant (see paragraph 21 below). On 11 February 1987 the local court in Bonn issued a warrant for the applicant’s arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances. 17. In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr James W. Updike Jr) stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested the applicant’s extradition to the United States in preference to the Federal Republic of Germany. 18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6 October to 90 years’ imprisonment (45 years on each count of murder). 19. On 20 May 1987 the United Kingdom Government informed the Federal Republic of Germany that the United States had earlier "submitted a request, supported by prima facie evidence, for the extradition of Mr Soering". The United Kingdom Government notified the Federal RepublicUnited States request". They further indicated that they had sought an assurance from the United States authorities on the question of the death penalty and that "in the event that the court commits Mr Soering, his surrender to the United States authorities would be subject to the receipt of satisfactory assurances on this matter". 20. On 1 June 1987 Mr Updike swore an affidavit in his capacity as Attorney for Bedford County, in which he certified as follows: "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out." This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured. During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning to provide any further assurances and intended to seek the death penalty in Mr Soering’s case because the evidence, in his determination, supported such action. 21. On 16 June 1987 at the Bow Street Magistrates’ Court committal proceedings took place before the Chief Stipendiary Magistrate. The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular, evidence was given of the applicant’s own admissions as recorded in the affidavit of the Bedford County police investigator (see paragraph 13 above). On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist (report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman. The psychiatric report concluded: "There existed between Miss Haysom and Soering a ‘folie à deux’, in which the most disturbed partner was Miss Haysom. ... At the time of the offence, it is my opinion that Jens Soering was suffering from [such] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts. The psychiatric syndrome referred to as ‘folie à deux’ is a well-recognised state of mind where one partner is suggestible to the extent that he or she believes in the psychotic delusions of the other. The degree of disturbance of Miss Haysom borders on the psychotic and, over the course of many months, she was able to persuade Soering that he might have to kill her parents for she and him to survive as a couple. ... Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss Haysom’s view of her life and the influence of her parents. ... In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an abnormality of mind which, in this country, would constitute a defence of ‘not guilty to murder but guilty of manslaughter’." Dr Bullard’s conclusions were substantially the same as those contained in an earlier psychiatric report (dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital), which was not however put before the Magistrates’ Court. The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of State’s order for his return to the United States. 22. On 29 June 1987 Mr Soering applied to the Divisional Court for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review. On 11 December both applications were refused by the Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson). In support of his application for leave to apply for judicial review, Mr Soering had submitted that the assurance received from the United States authorities was so worthless that no reasonable Secretary of State could regard it as satisfactory under Article IV of the Extradition Treaty between the United Kingdom and the United States (see paragraph 36 below). In his judgment Lord Justice Lloyd agreed that "the assurance leaves something to be desired": "Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That must presumably mean an assurance by or on behalf of the Executive Branch of Government, which in this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution." Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd stated: "The Secretary of State has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for Soering’s surrender. Other factors may well intervene between now and then. This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made." As a supplementary reason, he added: "Secondly, even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the Wednesbury sense, see paragraph 35 below.) 23. On 30 June 1988 the House of Lords rejected the applicant’s petition for leave to appeal against the decision of the Divisional Court. 24. On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his discretion not to make an order for the applicant’s surrender under section 11 of the Extradition Act 1870 (see paragraph 34 below). This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicant’s surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below). 25. On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early November 1988 under the special regime applied to suicide-risk prisoners. According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh), the applicant’s dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrist’s report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life. 26. By a declaration dated 20 March 1989 submitted to this Court, the applicant stated that should the United Kingdom Government require that he be deported to the Federal Republic of Germany he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect. 27. In England murder is defined as the unlawful killing of a human being with malice aforethought. The penalty is life imprisonment. The death penalty cannot be imposed for murder (Murder (Abolition of the Death Penalty) Act 1965, section 1). Section 2 of the Homicide Act 1957 provides that where a person kills another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts in doing the killing. A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter. 28. English courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings. Consequently, neither the applicant, as a German citizen, nor Elizabeth Haysom, a Canadian citizen, was or is amenable to criminal trial in the United Kingdom. 29. The relevant general law on extradition is contained in the Extradition Acts 1870-1935. 30. The extradition arrangements between the United Kingdom and the United States of America are governed by the Extradition Treaty signed by the two Governments on 8 June 1972, a Supplementary Treaty signed on 25 June 1982, and an Exchange of Notes dated 19 and 20 August 1986 amending the Supplementary Treaty. These arrangements have been incorporated into the law of the United Kingdom by Orders in Council (the United States of America (Extradition) Order 1976, S.I. 1976/2144 and the United States of America (Extradition) (Amendment) Order 1986, S.I. 1986/2020). By virtue of Article I of the Extradition Treaty, "each Contracting Party undertakes to extradite to the other, in the circumstances and subject to the conditions specified in this Treaty, any person found in its territory who has been accused or convicted of any offence [specified in the Treaty and including murder], committed within the jurisdiction of the other Party". 31. Extradition between the United Kingdom and the Federal Republic of Germany is governed by the Treaty of 14 May 1872 between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals, as reapplied with amendments by an Agreement signed at Bonn on 23 February 1960 and as further amended by an Exchange of Notes dated 25 and 27 September 1978. These agreements have been incorporated into the law of the United Kingdom by Orders in Council (the Federal Republic of Germany (Extradition) Order 1960, S.I. 1960/1375 and the Federal Republic of Germany (Extradition) (Amendment) Order 1978, S.I. 1978/1403). 32. After receipt of an extradition request, the Secretary of State may, by order, require a magistrate to issue a warrant for the arrest of the fugitive criminal (Extradition Act 1870, sections 7 and 8). Extradition proceedings in the United Kingdom consist in an extradition hearing before a magistrate. Section 10 of the Extradition Act 1870 provides that if "such evidence is produced as (subject to the provisions of this Act) would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged". A magistrate must be satisfied that there is sufficient evidence to put the accused on trial; before committing him a prima facie case must be made out against him. "The test is whether, if the evidence before the magistrate stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty" (Schtraks v. Government of Israel [1964] Appeal Cases 556). 33. Section 11 of the Extradition Act 1870 provides that decisions taken in committal proceedings may be challenged by way of application for habeas corpus. In practice, such application is made to a Divisional Court and, with leave, to the House of Lords. Habeas corpus proceedings are primarily concerned with checking that the magistrate had jurisdiction to hear the case; that there was evidence before him which could justify the committal; that the offence is an extradition crime which is not of a political character; and that there is no bar on other grounds to surrender. Section 12 of the 1870 Act provides for the release of a prisoner, if not surrendered, at the conclusion of such proceedings or within two months of committal unless sufficient cause is shown to the contrary. 34. Furthermore, under section 11 of the 1870 Act the Secretary of State enjoys a discretion not to sign the surrender warrant (Atkinson v. United States [1971] Appeal Cases 197). This discretion may override a decision of the courts that a fugitive should be surrendered, and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of State for that purpose. In considering whether to order the fugitive’s surrender, the Secretary of State is bound to take account of fresh evidence which was not before the magistrate (Schtraks v. Government of Israel, loc. cit.). 35. In addition, it is open to the prisoner to challenge both the decision of the Secretary of State rejecting his petition and the decision to sign the warrant in judicial review proceedings. In such proceedings the court may review the exercise of the Secretary of State’s discretion on the basis that it is tainted with illegality, irrationality or procedural impropriety (Council of Civil Service Unions and Others v. Minister for the Civil Service [1984] 3 All England Law Reports 935). Irrationality is determined on the basis of the administrative-law principles set out in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223 (the so-called "Wednesbury principles" of reasonableness). The test in an extradition case would be that no reasonable Secretary of State could have made an order for return in the circumstances. As the judgment of Lord Justice Lloyd in the Divisional Court in the present case shows (see paragraph 22 above), the reliance placed by the Secretary of State on any assurance given by the requesting State may be tested to determine whether such reliance is within the confines of "reasonableness". In R v. Home Secretary, ex parte Bugdaycay [1987] 1 All England Law Reports 940 at 952, a House of Lords case concerning a refusal to grant asylum, Lord Bridge, while acknowledging the limitations of the Wednesbury principles, explained that the courts will apply them extremely strictly against the Secretary of State in a case in which the life of the applicant is at risk: "Within those limitations the court must, I think, be entitled to subject an administrative decision to the most rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and, when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny." Lord Templeman added (at page 956): "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision-making process." However, the courts will not review any decision of the Secretary of State by reason of the fact only that he failed to consider whether or not there was a breach of the European Convention on Human Rights (R v. Secretary of State, ex parte Kirkwood [1984] 1 Weekly Law Reports 913). In addition, the courts have no jurisdiction to issue interim injunctions against the Crown in judicial review proceedings (Kirkwood, ibid., and R v. Secretary of State for Transport, ex parte Factortame Ltd and Others, The Times, 19 May 1989). 36. There is no provision in the Extradition Acts relating to the death penalty, but Article IV of the United Kingdom-United States Treaty provides: "If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out." 37. In the case of a fugitive requested by the United States who faces a charge carrying the death penalty, it is the Secretary of State’s practice, pursuant to Article IV of the United Kingdom-United States Extradition Treaty, to accept an assurance from the prosecuting authorities of the relevant State that a representation will be made to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should be neither imposed no carried out. This practice has been described by Mr David Mellor, then Minister of State at the Home Office, in the following terms: "The written undertakings about the death penalty that the Secretary of State obtains from the Federal authorities amount to an undertaking that the views of the United Kingdom will be represented to the judge. At the time of sentencing he will be informed that the United Kingdom does not wish the death penalty to be imposed or carried out. That means that the United Kingdom authorities render up a fugitive or are prepared to send a citizen to face an American court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases. It would be a fundamental blow to the extradition arrangements between our two countries if the death penalty were carried out on an individual who had been returned under those circumstances." (Hansard, 10 March 1987, col. 955) There has, however, never been a case in which the effectiveness of such an undertaking has been tested. 38. Concurrent requests for extradition in respect of the same crime from two different States are not a common occurrence. If both requests are received at the same time, the Secretary of State decides which request is to be proceeded with, having regard to all the facts of the case, including the nationality of the fugitive and the place of commission of the offence. In this respect Article X of the Extradition Treaty between the United Kingdom and the United States provides as follows: "If the extradition of a person is requested concurrently by one of the Contracting Parties and by another State or States, either for the same offence or for different offences, the requested Party shall make its decision, in so far as its law allows, having regard to all the circumstances, including the provisions in this regard in any Agreements in force between the requested Party and the requesting States, the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person sought and the possibility of subsequent extradition to another State." 39. The relevant definition and classification of murder and sentencing for murder are governed by the Code of Virginia of 1950, as amended, and the decided cases in the State and Federal courts. 40. Section 18.2-31 of the Virginia Code provides that eight types of homicide constitute capital murder, punishable as a Class 1 felony, including "the wilful, deliberate and premeditated killing of more than one person as a part of the same act or transaction" (sub-section (g)). The punishment for a Class 1 felony is "death or imprisonment for life" (Virginia Code, section 18.2-10(a)). Except in the case of murder for hire, only the "triggerman", that is the actual perpetrator of the killing, may be charged with capital murder (Johnston v. Commonwealth, 220 Virginia Reports (Va.) 146, 255 South Eastern Reporter, Second Series (S.E.2d) 525 (1979)). Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment (Virginia Code, sections 18.2-10(b), (c) and 18.2-32). 41. In most felony trials, including trials for capital murder, the defendant is guaranteed trial by jury. The defendant may waive this right but does not often do so. 42. The sentencing procedure in a capital murder case in Virginia is a separate proceeding from the determination of guilt. Following a determination of guilt of capital murder, the same jury, or judge sitting without a jury, will forthwith proceed to hear evidence regarding punishment. All relevant evidence concerning the offence and the defendant is admissible. Evidence in mitigation is subject to almost no limitation, while evidence of aggravation is restricted by statute (Virginia Code, section 19.2-264.4). 43. Unless the prosecution proves beyond a reasonable doubt the existence of at least one of two statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a death sentence. "Future dangerousness" exists where there is a probability that the defendant would commit "criminal acts of violence" in the future such as would constitute a "continuing serious threat to society" (Virginia Code, section 19.2-264.2). "Vileness" exists when the crime was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" (Virginia Code, ibid.). The words "depravity of mind" mean "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation". The words "aggravated battery" mean a battery which, "qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder" (Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), certiorari denied, 441 United States Supreme Court Reports (U.S.) 967 (1979)). Proof of multiple wounds sustained by the victim, particularly a neck wound, which even considered alone, constituted an aggravated battery in the light of the savage, methodical manner in which it was inflicted, leaving the victim to suffer an interval of agony awaiting death, has been held to satisfy the test of "vileness" under this section (Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807, certiorari denied, 106 Supreme Court Reporter (S.Ct.) 339, 88 United States Supreme Court Reports, Lawyers’ Edition, Second Series (L.Ed.2d) 324 (1985)). 44. The imposition of the death penalty on a young person who has reached the age of majority - which is 18 years (Virginia Code, section 1.13.42) - is not precluded under Virginia law. Age is a fact to be weighed by the jury (Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, certiorari denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)). 45. Facts in mitigation are specified by statute as including but not being limited to the following: "(i) the defendant has no significant history of prior criminal activity, or (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, or (iii) the victim was a participant in the defendant’s conduct or consented to the act, or (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, or (v) the age of the defendant at the time of the commission of the capital offence" (Virginia Code, section 19.2-264.4B). 46. In a case of trial by jury, the jury in a capital murder case has the duty to consider all evidence relevant to sentencing, both favourable and unfavourable, before fixing punishment. In particular, a jury may sentence a defendant to death only after having considered the evidence in mitigation of the offence (Watkins v. Commonwealth, 229 Va. 469, 331 S.E.2d 422 (1985), certiorari denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)). Furthermore, unless the jury is unanimous the sentence cannot be death but must be life imprisonment (Virginia Code, section 19.2-264.4). Even if one or more of the statutory aggravating circumstances are shown, the sentencer still remains at liberty to fix a life sentence instead of death in the light of the mitigating circumstances and even for no reason other than mercy (Smith v. Commonwealth, loc. cit.). 47. Following a sentence of death, the trial judge must order the preparation of an investigative report detailing the defendant’s history and "any and all other relevant facts, to the end that the court may be fully advised as to whether the penalty of death is appropriate and just"; after consideration of the report, and upon good cause shown, the judge may set aside the sentence of death and impose a life sentence (Virginia Code, section 19.2-264.5). 48. Following a moratorium consequent upon a decision of the United States Supreme Court (Furman v. Georgia, 92 S.Ct. 2726 (1972)), imposition of the death penalty was resumed in Virginia in 1977, since which date seven persons have been executed. The means of execution used is electrocution. The Virginia death penalty statutory scheme, including the provision on mandatory review of sentence (see paragraph 52 below), has been judicially determined to be constitutional. It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer’s discretion (Smith v. Commonwealth, loc. cit.; Turnver v. Bass, 753 Federal Reporter, Second Series (F.2d) 342 (4th Circuit, 1985); Briley v. Bass, 750 F.2d 1238 (4th Circuit, 1984)). The death penalty under the Virginia capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection (Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), certiorari denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980)). The Supreme Court of Virginia rejected the submission that death by electrocution would cause "the needless imposition of pain before death and emotional suffering while awaiting execution of sentence" (ibid.). 49. The law of Virginia generally does not recognise a defence of diminished capacity (Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985)). 50. A plea of insanity at the time of the offence is recognised as a defence in Virginia and, if successful, is a bar to conviction. Such a plea will apply where the defendant knows that the act is wrong but is driven by an irresistible impulse, induced by some mental disease affecting the volitive powers, to commit it (Thompson v. Commonwealth, 193 Va. 704, 70 S.E.2d 284 (1952) and Godley v. Commonwealth, 2 Virginia Court of Appeals Reports (Va. App.) 249 (1986)) or where he does not understand the nature, character and consequences of his act or is unable to distinguish right from wrong (Price v. Commonwealth, 228 Va. 452, 323 S.E.2d 106 (1984)). Where no insanity defence is interposed, the defendant’s mental condition is only relevant at the guilt stage in so far as it might be probative of a fact in issue, for example premeditation at the time of the killing (Le Vasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644 (1983), certiorari denied, 464 U.S. 1063, 104 S.Ct 744, 79 L.Ed.2d 202 (1984)). 51. In a capital murder trial, the defendant’s mental condition at the time of the offence, including any level of mental illness, may be pleaded as a mitigating factor at the sentencing stage. Evidence on this may include, but is not limited to, showing that the defendant was under the influence of extreme mental or emotional disturbance or that at the time of the offence his capacity to appreciate the criminality of his conduct was significantly impaired (Virginia Code, section 19.2-264.4B - see paragraph 45 above). Additionally, indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history, character and mental condition with a view to establishing factors in mitigation (Virginia Code, section 19.2-264.3:1). Upon presentation of evidence of the defendant’s mental state, the sentencer may elect to impose life imprisonment rather than the death penalty. 52. The Supreme Court of Virginia reviews automatically every case in which a capital sentence has been passed, regardless of the plea entered by the defendant at his trial. In addition to consideration of "any errors in the trial" alleged by the defendant on appeal, the Supreme Court reviews the death sentence to determine whether it was imposed "under the influence of passion, prejudice or any other arbitrary factor" and whether it is excessive or disproportionate "to the penalty imposed in similar cases" (Virginia Code, section 17-110.1). This automatic direct appeal is governed by the Rules of the Supreme Court of Virginia and encompasses various time-limits for the filing of briefs. In addition, precedence is given to the review of sentences of death before any other case (Rule 5.23; see also Virginia Code, section 17-110.2). Normally the time taken by this appeal does not exceed six months. After this appeal process is completed, the sentence of death will be executed unless a stay of execution is entered. As a practical matter, a stay will be entered when the prisoner initiates further proceedings. There has apparently been only one case since 1977 where the Virginia Supreme Court has itself reduced a death sentence to life imprisonment. 53. The prisoner may apply to the United States Supreme Court for certiorari review of the decision of the Supreme Court of Virginia. If unsuccessful, he may begin collateral attacks upon the conviction and sentence in habeas corpus proceedings in both State and Federal courts. The prisoner may file a habeas corpus petition either in the Supreme Court of Virginia or in the trial court, with appeal to the Supreme Court of Virginia. Thereafter he may once more apply to the United States Supreme Court for certiorari review of the State’s habeas corpus decision. He may then file a petition for a writ of habeas corpus in the Federal District Court. The decision of the District Court may be appealed to the Federal Circuit Court of Appeals, followed, if no relief is obtained, by a petition for certiorari review in the United States Supreme Court. At each stage of his collateral attacks, the prisoner may seek a stay of execution pending final determination of his applications. 54. The Virginia and Federal statutes and rules of court set time-limits for the presentation of appeals following conviction or appeals against the decisions in habeas corpus proceedings. There are, however, no time-limits for filing the initial State and Federal habeas corpus petitions. 55. The grounds which may be presented and argued on appeal and in habeas corpus proceedings are restricted by the "contemporaneous objections rule" to those which have been raised in the course of the trial (see Rule 5.25 of the Rules of the Supreme Court of Virginia). The rule is based on the principle that the trial itself is the "main event", so that the real issues between the parties should be canvassed and determined at the trial and not on appeal or in any subsequent review proceedings. It was adopted to prevent the setting of traps for trial courts (Keeney v. Commonwealth, 147 Va. 678, 137 South Eastern Reporter (S.E.) 478 (1927)), and so that the trial judge will be given the opportunity to rule upon the issues intelligently and unnecessary appeals, reversals and mistrials will be avoided (Woodson v. Commonwealth, 211 Va. 285, 176 S.E.2d 818 (1970), certiorari denied, 401 U.S. 959 (1971)). The rule applies equally in capital cases and is recognised by the Federal courts (see Briley v. Bass, 584 Federal Supplement (F. Supp.) 807 (Eastern District Virginia), aff’d, 742 F.2d 155 (4th Circuit 1984)). By way of exception to the rule, errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice or where good cause is shown. This exception has been applied by the Supreme Court of Virginia to overturn a capital murder conviction (Ball v. Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981)). In death penalty cases, the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion, prejudice or other arbitrary factor (see paragraph 52 above) is reviewed without regard to whether objection was made at trial (see Briley v. Bass, loc. cit.). 56. The average time between trial and execution in Virginia, calculated on the basis of the seven executions which have taken place since 1977, is six to eight years. The delays are primarily due to a strategy by convicted prisoners to prolong the appeal proceedings as much as possible. The United States Supreme Court has not as yet considered or ruled on the "death row phenomenon" and in particular whether it falls foul of the prohibition of "cruel and unusual punishment" under the Eighth Amendment to the Constitution of the United States. 57. All prisoners who have been sentenced to death have individual lawyers to represent them, whether privately recruited or court-appointed. On the other hand, there is no statutory provision expressly mandating legal assistance to be made available to the indigent prisoner to file habeas corpus petitions. However, it has recently been affirmed by a United States Court of Appeal that the Commonwealth of Virginia is required to provide indigent prisoners who have been sentenced to death with the assistance of lawyers to pursue challenges to their death sentences in State habeas corpus actions (Giarratano v. Murray, 847 F.2d 1118 (4th Circuit 1988) (en banc) - case currently pending before the United States Supreme Court). In Federal habeas corpus and certiorari proceedings case-law does not impose the same obligation (ibid., p. 1122, column 1), for the reason that the Federal courts would have available the appellate briefs, a transcript and State court opinion (in certiorari proceedings) and the briefs of counsel, a transcript and opinion (in habeas corpus proceedings). Virginia inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys. The institutional attorneys are available to assist inmates in "any legal matter relating to their incarceration" (Virginia Code, section 53.1-40), including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file. A prisoner is not obliged to proceed with counsel, and he may litigate in both State and Federal courts pro se. However, no Virginia prisoner under sentence of death in contemporary times has ever been unrepresented during his trial, appeal or habeas corpus proceedings. Nor has any such prisoner faced execution without counsel. 58. A Commonwealth’s Attorney for each county in Virginia is elected every four years (Article VII(4) of the Constitution of Virginia). His primary duty is the prosecution of all criminal cases within his locality (see Virginia Code, section 15.1-18.1). He has discretion as to what degree of murder to present for indictment, but that discretion is limited by considerations of prosecutorial ethics and his legal duty under the general law and to the public to present the indictment for the crime which is best supported by the evidence. He is independent in the discharge of his duty, not being subject to direction in any relevant way, whether as to charging offences, seeking sentences or giving related assurances, by the Attorney General of Virginia (see Virginia Code, section 2.1-124), the Governor of Virginia or anyone else. It is open to the Commonwealth’s Attorney to engage in plea negotiations, but the court is not bound to accept any resultant agreement (Rule 3A.8 of the Rules of the Supreme Court of Virginia). 59. Judges of the district and higher courts of the State of Virginia are not elected but are appointed to the bench. Their conduct is governed by published Canons of Judicial Conduct, which have been adopted by the Supreme Court of Virginia as Rules of the Supreme Court. Observance of high standards of conduct so as to preserve the integrity and independence of the judiciary is included as part of the first Canon. 60. The Governor of the Commonwealth of Virginia has an unrestricted power "to commute capital punishment" (Article V, section 12, of the Constitution of Virginia). As a matter of policy, the Governor does not promise, before a conviction and sentence, that he will later exercise his commutation power. Since 1977 there has been no case in which the Governor has commuted a death sentence. 61. There are currently 40 people under sentence of death in Virginia. The majority are detained in Mecklenburg Correctional Center, which is a modern maximum-security institution with a total capacity of 335 inmates. Institutional Operating Procedures (IOP 821.1) establish uniform operating procedures for the administration, security, control and delivery of necessary services to death row inmates in Mecklenburg. In addition conditions of confinement are governed by a comprehensive consent decree handed down by the United States District Court in Richmond in the case of Alan Brown et al. v. Allyn R. Sielaff et al. (5 April 1985). Both the Virginia Department of Corrections and the American Civil Liberties Union monitor compliance with the terms of the consent decree. The United States District Court also retains jurisdiction to enforce compliance with the decree. 62. The channels by which grievances may be ventilated and, if well-founded, remedied include (1) the use of a Federal Court approved Inmate Grievance Procedure of the Virginia Department of Corrections, involving the Warden, the Regional Administrator and the Director of Prisons, and the Regional Ombudsman, (2) formal or informal contact between inmates’ counsel and the prison staff, (3) complaint to the courts for breach of the consent decree, and (4) the institution of legal proceedings under Federal or State tort laws. 63. The size of a death row inmate’s cell is 3m by 2.2m. Prisoners have an opportunity for approximately 7½ hours’ recreation per week in summer and approximately 6 hours’ per week, weather permitting, in winter. The death row area has two recreation yards, both of which are equipped with basketball courts and one of which is equipped with weights and weight benches. Inmates are also permitted to leave their cells on other occasions, such as to receive visits, to visit the law library or to attend the prison infirmary. In addition, death row inmates are given one hour out-of-cell time in the morning in a common area. Each death row inmate is eligible for work assignments, such as cleaning duties. When prisoners move around the prison they are handcuffed, with special shackles around the waist. When not in their cells, death row inmates are housed in a common area called "the pod". The guards are not within this area and remain in a box outside. In the event of disturbance or inter-inmate assault, the guards are not allowed to intervene until instructed to do so by the ranking officer present. 64. The applicant adduced much evidence of extreme stress, psychological deterioration and risk of homosexual abuse and physical attack undergone by prisoners on death row, including Mecklenburg Correctional Center. This evidence was strongly contested by the United Kingdom Government on the basis of affidavits sworn by administrators from the Virginia Department of Corrections. 65. Death row inmates receive the same medical service as inmates in the general population. An infirmary equipped with adequate supplies, equipment and staff provides for 24-hour in-patient care, and emergency facilities are provided in each building. Mecklenburg also provides psychological and psychiatric services to death row inmates. The United States District Court (Eastern District of Virginia) has recently upheld the adequacy of mental health treatment available to death row inmates in Mecklenburg (Stamper et al. v. Blair et al., decision of 14 July 1988). 66. Inmates are allowed non-contact visits in a visiting room on Saturdays, Sundays and holidays between 8.30am and 3.30pm. Attorneys have access to their clients during normal working hours on request as well as during the scheduled visiting hours. Death row inmates who have a record of good behaviour are eligible for contact visits with members of their immediate family two days per week. Outgoing correspondence from inmates is picked up daily and all incoming correspondence is delivered each evening. 67. As a security precaution, pursuant to rules applicable to all institutions in Virginia, routine searches are conducted of the entire institution on a quarterly basis. These searches may last for approximately a week. During such times, called lockdowns, inmates are confined to their cells; they are showered, receive medical, dental and psychological services outside their cells as deemed necessary by medical staff, and upon request may visit the law library, and are allowed legal visits and legal telephone calls. Other services such as meals are provided to the inmates in their cells. During the lockdown, privileges and out-of-cell time are gradually increased to return to normal operations. Lockdowns may also be ordered from time to time in relation to death row if information is received indicating that certain of its inmates may be planning a disturbance, hostage situation or escape. 68. A death row prisoner is moved to the death house 15 days before he is due to be executed. The death house is next to the death chamber where the electric chair is situated. Whilst a prisoner is in the death house he is watched 24 hours a day. He is isolated and has no light in his cell. The lights outside are permanently lit. A prisoner who utilises the appeals process can be placed in the death house several times. 69. Relations between the United Kingdom and the United States of America on matters concerning extradition are conducted by and with the Federal and not the State authorities. However, in respect of offences against State laws the Federal authorities have no legally binding power to provide, in an appropriate extradition case, an assurance that the death penalty will not be imposed or carried out. In such cases the power rests with the State. If a State does decide to give a promise in relation to the death penalty, the United States Government has the power to give an assurance to the extraditing Government that the State’s promise will be honoured. According to evidence from the Virginia authorities, Virginia’s capital sentencing procedure and notably the provision on post-sentencing reports (see paragraph 47 above) would allow the sentencing judge to consider the representation to be made on behalf of the United Kingdom Government pursuant to the assurance given by the Attorney for Bedford County (see paragraph 20 above). In addition, it would be open to the Governor to take into account the wishes of the United Kingdom Government in any application for clemency (see paragraph 60 above). 70. There is no way of compelling American witnesses to give evidence at a trial in the Federal Republic of Germany. However, such witnesses would normally, unless imprisoned, be free to appear voluntarily before a German court and the German authorities would pay their expenses. Furthermore, a United States Federal court may, pursuant to a letter rogatory or a request from a foreign tribunal, order a person to give testimony or a statement or to produce a document or other thing for use in a proceeding in a foreign tribunal (28 United States Code, section 1782). In addition, public documents, for example the transcript of a criminal trial, are available to foreign prosecuting authorities. 71. German criminal law applies to acts committed abroad by a German national if the act is liable to punishment at the place where the offence is committed (Criminal Code, section 7(2)). 72. Murder is defined as follows in section 211(2) of the Criminal Code: "He is deemed a murderer who because of murderous lust, to satisfy his sexual instinct, for reasons of covetousness or for otherwise base motives, insidiously or cruelly or by means constituting a public danger or in order to render another crime possible or to conceal another crime kills a person." Murder is punishable with life imprisonment (Criminal Code, section 211(1)), the death penalty having been abolished under the Constitution (Article 102 of the Basic Law, 1949). 73. Under the terms of the Juvenile Court Act (1953) as amended, if a young adult - defined as a person who is 18 but not yet 21 years of age at the time of the criminal act (section 1(3)) - commits an offence, the judge will apply the provisions applicable to a juvenile - defined as a person who is at least 14 but not yet 18 years of age (ibid.) - if, inter alia, "the overall assessment of the offender’s personality, having regard also to the circumstances of his environment, reveals that, according to his moral and mental development, he was still equal to a juvenile at the time of committing the offence" (section 105(1)). The sentence for young adults who come within this section is youth imprisonment of 6 months to 10 years or, under certain conditions, of indeterminate duration (sections 18, 19 and 105(3)). Where, on the other hand, the young adult offender’s personal development corresponds to his age, the general criminal law applies but the judge may pass a sentence of 10 to 15 years’ imprisonment instead of a life sentence (section 106(1)). 74. Where an offender, at the time of commission of the offence, was incapable of appreciating the wrongfulness of the offence or of acting in accordance with such appreciation by reason of a morbid mental or emotional disturbance, by reason of a profound disturbance of consciousness or by reason of mental deficiency or some other serious mental or emotional abnormality, there can be no culpability on his part and he may not be punished (Criminal Code, section 20). In such a case, however, it is possible for an order to be made placing the offender in a psychiatric hospital indefinitely (Criminal Code, section 63). In a case of diminished responsibility, namely where there is substantial impairment of the offender’s ability to appreciate the wrongfulness of the offence or to act in accordance with such appreciation at the time of commission of the offence for one of the reasons set out in section 20 (Criminal Code, section 21), punishment may be reduced and, in particular, in homicide cases imprisonment of not less than 3 years shall be substituted for life imprisonment (Criminal Code, section 49(1)(2)). Alternatively, the court may order placement in a psychiatric hospital. 75. Where a death sentence is risked, the Federal Government will grant extradition only if there is an unequivocal assurance by the requesting State that the death penalty will not be imposed or that it will not be carried out. The German-United States Extradition Treaty of 20 June 1978, in force since 29 August 1980, contains a provision (Article 12) corresponding, in its essentials, to Article IV of the United Kingdom/United States Extradition Treaty (see paragraph 36 above). The Government of the Federal Republic of Germany stated in evidence that they would not have deemed an assurance of the kind given by the United States Government in the present case to be adequate and would have refused extradition. In accordance with recent judicial decisions, the question whether an adequate assurance has been given is subject to examination in proceedings before the higher regional court. | 1 |
train | 001-23856 | ENG | BGR | ADMISSIBILITY | 2,004 | CAMBERROW MM5 AD v. BULGARIA | 4 | Inadmissible | Christos Rozakis | The applicant, Camberrow MM5 AD, is a company with registered office in the village of Zeleni Dol, the Blagoevgrad region. It held approximately 98% of the shares of Dobrudjanska Commercial Bank AD (“DCB AD” or “the bank”), a bank with registered office in Dobrich. The applicant was represented before the Court by Mr Y. Yankov and Mr F. Martineau, lawyers practising in Sofia and Paris respectively. On 23 September 1996 BNB found that as of 31 August 1996 DCB AD's capital adequacy had been minus 54.06%, which was significantly below the level set forth in the Banks and Credit Business Act 1992. The fact that the capital adequacy of the bank was negative indicated that the bank's riskweighted assets significantly exceeded the amount of its capital base. The bank experienced durable difficulties to perform its obligations on the date of their maturity, as evidenced by the high number of noncompleted payments. For a prolonged period the bank had not had enough liquid funds to perform its obligations to pay. For the period after 2 September 1996 the bank had had waiting payments every day. As of 20 September 1996 these payments had been 5,416 amounting in total to 587,872,561.76 old Bulgarian levs (“BGL”) [On 5 July 1999 the Bulgarian lev was denominated. One new Bulgarian lev (“BGN”) equals 1,000 old Bulgarian levs (“BGL”)]. Thus, BNB was of the opinion that there was a risk of DCB AD becoming insolvent within the meaning of section 64(1) and (2) of the Banks and Credit Business Act 1992. Therefore BNB placed the bank under special supervision („особен надзор“). It removed its board of directors from office and appointed special administrators („квестори“) to act in its place. It also limited the bank's activities, prohibiting it from taking deposits, extending loans, dealing with commercial papers, dealing with foreign currency and precious metals, making guarantees, effecting noncash payments, clearing cheques, acting as a stock broker and carrying out factoring operations. It also prohibited the bank to pay dividends and to dispose of its assets. DCB AD did not seek judicial review of this decision. On 10 November 1996 BNB petitioned the Dobrich Regional Court to open bankruptcy proceedings against DCB AD. The bank, which was respondent in these proceedings, was represented by the special administrators previously appointed by BNB. On 2 September 1997 BNB found that during the period of special supervision, which had expired on 1 September 1997 (i.e. two months after the entry into force of the Banks Act 1997 – paragraph 13 of the transitional and concluding provisions of the Act), DCB AD's financial situation had improved through the efforts of the special administrators. Its debts towards other financial institutions had been paid off and the bank had collected more than BGL 4,000,000,000 it had extended as loans and had thus improved its capital adequacy. Also, it could be expected that its overall capital adequacy would improve sharply during the following month. However, as at that time the bank was still unable to pay off all its creditors, certain restrictions on its activities had to be maintained. Accordingly, BNB, exercising its powers under section 65 of the Banks Act 1997, reappointed the special administrators for a period of one month, ordered DCB AD to increase its capital adequacy to 2% of its tierone capital not later than 30 September 1997, and prohibited it from receiving deposits, extending loans, paying dividends, effecting noncash operations and clearing cheques until it had attained the said 2% ratio. The decision stated that it was not subject to judicial review. On 12 September 1997 the general meeting of shareholders of DCB AD resolved to increase the bank's capital from BGL 1,404,480,000 to BGL 20,000,000,000 through the issuing of 18,595,520 new shares with par value of BGL 1,000 each. 8,045,520 new shares were to be subscribed exclusively by the applicant and the remaining 10,550,000 shares were to be subscribed by all shareholders of DCB AD pro rata their respective shareholdings. On 26 September 1997 the resolution was entered in the register of companies kept by the Dobrich Regional Court. The applicant subscribed the shares and, accordingly, became liable to pay them up. However, it sought to discharge this liability by other means. On 4 May 1997 it had purchased debts due by DCB AD to three other banks. By virtue of these debt assignments the applicant, apart from being shareholder of DCB AD, had become also its creditor. It advised DCB AD that it wished to set off its obligation to pay its newly subscribed shares against the debt that DCB AD now owed to it. Accordingly, on 26 September 1997 DCB AD made entries in its accounts whereby it effected the required setoff. Also, on 27 August 1997 the applicant had made a contract with DCB AD whereby it had provided funds to the bank under the understanding that they were given as a hybrid capital instrument for the increase of the bank's capital base. The applicant had transferred to DCB AD BGL 2,258,096,800 pursuant to the contract. On 3 November 1997 BNB, exercising its powers under section 65 of the Banks Act 1997, ordered DCB AD to cancel the abovementioned entries in its accounts and to return the amounts given by the applicant. It reasoned that the setoff had represented non-cash consideration for the shares and that it had been effected in breach of sections 72 and 73 of the Trade Act and of section 19(2)(5) of the Banks Act 1997. Further, BNB found that the contract whereby the applicant had provided a hybrid capital instrument to DCB AD had not been approved by BNB, as required by section 10(4) of its Regulation No. 8 on the capital adequacy of banks, and was thus invalid. Meanwhile, on 30 September 1997 the Dobrich Regional Court, acting on the joint motion of BNB and DCB AD, decided to stay the proceedings under the bankruptcy petition against the bank. Also, on 3 October 1997 BNB, finding that the previous special administrators' mandate had expired, appointed new special administrators of DCB AD. On 11 November 1997 BNB revoked DCB AD's licence by reason of insolvency. It found that a check up of its assets and liabilities as of 30 September 1997 indicated that the liabilities exceeded its assets by BGL 6,161,379,000. The decision stated that it was not subject to judicial review. On an unspecified date in November 1997 BNB requested the Dobrich Regional Court to resume the proceedings for declaring DCB AD bankrupt. On 2 December 1997 the Dobrich Regional Court held a hearing in chambers. DCB AD was represented by attorneys retained by the special administrators appointed by BNB. The attorneys for DCB AD argued that the bank's assets exceeded its liabilities and that BNB's determination in this respect had been erroneous. Also, DCB AD tried to commence an action for declaratory judgment to the effect that BNB's decision for revoking the bank's licence had been unlawful. The court rejected the action as inadmissible, holding that by section 21(5) of the Banks Act 1997 BNB's decisions for revoking a bank's licence were not subject to judicial review and that it was thus not competent to examine the action. In a judgment of the same date the Dobrich Regional Court declared DCB AD insolvent and bankrupt, terminated the powers of its bodies, appointed trustees in bankruptcy („синдици“) (the companies Yavor Zartov AD and BDO Binder), divested the bank of its property and ordered the sale of its assets. It held that whereas under the Banks and Credit Business Act 1992 it had had the power to independently ascertain whether a bank was indeed insolvent either because its liabilities exceeded it assets or because it could not discharge a undisputed debt which had fallen due, under the new Banks Act 1997 it was precluded from verifying the existence of these prerequisites. According to section 82 of the Act, the court's task was only to ascertain whether BNB's bankruptcy petition complied with the requirements of sections 79(3) and 21(2) of the Act, i.e. whether it was facially valid and indicated the grounds on which the bank's licence had been revoked. In the case at hand BNB had revoked DCB AD's licence and had indicated the ground on which it had done that. Therefore its bankruptcy petition had to be allowed. As the judgment was immediately enforceable, from that moment on the persons having the right to act on behalf of DCB AD were the courtappointed trustees. Before the trustees had started performing their duties, the bank's attorneys filed appeals against the judgment for declaring DCB AD bankrupt and against the decision in which the Dobrich Regional Court had rejected the action for a declaratory judgment as inadmissible. However, once the trustees started performing their duties, they withdrew the powers of the attorneys and withdrew the appeals. Accordingly, in a decision of 12 February 1998 a threemember panel of the Supreme Court of Cassation discontinued the appeal proceedings and declared that the Dobrich Regional Court's judgment had entered into force. On 8 June 1998 the applicant complained to the prosecution authorities about the actions of the vicegovernor of BNB who had signed BNB's decision of 3 November 1997 and had proposed the revoking DCB AD's licence on 11 November 1997. It argued that she had acted ultra vires with a view to causing prejudice to DCB AD. The prosecution authorities opened criminal proceedings against the vicegovernor and on 15 June 1998 charged her. However, on 23 April 1999 the Chief Prosecutor's Office discontinued the proceedings, holding that the vicegovernor had acted lawfully and had not abused her office. On an unspecified date in June 1998 the applicant requested the Dobrich Regional Court to replace the trustees. It argued, inter alia, that their actions had prejudiced the creditors of DCB AD. In particular, the trustees had failed to collect a number of the bank's receivables and had deposited 1,200,000 United States dollars (“USD”) of the bank's money in a another bank which was experiencing financial difficulties. On 22 June 1998 the Dobrich Regional Court rejected the motion, holding that the applicant did not have standing to make such a request and that the trustee of a bankrupt bank could only be removed if BNB had struck its name off the register of bank trustees it was keeping. The applicant did not appeal against this decision. On 13 July 1998 the Dobrich Regional Court discharged Yavor Zartov AD and BDO Binder as trustees in bankruptcy. It appointed Ms A.G. as the new trustee of DCB AD. The applicant did not specify whether this was done on its motion, on the motion of another creditor or of the court's own motion. However, it appears that this was done because in June 1998 the Trade Act was amended to provide that only natural persons, and not juridical persons, could be trustees in bankruptcy. On 16 December 1999 the applicant requested the Dobrich Regional Court to replace the new trustee. It argued, inter alia, that she had failed to collect a number of the bank's receivables, that she had been squandering the bank's assets, that she had deposited USD 1,200,000 of the bank's money in another bank which was experiencing financial difficulties and that she had made unnecessary expenses. In a decision of 22 December 1999 the Dobrich Regional Court rejected the request. It held that the trustee had not failed to perform her duties. In particular, she had commenced a large number of actions to recover the bank's dues. The depositing of the USD 1,200,000 had been done by the previous trustees. Finally, the trustee had been making monthly reports about the expenses she had been incurring. The court instructed the trustee to reduce to a minimum the number of attorneys she had retained to prosecute actions on the bank's behalf. The applicant did not appeal against the decision. On 11 October 2000 the applicant requested BNB to strike Ms A.G. out of its register of bank trustees in bankruptcy. It averred that she had deposited USD 1,200,000 in another bank which had gone bankrupt. The expenses (allegedly 3,000,000 Bulgarian levs (“BGN”)) she had incurred for administrating the bankruptcy estate – in particular, by retaining a high number of lawyers to prosecute cases on behalf of the bank – had been unreasonably high. Further, she had done nothing or very little to collect the bank's dues and had kept the bank's accounting books in a very poor manner. BNB carried out an inspection in DCB AD and in a letter of 2 March 2001 rejected the applicant's request. As regards the deposit of USD 1,200,000 in another bank, BNB found it had been done by the previous trustees. Moreover, as of the date of the deposit the other bank had not experienced financial difficulties. At the time Ms A.G. had been appointed, she had tried to withdraw the amount from the other bank, but had succeeded only partially. She had made a claim before the trustees of the other bank in respect of the part of the amount which had remained at the other bank at the time it had been declared bankrupt. As regards the fact that Ms A.G. had commenced a large number of actions, the vast majority of those had been against debtors of DCB AD and for the avoidance of transfers, i.e. for the benefit of the bankruptcy estate. The number of lawyers retained by the trustee had been minimal and the expenses, compared to those for the administration of the estates of other bankrupt banks, had been smaller. The overall expenses incurred by the trustee had not been BGN 3,000,000, as claimed by the applicant, but BGN 1,554,647.92. On 5 February 2001 the applicant requested the Dobrich Regional Court to replace the trustee. It argued that she had improperly filed actions against DCB AD and that she had been squandering the bank's assets. On 5 March 2001 the trustee filed objections against the request, submitting that it was inadmissible and unfounded. As regards the actions she had filed against DCB AD, those were actions seeking to avoid transfers effected by the bank prior to becoming bankrupt; the court examining those actions had instructed the trustee to constitute the bank as a codefendant. The trustee further provided a detailed account of the expenses she had incurred. In a decision of 13 March 2001 the Dobrich Regional Court rejected the applicant's request. It held that it was inadmissible, because a bank's trustee in bankruptcy could only be removed by the court if he or she had been stuck off the register of bank trustees kept by BNB. Nevertheless, the court proceeded to examine the request on the merits and held that it was also unfounded. It found that in 2000 the applicant had signalled BNB about alleged irregularities in the trustee's activities and that BNB had carried out an inspection and had not found any wrongdoing on the part of the trustee. The court went on to state that the fact that the trustee had constituted DCB AD as a codefendant in the actions she had filed was not improper; on the contrary, it had been done pursuant to the court's express instructions. The applicant's contention that the trustee had squandered the bank's assets was unsubstantiated. The trustee had provided a detailed account of the amounts she had expended. That account, as well as the results of BNB's inspection of 2000, indicated that she had not spent large amounts, as averred by the applicant. The applicant appealed to the Varna Court of Appeals. In a decision of 4 May 2001 the Varna Court of Appeals vacated the lower court's decision and declared the applicant's request inadmissible. It held that in proceedings for the bankruptcy of a bank the court could only remove the trustee if he or she had been struck off the register of bank trustees kept by BNB. Therefore the Dobrich Regional Court should have declared the request inadmissible and should not have examined its merits. Despite an express request by the Court in a letter to the applicant of 3 December 2002, the applicant did not provide any information about the further course of these proceedings. However, the published caselaw of the Supreme Court of Cassation (определение № 586 от 9 ноември 2001 г. по ч.гр.д. № 535/2001 г., ВКС V г.о., БВС 9/2001, № 19, с. 34) indicates that the applicant appealed to that court and that in a decision of 9 November 2001 it quashed the Varna Court of Appeals' decision and remitted the case with instructions to the lower court to examine the request on the merits. It held that the striking of a trustee off the register kept by BNB and the removal of the trustee pursuant to a request by the debtor or a creditor – such as the applicant – were completely distinct hypotheses. The fact that BNB could bring about the discharging of a trustee did not mean that a creditor could not request her removal if she did not perform her duties properly or imperilled the creditor's interests through her actions. Similarly, despite the above-mentioned express request by the Court, the applicant did not provide any information about the proceedings on remittal before the Varna Court of Appeals. Noting however that Ms A.G. was not removed as trustee, the Court concludes that apparently the Varna Court of Appeals examined the applicant's request on the merits and found it to be unfounded. On 16 August 2001 the applicant requested the Dobrich Regional Court to annul certain actions of the trustee which it considered prejudicial to DCB AD's creditors. On 5 September 2001 the judge in charge of the bankruptcy proceedings informed the applicant that he did not have the power to annul actions of the trustee. On 24 November 1999 some of DCB AD's assets were put on sale by the trustee, at a price fixed by experts appointed by BNB. The applicant submitted that it had tried to challenge that price as being too low, but that the courts examining its request had rejected it as inadmissible because they had considered that the experts' valuation was not subject to judicial review and that a creditor of the bankrupt bank did not have standing to appeal against the fixing of the sale price. Despite an express request by the Court in a letter to the applicant of 3 December 2002, the applicant did not provide any further details, not did it submit any documents relating to these events. On an unspecified date in the end of 2001 or the beginning of 2002 DCB AD's trustee in bankruptcy asked the Dobrich Regional Court for permission to sell the bank as a going concern. In a decision of 6 February 2002 the Dobrich Regional Court granted permission. On 20 May 2002 the trustee entered into a contract with the Central Cooperative Bank AD (“CCB AD”) whereby it agreed to purchase DCB AD as a going concern. The contract provided that CCB AD would pay BGN 1 for the bank and pay BGN 4,170,000 to the bank's fourth-tier creditors (all previous tiers having been already paid off), which consisted solely of the Ministry of Finance (which had indemnified all depositors of the bank and had subrogated itself in their claims). By an annex to the contract of 19 June 2002 CCB AD agreed to pay the creditors BGN 4,500,000 instead of BGN 4,170,000. The trustee submitted the contract to the Dobrich Regional Court for approval. The court requested BNB to submit its observations on the contract. BNB submitted its observations on 26 June 2002. It maintained that CCB AD's offer to buy DCB AD was fully compliant with the Banks Act 1997 and that CCB AD had enough funds to pay the creditors of the bankrupt bank. In a decision made in chambers on 10 July 2002 the court approved the contract, terminated the bankruptcy proceedings and struck DCB AD from the register of companies. It held, inter alia, that the sale of DCB AD as a going concern would not prejudice its creditors' interests and would not put them in a worse position than that which would have obtained in case the bank's assets were sold apiece. The net worth of DCB AD, as assessed by experts appointed by the trustee with the assent of the court, was a negative value. The total value of its assets, as assessed by the same experts, was BGN 4,169,000. Since the price agreed by CCB AD was BGN 4,500,000, the creditors were in fact placed in a better position. Moreover, the creditors would receive their dues much faster (within one month after the sale had been approved by the court) than if the bank's assets were to be sold apiece. The assets which had been sold apiece thus far had generated proceeds amounting only to BGN 874,766.28, whereas the aggregate of the creditors' claims against DCB AD amounted to BGN 22,185,355. As provided by section 94(9) of the Banks Act 1997, the decision was not subject to appeal. Under the Banks and Credit Business Act 1992 (superseded on 1 July 1997 by the Banks Act 1997) BNB could put a bank under special supervision, if it found that the bank was at a risk of becoming insolvent (section 65(1)). By section 64 of the Act, a bank was at such a risk when (a) its capital adequacy was below a certain minimal level or when (b) due to the state of its assets there was a risk that it could not pay its debts at maturity. When BNB placed a bank under special supervision, it could remove the members of its governing bodies from office and appoint special administrators with powers to act in their place (section 65(2) in limine and section 65(2)(7)). It could also limit the bank's activities and prohibit it from paying dividends or from disposing of its assets (section 65(2)(3), (4) and (5)). Paragraph 13 of the transitional and concluding provisions of the Banks Act 1997 provides that the regime of special supervision imposed on a bank under the repealed Banks and Credit Business Act 1992 lapses if within two months after the entry of the Act into force (i.e. 1 September 1997) BNB does not revoke the bank's licence. Section 65(1)(1) and (2)(3) of the Banks Act 1997 allows in broad terms BNB to order a bank to remedy violations it has made of the Act and of BNB's regulations and other acts and directives. Under section 69 of the Banks Act 1997 BNB may, in certain circumstances (e.g. when placing a bank under compulsory administration or revoking its licence) appoint special administrators („квестори“). These special administrators act in place of the banks' board of directors (section 71(1)), i.e. on behalf of the bank. They are appointed and dismissed by BNB (section 69(1)), it may give them directions (section 71(3)), and they are accountable to it (section 71(5)). BNB mandatorily revokes the licence of a bank on the ground of insolvency when (a) the bank does not discharge for more than seven working days a debt which has fallen due or (b) the total amount of the bank's debts is greater than the total amount of its assets (section 21(2) of the Banks Act 1997). The value of the assets and of the debts of the bank is determined by BNB in accordance with supervisory requirements and rules prescribed in regulations issued by it (section 21(3)). When revoking a bank's licence, BNB appoints special administrators if such have not been appointed before that (section 21(4)). The administrators manage and represent the bank until the court appoints trustees in bankruptcy (section 69(3)). BNB's decision to revoke a banking licence is immediately enforceable (section 21(5)). In derogation of the general rules of administrative procedure, BNB does not have to inform the bank about the opening of the procedure for revoking its licence, nor does it have to examine and take into account the bank's explanations and objections, if any (ibid.). After revoking a bank's licence on the ground of insolvency, BNB must mandatorily file with the competent court a petition for the opening of bankruptcy proceedings against the bank (section 79(1)). Whereas BNB's decisions under the Banks and Credit Business Act 1992 were, without limitation, subject to review by the Supreme Administrative Court (section 88(2) and (3)), the Banks Act 1997 prohibits judicial review of a number of BNB's decisions. Thus, coercive measures ordered by BNB under section 65 of the Banks Act 1997 are not subject to judicial review (section 65(4)); neither are its decision to revoke a bank's licence (section 21(5)), or to appoint or replace special administrators (sections 65(4) and 69(4)). A bank's “capital adequacy”: the ratio between its “capital base” – defined as its primary, or tierone, capital (including paid-up shares plus premiums and statutory and other reserves minus intangible assets, losses, and treasury shares – section 9 of BNB's Regulation No. 8 on the capital adequacy of banks) plus supplementary capital elements, or tiertwo capital (including retained earnings, special reserves, hybrid capital instruments, subordinated debt, etc. – section 10 of the Regulation) – and its riskweighted assets and offbalancesheet items may not be less than 12% (section 23(3) of the Regulation). Hybrid capital instruments may be included in the tiertwo capital of a bank only after the approval of the vicegovernor of BNB (section 10(4) of the Regulation). Before 1 July 1997 bank bankruptcy was regulated by the Banks and Credit Business Act 1992. From that date onward the newly adopted Banks Act 1997 became applicable to such proceedings.[ On 29 December 2002 the provisions of the Banks Act 1997 relating to bank bankruptcy were superseded by the Bank Bankruptcy Act] The regime of bank bankruptcy set forth in the Banks Act 1997 contained a number of special features. Only BNB, and not just any creditor or the bank itself, could file a petition for the opening of bankruptcy proceedings against a bank (section 79(2) of the Banks Act 1997). BNB mandatorily filed such a petition after revoking a bank's licence on the ground of insolvency (section 79(1)). The petition needed only specify the grounds for revoking the bank's licence under section 21(2) (section 79(3)). The petition was examined by the court in chambers (section 81). There was no possibility for reorganisation of the bank (section 91), it was divested of all its assets (section 82(6)), and, when allowing the petition, the court had to also immediately order the sale of the assets and the distribution of the proceeds to the bank's creditors (section 82(7)). The court terminated the powers of the bank's bodies (general meeting of shareholders, board of directors, etc.) (section 82(4)) and appointed trustees in bankruptcy in whom these powers, including the right to represent the bank in court, vested (section 84(3) in conjunction with section 658(1)(6) [At present section 658(1)(7)] of the Trade Act). The court could appoint trustees only from a pool of persons featuring on a list drawn up by BNB (section 84(1)). The Trade Act applied only insofar as the Banks Act 1997 did not contain special rules and insofar as its provisions were compatible with the special features of bank bankruptcy (section 97). Section 634 of the Trade Act, which appears to have been thus applicable, provides that the court's judgment for declaring a debtor insolvent and for the opening of bankruptcy proceedings against it is immediately enforceable. Section 657(2) of the Trade Act provides that upon the motion of the debtor or any creditor the bankruptcy court may discharge the trustee if he or she does not perform his or her duties or imperils the creditor's or the debtor's interests through his or her actions. Section 663(3) of the Trade Act provides that the trustee is liable to indemnify the debtor and the creditors for all damage caused due to his or her fault. Section 84(2) of the Banks Act 1997 provided that the bankruptcy court must discharge the trustee if he or she was struck off the list of bank trustees kept by BNB. In Bulgarian law there are two methods for disposing of the assets of a bankrupt company in order to satisfy its creditors' claims: (a) selling them apiece or (b) selling the company as a going concern, i.e. as an aggregate of assets and liabilities. Section 94a of the Banks Act 1997 gave preference to the second method. It provided that the trustee of a bankrupt bank had to first try to sell it as a going concern. He or she had to opt for the other method and dispose of the bank's assets apiece only if the sale as a going concern was not possible within six months after all creditors' claims had been filed and allowed or if that would place the bank's creditors in a worse position. A bankrupt bank could be sold only to another bank (section 94(1) of the Banks Act 1997). The buying bank had to pay directly to the creditors of the bankrupt bank by opening bank accounts in their names within one month after the sale had been approved by the court (section 94(6)). The issue which creditors were to be thus paid off and which not was to be determined in the sale contract. The buying bank was liable to pay only those creditors whose claims it had agreed to pay off. All other creditor's claims were extinguished (section 94(4)). The shareholders' rights, including the right to a share of the remaining assets of the bank, if any, were likewise extinguished, unless the buying bank had agreed to pay to the shareholders as well (section 94(5)). The procedure for selling a bankrupt bank as a going concern was as follows: the trustee requested the bankruptcy court to allow the sale of the bank through direct negotiations (section 93(1)). After receiving permission from the court, the trustee approached potential buyers and entered into a contract with them. He or she then submitted the contract for approval by the court. The court had to call for observations from BNB (section 93(3)), and, after receiving them and verifying whether the sale did not contravene the law and did not prejudice the creditor's interests (section 93(4)), approved it, terminated the bankruptcy proceedings and struck the bank off the register of companies. The court's decisions were not subject to appeal (section 94(9)). | 0 |
train | 001-97338 | ENG | UKR | CHAMBER | 2,010 | CASE OF MYRONENKO v. UKRAINE | 4 | Violation of Art. 2 (procedural aspect) | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. The applicant was born in 1938 and lives in Lozova, Kharkiv region. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 10 July 1998 the applicant's son, Mr Y. M., was found dead in his house, in which he lived alone. 7. On 10 and 11 July 1998 the police questioned relatives, neighbours and friends of Mr Y. M. They were informed that the late Mr Y. M. lived alone and was not known to have been on bad terms with anyone. According to the applicant no on-site inspection was conducted. 8. On 11 July 1998 an autopsy was conducted. The forensic expert concluded that Mr Y. M. died of cerebral trauma caused by being hit on the head with a hard object and that the trauma could have been the result of a fall from his own height. No other bodily injuries were identified. The expert further noted that at the time of death Mr Y. M. was sober. 9. On 17 July 1998 investigator S. refused to institute criminal proceedings into the death of the applicant's son on the basis of the above autopsy report. 10. On 5 October 1998, however, criminal proceedings were instituted following information received by the police from the applicant, her other son and several other individuals, that on the eve of Mr Y. M.'s death he had had a drinking party in his house with several of his acquaintances and that two of them, Mr Z. and Mr K., had severely beaten him. 11. Mr Z. and Mr K. were arrested. Police questioned the persons who had provided this information or were eyewitnesses to the fight. The investigator also requested additional forensic examination as to the time and cause of death of Mr Y. M. 12. On 29 December 1998 the forensic medical examination confirmed the conclusions of the first autopsy report. It also noted that the head trauma did not have any traces which could identify the object which had caused this trauma. 13. During additional questioning of the witnesses to the events of 8 July 1998 they retracted their statements. 14. Following this, Mr Z. and Mr K. were released and the criminal proceedings were terminated on 26 March 1999 for lack of proof of crime, given that there were no signs of a fight on the body of Mr Y. M. and that participants in the party had denied that any conflict took place during the party. 15. By a letter of 19 April 1999 the Kharkiv Regional Prosecutor's Office informed the applicant that the investigation had been conducted by officer S., who had failed to establish comprehensively, fully and objectively all the circumstances of the crime and to identify all those involved. 16. By a letter of 30 June 1999 the Kharkiv Regional Prosecutor's Office informed the applicant that they had established that the investigation was incomplete and that disciplinary proceedings had been instituted against investigator S. 17. By a letter of 29 September 1999 the deputy head of the Kharkiv Regional Police Department informed the applicant, among other things, that they had established that there had been delays in the investigation, which had not been completed, and that for these reasons investigator S. had been disciplined. 18. On 29 October 1999 the forensic expert examination repeated the same conclusions and stated that with this trauma Mr M. would still have been able to move for up to several hours. 19. On 30 October 1999 the investigator terminated the proceedings again. He established that the forensic examination did not confirm any signs of a fight or self-defence on the body of Mr Y. M. Furthermore, Mr V. M. retracted his statement about the beating, maintaining that he had made it in fear of the police. This version was also confirmed by the fact that people who had visited Mr Y. M.'s house had not seen any signs of a fight there. 20. On 1 November 1999 the decision to terminate the criminal proceedings was quashed following the applicant's complaint that the police officers who had arrived first at Mr Y. M.'s house had not been questioned concerning the site. The investigator was also instructed to conduct an on-site reconstruction of events with Mr K., who was the last to see Mr Y. M. alive. 21. On 11 February 2000 an additional forensic examination concluded that the trauma could not have been caused by a fall from his own height. 22. By a letter of 14 March 2000 the applicant was informed by the Kharkiv Regional Police Department about the results of the latest forensic examination and informed again that investigator S. had been found liable for the delays in the investigation. 23. On 30 May 2000 the investigator suspended the criminal proceedings on the ground that the identity of the person or persons responsible for the death of the applicant's son had not been established. 24. On 27 February 2001 another forensic examination noted that the trauma could have been caused by several blows with a smooth hard object. 25. On 13 December 2001 the further forensic examination concluded that the trauma could have been caused by a singular blow or several blows to the head by a hard object and not by a fall from his own height or blows with fists. 26. By a letter of 17 November 2003 the head of the Investigation Unit of the Kharkiv Police Department informed the applicant that investigators S. and D., who had dealt with the case had been disciplined for premature decisions to terminate and suspend criminal proceedings and for delays in the conduct of all necessary investigative actions. 27. On 9 September 2005 the investigator appointed an additional investigation. The proceedings are still pending. 28. The relevant provisions of the Constitution provide: “The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...” “Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...” 29. The relevant provisions of the Code of Criminal Procedure read as follows: “The court, prosecutor or investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.” “Criminal proceedings shall be instituted on the following grounds: (1) applications or communications from ... individuals; ... (5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court. A case may be instituted only when there is sufficient evidence that a crime has been committed.” | 1 |
train | 001-119041 | ENG | RUS | COMMITTEE | 2,013 | CASE OF TYUKOV v. RUSSIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković | 4. The applicant was born in 1955 and lives in Moscow. 5. On 30 April 1998 the applicant bought a building at auction. 6. On 1 July 1998 the former owner of the building, a private company T., lodged an action against the applicant and a private company E., seeking annulment of the results of the auction. 7. On 14 July 1998 and 10 December 1998 the Tsentralniy District Court of Tver (trial court, District Court) upon the motions of the company T. and the applicant issued injunctions prohibiting use and disposal of the building. 8. On 2 November 1998 the trial court ordered the state property management and tax authorities to join the proceedings as third parties. 9. Between 16 November 1998 and 13 January 2000 at least four scheduled hearings were adjourned at the requests of the parties and subsequently the proceedings were suspended for eleven months to resolve the issue whether the acting president of the company E. lawfully acquired his status. 10. On 24 March 2000 the District Court dismissed the lawsuit of the company T. and lifted the injunctions. The plaintiff missed the time-limit for lodging an appeal and further attempts to restore it were unsuccessful. 11. On 5 February 2001 the Supreme Court of the Russian Federation upon the request of the Deputy Prosecutor General of the Russian Federation annulled the judgment of 24 March 2000 and ordered reconsideration of the case. 12. The District Court received the case file and fixed a preliminary hearing for 10 May 2001. At the following hearing on 4 June 2001 the trial court upon the motion of the company T. issued an injunction prohibiting use and disposal of the building. It was challenged by the applicant without success. 13. On 16 November 2001 the District Court held a conference with the parties and fixed another preliminary hearing. 14. Between 26 December 2001 and 12 September 2002 at least eight hearings were adjourned for various reasons including three times because of the applicant travel abroad, failure to appear for the hearing, order for the applicant to produce documentary evidence. The other reasons included illness of a judge, orders to produce evidence, failure to notify certain parties of the hearing or their failure to appear. 15. On 12 September 2002 the District Court dismissed the case as falling out of jurisdiction; however this decision was annulled by the Tver Regional Court on 14 November 2002. 16. Between 21 January 2003 and 30 May 2003 at least five hearings were adjourned for various reasons including twice for the failure of the parties to appear and once at the request of the applicant. 17. Between 13 July 2003 and 8 December 2003 at least four hearings were adjourned for various reasons including once for the failure of the defendants to appear, twice for the applicant’s travel and medical treatment abroad, and once because the applicant had to produce documentary evidence. 18. On 8 December 2003 the District Court denied the applicant’s motion to lift the injunction prohibiting use and disposal of the building. On 12 February 2004 his appeal against the decision was dismissed by the Tver Regional Court. 19. On 5 March 2004 the hearing was adjourned due to the applicant’s vacation abroad; and on 15 April 2004 due to failure of the plaintiff and the defendants (except for the applicant) to appear. 20. Between 19 May 2004 and 21 June 2005 at least fourteen hearings were adjourned for various reasons, including twice due to the applicant’s travel abroad, once due to his illness, and once due to his request to obtain documentary evidence from the commercial courts. Other hearings were adjourned due to failure of the parties to appear, requests to adjourn the proceedings, change of certain defendants, and amendments to the lawsuit. 21. On 30 June 2005 the District Court discontinued consideration of the lawsuit due to repeated failure of the plaintiff to appear without a valid reason. The plaintiff requested the District Court to resume the proceedings, but the request was denied on 26 September 2005. On 25 November 2005 the plaintiff’s appeal was dismissed by the Tver Regional Court. 22. On 8 December 2005 the District Court lifted the injunction prohibiting the use and disposal of the building. | 0 |
train | 001-71633 | ENG | UKR | CHAMBER | 2,005 | CASE OF VERKEYENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award | Zoryana Bortnovska | 4. The applicant was born in 1936 and currently resides in Odessa. He is a former employee of the State Company “Chornomorske Morske Paroplavstvo” (the “CMP”). 5. In 1997 the applicant instituted proceedings against the CMP in the Zhovtnevy District Court of Odessa, seeking the recovery of salary arrears. 6. On 6 October 1998 the Zhovtnevy District Court of Odessa ordered the CMP to pay the applicant UAH 3,604 in compensation. The decision was not appealed and became final on 16 October 1998. 7. On 18 December 2000 the Ministry of Justice informed the applicant that the judgment in his favour could not be immediately executed due to the CMP’s lack of funds. In particular, it noted that the CMP’s debts amounted to UAH 20,095,905, including salary arrears in the amount of UAH 5,067,027. They also stated that they were in the course of selling some of the CMP’s property and vessels belonging to it. 8. On 28 May 2001 the Zhovtnevy District Prosecutor’s Office informed the applicant that the Bailiffs’ Service had frozen the CMP’s bank accounts, however they had been empty since 1997. 9. On 26 December 2002 the applicant informed the Court that the judgment had been executed when, on 18 December 2002, he had been paid UAH 3,604. 10. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01, §§ 16-19). | 1 |
train | 001-107653 | ENG | LVA | CHAMBER | 2,011 | CASE OF BEIERE v. LATVIA | 3 | Remainder inadmissible;Violation of Art. 5-1;Non-pecuniary damage - award | Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 5. The applicant was born in 1934 and lives in the parish of Saldus in Latvia. 6. On 6 November 2001 the executive director of the municipality where the applicant resided, V.D., lodged with the Saldus District Court an application for a private prosecution against the applicant and her husband for offences which at the relevant time were proscribed by sections 156 and 157 of the Criminal Law (defamation and bringing into disrepute). The complaint appears to have been based on three letters that the applicant had sent to the council of the local municipality in which it had been alleged that V.D. had given false testimony in courts to the applicant’s detriment, that V.D. was a liar who did not deserve to be working in an official position, and that V.D. had hidden the will left by the applicant’s sister-in-law. 7. On 9 November 2001, having considered V.D’s complaint, a judge of the Saldus District Court decided to initiate criminal proceedings against the applicant for defamation of a representative of public authority (section 271 of the Criminal Law as in force at the relevant time). Offences under section 271 of the Criminal Law were subject to public prosecution. 8. On 8 January 2002 an out-patient psychiatric assessment was carried out on the applicant in a psychiatric hospital located in Jelgava. The assessment was carried out by a commission composed of several medical professionals. The commission was unable to arrive at a definite conclusion concerning the applicant’s psychiatric condition. 9. According to the Government, on 4 April 2002 the applicant was officially charged with defamation of V.D. No documents have been provided in that connection by either of the parties. On the same day an authorisation (orderis) was issued to sworn attorney M.D. According to the authorisation, M.D. was authorised to “participate in the pre-trial investigation” to assist the applicant. The applicant claims that she never appointed M.D. to represent her interests. Nothing in the copy of the authorisation submitted by the Government indicates that the applicant was made aware of its existence or of M.D.’s role in the proceedings. 10. On 22 April 2002 a prosecutor of the Saldus Distric Public Prosecutor’s Office requested the Saldus District Court to order a residential psychiatric-psychological assessment of the applicant to be carried out in a psychiatric hospital in Rīga. The prosecutor indicated that there were grounds to believe that the applicant had not been capable of understanding the consequences of writing the letters in issue. The prosecutor also stated that during the out-patient psychiatric assessment of 8 January 2002 it had been impossible to establish the applicant’s psychiatric condition with certainty. 11. On 2 May 2002 a single judge of the Saldus District Court issued a decision authorising the applicant’s placement in a psychiatric hospital. The decision noted that the judge had heard statements from the prosecutor and from M.D. The decision also stated that the applicant had refused to report for a residential examination voluntarily, but no details were given. The Government have not suggested that the applicant was ever requested to report voluntarily for a residential assessment. Lastly, the decision noted that it could be appealed against to the Kurzeme Regional Court but that the lodging of such an appeal did not suspend the execution of the decision. The decision also ordered the Saldus District police to transport the applicant to a psychiatric hospital in Rīga and guard her during the course of the examination. 12. According to the applicant, on 9 May 2002 some ten to twelve police officers arrived at her home and announced to her that she had five minutes to get ready to leave. She was taken to a psychiatric hospital in Rīga and was told only after arriving there of the existence of the Saldus District Court judge’s decision of 2 May 2002. She had not received a copy of that decision. The Government did not dispute this account. 13. The applicant submits that the conditions in the hospital were unbearable: she was placed together with people who were mentally ill, drug addicts and people with sexually transmitted diseases, and the toilets in the hospital were flooded and impossible to use. She also submits that prior to 22 May 2002 – when, according to her, she was first seen by a psychiatrist – she was questioned by another doctor in a “political” manner. She also submits that her brain was scanned and that she was injected with unknown substances against her will. 14. At some later date (probably on 12 May 2002) the applicant submitted an appeal against the decision of the Saldus District Court. The applicant pointed out that she had not been informed that a hearing concerning her placement in a psychiatric hospital would take place, and had not participated in that hearing; she accordingly requested that the decision of the first-instance court be quashed. 15. On 24 May 2002 the Kurzeme Regional Court adopted a decision whereby it dismissed the applicant’s appeal. At the hearing the court heard submissions from the lawyer, M.D., and a public prosecutor. M.D. supported the applicant’s appeal and alleged that the decision of the first-instance court had been unlawful. The prosecutor considered that the decision had been adopted lawfully and was justified by the applicant’s persistent refusal to respond to any summonses sent to her or to sign the statement of charges brought against her. He furthermore informed the court that the applicant’s assessment would be completed within one week of the date of the hearing in the appeal court. The appeal court considered that the first-instance court had adopted its decision in full conformity with the requirements of section 191 of the Code of Criminal Procedure (see below, paragraph 26), under which the presence of the suspected or accused person at the court hearing concerning that person’s placement in a psychiatric hospital was not mandatory. The court considered that the actual implementation of the decision of the Saldus District Court had not been sufficiently considerate, since the applicant had been forced to leave her household and domestic animals without any supervision. Nevertheless, the court took into account that the Saldus District Public Prosecutor’s Office had taken certain steps to ensure that the applicant’s property would be looked after during her stay at the psychiatric hospital, and it therefore considered that it was not “expedient” to terminate the assessment of the applicant’s psychiatric health. 16. On 28 May 2002 the applicant sent a request to the Prosecutor General. She asked him to lodge a complaint against the Saldus District Court’s decision of 2 May 2002 and the Kurzeme Regional Court’s decision of 24 May 2002. On 7 June 2002 a prosecutor from the Office of the Prosecutor General replied to the applicant, indicating that the decision of 24 May 2002 was final and therefore no appeal lay against it. 17. On 31 May 2002 the applicant was released from the hospital upon completion of her psychiatric assessment. 18. On the same day a commission consisting of three certified psychiatrists and one certified psychologist issued a report concerning the applicant’s psychiatric health and psychological state. The principal conclusion of the experts was that the applicant suffered from persistent delusions about being persecuted by communists and various other persons, including officials of her local municipality. They also found that the applicant was egocentric and her ability to objectively and adequately assess reality and her own behaviour was impaired. The overall conclusion was that the applicant “was unable to take account of her actions and to control them and [was to be] considered to have been in a state of mental incapacity (nepieskaitāma) with regard to the offence she was accused of”. It was recommended that the applicant should undergo out-patient psychiatric treatment. 19. On 28 June 2002 a public prosecutor of the Saldus District adopted a decision to discontinue the criminal proceedings against the applicant. The decision indicated that the applicant “had committed” the criminal offence mentioned in section 271 of the Criminal Law and that her guilt had been proved by all the materials obtained during the pre-trial investigation. However, taking into account the applicant’s mental incapacity and the fact that there was no need to order her compulsory treatment in a psychiatric hospital, the criminal proceedings were terminated. 20. On 22 January 2004 the applicant submitted a civil-law complaint to the Rīga City Ziemeļu District Court. She complained about being held in the psychiatric hospital and indicated that it was still unclear to her why she had been held there. The complaint was directed against the hospital and contained a request for 2,000 Latvian lati (LVL) in compensation for restriction of the applicant’s liberty and for harm done to her honour and reputation. 21. On 25 March 2004 the applicant submitted an additional complaint about, inter alia, the conditions in the hospital. She also named as additional defendants the two doctors who had observed her. The applicant further noted that while detained she had “had no possibility to appeal against the decisions of the [judge of the Saldus District Court] or the public prosecutor, which [she] had not received” and that she had not been allocated a lawyer, in contravention of the law. In another complaint dated 5 April 2004 the applicant complained, inter alia, that she had not been summoned to the hearing of the Saldus District Court, had had no possibility to defend herself and had not been sent a copy of the decision. The amount of compensation requested was increased to LVL 10,000. 22. The first-instance court rejected the applicant’s claim by a judgment on the merits which was adopted on 1 November 2004. The court pointed out that the applicant’s liberty had been restricted in accordance with decisions of a public prosecutor and a court and accordingly the deprivation of liberty had not been unlawful. It was further noted that since the psychiatric hospital where the applicant had been held had received a certificate which attested to its compatibility with the standards set forth in Latvian legislation, the applicant’s complaints regarding the conditions in the hospital were ill-founded. The applicant’s complaint about the alleged impossibility of appealing against the decisions of the public prosecutor and the Saldus District Court was not addressed in the judgment. 23. On 8 November 2004 the applicant lodged an appeal against the judgment of the first-instance court. On 3 December she supplemented her appeal. She complained, inter alia, about having been held in a psychiatric hospital for an excessive length of time despite having been “completely healthy”. The applicant also reiterated her complaint that she had been unable to appeal against the decision to place her in a psychiatric hospital because she had not been informed of that decision, and that she had not been summoned to the relevant court hearing. 24. On 27 January 2005 the Rīga Regional Court rejected the applicant’s appeal. That court held that the applicant’s constitutional right to liberty had not been violated because she had been placed in the psychiatric hospital in accordance with the law. It also held that the applicant’s placement in the hospital had been “proportionate” (“samērīgs”) with the aim to determine whether she had “realised and understood the nature and consequences of her actions”. The applicant’s complaint about her purported inability to appeal against the court order requiring her placement in the psychiatric hospital was not addressed. 25. On 23 May 2005 the Senate of the Supreme Court, in a preparatory meeting (rīcības sēde), rejected the applicant’s appeal on points of law. The Senate pointed out that the applicant had failed to indicate any violations of material or procedural norms. 26. At the relevant time the placing of suspects or accused persons in medical institutions was governed by Article 191 of the Code of Criminal Procedure (in force until 1 October 2005), which provided as follows: “If during the performance of a ... forensic psychiatric assessment there arises a necessity to observe and test the suspect or accused person, the public prosecutor can adopt a reasoned decision and place him in an appropriate medical institution. If the suspect or the accused person is not in detention, he may only be placed in a medical institution on the basis of a decision by a judge or by a court. ...” 27. Pursuant to Article 98 of the Code of Criminal Procedure, the participation of defense counsel was compulsory during a trial before the first-instance court, as well as during a pre-trial investigation in cases concerning, inter alia, persons “unable to exercise their rights to defence because of mental defects”. If the person in question had not chosen a legal representative, the prosecutor or the court had an obligation to ensure the participation of defence counsel. 28. Article 97 obliged defence counsel to use “all legal means and methods” to provide the necessary legal assistance to their clients. To that end counsel had a right to meet with their client alone, to take part in various procedural actions, to lodge complaints and requests, and to submit evidence. 29. Article 2221 provided as follows: “The suspect, the accused person or their representative may appeal against a decision of a judge concerning ... placement in a medical institution ... Such appeal may be lodged within seven days of the time when the person in question has become aware ... of the placement in a medical institution... Such appeal ... shall be heard by a higher court, which shall adopt a decision to quash the judge’s decision or to leave it unchanged. A decision shall be adopted no later than seven days after a complaint ... has been received at the court, in the presence of the person who has lodged the appeal ... and the prosecutor. The decision of the court shall be final and not subject to appeal.” 30. In a judgment of 29 October 2003 the Constitutional Court of Latvia declared section 271 of the Criminal Law, under which the applicant had been indicted, unconstitutional as being inconsistent with freedom of speech. In accordance with that judgment, section 271 became invalid on 1 February 2004. 31. Section 2352 of the Civil Law provides: “If someone unlawfully deprives another person of their personal liberty, they shall restore the liberty and shall, at the discretion of a court, give full compensation thereof, including compensation for non-pecuniary damage”. | 1 |
train | 001-58374 | ENG | FRA | CHAMBER | 1,999 | CASE OF KHALFAOUI v. FRANCE | 1 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. On 20 June 1993 the applicant was informed that he was the subject of a criminal investigation and placed in pre-trial detention on the charge of indecent assault by a person abusing the authority conferred on him by his duties. He was accused of indecently assaulting a woman patient during a vaginal and rectal examination while he was a houseman at a hospital in Montbéliard. 10. The applicant was released under judicial supervision on 24 January 1994. He was required not to enter the urban district of Montbéliard, save in obedience to a summons; to report once a week to Brunoy police station; to hand over his passport and identity card to the registry of the investigating judge; to refrain from entering into contact with the victim; and to deposit 60,000 French francs (FRF) with the registrar of the criminal court. 11. An order of 17 June 1994 partially modifying the conditions of judicial supervision enabled the applicant to travel to Tunisia between July and September 1994. A second application for modification of the conditions of judicial supervision, whereby the applicant sought permission to begin a four-year course of study in Tunisia, was refused by the investigating judge in a decision of 17 October 1994. 12. By an order dated 8 February 1995, the applicant was committed for trial in the Montbéliard Criminal Court. 13. After his trial on 2 June 1995, which the applicant attended in person, the Montbéliard Criminal Court sentenced him to three years’ imprisonment, with one of those years suspended, and ordered him to pay FRF 30,000 in damages to the civil party. The applicant was not present when judgment was delivered on 23 June 1995. 14. In a judgment of 21 November 1995 the Besançon Court of Appeal, after a hearing which was also attended by the applicant, upheld the impugned judgment with regard to the finding of guilt but increased the sentence to four years’ imprisonment, with two of those years suspended, and the damages awarded to the civil party to FRF 40,000. It did not issue a warrant for the applicant’s arrest. 15. On 27 November 1995 the applicant gave notice of an appeal on points of law against the above judgment. 16. By a letter of 20 August 1996, sent to his home in Tunis, the applicant was informed by the Principal Public Prosecutor’s Office at the Besançon Court of Appeal that he was required to surrender to custody on the day before the hearing in the Court of Cassation at the latest, pursuant to Article 583 of the Code of Criminal Procedure, and that the hearing in the Court of Cassation had been set down for 24 September 1996. 17. By a request submitted through his lawyer on 16 September 1996, the applicant applied to the Besançon Court of Appeal, under Article 583 of the Code of Criminal Procedure, for exemption from the obligation to surrender to custody before the hearing at which his appeal on points of law was to be examined by the Court of Cassation. 18. In support of the above request the applicant, who had returned to Tunisia after the Court of Appeal’s judgment of November 1995, produced a medical certificate dated 2 September 1996 from a professor at a Tunis hospital which stated that he had bacilliform pulmonary tuberculosis, first diagnosed in May 1996. This required him to take sick-leave from work and rest for two months, the time needed for intensive treatment of the contagious disease. 19. The applicant asserted that in those circumstances he could not leave Tunisian territory, that his state of health excluded any possibility of his undergoing imprisonment and that making the admissibility of his appeal on points of law depend on his prior incarceration breached Article 6 of the Convention. 20. In a judgment of 19 September 1996, following a hearing which the applicant did not attend, but at which he was represented by his lawyer, the Besançon Court of Appeal, rejecting State Counsel’s submissions, refused the request on the following grounds: “Although the medical certificates produced show the onset of bacilliform pulmonary tuberculosis in May 1996, and the prescription of two months’ rest from 2 September 1996 onwards, they do not establish either that it is impossible for Mr Khalfaoui to travel and to follow a course of treatment appropriate to his condition in France or that any possibility of imprisonment is excluded, as alleged. Article 6 § 3 (c) of the Convention does not give defendants the right to decline to appear before the courts but only the right, if they do appear, to defend themselves in person or with the assistance of a lawyer. Consequently, the provisions of Article 583 of the Code of Criminal Procedure do not appear to be contrary in any way to the principles set out above ...” 21. In a judgment of 24 September 1996 the Court of Cassation declared the applicant’s right to appeal on points of law forfeit, on the ground that he had not surrendered to custody and had not obtained an exemption from the obligation to do so. 22. The relevant provisions of the Code of Criminal Procedure are the following: “Judgments of indictment divisions, and judgments delivered in connection with serious crimes, lesser indictable offences and summary offences against which no ordinary appeal lies, may be quashed in the event of a breach of the law on an appeal on points of law lodged by State Counsel’s Office or by a party affected to his detriment ... The appeal must be lodged with the Criminal Division of the Court of Cassation.” The cases where an appeal on points of law lies for a breach of the law are listed in Articles 593 and 596 as: failure to give reasons, exceeding authority, failure to reply to submissions and, where lesser indictable offences are concerned, imposition of a penalty not prescribed by law. “During the time allowed for an appeal on points of law and, where such an appeal has been lodged, until the Court of Cassation delivers judgment, execution of the judgment of the court of appeal shall be stayed, except in respect of orders concerning civil matters, and unless the court of appeal upholds the warrant issued by the trial court pursuant to Article 464-1 or Article 465, first sub-paragraph, or unless it issues a warrant itself under the same conditions and according to the same rules.” “If a person sentenced to a term of imprisonment of more than six months has not surrendered to custody and has not obtained from the court which convicted him, with or without payment of a surety, exemption from the obligation to surrender to custody, his right to appeal on points of law shall be forfeit. The memorandum of imprisonment or the judgment granting exemption shall be produced before the Court of Cassation not later than the time when the case is called for hearing. For his appeal to be admissible, it is sufficient for the appellant to establish that he has surrendered to custody at a prison, either in the place where the Court of Cassation sits or in the place where sentence was passed. The governor of that prison shall admit him there on the order of the Principal Public Prosecutor at the Court of Cassation or of the head of the public prosecutor’s office at the court of trial or appeal.” 23. Article 583 of the Code of Criminal Procedure has been amended by Law no. 99-515 of 23 June 1999, which increased the length of the term of imprisonment contemplated therein from six months to one year. The rest of Article 583 is unchanged. Law no. 99-515 also added to the Code a new Article 583-1, which provides: “The provisions of Article 583 are not applicable where a court has convicted a defendant in his or her absence after refusing to apply Article 410 or Article 411. In such a case an appeal on points of law lies only in respect of the legality of the decision in which the court refused to recognise the validity of the excuse put forward by the defendant pursuant to Article 410 or to try him in his absence in accordance with Article 411.” | 1 |
train | 001-58282 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF ÇAKICI v. TURKEY | 1 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 3 (applicant's brother);No violation of Art. 3 (applicant);Violation of Art. 5;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Luzius Wildhaber | 8. The applicant, Mr İzzet Çakıcı, is a Turkish citizen who was born in 1953 and is at present living in Diyarbakır in south-east Turkey. His application to the Commission was brought on his own behalf and on behalf of his brother Ahmet Çakıcı, who, he alleges, has disappeared in circumstances engaging the responsibility of the State. 9. The facts surrounding the disappearance of the applicant’s brother are disputed. 10. The facts presented by the applicant are contained in Section 1 below. In his memorial to the Court, the applicant relied on the facts as established by the Commission in its report (former Article 31 of the Convention) adopted on 12 March 1998 and his previous submissions to the Commission. 11. The facts as presented by the Government are set out in Section 2. 12. A description of the materials submitted to the Commission is contained in Part C. A description of the proceedings before the domestic authorities regarding the disappearance of the applicant’s brother as established by the Commission is set out in Part D. 13. The Commission, with a view to establishing the facts in the light of the dispute over the circumstances surrounding the disappearance of the applicant’s brother, conducted its own investigation pursuant to former Article 28 § 1 (a) of the Convention. To this end, the Commission examined a series of documents submitted by both the applicant and the Government in support of their respective assertions and appointed three delegates to take the evidence of witnesses at hearings conducted in Ankara on 3 and 4 July 1996 and in Strasbourg on 4 December 1996. The Commission’s evaluation of the evidence and its findings thereon are summarised in Part E. 14. On 8 November 1993, the applicant’s brother, Ahmet Çakıcı, was detained during an operation in the village of Çitlibahçe carried out by gendarmes and village guards. When the operation commenced early in the morning, Ahmet Çakıcı hid in a house near the fountain while the other men were gathered in an open area. The security forces began setting fire to the houses. Ahmet Çakıcı retrieved money, 4,700,000 Turkish liras (TRL), which he had hidden in the roof of his house and was caught leaving the house. Ahmet Çakıcı was taken from the village by the security forces. This was witnessed by the other villagers. The money was taken from Ahmet Çakıcı by a first lieutenant. Remziye Çakıcı, Ahmet Çakıcı’s wife, was told by a boy from the village that he had seen a gendarme take money from Ahmet Çakıcı. 15. Ahmet Çakıcı was first taken to Hazro, where he was kept overnight before being taken to Diyarbakır. In Diyarbakır, he was detained at the provincial gendarmerie headquarters. After about six to seven days, he was held for sixteen to seventeen days in the same room as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been taken into custody on 8 November 1993 by the security forces in an operation at Bağlan. Ahmet Çakıcı had been beaten, a rib being broken and his head split open. He was taken out of the room for interrogation on several occasions, when he received electric shocks and was beaten. Mustafa Engin was also told by Ahmet Çakıcı that a first lieutenant had taken money from him. At the end of this period, the other three detainees were brought before the court. Engin and Demirbaş were released and Abdurrahman Al was remanded in custody. Engin did not see Ahmet Çakıcı again. 16. After eighty-five days at the provincial gendarmerie headquarters, in or about late January-early February 1994, Ahmet Çakıcı was taken back to Hazro where he was detained for several months. From there he was moved to the gendarmerie station at Kavaklıboğaz. During a period of thirteen days in or about spring or early summer 1994, Hikmet Aksoy, who was also detained at Kavaklıboğaz, saw Ahmet Çakıcı when they were taken out of the cells for meals. At the end of that period, Hikmet Aksoy was transferred to Lice. 17. In May 1996, following the transmission of Government submissions, the applicant learned for the first time that it was claimed by the authorities that Ahmet Çakıcı had been killed in a clash between 17 and 19 February 1995 on Kıllıboğan Hill, Hani. The identification appeared to be based solely on the claim that Ahmet Çakıcı’s identification card was found on one of the bodies. 18. The Government recall that at this time the PKK (the Workers’ Party of Kurdistan) had destroyed numerous villages, inflicted suffering on thousands of innocent victims and exerted intolerable oppression over the population of the south-east region. 19. They state that Ahmet Çakıcı was not taken into custody by the security forces during the operation carried out at Çitlibahçe on 8 November 1993 and was not held in detention over any subsequent period. The custody records indicated that he was not held at Hazro or at Diyarbakır provincial gendarmerie headquarters. Nor was he was taken to the gendarmerie station at Kavaklıboğaz. 20. Ahmet Çakıcı was a militant member of the PKK organisation. Following an armed clash between the PKK and the security forces on 17 to 19 February 1995, he had been found dead with fifty-five other militants at Kıllıboğan Hill. Ahmet Çakıcı had been implicated in the killing on 23 October 1993 of five teachers from Dadaş whom he had reportedly described as “servile dogs of the State”. He most probably disappeared after this incident with the intention of escaping justice and continuing his activities for the PKK. 21. No complaint was made to the public prosecutor at Hasro by any member of the applicant’s family in respect of the alleged disappearance. 22. In the proceedings before the Commission, the applicant and the Government submitted a number of statements by the applicant, which he had made to the Human Rights Association in Diyarbakır (HRA) and to the public prosecutor at Diyarbakır. Statements had also been taken by the HRA and the public prosecutor from Remziye Çakıcı, the wife of Ahmet Çakıcı, and Mustafa Engin, who had been detained from 9 November to 1 December 1993 at Diyarbakır provincial gendarmerie headquarters. Mustafa Engin had also made a statement to a police officer. Statements had been taken by Osman Baydemir, on behalf of the applicant, from Abdurrahman Al, who had been detained at the same time as Mustafa Engin, and from two villagers, Mehmet Bitgin and Fevzi Okatan. 23. The Government also provided an arrest report dated 8 November 1993 concerning the apprehension of Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, two operation reports dated 7 and 8 November 1993 respectively concerning the operation at Çitlibahçe village, documents concerning the witness Hikmet Aksoy whom the Commission’s delegates had summoned to give evidence but who did not appear and documents relating to inquiries made by the authorities into the allegations. 24. The Commission requested copies of the custody records for the relevant period for Hazro gendarmerie station, Lice gendarmerie station, Diyarbakır provincial gendarmerie headquarters and the gendarmerie station at Kavaklıboğaz. The Commission’s delegates further requested the opportunity to inspect the original records of Hazro, Diyarbakır and Kavaklıboğaz. The Government provided the original custody record of the Hazro central gendarmerie station as well as copies of the custody record of Lice gendarmerie headquarters and Diyarbakır provincial gendarmerie headquarters for the relevant period. The Government did not provide the Commission’s delegates with sight of the original custody record for Diyarbakır provincial gendarmerie headquarters, or with either a copy of, or sight of, the original custody record for the gendarmerie station of Kavaklıboğaz. 25. On 22 December 1993, Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı, submitted a handwritten petition to the Diyarbakır National Security Court requesting information as to what had happened to Ahmet Çakıcı, who had been taken into custody on 8 November 1993 by the security forces at the same time as Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş, who had been released twenty-four days later. An oral reply was given to him that Ahmet Çakıcı was not on the list of persons in custody. 26. By letter dated 4 April 1994, the Hazro public prosecutor, Aydın Tekin, informed the Chief Public Prosecutor at the Diyarbakır National Security Court that, on examination of their records, Ahmet Çakıcı had not been taken into custody or detained on 8 November 1993. 27. By letter dated 19 April 1994 to the Chief Public Prosecutor at the Diyarbakır National Security Court, the Hazro public prosecutor, Aydın Tekin, confirmed his letter of 4 April 1994 and stated that no application had been filed by Ahmet Çakıcı’s family to the effect that he was missing. 28. By letter dated 18 August 1994, the Ministry of Justice (General Directorate for International Law and External Relations), referring to correspondence from the Foreign Ministry of 19 July 1994 outlining the complaints made by the applicant to the European Commission of Human Rights, requested the Diyarbakır Attorney-General to have the applicant’s complaints investigated and evaluated according to law. 29. On 9 September 1994, the applicant’s statement was taken by a public prosecutor at Diyarbakır. In his statement, he stated that his brother Ahmet Çakıcı had been taken into custody by soldiers on 8 November 1993 and that he had been seen by Mustafa Engin and Tahsin Demirbaş, who were also detained. On 25 November 1994, the public prosecutor took a statement from Remziye Çakıcı. She stated that gendarmes had taken away her husband during an operation on 8 November 1993. 30. By letter dated 1 December 1994, Colonel Eşref Hatipoğlu of Diyarbakır provincial gendarmerie command informed the Diyarbakır Attorney-General, in reply to a letter of enquiry of 22 November 1994, that their records indicated that Ahmet Çakıcı had not been detained on 8 November 1994 [error for 1993]. 31. By letter dated 8 December 1994, Colonel Eşref Hatipoğlu reported to the Diyarbakır provincial authorities on the subject of the applicant’s application to the European Commission of Human Rights. It was reported, inter alia, that police officers had been unable to find the addresses of the applicant, his father, Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al or Tahsin Demirbaş for the purpose of taking their statements. It had been established that Ahmet Çakıcı, who was alleged to be missing, was involved with the PKK, having participated in killings. He was reported to have been a member of the PKK mountain team which, on 23 October 1993, kidnapped seven persons (five teachers, an imam and the imam’s brother) from Dadaş village and killed five of them. Their headquarters were looking for him. 32. By letter dated 1 March 1995, Colonel Eşref Hatipoğlu forwarded to Hazro district gendarmerie command documents found in the area and upon the bodies of fifty-six terrorists found dead as a result of an operation carried out in the Kıllıboğan region from 17-19 February 1995. 33. By letter dated 14 March 1995, Hazro public prosecutor Mustafa Turhan requested that the Lice public prosecutors investigate whether Mustafa Engin and Tahsin Demirbaş were detained by the gendarmes on 8 November 1993, and that they seek observations from Mustafa Engin concerning Ahmet Çakıcı, who was alleged to have disappeared in custody. 34. By letter dated 14 April 1995, Hazro public prosecutor Mustafa Turhan requested the Hazro district gendarmerie command urgently to inform him concerning the operation carried out in Çitlibahçe on 8 November 1993 and to investigate and establish whether Ahmet Çakıcı had been detained along with Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş. 35. By letter dated 17 May 1995, the Hazro district gendarmerie command informed the Hazro public prosecutor in reply that the operation on 8 November 1993 had been intended to capture members of the PKK and those aiding and abetting them and that their records indicated that Ahmet Çakıcı, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş had not been detained. 36. By letter dated 22 May 1995, the Hazro public prosecutor requested the Hazro district gendarmerie command as a matter of urgency to establish the whereabouts of Ahmet Çakıcı. 37. By letter dated 23 June 1995 to the Hazro public prosecutor, the district gendarmerie command at Hazro referred to the prosecutor’s enquiry dated 22 May 1995 about the whereabouts of Ahmet Çakıcı and to the letter dated 1 March 1995 from the Diyarbakır provincial gendarmerie command. It stated that Ahmet Çakıcı had been a member of the PKK. Following an operation carried out at Kıllıboğan Hill on 17-19 February which resulted in the deaths of fifty-six terrorists, Ahmet Çakıcı’s identity was established by the identity card located amongst the documents found on the body of a terrorist. It was concluded that he was one of the terrorists. 38. By letter dated 27 June 1995, the Hazro public prosecutor informed the Diyarbakır Attorney-General, in reference to their letter of 1 December 1994 and the letter of the Ministry of Justice of 18 August 1994, that an operation had been carried out on 8 November 1993 in order to apprehend members of the PKK and those assisting them and that Ahmet Çakıcı, Mustafa Engin and Tahsin Demirbaş had not been detained as claimed. Referring to the letter of 23 June 1995 above, it was stated that Ahmet Çakıcı was a member of the PKK and found dead during operations carried out in the Kıllıboğan Hill region, Hani district, on 17-19 February 1995. The Lice public prosecutor had been requested to obtain a statement from Mustafa Engin, a response to which was still awaited. 39. By letter dated 4 July 1995, the Hazro public prosecutor’s office informed the Ministry of Justice (Directorate of International Law and Foreign Affairs) of the information provided by the Hazro gendarmes (see paragraph 37 above). It stated that a preliminary investigation (no. 1994/191) had been started and was still pending. 40. By letter dated 5 March 1996, the Hazro public prosecutor informed the Ministry of Justice that upon its request the Diyarbakır Attorney-General had been instructed to take a statement from Mustafa Engin. 41. On 12 March 1996, a police officer took a brief statement from Mustafa Engin in which it was stated that he had not seen Ahmet Çakıcı for three years. On 13 May 1996, a public prosecutor at Diyarbakır took a statement from Mustafa Engin. In this statement, he stated, inter alia, that he had not seen Ahmet Çakıcı in custody though Ahmet Çakıcı might have seen him and referred to himself having been given electric shocks once while he was detained at Diyarbakır provincial gendarmerie headquarters. 42. By decision of 13 June 1996, Hazro public prosecutor Mustafa Turhan issued a decision of lack of jurisdiction and transferred the file to the District Administrative Council. The decision named the applicant and Remziye Çakıcı as the complainants and identified the victim as Ahmet Çakıcı. The offence was described as ill-treatment, torture and confiscation of money of a detainee and the defendants as unidentified individuals of Hazro gendarmerie station and village guards. It stated that the complainants claimed that soldiers from Hazro gendarmerie command arrived in Çitlibahçe on the morning of 8 November 1993 and detained the victim, that the victim had been taken to Diyarbakır where he was tortured and that a lieutenant had removed TRL 4,280,000 from him. The investigation had established that the victim was a member of the PKK terrorist organisation and that following an operation by the security forces in the Kıllıboğan Hill region on 17 and 19 February the victim’s identity card had been located on one of the dead terrorists, thus confirming the individual’s identity as Ahmet Çakıcı without doubt. Mustafa Engin had made a statement to the effect that he had not seen Ahmet Çakıcı. The suspects fell under the Law on the prosecution of civil servants and following the withdrawal by the Hazro prosecution the documentation was transferred to the Presidency of Hazro District Administrative Council for the necessary action. 43. Since the facts of the case were disputed, particularly concerning the events in or around November 1993, the Commission conducted an investigation, with the assistance of the parties, and accepted documentary evidence, including written statements and oral evidence taken from eleven witnesses: the applicant; Fevzi Okatan, previous muhtar of Çitlibahçe; Remziye Çakıcı, the wife of Ahmet Çakıcı; Mustafa Engin, who had been detained at Diyarbakır provincial gendarmerie headquarters from 9 November to 1 December 1993; Ertan Altınoluk, who had been gendarmerie commander of Hazro in November 1993 and had commanded the operation at Çitlibahçe on 8 November 1993; Mehmet Bitgin, a villager from Çitlibahçe; Mustafa Turhan, public prosecutor in Hazro from November 1994; Aytekin Türker, the Hazro central station commander at Hazro district gendarmerie headquarters from July 1993 to August 1994; Ahmet Katmerkaya, the gendarme responsible for keeping the custody records at Diyarbakır provincial gendarmerie headquarters since August 1992; Kemal Çavdar, a gendarme who had served at Kavaklıboğaz station from July 1993 to August 1995; and Abdullah Cebeci, the brother of the imam who had been kidnapped with five teachers from Dadaş. A further six witnesses had been summoned but did not appear: Aydın Tekin, Hazro public prosecutor in 1994; Colonel Eşref Hatipoğlu, Diyarbakır provincial gendarmerie commander; Hikmet Aksoy, who was alleged by the applicant to have seen his brother in detention at Kavaklıboğaz; Tevfik Çakıcı, the father of the applicant and Ahmet Çakıcı; Tahsin Demirbaş and Abdurrahman Al, who had both been detained at Diyarbakır provincial gendarmerie headquarters from 8 November to 1 December 1993. It appeared that Tevfik Çakıcı had died prior to the hearing. The Government claimed that they were unable to locate the witness Hikmet Aksoy for the hearing in July 1996 despite the fact that they had been provided with information from the applicant that he was detained in Konya Prison. The Government stated that Hikmet Aksoy was served with the summons for the hearing to take place before the delegates on 20 November 1996 but that he refused to sign the acknowledgment of service and was released from prison on 18 November 1996. The Government failed to provide the Commission with any explanation as to the timing and reason for his release. Aydın Tekin had informed the Commission by letter that he had no direct or indirect knowledge of the incident and that he did not consider himself obliged to attend. At the hearing in July 1996, the Government Agent explained to the delegates that they were unable to require public prosecutors to attend, nor could they oblige a senior officer such as Eşref Hatipoğlu to attend either. The Commission made a finding in its report (at paragraph 245) that the Government had fallen short of their obligations under former Article 28 § 1 (a) of the Convention to furnish all the necessary facilities to the Commission in its task of establishing the facts. It referred to (i) the Government’s failure to provide the Commission’s delegates with the opportunity to view original custody records (see paragraph 24 above); (ii) the Government’s failure to facilitate the attendance of the witness Hikmet Aksoy; (iii) the Government’s failure to secure the attendance of the witnesses Aydın Tekin and Eşref Hatipoğlu. 44. In relation to the oral evidence, the Commission was aware of the difficulties attached to assessing evidence obtained orally through interpreters. It therefore paid careful attention to the meaning and significance which should be attributed to the statements made by witnesses appearing before its delegates. In a case where there were contradictory and conflicting factual accounts of events, the Commission particularly regretted the absence of a thorough domestic judicial examination. It was aware of its own limitations as a first-instance tribunal of fact. In addition to the problem of language adverted to above, there was also an inevitable lack of detailed and direct familiarity with the conditions pertaining in the region. Moreover, the Commission had no power to compel witnesses to appear and testify. In the present case, while seventeen witnesses had been summoned to appear, only eleven gave evidence. The lack of documentary materials is adverted to above. The Commission was therefore faced with the difficult task of determining events in the absence of potentially significant testimony and evidence. The Commission’s findings may be summarised as follows. 45. Çitlibhaçe was in a district where terrorist activity was intense in 1993. On or about 23 October 1993, members of the PKK kidnapped five teachers, an imam and the imam’s brother, Abdullah Cebeci, from the village of Dadaş and marched them across country, passing near the village of Bağlan. Mustafa Engin was required to shelter one of the teachers, who was of Kurdish origin, overnight before allowing him to leave. The PKK shot and killed the remaining four teachers and the imam, while Abdullah Cebeci, though wounded, was able to reach safety. He gave the gendarmes at Lice gendarmerie headquarters descriptions of the persons whom he had seen, including the villagers who had brought food and stood guard. Bağlan was a village under the jurisdiction of Lice gendarmes. The kidnap victims had also passed close to the village of Çitlibahçe, less than a kilometre from Bağlan, but which was under the jurisdiction of the Hazro gendarmes. 46. The gendarmes from Hazro and Lice conducted a coordinated operation on 8 November 1993. This operation concerned the collecting of evidence and information relating to the kidnapping and murder and the apprehension of persons suspected of involvement. Ertan Altınoluk was in command of the gendarmes from Hazro. The operation order drawn up by him on 7 November 1993 indicated that the purpose of the operation was the capture of PKK terrorists and their collaborators and the destruction of shelters, and it named Çitlibahçe as the place of the operation. The Commission rejected the testimony of Ertan Altınoluk that they were not looking for Ahmet Çakıcı when they went to Çitlibahçe. The delegates assessed his evidence as evasive and unhelpful, and demonstrating a lack of sincerity. The Commission had regard to the evidence from two other gendarmes that Ahmet Çakıcı was already wanted by the authorities in relation to suspected PKK involvement before this operation and found that in all probability the Hazro gendarmes went to Çitlibahçe with the intention of locating and apprehending Ahmet Çakıcı in relation to the kidnapping incident. 47. The Commission assessed the evidence of the witnesses from the village, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who stated that they saw Ahmet Çakıcı being taken from the village by the gendarmes, as being on the whole consistent, credible and convincing. They found the Government’s objections to their credibility to be unfounded on examination. Accordingly, the Commission found that when the gendarmes arrived in Çitlibahçe on 8 November 1993, Ahmet Çakıcı attempted to hide but was found and taken from the village in custody by the Hazro gendarmes. Meanwhile, in Bağlan village, the Lice gendarmes took into detention three individuals, Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş. 48. Mustafa Engin, Abdurrahman Al and Tahsin Demirbaş were taken to Lice gendarmerie headquarters where they spent the night. They were not entered into the custody records. The next day, on 9 November 1993, they were taken to Diyarbakır provincial gendarmerie headquarters, where entries in the custody record stated that they had been detained on that day. 49. The Hazro gendarmerie station custody record made no entry on 8 November with respect to Ahmet Çakıcı. Nor did the copies of the entries for the period November to December 1993 at the Diyarbakır provincial gendarmerie headquarters. The Commission examined in detail the entries for both. It found disturbing discrepancies. In particular, it found that entries were not in sequential or chronological order; that all the entries in the Diyarbakır custody record were in the same handwriting; and that the number of persons recorded as detained in Diyarbakır exceeded the officially available number of cells. This gave rise, inter alia, to a strong suspicion that entries were not made contemporaneously. The oral explanations of Ahmet Katmerkaya, who was responsible for the Diyarbakır provincial gendarmerie records, were found by the Commission to be highly unsatisfactory, indicating that an entry in the register did not necessarily indicate the physical presence of a suspect and that no entries were made to reflect the movements of suspects in and out of the custody area. It concluded that the record did not constitute an accurate or comprehensive record of the persons who might have been detained over that period and the absence of Ahmet Çakıcı’s name in the Hazro and Diyarbakır records was not sufficient to prove that he had not been taken into custody. 50. The Commission accepted the oral evidence of Mustafa Engin, who stated that while he was detained at Diyarbakır provincial gendarmerie headquarters he saw and spoke to Ahmet Çakıcı, who was detained over a period of sixteen to seventeen days in the same room. It also accepted his evidence that Ahmet Çakıcı looked in a bad condition, with dried blood on his clothes, and that Ahmet Çakıcı had told him that he had been beaten, one of his ribs broken, his head split open and that he had been given electric shocks twice. Supporting evidence for the fact that Ahmet Çakıcı had been detained and ill-treated was to be found in the written statement of Abdurrahman Al, taken by the HRA. The Commission gave consideration to the written statements made by Mustafa Engin and relied on by the Government as undermining his oral testimony. It found the first statement taken from Mustafa Engin by a police officer on 12 March 1996 to be a brief and imprecise denial. The statement taken by a public prosecutor on 13 May 1996 was also brief and contained contradictory and ambiguous phrasing. It concluded that this statement was not a full and frank reflection of Mustafa Engin’s testimony and did not destroy the credibility of his evidence to the delegates. It accordingly found it established that Ahmet Çakıcı was taken after his apprehension at Çitlibahçe to Hazro where he spent the night of 8 November 1993 and that he was transferred to Diyarbakır provincial gendarmerie headquarters where he was last seen by Mustafa Engin on or about 2 December when the latter was released. 51. The Commission made no findings as to the allegation made by the applicant that Ahmet Çakıcı was taken from Diyarbakır provincial gendarmerie headquarters to Hazro and from Hazro to Kavaklıboğaz gendarmerie station. These allegations were based on oral statements made to the applicant by Hikmet Aksoy, who did not appear before the delegates and who had not produced any written statement. While there were some supporting elements, the Commission found that the evidence failed to reach the requisite standard of proof. 52. The family of Ahmet Çakıcı were not informed of his alleged death in a clash between the PKK and the security forces on 17 to 19 February 1995. Although Colonel Eşref Hatipoğlu had been requested to provide the authorities with information as to the whereabouts of Ahmet Çakıcı, he made no official report as to the alleged finding of Ahmet Çakıcı’s identity card on the body of one of the dead terrorists at Kıllıboğan Hill. The first report as to the finding of the identity card was made by the Hazro gendarmes, who had been passed information that the clash had occurred, accompanied by unspecified documents, by Colonel Hatipoğlu. There were however no documents provided to the Commission relating to the identification of the body or release of the body for burial. The Commission was not prepared to find it established that Ahmet Çakıcı was killed as alleged or that his body was amongst those found at Kıllıboğan Hill. 53. The Commission found that the applicant and his father, Tevfik Çakıcı, made petitions and enquiries to the National Security Court prosecutor at Diyarbakır in relation to the disappearance of Ahmet Çakıcı. The only steps taken by the authorities were to verify whether the National Security Court records contained the name of Ahmet Çakıcı and for an enquiry to be sent to the Hazro public prosecutor, who examined his records. 54. Following communication of the application to the Government, further enquiries were made by the Diyarbakır and Hazro public prosecutors. Statements were taken from Mustafa Engin, Remziye Çakıcı and the applicant. The addresses of Tahsin Demirbaş and Abdurrahman Al were not discovered. The Commission found that the Hazro public prosecutor made enquiries from the Hazro district gendarmerie as to their alleged apprehension of Ahmet Çakıcı but that he did not inspect the original custody record. Nor was any inspection carried out by a public prosecutor of the Diyarbakır provincial gendarmerie custody records. No steps were taken to verify the information submitted by the Hazro district gendarmerie that Ahmet Çakıcı was amongst the dead terrorists at Kıllıboğan Hill. 55. In reaching his decision of lack of jurisdiction of 13 June 1996, the Hazro public prosecutor had available to him the statements taken from Mustafa Engin, Remziye Çakıcı and the applicant and the information from the Hazro gendarmerie with regard to the alleged discovery of Ahmet Çakıcı’s body. He also may have had documents relating to the applicant’s application to the Commission and copies of custody records. 56. The Government have not submitted in their memorial any details on domestic legal provisions which have a bearing on the circumstances of this case. The Court refers to the overview of domestic law derived from previous submissions in other cases, in particular the Kurt v. Turkey judgment of 25 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1169-70, §§ 56-62, and the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1512-13, §§ 25-29. 57. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces. 58. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-eastern Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor. 59. The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8: “No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” 60. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review ... … The administration shall be liable to make reparation for any damage caused by its own acts and measures.” 61. This provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose liability is of an absolute, objective nature, based on the theory of “social risk”. Thus, the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 62. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 63. The Turkish Criminal Code makes it a criminal offence: – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to issue threats (Article 191); – to subject an individual to torture or ill-treatment (Articles 243 and 245); – to commit unintentional homicide (Articles 452, 459), intentional homicide (Article 448) and murder (Article 450). 64. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not to bring a prosecution (Article 153). Complaints may be made in writing or orally. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 65. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Pursuant to Article 41 of the Code of Obligations, an injured person may file a claim for compensation against an alleged perpetrator who has caused damage in an unlawful manner whether wilfully, negligently or imprudently. Pecuniary loss may be compensated by the civil courts pursuant to Article 46 of the Code of Obligations and non-pecuniary or moral damages awarded under Article 47. 66. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey. 67. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 58 above) shall be subject, in respect of acts performed in the course of their duties, to the Law of 1914 on the prosecution of civil servants. Thus, any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. These councils are made up of civil servants, chaired by the governor. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. | 1 |
train | 001-89966 | ENG | ARM | CHAMBER | 2,008 | CASE OF MKHITARYAN v. ARMENIA | 3 | Remainder inadmissible;Violation of Art. 3;Violation of Art. 6-1 and 6-3-b;Violation of P7-2;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1965 and lives in the village of Karakert, Armenia. 5. The applicant has been a member of the Armenian Communist Party since 1998. 6. In February and March 2003 a presidential election took place in Armenia. Following the first and second rounds of the election, a series of protest rallies were organised in Yerevan by the opposition parties, alleging irregularities. 7. On 21 March 2003 the applicant participated in a rally in Yerevan which was part of a nationwide public demonstration. Following the demonstration the applicant returned to his home in the village of Karakert. 8. On 22 March 2003 two police officers from the Baghramyan Police Department (ՀՀ ոստիկանության Բաղրամյանի բաժին) visited the applicant at his home. 9. The applicant alleged that this visit had taken place at 7 a.m. The police officers told him that he was required to accompany them to the police station as the chief wished to see him regarding matters unrelated to the demonstration the day before. 10. The Government contested this allegation and submitted that the police officers had visited the applicant at 9 a.m. because they suspected him of having participated in an unauthorised demonstration the previous day. 11. It appears from the materials of the case that the applicant was asked by the police officers to accompany them to the police station. He showed resistance but was nevertheless taken to the police station. 12. According to the Government, at the police station the arresting police officers drew up a record of the applicant’s arrest (արձանագրությաւն բերման ենթարկելու մասին) in which the reasons for his arrest were indicated. This record was allegedly signed by the applicant. 13. In his application form, the applicant alleged that at the police station he had discovered that the real reason for his detention was his participation in the demonstration the previous day. Contrary to what he had been told, the chief of police did not want to see him. His requests to have a lawyer were ignored. In a later submission, the applicant alleged that the chief of police had in fact met him and told him that he would be detained since there were instructions from the Minister of the Interior to arrest temporarily all political activists. 14. According to a written statement (արձանագրություն բացատրություն վերցնելու մասին) made by the applicant at the police station, on 22 March 2003 he had participated in a rally in Yerevan and the same evening he had returned home to his village. The next morning at 9 a.m. the police officers had visited him at home and asked him to accompany them to the police station. An argument had erupted, during which the applicant admitted having disobeyed the lawful orders of the police officers. The applicant had regretted his actions, asked for forgiveness and promised that it would never happen again. 15. The applicant alleged that he had made the above statement since the police officers had led him to believe that his arrest was not in relation to serious matters and that he would not face any serious consequences. 16. The Government contested the above allegations and submitted that the applicant had made the above statement voluntarily. The police officers had informed the applicant of his procedural rights and had advised him to avail himself of his right to have a lawyer but he had not wished to do so. 17. The police officers drew up a record of an administrative offence (վարչական իրավախախտման արձանագրություն) in which it was stated that the applicant “had used foul language and had maliciously disobeyed the lawful orders of the police officers”. The applicant was charged under Article 182 of the Code of Administrative Offences (Վարչական իրավախախտումների վերաբերյալ ՀՀ օրենսգիրք – “the CAO”). The applicant’s signature did not appear on this record. 18. About two hours after his arrest the applicant was brought before Judge S. of the Armavir Regional Court (Արմավիրի մարզի առաջին ատյանի դատարան). 19. Judge S., after a brief hearing, sentenced the applicant under Article 182 of the CAO to ten days of administrative detention. The judge’s entire finding amounted to the following sentence: “On 22 March 2003 at 9 a.m. in the village of Karakert of the Armavir Region [the applicant] maliciously refused to obey the lawful order of the officers of the Baghramyan Police Department acting in pursuance of their duties of preserving public order; in particular, while being taken to the police station, he disobeyed the police officers, used foul language and prevented them from performing their duty.” 20. According to the record of the court hearing, the hearing was held in public with the participation of the judge, a clerk and the applicant. The judge informed the applicant of his right to challenge the judge and the clerk and to have a lawyer. The applicant did not wish to lodge any challenges or to have a lawyer. The judge then proceeded with examination of evidence. The applicant submitted that the police officers of the Armavir Police Department had visited him at home at 9 a.m. that day and asked him to come to the police station. He had tried to find out why he was being taken to the police station but it turned out that he had used foul language. His attempts to find out the reasons remained unanswered. Thereafter, the judge examined the materials prepared by the police. No further evidence was produced or requests made by the applicant. The judge departed to the deliberation room, after which he returned and announced the decision. 21. According to the applicant, the hearing was conducted in the judge’s office, without examination of any witnesses, and lasted only a few minutes. No charges were presented prior to the hearing. The judge explained that he was in no position to help the applicant or to make any decision other than that which he had made as he was acting on instructions from higher authorities. He also explained that it was not possible to call a lawyer because he had many cases to examine and could not afford to spend more time on the applicant’s case. 22. The applicant was taken to the Armavir Temporary Detention Facility at the Armavir Regional Department of Internal Affairs to serve his sentence. 23. The applicant alleged that, at the detention facility, he had been asked to sign the above record of an administrative offence without reading it, which he refused to do. 24. The Government contested this allegation and claimed that the applicant had actually signed this document while in police custody prior to the court hearing. 25. The applicant alleged, and the Government did not dispute, that at the Armavir Temporary Detention Facility he had been placed with nine other people in a cell measuring 7.5 sq. m. There were no beds in the cell so the detainees had to sleep on the floor. They had no bed linen, blankets or pillows. 26. On 24 March 2003 the applicant and three others were transferred to another cell, as a result of constant oral complaints. The applicant alleged, and the Government did not dispute, that the new cell also measured 7.5 sq. m and was designed for two persons. There were only two metal beds in the cell, each 40-50 cm wide, so the applicant had to share a bed with another detainee. There was no bed linen, blankets or pillows. Two days later, after repeated oral complaints, the applicant was given bedding which was in a very dirty condition. The water provided to the detainees was of such bad quality that he refused to drink it. He had to acquire mineral water from the outside, using the money that he had, with the help of the staff of the detention facility. Food was provided only once a day and it was always buckwheat of poor quality without salt. 27. The applicant further alleged – but the Government disputed – that while in detention he had developed an allergy resulting in a big swelling on his face which had continued to recur from time to time following his release. His health deteriorated as a result of his detention. 28. The applicant finally alleged that, during the entire stay at the detention facility, he had been prevented from having any contact with his family members and had not been permitted to receive newspapers or magazines. 29. On 31 March 2003 the applicant was released from detention after fully serving his sentence. 30. On 23 September 2003 the applicant was diagnosed with a chronic infection of unknown origin. 31. In May 2004 the applicant underwent a medical examination and was diagnosed with suspected tuberculosis of the left lung. According to a medical certificate of 9 August 2005, the applicant was suffering from liver problems. 32. For a summary of the relevant provisions of the CAO see the judgment in the case of Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007). The provisions of the CAO which were not cited in the above judgment, as in force at the material time, provide: “Maliciously disobeying a lawful order or demand of a police officer or a member of the voluntary police made in the performance of his duties of preserving public order shall result in the imposition of a fine of between 50% and double the fixed minimum wage, or of correctional labour for between one and two months with the ’s personality, the application of these measures would be deemed insufficient, of administrative detention not exceeding 15 days.” 33. The relevant provisions of the Law, as in force at the material time, read as follows: “An arrested or detained person is entitled: ... (3) to lodge, himself or through his lawyer or lawful representative, applications and complaints alleging a violation of his rights and freedoms with the administration of the facility for arrested or detained persons, their superior authorities, a court, a prosecutor’s office, the Ombudsman, the bodies of public administration and local self-governance, non-governmental unions and [political] parties, mass media and international institutions and organisations protecting human rights and freedoms.” “...The living space afforded to arrested and detained persons must comply with the building and sanitary-hygienic norms established for general living spaces. The area of the living space afforded to arrested and detained persons shall not be less than 2.5 sq. m for each individual. Arrested and detained persons must be provided with individual bedding and bed linen.” 34. The relevant provisions of the Decree read as follows: “Special sections of the [facilities for holding arrested persons] shall be reserved for persons who have been subjected to administrative detention for periods prescribed by [the CAO]...” 35. The relevant parts of the Report read as follows: “4. Conditions of detention a. introduction 43. At the outset, the CPT wishes to highlight the criteria which it applies when assessing police detention facilities. All police cells should be clean, of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a chair or bench) and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets. Persons in custody should be able to satisfy the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (that is, something more substantial than a sandwich) every day. Persons held in custody for 24 hours or more should, as far as possible, be offered one hour of outdoor exercise every day. b. temporary detention centres 44. During the visit, the CPT’s delegation visited temporary detention centres in Yerevan, Akhurian, Hrazdan, Maralik and Sevan. Establishments of this type are used to hold two categories of detainees: criminal suspects and persons under administrative arrest. Conditions of detention in the temporary detention centres visited varied from acceptable (at the Hrazdan Department of Internal Affairs) to poor (e.g. at the Akhurian and Sevan Departments of Internal Affairs). 45. As regards occupancy levels, a consultation of registers and the number of sleeping places per cell suggested that the minimum standard of 2.5 m² of living space per person, as stipulated by the Law on [Conditions for Holding Arrested and Detained Persons], was respected as concerns criminal suspects. However, the CPT must add that this minimum standard is too low. As concerns the cells for administrative detainees, the information gathered during the visit indicated that conditions could become extremely cramped, e.g. up to 6 detainees in a cell of 9 m² in Hrazdan and Sevan. All the centres visited presented deficiencies concerning the in-cell lighting and ventilation. With the exception of the Hrazdan centre, access to natural light was poor (small windows, sometimes - as in Yerevan - covered by metal shutters) or inexistent (e.g. in Akhurian). Artificial lighting was invariably dim, with some cells (e.g. in Yerevan, Akhurian and Maralik) submerged in near darkness. As to ventilation, it left something to be desired at Yerevan and Sevan. As to the state of repair and hygiene of the detention areas, it ranged from quite acceptable at the Hrazdan Department of Internal Affairs to poor at the Sevan establishment. Cells at the Temporary detention centre in Yerevan were in a reasonably good state of repair; however, their level of cleanliness left something to be desired. Detention areas in Akhurian and Maralik were dilapidated but clean. 46. Cells were furnished with beds or wooden sleeping platforms. The delegation noted that mattresses, sheets, pillows and blankets were available for criminal suspects at all the temporary detention centres visited; however, this was not the case for administrative detainees. The delegation did not hear any complaints from persons who were - or had recently been - detained at the centres visited as regards access to a toilet. However, with the notable exception of the Hrazdan Department of Internal Affairs, the communal toilet and washing facilities were dilapidated and dirty. The centres in Yerevan and Hrazdan possessed shower facilities, which could apparently be used by newly-arrived detainees (upon recommendation of a feldsher/doctor) and by those administrative detainees who stayed in the respective establishments for longer than a week. In both centres, the shower facilities were in an acceptable state of repair and cleanliness, and hot water was available. However, the only personal hygiene item that was distributed to detainees was a small piece of soap. 47. According to information provided by police officers in the majority of the temporary detention centres visited, detainees were offered food three times per day, including one hot meal. However, this was not the case at the Sevan Department of Internal Affairs, where food was only delivered once per day, reportedly due to the limited budget set aside for this purpose (320 AMD - i.e. some 50 euro cents - per detainee per day). In this situation, the provision of food was to a large extent ensured by detainees’ families. Detained persons without family contacts had to rely on the generosity of other detainees or individual police officers for food. 48. All the temporary detention centres visited possessed outdoor exercise areas, where detainees were apparently allowed to take exercise for one hour per day (in the case of women and juveniles - for two hours per day). However, at the Temporary Detention Centre of the City Department of Internal Affairs in Yerevan, the delegation was informed that detainees could be deprived of outdoor exercise as a form of punishment for violation of the centre’s internal regulations. 49. The CPT recommends that the Armenian authorities take steps at temporary detention centres to: - ensure that all detainees are offered adequate living space; the objective should be at least 4 m² per person; - provide adequate in-cell lighting (including access to natural light) and ventilation; - maintain the cells and common sanitary facilities in a satisfactory state of repair and hygiene; - ensure that all detainees (including those held for administrative violations) are offered a mattress and blankets at night; - ensure that administrative detainees are able to take a hot shower at least once a week during their period of detention; - ensure that all detainees are offered food - sufficient in quantity and quality - at normal meal times; - put an end to deprivation of outdoor exercise as a disciplinary punishment.” 36. The relevant part of the Report reads as follows: “4. Conditions of detention a. Temporary detention centre of the Department of Internal Affairs of the City of Yerevan 20. Conditions of detention in this facility remained basically the same as those observed during the 2002 visit, i.e. poor. One positive change was that persons under administrative arrest were now provided with bedding (pursuant to Order No. 8 of the Head of the National Police of 20 August 2003). Further, the delegation was informed that the food entitlement for detainees had been increased by Government decision of May 2003. Otherwise, no refurbishment or major repairs had taken place since the previous visit. Consequently, the CPT reiterates the recommendations made in paragraph 49 of the report on the 2002 visit, in particular as regards living space, in-cell lighting, ventilation, state of repair and hygiene.” 37. The relevant parts of the Report read as follows: “4. Conditions of detention a. police holding areas 28. At the beginning of the 2006 visit, the delegation was informed that, pursuant to Order NK–328–NG of the President of the Republic of Armenia, dated 28 December 2004, a large-scale refurbishment programme had been initiated in all police holding areas. The CPT welcomes this. It should also be noted that a recent amendment to the [Law on Conditions for Holding Arrested and Detained Persons] increased the official standard of living space per detained person in police holding areas to 4 m². This can be considered as acceptable when applied to multi-occupancy cells; however, 4 m² is not an adequate size for a single occupancy cell. 29. During the visit, the delegation could observe the impact of the above-mentioned programme. Some of the police holding areas (e.g. in Charentsavan, Gavar and Hrazdan) were still undergoing refurbishment and were to reopen shortly. As regards the already refurbished holding areas, conditions in them were overall of a high standard.” | 1 |
train | 001-89592 | ENG | RUS | CHAMBER | 2,008 | CASE OF AKHMADOV AND OTHERS v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);No violation of Article 3 - Prohibition of torture (Substantive aspect);No violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);No violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture;Degrading punishment);No violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security);No violation of Article 14 - Prohibition of discrimination | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 7. The first applicant is the father of the fifth and sixth applicants and a grandfather of Amkhad Vakha-Khadzhiyevich Gekhayev, born in 1986. The second and third applicants are the parents of Zalina Amadovna Mezhidova, born in 1978. The fourth and fifth applicants are Amkhad Gekhayev’s parents. The sixth applicant is Zalina Mezhidova’s husband and Amkhad Gekhayev’s uncle. The seventh and eighth applicants are Zalina Mezhidova’s children. 8. The applicants live in the Gudermes District of the Chechen Republic. 9. It does not appear that any of the applicants witnessed the events of 27 October 2001. The following account is based on eye-witness statements submitted by the applicants. 10. On 27 October 2001 a number of farmers from several villages of the Gudermes District, including two of the applicants’ relatives – Amkhad Gekhayev and Zalina Mezhidova – were harvesting in a field near the village of Komsomolskoye. The farmers had obtained prior authorisation for their work from the local authorities. 11. At 3 p.m. the farmers loaded the crop into a VAZ-2121 “Niva” vehicle belonging to the first applicant, in order to transport it to Komsomolskoye. Amkhad Gekhayev was driving and Zalina Mezhidova accompanied him, as she intended to return to the village to take care of her ailing grandmother and her two minor children – the seventh and eighth applicants, who were then three years and three months old and four months and twenty days old respectively. 12. At 3.10 p.m. an MI-8 and two MI-24 helicopters without clear hull numbers appeared in the sky over the field. One of the helicopters had the letters VVS RF (“the Air Forces of the Russian Federation”) on its side. 13. The MI-24 helicopters headed towards the field and started shooting over the heads of the people who remained there. Women and children were among their number. 14. The MI-8 helicopter attacked the “Niva” vehicle. After several warning shots the car stopped. The helicopter then landed nearby and several armed men in uniform approached the “Niva”, strafing it with machine guns. They took the applicants’ relatives out of the car and put them in the helicopter. According to the witnesses, Amkhad Gekhayev and Zalina Mezhidova appeared wounded or dead. The military blew the car up and the three helicopters then left. 15. Immediately after the incident the residents of Komsomolskoye made a video recording of the car. The “Niva” vehicle had been blown up, its windows were missing and there were numerous bullet holes in its frame. There were blood traces on the car doors. Zalina Mezhidova’s shoes and Amkhad Gekhayev’s cap lay nearby. Police officers arrived shortly after the incident, inspected and took photographs of the incident scene, collected slugs and cartridges from bullets of various calibres and a casing for a signal flare, examined the bullet holes on the car frame and noted the findings in their report. 16. The applicants referred to statements by a resident of Komsomolskoye, who had claimed that late in the evening of 27 October 2001 he had seen two armoured personnel carriers arrive at the scene of the incident and leave shortly afterwards. 17. According to the Government, since the beginning of the counter-terrorist operation in the Chechen Republic, the civil and military authorities had taken all necessary steps to secure the safety of civilians residing in the North Caucasus. The residents of the Chechen Republic had been notified of the actions they should perform when in the area of any special counter-terrorist operation so as to indicate that they did not belong to illegal armed formations. In particular, once they had established “visual contact” with representatives of the federal forces, residents were to stop moving, exit from their means of transport, show that they had no firearms or other weapons in their hands and wait for the arrival of a group of servicemen for an identity check. 18. On 27 October 2001, following orders, a group of three federal military helicopters were patrolling the air space trying to detect movements of off-road vehicles, a type of vehicle often used by members of illegal armed formations, with a view to carrying out identity checks. 19. At about 3.30 p.m., while patrolling over the area in the vicinity of the village of Komsomolskoye, the pilots of the helicopters saw an off-road VAZ-2121 “Niva” vehicle moving at high speed. The pilots fired warning shots using a light machine-gun at a spot situated 20-30 metres away from the car in order to make it stop. In the Government’s submission, the “Niva” accelerated. The pilots again fired warning shots using the same weapons and aiming the same distance from the car. The “Niva” then stopped and the helicopters landed. Servicemen from the helicopters saw a man rush out of the car and hide in thick bushes along the road. According to the Government, the people who remained in the car did not get out and show that they were unarmed. The servicemen started approaching the “Niva” but when they arrived within 10 metres of the car, it suddenly drove off. The officer in command of the servicemen assessed the situation as life-threatening and ordered that lethal fire be opened on the car, with the result that Amkhad Gekhayev and Zalina Mezhidova were shot dead. 20. The servicemen further inspected the “Niva” and found an F-1 grenade and a RPG-26 hand-held grenade launcher. The servicemen then took those weapons and the bodies of the deceased to the helicopter and delivered them to the competent authorities. 21. Immediately after the incident the applicants started searching for Amkhad Gekhayev and Zalina Mezhidova. 22. On 28 October 2001 the first applicant applied in writing to various Gudermes District officials seeking their assistance in establishing the whereabouts of his grandson and daughter-in-law. 23. According to the applicants, on 29 October 2001 the corpses of Amkhad Gekhayev and Zalina Mezhidova, wrapped in plastic sheeting, were brought by a helicopter to the Gudermes District military commander’s office. The bodies were severely mutilated – the upper half of the body was missing from Zalina Mezhidova’s corpse and Amkhad Gekhayev’s corpse had no lower limbs. 24. On 30 October 2001 the remains were taken to Makhachkala, in the Republic of Dagestan, for an independent forensic examination. In the applicants’ submission, they were denied access to a report on the results of this examination. 25. According to the applicants, on the same date the bodies were returned to them and they buried the remains. 26. On 7 December 2001 a civil registration office of the Gudermes District issued death certificates for Zalina Amkhadovna Mezhidova, born in 1978, and Amkhad Vakha-Khazhiyevich Gekhayev, born in 1986. The dates of death were recorded as 1 and 27 November 2001 respectively and the place of death was indicated as the village of Komsomolskoye, Gudermes District. 27. Since 27 October 2001 the applicants have repeatedly applied in person and in writing to various public bodies, including prosecutors at different levels, the Administration of the Chechen Republic (Администрация Чеченской Республики), the Special Envoy of the Russian President for Rights and Freedoms in Chechnya (Специальный представитель Президента Российской Федерации по соблюдению прав и свобод человека в Чеченской Республике) and the President of the Supreme Court of Chechnya (Председатель Верховного Суда Чеченской Республики). In their letters to the authorities the applicants referred to the events of 27 October 2001 and asked for assistance and details of any investigation. These enquiries remained largely unanswered, or only formal responses were given, stating that the applicants’ requests had been forwarded to various prosecutors’ offices. The applicants also applied to a number of intergovernmental organisations and mass media. 28. On 27 October 2001 the Gudermes prosecutor’s office (прокуратура Гудермесского района) commenced an investigation in connection with the shooting at the “Niva” vehicle and the detention of Amkhad Gekhayev and Zalina Mezhidova. The case file was assigned the number 21176. In the applicants’ submission, neither they nor any other relatives were formally notified of the initiation of the investigation or granted victim status. 29. On 3 November 2001 the Gudermes prosecutor’s office referred the case to the military prosecutor’s office of military unit no. 20102 (военная прокуратура – войсковая часть 20102) for investigation. The latter received the case on 17 November 2001 and assigned it the number 14/33/0741-01. According to the Government, as a result of the re-organisation of the system of military prosecutor’s offices, the case file number was subsequently replaced with the number 34/33/0741/01. 30. On 30 November 2001 the military prosecutor’s office of military unit no. 20102 discontinued the investigation, in the absence of the constituent elements of a crime in the actions of the servicemen involved in the incident of 27 October 2001. According to the applicants, they were not apprised of this decision until much later. 31. In a letter of 28 December 2001 the military prosecutor’s office of military unit no. 20102 notified the applicants, in response to their query, that: “The preliminary investigation established that the use of firearms by the servicemen on 27 October 2001 in the vicinity of the village of Komsomolskoye had been lawful and justified. There are no grounds to bring criminal proceedings against them. Besides, during the examination of the “Niva” vehicle [the servicemen] discovered weapons and ammunition which had been kept there and carried unlawfully.” The letter further stated that the criminal proceedings instituted in connection with the death of the applicants’ relatives had been discontinued, and informed the applicants that they could challenge that decision in court and also file a civil claim for compensation for pecuniary damage. According to the applicants, they were not furnished with a copy of the decision to discontinue criminal proceedings referred to in the letter of 28 December 2001, and therefore were unable to challenge it. 32. On 28 January 2002 the prosecutor’s office of the Chechen Republic (прокуратура Чеченской Республики, “the republican prosecutor’s office”) informed the fourth applicant, father of Amkhad Gekhayev, that his complaint concerning the lack of an effective investigation into the murder of Amkhad Gekhayev and Zalina Mezhidova had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination. 33. On the same date the Chief Military Prosecutor’s Office (Главная военная прокуратура) informed the fourth applicant that his application of 5 December 2001 concerning the investigation into the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been transferred to the Military Prosecutor’s Office of the Northern Caucasus Military Circuit (“the Northern Caucasus Military Prosecutor’s Office”, Военная прокуратура Северо-Кавказского военного округа) and to the Government of the Chechen Republic. 34. In a letter of 28 January 2002 the Administration of the Chechen Republic notified the fourth applicant that his application concerning the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova had been forwarded to the Commander of the United Group Alignment (Командующий ОГВ (с)) for investigation. 35. By a letter of 15 February 2002 the Northern Caucasus Military Prosecutor’s Office informed the fourth applicant that his application of 5 December 2001 had been transmitted to the military prosecutor’s office of military unit no. 20102 for examination. 36. In its letter of 14 March 2002 the Northern Caucasus Military Prosecutor’s Office reported that: “Criminal case no. 14/33/0741-01 was closed on 30 November 2001 by the military prosecutor’s office of military unit no. 20102 ... in the absence of the constituent elements of a crime in the actions of [servicemen] of an air-borne search and attack group (воздушно-поисковая штурмовая группа) of military unit no. 20706 who had been carrying out their combat mission of searching for and apprehending leaders of armed gangs on the territory of Chechnya. The ground for the decision to discontinue the criminal proceedings was the failure by Gekhayev A.V., who had been driving the vehicle VAZ-2121,... to comply with the group’s order to stop in order to permit the inspection of the car, with the result that the group opened fire on the vehicle. Gekhayev A.V. and Akhmadova (Manayeva) Z.A., who were sitting in the car, died as a result of their wounds. During the inspection of the vehicle boot [the servicemen] found an F-1 grenade and a RPG-26 hand-held grenade launcher.” The letter also stated that the Northern Caucasus Military Prosecutor’s Office was studying the case file and would inform the applicants of its findings. 37. On 20 March 2002 the sixth applicant – Amkhad Gekhayev’s uncle and Zalina Mezhidova’s husband – sent a complaint to the Prosecutor General’s Office of Russia (Генеральная прокуратура Российской Федерации). He referred to the events of 27 October 2001 and requested that the criminal proceedings in connection with the abduction and murder of his relatives be resumed. He also complained that his applications to the military prosecutor of Chechnya had remained unanswered. 38. In reply, on 23 April 2002 the Chief Military Prosecutor’s Office referred the sixth applicant’s complaint to the Northern Caucasus Military Prosecutor’s Office for examination. 39. On an unspecified date in June 2002 the sixth applicant requested the Northern Caucasus Military Prosecutor’s Office to inform him of developments in the case, stating that for a month and a half he had received no information regarding the results of the investigation. 40. In its letter of 21 June 2002 the Northern Caucasus Military Prosecutor’s Office notified the sixth applicant that the decision of 30 November 2001 had been quashed on 21 June 2002 on the ground that the investigation had been incomplete. The letter further stated that the case had been transmitted to the military prosecutor’s office of military unit no. 20102 for fresh investigation, and that the Northern Caucasus Military Prosecutor’s Office would closely supervise the course of the investigation. 41. On 27 July 2002 the sixth applicant again applied to the Northern Caucasus Military Prosecutor’s Office, seeking information about the results of the investigation. On 29 August 2002 the Northern Caucasus Military Prosecutor’s Office transmitted their application to the military prosecutor’s office of military unit no. 20102. 42. In early September 2002 the sixth applicant applied both to the Northern Caucasus Military Prosecutor’s Office and to the military prosecutor’s office of military unit no. 20102 for information regarding the results of the investigation. It does not appear that those applications were ever answered. 43. On 16 September 2002 the sixth applicant sent another query to the military prosecutor’s office of military unit no. 20102. He complained that none of the relatives of Amkhad Gekhayev and Zalina Mezhidova had ever been questioned by the investigating bodies. 44. On 18 November 2002 the SRJI, acting on the applicants’ behalf, applied to the republican prosecutor’s office and the Gudermes prosecutor’s office, seeking to ascertain what measures had been taken to establish the circumstances of the crime and the identities of the culprits. The SRJI also requested the authorities to let the applicants have the forensic examination report of 30 October 2001. 45. The republican prosecutor’s office referred the above application to the Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus (военная прокуратур объединенной группировки войск на Северном Кавказе). 46. The latter informed the SRJI on 6 January 2003 that during the preliminary investigation in criminal case no. 34/33/0741/01, opened in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova, the identities of the servicemen involved had been established and that the criminal proceedings had been discontinued on 30 November 2001 on account of the lack of the constituent elements of a crime. The Military Prosecutor’s Office of the United Group Alignment in the Northern Caucasus was at that stage unable to review the lawfulness of the decision of 30 November 2001, since the case file had been transferred on 28 March 2002 to a prosecutor of the Northern Caucasus Military Prosecutor’s Office who had been studying it since that date. 47. On 27 January 2003 the military prosecutor’s office of military unit no. 20102 informed the SRJI that the investigation had identified all the servicemen involved in shooting and abducting Amkhad Gekhayev and Zalina Mezhidova. In order to establish the events of 27 October 2001 in detail, all the persons involved in the incident, including the helicopter pilots, had been questioned and three ballistic expert studies had been carried out. A number of forensic examinations had also been conducted, but reports on their findings had not yet been obtained from an expert body in Makhachkala. The letter provided assurances that the forensic examination reports would be obtained on demand from the expert body in Makhachkala and that the victims would have access to them. The investigation was pending. 48. On 26 March 2003 the SRJI requested the military prosecutor’s office of military unit no. 20102 to inform the applicants of the latest developments in the case and of the exact number of criminal proceedings instituted in relation to the abduction and murder of Amkhad Gekhayev and Zalina Mezhidova. The SRJI also enquired about the possibility for the applicants to obtain access to the forensic examination reports and requested that the applicants be notified of the names of the relatives who had been granted victim status in the case and provided with a copy of the relevant decision. 49. On 17 May 2003 the military prosecutor’s office of military unit no. 20102 stated that they were unable to reply to the SRJI’s queries as case file no. 34/33/0741-01 had been transferred to the Military Prosecutor’s Office of the United Group Alignment for examination. 50. Following the receipt of that letter, on 27 July 2003 the SRJI submitted a query similar to that sent on 26 March 2003 to the Military Prosecutor’s Office of the United Group Alignment. The latter forwarded it to the military prosecutor’s office of military unit no. 20102 on 17 September 2003. 51. On 20 July 2003 the sixth applicant addressed a letter to the Gudermes prosecutor’s office. He complained that he had on numerous occasions requested the investigating authorities to update him on the results of the investigation into the deaths of his wife and nephew but had never been provided with any information. He also complained that neither he nor the fourth and fifth applicants – Amkhad Gekhayev’s parents – had so far been declared victims of a crime. 52. In a letter of 11 August 2003 the South Federal Circuit Department of the Prosecutor General’s Office (Управление Генеральной прокуратуры РФ в Южном федеральном округе) replied to the sixth applicant, informing him that his complaint had been forwarded to the republican prosecutor’s office “for examination on the merits”. The latter forwarded the sixth applicant’s complaint to the Gudermes prosecutor’s office on 25 August 2003. 53. On 21 October 2003 the military prosecutor’s office of military unit no. 20102 replied to the SRJI’s letter of 27 July 2003, forwarded by the Military Prosecutor’s Office of the United Group Alignment, stating that they were unable to provide any information concerning the investigation, as the case file had been sent to the Northern Caucasus military prosecutor’s office for study. 54. On 20 December 2003 the SRJI complained to the Chief Military Prosecutor’s Office that their queries addressed to various military prosecutors remained unanswered. 55. In a letter of 15 April 2004 the Military Prosecutor’s Office of the United Group Alignment informed the SRJI that the investigation in criminal case no. 34/33/0741-01 had been discontinued on 15 January 2004 in the absence of the constituent elements of a crime in the servicemen’s actions, and that the said prosecutor’s office was at present studying the case file to establish whether the decision of 15 January 2004 had been lawful. The letter further stated that the applicants would be apprised of the results of that study and that they could have access to the case file at the military prosecutor’s office of military unit no. 20102 in Khankala. 56. On 5 May 2004 the Military Prosecutor’s Office of the United Group Alignment further notified the SRJI that the criminal case had been transmitted to the military prosecutor’s office of military unit no. 20102 for additional investigation. The applicants were invited to address their further queries to the military prosecutor’s office of military unit no. 20102. 57. On 21 July 2005 the military prosecutor’s office of military unit no. 20102 informed the sixth applicant that on the same date the criminal proceedings in case no. 34/33/0741-01D against Captain S., a serviceman of military unit no. 74854, for criminal offences under Articles 126 (kidnapping), 108 (2) (causing death by negligence) and 244 (abuse of dead bodies and desecration of their graves) of the Russian Criminal Code, had once again been terminated in the absence of the constituent elements of a crime, and the proceedings against him for a criminal offence under Article 286 (2) (aggravated abuse of power) had once again been terminated due to an amnesty act. 58. On 24 January 2006 the first applicant complained in writing about the incident of 27 October 2001 and the defects in the investigation to the President of the Chechen Republic. It does not appear that any reply followed. 59. On 28 and 31 January 2006 the first, fifth and sixth applicants wrote letters to the Prosecutor General’s Office complaining about the deaths of their relatives and the inadequate investigation. It does not appear that they received any replies to their letters. 60. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that the investigation into the abduction of the applicants’ relatives had been commenced on 27 October 2001, and had then been discontinued on several occasions as there had been no constituent elements of a crime in the servicemen’s actions, and subsequently resumed by higher-ranking prosecutors in view of the incomplete nature of the investigation. According to them, the applicants were duly informed of all the decisions taken during the investigation. The Government adduced a report on the investigative measures taken in case no. 34/33/0741-01. The undated report signed by an acting head of one of the departments of the Main Military Prosecutor’s Office lists investigative measures taken during the investigation, without providing any details concerning those actions. 61. It can be ascertained from this document that the criminal proceedings in criminal case no. 34/33/0741-01 were instituted under Article 126 (kidnapping) of the Russian Criminal Code on 27 October 2001. They were then discontinued on 30 November 2001 owing to the absence of the constituent elements of a crime in the incident of 27 October 2001. That decision was quashed on 21 June 2002 and the case file was forwarded to the military prosecutor’s office of military unit no. 20102 for further investigation. The report further states that the investigator in charge of the military prosecutor’s office of military unit no. 20102 took up the case on 8 December 2003. It is unclear from the report whether any action was taken in the period between 21 June 2002 and 8 December 2003. The investigation was then discontinued on 8 January 2004 in the absence of the constituent elements of a crime in the incident of 27 October 2001. On 21 May 2004 that decision was set aside and the case was sent for additional investigation. On 10 July 2004 the proceedings were again discontinued, as it was impossible to establish the whereabouts of Captain S., the officer in command of the servicemen involved in the incident of 27 October 2001. Thereafter the investigation was reopened on 23 October 2004 and 7 May 2005 and discontinued in application of an amnesty act on 7 April and 21 July 2005 respectively. 62. The report also states that the scene of the incident was inspected on 27 October and 29 October 2001, and that the “Niva” vehicle was inspected on 9 November 2001. It can also be ascertained from the report that in the first few days following the incident of 27 October 2001 fragments of bullets and cases were collected at the scene of the incident and in the “Niva” and examined by experts. Also during the first days following the incident investigators seized and examined documents relating to the combat mission of 27 October 2001, as well as firearms and ammunition used by the servicemen involved in the events in question. Over the same few days a number of expert studies were ordered and carried out and a number of witnesses were questioned. The report reveals the names of some of those witnesses, whilst the other witnesses, apparently the servicemen involved in the events of 27 October 2001, are identified only by the first letter of their surnames. According to the report, one A. A. Mezhidov – apparently the third applicant – was questioned and granted the status of victim of a crime on 3 November 2001. 63. The report also states that “a male and female corpse were examined” on 29 October 2001 and that a forensic expert examination of the remains of the applicants’ relatives was ordered on 30 October 2001; however, it is unclear when this examination was performed. The report further states that the results of the forensic examination of the bodies of the deceased “were received on 29 June 2004”. It can also be ascertained from the report that at some point criminal proceedings were brought against Captain S., the officer in command of the servicemen who strafed the ”Niva” vehicle on 27 October 2001, but were discontinued on 21 July 2005, under an amnesty act. 64. In their memorial of 6 August 2007, submitted after the decision on admissibility, the Government did not provide any updated information regarding developments in the investigation after 21 July 2005 despite the Court’s specific request for such information. In reply to another question of the Court they indicated that on 29 October 2001 investigators had examined the dead bodies of Amkhad Gekhayev and Zalina Mezhidova in the presence of forensic medical experts. They further submitted that a forensic medical examination of the remains had been ordered and commenced on 30 October 2001 and terminated on 19 February 2002. According to the Government, expert report no. 221 of 19 February 2002 reflecting the results of the examination of Amkhad Gekhayev’s remains had stated that six gunshot and shrapnel wounds had been found on his chest and that those wounds had been caused by bullets and iron fragments of a car body. The report had further attested a traumatic amputation of Amkhad Gekhayev’s lower limbs as a result of the explosion of some explosive device. It had stated that Amkhad Gekhayev’s death had been caused by abundant blood loss as a result of a bullet wound to his chest inflicting injuries of the heart and left lung. In the Government’s submission, expert report no. 222 of 19 February 2002 showing the results of the examination of Zalina Mezhidova’s remains had stated that three bullet wounds had been found on the right buttock, thigh and pubic region. The Government did not provide any further details regarding the results of the examination of Zalina Mezhidova’s body and, in particular, did not indicate the cause of her death. They also remained silent as regards the applicants’ assertion that the upper half of Zalina Mezhidova’s body had been missing. According to them, both reports stated that the gunshot wounds had been inflicted while the victims were alive. The Government did not submit a copy of any of the reports to which they referred. 65. On 13 October 2003 the first applicant lodged a complaint with the Military Court of the North Caucasus Military Circuit (военный суд Северо-Кавказского военного округа), alleging inactivity on the part of investigators from the military prosecutor’s office of military unit no. 20102, the military prosecutor’s office of the United Group Alignment and the Northern Caucasus military prosecutor’s office. He described in detail the events of 27 October 2001, the circumstances of the discovery of the bodies of Amkhad Gekhayev and Zalina Mezhidova and the applicants’ fruitless efforts to have their relatives’ killings investigated. He further complained that the investigation had been plagued with serious defects which rendered it ineffective. The first applicant complained, in particular, that the investigation had been pending for almost a year and a half without any progress, that none of the numerous eye-witnesses to the events of 27 October 2001 had ever been questioned by the investigators, that the reports on the forensic examination of the remains of Amkhad Gekhayev and Zalina Mezhidova had not been included in the case file and that none of the relatives of the deceased could gain access to those reports, that none of the relatives of the deceased had been declared victims, that none of them had received copies of the decisions to open the criminal proceedings or to discontinue the investigation, or been informed what measures were being taken to investigate the events of 27 October 2001, and that their numerous requests and applications had remained unanswered or only formal replies had been given. The first applicant requested the court to order the competent authorities to carry out a full and objective investigation capable of leading to the identification of those responsible for his relatives’ deaths. 66. The Military Court of the North Caucasus Military Circuit forwarded this complaint to the Grozny Garrison Military Court (Грозненский гарнизонный военный суд) on 13 November 2003. 67. In a letter of 1 December 2003 the Grozny Garrison Military Court notified the first applicant that a court hearing in connection with his complaint had been scheduled for 9 December 2003. The letter was sent to the SRJI’s address in Moscow rather than to the first applicant’s address in the Gudermes District of Chechnya. According to the SRJI, they received the above letter on 8 January 2004, and therefore neither the first applicant nor his representatives from the SRJI were able to attend the hearing. 68. On 9 December 2003, in the absence of the first applicant or his representatives and in the presence of the defendants’ representatives, the Grozny Garrison Military Court examined the first applicant’s complaint of 13 October 2003 and dismissed it as unfounded. The court held, in particular: “It has been established that the objective reason for the prolonged processing of the case was that the case file had been transmitted to various levels of the competent authorities by confidential mail. The question of the necessity of questioning any witnesses falls within the competence of the investigator in charge or the supervising prosecutor. The case material also reveals that the report on the forensic examination of the bodies of Z. Mezhidova and A. Gekhayeva was not included in the case file, with the result that it was impossible for the [applicants] to gain access to it. ... ...On 22 July 2002 the decision to discontinue the criminal proceedings in connection with the abduction of Z. [Mezhidova] and A. Gekhayev by [the] servicemen was quashed and it was not until 8 December [2003] that the senior investigator of the military prosecutor’s office of military unit no. 20102 took up the case. As a result, the [applicants] have not been informed of the course of the investigation and so far [they] have not been granted the status of victims of a crime. Accordingly, it has been established that there is no evidence of any breach of the law in the [defendants’] actions.” 69. On 20 January 2004 the SRJI wrote to the Grozny Garrison Military Court stating that they had not received the court’s letter of 1 December 2003 until 8 January 2004. They requested the court to send them a copy of its decision of 9 December 2003, if a decision had been taken on that date, and henceforth to inform them of court hearings in advance. They also pointed out that the first applicant’s address in Chechnya had been indicated on the front page of his complaint. 70. By two letters of 17 June 2004 the Grozny Garrison Military Court forwarded a copy of its decision of 9 December 2003, without further explanations, to the first applicant and the SRJI. According to the applicants, this letter never reached the first applicant, whilst the SRJI received it on 4 September 2004. 71. On 13 September 2004 the SRJI dispatched an application to have the time-limit for appealing against the decision of 9 December 2003 restored. The application was sent by registered mail and received by the Grozny Garrison Military Court on 21 October 2004. No reply followed. 72. On 11 February 2005 the SRJI forwarded a copy of their application of 13 September 2005 to the Grozny Garrison Military Court and asked the latter to provide them with reasons for its failure to reply to the motion received by the court on 21 October 2004. According to the applicants, they were informed in reply that the court had not received their letter of 13 September 2004. The outcome of these proceedings is unclear. 73. In April 2005, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in the criminal case opened in connection with the incident of 27 October 2001. Relying on information obtained from the Prosecutor General’s Office, the Government replied that the investigation was in progress and that the disclosure of the documents would be in violation of Article 161 of the Russian Code of Criminal Procedure since the file contained information of a military nature and personal data concerning the witnesses. At the same time, the Government suggested that a Court delegation could have access to the file at the place where the preliminary investigation was being conducted, with the exception of “the documents [disclosing military information and personal data concerning the witnesses], and without the right to make copies of the case file and to transmit it to others”. 74. In August 2005 the Court reiterated its request and suggested that Rule 33 § 3 of the Rules of Court be applied. In reply, the Government again refused to produce the investigation file for the aforementioned reasons. The Government did, however, submit a report containing a list of investigative measures taken in the context of the investigation in case no. 34/33/0741-01 (see paragraphs 60-63 above). 75. On 3 May 2007 the application was declared partly admissible. At that stage the Court once again invited the Government to submit the investigation file and to provide information concerning the progress in the investigation after 21 July 2005, the latest date on which it had been stayed. Having regard to the Government’s statement to the effect that on 27 October 2001 the federal servicemen had been pursuing a combat mission in order to suppress the criminal activity of members of illegal armed formations in Chechnya, and to their argument that the use of force by the federal servicemen was no more than absolutely necessary during the incident on 27 October 2001, the Court also put a number of factual questions to the Government. It enquired, in particular, how and by whom the mission had been planned and commanded, whether, and, if so, in what manner, the military personnel involved had been instructed to avoid civilian casualties, and whether any firearms or unlawful violence had been used by the applicants’ relatives before the federal servicemen fired lethal shots. 76. In reply, the Government once again refused to furnish the Court with the investigation file, referring to Article 161 of the Russian Code of Criminal Procedure and the lack of assurances from the Court that, once in receipt of the investigation file, the applicants or their representatives would not disclose the material contained in it to the public. The Government remained silent as regards the Court’s question concerning progress in the investigation after 21 July 2005, and the question whether firearms or any unlawful violence had been used by the applicants’ relatives against the federal servicemen on 27 October 2001. As regards the Court’s question on the planning and commanding of the combat mission of 27 October 2001 and whether any instructions had been given to the military personnel to avoid civilian casualties during that mission, the Government replied that during the combat mission the federal servicemen, both commanding officers and their subordinates, had acted in compliance with national legislation and regulations for securing the safety of the civilian population and those relating to the use of lethal force, and that “every serviceman ... knows and must strictly comply with the rules governing contacts with the civilian population in areas of military action”. They refused to provide any further details or any relevant documents, stating that such information constituted a military secret. 77. The Government adduced copies of domestic court decisions reached in unrelated sets of civil and criminal proceedings. These included four first-instance judgments by which federal servicemen, privates or non-commissioned officers, had been convicted of criminal offences committed in the Republic of Ingushetia or the Chechen Republic, as well as a first-instance judgment and appeal decision awarding compensation for omissions on the part of the investigating authorities during the investigation into an individual’s abduction in the Republic of Karachayevo-Cherkessia, the person in question having subsequently been released. 78. For a summary of the relevant domestic law see Khatsiyeva and Others v. Russia, no. 5108/02, §§ 105-107, 17 January 2008. | 1 |
train | 001-59339 | ENG | GBR | CHAMBER | 2,001 | CASE OF HILAL v. THE UNITED KINGDOM | 1 | Violation of Art. 3;No violation of Art. 13;No separate issues under Art. 6 and 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award | Nicolas Bratza;Simon Brown | 8. The applicant was born in Pemba, one of the Zanzibar islands, in 1968. Zanzibar is part of the United Republic of Tanzania. It has its own President, parliament and government and enjoys considerable autonomy. 9. According to the applicant, in 1992 he joined the Civic United Front (“the CUF”), an opposition party in Zanzibar. He was an active member, attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (“the CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in Zanzibar for three months, where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose, and he was also subjected to electric shocks. 10. In November 1994 the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian government. He was admitted to hospital, where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life. 11. The applicant stated that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison. 12. Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came looking for him while he was out. The police detained his wife overnight and questioned his friends. He decided to leave his home and Tanzania, fearing for his safety. 13. On 9 February 1995 the applicant arrived in the United Kingdom and claimed asylum. That day a pro forma interview was held with an immigration officer, where the applicant was assisted by an interpreter. According to the form, the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application. When asked what the basis of his asylum claim was, the applicant was noted as having said: “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he had been a member of the CUF since 1992. 14. At the full asylum interview held on 15 March 1995, the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman, and that he had organised his passage to the United Kingdom himself. When asked what the basis for his asylum claim was, he stated that he had been taken away and detained for three months, from August to November 1994, at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up, and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and returned there twice a week. A few days before he was released he was hung upside down and given electric shocks. He had been arrested because he gave money to the CUF. He was told that he had been released because the CUF leaders had approached the authorities in Dar es Salaam. After his release, he was treated in a private clinic. He produced his CUF card. He had been an ordinary member, doing nothing more than give money. He had not taken part in the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been badly beaten and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income-tax clearance and an airline ticket. His uncle checked in with the ticket for him and he was able to board the plane. 15. On 29 June 1995 the Secretary of State refused asylum, finding the applicant’s account implausible and noting inconsistencies in his answers. The applicant’s appeal to a special adjudicator was dismissed on 8 November 1996. During the proceedings the applicant had claimed that the Tanzanian authorities intercepted the letters he was sending home, knew that he had claimed asylum, and had summoned his parents to explain “about [their] son who [was] in a foreign country to abuse the government which [was] in power ...” He provided correspondence from the Royal Mail concerning his enquiries about money which had gone missing from a registered letter dated 27 November 1995 which he had sent to his parents in Tanzania. 16. In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also noted that the evidence concerning his brother’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced. He therefore did not accept that the applicant’s brother was arrested, tortured or killed. He also observed that the applicant had not provided documentary evidence that the Zanzibar authorities were accusing him of tarnishing Tanzania’s good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard. 17. Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997. 18. The applicant obtained a copy of his brother’s death certificate and a medical report which recorded that his brother died on 20 January 1995, after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever. He also obtained the summons from the Pemba police headquarters to his parents dated 25 November 1995 requesting their attendance to explain the applicant’s unlawful conduct in embarrassing the government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be considered as a fresh asylum application. 19. By letter dated 4 February 1997 the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who died of a fever, had been murdered by the authorities. He had, accordingly, decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision. 20. By letter dated 4 February 1997 the applicant’s representatives requested, alternatively, that the new material be referred to the special adjudicator under section 21 of the Immigration Act 1971. By letter dated 5 February 1997 the Secretary of State informed them that he had decided not to refer the material in question. 21. By letter dated 29 April 1997 the applicant’s representatives submitted to the Secretary of State a medical report about the applicant’s treatment following detention in Zanzibar, and requested that the new materials be submitted to the special adjudicator under section 21. They submitted further representations on 26 March 1998. The hospital medical report, dated 8 November 1994, from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage, that this was of a “dangerous harm” degree and that the injury had been inflicted by hanging upside down. 22. By letter dated 23 April 1998 the Secretary of State informed the applicant that he had considered the new material, but that this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment in mainland Tanzania. He refused to make a reference under section 21. 23. The applicant applied for leave to apply for judicial review of the Secretary of State’s refusal to refer the new material to the special adjudicator. He submitted an expert opinion confirming that the documents were genuine. The Secretary of State submitted that the documents were irrelevant because the applicant could live safely in mainland Tanzania. He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland. 24. On 1 July 1998 the application for leave was rejected by the High Court. Mr Justice Jowitt stated: “The Secretary of State’s decision [is] that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.” 25. The applicant appealed to the Court of Appeal arguing that the Secretary of State’s refusal was wrong in law and “Wednesbury unreasonable” and that, in claiming that the applicant could live safely on the mainland, he was not complying with international obligations by failing to take into account the applicant’s specific case or documentation. 26. On 1 December 1998 the Court of Appeal refused leave to apply for judicial review. In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant’s evidence that his brother had been tortured. Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong. 27. On 23 December 1998 the applicant was notified that he would be removed to Zanzibar on 11 January 1999. 28. On 22 February 1999 the applicant’s wife arrived in the United Kingdom and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement with the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in Zanzibar as there was a rumour that the United Kingdom had sent back most of the asylum-seekers from Zanzibar. They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead. 29. Asylum applications are determined by the Secretary of State, pursuant to paragraph 328 of the Immigration Rules and section 3 of the Immigration Act 1971 (“the 1971 Act”). Where leave to enter is refused by the Secretary of State pursuant to section 4 of the 1971 Act, the person may appeal against the refusal to a special adjudicator on the grounds that the removal would be contrary to the United Kingdom’s obligations under the Geneva Convention (section 8 of the 1971 Act). 30. An appeal lies from the special adjudicator to the Immigration Appeal Tribunal (section 20 of the 1971 Act). 31. Section 21 of the 1971 Act provides: “(1) Where in any case: (a) an adjudicator has dismissed an appeal, and there has been no further appeal to the Appeal Tribunal, or the tribunal has dismissed an appeal made to them ...; or (b) the Appeal Tribunal has affirmed the determination of an adjudicator dismissing an appeal ... the Secretary of State may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator or Tribunal ...” 32. Rule 346 of the Immigration Rules provides that the Secretary of State will treat representations as a fresh application if the claim advanced is sufficiently different from the earlier claim. He disregards, in considering whether to treat the representations as a fresh claim, material which is not significant, or is not credible, or was available to the applicant at the time when the previous application was refused or when any appeal was determined. 33. There have been a number of domestic cases where special adjudicators have rejected “internal flight” possibilities for CUF members from Zanzibar. In Masoud Mussa v. the Secretary of State (30 July 1998), the Government pointed out that the Secretary of State’s counsel had not been present to argue the point. In Omar Machano Omar v. the Secretary of State (24 June 1998), the asylum claimant was an escaped prisoner from Zanzibar and a target for internal extradition proceedings. In Salim Saleh Salim v. the Secretary of State (15 January 1998), the adjudicator found that there was no evidence before him to show that the claimant would be any safer on the mainland than in Zanzibar. 34. In the case of Adam Houiji Foum v. the Secretary of State (10 January 2000), the Immigration Appeal Tribunal allowed the appeal of a Tanzanian asylum-seeker who had been involved in CUF activities, on the basis that, as he had suffered torture in Zanzibar and a summons had been issued against him in Tanzania generally, there was a very reasonable prospect that he would be picked up by the police and undergo ill-treatment similar to that previously received in Zanzibar, either at the hands of the Zanzibar authorities or of the police in mainland Tanzania who also exercised brutality on prisoners in their custody. It therefore rejected the “internal flight” option. 35. Decisions of the Home Secretary to refuse asylum, to make a deportation order or to detain pending deportation are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law. 36. These principles do not permit the courts to make findings of fact on matters within the jurisdiction of the Secretary of State or to substitute their discretion for the minister’s. The courts may quash his decision only if he has failed to interpret or apply English law correctly, if he has failed to take account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 King’s Bench Reports 223). 37. In the recent case of R. v. Home Secretary, ex parte Turgut (28 January 2000), concerning the Secretary of State’s refusal of asylum to a young male Turkish Kurd draft evader, Lord Justice Simon Brown, in the Court of Appeal’s judgment, stated as follows: “I therefore conclude that the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination and this it does by considering the underlying factual material for itself to see whether it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed. All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts. In the first place, the human right involved here – the right not to be exposed to a real risk of Article 3 treatment – is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is before it. Thirdly, whilst I would reject the applicant’s contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the ‘discretionary area of judgment’ – the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal ... – is decidedly a narrow one.” 38. In January 1997 the US Department of State released the Tanzania Country Report on Human Rights Practices for 1996. It stated: “The Government’s human rights record did not improve and problems persisted. Although the 1995 multiparty elections represented an important development, citizens’ right to change their government in Zanzibar is severely circumscribed. Although new opposition parties were competitive in many 1995 races and won in some constituencies, police often harassed and intimidated members and supporters of the opposition. Other human rights problems included police beatings and mistreatment of suspects, which sometimes resulted in death. Soldiers attacked civilians, and police in Zanzibar used torture, including beatings and floggings. Prison conditions remained harsh and life threatening. Arbitrary arrest and prolonged detention continued and the inefficient and corrupt judicial system often did not provide expeditious and fair trials ... Since the 1995 election, police in Zanzibar, particularly on Pemba, have regularly detained, arrested and harassed CUF members, and suspected supporters. Despite orders from the Union Government’s Inspector General of Police, officers in Zanzibar continue these activities ... The Wairoba Commission found that pervasive corruption affected the judiciary from clerks to magistrates. Clerks took bribes to decide whether or not to open cases and to hide or misdirect the files of those accused of crimes. Magistrates often accept bribes to determine guilt or innocence, pass sentence, withdraw charges or decide appeals ... There are reports of prisoners waiting several years for trial because they could not pay bribes to police and court officials. Authorities acknowledge that some cases have been pending since 1988. The Government initiated efforts as early as 1991 to highlight judicial corruption and increased its oversight ... In the 2 years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both of the two main Zanzibar islands, Pemba and Ugunja. Because CUF won all 20 seats on Pemba, Pembans living on Ugunja were regarded as CUF supporters and as a result were harassed. CUF members accused police of detaining dozens of its members ... Safety is not ensured in Pemba, where security forces dispersed gatherings, intimidated and roughed up individuals ...” 39. In the Amnesty International Annual Report 1997, it was stated: “Prisoners of conscience were among scores of government opponents arrested and briefly detained on the islands of Zanzibar and Pemba. Many were held without charge or trial; others faced criminal charges and were denied bail. Scores of political prisoners were tortured and ill-treated on the islands ... Criminal charges such as sedition, vagrancy and involvement in acts of violence, often accompanied by the denial of bail for periods of two weeks or more, were also used as a method of intimidating government critics or opponents.” 40. In their 1998 report, Amnesty International stated: “In December [1997], 14 possible prisoners of conscience on Zanzibar were charged with treason and refused bail. The men, supporters of the CUF, were arrested and initially charged with sedition in November and December, during the week the CUF won a by-election to the Zanzibar House of Representatives.” 41. On 8 July 1998 Amnesty International issued a press release expressing concern that the vice-chairperson of the CUF might be arrested on a fabricated treason charge. In Tanzania it noted treason carried a mandatory death penalty. On 24 July 1998 Amnesty called for the immediate release of eighteen leading CUF members or supporters, most of them imprisoned since November 1997 on fabricated treason charges. It expressed concern about their deteriorating health and a denial of adequate medical treatment. 42. The 1998 US State Department report on Tanzania noted that serious problems remained in that government’s human rights record. “... the police regularly threaten, mistreat or beat suspected criminals during and after their apprehension and interrogation. Police also use the same means to obtain information about suspects from family members not in custody ... Police in Zanzibar use torture ... Repeated reports from credible sources indicate that the police use torture, including beatings and floggings in Zanzibar, notably on Pemba Island. Both the Zanzibar and Union Governments have denied these charges. Police have not yet explained the deaths of six detainees in the town of Morogoro who were electrocuted at the end of 1997 ... Prison conditions remained harsh and life-threatening. Government officials acknowledge that prisons are overcrowded and living conditions are poor. Prisons are authorised to hold 21,000 persons but the actual prison population is estimated at 47,000 ... The daily amount of food allotted to prisoners is insufficient to meet their nutritional needs and even this amount is not always provided ... Earlier the Commissioner of Prisons stated that his department received inadequate funds for medicine and medical supplies. Prison dispensaries only offer limited treatment, and friends and family members of prisoners generally must provide medication or the funds with which to purchase it. Serious diseases, such as dysentery, malaria and cholera are common and result in numerous deaths. Guards continued to beat and abuse prisoners. ... There were no reports of political prisoners on the mainland. At the year’s end, there were 18 political prisoners in Zanzibar.” 43. The report noted that in January 1998 the police had searched the offices of the CUF party in Tanzania and removed files. In the three years since the election in 1995, government security forces and CCM gangs harassed and intimidated CUF members on both the main Zanzibar islands of Pemba and Ugunja. 44. The Amnesty International 1999 Report for Tanzania stated that: “Eighteen prisoners of conscience, including three arrested during the year, were facing trial for treason on the island of Zanzibar, an offence that carries the death penalty. Scores of other opposition supporters in Zanzibar were imprisoned for short periods; some were possible prisoners of conscience. More than 300 demonstrators arrested on the mainland in the capital Dar es Salaam were held for several weeks and reportedly tortured. Conditions in some prisons were harsh ...” The eighteen prisoners, CUF members, included fifteen arrested in 1997 and three arrested in Zanzibar in May 1998, and many had reportedly fallen ill due to a denial of access to medical treatment. According to the report, the conditions in some mainland prisons amounted to cruel, inhuman and degrading treatment, which in the case of Mbeya Prison led to forty-seven deaths in the first half of the year. 45. In its press release of 27 January 2000 Amnesty International, reporting on the imminent trial of the eighteen CUF members, referred to them “as prisoners of conscience who are imprisoned solely on account of their non-violent opinions and peaceful political activities”. It described how between the 1995 and the 1998 elections, numerous CUF supporters had been arrested on trumped-up criminal charges, tortured in custody and imprisoned. On more recent events, it commented: “Following lengthy attempts by the Secretary General of the Commonwealth and the United Nations Secretary General to settle the political crisis in Zanzibar, an agreement was finally reached between the CCM and CUF in April 1999. Far-reaching reforms for democratisation, human rights and fair elections were set out in the Commonwealth Agreement, but few have yet been implemented. Although the CUF is allowed to operate more freely, the Zanzibar government continues to press ahead with the trial, intent on convictions and death sentences.” 46. In the 1999 US State Department report on Tanzania, issued on 25 February 2000, it was reported, inter alia, that the authorities had been responsible for a number of extrajudicial killings and that several prisoners had died as a result of harsh prison conditions, including inadequate nutrition, medical care and sanitation: “... the police regularly threaten, mistreat or occasionally beat suspected criminals during and after their apprehension and interrogation ... Repeated reports indicate that the police use torture, including beatings and floggings, in Zanzibar, notably on Pemba island.” The situation in Zanzibar was less favourable in a number of respects. It was stated that, except in Zanzibar, Tanzanian citizens generally enjoyed the right to discuss political alternatives freely and opposition party members openly criticised the government, although the government had used the provision prohibiting “abusive language” against the leadership to detain some opposition figures. Opposition parties had generally been more able to hold rallies, although CUF meetings in Zanzibar had been far more restricted than those of other parties. Police continued to break up meetings attended by persons thought to be opposed to the Zanzibar government. In Pemba the security forces broke up gatherings and intimidated opposition party officials and the government continued to arrest opposition politicians for holding meetings. “In the four years since the election, government security forces and CCM gangs harassed and intimidated CUF members on both main Zanzibar islands, Pemba and Ugunja ... The CUF accused police of detaining dozens of its members including several local leaders ... citizen’s safety is not assured in Pemba, where security forces dispersed gatherings and intimidated persons ... Almost all international donors have suspended direct assistance to Zanzibar in response to the authorities’ human rights abuses. Under pressure from the international community, the ruling CCM party and the main opposition party, the CUF, signed a political agreement in June to make the political process in Zanzibar fairer; however the provisions of the agreement were not fully implemented by the year’s end and observers believe that the Government did not act in good faith in the period following the signing of the agreement.” 47. In a letter dated 8 April 1998 the British High Commission in Dar es Salaam commented that there were concerns about the situation in Zanzibar but that on the mainland there had been no evidence of political killings, disappearances or politically motivated arrests. There were more general human rights problems, such as arbitrary detentions and poor penal conditions, which were systemic and not related to political activity. 48. In a letter dated 25 May 1998 Michael Hodd of the University of Westminster commented that there was evidence of human rights violations in Zanzibar, including a list of sixty-six missing persons. Although there was a good human rights record in mainland Tanzania, it was possible for the Zanzibar government to demand extradition, which had been successful in the case of Abdallah Kassim Hanga, whom a well-informed source reported as having been beheaded. 49. According to a report dated 16 March 1999 obtained by the applicant, Professor Parkin, professor of social anthropology at All Souls College, Oxford, an expert on Uganda, Kenya and Tanzania, stated that while there was less likelihood of persecution in mainland Tanzania than on Zanzibar, he observed a deteriorating situation also affecting the mainland. He referred to particular members of the Zanzibari CCM visiting the mainland and harassing and persecuting CUF dissidents who had taken refuge there. The Zanzibari CUF leader was living in Dar es Salaam but only ever moved out of his flat surrounded by CUF party aides able to protect him. | 1 |
train | 001-113129 | ENG | GBR | CHAMBER | 2,012 | CASE OF BUCKLAND v. THE UNITED KINGDOM | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1959 and lives in Cardiff. 6. The applicant is a gypsy. In 1999 she moved to the Cae Garw caravan site in Port Talbot, Wales, with her two children. The site was owned by Neath Port Talbot County Borough Council. 7. On 12 June 2000 Neath Port Talbot County Borough Council entered into a licence agreement with the Gypsy Council which provided that the latter would manage the site. 8. On 29 March 2004 the applicant entered into a licence agreement with the Gypsy Council to occupy pitch 16 on the site. It was a condition of the licence that: “The Licensee or his/her resident family ... must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any ... person living with ... her contravenes any of these Site Rules or Conditions.” 9. On 30 December 2004 the Gypsy Council issued a notice of termination of licence to the applicant which expired on 6 February 2005. The notice referred to a clause of her licence agreement which provided: “The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.” 10. No further reasons justifying the termination were given. 11. Notices to quit were also given to her parents, who occupied a different pitch on the site. 12. On 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 (“the 1968 Act”) entered into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to twelve months at a time (see paragraph 36 below). 13. On 2 August 2005 the Gypsy Council issued a claim for possession against the applicant and five members of her extended family, including her parents, in Neath Port Talbot County Court. In its particulars of claim, the Gypsy Council alleged that all six defendants were guilty of causing very substantial nuisance to the site to the detriment of other occupiers. 14. The applicant’s parents did not apply for suspension or postponement of the orders. On 1 June 2006, possession orders were made against them by consent. 15. An oral hearing took place between 24 and 26 July 2006 in Swansea County Court and 28 July 2006 in Neath County Court in respect of the claim for possession against the applicant. In a witness statement lodged prior to the hearing, the applicant indicated that she intended to leave the site when her parents left. 16. On 25 July 2006 Judge Bidder QC gave a judgment on the preliminary issue of whether the applicant could challenge the making of a possession order in her case. He considered himself bound by the decision of the House of Lords in Kay and Price (see paragraph 42 below), which had examined the effect of this Court’s judgment in Connors v. the United Kingdom, no. 66746/01, 27 May 2004. Thus, he concluded, the only options open to the applicant were to challenge the domestic law itself or to commence judicial review proceedings based on conventional grounds. He concluded: “58. ... I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable ... 59. Moreover, the fact that parliament has amended the applicable domestic legislation to afford the gypsy occupier the opportunity to contend that any possession order should be suspended for 12 months at a time distinguishes that case from Connors, and given that that amendment was considered in Kay and Price I find it impossible to say ... that there is a seriously arguable point raised that the law which enables the court to make the possession order is incompatible with article 8 ...” 17. He invited submissions from the applicant as to the possible temporary suspension of any possession order. He added: “71. I should say that on the issue of suspension of the ... order against the [applicant] of possession I would invite the parties to consider the date of 4th November 2006 being the date on which the [applicant’s] parents are required to leave and on which she indicates that she would leave anyway ...” 18. On 28 July 2006, following the applicant’s submissions that any possession order against her should be suspended, the judge handed down his judgment on the remaining issues. Having reviewed the allegations made against the applicant by the claimant, the judge concluded: “27. ... I am not satisfied that Maria Buckland has herself been guilty of any offensive behaviour on site, or of any breach of licence, apart from the relatively minor failure to pay the water charges.” 19. He was, however, satisfied that her son, who resided part of the time with her, had been involved in an incident on site in which he threatened someone with a gun, although it was not clear whether the gun had been real or merely an imitation; and had dumped garden refuse on the site. 20. Turning to consider whether the applicant’s personal circumstances, and those of her son, justified a suspension of the possession order which he would be making in her case the judge noted: “32. In relation to Maria Buckland, while I am obliged to make a possession order, I find her only breach of site conditions has been recent and is a very modest failure to pay water charges. She has indicated in a recent statement that she intends to move from the site when [her parents] leave, that is on or before 4pm on 24th November. I do consider it appropriate to suspend enforcement of the possession order against her until the same time and date. However, I am clear that the behaviour of [her son] on this site and his attitude towards the Farrows [the family of the site manager] is such that I have to impose conditions on her continued possession, as sought in the draft order – [her son] lives half his time with his father, and I have no doubt that if he cannot live with his mother, he will be able to live with his father ...” 21. He made an order for possession against the applicant, which he suspended until 24 November 2006 upon the condition that her son leave the site and that she discharge the GBP 95 arrears of water charges at the rate of GBP 5 per week. 22. On 18 April 2007 the applicant, who was still resident at the site, was granted permission to appeal the possession order to the Court of Appeal. A stay of execution of the order of 28 July 2006 was also ordered. 23. In November 2007 a bill which would amend the Mobile Homes Act 1983 (“the 1983 Act”) was introduced to Parliament. The effect of the proposed amendment was to allow a defendant in possession proceedings such as the applicant to challenge before the County Court the reasonableness of making a possession order. 24. On 12 December 2007 the applicant’s appeal was dismissed. Considering the impact of the amendment to the 1968 Act to allow suspension of a possession order on whether the applicant could succeed in a conventional public law challenge to the decision to seek a possession order, Lord Justice Dyson noted: “42. The significance of the amendment is that a claimant’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court,, including the claimant’s complaints about the defendant’s behaviour.” 25. He continued: “43. ... It may be that, for the reasons given by Lord Brown [in Kay], a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence ‘without the need to make good any underlying reason for taking such precipitate action’. The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors ... On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.” 26. He concluded that since the amendment to the 1968 Act, it was difficult to conceive of a case in which a public law defence would succeed. Referring also to the fact that Judge Bidder had made a finding of misconduct on the site by the applicant’s son, for whose behaviour she was responsible under the terms of the licence, Dyson LJ considered that the judge was right to hold that the public law defence was not seriously arguable. 27. Dyson LJ further noted that the factual situation of Connors was not materially different from the present case in that in both cases the defendant had occupied a site as a home for a number of years. Further, in both cases the claimant had validly and properly terminated the defendant’s licence to occupy so that the defendant had become a trespasser; the claimant was entitled to an order for possession as the owner of the land; and no further justification was required to seek an order for possession. However, it was agreed by the parties that it was not necessary to decide whether the present case could be distinguished from Connors as the distinction was only relevant for any appeal before the House of Lords. 28. Finally, in respect of the applicant’s argument that the amendment to section 4 of the 1968 Act did not remedy the incompatibility with Article 8, Dyson LJ emphasised that, in principle, a wide margin of appreciation was left to the national authorities in such matters. However, he accepted that the vulnerable position of gypsies as a minority meant that “some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases” (citing Connors, § 83). He found that the main reason for the narrowing of the margin of appreciation in Connors itself was that the complete absence of any procedural safeguards was a serious interference with the applicant’s Article 8 rights in that case, which called for particularly weighty reasons of public interest in justification. However, the precise scope of these safeguards was in his view, a matter for the national authorities to determine. He considered that provided that a reasonable degree of protection was afforded by the domestic law, the Strasbourg Court would not interfere, even if a greater degree of protection could have been afforded. He accordingly rejected the applicant’s submissions, noting: “60. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks’ notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant’s eviction. The local authority’s reasons were irrelevant as were the occupant’s personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier’s rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic. 61. The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months ‘as the court thinks reasonable’. The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to ‘all the circumstances’ in deciding whether to exercise its power to suspend. The court is, therefore, ...” 29. He concluded: “63. In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.” 30. As to the applicant’s argument that the legislation discriminated against gypsies, Dyson LJ found that although the discrimination point was one of the features of the Court’s reasoning in Connors, it was not the main reason for the decision. Even if that was wrong, Dyson LJ considered that by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment had also gone a long way to meeting the discrimination point. While discrimination would not be cured completely until the 1983 Act was amended, it had been much mitigated. Thus to the extent that the discrimination persisted, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting States. 31. On 18 February 2008 the House of Lords refused the applicant’s request for permission to appeal. 32. In May 2008 the applicant left Cae Garw caravan site for alternative accommodation on land owned by her brother. She claims that her departure was the result of the refusal of leave to appeal and in the face of further threats of eviction The land owned by her brother has no planning permission for residential use and its occupants, which include the applicant’s brother, his six children and the applicants’ parents, share minimal facilities, namely one toilet and one sink with cold running water in a shed with no lighting. 33. Part I of the Caravan Sites Act 1968 (“the 1968 Act”) provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least four weeks’ notice of termination of a licence to occupy a caravan site must be given. 34. Section 4(1) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to twelve months at a time. 35. Section 4(4) provides that in considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions: “(a) whether the occupier of the caravan has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site licence, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon; (b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms; (c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it).” 36. Section 4(6) of the 1968 Act formerly excluded the court’s power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. However, the exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed by the Housing Act 2004, which entered into force on 18 January 2005, in respect of proceedings begun on or after that date. 37. The Mobile Homes Act 1983 (“the 1983 Act”) was enacted, inter alia, to restrict the eviction from caravan sites of occupiers of caravans. It applies to any agreement under which a person is entitled to station a mobile home on land forming part of a “protected site” and to occupy it as his only or main residence and implies into licence agreements falling within the ambit of its provisions various protective terms. 38. Section 2(1) and paragraph 4 of Schedule 1 to the 1983 Act provide that the owner of a relevant site is entitled to terminate the licence only if (i) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (ii) the court considers it reasonable for the agreement to be terminated. 39. Section 5(1) defines “protected site” by reference to its definition in the 1968 Act (essentially applying to land authorised for long-term residence). However, the section expressly excludes from the definition any land occupied by a local authority as a caravan site providing accommodation for gypsies. 40. Pursuant to section 321 and Schedule 16 of the Housing and Regeneration Act 2008, which was enacted on 22 July 2008, the exclusion of land used for accommodating gypsies from the definition of “protected site” in section 5(1) of the 1983 Act is removed. The amendment has entered into force in England but has not yet entered into force in Wales. 41. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court’s judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010. 42. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified that a challenge to possession proceedings could only be based either on an argument that the law itself was incompatible with Article 8; or on conventional judicial review grounds. 43. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57, decided after the applicant’s appeal was dismissed, concerned the eviction of gypsies from a local authority caravan site. Lord Hope concluded that it was open to the defendant to argue that the law itself was incompatible with the Convention because the relevant legal framework was indistinguishable from that which applied in Connors. He considered that in light of the clear terms of the legislation allowing the local authority possession, there was no scope for interpreting it in a manner which was Convention-compatible and continued: “50. ... This raises the question whether your Lordships should make a declaration of incompatibility ... The incompatibility with the appellant’s article 8 rights that was to be found in section 4(6)(a) of the 1968 Act has been removed by section 211(1) of the Housing Act 2004. As already noted, a clause was included in the Housing and Regeneration Bill to remove the exclusion of local authority sites which provide accommodation for gipsies from the protection of the 1983 Act. Nevertheless, prior to its receiving the Royal Assent ..., Lord Walker favoured the making of a declaration of incompatibility in relation to section 5(1) of the 1983 Act. 51. I was at first inclined to doubt whether a declaration was necessary. The power to make a declaration ... is, after all, a discretionary one. But on reflection I agreed that it would be appropriate to make such a declaration in this case. Indeed I considered that the decision of the Strasbourg court in Connors left the House with no alternative but to do this. That was a judgment which was pronounced in a case against the United Kingdom. Its decision is as plain an indication as there could be that there was an incompatibility in our legislation that ought to be addressed by the United Kingdom Parliament ... In such circumstances the decision as to whether the incompatibility should remain was not for the court to take. It had to be left to the government and to Parliament, and it could not be taken for granted that the amending legislation would be passed. In the events that have happened, however, the making of a declaration has become unnecessary ...” 44. On 3 November 2010 the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”), sitting as a panel of nine judges. The case concerned possession proceedings brought against a demoted tenant. Following a review of the case-law, the Supreme Court considered the following propositions to be well-established in the jurisprudence of this Court: “(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ... (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ... (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ... (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.” 45. The Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited. 46. On 23 February 2001 the Supreme Court handed down its judgment in the joined cases of Mayor and Burgesses of the London Borough of Hounslow v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby [2011] UKSC 8 (“Powell and others”). In its judgment, the court extended its approach in Pinnock to introductory tenancies and tenancies under the homelessness regime. | 1 |
train | 001-97350 | ENG | UKR | CHAMBER | 2,010 | CASE OF CHESNYAK v. UKRAINE | 4 | Violation of Art. 6-1 | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. The applicant was born in 1953 and lives in the town of Zaporizhzhya, Ukraine. 5. On 9 March 1998 criminal proceedings were instituted against the applicant in connection with several straightforward episodes of smuggling goods to Ukraine. 6. In the period from 9 March 1998 to 22 May 1998 criminal proceedings were instituted against Mrs T., Mrs K. and four other persons in connection with the same episodes. 7. On 8 May 1998 the applicant gave a written undertaking not to abscond. 8. On 30 July 1998, while undergoing a course of treatment in a hospital, the applicant was arrested and remained under arrest in the hospital. On 28 August 1998 the applicant finished his treatment. On the same date he was placed in custody. 9. On 11 August 1998 the proceedings against the applicant, Mrs T. and Mrs K. were joined. 10. On 7 September 1998 the case was transferred to the Zaporizhzhya Regional Court for examination. On 12 May 1999 it sentenced the applicant to five years and six months' imprisonment. 11. On 16 September 1999 the Supreme Court quashed that judgment and remitted the case for fresh consideration to the Zaporizhzhya Regional Court On 16 March 2000 the Zaporizhzhya Regional Court sentenced the applicant to one year, seven months and sixteen days' imprisonment. Since the applicant had already spent an equivalent time in prison he was considered to have served his sentence. By the same judgment the court placed the applicant under an obligation not to abscond. On the same date the applicant was released. 12. On 1 June 2000 the Supreme Court quashed the judgment of 16 March 2000 and remitted the case to the prosecutor's office for further investigation. 13. On 25 December 2000 the further investigation was completed and the case was transferred to the Leninsky District Court of Zaporizhzhya. 14. On 15 October 2001 the Leninsky District Court of Zaporizhzhya sentenced him to two years' imprisonment. The applicant was exempted from serving his sentence under the Amnesty Act. By the same judgment the court released the applicant from the undertaking not to abscond. 15. On 10 December 2001 the Zaporizhzhya Regional Court of Appeal, acting as a court of appeal, upheld that judgment. 16. On 8 October 2002 the Supreme Court quashed the ruling of 10 December 2001 and remitted the case for fresh consideration to the court of appeal since the latter had failed to consider the applicant's appeal in a due manner. 17. On 18 December 2002 the Zaporizhzhya Regional Court of Appeal quashed the judgment of 15 October 2001 and remitted the case for further investigation to the prosecutor's office. 18. On 17 September 2003 the case was transferred to the Leninsky District Court of Zaporizhzhya. 19. On 24 September 2003 the Leninsky District Court of Zaporizhzhya terminated the criminal proceedings against the applicant since the charges against him had become time-barred. On 16 February 2004 and 17 May 2005 the Zaporizhzhya Regional Court of Appeal and the Supreme Court, respectively, upheld that ruling. | 1 |
train | 001-109575 | ENG | SWE | CHAMBER | 2,012 | CASE OF LEVIN v. SWEDEN | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 6. The applicant was born in 1967 and lives in Norway. 7. The applicant is the mother of three children, T. born in October 1999, S. born in March 2001 and D. born in November 2002. In March 2003, the applicant separated from the children’s father, B., and she was eventually granted sole custody of the children, while B. was granted contact rights. The applicant married J. in November 2004. 8. The applicant and her children have been known to the social services since 2002 when a first investigation into their home environment was carried out. During March and April 2005, the personnel at the children’s day care centre felt that the applicant was distracted and stressed and the children were hungry and dirty when they arrived at day care in the mornings and were behaving in a wild and hyperactive manner. In view of this, they reported the situation to the social services in Skellefteå. In March the applicant herself contacted the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) for help, as she considered the situation to be chaotic and she needed help for her son, S., who she claimed destroyed everything at home. BUP reported the family’s situation to the social services. 9. On 3 May 2005 the applicant contacted BUP in a state of despair and, in response, a social emergency unit (social beredskap) went to the applicant’s home, accompanied by police and a chief physician from the adult psychiatric clinic. The authorities found the interior of the home completely destitute; there was hardly any furniture and there was no electricity or running water. The applicant was in a confused state and blamed the mess in the house on S. The social emergency unit decided immediately to place the children, together with the applicant, in a temporary family home (jourfamiljehem). On the following day, the applicant was committed to compulsory psychiatric care in accordance with the Act on Compulsory Psychiatric Care (Lagen om psykiatrisk tvångsvård, 1991:1128). The applicant claimed that she was not ill but agreed to the placement of the children in the temporary family home. A week later, she was released from psychiatric care and returned to her home. 10. During the summer of 2005 the applicant had frequent contact with the social services. However, she felt misunderstood and harassed by the authorities and wanted to bring her two daughters, T. and D., home. As the social services insisted that the situation was not stable enough for the girls to return to the applicant, she withdrew her consent to their voluntary placement. Hence, the Social Council (socialnämnden) in Skellefteå decided to take T. and D. into public care immediately on a provisional basis, pursuant to section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter “the 1990 Act”). The council considered that the measure was necessary in order to protect the children. It also noted that there had been chaos every time the applicant had met with the children during the summer or when she had appeared, often unannounced, at their day care centre, leaving them upset and sad. 11. The applicant, who was represented by legal counsel, opposed the measure but, on 31 August 2005, the County Administrative Court (länsrätten) of Västerbotten confirmed the decision of the Social Council. 12. On 19 September 2005 the Social Council applied to the County Administrative Court for a permanent care order in respect of all three children, in accordance with section 2 of the 1990 Act. The council maintained that the applicant had shown a serious lack of ability to care for her children. It submitted a comprehensive investigation report into the family’s situation in support of its request according to which all three children had worn nappies when they arrived at the temporary family home, although T. only at night, and they had been dirty and had an endless appetite. Moreover, T. had no limits towards adults and wanted to control everything and everyone around her. S. had nightmares and had been afraid of sudden movements. He acted in a very stressed and anxious manner when his mother was present. D. had been late in her speech and motor development. The applicant had not been able to set limits for her children and the situation when they met had always become out of control. 13. The applicant disputed the measure and claimed that she was capable of caring for her children, who suffered from being separated from her. 14. By judgment of 19 October 2005, after having held an oral hearing, the County Administrative Court granted a permanent care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicant lacked the ability to care for her children, which had already somewhat impaired their health and development, and that there was a serious risk of further damage unless they were given proper care. Since the applicant did not agree to voluntary care, it was necessary to take the children into public care on a permanent basis. 15. The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Sundsvall. She had realised that it was not S., but her husband J., who had been responsible for all the destruction in their home. J. had admitted this and they had divorced. However, she did not consider that the children had suffered from this error, although she felt sorry for S. and would have liked to talk to him about it. 16. The Social Council contested the appeal. In its view, the children’s behaviour showed that their development had already been harmed and, moreover, the applicant had no insight into her problems and had difficulties in interacting with her children. 17. On 9 January 2006 the Administrative Court of Appeal upheld the lower court’s judgment in full. In its opinion it was evident that the children had not received proper care at home. Moreover, the applicant had shown signs of mental ill-health and had behaved in an unbalanced manner. Thus there had been a real risk of damage to the children’s health and development. Furthermore, although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J., it found that the situation was far from being stable, having regard to the serious flaws which had existed, the uncertainty as to whether they still existed and the children’s need for care. 18. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) which, on 23 February 2006, refused leave to appeal. 19. Following the granting of the public care order in August 2005, the applicant had contact rights to visit T. for one hour, once every other week, and spoke with her on the telephone once a week. She met S. once every third week in the presence of the social services and she had contact rights to visit D. for one hour every week. In May 2006 the applicant moved to live with her sister in Göteborg, located approximately 1,100 km from Skellefteå, and as a result she travelled to Skellefteå to see her children roughly once a month. 20. In October 2005, the children were placed in three different family homes, all within approximately 50 km of Skellefteå, as one family was not able to provide the care and support that each child needed. However, it was arranged for the children to meet each other approximately once a month to ensure continued good contact between them. 21. In November 2006 the applicant, through her legal counsel, requested the Social Council to allow her more time with her children as she felt that the children were being deprived of contact with her. 22. On 11 December 2006 the Social Council decided to restrict the applicant’s contact rights to all three children. It first noted that the children’s father, B., had also requested contact rights to the children and that his contact rights had to be taken into account when deciding on the frequency of the applicant’s contact rights, balanced against the best interests of the children. Thus, according to the decision, each parent should meet with the children once every three months in a neutral environment where the family home parents and the social worker responsible for the file should be present. This meant that the applicant would meet her children once every six months. 23. The decision was based on an investigation carried out by the Social Council, in consultation with BUP, into the children’s situation. It was finalised on 1 December 2006 and concluded, inter alia, the following. All three children had suffered severe harm to their health and development because of the deficiencies in the applicant’s ability to care for them. They were vulnerable and sensitive to change. However, since the permanent care order, T. had slowly become more calm and balanced and had started to learn how to play. She and the applicant had been alone during their meetings and had done various things such as going to the playground, the swimming pool or a restaurant. T. had been very tired after the meetings and she had slept badly and wet her bed. After telephone conversations with the applicant, T. had also been anxious and sad. As regards S., he had become calmer and more relaxed since placed in the family home. He still had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant, despite the meetings having been very structured and held in the presence of the family home father. S. showed clear signs of fear of his mother and he had expressed a fear that she would come and fetch him. Turning to D., it was observed that she had met with the applicant and that they had usually been alone, playing together. After contact with the applicant, D. used to be worried about things the applicant had told her and she regressed somewhat in her development for a few days after each meeting, wetting her bed and having difficulty sleeping. The Social Council concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development. 24. The applicant appealed to the County Administrative Court and requested that she be granted contact rights to her children much more often than only twice a year. She could see no reason for such restricted contact and found it to be contrary to the best interests of the children as they would forget their mother. They had lived with her until May 2005 and they had had a close and warm relationship. She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them. Moreover, she referred to a custody report, dated 28 February 2005, which had been carried out in connection with the custody proceedings following the divorce from B. In the summary of the report it was stated, inter alia, that nothing had appeared to call into question the applicant’s ability as a parent to care for her three children and that personnel at the children’s day care centre had stated that the children seemed to receive the care they needed from the applicant. 25. The Social Council contested the appeal. It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted, which was the effect of their contact with the applicant. Consultation had taken place with BUP, which agreed with the Social Council that contact restrictions were necessary in order to ensure a positive development for the children. Moreover, it noted that the last meeting between the applicant and her children, on 23 January 2007, had passed without incident, partly because eight adults had been present to ensure the children’s well-being. 26. On 2 April 2007 the County Administrative Court rejected the appeal. It noted that a supplementary custody report, dated 25 August 2005, stated that it was clear that there were major flaws in the applicant’s ability to care for her children. Thus, having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant, and that they needed time to develop in peace in their family homes, the Social Council had been justified in restricting the applicant’s contact rights to her children to twice a year. 27. The applicant lodged an appeal with the Administrative Court of Appeal, maintaining her claims and adding that she wished to see her children at least once a month in order to ensure that they would not forget her. She felt that the family home parents had a negative attitude towards her and that this influenced the children. 28. On 11 October 2007, after having held an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It noted that BUP had been consulted by the Social Council before its decision. 29. Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 10 December 2007. 30. Every three months, the Social Council reconsidered the contact restrictions and decided to maintain the restrictions in place. It would appear that the applicant did not appeal against these until the council’s decision of 11 August 2008 which she appealed against to the County Administrative Court, requesting that her contact rights to her children be increased to one visit per month to begin with and, after three months, to spend one weekend a month with them alone. She stated, inter alia, that she had moved to Norway, found a job and was in a steady relationship with a new man, and thus, felt very well. 31. In its decision, the Social Council had observed that despite the applicant’s visits having been planned and very structured, the children had still had negative reactions before and after each meeting in the form of anxiety, stomach aches, bedwetting, becoming insecure and regressing in their development. It further noted that during the visit in December 2007, the applicant’s mother had also been present which had been a positive addition. She had expressed a wish to see her grandchildren once a year, to which the council agreed. It also noted that the applicant had sent postcards and letters to the children which they appreciated. As concerned the visits, the council observed that they were always very well planned and structured with the support of the family homes and that the applicant and the children played together, ate and talked. The family homes also showed photos and films from the children’s meetings and their activities. 32. On 14 November 2008 the court, after having held an oral hearing, decided to increase the applicant’s contact with her children to four times per year, for four hours each time. It noted that the limited contact had been in place for roughly two years and had contributed to the children developing positively during this time. Although it agreed with the Social Council that continued limitations on the applicant’s contact with her children were necessary due to the children’s needs, it noted that the applicant had not interfered in an inappropriate manner in the care of her children. Moreover, the last two times they had met had generally gone well. Therefore, the court found that with the support of the Social Council and the family homes during the meetings, these could be increased to four times per year for the applicant. In its view, this would provide the children with a good contact with their mother while not jeopardising their continued development. 33. The applicant appealed to the Administrative Court of Appeal, maintaining that she wanted contact rights with her children during one weekend per month, without the presence of others, in order to ensure that she and the children would establish a good contact. 34. The Social Council contested the appeal and maintained the reasons set forth in its decision. 35. The Administrative Court of Appeal requested the Social Council to obtain the children’s point of view on increased contact with their mother. Consequently, the council met with the children individually but in the presence of their family home parents where they spoke about various things, including how they felt about seeing their mother more often. T. said that she did not want to meet her mother more than twice a year and that she did not want to be alone with her or stay with her. According to T., the meetings were very tiresome, demanding, she had a headache and could not concentrate in school before and after the meetings. She started crying and had a stomach ache during the conversation for which reason they had to cut it short. Following the conversation, she wet her bed at night, cried a lot and said that she was afraid. As for S., he did not want to talk about his mother. He reacted in a negative, frightened manner and almost started crying. He later said that he only wanted to see her once a year and that he did not want to be alone with her. It was noted that he was very anxious and afraid to meet his mother and had strong physical reactions both before and after the meetings, including stuttering, becoming aggressive and being afraid of physical contact. Turning to D. she said that she became tired when meeting her mother and siblings but that it was nice to dress up and eat good food. It was noted that D. was the most positive about the meetings with the applicant but that she did not want to meet with her alone. Moreover, the negative reactions that she had had during earlier meetings had improved somewhat. 36. In February 2009 the applicant voluntarily underwent a neuropsychological examination during two days at Stavanger University Hospital, upon request by the Social Council. The council wanted to know if the applicant suffered from a disorder or mental illness and, if so, what support she would need. The examination concluded that the applicant fulfilled the criteria for Attention Deficit Hyperactivity Disorder (ADHD) that was mainly inattentive in nature. It recommended supplementary examinations and made a number of proposals for supportive measures, including establishing fixed structures and routines in her daily life. It was also stressed that this specific impairment of her capabilities could hardly be sufficient to “disqualify her as a parent”. 37. On 7 May 2009 the Administrative Court of Appeal upheld the lower court’s judgment in full. It concluded that it would not be in the best interest of the children to increase the applicant’s contact rights further than decided by the lower court, in particular due to the negative reactions of T. and S. before, during and after the meetings. 38. According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the child’s guardian. The decision to place a child in public care is made by the County Administrative Court following an application from the Social Council (section 4). 39. Chapter 1, section 2 of the Social Services Act (Socialtjänstlagen, 2001:453; hereafter the “2001 Act”) provides that particular attention must be given to the best interests of the child when measures within the social services affect him or her. Likewise, Section 1 § 5 of the 1990 Act states that the best interests of the young person shall be decisive when decisions are made under the Act. Moreover, Section 1 § 6 of the 1990 Act prescribes that the young person’s point of view shall, as far as possible, be clarified and that the young person’s will shall be taken into account, with due consideration to his or her age and maturity. 40. According to section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the young person is to live. Moreover, under section 14, the council shall ensure that the young person’s need for contact with his or her parents or other guardians is met to the utmost possible extent. If necessary, the council may decide how this contact is to be arranged. In the preparatory works to the 1990 Act (Government Bill 1979/80:1, p. 602), it is noted that the provisions on contact restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on contact restrictions between a young person and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time. 41. According to Chapter 6, section 1 of the 2001 Act, care outside a young person’s home shall be provided either in a family home or in a home for care and residence. Moreover, the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her, as well as contact with his or her home surroundings. 42. Contact restrictions shall be reviewed every third month by the Social Council pursuant to section 14 of the 1990 Act. Appeal against the council’s decision in this respect lies to the administrative courts (section 41). | 0 |
train | 001-67272 | ENG | HRV | CHAMBER | 2,004 | CASE OF DRAGOVIC v. CROATIA | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed | Christos Rozakis | 4. The applicants were born in 1933 and 1936, respectively and live in Zadar, Croatia. 5. In September 1991 the second applicant’s vehicle was requisitioned by the Croatian Army. 6. In August 1992 she was informed that the vehicle had been destroyed. 7. On 18 August 1995 she instituted civil proceedings before the Zadar Municipal Court (Općinski sud u Zadru) seeking damages from the Republic of Croatia for her damaged vehicle. 8. Pursuant to the Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”), the Zadar Municipal Court stayed the proceedings on 23 November 1999. 9. The proceedings resumed on 24 October 2003 pursuant to the “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003, hereinafter “the 2003 Act”). 10. The applicants claimed that members of the Croatian Army damaged their house in Vodice, Croatia, in mid-1992. 11. On 22 August 1995 they instituted civil proceedings before the Šibenik Municipal Court (Općinski sud u Šibeniku) seeking damages from the Republic of Croatia for their damaged house. 12. On 20 May 1999 the Šibenik Municipal Court rejected their claim. 13. The applicants appealed against that judgment. 14. Pursuant to the 1999 Act, the Šibenik Municipal Court stayed the proceedings on 10 December 1999. The applicants appealed against that decision. On 6 March 2000 the Šibenik County Court (Županijski sud u Šibeniku) rejected their appeal. 15. The proceedings resumed on 2 September 2003 pursuant to the 2003 Act. 16. On 31 May 2004 the Šibenik County Court quashed the judgment of 20 May 1999 and remitted the case to the Šibenik Municipal Court for a retrial. 17. The Civil Obligations (Amendments) Act 1999 (Zakon o dopunama Zakona o obveznim odnosima, Official Gazette no. 112/1999, hereinafter “the 1999 Act”) entered into force on 6 November 1999. It provided, inter alia, that all proceedings instituted against the Republic of Croatia for damage caused by members of the army and the police during the war were to be stayed until the matter has been regulated by special legislation. The Act also imposed an obligation on the Government to submit to the Parliament such special legislation no later than 6 May 2000. 18. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides: “Proceedings shall be stayed: ... (6) where another statute so prescribes.” 19. The “Damage Caused by Members of the Croatian Army and Police during the Homeland War Act 2003” (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika Hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, 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 1999 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage caused by the army and the police during the war. | 1 |
train | 001-105441 | ENG | MDA | ADMISSIBILITY | 2,011 | CASE OF BUROV v. MOLDOVA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 1. The applicant, Mr Ion Burov, is a Moldovan national who was born in 1948 and lives in Chişinău. He was represented before the Court by Mr V. Panţîru, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. On an unspecified date, the applicant, a former policeman, instituted civil proceedings against his ex-employer, the Ministry of Internal Affairs (“the Ministry”), seeking payment of salary arrears. 3. By a final judgment of 19 June 2002, the Supreme Court of Justice ordered the Ministry to pay the applicant an amount of 909 Moldovan lei (MDL) (69 euros (EUR) at the time) in salary arrears and MDL 500 (EUR 38) for his lawyer’s fees: a total equivalent to EUR 107. 4. The amount of MDL 909 represented the difference between the sum which had been effectively paid to the applicant for forced absence from work for the period 1997-2000 (MDL 17,547) and the sum to which he was entitled according to the law (MDL 18,547). The Supreme Court of Justice also ordered the Ministry to calculate and pay the applicant an additional compensation (premiul-recompensă) for a period of work from 1 January 1997 to 24 March 1997. 5. On 29 August 2002 and 24 June 2004 the applicant unsuccessfully sought a reopening of the proceedings which had ended in the final judgment in his favour. 6. According to the applicant, the final judgment in his favour has not been enforced to date. 7. The applicant claims that in 1996 he lodged a court action before the Rîşcani District Court, seeking restitution of nationalised property, which had been previously owned by his family. According to him, the District Court did not examine his claim until 2003. The outcome of these proceedings is unknown. 8. On an unspecified date, the applicant challenged a decision taken by the local authorities to refuse to issue him with a building permit. 9. By a final judgment of 6 June 2002, the Court of Appeal of the Republic of Moldova (Curtea de Apel a Republicii Moldova) rejected his claim as ill-founded. 10. By a judgment of the Chişinău Regional Court (Tribunalul Chişinău) of 30 October 2002 the applicant was awarded MDL 32,301 (EUR 2,384) in damages for unlawful dismissal. This judgment was confirmed by a final judgment of the Court of Appeal of the Republic of Moldova on 14 January 2003. 11. The applicant submitted documents, according to which he had initiated several sets of civil proceedings between 1997 and 2008, in addition to those summarised above. According to the submitted invoices, he regularly paid his representatives’ fees. Thus, he paid to different lawyers, respectively, MDL 2,970 (approximately EUR 436) in 1997, MDL 524 (approximately EUR 46) in 2000, MDL 1,000 (approximately EUR 87) in 2001, MDL 2,700 (approximately EUR 172) in 2005 and MDL 2,300 (approximately EUR 143) between 2006 and 2008. These payments amounted cumulatively to MDL 9,494 (approximately EUR 884). 12. During 2001 the applicant started to build a decorative fence around his property. According to the invoices, he paid MDL 5,540 (approximately EUR 481) for the construction materials and MDL 1,500 (EUR 137) to the contractors. 13. Finally, the applicant claimed in his just satisfaction claims that he had paid EUR 1,280 in fees to his representative before the Court. He did not ask the Court for legal aid. 14. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)). | 0 |
train | 001-110379 | ENG | POL | CHAMBER | 2,012 | CASE OF KORGUL v. POLAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 7. The applicant was born in 1962 and lives in Lublin. 8. On 6 June 2007 the Lublin District Court convicted the applicant of several robberies and sentenced him to 3 years and 6 months’ imprisonment. By a judgment of 28 December 2007 the Lublin Regional Court upheld the firstinstance judgment. 9. On 4 January 2008 the applicant requested the Lublin Regional Court to grant him a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Court. 10. On 7 February 2008 a legal-aid lawyer was assigned. 11. By a letter of 14 March 2008 the lawyer informed the court in a one sentence-long opinion that he had not found any grounds on which to prepare a cassation appeal. This statement did not include any reasons for the refusal to lodge a cassation appeal. 12. By a letter of 17 March 2008 the court forwarded the lawyer’s statement to the applicant. The letter read as follows: “...The Lublin Regional Court informs you that your legal-aid lawyer, advocate Mr W.W., informed the court in writing that he had not found any grounds to prepare a cassation appeal. In consequence, the time-limit for lodging a cassation appeal by a lawyer of your own choice expires on 7 April 2008.” 13. The letter as well as the opinion were served on the applicant on an unspecified date. 14. On 27 March 2008 the Lublin Regional Court refused to assign a new legal-aid lawyer to the applicant. The court stated that because the previous legal-aid lawyer had not found any grounds on which to draw up a cassation appeal, the mere fact that the applicant disagreed with this decision could not require the verification of this opinion by successive lawyers. 15. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court’s judgments in the cases of Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009. 16. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legal-aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02). 17. On 26 February 2002 the Supreme Court examined a case where a legal-aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer’s refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer’s refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 (II KZ 16/08) and in a number of similar decisions given in 2008. | 1 |
train | 001-95270 | ENG | GBR | ADMISSIBILITY | 2,009 | LYNCH v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Vincent Lynch, is a Jamaican national who was born in Jamaica in 1963 and is currently serving a life sentence at HMP Full Sutton, York. He was represented before the Court by Ms Y. Aslan, a lawyer practising in Manchester. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was convicted on 13 March 1998 of murdering a man in a night club in Birmingham the previous July. He was also convicted of robbery and possession of a firearm with intent. The trial judge sentenced him to life imprisonment for the murder, with a recommended minimum term of 17 years. For the two other offences he was sentenced to terms of imprisonment of 15 years and 7 years respectively, to run concurrently. The Lord Chief Justice subsequently recommended a minimum term (“tariff”) of 17-18 years. In February 1999, the Secretary of State notified a tariff of 20 years to the applicant. Subsequent to the enactment of the Criminal Justice Act 2003, the applicant applied to the High Court in February 2004 for the setting of a tariff in accordance with paragraph 3 of Schedule 22 of the Act (see under “Relevant domestic law” below). On 6 May 2004, his solicitors submitted representations for a reduction of three years in the applicant’s tariff. On 30 June 2004, the Crown Prosecution Service (CPS) was requested to seek the views of the victim’s family on the applicant’s request for a review of his tariff. The CPS being unable to assist, it was decided in September 2004 to enlist the help of Victim Liaison Officers in the Probation Service to contact the families of victims. On 11 March 2005, the Victim Liaison Officer for the West Midlands indicated that the victim’s family had not responded to the request for their views on the matter. During 2004, the case of R(Hammond) v. Home Secretary was under consideration by the Divisional Court, which was asked to rule on whether the relevant provisions of Schedule 22 were to be construed as allowing for an oral hearing. In its decision of 25 November 2004, the Divisional Court ruled that an oral hearing was permissible in appropriate circumstances. This ruling was subsequently confirmed by the House of Lords. According to the Government, it was not considered appropriate to process any applications for review under Schedule 22 until the question of oral hearings had been dealt with. Once the Divisional Court had determined the issue, all prisoners in the High Court’s database received a letter inviting their views on the need for an oral hearing in their case. Such a letter was sent to the applicant on 6 December 2004, eliciting a reply on 6 January 2005. The procedure therefore only began to operate in early 2005, at which point, according to the Government, there were more than 1,100 cases pending. This number included applications from prisoners whose tariff had been set by the Home Secretary, and from prisoners in respect of whom no tariff had yet been set. In November 2006, the Courts Service, in answer to a letter from the applicant’s solicitor enquiring about the delay in dealing with his case, apologised for the situation and explained that in view of the great number of such applications pending before the High Court, priority was being given to cases in which the tariff would expire in 2010. On 1 August 2008, the High Court (Mr Justice Grigson) rejected the applicant’s application. He concluded that the minimum period of 20 years notified by the Secretary of State could not be said to be manifestly excessive and so would not be reduced, apart from the period the applicant had spent in custody on remand (7 months and 15 days). Following the Court’s judgment in the case of Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002IV, Parliament adopted the Criminal Justice Act 2003. Schedule 22 of the Act sets out a procedure whereby a prisoner who received a mandatory life sentence before the date the Act entered into force (18 December 2003) and who was notified by the Secretary of State of the minimum term to be served may apply to the High Court for a review of that tariff. The relevant provisions read as follows: SCHEDULE 22 Mandatory Life Sentences: Transitional Cases Existing prisoners notified by Secretary of State 2 Paragraph 3 applies in relation to any existing prisoner who, in respect of any mandatory life sentence, has before the commencement date been notified in writing by the Secretary of State (otherwise than in a notice that is expressed to be provisional) either— (a) of a minimum period which in the view of the Secretary of State should be served before the prisoner’s release on licence, or (b) that the Secretary of State does not intend that the prisoner should ever be released on licence. 3 (1) On the application of the existing prisoner, the High Court must, in relation to the mandatory life sentence, either— (a) order that the early release provisions are to apply to him as soon as he has served the part of the sentence which is specified in the order, which in a case falling within paragraph 2(a) must not be greater than the notified minimum term, or (b) in a case falling within paragraph 2(b), order that the early release provisions are not to apply to the offender. (2) In a case falling within paragraph 2(a), no application may be made under this paragraph after the end of the notified minimum term. (3) Where no application under this paragraph is made in a case falling within paragraph 2(a), the early release provisions apply to the prisoner in respect of the sentence as soon as he has served the notified minimum term (or, if he has served that term before the commencement date but has not been released, from the commencement date). (4) In this paragraph “the notified minimum term” means the minimum period notified as mentioned in paragraph 2(a), or where the prisoner has been so notified on more than one occasion, the period most recently so notified. 4 (1) In dealing with an application under paragraph 3, the High Court must have regard to— (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, (b) where the court is satisfied that, if the prisoner had been sentenced to a term of imprisonment, the length of his sentence would have been treated by section 67 of the Criminal Justice Act 1967 (c. 80) as being reduced by a particular period, the effect which that section would have had if he had been sentenced to a term of imprisonment, and (c) the length of the notified minimum term or, where a notification falling within paragraph 2(b) has been given to the prisoner, to the fact that such a notification has been given. (2) In considering under sub-paragraph (1) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, the High Court must have regard to— (a) the general principles set out in Schedule 21, and (b) any recommendation made to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence. (3) In this paragraph “the notified minimum term” has the same meaning as in paragraph 3. ... Proceedings in High Court 11 (1) An application under paragraph 3 or a reference under paragraph 6 is to be determined by a single judge of the High Court without an oral hearing. (2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court. ... | 0 |
train | 001-76491 | ENG | AUT | CHAMBER | 2,006 | CASE OF JURISIC AND COLLEGIUM MEHRERAU v. AUSTRIA | 2 | Violations of Art. 6-1;Not necessary to examine further complaint under Art. 6-1;Costs and expenses partial award - Convention and domestic proceedings | Christos Rozakis | 11. The second applicant wished to employ the first applicant as a farm hand. 12. On 6 February 1998 the applicants lodged a request with the Bregenz Labour Market Service (Arbeitsmarktservice) for the grant of an employment permit to the second applicant. They submitted that the first applicant, a national of Bosnia and Herzegovina, and his wife had been resident in Austria since November 1992. Both he and his wife had been granted residence permits (Aufenthaltsbewilligung) that were valid until December 1998. The applicants claimed that the first applicant had a right to take up employment in Austria. They referred in that connection to the Geneva Refugee Convention and the Association Agreement between the European Union and Turkey and submitted that those treaties had to be applied by analogy to their case. 13. On 19 March 1998 the Labour Market Service refused the request in accordance with s. 4(6) of the Employment of Aliens Act (Ausländerbeschäftigungsgesetz). It found that the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for making an exception under s. 4 (6) of the Act were met. 14. On 6 April 1998 the applicants appealed. They reiterated the arguments they had submitted before the Bregenz Labour Market Service. 15. On 25 May 1998 the Vorarlberg Labour Market Service rejected the first applicant’s appeal as inadmissible. It noted that only the second applicant as the proposed employer, not the first applicant, had the right to lodge a request for the grant of an employment permit. According to s. 21 of the Employment of Aliens Act an alien only became a party to proceedings concerning the issue of a work permit if his personal circumstances were relevant to the decision or if there was no employer. In the present case, however, neither of these conditions applied. In particular, the Bregenz Labour Market Service had based its decision exclusively on the situation of the labour market, and in particular the fact that the maximum quota for the employment of foreign workers had been exceeded. For that reason, the first applicant was not a party to the proceedings. 16. The Vorarlberg Labour Market Service further noted that only certain refugees – namely, those who had indefinite leave to remain, were married to an Austrian national or had a child of Austrian nationality – were exempted from the regulations of the Employment of Aliens Act. The first applicant did not fall into any of those categories. The Association Agreement between the European Union and Turkey was not applicable in the present case as the first applicant was not a Turkish national. 17. The Vorarlberg Labour Market Service went on to dismiss the second applicant’s appeal. It observed that the Bregenz Labour Market Service had proposed a replacement for the first applicant within the meaning of s. 4(2) and (3) of the Employment of Aliens Act, but he had not been taken on. In a telephone conversation the Labour Market Service had been informed by a representative of the second applicant that the proposed replacement had not been employed because the relevant post had already been filled. In further submissions the second applicant stated that the replacement had not complied with the requirements of the post. 18. The Vorarlberg Labour Market Service concluded that the second applicant had no further interest in employing the first applicant. It observed in particular that the second applicant had not given sufficient reasons as to why the proposed replacement could not work as a farm hand, a post which did not require any special qualification. It concluded that the second applicant was not interested in employing a replacement and dismissed the request for an employment permit under s. 4(1) of the Employment Act. It further noted that, in any event, the conditions for granting an employment permit had not been satisfied as the maximum quota fixed for the employment of foreign workers in Vorarlberg had been exceeded and none of the conditions for an exception under s. 4(6) of the above Act applied. 19. On 7 July 1998 the applicants filed a complaint with the Administrative Court and requested an oral hearing. They submitted that the Labour Market Service had not carried out sufficient investigations before reaching its findings. In particular, it had not heard evidence from the second applicant. They further denied that the second applicant had informed the Labour Market Service that the relevant post had been filled, and contested the maximum quota. 20. Referring to Article 17 of the Geneva Refugee Convention, the Association Agreement between the European Union and Turkey, Article 23 of the Universal Declaration of Human Rights, the European Social Charter and Article 6 of the International Covenant for Economic, Social and Cultural Rights, the applicants submitted that the first applicant had a right to take up employment in Austria and had standing to join the proceedings. They also relied on Article 6 and Article 8 of the Convention and Article 1 of Protocol No. 1. 21. They submitted that the first applicant had come to Austria as a Bosnian refugee, had resided there with his wife since 1992 and was in possession of a residence permit that was valid until December 1998. 22. On 15 December 1999 the Administrative Court rejected the first applicant’s complaint and dismissed the second applicant’s complaint. It found that none of the first applicant’s rights had been violated, as the refusal to grant the employment permit was not based on reasons related to the first applicant’s personal circumstances under s. 21 of the Employment of Aliens Act. 23. As to the second applicant’s complaint, it found that the Labour Market Service’s decision was coherent and conclusive. The Labour Market Service had based its decision essentially on the statements of the second applicant. There had, therefore, been no further need to hear representations from the second applicant. The Administrative Court concluded that the Labour Market Service had rightly refused to issue an employment permit under s. 4 (1) of the Employment of Aliens Act. It also decided that it was unnecessary to examine the second applicant’s further submissions questioning whether the maximum quota had been attained. 24. The Administrative Court further noted that the second applicant had never alleged that the first applicant was a refugee within the meaning of the Geneva Refugee Convention. As regards the reference to the European Social Charter and the International Covenant for Economic, Social and Cultural Rights, it noted that those treaties were not directly applicable and so could not create any subjective rights. At most, they might be of assistance in interpreting the domestic legislation. However, having regard to the clear wording of s. 21 of the Employment of Aliens Act and the fact that there was no prospect of that provision being successfully challenged in the Constitutional Court (Verfassungsgerichtshof), as that court had already ruled that proceedings concerning a request for an employment permit under the Employment of Aliens Act did not concern a “civil right or obligation” within the meaning of Article 6 of the Convention, the Administrative Court said that even the above mentioned interpretation would not lead to recognition of the first applicant’s legal standing in the proceedings concerning the grant of an employment permit. 25. It went on to note that the Association Agreement between the European Union and Turkey was not applicable as the first applicant was not Turkish. 26. In accordance with s. 39(2) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed the applicants’ request for a hearing as it found that an oral hearing was not likely to contribute to the clarification of the case. Referring to its case-law it further found that the proceedings did not concern a “civil right” within the meaning of Article 6 of the Convention. The decision was served on the applicants’ counsel on 7 February 2000. 27. The second applicant was subsequently granted a permit to employ the first applicant from 14 July 2000 until 13 July 2001 and from 14 July 2001 until 13 July 2002. 28. In February 2002 the applicant’s wife became an Austrian citizen. Consequently, the Employment of Aliens Act is no longer applicable to the first applicant. 29. The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates an alien’s access to the Austrian labour market. The relevant parts of the Act at the material time were as follows: 30. Section 1 stated that the Act was not applicable inter alia to: - certain refugees who had indefinite leave to remain in Austria, who were married to an Austrian national or who had a child of Austrian nationality (s. 1(2)(a)); - aliens married to an Austrian national if they were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s. 1(2)(1)); under the Aliens Act (Fremdengesetz) there are two types of residence document: residence permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the Aliens Act make it easier for aliens married to an Austrian national to obtain a settlement permit. Under s. 3(8) of the Employment of Aliens Act the competent Regional Labour Office had to certify that the alien concerned fulfilled the requirements of s. 1(2)(l) before he could take up employment. 31. S. 3(1) and (2) of the Act laid down the principle that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign employee. Without such a permit the contract of employment between the employer and the foreign employee was null and void. However, while he was actually employed an alien hired without an employment permit had the same rights against his employer as he would have had if the contract of employment had been valid. If the lack of an employment permit was due to the employer’s negligence, the foreign employee further enjoyed all the rights to which he would have been entitled upon the termination of a valid employment relationship (s. 29). 32. S. 15 of the Act provided that a request could be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously legally employed within the meaning of the Act in Austria for at least five years during the previous eight, and for aliens who had been married to an Austrian national for at least five years and had their residence (Wohnsitz) in Austria. The exemption certificate subsequently relieved the alien or potential employer from the obligation to apply for an employment permit. S. 19 provided that the alien concerned could apply for an exemption certificate to the competent Regional Labour Market Service. 33. If an alien had been continuously legally employed within the meaning of the Act for at least 52 weeks in the previous 14 months, he was entitled to request a personal work permit (Arbeitserlaubnis) which was normally valid for one region only and could be restricted to certain kinds of employment (s. 14 (a)). 34. S. 19 provided that in order to obtain an employment permit the employer had to submit details of the proposed employment of the individual employee to the Regional Labour Market Service concerned. The application could be made by the alien only if there was no employer. 35. According to s. 4(1) an employment permit could only be granted if the situation and evolution of the labour market so allowed and important public or economic interests would not be harmed. Furthermore, specific conditions listed in s. 4(3) had to be fulfilled. 36. S. 4(b)(1) laid down that the situation and evolution of the labour market only allowed an employment permit to be granted in respect of a proposed foreign employee if there were no prior-ranking foreign job applicants. Prior-ranking foreign job applicants included aliens who were in possession of an exemption certificate within the meaning of s. 15 of the Act or who were in receipt of unemployment insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)). 37. S. 4(c) provided that an employment permit had to be issued ex officio in respect of Turkish nationals falling within the relevant provisions of the Association Agreement between the European Union and Turkey. 38. Under s. 13(a) the Minister for Labour and Social Affairs could fix maximum quotas for the employment of aliens in a specific region (Landeshöchstzahl) for the following year. S. 4(6) provided that once the maximum quota had been exhausted, no further employment permits could be issued unless there were certain exceptional circumstances. 39. S. 21 provided that, in principle, the foreign job applicant was not a party to the proceedings concerning the issue of the employment permit. Exceptions were made where the personal circumstances of the alien were relevant to the decision or where there was no employer. 40. According to the settled case-law of the Constitutional Court and the Administrative Court a refusal to issue an employment permit under S. 4(1) and (6) of the Employment of Aliens Act could not violate a proposed foreign employee’s rights because he had no legal entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993; and the Administrative Court’s decision of 16 November 1995, 94/09/0330). 41. The Constitutional Court and the Administrative Court have further held that the refusal of an employment permit to a proposed employer is not a decision concerning the employer’s “civil rights” (see, for example, VfSlg 13617/1993 and Administrative Court’s decision of 29 October 1997, 95/09/0254 with further references). 42. According to s. 39(1) of the Administrative Court Act, the Administrative Court must hold a hearing after its preliminary investigation of the case if a complainant so requests within the time-limit. S. 39(2) and (6) provides, however, that, notwithstanding such a request, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings that an oral hearing is unlikely to help clarify the case and that the lack of a hearing will not violate Article 6 of the Convention. | 1 |
train | 001-69497 | ENG | POL | ADMISSIBILITY | 2,005 | KOWALCZYK v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Anna Kowalczyk, is a Polish national who was born in 1941 and lives in Krzęcin, Poland. She is represented before the Court by Mr P. Sołhaj and Mr K. Tor, lawyers practising in Cracow, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. On 3 August 1992 the applicant lodged an application with the Cracow District Court (Sąd Rejonowy). She asked for an easement (right-of-way) to be granted to her. The proceedings were terminated on 5 November 2003. On 16 February 2001, the date on which the application was lodged with the Court, they were pending before the Cracow District Court. 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. Section 2 of the 2004 Act reads, in so far as relevant: Section 5 reads, in so far as relevant: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant: “1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case. ...” On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied. | 0 |
train | 001-58212 | ENG | GBR | GRANDCHAMBER | 1,998 | CASE OF SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM | 2 | No violation of Art. 8;No violation of Art. 12;No violation of Art. 14+8;Not necessary to examine Art. 13 | John Freeland;N. Valticos | 12. The first applicant, Miss Kristina Sheffield, is a British citizen born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender reassignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved. 13. In 1986 the first applicant began treatment at a gender identity clinic in London and, on a date unspecified, successfully underwent sex reassignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence. 14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex. 15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out. Following the divorce, the applicant’s former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child’s interests. The applicant has not seen her daughter since then, a period of some twelve years. 16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social- security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States embassy in London. 17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of 2,000 pounds for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate. 18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex-change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry. 19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male. She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction. 20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State. 21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Netherlands citizenship by naturalisation in September 1993. The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female. 22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam. 23. On 26 June1992, following earlier refusals, she applied to the British consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Netherlands courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British consulate issued a new passport to the applicant recording her new name and her sex as female. 24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate. 25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage whether that marriage “took place in the Netherlands or elsewhere”. 26. Under English law, a person is entitled to adopt such first names or surname as he or she wishes. Such names are valid for purposes of identification and may be used in passports, driving licences, medical and insurance cards, etc. The new names are also entered on the electoral roll. 27. Under English law, marriage is defined as the voluntary union between a man and a woman. In the case of Corbett v. Corbett ([1971] Probate Reports 83), Mr Justice Ormrod ruled that sex for that purpose is to be determined by the application of chromosomal, gonadal and genital tests where these are congruent and without regard to any surgical intervention. This use of biological criteria to determine sex was approved by the Court of Appeal in R. v. Tan ([1983] Queen’s Bench Reports 1053) and given more general application, the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy. Under section 11(b) of the Matrimonial Causes Act 1973 any marriage where the parties are not respectively male and female is void. The test applied as to the sex of the partners to a marriage is that laid down in the above-mentioned case of Corbett v. Corbett. According to that same decision a marriage between a male-to-female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse (obiter per Mr Justice Ormrod). 28. Registration of births is governed by the Births and Deaths Registration Act 1953 (“the 1953 Act”). Section 1(1) of that Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. An entry is regarded as a record of the facts at the time of birth. A birth certificate accordingly constitutes a document revealing not current identity but historical facts. 29. The sex of the child must be entered on the birth certificate. The criteria for determining the sex of a child at birth are not defined in the Act. The practice of the Registrar is to use exclusively the biological criteria (chromosomal, gonadal and genital) as laid down by Mr Justice Ormrod in the above-mentioned case of Corbett v. Corbett. 30. The 1953 Act provides for the correction by the Registrar of clerical errors or factual errors. The official position is that an amendment may only be made if the error occurred when the birth was registered. The fact that it may become evident later in a person’s life that his or her “psychological” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error. Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made. It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect. No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex. 31. The Government point out that the use of a birth certificate for identification purposes is discouraged by the Registrar General, and for a number of years birth certificates have contained a warning that they are not evidence of the identity of the person presenting it. However, it is a matter for individuals whether to follow this recommendation. 32. A transsexual continues to be recorded for social security, national insurance and employment purposes as being of the sex recorded at birth. A male-to-female transsexual will accordingly only be entitled to a State pension at the State retirement age of 65 and not the age of 60 which is applicable to women. 33. In its judgment of 30 April 1996, in the case of P. v. S. and Cornwall County Council, the European Court of Justice (ECJ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly Article 5 § 1 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment. The ECJ held, rejecting the argument of the United Kingdom Government that the employer would also have dismissed P. if P. had previously been a woman and had undergone an operation to become a man, that “... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled and which the Court has a duty to safeguard.” (paragraphs 21–22) 34. The ruling of the ECJ was applied by the Employment Appeal Tribunal in a decision handed down on 27 June 1997 (Chessington World of Adventures Ltd v. Reed [1997] 1 Industrial Law Reports). 35. In their written observations on the legal recognition of transsexuals in comparative law (see paragraph 6 above), Liberty suggested that over the last decade there has been an unmistakably clear trend in the member States of the Council of Europe towards giving full legal recognition to gender reassignment. According to the study carried out by Liberty, the majority of member States now make provision for such recognition. For example, out of thirty-seven countries analysed, only four (including the United Kingdom) do not permit a change to be made to a person’s birth certificate in one form or another to reflect the re-assigned sex of that person. | 0 |
train | 001-111406 | ENG | RUS | CHAMBER | 2,012 | CASE OF UMAYEVY v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos | 6. The applicants, a married couple, were born in 1960 and 1957 respectively and live in the village of Prigorodnoye in the Chechen Republic. 7. The applicants are the parents of Mr Vidzha Umayev, born in 1982. The first applicant is the sister of Mr Timur Mezhidov, born in 1972. The latter is the brother-in-law of the second applicant. 8. The description of the events below is based on the information contained in the application form and written statements by the first and second applicants, dated 17 and 23 July 2007 respectively. 9. On 14 July 2006 the first applicant, Vidzha Umayev and Timur Mezhidov were travelling in the applicants’ VAZ-2107 vehicle from the village of Nikhaloy to the village of Prigorodnoye. 10. At the Russian federal forces roadblock located at the entrance point of Shatoy village (hereinafter “the Shatoy roadblock”) Russian servicemen stopped the applicants’ vehicle to carry out a check. At the roadblock the first applicant saw a group of seven to eight servicemen of Chechen ethnic origin, who were standing near a silver-grey four-door Niva vehicle and speaking to each other in Chechen. The first applicant observed them for a while and was able to memorise their faces. She also specifically noticed that, whilst the servicemen from the roadblock who checked the identity papers were Russian, those standing by the Niva vehicle were Chechen. After checking Vidzha Umayev’s and Timur Mezhidov’s identity papers, Russian servicemen entered the relevant information in the roadblock logbooks and allowed them to continue their journey. 11. The first applicant, Vidzha Umayev and Timur Mezhidov then drove through Shatoyskiy District and crossed the border into Groznenskiy District. At the bridge in the vicinity of the entrance point of Yarash-Mardy village they saw three Chechen servicemen from the group they had already seen at the Shatoy roadblock. The servicemen walked towards the vehicle and ordered it to stop. One of the servicemen ordered the driver and the passengers, in Chechen, to get out of the vehicle. Vidzha Umayev, Timur Mezhidov and the first applicant complied with the order and got out of the car. One of the servicemen then ordered Vidzha Umayev and Timur Mezhidov to get back into the applicants’ vehicle. They obeyed and got into the back seats. At the same moment two servicemen joined them in the back seat, the third serviceman got into the driver’s seat and the vehicle moved off quickly. Vidzha Umayev shouted in Chechen: “That’s my mother! Don’t leave her alone!” and the first applicant rushed towards the car. However, the car did not stop and the first applicant ran into a bridge barrier and fell to the ground. 12. The applicants have not seen Vidzha Umayev and Timur Mezhidov since. 13. On 14 July 2006, shortly after the car with the abductors had left, the first applicant managed to stop a private vehicle, which took her home. Once there she told the second applicant about the abduction, and the applicants immediately left for Shatoy, intending to alert the Shatoyskiy District Department of the Interior (“the ROVD”) to the incident. 14. On their way, about 2.5 km from the bridge, where the first applicant, her son and brother had been stopped by the Chechen servicemen, the applicants saw their VAZ-2107 vehicle. It was parked about fifty metres from the road, at a dugout in which were two Russian servicemen. In the applicants’ submission, on that day Russian military forces had groups of servicemen stationed at the Shatoy road at about 200 metres distance from each other. The applicants saw that three of the doors of their VAZ-2107 vehicle were open and its headlights were on. Vidzha Umayev’s mobile phone was in the vehicle. The first applicant asked the servicemen how their car had arrived at the dugout. They replied that it had arrived there, followed by a four-door silver-grey Niva vehicle. Two people were taken out of the VAZ-2107 vehicle and put into the silver-grey Niva vehicle, which then left in the direction of the village of Duba-Yurt. 15. After that the applicants took Vidzha Umayev’s mobile phone and went to the ROVD. From there the second applicant, the head of the ROVD, whom the applicants identified as “Sayd-Akhmed”, and several police officers left for the Shatoy roadblock. The first applicant stayed at the ROVD and lodged a written complaint about the abduction of her son and brother. 16. On the same day, on arrival at the Shatoy roadblock, the second applicant and Sayd-Akhmed spoke to a senior roadblock officer from the Shatoyskiy District military commander’s office. He confirmed that the servicemen at the roadblock had checked Vidzha Umayev and Timur Mezhidov’s identity papers and stated that everything was in order, and that the two men had been let through the roadblock and had left. Meanwhile the first applicant also arrived at the roadblock. While the second applicant was speaking to the officer, a UAZ vehicle with two Chechen servicemen in it arrived at the roadblock. The first applicant identified them as members of the group of Chechen servicemen she had seen at the Shatoy roadblock while the authorities were checking her relatives’ identity papers. The applicants immediately asked those servicemen where the other members of their group were and where they had taken Vidzha Umarov and Timur Mezhidov. The two men laughed and answered that they had not arrested Vidzha Umayev and Timur Mezhidov. They also stated that they did not know the other servicemen who had been at the Shatoy roadblock with them. According to the applicants, the head of the ROVD told them that the two Chechen servicemen were from the special Vostok Russian Military Battalion of the Main Intelligence Service (“the GRU”) and that they were called “Yamadayevtsy” after their commander Sulim Yamadayev. The applicants then returned home. 17. On 15 July 2006 the applicants again complained to various State bodies about the abduction of Vidzha Umayev and Timur Mezhidov. They did not keep copies of those complaints. 18. On 17 or 18 July 2006 a certain Mr I.A., a GRU officer, visited the applicants and told the second applicant that a certain Mr R., a GRU colonel and commander of the 921st regiment, wished to talk to him. 19. On 23 July 2006 the applicants and Mr I.A. drove to a Russian federal forces base located in the village of Borzoy in the Chechen Republic. The second applicant left his vehicle, with the first applicant and Mr I.A. inside. At the military base checkpoint he was met by two Russian servicemen, one of them a warrant officer and the other a captain. They accompanied the second applicant into the checkpoint building, where Mr R. was already waiting for him. 20. Mr R. confirmed that the applicant’s son was being held in the military base and said that he “opened his eyes when touched but then rolled them up”. Mr R. then asked the second applicant to write a note for his son, “telling him to answer their questions”. The second applicant asked Mr R. what statement they wanted from his son, but received no reply. The second applicant then handed over to Mr R. medical certificates attesting to his son’s disability. Mr R. looked at them, and from his reaction the second applicant inferred that Mr R. had realised that his servicemen had beaten up a seriously ill person. The second applicant then told Mr R. that he would not write any notes for his son and requested that he be released. Mr R. replied that “they did not have a deal then” and ordered the servicemen to accompany the second applicant to the exit, which they did. The second applicant returned to the car and left the premises with the first applicant. 21. On an unspecified date in October 2006 the first applicant received a phone call on her mobile phone from a person who whispered “Mother, mother!” and then suddenly the conversation was disconnected. The first applicant inferred that it was Vidzha Umayev and, since the number was displayed, she called back. A woman replied to her in Russian and immediately hung up. When the first applicant dialled the number again, a man’s voice told her not to call that number any more. The first applicant informed the law-enforcement authorities about the call. In the applicants’ submission, at the material time the only company providing mobile communication services in the Chechen Republic was Megafon. The figures 923 indicated that the number from which she had received the call was not a Megafon number but was from another company. In the applicants’ opinion, only Russian army servicemen could have had phone numbers from mobile communication providers other than Megafon. 22. On an unspecified date in November 2006 Mr I.A. visited the applicants again and offered them information on Vidzha Umayev and Timur Mezhidov in exchange for 50,000 Russian roubles (RUB). Two days later the second applicant met Mr I.A. in Prigorodnoye and the latter told him that Vidzha Umayev and Timur Mezhidov were not alive. Mr I.A. promised the second applicant that their bodies would be retrieved, and left. 23. Two days later the second applicant and his relative went to the village of Borzoy to meet Mr I.A. He told the second applicant that there were three mass graves in Borzoy but he did not know in which of them Vidzha Umayev and Timur Mezhidov had been buried. He also specified that their bodies were in different graves and that they “had been shot dead by Chechens in the presence of a Russian”. He noted however that he had not witnessed the killings. 24. On an unspecified date the second applicant contacted a Russian army general whom he knew well and told him about Mr R. The general told the applicant that this was the first time he heard that name and that it must have been a false name. 25. The Government submitted that on 14 July 2006, on the road between Grozny and Shatoy, near the bridge close to the village of YaryshMardy, three unidentified individuals wearing camouflage uniforms and carrying automatic weapons had stopped a vehicle in which Vidzha Umayev and Timur Mezhidov were travelling, following which the latter disappeared. 26. It appears that following the applicants’ complaints about the abduction of their relatives the ROVD carried out an inquiry into their allegations. The inquiry was given the number 81. The exact date of the opening of the inquiry remains unclear. 27. On 25 July 2006 the prosecutor’s office of the Groznenskiy District (“the district prosecutor’s office”) received the inquiry file from the ROVD. 28. On the same date the district prosecutor’s office instituted a criminal investigation in respect of the abduction of Vidzha Umayev and Timur Mezhidov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 54063. The decision stated that at about 4 p.m. on 14 July 2006 at the bridge near Yarysh-Mardy village, three unidentified armed individuals in camouflage uniforms had stopped the VAZ-2107 vehicle in which Vidzha Umayev, Timur Mezhidov and the first applicant were travelling, and had taken Vidzha Umayev and Timur Mezhidov to an unknown destination. 29. By a letter of 26 July 2006 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office”) replied to the first applicant that it had examined her complaint about the abduction of Vidzha Umayev and Timur Mezhidov and informed her that on 25 July 2006 the district prosecutor’s office had opened a criminal investigation in respect of the abduction of her son and brother. 30. On 20 September 2006 the first applicant was granted victim status in connection with the proceedings in case 54063. She was informed of that decision on 21 September 2006. 31. On 28 May 2007 the first applicant wrote to the President of the Chechen Republic. She described in detail the circumstances of the abduction of her relatives and her attempts to find them and asked for assistance in her search for them. 32. On 15 June 2007 the republican prosecutor’s office replied to the first applicant that on 25 July 2006 the district prosecutor’s office had opened a criminal case in respect of the abduction of her relatives. The letter also stated that on 25 October 2006 the investigation in case 54063 had been suspended for failure to identify the perpetrators. 33. On 17 July 2007 the first applicant wrote to the district prosecutor’s office, seeking information on the progress of the investigation in case 54063. She requested that the proceedings be resumed if they had been suspended and sought access to the investigation case file and permission to make copies from it. There is no indication that the applicant’s request was ever replied to. 34. By a letter of 22 June 2007 the district prosecutor’s office informed the first applicant that on 22 July 2007 it had resumed the investigation in case 54063. 35. In the applicants’ submission, in October 2007 the district prosecutor’s office informed them orally that on an unspecified date the investigation in case 54063 had been suspended again. 36. The Government refused to submit any documents from criminal case file concerning the abduction of the applicants’ relatives, referring to Article 161 of the Russian Code of Criminal Procedure. 37. The information about the investigation provided by the Government can be summarised as follows. 38. On 25 July 2006 the district prosecutor’s office opened a criminal investigation in respect of the abduction of Vidzha Umayev and Timur Mezhidov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was assigned the number 54063. 39. On 25 October 2006 the investigation was suspended for failure to identify the perpetrators. 40. On 22 June 2007 the investigation was resumed because the investigating authorities had established that serviceman R.D. of military unit 44822 was implicated in the abduction. 41. On 21 July 2007 Mr R.D.’s name was put on a wanted list. 42. On 6 June 2008 the investigation of the abduction of the applicants’ relatives was entrusted to an investigating committee of the prosecutor’s office of the Russian Federation in the Chechen Republic (hereinafter “the investigating committee”). 43. On 8 July 2008 the investigating committee issued a decision to formally charge Mr R.D. with abducting the applicants’ relatives and the criminal case was transferred to the military investigating department with the United Group Alignment of the Military Forces for Counterterrorist Operations in the North Caucasus Region (hereinafter the “investigating department”). The case file was given the number 34/00/0023-08. 44. It appears that shortly thereafter the investigation was suspended again and that it was resumed on 11 November 2009. 45. In the Government’s submission the investigation in case 34/00/0023-08 is still pending. 46. The Government stated that the findings of the preliminary investigation confirmed the version of events submitted by the applicants. 47. In the Government’s submission, the preliminary investigation established that Mr R.D. had been doing military service in military unit 44822 of the Vostok special-purpose battalion (previously an infantry battalion) since 10 August 2004. In mid-July 2006 Mr R.D. had colluded with two unidentified individuals with a view to abducting Vidzha Umayev and Timur Mezhidov. On 14 July 2006, having acquired information on the route taken by Vidzha Umayev and Timur Mezhidov, Mr R.D., armed with an automatic weapon, organised an ambush at the Grozny-Shatoy road near Yarysh-Mardy with a view to arresting and abducting them. At about 4 p.m. on the same day Mr R.D. stopped the VAZ-2107 vehicle with Vidzha Umayev and Timur Mezhidov, following which “Mr R.D. and two armed men in camouflage uniforms arrested them and took them to an unknown destination”, leaving the first applicant behind. 48. In the Government’s submission, the above account of the events was confirmed by the first applicant, who had been granted victim status, and the second applicant, who had been interviewed as a witness. The applicants also informed the investigators that following the abduction they had learnt from Mr I.A. that their abducted relatives had been held at the military base in the village of Borzoy and eventually killed. 49. The first applicant confirmed those submissions during a check of her statement at the crime scene (проверка показаний на месте совершения преступления) and identified Mr R.D. from a photograph as the person who had abducted her son and brother. 50. Mr I.A., interviewed on an unspecified date, stated that he had learnt about the abduction of Vidzha Umayev and Timur Mezhidov from Z.M. The second applicant had contacted Mr I.A. six months after the abduction, asking the latter to organise a meeting with officers of the military base, following which they had met a serviceman named Volodya, who had asked for RUB 50,000 for information about the applicants’ son and had then informed them that the applicants’ relatives had been killed. 51. On an unspecified date the investigating authorities opened a criminal case against Mr R.D. on suspicion that he had caused serious damage to the health of a third person by shooting at him at the local market in the village of Borzoy on 23 May 2007. The case file was given the number 68800. 52. On 18 October 2008 case 68800 was transferred for investigation to an unspecified investigating department of an unspecified military unit. 53. On 22 January 2009 criminal case 6800 was joined to the criminal case concerning the abduction of the applicant’s relatives and the new file was given the number 34/36/0092-08. 54. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
train | 001-4604 | ENG | FIN | ADMISSIBILITY | 1,999 | PELTONEN v. FINLAND | 4 | Inadmissible | Georg Ress | The applicant is a Finnish national, born in 1962 and currently serving his prison sentence in Kerava Youth Prison in Kerava, Finland. He is represented before the Court by Ms Tiina Nystén, a lawyer practising in Helsinki. On 3 May 1994 N. was charged before the Helsinki District Court (käräjäoikeus, tingsrätt) with aggravated narcotics offences concerning at least 30 kilos of cannabis (case R 94/2284). He had stated to the police that he had committed several aggravated narcotics offences in 1992-1994 and incriminated several other people, including the present applicant, during the police investigations. The case was adjourned until 17 May 1994 as the police investigations had not finished. N.’s case was heard on 17 and 31 May 1994. N. confessed to the court that he had dealt in about 200 kilos of cannabis. The case was adjourned until 14 June 1994 as the police investigations continued. On 19 May 1994 the present applicant, Mr Peltonen, was taken into police custody as he was suspected of an aggravated narcotics offence on the basis of the information revealed by N. to the police. The applicant was brought before the Helsinki District Court four days later, i.e. on 23 May 1994. The court ordered his detention on remand until the first hearing of his case (case R 94/3064) on 14 June 1994. On 14 June 1994 N. was charged with additional aggravated narcotics offences which he confessed to. The case (case R 94/2284) was again adjourned until 21 June 1994. There was a hearing in the present applicant’s case (case R 94/3064) before the Helsinki District Court on 14 June 1994, in which the applicant was charged with an aggravated narcotics offence and illegal possession of a firearm. The applicant was suspected of having had in his possession 12.5 kilos of cannabis with intention to deal therein in March 1994 and a firearm. The applicant confessed to the illegal possession of a firearm and denied the narcotics offence. The case was adjourned until 21 June 1994. On 21 June 1994 before the District Court N. repeated all his statements to the police and stated that he would stand by them. N.’s case (case R 94/2284) was joined with another case (R 94/1409). The applicant’s case (R 94/3064) was heard on 21 June 1994 separately from N.’s case. The applicant’s case was adjourned until 5 July 1994 as the police investigations had not finished. On 5 July 1994 the applicant’s case was again heard separately from N.’s case. The applicant was additionally charged with several aggravated narcotics offences. He was suspected of having possessed 10-15 kilos of cannabis in April-May 1993, 14-15 kilos of cannabis in June 1993, 20 and 12.5 kilos of cannabis in August 1993, 20 kilos of cannabis in September 1993, 20 kilos of cannabis October 1993 and 25 kilos of cannabis in November 1993. The applicant denied all the additional charges. The case was adjourned until 19 July 1994. On 5 July 1994 there was also a hearing in case R 94/1409 (the case number used after the joinder of N.’s case with another case) against N. and now twelve other accused, concerning several aggravated narcotics offences. Several charges were brought against N. and other co-accused. The case was adjourned until 19 July 1994. On 19 July 1994 the applicant’s case (R 94/3064) was again heard separately from N.’s case. The applicant denied all the charges and stated that they were all based solely on N.’s statements made in the course of a police investigation and a hearing at which the applicant was not represented and that there was no other evidence against him. He requested to be released as he had not been given an opportunity to question N. He also submitted that N. had changed his statements to the police so that these could not be found credible. The public prosecutor objected to the applicant’s request, stating that the applicant would, if released, interfere with the investigations which had not yet finished. The case was adjourned until 2 August 1994. By this time there was also a hearing in case R 94/1409 against N. and eighteen other accused (not including the applicant). N. stated to the District Court that he would not repeat his previous statements and retracted them. The case was also adjourned until 2 August 1994. On 2 August 1994 the applicant’s case (R 94/3064) was joined with yet another case (R 94/3270) in which there were five other accused concerning the same drug trafficking offences (including H. to whom the applicant had allegedly given the drugs). The public prosecutor stated that the investigations were still unfinished and requested that the case should be adjourned. The applicant stated that he would respond to the charges in detail as soon as N. can be questioned. H. denied that the applicant had had anything to do with the narcotics. The case was adjourned until 16 August 1994. On 2 August 1994 there was also a hearing in case R 94/1409 against N. and several other accused. The case was adjourned until 16 August 1994. On 16 August 1994 there was a hearing in the applicant’s case (now R 94/3270 after the joinder of the applicant’s case with H.’s case). The applicant requested to be released as there was nothing left to “interfere with” in the investigations and as he had still not been given a chance to put questions to N. The case was adjourned until 30 August 1994. By this time there was also a hearing in case R 94/1409 against N. and others. The case was adjourned until 30 August 1994. On 30 August 1994 there was a hearing in both cases (R 94/1409 and R 94/3270) which were now joined. There was a total of 20 accused including the applicant, N. and H. The public prosecutor asked N. whether the applicant had been with H. collecting the drugs from N. N. answered “no”. N. also stated that at his stage he did not want to repeat everything he had said about H., the applicant and two other accused. The public prosecutor withdrew a part of the charges (concerning five kilos of cannabis at the end of 1993) against the applicant but stated that the applicant had dealt in two kilos of cannabis on 11 February 1994. The applicant’s legal counsel asked N. questions about the latter’s health. After this questioning the counsel stated that N. was ill and could not properly concentrate on the questions put to him during this hearing. She also submitted that there were several discrepancies between N.’s various statements and that N.’s statements did not support the charges against the applicant. The case was adjourned until 13 September 1994. On 13 September 1994 there was another hearing in case R 94/1409 before the District Court. The public prosecutor submitted several police investigation reports to the court. The case was adjourned until 27 September 1994. On 27 September 1994 the case was heard again. The public prosecutor submitted new police investigation reports to the court. N. refused to comment on any of his statements and stated that he would remain silent. He also stated that he would not answer any questions put to him as he “wanted to reserve an opportunity for all the innocent co-accused to tell the truth”. The applicant’s legal counsel stated that she had prepared questions for N. but could not put them to him at the moment as N. had said that he would not answer any questions. The case was adjourned until 11 October 1994. The applicant was ordered to be released from detention. At the District Court hearing on 11 October 1994 N. again refused to repeat his statements concerning the applicant, H. and two others as he could not “take the responsibility if innocent men were convicted on the basis of his statements”. The applicant’s legal counsel put a question to N. (the question and any answer to it is not on the file). The case was adjourned until 25 October 1994. On 25 October 1994 the case was heard again. The applicant submitted that the only evidence against him was the earlier statements of N. and that N. had withdrawn them. N. was convicted of 13 aggravated narcotics offences and two counts of possession of an illegal firearm and sentenced to twelve years and six months’ imprisonment. Two other accused were convicted of different narcotics offences and sentenced to imprisonment. The rest of the case was adjourned until 8 November 1994, including the applicant’s case. On 8 November 1994 the case was heard again. The public prosecutor submitted a report, dated 7 November 1994, to the court concerning telecommunications between the accused. The report had been served on the applicant’s legal counsel the previous afternoon. The public prosecutor submitted a complete list of the telephone calls, with details of their duration and dates, but the legal counsel was provided only with a list concerning the number of the phone calls. The applicant’s counsel commented telecommunications between the accused, without requesting a further adjournment on the basis of the new report. The counsel gave her closing speech in which the fact that the report concerning telecommunications had been submitted to the counsel only on the previous day was not raised. The District Court convicted the applicant of eight aggravated narcotics offences and illegal possession of a firearm and sentenced him to eight years and six months’ imprisonment. The applicant was detained on remand. The reasoning of the court reads as follows: (translation from Finnish) “[The applicant] has denied all the charges except for charge number 31 [concerning illegal possession of a firearm]. ... The conviction is based on N.’s statements. The District Court has stated above why it has found N.’s statements credible. N. told about the applicant’s participation at a fairly early stage of the investigations and in a fairly detailed manner. N. revealed that [the applicant] had assisted H. when H. collected the cannabis from N. N. identified the suitcase confiscated from [the applicant] as similar to the suitcase used by [the applicant] when collecting the cannabis from him. H. stated that [the applicant] had taken care of certain things for him. N.’s statement concerning the close co-operation between H. and [the applicant] is also supported by the fact that [the applicant] has lived with his girlfriend in a flat rented by H. from the City of Helsinki. Also Mrs H. has testified that [the applicant] had helped H. with all kinds of things. [The applicant] has, inter alia, witnessed H.’s signature to a deed concerning H.’s flat in Porvoo. One of the witnesses, M., has testified that [the applicant] had been “hanging around” a garage owned by N. [The applicant] had been there fairly often either alone or with H. [The applicant’s] girlfriend has had a car put to her disposal by H. [The applicant] has stated that a mobil phone line was opened in his name in the spring 1994. The mobile phone was, however, in the use of H. and was also left with H. This has also been certified by Mrs H. 36,000 Finnish Marks (FIM) was confiscated from [the applicant] when he was arrested. FIM 25,000 of the above-mentioned money was hidden in the body of a car. Considering that [the applicant] has testified that he has been unemployed for quite some time now it is not credible that the money was earned by him as a locksmith. H. has had much more telephone connections with [the applicant] than any other accused in this case. In addition to that [the applicant] has been in close contact with the rest of the accused. It must be found that [the applicant] has received at least FIM 36,000 as the illegal profit of his actions.” On 7 December 1994 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), requesting an oral hearing before the Court of Appeal. He stated that he should not have been found guilty on the basis of N.’s statements as there was no other evidence against him and as N. had withdrawn his statements as far as the applicant was concerned. The applicant and N. did not appear before the court at the same hearing until 30 August 1994. At that hearing N. did not repeat his statements concerning the allegations against the applicant. The additional investigations did not finish until 27 September 1994, when N. declared that he would remain silent from then onwards. N. did not repeat his statements at the later stages of the proceedings and, thus, no questions were put to N. either by the applicant’s counsel or by the public prosecutor. According to the applicant, N.’s statements could not be regarded as credible and therefore, there was no evidence at all against him. He also pointed out that the report concerning telecommunications between the accused was finished on 7 November 1994 and submitted to the court and to the accused’s legal counsel on 8 November 1994, i.e. on the day of the conviction. On 27 April 1994 the Court of Appeal upheld the District Court’s judgment without holding an oral hearing. On 8 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. | 0 |
train | 001-109530 | ENG | MDA | ADMISSIBILITY | 2,012 | MANASCURTA v. MOLDOVA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 1. The applicant, Ion Mânăscurtă, is a Moldovan national who was born in 1959 and lives in Talmaza. He was represented before the Court by Mr Grigore Botezat, a lawyer practising in Ştefan-Vodă. The Government was represented by their Agent, Mr Vladimir Grosu. 2. The facts of the case may be summarised as follows. 3. The applicant, a farmer, registered with the Talmaza local council a private company, set up to operate a sheep farm, which the applicant subsequently acquired. The plot of land next to the farm, of a total surface of 15 hectares, was used by L.C. under the terms of a 20-year lease contract which he had signed with the local council on 30 January 2003. On 12 August 2003, the applicant agreed with L.C. that he would replace the latter in the lease contract with the local council. The applicant intended to use the plot of land as a pasture for his farm. 4. On 28 May 2006, the local council adopted a decision annulling the lease contract of 30 January 2003 and its own decision of 18 May 2006. 5. The applicant filed a court action against the local council, seeking an order obliging the latter to annul the decision adopted on 28 May 2006. 6. On 11 December 2006, the Ştefan-Vodă District Court found in the applicant’s favour and ordered the local council to mark the boundaries of the plot of land of 15 hectares used by the applicant under the terms of the lease contract and to refrain from any measures which could prevent the applicant from using it, and to issue the applicant with the documents necessary for carrying out the farm’s reconstruction. The decision was upheld on appeal by the Bender Court of Appeal on 16 January 2007. Despite attempts by the applicant to obtain the enforcement of the final judgment in his favour, it has not been enforced to date. 7. On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part). 8. On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings. 9. On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 11 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible. 10. By a letter of 6 November 2011 the applicant informed the Court that he intended to make use of the new remedy and that he had already initiated proceedings in accordance with Law no. 87. He did not dispute the effectiveness of the new remedy. 11. According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. Under section 1 of the law, the provisions of the law should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. Section 4 of the law states that the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint. 12. At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings. | 0 |
train | 001-59873 | ENG | FRA | CHAMBER | 2,001 | CASE OF LAUMONT v. FRANCE | 1 | No violation of Art. 5-1 | Christos Rozakis | 8. On 12 November 1994 four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from Poissy Prison who were in semi-detention or on external work assignments. After locking the entire staff in the lavatories, they forced the company manager, whom they had taken hostage, to open the safe, from which they stole 120,000 French francs (FRF) in cash before making off. The investigators concentrated their inquiries on some of the prison inmates. One of them, G.D., had witnessed the offences and been threatened by the robbers. 9. On 13 January 1995 the managing director of the company had a cheque stolen. The home of one of the company’s employees, E.M., was searched and a forged identity card bearing the applicant’s photo was discovered, together with a sawn-off shotgun. The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF 10,000. He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn-off shotgun. 10. On 19 January 1995 the investigating judge at the Versailles tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery, false imprisonment, and wounding with intent and wilful violence resulting in total unfitness for work for less than eight days. 11. On 18 January 1996 the investigating judge made an order extending detention for four months from 19 January 1996. 12. The applicant’s detention was twice extended for a further four months, on 14 May 1996 from 19 May onwards and on 13 September 1996 from 19 September onwards. 13. On 30 September 1996 the investigating judge substituted for the charge of false imprisonment with voluntary release (an intermediate offence (délit)) the more serious one of false imprisonment (crime) and made a partial discharge order. In accordance with Article 181 of the Code of Criminal Procedure, he ordered that the file be transferred to the public prosecutor’s office at the Versailles Court of Appeal with a view to the Indictment Division indicting the applicant and committing him for trial at the Assize Court. That order was served on the applicant on 3 October 1996. 14. In a judgment of 27 November 1996 the Indictment Division of the Versailles Court of Appeal ordered further investigations to be made and appointed for that purpose the investigating judge at the Versailles tribunal de grande instance who had previously been in charge of the investigation. 15. On 20 January 1997 the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it, dated 13 September 1996 and effective from midnight on 19 September 1996 for a period of four months, had expired at midnight on 19 January 1997. 16. In a formal demand for information (sommation interpellative) addressed to the governor of Fresnes Prison the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison. In reply he was told that the applicant was being detained under the transfer order of 30 September 1996 and the Versailles Court of Appeal’s judgment of 27 November 1996. 17. The applicant stated that he had lodged a complaint with the Créteil public prosecutor alleging arbitrary detention but had received no reply. 18. On 9 April 1997 the applicant made an application to the Indictment Division for his immediate release on the ground that he was being detained arbitrarily as the judge’s initial warrant of commitment had ceased to have any effect on 19 January 1997. 19. In a judgment of 25 April 1997 the Indictment Division dismissed that application for the following reason: “It is not disputed that the judgment of 27 November 1996 was delivered within the time laid down by the last paragraph of Article 214 of the Code of Criminal Procedure. Consequently, since the Indictment Division did not rule on the facts being investigated, the warrant of commitment issued by the investigating judge continued to have effect. …” 20. In the same judgment the Indictment Division ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial. 21. The applicant appealed on points of law, relying on grounds of appeal based, firstly, on an infringement of Article 725 of the Code of Criminal Procedure and, secondly, on a breach of Articles 201 and 214 of the Code of Criminal Procedure and Article 5 of the Convention. 22. In a judgment of 19 August 1997 the Court of Cassation dismissed the appeal on the following grounds: “It appears from the impugned judgment and the documents on the file that on 19 January 1995 a warrant of commitment was issued in respect of [the applicant], who was under investigation for offences including armed robbery. On expiry of its validity a year later, the investigating judge extended the detention three times for four months, the final extension taking effect on 19 September 1996. On 27 November 1996, following the investigating judge’s transfer order of 30 September 1996, the Indictment Division ordered further investigations. [The applicant] made an application to the Indictment Division for his release, alleging that the detention order had ceased to be valid on 19 January 1997 and that he had been unlawfully detained since that date; that application was refused in the judgment now appealed against. In so ruling, the investigating court did not lay itself open to the objections raised. Since the judges ordered further investigations within the time allowed by Article 214, third paragraph, of the Code of Criminal Procedure, the initial warrant of commitment remained effective, in accordance with Article 181, second paragraph, of the Code, after the transfer order was issued and so remains until a decision on indictment is taken …” 23. On 10 September 1997, after completion of the further investigations, the Indictment Division directed that the applicant be committed for trial at the Yvelines Assize Court charged with armed robbery, false imprisonment and other connected lesser offences. The judgment committing the applicant for trial at the Assize Court also contained an order for him to be remanded in custody. An appeal on points of law by the applicant against that judgment was dismissed by the Court of Cassation on 18 December 1997. 24. On 9 and 10 June 1998 the applicant was tried at the Versailles Assize Court, which sentenced him to ten years’ imprisonment. In a judgment delivered on the same day on the civil claims the applicant was ordered to pay the civil party FRF 50,000 in damages. 25. In a judgment of 3 March 1999 the Court of Cassation dismissed appeals on points of law by the applicant against the Assize Court’s judgments. 26. The relevant provisions of the Code of Criminal Procedure, as worded before the passing of the Law of 15 June 2000 reinforcing the presumption of innocence and the rights of victims, provide as follows: “The investigating judge may issue … a … warrant of commitment ... The warrant of commitment is the order given by an investigating judge to a prison governor to admit the person and take him into custody …” “The investigating judge may issue a warrant of commitment only after examining the person concerned and if the penalty is imprisonment for an intermediate offence [peine d’emprisonnement correctionnelle] or for a more serious offence. In cases involving serious offences [matière criminelle] or intermediate offences [matière correctionnelle], warrants of commitment may only be issued pursuant to the order provided for in Article 145 …” “Whatever the classification of the offence, any decision to detain pending trial must be embodied in an order setting out the legal and factual reasons for the decision with reference solely to the provisions of Article 144. The person concerned shall be informed orally of the order and be given a complete copy of it … However, the investigating judge may not order the immediate detention of the accused if he or his lawyer requests time for the preparation of his defence. In that case the investigating judge may, in an order that is reasoned with reference to the provisions of the preceding paragraph and against which no appeal shall lie, direct that the person be taken into custody for a fixed period, which may in no case exceed four working days. Within that period he shall again have the person brought before him … If he does not order detention of the person pending trial, the latter shall automatically be released …” “In cases involving serious offences [matière criminelle] an accused cannot be held in detention for more than one year. However, subject to the provisions of Article 1453, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding six months by means of a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision shall be renewable by means of the same procedure. The provisions of this Article shall apply until the disposal order is made.” “An application for release may … be made by any accused for any reason and at any stage in the proceedings. Where application is made to a court of trial or appeal, it shall be for the latter to grant conditional release; before committal for trial at the Assize Court, and in between Assize Court sessions, that power belongs to the Indictment Division …” “If the investigating judge considers that the facts amount to an offence classified in law as a serious offence [crime], he shall order that the case file and a list of the exhibits be sent immediately by the public prosecutor to the Principal Public Prosecutor at the Court of Appeal with a view to proceeding as set out in the chapter on the Indictment Division. Warrants for the arrest or commitment of an accused shall remain in force until the Indictment Division has given its ruling.” “The Indictment Division may in all cases, at the request of the Principal Public Prosecutor, of one of the parties or even of its own motion, order any additional investigative measure which it considers useful. It may also in all cases order the release of the accused of its own motion after hearing the prosecutor.” “If the offences with which the accused are charged are classified in law as a serious offence [crime], the Indictment Division shall commit the accused for trial at the Assize Court. It may also refer connected offences to that court. The Indictment Division shall give its ruling within two months of the date of the transfer order, failing which the accused shall automatically be released.” “Persons ordered to be detained pending trial or sentenced to imprisonment shall be admitted to a prison. A memorandum of imprisonment shall be drawn up for any person who is taken to a prison or reports to a prison of his own accord.” “Members of the prison service shall not, on pain of prosecution and punishment for arbitrary detention, admit or detain any person except in pursuance of a judgment imposing a prison sentence, an arrest and detention order made by the Indictment Division [ordonnnance de prise de corps], a warrant of commitment or arrest [mandat de dépôt ou d’arrêt], a warrant for the suspect to be brought before the investigating judge [mandat d’amener] wherever such a warrant is to be followed immediately by a period of interim detention, or an arrest order drawn up in accordance with the law, or without issuing the memorandum of imprisonment required by Article 724.” 27. The relevant case-law on some of the aforementioned Articles is as follows: “Since the second paragraph of Article 201 entitles the Indictment Division to order the release of the accused of its own motion regardless of the circumstances in which the matter was referred to it, the accused must be released if he is being held by virtue of a non-existent order. Such is the case when an order extending a period of pre-trial detention, although not appealed against, was issued out of time.” (Cass. Crim., 4 January 1983, Dalloz 1983, p. 562, note by Royer; JCP 1984. II. 20203, note by Chambon; Bull. crim. no. 3 [;and] Cass. Crim., 10 May 1985: Bull. crim. no. 168) “By Article 214, third paragraph, the Indictment Division must give its ruling within two months of the date of the transfer order, failing which the accused must automatically be released. The requirements of that provision are satisfied by a judgment in which further investigations are ordered within that time-limit.” (Cass. Crim., 30 June 1981: Bull. crim. no. 221) “In that case, it is not necessary to give any decision on pre-trial detention.” (Cass. Crim., 18 June 1985: Bull. crim. no. 232; Cass. Crim., 17 July 1990: Bull. crim. no. 286) “By Article 181, the initial detention order automatically remains in force from the point at which the order to transfer the case is made until the Indictment Division gives its decision …” (Cass. Crim., 4 March 1992: Bull. crim. no. 62) “Whenever the Indictment Division has ruled within the time laid down by Article 214, third paragraph, even if only for the purpose of ordering further investigations, the initial warrant of commitment remains in force until the accused is indicted as prescribed by Article 181, second paragraph.” (Cass. Crim., 10 February 1999: Bull. crim. no. 16) | 0 |
train | 001-71526 | ENG | DEU | ADMISSIBILITY | 2,005 | SPROTTE v. GERMANY | 3 | Inadmissible | Mark Villiger | The applicant, Mr Ludwig-Norbert Sprotte, is a German national, who was born in 1950 and lives in Berlin in Germany. He was represented before the Court by Mr S. König, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 March 1993 at 2.30 a.m. the applicant was arrested by the police while driving his car on a public road in Brandenburg. The applicant had intended to cover a distance of approximately 500 metres in order to park his car for the night. According to the subsequent charge brought against him, his blood alcohol concentration amounted to 1.45 grams per litre. At the time of this incident, the applicant worked as a criminal court judge. He has been granted unpaid leave from office since January 1996. On 24 August 1993 the Oranienburg District Court (Amtsgericht) issued a penal order (Strafbefehl) inflicting a sentence of 30 daily rates of DEM 80 upon the applicant and withdrawing his driving licence for negligent drunken driving (fahrlässige Trunkenheit im Verkehr). On 6 October 1993 the applicant filed an objection. On 17 January 1994, following two adjournments of the hearing upon the applicant’s request, the District Court changed the sentence to 30 daily rates of DEM 65 and confirmed the revocation of his driving permit. On 29 March 1994 the District Court rejected the applicant’s appeal as having been filed out of time. On 6 July 1994 the Brandenburg Court of Appeal (Oberlandesgericht) quashed the decisions of 17 January and 29 March 1994 on the grounds that the District Court had erroneously rejected the applicant’s offers of proof and remitted the case to the District Court. On 4 August 1994 the case-file was returned to the District Court. On 15 August 1994 the driving licence was returned to the applicant. On 9 January 1995 the District Court scheduled the main hearing for 22 March 1995, which the applicant did not attend. On 30 March 1995 the District Court, upon the applicant’s request, decided to obtain an expert opinion as to whether the blood sample taken in March 1993 was identical with the applicant’s blood, and the alcohol concentration of that sample. On 26 April 1995 the Brandenburg Institute of Forensic Medicine confirmed the blood-alcohol concentration of the sample. On several occasions in May 1995 the applicant refused to have a blood sample taken. He argued that the examination could also be carried out with a sample of his saliva. On 28 June 1995 the District Court rejected the applicant’s request to have a sample of saliva taken, stating inter alia that an examination of a blood sample was simpler and less costly. On 7 August 1995 the Institute of Forensic Medicine confirmed the identity of the two blood samples. On 15 March 1996, following two requests by the applicant to adjourn the hearing and the judge’s illness in February 1996, the District Court scheduled the date for the main hearing for 29 April 1996. On 29 April 1996 the Oranienburg District Court convicted the applicant of deliberate drunken driving (vorsätzliche Trunkenheit im Verkehr). It did not change the fine and imposed a three months’ driving ban on him. On 18 November 1996 the Brandenburg Court of Appeal quashed this judgment on the grounds of an insufficient assessment of the evidence and remitted the case to a different chamber of the Oranienburg District Court. On 8 January 1997 the case-file was returned to the Oranienburg District Court. On 4 November 1997 the District Court scheduled the main hearing for 11 February 1998. On 11 February 1998 the District Court decided to discontinue the proceedings. It based its decision on the excessive length of the proceedings and their adverse effects on the applicant. On 25 November 1998, following the Public Prosecutor’s appeal, the Brandenburg Court of Appeal quashed the District Court’s decision and remitted the case to the Potsdam District Court. On 23 December 1998 the applicant lodged a constitutional complaint raising the issue of the excessive length of the proceedings. On 1 September 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s constitutional complaint. It found that the applicant had not as yet exhausted all possible prior legal remedies. On 21 January 1999 the case file arrived at the Potsdam District Court. On 19 February 1999, following the applicant’s request to postpone the hearing, the District Court scheduled the main hearing for 2 March 1999. On 10 March 1999 the applicant excused himself from attending the continuation of the main hearing by submitting a medical attestation. The District Court ordered the applicant’s medical examination and ordered the main hearing to be continued on 12 March 1999. On 12 March 1999 the District Court adjourned the hearing, because the Public Health Officer had given notice that the medical examination could not take place before 15 March 1999. On 19 July 1999 the District Court scheduled the main hearing for 23 November 1999. On 17 November 1999, following the applicant’s request, the District Court adjourned the hearing. On 1 March 2000 the District Court decided to discontinue the proceedings on account of their excessive length. On 21 June 2000 the Potsdam Regional Court (Landgericht), following the Public Prosecutor’s appeal, quashed the decision of the District Court on the ground that the length of the proceedings was not so excessive as to warrant their termination, and remitted the case to the District Court. On 20 July 2000 the case-file was returned to the Potsdam District Court. Following the main hearing on 6 October 2000, which the applicant did not attend, the District Court ordered the applicant’s medical examination. On 23 November 2000 the Public Health Officer submitted his expert opinion. On 18 January 2001 the Brandenburg Constitutional Court (Verfassungsgericht des Landes Brandenburg) rejected the applicant’s constitutional complaint lodged on 10 January 2001, in which he complained about the length of the proceedings, as having been filed out of time. On 13 February 2001 the Potsdam District Court convicted the applicant of negligent drunken driving and sentenced him to fifteen daily rates of DEM 60. It also imposed a driving ban for three months. According to the District Court, the length of the proceedings did not justify to discontinue the proceedings without a criminal sentence. On 15 February 2001 the applicant revoked his counsel’s power of attorney. On 19 March 2001 the applicant granted the lawyer Ms Z. a power of attorney which was restricted to consulting the case-file. On 9 June 2001, without having received a written copy of the judgment, the applicant lodged an appeal. On 8 November 2001 the District Court judgment was served on the lawyer Ms Z. On 25 April 2002 the Potsdam Regional Court dismissed the applicant’s appeal as being ill-founded. On 23 July 2002 the Potsdam Regional Court, following the applicant’s further appeal, decided that the judgment of 13 February 2001 had not been properly served on the applicant. Following several unsuccessful attempts to serve the judgment of 13 February 2001 on the applicant, the judgment was duly served on him on 14 November 2002. On 21 July 2003 the Brandenburg Court of Appeal dismissed the applicant’s appeal on points of law as being ill-founded. On 22 August 2003 the applicant lodged a second complaint with the Federal Constitutional Court. On 21 January 2004 the Federal Constitutional Court quashed the judgment of the District Court of 13 February 2001 and the decision of the Court of Appeal of 21 July 2003 and remitted the case to the Potsdam District Court. It found that the applicant’s conviction was disproportionate considering the excessive length of the proceedings, a delay of twenty-two months attributable to the conduct of the lower courts and the relatively insignificant charge and thus violated the applicant’s rights to a fair criminal trial as guaranteed by Article 2 § 2 of the Basic Law in conjunction with the principle of proportionality enshrined in the rule of law. The Federal Constitutional Court found, first, that the overall length of the proceedings as such, which amounted to approximately ten years, was unreasonable. According to the Constitutional Court, the applicant had considerably contributed to the length of the proceedings by his own legitimate conduct during the proceedings, such as by filing three appeals on points of law, by lodging several requests to postpone the hearings, by at first refusing the taking of evidence by blood sample in May 1995 and by complicating the serving of the judgment of 13 February 2001. However, neither the delays caused by the applicant’s own conduct nor the delays caused by the Public Prosecutor’s appeals could justify the overall length of the proceedings. In this respect, the Constitutional Court noted that the charge of drunken driving was of a relatively minor nature and that the complexity of the case was low and did not necessitate any extensive taking of evidence. Furthermore, the Federal Constitutional found that there had been a total delay of twenty-two months which was imputable on the domestic courts. In this respect, the Constitutional Court confirmed the finding of the lower courts, which had identified delays from 15 August 1994 (date on which the driving licence was returned to the applicant) to 9 January 1995 (scheduling of a new date for the main hearing), from 8 January (return of the case-file to the District Court after the second appeal decision) to 4 November 1997 (scheduling of a main hearing), from 12 March (adjournment of the hearing) to 19 July 1999 (scheduling of a new hearing) and from 17 November 1999 (adjournment of the hearing) to 1 March 2000 (decision on the termination of the proceedings). With respect to the applicant’s complaint about further delays amounting to thirty-four months, the Constitutional Court found that these did not violate the applicant’s rights under the Constitution. It found, notably, that the District Court’s decision to order the taking of evidence by blood sample was comprehensible. The delay between the adjournment of the hearing in November 1995 and March 1996 had been sufficiently explained by the competent judge’s illness. The Federal Constitutional Court further accepted the delay between 19 July 1999 and the hearing held on 23 November 1999. The Federal Constitutional Court further found that those delays which had been caused by the remittal of the case to the first instance courts did not violate the obligation to expedite the proceedings. This could only apply if the judgments of the first instance courts had been flagrantly violating the law, which had, however, not been the case. Turning to the consequences the length of the proceedings had on the applicant, the Constitutional Court noted that, according to a medical attestation of 23 November 2000, the applicant had with a high probability developed a psychological disorder which negatively affected his quality of life and necessitated a rapid termination of the proceedings. Furthermore, the applicant had been deprived of his driving license for more than seventeen months. The Constitutional Court finally noted that disciplinary proceedings had been instituted against the applicant. Taking into account these elements, in particular the minor nature of the charge, the overall length of the proceedings and the hardships on the applicant, the Federal Constitutional Court found that it was unjustified to impose a criminal sentence on the applicant. It followed that the proceedings had to be discontinued without a criminal conviction. The Constitutional Court further ordered the Land of Brandenburg to reimburse the applicant the necessary expenses incurred by his constitutional complaint. On 3 March 2004 the case-file was returned to the Potsdam District Court. On 10 March and 10 May 2004 the District Court judge requested the Public Prosecutor to consent to a termination of the proceedings. Between 23 March and 10 August 2004 the case-file was dispatched to the Tiergarten District Court in Berlin. On 18 October 2004 the Potsdam District Court scheduled a hearing for 6 December 2004 and requested the Public Prosecutor to consent to a termination of the proceedings. On 6 December 2004 the Potsdam District Court discontinued the proceedings pursuant to section 153b of the Code of Criminal Procedure (see relevant domestic law below). It further ordered that the Court fees had to be borne by the Treasury and that the applicant was to be reimbursed half of the necessary expenses incurred by the proceedings. The relevant provisions of the Code of Criminal Procedure (Strafprozessordnung) read as follows: Section 153 “(1) If a less serious criminal offense is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent for the opening of the main proceedings if the perpetrator’s culpability is considered to be of a minor nature and there is no public interest in the prosecution.... (2) If charges have already been preferred, the court, with the consent of the public prosecution office and the accused, may discontinue the proceedings at any stage thereof ...” Section 153b “(1) If the conditions apply under which the court may dispense with imposing a penalty, the public prosecution office may, with the consent of the court which would have jurisdiction over the main hearing, dispense with preferment of public charges. (2) If charges have already been preferred the court may, with the consent of the public prosecution office and of the accused, discontinue proceedings prior to the beginning of the main hearing.” | 0 |
train | 001-23955 | ENG | GBR | ADMISSIBILITY | 2,004 | WILKINSON and KNOTT v. the UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicants, James Wilkinson and Gareth Knott, are United Kingdom nationals. They were born in 1959 and 1962 and are from Manchester and Newcastle, respectively. They were represented before the Court by Mr G. Blades, a lawyer practising in Lincoln. The facts of the case, as submitted by the parties, may be summarised as follows. Both applicants were convicted and sentenced by courts-martial convened following the entry into force of the Armed Forces Act 1996. In October 1999 Mr Wilkinson was convicted by an air-force district court-martial of conduct to the prejudice of good order and air force discipline. He was fined of £1000 pounds sterling (“GBP”). The Reviewing Authority confirmed the verdict but reduced his fine to GBP 250. In December 1999 the Courts-Martial Appeal Court dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in April 2000. In October 1999 Mr Knott was convicted by an army district court-martial of disobeying a lawful command. He was sentenced to a severe reprimand and to a fine of GBP 700. The Reviewing Authority confirmed the verdict and sentence. In January 2000 the Courts-Martial Appeal Court dismissed his application for leave to appeal against conviction and sentence and his renewed application was rejected in April 2000. The provisions of the Army Act 1955 and of the Air Force Act 1955, which regulated army and air-force courts-martial prior to 1 April 1997, are set out in Findlay v. the United Kingdom (of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51) and Coyne v. the United Kingdom (judgment of 24 September 1997, Reports 1997V, §§ 20-44). Following the adoption of the Commission's report in the Findlay case (no. 22107/93, Commission's report of 5 September 1995), the Armed Forces Act 1996 came into force on 1 April 1997 and significantly amended both 1955 Acts. The relevant domestic law and practice applicable to air-force courts-martial following the entry into force of the 1996 Act is set out in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-77, ECHR 2003XII). The relevant regulatory framework governing post-1996 Act army courts-martial is the same in all material respects (the Cooper judgment, at § 107). | 0 |
train | 001-95364 | ENG | GBR | CHAMBER | 2,009 | CASE OF CROMPTON v. THE UNITED KINGDOM | 3 | Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1 | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 5. The applicant, Mr Thomas John Crompton, is a British national who was born in 1954 and lives in Stalybridge, Cheshire. 6. 7. In 1989 the applicant joined the Territorial Army (“TA”) as a pay and accounts clerk, a military post, carrying out duties such as filing, photocopying and maintaining a stationery store. In July 1993 the applicant was informed that he was to be made redundant, following organisational changes in the TA pursuant to a process of civilianisation. He was subsequently informed that the clerical post which he had occupied was to become a civilian post and was to be converted to that of a technical store-man. The applicant applied for this new post, but was informed in February 1994 that he could take it only if he undertook a training course, but that all relevant training courses had been cancelled. He also applied for a number of other clerical posts within the Army but was refused for them all. 8. The applicant was therefore made redundant. His discharge from the Army, dated 18 February 1994, was formally made, incorrectly, on the basis that his services were no longer required. The applicant later discovered that his former duties were being carried out by an untrained civilian, while the technical store-man post remained vacant. 9. On 3 May 1994 the applicant complained about his redundancy to the Industrial Tribunal, but his claim was rejected because the Industrial Tribunal did not have jurisdiction over matters involving military personnel. 10. On 19 December 1994 the applicant claimed redress in respect of his redundancy from his Commanding Officer, under sections 180 and 181 of the Army Act 1955. 11. On 22 March 1995 the Commanding Officer issued a brief in which he concluded that the applicant had a weak case for redress. He further requested the Army Board of the Defence Council to determine whether the applicant was subject to military law. The applicant's solicitors, on 6 December 1996, submitted observations in reply. The matter was then placed before the Army Board. 12. In January 1998, the applicant applied for judicial review in respect of the Army Board's failure to determine the case within a reasonable time. His application was granted by the High Court on 2 February 1998 and the Army Board was ordered to deal with the case expeditiously. 13. The Army Board, without holding an oral hearing or directing a Board of Inquiry to be convened, issued its decision on 7 May 1998, refusing the applicant's claim for redress. 14. The applicant applied for judicial review of the decision not to hold an oral hearing or convene a Board of Inquiry. 15. On 3 November 1998, while the judicial review application was pending, the Army Board directed that a Board of Inquiry should be convened. The Board was convened by an order dated 10 February 1999. It sat in March 1999, considered oral and documentary evidence and issued a summary of its factual findings on 6 May 1999. It found in the applicant's favour as regards his argument that he ought to have been, but was not, given priority before five selection boards. It was anticipated that the level of compensation would be fixed by negotiation between the Army Board and the applicant. 16. The Army Board met to reach a determination on 11 April 2001. It issued its decision on 16 July 2001, ordering that the applicant be offered compensation in respect of the failure to offer him alternative employment within the Army. On 10 August 2001, an award of compensation was notified to the applicant but he disputed the calculation of the compensation. 17. In November 2001 a further offer of settlement was made to the applicant, which he rejected. 18. On 11 April 2003 the Army Board made a further compensation offer of GBP 94,016.67. The sum was made up of three parts: loss of salary (minus the applicant's actual earnings during the relevant period); a redundancy payment estimated on the basis that the applicant would have had an extra six years' service; and loss of pension rights, again based on a six-year period. The applicant rejected the offer on the basis that it did not include costs or a sum to compensate him for the stress he had suffered. 19. The applicant, acting as a litigant in person, subsequently applied for judicial review of the decision, claiming that the award had not been properly assessed. Permission was granted on 23 June 2003. The applicant advanced two criticisms: first, that the award was based on the assumption that he would have been discharged from the army six years after the date on which he was actually discharged; second, that the salary base used for the calculation of all three elements of the award was taken to be GBP 15,800 per year gross. The latter criticism was only formally advanced at the hearing itself. 20. On 16 October 2003 the High Court rejected the applicant's complaint regarding the six-year cut-off date. However, in light of evidence produced to the court regarding the level of the applicant's salary at the time of his redundancy, the court accepted the Army Board's undertaking to review the level of the annual salary used in its calculation and, if appropriate, to reassess the award of compensation within 35 days. Although formally the applicant was the unsuccessful party in the litigation, and as a result would normally be required to pay the costs of the Army Board, the court ordered the applicant to pay only half of the Army Board's costs partly on the ground that “the history of this matter displays an inordinate period of delay”. 21. On 20 November 2003, a revised offer of GBP 147,682.42 was made to the applicant. The offer was rejected. 22. The applicant again applied for judicial review on 11 January 2004 seeking an order requiring the Army Board to investigate and take steps towards redressing his complaint within a prescribed time-frame and damages for the losses suffered by him as a result of the Army Board's failure to perform its duties. There was a hearing on 10 February 2004 but no order was made. 23. On 13 April 2004, a further offer was made to the applicant in the sum of GBP 153,000. 24. On 26 July 2004 the applicant again applied for judicial review in respect of the delay but again, following a hearing on 10 August 2004, no order was made. 25. On 19 May 2005, following another application for judicial review, the High Court adjourned the case pending promulgation by the Army Board of its written decision regarding the offer of compensation. 26. On 24 May 2005 the Army Board issued its decision awarding the applicant compensation of GBP 153,864.47. 27. The applicant's application for judicial review was refused on 24 June 2005 on the ground that the Army Board's decision had brought the finality which the applicant had been seeking. 28. The applicant brought a fresh application for judicial review on the ground that the award of 24 May 2005 had been incorrectly reached. The application was refused on the papers on 22 September 2005. Following the applicant's renewed application and an oral hearing, permission was finally refused on 14 November 2005. 29. According to Halsbury's Laws of England (4th Edition), the terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense. Members of the armed forces are appointed by the Crown under the Royal prerogative and hold their appointments “at the Queen's pleasure”. 30. The TA, although essentially part-time, has a small number of attached regular army officers and non-commissioned officers responsible for organising and supervising the management and training of the unit. At the relevant time, the routine administration of the TA tended to be vested in a special category of uniformed reservists known as Non-Regular Permanent Staff (“NRPS”). NRPS were recruited into the TA to perform a specific job within a TA unit. 31. Under section 205(1)(h) of the Army Act 1955, NRPS soldiers were subject at all times to military law. 32. Section 181 of the Army Act 1955 set out, at the relevant time, the redress available to the applicant following his redundancy. It provided as follows: “(1) If a warrant officer, non-commissioned officer or soldier thinks himself wronged in any matter by any officer other than his commanding officer or by any warrant officer, non-commissioned officer or soldier, he may make a complaint with respect to that matter to his commanding officer. (2) If a warrant officer, non-commissioned officer or soldier thinks himself wronged in any matter by his commanding officer, either by redress not being given to his satisfaction on a complaint under the last foregoing subsection or for any other reason, he may, in accordance with the procedure laid down in Queen's Regulations, make a complaint with respect thereto to the Defence Council, (3) It shall be the duty of a commanding officer or, as the case may be, the Defence Council to have any complaint received by him or them investigated and to take any steps for redressing the matter complained of which appear to him or them to be necessary.” 33. Queen's Regulation (“QR”) 5.204(b) provided: “Every complaint is to be fully and distinctly stated and any explanation or other evidence as may be necessary for the proper investigation and speedy determination of the complaint is to be annexed to it.” 34. QR 5.205 provided: “A complaint is to be submitted, in writing, to the complainant's commanding officer no matter if the commanding officer has previously refused to redress the matter complained of; has not the power to grant the redress sought; or if the complaint has been made against the action or refusal of action by the commanding officer himself.” 35. QR 5.206 provided: “Any complaint under Section ... 181(2) of the Army Act 1955 is, when received by the commanding officer, to be forwarded by him, with any comments, to his next higher authority. That authority is to examine the complaint and is himself to grant redress if he has power to do so and thinks he should. If redress is not then granted, or is not granted to the complainant's satisfaction, that authority is to forward the complaint, together with any comments by the commanding officer and himself, to the next higher authority, and the procedure repeated. In this way, unless full redress is granted at an intermediate level, the complaint will come up through the chain of command to the Ministry of Defence and will be presented to the Army Board of the Defence Council. The complainant is to be informed of progress at each stage and given the opportunity to withdraw his complaint if he wishes.” 36. New primary legislation governing redress of complaints was introduced in the Armed Forces Act 1996 but this new legislation applied only to complaints brought on or after 1 October 1997. 37. The Defence Council is appointed by Letters Patent from Her Majesty to have command of the armed forces. It is composed of the defence ministers, the most senior Ministry of Defence civil servants and the most senior officers of the armed forces. 38. Under section 1(5) of the Defence (Transfer of Functions) Act 1964, the functions of the Defence Council may be discharged by the Army Board. 39. The requirements of fairness to be observed in the procedure before the Defence Council were set out in R v Army Board ex parte Anderson [1992] 1 QB 169 (“the Anderson principles”). The Divisional Court considered that the Army Board must achieve “a high standard of fairness” and, in particular, there must be a proper hearing at which all relevant evidence is considered; the members of the Board must meet for this purpose; where appropriate, an oral hearing must be held with opportunity for cross-examination of witnesses; there must be a proper examination; all material seen by the Board must be disclosed to the complainant (subject to public interest immunity exceptions); and the complainant must be given an opportunity to respond to material and have his response considered by the Board. 40. Under section 135(1) of the Army Act 1955, the Defence Council had the power to convene a Board of Inquiry (“the Board”) to investigate and report on the facts relating to a matter referred to it by the Defence Council. 41. The composition of the Board was specified in section 135(2) as consisting of a president, who shall be an officer not below the rank of captain or corresponding rank and be subject to military law, and not less than two other members each of whom shall either be a person subject to military law or a person not so subject who is in the service of the Crown. 42. The applicable rules were set out in the Board of Inquiry (Army) Rules 1956 (“the Rules”), which established, under Rule 3, a duty for the Board to investigate and report on the facts relating to any matter referred to it and, if directed to do so, to express its opinion on any question arising. 43. Rule 8(2) provided that: “The President shall lay the terms of reference before the board and the board shall proceed to hear and record evidence in accordance with the provisions of these Rules.” 44. Rule 10(1) provided: “A board shall hear the evidence of the witnesses who have been made available by the authority and may hear the evidence of such other persons as they think fit.” 45. Rule 12 provided: “A board may receive any evidence which they consider relevant to the matter referred to the board, whether oral or written, and whether or not it would be admissible in a civil court.” 46. Rules 15(1) provided: “The president shall record, or cause to be recorded, the proceedings of the board in writing and in sufficient detail to enable the authority to follow the course of the proceedings.” 47. The relevant QR (5.009) provided as follows: “Administrative instructions relating to boards of inquiry convened in accordance with the Board of Inquiry (Army) Rules 1956 ... are contained in Annex A to this Chapter. These instructions are to be followed in all cases.” Paragraph 47 of Annex A provided: “... all persons who may be affected by the findings are to be given an opportunity to attend or be [re]presented.” Although the Army Board was not strictly bound by the findings of a Board of Inquiry, it would be rare for the Army Board to substitute its own findings for those of the Board. 48. Members of the armed forces have access to civilian employment tribunals in relation to issues regarding equal pay and unlawful discrimination on grounds of race, sex, religion, belief or sexual orientation. 49. Although at the relevant time the right not to be unfairly dismissed was a statutory right, under section 54(1) of the Employment Protection (Consolidation) Act 1978, its application to service as a member of the armed forces was excluded under section 138 of the Act. Accordingly, the Industrial Tribunal did not have jurisdiction to hear a claim for unfair dismissal brought by a member of the armed forces. 50. The scope of judicial review in administrative decision-making in the United Kingdom is set out in the Court's judgment of Tsfayo v. the United Kingdom, no. 60860/00, §§ 25-33, 14 November 2006. | 1 |
train | 001-4519 | ENG | SWE | ADMISSIBILITY | 1,999 | MAJIC v. SWEDEN | 3 | Inadmissible | Josep Casadevall | The applicant, born in 1969, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality. On 21 February 1994 the applicant arrived in Sweden and requested asylum. He stated that he is an ethnic Croat from Ljubuski in Bosnia-Hercegovina. Between May 1992 and January 1994 he served in a Croatian infantry unit and was involved in many battles in Bosnia-Hercegovina. In January 1994 he refused to comply with an order for active duty and was put in a military prison for a month. Upon release, he was ordered to report to his unit but, instead, he fled to Croatia where he obtained a passport with which he travelled to Sweden. He claimed that, if returned to Bosnia-Hercegovina, he would be put in prison or sent to the front-line. On 14 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant’s situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Moreover, no acts of warfare had taken place on Croatian territory for some time and a cease-fire had been agreed upon by the contending parties. Thus, there was no apparent risk that Croatian citizens in general would be forced to take part in armed conflict. Further, the applicant had failed to show that he personally faced such a risk. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 13 March 1995 the Appeals Board, sharing the opinion of the Immigration Board, rejected the appeal. The applicant later requested a temporary residence permit in Sweden. By a decision of 30 August 1995 the Appeals Board granted the applicant such a permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country. On 24 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, at an oral hearing held by the Immigration Board on 20 May 1997 he claimed that he could not return to Croatia, as he would not receive any help and would have great difficulties in supporting himself. Consequently, if returned to that country, he would be forced to go back to BosniaHercegovina where he would be punished for having evaded military service. Further, as the most extreme Croats lived in his home district in Bosnia-Hercegovina, he would be at risk due to the evasion and the fact that he had applied for asylum in a foreign country. He submitted a document showing that he was wanted for draft evasion by the military authorities of Herceg-Bosna. The applicant referred also to the time he had spent in Sweden and claimed that he had adjusted himself to Swedish society. On 30 June 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to guiding decisions taken by the Swedish Government and found that the applicant should not be sent back to BosniaHercegovina. With regard to the possible deportation to Croatia, the Board noted that no new circumstances had been invoked by the applicant. Consequently, the Immigration Board reiterated the conclusions drawn in the previous decisions concerning the applicant. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit. The applicant’s appeal against the Immigration Board’s decision is still pending before the Aliens Appeals Board. In a medical certificate issued at a psychiatric clinic in Karlskrona on 21 April 1998 chief physician P.R. stated that the applicant showed signs of depression, powerlessness and insomnia as a result of having spent four years in refugee camps in Sweden. However, the applicant refused to take medication as he did not consider that he was suffering from any serious illness. | 0 |
train | 001-79488 | ENG | TUR | CHAMBER | 2,007 | CASE OF SOYLU v. TURKEY | 4 | No violation of Art. 3;No violation of Art. 8;No violation of P1-1;No violation of Art. 13;No violation of Art. 14+3;No violation of Art. 14+8;No violation of Art. 14+13;No violation of Art. 14+P1-1 | David Thór Björgvinsson | 9. The applicant was born in 1954 and lives in Istanbul. He was living in Nurettin village at the time of the alleged events giving rise to this application. The facts of the case are in dispute between the parties and may be summarised as follows. 10. Until April 1994 the applicant lived in Nurettin, a village of Malazgirt district in Mardin province, at that time a state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers' Party of Kurdistan). The inhabitants of the applicant's village were under pressure by State security forces to agree to become village guards. 11. On 27 November 1993 soldiers, accompanied by persons wearing masks, raided Nurettin village. They assembled the inhabitants in the village square and threatened them with the burning of their houses if they did not agree to serve the State as village guards. They beat up fifteen young men. The soldiers then chose twenty houses and set them on fire after throwing a white powder on them. The houses of the applicant's brother and cousin completely burned down. 12. Following this event, the villagers lived in fear for their security. Some of them left the village, and the rest, including the applicant, preferred to stay. The security forces visited the village two or three times a week in order to force the inhabitants to agree to become village guards. 13. In April 1994 the heads of approximately thirty families agreed under pressure to become village guards. However, these newly recruited village guards, protected by the State, also burned down eight or nine houses per day. The applicant's house was also burned down, which forced the applicant and his family to leave the village and settle in Malazgirt district. In the meantime, the village guards cultivated the applicant's lands, used the remainder of the materials left from his house and chopped and sold his poplar trees. Since the applicant could not overcome the economic difficulties to sustain his living he moved to Istanbul to find a job. 14. On 17 April 1998, the applicant lodged a petition with the Malazgirt District Governor's office and asked for permission to return to his village. He explained that he was unable to sustain the living of his family in the city and that he wanted to cultivate his lands in the village. The District Governor transmitted the applicant's request to the District gendarmerie Command and also advised him to apply to the Konakkuran Gendarmerie Station. The applicant went to see the commander of the aforementioned station and told him that he had been advised to address him by the District Commander. The latter refused the applicant's request to re-settle in the village and ordered a gendarme to remove the applicant from the premises. 15. The applicant left Nurettin village of his own free will and not under any pressure by the State security forces or village guards. 16. On 19 June 1997 the applicant petitioned the Malazgirt Chief Public Prosecutor's office complaining that the village guards from Nurettin village had been using his property without his consent. The applicant alleged that he had moved out of his village on account of terrorism in 1994. Subsequent to his departure the village guards had demolished his house and had removed its wooden parts and the stones. They had also cut down three thousand poplar trees in his field. The applicant therefore asked the Prosecutor to initiate criminal proceedings against the village guards and to ensure that the damage resulting from the alleged events be compensated. 17. On 9 December 1997 the Malazgirt Public Prosecutor took statements from A.K., who transported the applicant's household property in his vehicle. He stated that in 1994 he transported the applicant's belongings from Nurettin village to Malazgirt district and that the applicant's house was intact. 18. On 10 May 1998 the applicant filed another petition with the Malazgirt Chief Public Prosecutor's office complaining that Z.P., who was one of the village guards in Nurettin village, had been illegally cultivating his father's land. 19. On 20 August 1998 the Chief Public Prosecutor issued a decision of non-jurisdiction and referred the case-file to the Malazgirt District Administrative Council in accordance with the Law on Prosecution of Civil Servants. An investigation was carried out by an inspector, appointed by the Administrative Council, into the applicant's allegations. In this regard, six village guards, including Z.P., were questioned by the inspector. 20. On 30 June 1999, the Malazgirt Administrative Council dismissed a request for leave to initiate criminal proceedings against the six village guards from Nurettin. 21. By a decision of 8 November 1999 the Van Regional Administrative Court set aside the Administrative Council's decision and authorised the institution of criminal proceedings against the village guards for alleged destruction of the applicant's property, which offence was prescribed in Article 516 of the Criminal Code. 22. On 1 March 2000 the Malatya Assize Court heard evidence from the accused village guards. The latter denied the charges and claimed that the applicant had slandered them. They alleged that the applicant was a member of the mountain squad of the PKK and that therefore he was hostile to them because they were village guards. They also noted that the applicant did not own three thousand trees and six hundred dönüm land in the village. The trees belonged to the applicant's brother who had cut and sold them and then moved to Istanbul. 23. On 24 March 2000 two gendarme officers took statements from three persons, namely R.G., C.Ç and İ.Ö., from Nurettin village. The villagers stated that they had seen the applicant when he moved from Nurettin to Malazgirt and that the village guards had not forced him to move out of the village. They also submitted that the applicant's house had not been burned down by the village guards but had been demolished as a result of bad weather conditions and lack of care. They also noted that the applicant possessed four or five hectares of land which could not contain thirty thousand poplar trees. 24. On the same day, the gendarme officers carried out an on-site inspection on the premises of the applicant's house in Nurettin village. They drew up a report in which they observed that there was no evidence that the house had been burned down. It appeared that the house had been demolished as a result of natural forces and lack of care. It was also noted that the applicant owned land measuring 10,200 square metres which could not contain the number of trees allegedly owned by the applicant. They further observed that the applicant had already cut six of his trees before moving to Malazgirt. The gendarme officers also drew up a sketch-map of the village. 25. On 16 May 2001 the Malazgirt Assize Court decided to defer the criminal proceedings against the village guards for five years in accordance with Article 1 § 4 of Law No. 4616 on Conditional Release, Deferral of Criminal Proceedings and Sentences. In the absence of any appeal, this judgment became final. However, this judgment did not grant amnesty to the accused because the criminal proceedings will be reopened if they commit a new offence within five years' time. 26. On 9 November 2005 gendarme officers took statements from the applicant and three inhabitants of Nurettin village in relation to the allegations made by the applicant in his application lodged with the European Court of Human Rights. 27. The applicant stated that in 1994 he had moved out of Nurettin village due to the intimidation by the village guards and that, fifteen days or a month after his departure, his house had been burned down by some of the villagers whose identity he did not know nor why they did so. In response to a question whether the State authorities forced him to agree to become a village guard, the applicant stated that no one had exerted pressure on him or his family. The applicant further stated that the allegation that the houses of those who did not agree to become village guards were burned down was untrue. When asked about the number of trees he owned, the applicant claimed that he owned - together with his brother and cousin - three thousand poplar trees, and not thirty thousand. The applicant also stated that he possessed land measuring 600 dönüm together with his brother and cousin and that he had not cultivated this land since 1994. In reply to a question whether he and his family had been affected by the terrorism in the region, the applicant stated that his son F.S. had been an active member of the PKK, that he had served a twelve years' prison sentence following his arrest and conviction and that therefore the PKK had not intimidated his family. Given that his wife's father had worked at the same time as a village guard, the State security forces had not intimidated his family either. The applicant finally noted that he had lived in Istanbul between 1994 and 2002 and that, since the latter date, he had been living in Taşlıçeşme hamlet, cultivating his lands. 28. The applicant's fellow villagers, Z.T., N.B. and H.Ç. stated that the authorities had not forced the villagers to agree to become village guards but, on the contrary, the villagers themselves had wished to become village guards since they would receive salaries from the State. However, some of the villagers, including the applicant and his family, had left the village on account of economic difficulties. In their opinion, the applicant had left the village because his son had joined the PKK and his brother had also moved out of the village earlier. The allegation that the applicant's house had been burned down by the village guards was untrue since the applicant's father-in-law was one of the village guards and he would not set his daughter's house on fire. The applicant's house had been demolished as a result of bad weather conditions and lack of care. The applicant could not own thirty thousand poplar trees given that the total number of trees in the village did not equal this number. The applicant possessed 60-70 dönüm of land together with his brothers. In 2002 he had settled in Taşlıçeşme hamlet and since then he had been cultivating his lands. Nobody had forced the applicant to leave the village. In the opinion of these witnesses, the applicant and a few other villagers had made such allegations in the hope that they would obtain some money. 29. Finally the Government pointed out that 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. 30. 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. 31. The number of persons applying to these commissions had already reached approximately 204,000. Many villagers had already been awarded compensation for the damage they had sustained. 32. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003), Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002) and Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-...). | 0 |
train | 001-5149 | ENG | NLD | ADMISSIBILITY | 2,000 | SASSEN v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Dutch national, born in 1944 and living in Nijmegen, the Netherlands. He is represented before the Court by Mr M.P.H. Winters, a lawyer practising in Arnhem, the Netherlands. A. The applicant is the author of a computer programme for the calculation of amounts of maintenance to be used by national courts. The programme was published by the Kluwer publishing company. The applicant’s programme tested best in a trial in which two other programmes participated but the authors of one of the other programmes, Messrs F. and W., obtained an injunction when Kluwer started advertising the applicant’s programme in legal journals - the test results had allegedly been ‘frozen’ at the instigation of the authors of the third programme who were attached to a regional court. Kluwer then attempted to get the applicant and Messrs F. and W. to work together but the applicant refused. Subsequently, Kluwer decided to publish the programme of Messrs F. and W. The applicant started proceedings for damages against both Kluwer and Messrs F. and W., arguing that their actions had caused him to lose his advantage which the test results had given him from a marketing point of view. In the proceedings against Kluwer, the Court of Appeal (Gerechtshof) of Arnhem decided on 3 March 1992 that Kluwer’s actions had indeed caused prejudice to the applicant and in a separate procedure the amount of damages to be paid by Kluwer to the applicant should be calculated. In a judgment of 9 February 1995 the Regional Court (Arrondissementsrechtbank) of Zutphen ordered Kluwer to pay a certain amount of damages (about 10% of what the applicant had demanded), rejected the applicant’s other demands in respect of Kluwer (namely that Kluwer halt its publication of Messrs F. and W.’s programme) and declared the applicant’s claims on Messrs F. and W. inadmissible as it held that these claims covered the same damage as the applicant claimed from Kluwer. On 4 March 1997 the Court of Appeal of Arnhem quashed this decision, but only insofar as the amount of damages was concerned (the Court of Appeal lowered this amount). It held that the applicant’s claim on Messrs F. and W. was admissible, but rejected this claim because Messrs F. and W. had not acted unlawfully towards the applicant and the Court of Appeal also agreed with the Regional Court that the applicant’s claims on Messrs F. and W. were the same as those on Kluwer. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising a number of complaints relating to the reasoning applied by the Court of Appeal and also arguing that there was a contradiction between the Court of Appeal’s judgments of 3 March 1992 and that of 4 March 1997. According to the applicant, these circumstances created at least the impression that the lower courts, most of whose judges where also contractually connected to the Kluwer company, had not been impartial. The applicant requested the Supreme Court in writing to appoint judges to this case who had no ties with Kluwer. In the proceedings before the Supreme Court the Advocate-General at that court submitted an advisory opinion to which the applicant was able to reply. In his response he pointed out that this particular Advocate-General had had a number of written works published by Kluwer in the time before he became Advocate-General. On 6 November 1998 the Supreme Court rejected the appeal in cassation. Four of the five Supreme Court judges have had written works published by Kluwer or companies part of the Kluwer conglomerate. B. Relevant domestic law Pursuant to Article 29 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a party may challenge any of the judges assigned to examine a case on the grounds of facts or circumstances which might prejudice the judicial impartiality. A request to challenge a judge should be made as soon as the person concerned has become familiar with these facts or circumstances (Article 30 § 1 of the Code of Civil Procedure). Article XIII § 2 of the Rules of Court of the Supreme Court (Reglement van Orde van de Hoge Raad der Nederlanden) provides that at the request of one of the parties to the proceedings the Registrar will notify to that party the names of the members of the Supreme Court who will render judgment in a particular case. The duties and position of the Procurator-General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutor’s of the regional and district courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1). The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (Article 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal. | 0 |
train | 001-4583 | ENG | DNK | ADMISSIBILITY | 1,999 | NINN-HANSEN v. DENMARK | 1 | Inadmissible | Christos Rozakis | The applicant is a Danish citizen, born in 1922. He resides in Charlottenlund, Denmark. The applicant was a member of Parliament for many years and served, inter alia, as Minister of Justice from 1982 until January 1989. Before the Court the applicant is represented by Mr Kristian Mogensen and Mr Axel Kierkegaard, lawyers practising in Copenhagen. The facts of the case, as submitted by the parties, may be summarised as follows. a. In the autumn of 1988 the Parliamentary Ombudsman started an investigation of the Ministry of Justice's administration in 1986-1988 of cases concerning Tamil refugees' applications for family reunification. In his report of 1 March 1989 the Ombudsman criticised the way the Ministry of Justice and the Directorate for Aliens (Direktoratet for Udlændinge) had handled the applications for family reunification of Tamil refugees. The Ombudsman's report received considerable public attention and resulted in public criticism of the Government's refugee policy. The political unrest about refugee questions continued, especially about refugees' possibilities of family reunification and the public criticism was increasingly directed against the applicant personally. On several occasions members of Parliament attempted to induce the Government to invite a specially commissioned court of inquiry with public court sessions to investigate the applicant's conduct in connection with the Tamil refugees' applications for family reunification. Whereas the applicant had no objections thereto the Government resisted and such a proposal was not adopted. On 23 April 1990 the Danish State Television transmitted a programme in which the applicant's conduct and the discharge of his official duties were severely criticised. In the following two weeks the television programme resulted in an extensive public debate in all Danish media. This caused the Prime Minister to issue a press release on 8 May 1990 in which it appeared that the Government and the political parties, which together with the Government comprised a parliamentary majority, now agreed that the question of the administration of the Tamil refugees' family reunification should be investigated. From the press release it also appeared that the Government would propose a change in the Administration of Justice Act (Retsplejeloven) aiming especially at such an investigation. The Bill was proposed by the Minister of Justice on 15 May 1990 and adopted on 13 June 1990. Following the adoption of the Bill the Prime Minister addressed a letter of 29 June 1990 to the President of the Supreme Court which read as follows: (Translation) "According to Section 21a of the Administration of Justice Act the Office of the Prime Minister has decided, on behalf of the Ministry of Justice, to request a Supreme Court judge to conduct an investigation of the decision-making process and the administration connected with the handling of cases concerning the family reunification of refugees from Sri Lanka. The investigation shall comprise the period from the conclusion of peace in Sri Lanka in the summer of 1987 until it was decided to normalise the handling of these cases in January 1989. In the investigation it shall be examined whether anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility. It has been decided that the investigation according to the Administration of Justice Act Section 21a, subsection 3, shall be conducted in camera. The Office of the Prime Minister will consider nominating a person to represent the State during the case. With reference to the above the President of the Supreme Court is hereby requested to propose a Supreme Court judge to conduct the investigation." On 3 July 1990 the President of the Supreme Court proposed Supreme Court Judge H. On 10 July 1990 the Office of the Prime Minister requested H to investigate the matter as mentioned in the letter of 29 June 1990. Furthermore, on 10 July 1990 the lawyer, N, was appointed to represent the public, i.e. acting as interrogator in the proceedings. Thus, on 10 July 1990 a court of inquiry was set up on the terms of reference as described in the letter of 29 June 1990. On 25 January 1991 the investigation was extended to comprise also the period after January 1989. During the summer and autumn of 1990 the Court of Inquiry (Undersøgelsesretten) requested documentary evidence from, inter alia, various Ministries, the Directorate for Aliens and the Parliamentary Ombudsman. This material comprised a total of approximately 18,000 pages. The Court of Inquiry subsequently held 104 sessions and heard 61 witnesses. The hearing of witnesses commenced on 20 November 1990 and ended on 29 May 1992. The first seven sessions were held in camera. On 19 December 1990, however, the Prime Minister and the Minister of Justice agreed, as requested by the applicant, that the investigation should be conducted in public. The transcripts of the above seven sessions were accordingly made accessible to the public and the applicant was accordingly allowed to go through these transcripts. Already on 26 October 1990 the Court of Inquiry had informed the applicant of its task and that he would be called as a witness in the case. Like all other witnesses testifying before the Court of Inquiry, he was asked whether he wished a legal assistant (bisidder) during the proceedings, but he declined. Before the hearing of the applicant he was given an opportunity to acquaint himself with the written material which formed the basis of the interview. The applicant testified on 2, 3, 4, 15, 16, 22 and 29 April and 21, 22 and 24 October 1991 as well as on 4, 11 and 17 March 1992. Before his testimonies he was informed that he had the right to remain silent and that, in case he chose to give testimony, this would not be under oath. On 29 May 1992 the Court of Inquiry ended its examination of witnesses and the presiding judge stated, with regard to the submission of written statements, as follows: (Translation) “...The Court of Inquiry is not going to pronounce a judgment - which would presuppose legal arguments from counsel - but issue a report - i.e. a recommendation to others - with regard to the issues which have been examined during the investigation. If anybody wishes to make written submissions to the court it cannot at the outset be expected that the court will take the initiative to arrange an adversarial procedure, requesting replies, rebuttal and counter-rebuttal from everybody who has made statements. As can be ascertained from the court’s work, everybody who has given testimony without being under oath has had an opportunity - with legal assistance - to obtain knowledge of the evidence which the Court of Inquiry has obtained in order to prepare the report. Some - many - have made use of this opportunity, others have not. Everybody has had an opportunity to raise questions and to suggest that further evidence be produced and this opportunity has also been used by witnesses who have not wished legal assistance. The Court of Inquiry has complied with these wishes without exception, and nobody has been prevented from stating - also in a more general way - his views on the issues of the case during the hearings. If anybody despite this intends to make submissions to the court they are not prevented from doing so, but the preparation of the report has - as I said - commenced and ought obviously to be finished as swiftly as possible.” The final date for the submission of written statements was fixed by the Court of Inquiry as 1 August 1992, but on appeal to the Supreme Court the time-limit was extended to 21 September 1992. The Supreme Court - sitting with five judges, four of whom participated in the subsequent proceedings in the Court of Impeachment - stated in its decision of 17 August 1992 that the Court of Inquiry would not be obliged to take into consideration observations submitted later than that date. Furthermore, it stated that having regard, inter alia, to the purpose of the Court of Inquiry it would not be obliged to initiate an adversarial procedure and forward received written statements to other witnesses. On 10 June and 30 July 1992 the Court of Inquiry granted the witnesses the right to read through the court transcripts of the testimonies given by other witnesses at the offices of the legal assistants to the extent which the legal assistants considered it necessary in order to assist their clients properly. It was thus presupposed that witnesses were not given access to testimonies of other witnesses which the assistants considered irrelevant in relation to their clients. On 10 September 1992 the decision was upheld by the Supreme Court, which also this time was composed of five judges four of whom subsequently participated in the proceedings in the Court of Impeachment. On 9 January 1991 and 17 September 1992 the Court of Inquiry notified, inter alia, the applicant that it did not find sufficient reason to give him permission to go through the court transcripts of testimonies which were given by other witnesses during the public sessions of the Court as he was not assisted by a legal assistant. On 15 December 1992 the Court of Inquiry's report was finished and it was published on 14 January 1993. The report itself comprised a total of 2218 pages and the transcripts from the hearings comprised a total of 2782 pages. The report contained, inter alia, serious criticism of the applicant's discharge of his official duties in his capacity as Minister of Justice in respect of the handling of the Tamil refugees' family reunification cases. It also contained criticism of the actions of other persons, including the Prime Minister at the time. On 14 January 1993 the Government resigned. On the basis of the report Parliament decided on 11 June 1993 to institute proceedings against the applicant before the Court of Impeachment (Rigsretten) pursuant to the provisions of the Court of Impeachment Act (Rigsretsloven). By indictment of 14 June 1993 the prosecutors, appointed by Parliament, charged the applicant with a violation of Section 5, subsection 1, of Act no. 117 of 15 April 1964 concerning Ministers’ responsibilities whilst in office (lov nr. 117 af 15. april 1964 om ministres ansvarlighed - the 1964 Act). According to this provision a minister is liable to punishment if he wilfully or by gross negligence disregards the duties which fall on him under the Constitution, or under other laws, or due to the nature of his office. The applicant was charged with having disregarded his duties under the Aliens Act (Udlændingeloven) to the extent that a number of aliens could not obtain a family reunification although they had, under the Act, a right thereto. The case commenced in the Court of Impeachment on 7 December 1993. Whereas no one challenged the impartiality and independence of the individual judges the applicant challenged the impartiality and independence of the court as such, referred, inter alia, to Article 6 of the Convention and requested the court to dismiss (afvise) the case. In order to substantiate the allegations the applicant furthermore requested the hearing of the Supreme Court judge who had presided over the Court of Inquiry, as well as a lawyer who had participated in that inquiry. As regards the hearing of the two witnesses the court rejected the request by 21 votes to 3 on 7 December 1993 stating the following: (Translation) "It appears from the public report which has been made by the Court of Inquiry in the Tamil case how that court's work was planned and carried out. To hear evidence in this respect must accordingly be regarded as superfluous. The defence has not challenged the impartiality of any of the participating Supreme Court judges but has in the preliminary submissions regarding the dismissal of the case in particular referred to the fact that the Court of Inquiry was chaired by a Supreme Court judge and that its meetings were held in the Supreme Court's offices to the extent that the public at large was left with the impression that the Supreme Court as such has in advance been involved in the case. When considering this objection the question of what communications Supreme Court judge H might have had with colleagues in the Supreme Court about the Tamil case or related questions cannot be considered to be of any importance. Since the evidence concerning the connection advocate N might have had with the media during the period of time the Court of Inquiry was sitting cannot be considered of importance for the question of dismissing the case either, these judges vote in favour of rejecting the request of calling Supreme Court judge H and advocate N to submit evidence." The minority of three judges did not find sufficient reason to reject the request. Following further oral arguments the Court of Impeachment decided on the question of dismissing the case on 5 January 1994. In rejecting the request for dismissal the unanimous court stated as follows: (Translation) "The composition of the Court of Impeachment is set out in Section 59 of the Constitution. The provision that the court shall consist of an equal number of Supreme Court judges and judges elected by Parliament must be based on the assumption that the special cases which fall under the court's competence ought to be delivered by a group of judges which comprises not only persons trained in law but also persons with special knowledge of political matters. Having regard to the fact that charges are brought by Parliament it has been decided that members of Parliament cannot be elected to or act as members of the Court of Impeachment. The provision according to which members and the substitutes are elected for six years in a proportionate way secures that members are not elected in order to participate in a particular case and that the elections reflect the (political parties') number of seats in Parliament. It must be considered natural and legitimate that the persons, who are elected as members of the court, are associated with the political parties, but this does not mean, of course, that when deciding a case before the court they should be considered as ‘party men’ who will rely more or less on what their political basis might think about the case. Against this background there is no substantiation in counsel's submissions that the election by Parliament of half of the judges makes the Court of Impeachment ‘a delicate legal construction’ and ‘which in advance makes it difficult for the court to appear independent and impartial in this case.’ As regards the participating Supreme Court judges counsel for the defence has submitted, among other things, that the Court of Inquiry in the Tamil case was chaired by a Supreme Court judge who sat in the offices of the Supreme Court and that, therefore, the view was formed by the public at large that the Supreme Court as such was involved in the work of the Court of Inquiry. This view has no basis in fact, something [the applicant] must be aware of. Even assuming that this view might appear among the public this cannot constitute a reason for finding that there can be any legitimate doubts as to the impartiality of the participating Supreme Court judges. Nor does the fact that the Supreme Court, pursuant to Section 21, subsection 4, of the Administration of Justice Act, examined certain appeals against decisions of a procedural character taken by the Court of Inquiry, or the fact that the Court of Inquiry was chaired by a colleague to the participating Supreme Court judges, give any reasonable grounds for such doubts. The facts of the cases decided by the European Court of Human Rights, which have been referred to by counsel for the defence, are in the court's view quite different from those of the present case. Therefore, these decisions cannot support counsel's view either. It is noted in this respect that the requirement that a court shall appear to be impartial implies, according to the case-law of the Court of Human Rights, that there ought not to be any legitimate doubt as to the impartiality of the judges. The objections of a general character which counsel for the defence has raised against both the judges elected by Parliament and the participating Supreme Court judges cannot in the circumstances, either as such or as a whole, constitute the basis for any legitimate doubts as to whether the Court of Impeachment fulfils the requirements of impartiality which a court is obliged to comply with according to Article 6 § 1 of the Convention. The Court of Impeachment shall in its evaluation of whether [the applicant] is guilty of the charges brought against him only consider the evidence which is brought to the attention of the court. As a starting point it is accordingly of no importance for this case on what grounds Parliament decided to press charges. The submissions of counsel for the defence, however, give the court reason to make the following remarks about the Court of Inquiry and its competence. According to its assignment the Court of Inquiry, inter alia, had to consider whether ‘anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility.’ Thus, the Court of Inquiry made an evaluation of evidence as well as legal evaluations, but the Court of Inquiry had no mandate to decide - and did not decide - whether [the applicant] committed a punishable offence. Accordingly, it did not have, and did not exercise, a judicial function in the sense provided for in Section 61 of the Constitution. The assignment of the Court of Inquiry was accordingly not contrary to the prohibition in this provision against creating special courts with the power to exercise judicial functions. The reasons which have been decisive for Parliament's decision to press charges are of no importance for the Court of Impeachment's decisions in this case. What has been submitted by counsel for the defence about the correlation between the legislative, the executive and the judicial powers in connection with the setting-up of the Court of Inquiry, or the criticism of a general character which has been directed against special courts or courts of inquiry ... are not of any importance in respect of the question of dismissing the present impeachment case either. As regards the inquiry's importance as to the proceedings in this case, counsel for the defence has submitted that the possibility of a direct taking of evidence through the hearing of witnesses in the Court of Impeachment is lost or at least considerably reduced due to the fact that most of those persons who shall give evidence have done so previously in the Court of Inquiry. It is normal, however, and not contrary to the principle of direct evidence that a witness in a criminal case at an earlier stage has made statements to the police or in court. Like in other criminal cases, the Court of Impeachment must consider the weaknesses which may follow from this as an element in the evaluation of evidence. Counsel for the defence has, furthermore, submitted that the case has for many years been mentioned and commented upon in the media to quite an extraordinary extent and in a way which was solely detrimental to [the applicant] so that he now appears to be convicted in advance. Even if the description of the media coverage is more or less correct there is no legitimate reason to believe that the Court of Impeachment cannot disregard this and decide solely on the basis of the evidence before it. Accordingly, in respect of the objection related to other matters than the question of the impartiality of the court there is no legitimate reason either to doubt that [the applicant] will have a fair trial within the meaning of Article 6 of the Convention. Finally, it is considered that counsel's submissions that the case has not advanced within a reasonable time, cf. Article 6 § 1 of the Convention, cannot constitute the basis for dismissing the case. Consequently, the court finds no reason to accept the request for dismissal." Following the above decision the court resumed its examination of the case. On 16 March 1994 a dispute arose between the prosecution and the defence as to the use of the transcripts from the Court of Inquiry when hearing witnesses in order to confront these witnesses, if necessary, with their previous statements. On 22 March 1994 the court decided by 21 votes to 3 to allow the use of these transcripts. In its decision the majority stated as follows: (Translation) "The dispute concerns only whether the transcripts from the Court of Inquiry should be submitted and whether these transcripts may be used to confront (witnesses with their previous statements). The transcripts do not contain the Court of Inquiry's evaluations or conclusions but recall the statements [the applicant] and witnesses made before the Court of Inquiry as taken down by the judge and accepted by the witness. Permission to confront (witnesses with these statements) means only that [the applicant] and witnesses may be questioned about the differences should their statements during the trial deviate from their previous statements. According to normal practice in criminal cases both court transcripts containing statements from the accused and witnesses as well as police reports containing statements to the police are submitted. The submission is made pursuant to Section 834 of the Administration of Justice Act which corresponds to Section 29 of the Impeachment Act, and the submission is made despite the fact that these documents cannot as a main rule be used as independent evidence during the trial cf. Section 877, subsection 2 nos. 2 and 3 and subsection 3, of the Administration of Justice Act. Thus, it is in accordance with normal practice in criminal cases that the transcripts from the Court of Inquiry are submitted during the trial in the Court of Impeachment and Sections 50 and 55, second sentence, of the Impeachment Act cannot lead to any other result. Furthermore, it is noted that the Court of Inquiry transcripts are public. We do not find reason in these circumstances to accept the protests made by counsel for the defence. Sections 50 and 55, second sentence, of the Impeachment Act deal only with court transcripts concerning preliminary examinations arranged by the Court of Impeachment, but resemble otherwise mainly Section 877, subsection 2 nos. 2 and 3, of the Administration of Justice Act. The question how the Court of Inquiry transcripts may be used during the trial in the Court of Impeachment shall thus be decided according to the rules contained in Section 877 of the Administration of Justice Act and case-law related thereto, cf. the general reference to the Administration of Justice Act in Section 77 of the Impeachment Act. In accordance with normal practice in criminal cases both court transcripts and police reports may be used, where necessary, by the prosecution and the defence to confront (witnesses with their previous statements). Such a use is not contrary to the principle that the case shall be determined only on the basis of the evidence which has been submitted during the trial. This is so since these confrontations do not replace the accused's or the witness' statements during the trial, but aim at giving the court a better basis upon which to evaluate the evidence in question. We consider, therefore, that the Court of Inquiry transcripts may be used in accordance with this practice. There is no reason to believe that the submission of the transcripts or their use for confrontation purposes would be contrary to the principles contained in the Convention. ..." Three judges were against the use of the transcripts, stating as follows: (Translation) "We find that it would be more in conformity with the principle of direct evidence that the Court of Inquiry transcripts are not submitted and that they are not in any way used during the trial in the Court of Impeachment. Thereby it will be secured that the statements will be made regardless of what happened in the Court of Inquiry, and that the Court of Impeachment thus appears - in accordance with the principles found in the European Convention on Human Rights - to be wholly unbound of the work performed by the Court of Inquiry. Thus, we vote in favour of accepting the protest of counsel for the defence." The trial hereafter continued, written evidence was produced and the applicant and a total of 44 witnesses - several of whom appear to have been called by the defence - were heard. On 28 June 1994 the applicant suffered a stroke and the trial was adjourned. In order to evaluate the effect thereof several medical opinions as well as an opinion from the MedicoLegal Council (Retslægerådet) were obtained. On 8 November 1994 the trial was adjourned until further notice. Following further medical examinations the prosecution requested, on 3 April 1995, that the case be resumed whereas counsel for the defence requested a further adjournment due to the applicant's state of health. On 6 April 1995 the Court of Impeachment decided to continue the case. A majority of 13 judges stated as follows: (Translation) "... We find that [the applicant's] physical state of health does not prevent him from being present during continuing proceedings. According to the explanations of the doctors there is no scientific basis for believing that his continuing presence increases the risk of a deterioration of his health. Hereafter, it must be examined whether his mental state excludes that the case continue ... As set out in the Medico-Legal Council's statement of 21 March 1995 [the applicant's] intellect is still to be considered as being reduced considerably although a certain improvement has occurred as regards acknowledging the illness and the function of speech. The Medico-Legal Council has not, however, been willing to decide whether he is incapable of participating at a qualified level in a trial since the answer would depend on a legal evaluation of the medical information. According to practice in normal criminal cases a deterioration of mental functions does not exclude the conclusion of a criminal case and the imposition of a normal penalty on persons with an illness equivalent to that of [the applicant]. Being unaccountable for one's actions due to a mental illness which has occurred subsequent to the criminal act but before judgment is pronounced does not as such exclude that a case may be concluded and a penalty imposed, cf. Section 73 of the Penal Code. From the Impeachment Act or its travaux préparatoires ... it does not appear that the legislature wished to deviate from this practice in cases concerning Ministers' responsibilities whilst in office to the extent that such cases could not proceed unless the accused could participate at a 'qualified level'. Before [the applicant] was hospitalised on 28 June 1994 due to a stroke the major part of the taking of evidence had been concluded and he had been present during all court sessions. Thus, he had been heard during four court sessions and he had attended all hearings of witnesses and all documentation of written material. The remaining taking of evidence consists, following the request of the defence, of a re-examination of five witnesses and of [the applicant]. This part of the trial may be conducted in a way that the necessary considerations are taken to his state of health. In these circumstances we find that in the existing medical information, compared with the other available information about [the applicant's] situation following the stroke on 28 June 1994, there is no reason to believe that it will be impossible for him to take a stand as to the charges, to make rational statements as well as to follow the rest of the proceedings, and he cannot be considered as being incapable of examining all relevant witness statements together with counsel prior to making statements. Furthermore, there is no reason to believe that a continuation of the trial would entail a breach of the guarantees the Impeachment Act and the Administration of Justice Act contain in order to secure an accused's defence. ... Since what counsel for the defence has submitted concerning Article 6 of the Convention cannot lead to any other result we vote in favour of the prosecution's request to continue the case." A minority of 7 judges voted in favour of rejecting the request stating as follows: (Translation) "According to Section 77 of the Impeachment Act, cf. Section 846 of the Administration of Justice Act, an accused has a right to be present personally during the entire trial. The provision expresses that the accused has a right to defend himself, including putting questions to witnesses, express himself on the result of the taking of evidence, on legal questions and to have the last word in the case. These considerations are of particular importance in an impeachment case - cf., inter alia, the travaux préparatoires to Section 52 of the Impeachment Act. [The applicant's] counsel has maintained that a continuation of the trial requires his personal presence and since none of the circumstances mentioned in Section 847, subsection 2, ... are at hand, this case may not be pursued if the accused has a valid excuse for being absent, cf. Section 847, subsection 1, of the Administration of Justice Act. Under this falls - in addition to physical illness - in certain circumstances also mental illness in the form of a mental deterioration. ... Since 7 March 1994 a considerable number of court sessions have been held during which a considerable number of witnesses have been heard. During the continuing trial it remains to hear, once more, five central witnesses and - not least - [the applicant], and it must be considered to be of decisive importance to his possibilities of defending himself, that he is capable, during the reexaminations and during the oral pleadings, to understand and express himself about the charges and the substantial amount of evidence. According to the existing medical information [the applicant's] intellect is permanently impaired to a considerable extent, caused by vascular related dementia with the result that, in our opinion, he would be unable to participate in the proceedings at a qualified level, having regard to the special character and dimension of the case and, thus, the requirements to his intellectual level which concluding the case in a responsible manner demands. A continuing adjournment of the trial would not entail that [the applicant] is better placed than other accused, including accused who are covered by the rules in Sections 68, 69 and 73 of the Penal Code covering sanctions against mentally deviating offenders. ... Also these accused are protected by the guarantee of a fair trial which Sections 846 and 847 express. Therefore, we find that what the prosecution has submitted concerning the continuation of the case does not constitute a basis for setting aside the court's previous decision to adjourn the case until further notice, since [the applicant's] state of health still entails that he has a valid excuse for being absent. Thus, we vote in favour of rejecting the prosecution's request to continue the case." Following this decision counsel for the defence informed the court on 10 April 1995 that the request for re-hearing the five witnesses and the applicant was withdrawn since it was considered irresponsible in view of his state of health to confront the applicant with the witnesses or to hear him again. Furthermore counsel for the defence announced that most likely the applicant would not be present during the remaining sessions. The prosecutors declared that they would not request that the applicant be fetched by force. Counsel was accordingly now ready to commence the oral pleadings. The oral pleadings commenced on 15 May 1995 and ended on 7 June 1995 when the case was accepted for adjudication. The applicant did not attend these court sessions. Judgment was pronounced on 22 June 1995. By 15 votes to 5 the applicant was found guilty of having violated Section 5, subsection 1, of Act no. 117 of 15 April 1964 concerning Ministers’ responsibilities whilst in office. He was sentenced to four months' imprisonment which was suspended provided no further criminal act would be committed within a period of one year. The judgment contained thorough reasoning with regard to the applicant’s guilt as well as his sentence. The costs of the proceedings were borne by the State. The judgment of the Court of Impeachment is final. b. Relevant domestic law and practice Provisions relating to the Court of Inquiry (Translation) Section 61 of the Constitution “... Special courts with powers to pass judgments can never be instituted.” Section 21 of the Administration of Justice Act “The Government retain their right to institute special courts save as regards special courts with powers to pass judgments...” Section 21a of the Administration of Justice Act “(1) The Minister of Justice may request one or several judges to conduct an investigation of specific matters. The Minister of Justice may decide that experts participate in the investigation. (2) The Court of Inquiry has no powers to pass judgments. (3) The investigation is conducted according to the rules of [the Administration of Justice Act]. However, the Minister of Justice may in special cases decide that the investigation shall be conducted in camera... (4) The decisions of the Court of Inquiry may be appealed against directly to the Supreme Court. (5) The investigation is concluded by a report. The report is published by the Minister of Justice, unless quite exceptional reasons speak against publication." The competence and composition of the Court of Impeachment (Translation) Section 16 of the Constitution “Ministers can be prosecuted for the discharge of their office by the King or by Parliament. The Court of Impeachment shall try the cases instituted against the ministers for the discharge of their office.” Section 59 of the Constitution, which was given its present wording by the Constitution of 5 June 1953, reads as follows: (Translation) “(1) The Court of Impeachment shall consist of up to fifteen of the eldest - according to seniority of office - ordinary members of the highest court of justice of the Kingdom and an equal number of members appointed for six years by Parliament according to proportional representation. One or more substitutes shall be appointed for each appointed member. No member of Parliament shall be appointed or act as a member of the Court of Impeachment. Where in a particular instance some of the members of the highest court of justice of the Kingdom are prevented from taking part in the trial and adjudication of a case, an equal number of the members of the Court of Impeachment last appointed by Parliament shall retire from their seats. (2) The Court of Impeachment shall elect a President from among its members. (3) Where a case has been brought before the Court of Impeachment, the members appointed by Parliament shall retain their seats in the Court of Impeachment for the duration of such case, even if the term for which they were appointed has expired. (4) Detailed rules for the Court of Impeachment shall be provided by statute.” Detailed rules for the Court of Impeachment are laid down by Act No. 100 from 1954, cf. Consolidation Act No. 641 of 17 September 1986 - the Court of Impeachment Act. Relevant provisions of the Act read as follows: (Translation) Section 1, subsection 1 “The Court of Impeachment shall try the cases instituted by the King or Parliament against the ministers.” Section 2 “(1) The Court of Impeachment shall consist of the ordinary members of the Supreme Court and an equal number of members appointed for six years by Parliament according to proportional representation. No member of Parliament shall be appointed or act as a member of the Court of Impeachment. (2) For each person appointed, two substitutes shall immediately be appointed according to proportional representation. (3) Where any of the judges appointed by Parliament retires from the Court of Impeachment before expiry of the term of the appointment, the substitute first appointed for him shall take his seat in the Court of Impeachment for the remaining part of term. Where the first appointed substitute is prevented from doing so or where he retires from the Court of Impeachment as well, the second substitute takes his place. (4) No supplementary appointments of substitutes shall be held. (5) Where a case has been brought before the Court of Impeachment, the members appointed by Parliament shall retain their seats in the court for the duration of such case, even if the term for which they were appointed has expired.” Section 5 “(1) Where in a particular instance some of the judges of the Supreme Court are prevented from taking part in the trial and adjudication of the case, an equal number of the members last elected by Parliament according to proportional representation shall retire from their seats. (2) Where one of the appointed judges is prevented from taking part in the trial of the individual case, his seat in the court shall be taken by the substitute first appointed for him; where he is also prevented from taking part in the case, the second substitute shall take his seat. Where he is also prevented from taking part in the case, the most junior Supreme Court judge in office shall retire from his seat.” Section 6 “In no case can the bench of the Court of Impeachment comprise less than 18 judges.” Section 8 “Each of the judges of the Court of Impeachment shall make a written solemn assurance on his honour and conscience that he will attentively follow the proceedings in the court and pass judgment as he finds it to be right and true according to the law and the evidence of the case.” On 28 May 1990 Parliament appointed fifteen lay judges and thirty substitutes for the period from 18 May 1990 until 17 May 1996 (cf. Parliamentary Proceedings, Yearbook and Index, 1990 - 1991, p. 172). Seven of the lay judges had also been appointed as lay judges or substitutes in the preceding period from 18 May 1984 until 17 May 1990. Provisions on the accused’s right and duty to be present Relevant provisions of the Court of Impeachment Act (in translation): Section 33 “Where the defendant fails to appear without lawful cause of absence from the hearing mentioned in Section 29 or any subsequent hearing, the Court of Impeachment may take whatever steps necessary to secure his presence, including, if necessary, to have him fetched by force.” Section 42 “Where the defendant does not appear and cannot immediately be brought before the court, the court decides, after the prosecutor and counsel for the defence have spoken, whether the case is nevertheless to be advanced, or whether it should be adjourned.” Section 77 “Unless otherwise stipulated by this Act, the Administration of justice Act applies to the procedure before the Court of Impeachment.” Relevant provisions of the Administration of justice Act reads as follows (in translation): Section 846 “Unless an exception is stipulated by law, the defendant must be present in person during the entire trial as long as he has access to making a statement; however, after the examination of the defendant is concluded, the presiding judge may permit him to excuse himself.” Section 847 “(1) Where the defendant fails to appear at the beginning of or during the trial, and where he cannot immediately be brought before the court, the case will be adjourned. Where the defendant fails to appear despite lawful summons and without stating a lawful cause of absence, the court may decide, however, that witnesses and experts who have appeared must be examined, if this is found compatible with the interests of the defendant and provided an adjournment of the examination will be of substantial inconvenience to the persons who have appeared or involve considerable postponement of the case. However, examinations pursuant to the second sentence can only be carried through if the defendant’s counsel has appeared and consents to the examination. (2) A trial can be expedited in the defendant’s absence if the court finds that his presence is not necessary: (i) when he has escaped after service of the indictment on him, (ii) when, after having appeared when the case was opened, he has left the court without leave of the court, (iii) when it is deemed (a) that the most severe punishment is a matter of imprisonment for six months, and that the defendant has consented to the expedition of the case, or (b) that the trial will undoubtedly lead to his acquittal.” | 0 |
train | 001-90163 | ENG | GBR | CHAMBER | 2,008 | CASE OF SHIREBY v. THE UNITED KINGDOM | 4 | Violation of Article 14+P1-1 - Prohibition of discrimination (Article 1 of Protocol No. 1 - Protection of property) | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 4. The applicant was born in 1955 and lives in Sheffield. 5. His wife died on 3 April 2001. His claim for widows’ benefits was made in June 2001. On 22 June 2001 the applicant was informed that he was entitled to Widowed Parent’s Allowance (“WPA”). However, on 14 January 2002 he was informed that he was not entitled to a Bereavement Payment on the ground that the benefit did not exist at the time of the applicant’s wife’s death. 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. 6. The relevant domestic law and practice are described in the Court’s judgment in the case of Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV. | 1 |
train | 001-93012 | ENG | MDA | CHAMBER | 2,009 | CASE OF GURGUROV v. MOLDOVA | 4 | Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 13 - Right to an effective remedy | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1978 and lives in Chişinău. 6. The applicant was arrested and placed in detention on 25 October 2005 on suspicion of having stolen some mobile telephones. 7. According to the applicant, immediately after his arrest the police started to ill-treat him almost every day during lunch breaks and in the evenings in order to try to force him to confess to numerous other offences which he had not committed. Although he was being detained on suspicion of stealing mobile telephones, he was interrogated by police officers from the homicide squad who tried to make him admit to having committed a murder. Since he refused to make any confession and denied the accusations, he was taken on 31 October 2005 to an office in the General Police Headquarters, where five police officers tortured him for several hours. His hands and legs were tied together behind his back and he was suspended on a metal bar. The police officers put a gas mask on his head and periodically closed the air tube. Two wires were placed under the gas mask and attached to his ears and he was given electric shocks. He was beaten on his head with two-litre plastic bottles filled with water and was hit on his ears. Periodically, the applicant lost consciousness. After reviving him the police officers continued the acts of torture. They attached wires to his hips and administered electric shocks to him and beat him. He was later taken off the metal bar and laid on the floor. A weight of thirty-two kilograms was placed on his back and he was left lying on the ground for approximately ten minutes. The applicant’s hands and feet were subsequently untied; he felt severe pain in the region of his lower back and was unable to move his feet. He was made to sit on a chair; however, he fell down. He was put back on the chair by two police officers, who kept telling him something, but he could not hear them. He was then taken to his cell. His cellmates put him on a bed, where he was left lying for two days. The allegations of beatings are disputed by the Government. 8. Since the applicant could not stand up, he was visited by two doctors on 3 November 2005. They were accompanied by one of the police officers who had allegedly tortured him. The police officer told the doctors that the applicant had fallen from his bed. The doctors diagnosed the applicant with hysteria and recommended that he be seen by a neurologist. The applicant was then taken to another room, where he was allegedly told by a police officer not to tell anybody about the acts of torture. He was allegedly threatened with death or imprisonment for twenty-five years. A police officer wrote a report on behalf of the applicant stating that nobody had beaten him up and that he had fallen from his bed and had caught a cold; he allegedly forced the applicant to sign the report. 9. On 4 November 2005 the applicant’s father employed a lawyer, who immediately lodged a complaint with the prosecutor’s office alleging illtreatment. 10. On an unspecified date the applicant was allegedly taken again to an office at the police station. Since he could not walk, he was lifted by two police officers. The police officers who had tortured him were in the office along with three other police officers. He was made to sit on a chair and was kicked and punched. The police officers allegedly requested that he withdraw the complaint about ill-treatment, and threatened him with death. 11. The ill-treatment was allegedly repeated on several occasions. According to the applicant, he was beaten with bottles filled with water, punched, kicked and told to confess and to withdraw the complaint about ill-treatment. 12. On 11 November 2005 the applicant was examined by a forensic doctor who later wrote the following in his report (no. 5908): “Current situation: bruise on the left arm, lateral, middle third, oval shape, yellow/brown colour, size 6 x 9 cm. In the region of both knees and below the right patella, numerous abrasions covered by dark brown scabs, partly detached from the skin at their edges, ranging in size from 0.6 x 0.5 cm to 3.5 x 2.5 cm in one place ... Conclusions: the neurologist’s findings have not reached us as at 24 November 2005, nor have the X-rays of the lumbar section of the spinal column, to which examination certificate no. 92894 refers .... It is therefore impossible to determine the reasons why the victim is unable to move unassisted. The abrasions visible in the patellar region of the knee joints and the bruises visible on the left arm could have been caused by a blunt instrument and are not less than six or seven days old at the time of examination .... It is impossible to establish with greater accuracy from how long ago the bruises and abrasions date because of the delay in presentation for medical examination. Hospitalisation of the victim in a specialised medical establishment would enable a more accurate diagnosis to be made and the consequences for his state of health to be assessed.” 13. On 18 November 2005, following complaints by the applicant’s lawyer, Amnesty International organised action in support of the applicant by publishing on their Internet site a description of the applicant’s case and an appeal to people from all over the world to write to the Prosecutor General of Moldova, the Moldovan Ministry of Internal Affairs and the Moldovan Embassy in their country asking them to take action such as conducting a medical examination of the applicant, carrying out an effective investigation into his complaints of torture and allowing the applicant to meet his lawyer in conditions of confidentiality. 14. On 23 November 2005 the United Nations High Commissioner for Human Rights wrote to the Moldovan Minister of Foreign Affairs expressing concern about the situation of S. Gurgurov and about the refusal of the authorities to transfer him to a hospital as recommended by doctors. He requested information. 15. On an unspecified date between 21 and 25 November 2005 the applicant was visited by a delegation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which described his case in its report (see paragraph 54 below). It appears that in their reply to the CPT’s report the Government did not comment on the latter’s findings. 16. On 1 December 2005 the Moldovan Ombudsman wrote to the Prosecutor General informing him about the allegations of torture against the applicant and the fact that no medical assistance had been provided to him by that date. On 11 January 2006 the Prosecutor General’s Office informed the Ombudsman that the applicant’s complaint appeared to be illfounded. 17. On 1 December 2005 during questioning by a prosecutor one of the applicant’s cellmates stated that the applicant could not walk and that he had to be helped by his cellmates to go to the toilet. All the prison guards stated that the applicant could walk perfectly well and that they had not noted any signs of beatings on him. Only one guard stated that the applicant was limping. Two of the applicant’s cellmates stated that he was faking his condition. Another stated that the applicant could not stand or even sit and that he had to be helped by his cellmates to go to the toilet. 18. On 9 December 2005 the Chişinău Court of Appeal ordered the applicant’s release from detention. 19. On 10 December 2005 the applicant was hospitalised and underwent the following medical examinations: radiography of the head and back, echoencephalography, electroencephalography, computerised tomography, ultrasound of the internal organs and functional computerised investigation. The diagnosis following the investigations was the following: consolidated fracture of the cranial bones (skull broken, without pieces relocated); a 6 x 16 mm focal cerebral contusion in the left temporal cortical area and dilatation of the ventricular system (a contusion with augmented volume of the brain ventricular system); a post-craniocerebral trauma state; cerebral contusion of the left hemisphere (temporal area); medullar contusion L1-L2 with flask tetraparesis, especially on the inferior limbs (trauma of the back, 1st and 2nd lumbar spines, damaging the spinal cord and causing partial paralysis, especially of the legs). 20. On 20 December 2005 the prosecutor in charge of the case ordered examination of the applicant by a panel of forensic doctors and directed the panel to give answers to the following questions: “1. Did Mr Gurgurov suffer from diseases of the nervous system before his arrest? 2. Is it possible that the diseases from which he suffered before his arrest were aggravated during detention? 3. Did Mr Gurgurov have any injuries at the moment of his arrest which could have led to the worsening of his present state of health? 4. Is it possible that the applicant’s problems with his central nervous system and his capacity to move were caused by the administering of electric shocks? If so, what are the after-effects of electric shocks and how long do they last?” 21. On 16 January 2006 a panel of three forensic doctors examined the applicant’s medical documents and gave the following answers: “1 and 2. The applicant’s medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest. 3. At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which are considered to be light injuries... 4. During further medical investigations of the applicant he was found to be suffering from paralysis of the feet and left arm. The paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable.” The forensic panel added that in reaching its conclusions it had not paid attention to the earlier findings concerning the fracture of the cranial bones and the cerebral contusion (see paragraph 19 above) because it had not been presented with the original radiographic images. The panel also added that it could not be ruled out that the applicant was simulating his condition, and that only a psychiatric investigation could exclude that possibility. 22. On 18 January 2006 the prosecutor’s office dismissed the applicant’s complaint concerning his allegations of ill-treatment. It relied on the statements of one of his cellmates who had contended that the applicant was faking his condition, the statements of police officers who denied having illtreated the applicant, the medical report of 11 November 2005 and the conclusion of the medical report of 16 January 2006 to the effect that: “the paralysis is not a consequence of a craniocerebral or spinal trauma or of the administering of electric shocks and its gravity is not assessable...” 23. Starting on 15 February 2006 the applicant underwent a medical check-up at the “Memoria” Rehabilitation Centre for Torture Victims, a non-governmental organisation financed by the European Union and a member of the General Assembly of the International Rehabilitation Council for Torture Victims (IRCT). He appears to have been subjected there to detailed medical tests and examinations by various medical specialists. In a document entitled “Extract from the medical records”, dated 26 February 2006, issued by the Centre, it was stated, inter alia, that the applicant was suffering the after-effects of cranial trauma (cerebral contusion of the left hemisphere predominant in the temporal area), organic cerebral post-traumatic syndrome, post-traumatic bilateral adhesive otitis, post-traumatic cochlear neuritis, bilateral neuro-sensorial deafness, and medullar lumbar contusion L1-L2 with flask tetraparesis of the inferior limbs. A number of psychological conditions characteristic of victims of torture were also found. The Centre also decided to help the applicant to fund surgery in order to “regain his hearing at least partially”. 24. On 26 June 2006 the Prosecutor General of the Republic of Moldova, Valeriu Balaban, wrote a letter to the Moldovan Bar Association in which he stated, inter alia, the following: “Lately, the Prosecutor General’s Office has been confronted with the phenomenon whereby some Moldovan lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases. These organisations are used as an instrument for serving personal interests and for enabling suspected persons to avoid criminal responsibility. Examples of such incidents are the case of Gurgurov, triggered by the lawyer Ana Ursachi, and the case of Colibaba, triggered by the lawyer Roman Zadoinov. The international media coverage of these cases prompted action by the representatives of Amnesty International with a view to safeguarding the rights of the above lawyers’ clients. After having examined with sufficient thoroughness the complaints alleging torture and abuse on the part of the police ... the prosecutor’s office dismissed the complaints on the ground of lack of proof that offences had been committed. ... ... In such circumstances the irresponsible attitude and behaviour of the lawyers Ana Ursachi and Roman Zadoinov give rise to concern. They knew that no acts of torture had been committed against their clients. However, they complained to international organisations without first attempting to use the national mechanism for solving such problems. They presented the facts erroneously in order to win their cases... Such practices by lawyers will be investigated by the Prosecutor General’s Office in order to determine whether they have committed the offence provided for in Article 335 § 2 of the Criminal Code, by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country. Accordingly, the Bar Association is called upon to take account of the facts described above, to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of the Republic of Moldova.” The above letter generated a heated debate in the media. On 30 June 2006 the Moldovan Bar Association issued an official statement in which it qualified the Prosecutor General’s letter as an attempt to intimidate lawyers. In an interview to the newspaper Ziarul de Garda the President of the Bar Association declared, inter alia, that it was an attempt to intimidate lawyers so that they would no longer complain to the Court. 25. It appears that the prosecutor’s office did not inform the applicant about its decision of 18 January 2006 until late June 2006. On 17 July 2006 the applicant’s lawyer appealed against the decision of 18 January 2006 and argued, inter alia, that the prosecutor’s office had not examined the complaint properly. He argued that the prosecutor’s office had not paid attention to the fact that on 25 October 2005, on the day of his arrest, the applicant had been in good health. The prosecutor’s office had also failed to question persons who had seen the applicant on 3 November 2005, when he was brought before a court, including the judge, prosecutor and persons present in the court. The prosecutor had not questioned the doctors who had examined the applicant, or asked the applicant to identify the persons who had allegedly tortured him and the offices where the alleged torture had taken place. The prosecutor had failed to investigate why police officers from the homicide division were questioning the applicant, who had been charged with stealing mobile telephones. 26. On 13 February 2007 the appeal was dismissed by the Riscani District Court on the ground that the applicant’s lawyer had failed to observe the ten-day time-limit for challenging the prosecutor’s decision. The applicant lodged an appeal on points of law which was upheld by the Supreme Court of Justice on 3 July 2007. 27. In the meantime, in June 2007, the applicant was officially recognised as having a second-degree disability. In the medical documents issued by the Ministry of Social Welfare and Family Matters it was recommended that he should not work. The reasons given for declaring him disabled were “the after-effects of severe head trauma dating from October 2005, injury to the spine and post-traumatic deafness in both ears”. 28. It appears that on an unspecified date in August or September 2007 the applicant broke his hip as a result of falling down in the stairwell, and spent two months in hospital. 29. On 15 October 2007 the Chişinău prosecutor’s office again dismissed the applicant’s complaint about his alleged ill-treatment. The prosecutor based his decision on essentially the same reasons as the decision of 18 January 2006. The applicant’s lawyer appealed against this decision. 30. On 1 November 2007 a higher-ranking prosecutor quashed the decision of 15 October 2007 and ordered the re-examination of the case. He instructed the lower-ranking prosecutor to examine the medical documents, to find out whether the applicant had been suffering before his arrest from any conditions which had been discovered after he was taken into detention and to question the doctors who had examined him. 31. On 11 December 2007 a prosecutor requested the Ministry of Health to establish a medical panel to verify the applicant’s condition in view of the contradictions in the existing medical reports, namely the report of 16 January 2006 and the decision recognising him as having a seconddegree disability. 32. On 9 January 2008 a junior health minister wrote to the prosecutor’s office informing it that a panel had been set up which had intended to conduct a medical examination of the applicant on 27 December 2007. However, the applicant had failed to appear before the panel. 33. On 12 March 2008 the same junior minister wrote to the prosecutor’s office informing it that the applicant had not shown up for a medical examination scheduled for the same date. 34. In a letter of 14 April 2008 addressed to the junior health minister, the chief neurologist wrote that the applicant had been seen by him at the beginning of April and that the applicant was in a wheelchair and had undergone hip-replacement surgery. The applicant had a severe weakness in his limbs on the right side. The doctor concluded that the applicant was suffering from severe movement dysfunction on the right side and a less severe dysfunction of the movement of the left foot. According to the doctor it was very difficult to tell the cause of the applicant’s condition, which could either be the result of a trauma or have been simulated. 35. On 6 May 2008 the prosecutor’s office reiterated its request to the Ministry of Health for a repeat medical examination of the applicant by a panel of doctors. The prosecutor’s office requested that the medical panel answer the following questions: “1. Did Mr Gurgurov suffer from any diseases of the central nervous system before [his arrest on 25 October 2005]? 2. Is it possible that the diseases from which he suffered before his arrest were aggravated during detention? 3. Did Mr Gurgurov have any injuries at the time of his arrest which could have led to the worsening of his present state of health? 4. Is it possible that Mr Gurgurov’s health problems were caused by self-mutilation? 5. Does Mr Gurgurov have traces of a head trauma and a spinal trauma and how are they manifested? 6. Is Mr Gurgurov suffering from the after-effects of electric shocks? 7. What are the reasons for recognising him as suffering from a second-degree disability and what are the rules according to which this status was granted to him? 8. How old are the applicant’s injuries? 9. Is there a causal link between Mr Gurgurov’s state and his injury of September 2007? 10. Did the injury of September 2007 influence Mr Gurgurov’s state of health?” 36. On 15 May 2008 the applicant’s lawyer complained to the Prosecutor General’s Office that the prosecutor in charge of the case was prolonging its examination unnecessarily. 37. On 6 June 2008 a panel of three forensic doctors, two of whom were members of the panel which issued the report of 16 January 2006, examined the applicant’s medical history and gave the following answers: “1 and 2. The applicant’s medical history does not contain anything to suggest that he suffered from any diseases of the nervous system before his arrest. 3. At the time of his medical examination on 11 November 2005 he had bruises on his left arm and scratches on his knee, which could not have any influence on the state of his health. 4. The applicant’s injuries are not characteristic of self-mutilation; however, it cannot be ruled out that they were inflicted by himself. 5. No clear clinical symptoms of head or spinal trauma can be found on Mr Gurgurov. 6. The panel does not have in its possession any information which would allow it to conclude that the applicant was subjected to electric shocks. 7. Normally, invalidity is granted after the examination of the individual’s medical history and medical examination by specialised doctors... 8. The age of the applicant’s injuries was correctly established in the medical report of 11 November 2005. His neurological problems were established in the report of 16 January 2006. It is impossible to establish more precisely their age. 9 and 10. There is no causal link between the injuries and his current state. His injury of September 2007 is not at the origin of his severe movement dysfunction.” 38. On 11 June 2008 the prosecutor’s office issued a decision dismissing again the applicant’s criminal complaint about his alleged ill-treatment. The decision relied, inter alia, on the medical report of 6 June 2008. The applicant challenged the decision before an investigating judge. However, the appeal was dismissed and the applicant was directed to lodge his appeal with the higher-ranking prosecutor, which he did. 39. On 13 February 2009 the Prosecutor General’s Office dismissed the applicant’s appeal against the prosecutor office’s decision of 11 June 2008. It concluded that the applicant was simulating his condition. In reaching this conclusion it relied on testimonies from several of the applicant’s former cellmates and on the medical report of 6 June 2008. 40. The relevant provisions of the Criminal Code read as follows: (1) The act of forcing someone to confess to a criminal offence or to make statements during questioning, by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by imprisonment of up to three years... (2) The same act accompanied by: (a) violence; (b) cruel, inhuman or degrading treatment; ... Shall be punishable by imprisonment of three to eight years... (1) Intentionally causing intense physical or mental pain or suffering, especially with a view to obtaining information or testimonies ... shall be punishable by imprisonment of two to five years. ... (3) The actions referred to in paragraph 1 ..., carried out: (c) by two or more persons; (e) with the use of special instruments of torture or other objects adapted for that purpose; (f) by an official, shall be punishable by imprisonment of five to ten years... 41. The relevant findings of the CPT during its visit to Moldova between 21 and 25 November 2005 read as follows (unofficial translation): “46. At the remand centre (EDP) of the Department for the fight against organised crime, one detainee interviewed by the delegation alleged that, on the evening of 25 October 2005, at the Riscani district police station, he had been punched and kicked in a third-floor office, in order to make him confess to various offences. On the next day, he had been transferred to the Municipal Police Headquarters EDP, from where he had, during the period for which he was held (until 2 November according to the relevant registers), been transferred on several occasions, sometimes to the Riscani police station and sometimes to the Municipal Police Headquarters (transfers confirmed by the examination of the relevant registers). He alleged that he had been ill-treated on these premises. In particular, he alleged that, on 31 October, in a second-floor office at the Municipal Police Headquarters, he was subjected to several forms of ill-treatment: an attempt to suffocate him by placing a gas mask over his face; suspension in what is known as the swallow position; slaps on his ears; electric shocks administered via electrodes placed behind his ears and on his hips; placement of a heavy dumbbell weight on his back. As a consequence of the ill-treatment inflicted, he had briefly lost consciousness, and, furthermore, had been unable to move for the next four days. Furthermore, according to the detainee concerned, he had not been given a form informing him about his rights until the end of the morning of 26 October, which was when he said that he had met an officially assigned defence counsel. The first judge before whom he had been brought on the third day of his deprivation of liberty was said not to have reacted to his allegations of ill-treatment. On 3 November he had been brought before a judge who had served a compulsory residence order on him. In spite of this decision, he had been transferred to the EDP of the Department for the fight against organised crime on that same day, on the basis of an arrest warrant issued in 2001, after undergoing a medical examination at a hospital casualty unit. He said that he had also been beaten during this new detention in an office of this Department, and had been threatened to make him stop lodging complaints. 47. The medical screening carried out on his admission to the EDP at the municipal police headquarters referred only to an injury sustained prior to his arrest. A medical examination of this detainee carried out in hospital by a neurologist on 3 November recorded signs of traumatism in the region of his left arm and both knees, and put forward the diagnosis of hysteria, with a recommendation that further paraclinical examinations be carried out. On 4 November 2005, his lawyer had asked the Prosecutor General for a forensic medical examination. However, the examination took place late, i.e. on 11 November 2005 [forensic report No. 5908, see paragraph 12 above] and it is stressed that, due to this fact, it is impossible to establish precisely how old the lesions observed were, as well as that it is necessary to hospitalise the detainee for assessment and for a precise diagnosis. 48. The examination of this detainee by the delegation’s doctors revealed two small bilateral tympanic tears consistent with his allegations of slaps on the ears, as well as atypical motor deficiency disorders, highly suggestive of a major psychological trauma. In view of this person’s state of health, the delegation asked for action to be taken to ensure that he received the medical assistance that his condition necessitated, including psychological care. The CPT would like to receive this information within one month. Moreover, the CPT reiterates its delegation’s request to be informed of follow-up action taken regarding this detainee’s complaint and of the results of any investigation carried out in this respect. 49. Without prejudice to the follow-up given to this detainee’s complaint and to the conclusions of the investigations carried out, the CPT wishes to emphasise that this case is indicative of unacceptable inertia on the part of the agencies concerned in the face of allegations of severe ill-treatment/torture, and of the flagrant failure by the authorities to implement the main recommendations of the Committee intended to prevent ill-treatment (set out in paragraphs 21 and 23 of its report on the 2004 visit) and in terms of providing the fundamental safeguards (set out in paragraphs 30, 32 and 34). It is crucial for these recommendations to be implemented immediately, and there is no convincing argument which could justify any delay whatsoever in taking action. Only their implementation can give clear indication as to the willingness of the Moldovan authorities to put an end to the phenomenon of ill-treatment. The CPT therefore calls upon the Moldovan authorities to take decisive steps, at every appropriate level, to ensure that all the recommendations relating to the prevention of ill-treatment by the police and to compliance with fundamental safeguards made by the Committee in its report on the 2004 visit are implemented without further delay...” | 1 |
train | 001-115498 | ENG | FRA | GRANDCHAMBER | 2,012 | CASE OF DE SOUZA RIBEIRO v. FRANCE | 1 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;Prescribed by law;Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life;Expulsion) (Brazil);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Erik Møse;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Lech Garlicki;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva | 10. The applicant was born on 14 June 1988 and lives in Remire Montjoly in French Guiana, a French overseas “département and region” in South America. 11. He arrived in French Guiana from Brazil in 1992, at the age of four, and attended school there for a year before returning to Brazil in 1994. 12. In 1995, in possession of a tourist visa, the applicant returned to Cayenne in French Guiana, where he joined his parents, both of whom had permanent residence cards, and his two sisters and two brothers, one of whom had French nationality while the other three, having been born on French soil, were entitled to apply for it. His maternal grandparents remained in Brazil. 13. The applicant attended primary then secondary school in French Guiana from 1996 to 2004. As he had no proper residence papers and could not apply for them until he came of age (see paragraph 26 below), he had to leave school in 2004, at the age of 16. 14. On 25 May 2005 the applicant was arrested on suspicion of a drug offence. By an order of 17 May 2006, the Cayenne Youth Court placed him under court supervision and barred him from leaving French Guiana. 15. In a judgment of 25 October 2006, the Cayenne Youth Court sentenced the applicant to two months’ imprisonment, suspended, and two years’ probation, together with the obligation to report to the authorities and to undergo training, for unauthorised possession of cocaine while under 18 years of age. In execution of that judgment, the applicant began a vocational training course that was scheduled to last from 13 October 2006 to 30 March 2007, as part of the socio-professional guidance and integration scheme in French Guiana. 16. On 25 January 2007 the applicant and his mother were stopped at a road check. As the applicant was unable to show proof that his presence on French soil was legal, he was arrested. 17. The same day, at 10 a.m., an administrative removal order (arrêté préfectoral de reconduite à la frontière) and an administrative detention order were issued against him. The removal order stated: “– Having regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and in particular Articles 3 and 8, ... – Whereas, according to report no. 56 of 25/01/2007, drawn up by the DDPAF [Département Border Police] of French Guiana, the above-mentioned person: – is unable to prove that he entered French territory legally; – has remained in French territory illegally; – Whereas, in the circumstances of the present case, an administrative removal order must be issued against the alien concerned, – Whereas that person has been informed of his right to submit observations in writing, – Whereas, in the circumstances of the present case, there is no disproportionate interference with the person’s right to family life, – Whereas the alien does not allege that he would be exposed to punishment or treatment contrary to the European Convention on Human Rights in the event of his return to his country of origin (or the country of habitual residence to which he is effectively entitled to return), ... [The applicant’s] removal is hereby ordered.” 18. On 26 January 2007, at 3.11 p.m., the applicant sent two faxes to the Cayenne Administrative Court. One contained an application for judicial review of the removal order, calling for its cancellation and the issue of a residence permit. In support of his application the applicant alleged in particular that the order was in breach of Article L. 511-4 (2) of the Code regulating the entry and residence of aliens and asylum-seekers (Code de l’entrée et du séjour des étrangers et du droit d’asile – CESEDA) (see paragraph 26 below), and also, relying on Article 8 of the Convention, that the authorities had manifestly misjudged the consequences of his removal for his personal and family life. He explained that he had entered French territory before the age of 13, that he had lived there on a habitual basis ever since, that both his parents had permanent residence cards, and that one of his brothers had acquired French citizenship and his other brother and sisters had been born on French soil. He further submitted that he was under an obligation to abide, for two years, by the conditions of his probation, failing which he would go to prison, and that, as required by the probation order, he had already begun a course in mechanics. The other fax contained an urgent application for the court to suspend the enforcement of the removal order in view of the serious doubts about its lawfulness. In support of his application the applicant again relied on Article 8 of the Convention and repeated the arguments mentioned in the application for judicial review, which showed that most of his private and family life had been spent in French Guiana. 19. On 26 January 2007, at 4 p.m., the applicant was removed to Belem in Brazil. 20. On the same day, the urgent-applications judge at the Cayenne Administrative Court declared the urgent application for a suspension of the applicant’s removal devoid of purpose as he had already been deported. The applicant immediately applied for legal aid to appeal to the Conseil d’Etat against that ruling. By a decision of 6 March 2007, the President of the Legal Aid Office of the Conseil d’Etat rejected his application for “lack of serious grounds likely to convince the court”. 21. On 6 February 2007 the applicant lodged an urgent application for protection of a fundamental freedom (requête en référé liberté) with the Cayenne Administrative Court. Referring to the Convention and to the Court’s case-law, he complained of a serious and clearly unlawful interference by the authorities with his right to lead a normal family life and his right to an effective remedy. He requested that the prefect of French Guiana be instructed to organise his return there within twenty-four hours of notification of the order, to enable him to defend himself effectively regarding the alleged violations of the Convention, and to be reunited with his family while the prefecture examined his right to stay in French Guiana. By an order of 7 February 2007, the urgent-applications judge at the Cayenne Administrative Court rejected the application, considering in essence that the measure the applicant sought would to all intents and purposes amount to a permanent measure, whereas the urgent-applications judge could only order interim measures. 22. In August 2007 the applicant returned to French Guiana illegally. 23. On 4 October 2007 the Cayenne Administrative Court held a hearing in which it examined the applicant’s earlier application for judicial review (see paragraph 18 above). In a judgment delivered on 18 October 2007, it set aside the removal order. It noted in particular that the applicant claimed that he had returned to France in 1995, at the age of seven, and had resided there on a habitual basis thereafter, and that in support of his claims he had produced school certificates the authenticity of which the prefect did not dispute. It found it established that the applicant’s mother had a permanent residence card and that his father also lived in French Guiana. The court further noted that, according to a court supervision order produced by the applicant, he had been arrested in French Guiana in 2005 and prohibited from leaving the territory. It found that the applicant fulfilled the conditions provided for in Article L. 511-4 (2) of the CESEDA, which meant that the removal order should not have been issued against him. In response to the applicant’s request to instruct the prefect of French Guiana to issue him with a residence permit within a month of the judgment being served, the court considered that its decision did not necessarily entail the issue of a temporary residence permit as it concerned only the setting aside of the removal order. The court did, however, set a three-month time-limit within which the prefect was to resolve the question of the applicant’s residence status. 24. On 16 June 2009 the prefecture of French Guiana issued the applicant with a “visitor’s” residence permit, which was valid for one year but did not allow him to work. An investigation revealed that the authorities had issued the “visitor’s” permit by mistake. On 23 September 2009 the applicant was issued with a new residence permit for “private and family life”. It was backdated to June 2009, valid for one year and allowed him to work. That residence permit was not renewed upon its expiry on 15 June 2010 because of a problem with the documents required for its renewal. On 14 October 2010 the applicant was issued with a new residence permit valid from 16 June 2010 to 15 June 2011, subsequently renewed until 15 June 2012. The applicant now holds a renewable residence permit for “private and family life”. 26. The relevant provisions of the CESEDA as in force at the material time are as follows: “Unless their presence represents a threat to public order, a temporary residence permit for ‘private and family life’ shall automatically be issued: (1) to an alien, in the year following his eighteenth birthday, ... where at least one of the parents has a temporary or a full residence permit ...; (2) to an alien, in the year following his eighteenth birthday, ... where he can prove by any means that he has been habitually resident in France, with at least one of his legitimate, natural or adoptive parents, since the age of 13, filiation having been established in the conditions laid down in Article L. 314-11; the condition provided for in Article L. 311-7 is not required; ...” “The following persons shall not be required to leave French territory, or made the subject of a removal order, under the provisions of this chapter: ...; (2) Aliens who can prove by any means that they have been habitually resident in France since at least the age of 13; ...” 27. These provisions are applicable throughout French territory, including France’s overseas territories. 28. At the material time expulsion measures were governed by Book V of the CESEDA, introduced by Law no. 2006-911 of 24 July 2006. They included the obligation to leave French territory (Article L. 511-1-I) and administrative removal (Article L. 511-1-II). 29. An alien who could not prove that he or she had entered France legally, or who had remained there illegally, and who could not be authorised to stay on any other grounds, could be ordered to leave, in particular by means of an administrative removal order (Articles L. 511-1 to L. 511-3 of the CESEDA). 30. If the alien was placed in administrative detention, he or she was informed of his or her rights and was entitled to legal assistance provided by an association in the detention centre. These associations were legal entities which had concluded agreements with the Ministry responsible for asylum and whose purpose was to inform the aliens concerned and help them to exercise their rights. In 2007, the only association present in French administrative detention centres was CIMADE. Since 2010 four other associations have also been present: the Ordre de Malte, the Association Service Social Familial Migrants (ASSFAM), France Terre d’Asile and Forum des Réfugiés. 31. Appeals against administrative removal orders could be lodged before the administrative court within forty-eight hours of their being served (Article L. 512-2 of the CESEDA). The appeal suspended the execution of the removal order but did not prevent the alien from being placed in administrative detention. The alien could not be deported before the time-limit for appealing had expired or – if the matter had been referred to the court – before the court had reached a decision (Article L. 512-3 of the CESEDA). The decision as to the country of destination was separate from the actual removal order. If that decision was challenged at the same time as the removal order, the appeal also had suspensive effect (Article L. 513-3 of the CESEDA). 33. The administrative court was required to reach a decision within seventy-two hours. 34. An appeal against the judgment of the administrative court could be lodged with the president of the administrative court of appeal having territorial jurisdiction, or a person delegated by him. This appeal had no suspensive effect (Article R. 776-19 of the Administrative Courts Code). 35. The consequences of the setting aside of an administrative removal order were covered by Article L. 512-4 of the CESEDA. First of all, it put a stop to any administrative detention or house arrest. The alien was then issued with a temporary residence permit while the administrative authority reviewed his or her case. Lastly, the judge responsible for removal matters did not merely refer the alien back to the administrative authorities; under Article L. 911-2 of the Administrative Courts Code, it also ordered the prefect to decide whether the person was entitled to a residence permit, “regardless of whether he or she had applied for one” and set a time-limit within which the situation of the alien concerned was to be reviewed (see, for example, Conseil d’Etat, 13 October 2006, application no. 275262, M. Abid A.). 36. However, a judgment of the administrative court setting aside a removal order did not oblige the prefect to issue a residence permit, as it did not concern the setting aside of a refusal to issue a residence permit (see the leading judgment of the Conseil d’Etat of 22 February 2002, application no. 224496, M. Dieng, followed by others). This applied even when the decision to set aside a removal order was based on substantive grounds, such as a violation of Article 8 of the Convention. According to the caselaw, a review of the person’s situation sufficed to fully execute a decision to set aside a removal order on substantive grounds. However, the principle of res judicata prevents the administrative authority from issuing a new removal order on the same grounds without showing any change in the circumstances. 37. These provisions (see paragraphs 28-36 above) were amended in part by Law no. 2011-672 of 16 June 2011 on immigration, integration and nationality, which harmonised the procedure for removing illegal aliens. The solutions previously adopted in the case-law concerning administrative removal measures are generally transposable to the present situation. 38. The relevant provisions of the CESEDA, in the version in force at the material time, read as follows: “For the purposes of this part, the following provisions shall apply in French Guiana and Saint Martin: (1) If the consular authority so requests, the removal order shall not be executed until one full day after it has been served; (2) Without prejudice to the provisions of the preceding paragraph, an alien who has been ordered to leave French territory or against whom an administrative removal order has been issued and who refers the matter to the administrative court may, at the same time, apply for a stay of execution. Consequently, the provisions of Articles L. 512-1 and L. 512-2 to L. 512-4 [whereby a removal order issued by the prefect may be challenged before the administrative court within forty-eight hours, with suspensive effect on the execution of the removal order] shall not apply in French Guiana or Saint Martin.” 39. Unlike in ordinary French law, therefore (see paragraph 31 above), an appeal to the administrative court does not stay the execution of a removal order. This exception, originally introduced for a limited period, was made permanent in French Guiana by the Homeland Security Act (Law no. 2003239 of 18 March 2003). 40. When asked to review the conformity of this measure with the French Constitution, as provided for in Article 61 of the Constitution, the Constitutional Council approved it. In its decision no. 2003-467 of 13 March 2003, when examining the conformity of the measure with Article 73 of the Constitution, the Constitutional Council noted: “Sections 141 and 142 [of the Homeland Security Act] make the special provisions ... permanent in French Guiana and in the municipality of Saint Martin in Guadeloupe; under these provisions, refusal to issue a residence permit to certain aliens is not submitted for opinion to the residence-permit committee provided for in section 12 quater of the order of 2 November 1945, and an appeal against a removal order has no suspensive effect. The applicant MPs argue that in making the special regime permanent sections 141 and 142 interfere with ‘constitutionally protected rights and guarantees such as the rights of the defence’ and go beyond the adjustments to the legislation of the overseas départements authorised by Article 73 of the Constitution. In order to allow for the particular situation and the lasting difficulties encountered with regard to the international movement of people in the département of French Guiana and in the municipality of Saint Martin in the département of Guadeloupe, Parliament has maintained the special regime introduced by sections 12 quater and 40 of the order of 2 November 1945, mentioned above, without disrupting the balance, required by the Constitution, between the needs of public policy and the protection of the rights and freedoms guaranteed by the Constitution. The persons concerned continue to enjoy the right of appeal against administrative measures, and in particular the right to lodge urgent applications with the administrative court. Bearing in mind the special circumstances, which are directly related to the specific aim of strengthening the fight against illegal immigration, the legislation has not infringed the constitutional principle of equality. The adjustments in question are not contrary to Article 73 of the Constitution. ...” 41. Concerning the removal of aliens, French legislation provides for similar exceptions in another six overseas “départements and regions” and communities (Guadeloupe, Mayotte, Wallis and Futuna, Saint Barthélemy, Saint Martin, French Polynesia) and New Caledonia. 42. The legal provisions governing urgent applications for a stay of execution or for the protection of a fundamental freedom (référé suspension or référé liberté) are automatically applicable in French Guiana just as they are everywhere else in France. The relevant provisions of the Administrative Courts Code read as follows: “When an application is made to set aside or vary an administrative decision, including a refusal, the urgent-applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts, as the evidence stands, as to the lawfulness of the decision. Where an order is made staying execution, a ruling shall be given as soon as possible on the application to have the decision set aside or varied. The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied.” “Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a public law entity or an organisation under private law responsible for managing a public service, in the exercise of their powers. The urgent-applications judge shall rule within forty-eight hours.” 43. When examining a case concerning French Guiana, referred to it under Article L. 521-1 of the Administrative Courts Code, the Conseil d’Etat pointed out: “The urgency of the matter justifies the stay of execution of an administrative measure when its execution would, in a sufficiently serious and immediate manner, undermine a public interest, the applicant’s situation or the interests he seeks to defend. It is for the urgent-applications judge to whom an application for a stay of execution of a decision not to issue a residence permit has been referred to assess the urgency and give reasons, taking into account the immediate impact of the refusal to issue the residence permit on the practical situation of the individual concerned. As Article L. 514-1 of the Code regulating the entry and residence of aliens and asylum-seekers stipulates that Article L. 512-1 of the same Code does not apply in French Guiana, an appeal by an alien against a refusal to issue a residence permit, combined with an obligation to leave French territory for a specified country of destination, does not stay the execution of the obligation to leave French territory.” 44. The Conseil d’Etat went on to consider that, in these circumstances, “the prospect that an expulsion measure might be implemented at any time ... may be considered to characterise an urgent situation opening the possibility for the urgent-applications judge to stay the execution of the decision to refuse to issue a residence permit, combined with the obligation to leave French territory, in conformity with the provisions of Article L. 521-1 of the Administrative Courts Code”. (Conseil d’Etat, 9 November 2011, M. Takaram A., no. 346700, Recueil Lebon) 45. In response to a complaint lodged on 23 January 2008, the National Commission for Policing Ethics (Commission nationale de déontologie de la sécurité) examined the circumstances in which Mr C.D., a Brazilian national, had been stopped on 12 November 2007 by the mobile investigation squad of the Border Police of the département of French Guiana, taken into custody and detained pending his expulsion, and subsequently died six hours after being hospitalised in Cayenne. 46. In its opinion of 1 December 2008, the National Commission for Policing Ethics noted “the existence within the Border Police in French Guiana, from 2006 to 30 January 2008 – when the two public highway patrol units of the mobile investigation squad were disbanded – of working methods and data-processing practices which, under cover of formally legitimate procedures, systematically violated all the principles of criminal procedure and in particular the most elementary rights of the people arrested, ... by intentionally falsifying the times mentioned in their reports, or using pre-printed forms whereby people who were taken into custody or detained waived their rights before they had even had a chance to voice their wishes on the matter. Because of the systematic and long-standing nature of these violations of the law ... the Commission strongly recommends that ... disciplinary measures be taken against all those ... who instigated or implemented them or allowed them to go on for such a long time ... More generally, the Commission requests that all those who serve overseas be reminded that: ... in the fight against illegal immigration the number of effective removals demanded by the central authorities must in no way affect the quality and lawfulness of the procedures; and whatever the legal steps taken following the arrest – remand in custody, identity check, administrative detention – the people concerned have certain rights of which it is the duty of the police to inform them in practice, in a language they understand, to enable them to exercise their rights effectively and not just for the sake of appearances.” 47. On 4 May 2005 the Committee of Ministers adopted “Twenty Guidelines on forced return”. The relevant guidelines read as follows: “Guideline 2. Adoption of the removal order Removal orders shall only be issued in pursuance of a decision reached in accordance with the law. 1. A removal order shall only be issued where the authorities of the host State have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to: a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment; b. a real risk of being killed or subjected to inhuman or degrading treatment by non-State actors, if the authorities of the State of return, parties or organisations controlling the State or a substantial part of the territory of the State, including international organisations, are unable or unwilling to provide appropriate and effective protection; or c. other situations which would, under international law or national legislation, justify the granting of international protection. 2. The removal order shall only be issued after the authorities of the host State, having considered all relevant information readily available to them, are satisfied that the possible interference with the returnee’s right to respect for family and/or private life is, in particular, proportionate and in pursuance of a legitimate aim. ... Guideline 5. Remedy against the removal order 1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution. 2. The remedy shall offer the required procedural guarantees and present the following characteristics: – the time-limits for exercising the remedy shall not be unreasonably short; – the remedy shall be accessible, which implies in particular that, where the subject of the removal order does not have sufficient means to pay for necessary legal assistance, he/she should be given it free of charge, in accordance with the relevant national rules regarding legal aid; – where the returnee claims that the removal will result in a violation of his or her human rights as set out in Guideline 2.1, the remedy shall provide rigorous scrutiny of such a claim. 3. The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in Guideline 2.1.” 48. The Commissioner for Human Rights issued a Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This Recommendation of 19 September 2001 included the following paragraph: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the [European Convention on Human Rights] be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the [Convention]. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the [Convention] is alleged.” 49. The relevant parts of Articles 5, 12 and 13 of the Return Directive read as follows: “When implementing this Directive, member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the third-country national concerned, and respect the principle of non-refoulement.” “1. Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies. ...” “1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12 § 1, before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence. 2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12 § 1, including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation. ...” 50. In accordance with Article 40 of the International Covenant on Civil and Political Rights, on 9 and 10 July 2008 the United Nations Human Rights Committee examined the fourth periodic report of France (UN Doc. CCPR/C/FRA/4). On 22 July 2008, it adopted its Concluding Observations (UN Doc. CCPR/C/FRA/CO/4) on that report, which included the following: “... no recourse to the courts is available to persons deported from the overseas territory of Mayotte, involving some 16,000 adults and 3,000 children per year, nor from French Guiana ... The State Party should ensure that the return of foreign nationals, including asylum-seekers, is assessed through a fair process that effectively excludes the real risk that any person will face serious human rights violations upon his return. Undocumented foreign nationals and asylum-seekers must be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid. The State Party should also ensure that all individuals subject to deportation orders have an adequate period to prepare an asylum application, with guaranteed access to translators, and a right of appeal with suspensive effect.” (The last paragraph appears in bold type in the original text.) | 1 |
train | 001-102260 | ENG | TUR | CHAMBER | 2,010 | CASE OF ARSLANTAY v. TURKEY | 4 | Violation of Art. 6-1 | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 3. The applicant was born in 1986 and lives in Adana. 4. Subsequent to his expulsion from a military academy due to his health problems, the applicant brought a case before the Supreme Military Administrative Court against the Ministry of Defence (“the Ministry”) for damages. The applicant argued that the alleged delay in the diagnosis of his medical condition had led to his unfair expulsion, which had inflicted pecuniary and non-pecuniary damages on him. 5. On 24 November 2004 the Supreme Military Administrative Court held a hearing, where it heard the parties and the opinion of the principal public prosecutor, which had previously been submitted to the court in writing. On 21 September 2005, relying on the findings of medical experts, the Supreme Military Administrative Court refused the applicant’s claim for damages. On 23 November 2005 it dismissed the applicant’s rectification request. 6. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008). | 1 |
train | 001-107713 | ENG | RUS | CHAMBER | 2,011 | CASE OF GLADYSHEVA v. RUSSIA | 3 | Violation of P1-1;Violation of Art. 8;Restitution of the disputed property or financial award;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1973 and lives in Moscow. 6. On 28 September 2005 the applicant bought a 37.5 square metres flat in Moscow at 59 Novocheryomushkinskaya Street (“the flat”) and has been living there with her son born in 1998. The seller of the flat, Mr V., had bought it from Ms Ye., who had acquired it under the privatisation scheme. The facts relating to the ownership of the flat prior to the applicant’s acquisition of it and the subsequent invalidation of her title may be summarised as follows. 7. Before its privatisation the flat was owned by the City of Moscow. On 10 September 2004 the prefect of Yugo-Zapadnyy circuit allocated the flat to Mr M. as social housing. M. signed a social tenancy contract on 29 October 2004 and was registered as the flat’s principal, and only, tenant on 12 November 2004. No family members were indicated in the moving-in order. 8. On 19 November 2004 the Department of the Interior of the Cheryomushki District of Moscow registered M.’s spouse Ye. at his address. The registration was effected upon M.’s written application, certified by public notary R. on 17 November 2004, and accompanied by Ye.’s and M.’s marriage certificate issued in Kaluga on 15 October 2004. Ye.’s identity was confirmed upon presentation of her passport. 9. On 19 December 2004 M. was found dead. The inquest found that he had fallen out of the window of his flat and concluded that he had committed suicide, as no evidence of any other person’s involvement could be found. It was noted that M. was a former drug addict. 10. On 11 February 2005 Ye. issued a power of attorney to L., authorising him to represent her in all transactions related to the flat and in all privatisation and registration procedures before the property and residence registration authorities. The power of attorney was certified by public notary S., who had indicated in a standard clause that Ye. had signed the authority in her presence and that her identity and legal capacity had been confirmed. 11. On 30 March 2005 the Housing Policy and Housing Fund Department of the City of Moscow (Департамент жилищной политики и жилищного фонда г. Москвы, “the Moscow Housing Department”) concluded a social tenancy contract with Ye. and on the same day signed a privatisation agreement in respect of the flat. Ye. was represented by L. in these transactions. 12. On 6 May 2005 the Moscow Office of the Federal Authority for Registration of Property (Главное управление Федеральной регистрационной службы по г. Москве) registered Ye.’s ownership of the flat in the Consolidated State Register of Real Estate Titles and Transactions (Единый государственный реестр прав на недвижимое имущество и сделок с ним, “the Land Register”). 13. On 23 May 2005 Ye. sold the flat to V. On 6 June 2005 V.’s ownership was registered in the Land Register. 14. On 28 September 2005 V. sold the flat to the applicant. The terms of the purchase included the applicant’s obligation to pay the seller 990,000.00 Russian roubles (RUB) in respect of the flat, an advance payment of 6,000 United States dollars (USD), plus a contribution of RUB 1,465,847 to renovation costs. It also included an undertaking by the seller to buy the applicant an equivalent flat in the event that the applicant lost the title for reasons relating to any defects of the title which pre-dated the purchase of the flat by the applicant. 15. The transfer of title was registered at the Moscow Office of the Federal Authority for the Registration of Property. 16. The applicant and her son moved into the flat and have been living there since. 17. On 3 May 2007 Ye. died, reportedly of natural causes. 18. On 30 January 2008 the Moscow Department of the Interior informed the Moscow Housing Department of suspected fraud in the privatisation of the flat. 19. On an unidentified date in 2008 the Moscow Housing Department brought an action against the applicant and the previous owners of the flat V. and Ye. They referred to a “check” that had revealed that no marriage had taken place between M. and Ye. and that Ye.’s passport used for the registration and privatisation procedures had been declared lost in 1996; they asked the court to establish that the flat had been fraudulently acquired by Ye. and to declare the privatisation and all the ensuing transactions in respect of the flat null and void. The applicant lodged a counterclaim to have her title to the flat recognised by the court. 20. On 25 July 2008 the Cheryomushkinskiy District Court of Moscow dismissed the authorities’ claim and granted the applicant’s counterclaim, recognising her as the legitimate owner of the flat. It noted, in particular, that the applicant had purchased the flat in good faith (a bona fide buyer) and paid a purchase price for it. Therefore there were no grounds to invalidate the transactions in question. No appeal was lodged within the ten-day statutory limitation period, and the judgment became final and enforceable. 21. On 11 August 2008 the applicant complained to the police that Mr A.B., an official at the Moscow Housing Department, was trying to extort USD 50,000 from her in return for a promise that the Department would not appeal against the judgment of 25 July 2008. On 12 August 2008 the police carried out a covert operation, during which A.B. was caught receiving the aforementioned sum of money from the applicant, who had been primed by the police. On 10 December 2008 A.B. was convicted of embezzlement on account of that episode, and received a custodial sentence. 22. In the meantime, the Moscow Housing Department submitted a request for an extension of the time-limit for appeal against the judgment of 25 July 2008, on the grounds that the prosecution of A.B., who had been in charge of the file, left the Department understaffed and unable to comply with the deadlines. On 14 November 2008 the District Court granted the request and extended the time-limit for the appeal. The appeal hearing took place on 18 December 2008 before the Moscow City Court, which quashed the judgment and remitted the matter back to the District Court for a fresh first-instance examination. It instructed the first-instance court to clarify whether the claims concerned the invalidation of the transactions regulated by Article 167 of the Civil Code, or the reclaiming of property under Article 302 of the Code. 23. On 15 December 2008 criminal proceedings against an “unidentified perpetrator” were instituted on suspicion of fraud in the process of privatisation of the flat. The applicant requested to be granted victim status in these proceedings, but this was refused on the grounds that the damage resulting from the fraud was caused to the Moscow Housing Department, not to the applicant. The decision refusing the applicant victim status was taken by the Moscow City Court on 27 July 2009. 24. On 9 July 2009 the District Court found that the privatisation of the flat by Ye. had been fraudulent. It established, in particular, that the civil act registration authority had found no record of a marriage between M. and Ye. and concluded that their marriage certificate had been forged. Therefore Ye. had had no right to be registered at M.’s address or to privatise his flat after his death. In respect of the applicant, it found that she was a bona fide buyer, within the meaning of Article 302 of the Civil Code. However, it found that the flat, having been fraudulently privatised, had left the possession of the City of Moscow, its lawful owner, without that body having the intention to divest itself of it. Thus, by application of Article 302 of the Civil Code and Constitutional Court ruling 6-P of 21 April 2003, the case fell under one of the two exceptions to the protection of a bona fide buyer’s title, which required that precedence be given to the previous owner. The applicant’s title to the flat was accordingly revoked and the City of Moscow declared the flat’s lawful owner. The court ordered the applicant’s eviction without compensation or an offer of alternative housing. The applicant appealed. 25. On 21 December 2009 the Moscow City Ombudsman wrote to the Mayor of Moscow, asking him to consider offering the applicant a social tenancy of the flat. However, on 19 January 2010 the Moscow Housing Department replied in the negative, stating that this would undermine the order of priority on the waiting list. 26. On 12 February 2010 the investigating authority decided to grant the applicant victim status in the criminal proceedings and questioned her in this capacity. On 23 March 2011, however, they overruled that decision as unfounded, following an order by the prosecutor that they should do so. 27. The criminal investigation of the suspected fraud was then suspended on the grounds that no culprit had been identified. The file, however, contained certain material on the basis of which the courts were able to establish that the privatisation had been carried out improperly. It included, in particular, the finding that all acts relating to Ye.’s registration as a resident of the flat, its privatisation and sale to V. had been carried out using Ye.’s passport, which had been declared lost in 1996. It also contained a reply from the municipal authorities of Kaluga that they had no record of Ye.’s and M.’s marriage having been registered in 2004. The Kaluga passport authorities had replied to the investigator that Ye. had been previously registered as a resident of Kaluga, and her registration there had not been removed until her death in 2007. There was also a reply from public notary R. that she had had no records of M.’s application in her register and she denied having certified it. 28. On 13 May 2010 the appeal against the judgment of 9 July 2009 was rejected in the final instance by the Moscow City Court. 29. The applicant requested a suspension of the execution of the judgment in so far as it concerned the eviction. On 22 July 2010 the court granted her request and adjourned the eviction until 1 February 2011. This term was later extended until 1 June 2011. 30. On 14 December 2010 the Deputy Prosecutor General requested the Supreme Court to examine the applicant’s case in supervisory review proceedings. He considered the revocation of her ownership of the flat unlawful and unjustified. First, he argued that the rule contained in Article 302 § 1 of the Civil Code ordering reinstatement of ownership of the property which was removed from its owner’s possession without the owner’s intention to divest itself of it was inapplicable in her case. He pointed out that the Moscow Housing Department was a party to the transaction in which the flat had been privatised and could not be unaware of it; the Department had never claimed that the official in charge of the privatisation had gone beyond her authority or acted contrary to instructions. Hence it could not be said that the flat had been privatised without the Department having that intention. Therefore, the applicant, as a bona fide buyer, should not have been required to return the flat to its earlier owner, the City of Moscow. Secondly, the Deputy Prosecutor General considered that the judicial decisions had not balanced the interests of the municipality against the lawful rights and interests of the applicant, whereas the protection of individual citizens should have taken priority, in accordance with the Constitution. As a result of a third-party fraud, a single mother and her child faced eviction without compensation and without an offer of alternative housing. He noted that she had no other housing and that all her savings had been put into the purchase of the flat and the costly litigation. Finally, he pointed out that the courts had exceeded their responsibility in applying Article 302 of the Civil Code, in lieu of Article 167 on which the plaintiff had relied, and had thereby granted the award beyond the scope of the claim. 31. On 24 December 2010 the Supreme Court refused the request by the Deputy Prosecutor General, declining to reconsider the case in supervisory-review proceedings. It noted that the applicant’s status as a bona fide buyer had not been in doubt at any stage. However, the courts had correctly applied the law and granted the plaintiff’s lawful claims. It added that the applicant remained free to sue V. for damages. 32. On 31 May 2011 the Cheryomushkinskiy District Court of Moscow rejected the applicant’s application for further suspension of the execution of the judgment of 9 July 2009, noting that there had already been two extensions and there were no grounds for another. 33. On 30 June 2011 the Moscow City Ombudsman wrote to the Mayor of Moscow, alerting him to a growing number of cases of flats being repossessed by the City of Moscow against bona fide buyers on account of irregular privatisation by the previous owners of the flats; all of them were being denied any compensation or substitute housing. In his view, the incidents of fraudulent privatisation should not have been treated by courts as cases where property was removed from possession “without the owner’s intention to divest” within the meaning of Article 302 § 1 of the Civil Code. He pointed out that privatisations were transactions entered into by the State, represented by its public officials, whose duty was to make all the necessary checks and to ensure the procedural integrity of the transaction. The responsibility of the State was thus engaged wherever they failed in this task. In any event, failure to identify documents as forged could not in such circumstances be classified as passage of title without the owner’s intention to divest. He referred to the applicant’s case as one flagrant example of a wrong and unjust outcome of the erroneous interpretation adopted by Moscow courts in such cases. On the same day he sent letters to the Moscow Prosecutor’s Office and the head of the Moscow Department of the Interior, citing the applicant’s case, calling for the thorough investigation of fraud cases of this type, and requesting that the applicant’s victim status be reassessed in the relevant criminal proceedings. 34. According to the applicant’s latest submissions, she has not yet been evicted but considers it imminent. 35. The Civil Code provides for two different avenues by which one’s property title may be challenged by a previous owner: “1. An invalid transaction shall not entail legal consequences, with the exception of those connected with its invalidity, and shall be invalid from the moment of its conclusion. 2. If a transaction has been recognised as invalid, each of the parties shall be obliged to return to the other party all it has received as part of the transaction, and if return is impossible in kind (including where the transaction concerns the use of property, work performed or services rendered), its cost shall be reimbursed in money - unless other consequences of the invalidity of the transactions have been stipulated by law. 3. If it follows from the content of the disputed transaction that it may only be terminated for the future, the court, while recognising the transaction as invalid, shall terminate its operation for the future.” “1. If the property has been purchased for a price from a person who had no right to alienate it, and the acquirer is unaware and could not have been aware (the bona fide acquirer, or the acquirer in good faith), the owner shall have the right to reclaim this property from the acquirer, if the said property was lost by the owner or by the person into whose possession the owner has passed the property, or if it was stolen from one or the other, or if it has left their possession in another way, in the absence of intention on their part to divest themselves of it. 2. If the property has been acquired without consideration from a person who had no right to alienate it, the owner shall have the right to reclaim the property in all cases. 3. Money and securities in respect of the property shall not be reclaimed from the bona fide acquirer.” 36. By its ruling of 21 April 2003, 6-P, the Constitutional Court interpreted Article 167 of the Code as not allowing the first owner to reclaim his property from a bona fide buyer unless there is a special legislative provision to this effect. Instead, a claim vindicating prior rights (виндикационный иск) could be lodged under Article 302 of the Code if the conditions indicated in paragraphs 1 and 2 are met, in particular if the property has left the owner’s possession in the absence of intention on the part of him or her to divest themselves of it, or if the property has been acquired without consideration. 37. Further interpretation of Article 302 of the Civil Code was provided by the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation, contained in the second paragraph of item 39 of their joint ruling of 29 April 2010, no. 10/22 “On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights” and in the Constitutional Court’s ruling of 27 January 2011, 188OO. They held in particular that there was no automatic link between invalidity of a transaction and an owner’s intention or otherwise, to divest themselves of it. The Constitutional Court’s ruling held, in so far as relevant, as follows: “... the uncertainty of the legal provisions [including Article 302] challenged by the claimant is eliminated by the interpretation of the Plenary of the Supreme Court of the Russian Federation and the Plenary of the High Commercial Court of the Russian Federation, contained in the second paragraph of item 39 of the [ruling of 29 April 2010, no. 10/22]: ‘the invalidity of the transaction in execution of which the transfer of property was effected does not by itself prove that it left the possession of the owner in the absence of intention to divest on their part; the courts need to establish whether the owner intended to transfer possession to another person’”. | 1 |
train | 001-95035 | ENG | UKR | CHAMBER | 2,009 | CASE OF CHAYKOVSKIY v. UKRAINE | 3 | Remainder inadmissible;Violation of Art. 34;No violation of Art. 34 | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva | 5. The applicant was born in 1943 and lives in Solone Ozero. 6. In April 1993 the administration of Penitentiary no. 314/60, where the applicant was serving a prison sentence at the time, submitted to the Slovyanoserbsk Department of the Ministry of the Interior a list of prisoners, with their former Soviet passports, who, following the collapse of the Soviet Union in 1991, had expressed a wish to become Ukrainian citizens. The applicant's name was among them. 7. A stamp reading “Annulled” was put in the applicant's old Soviet passport. 8. According to a letter written on an unspecified date by the administration of Penitentiary no. 60 to the applicant, the latter acquired Ukrainian citizenship in 1993. 9. On an unspecified date in 1999 the applicant was detained on suspicion of attempted murder and robbery. According to him, he was beaten in police custody. On 10 November 1999 the Kherson Regional Court sentenced the applicant to fifteen years' imprisonment and ordered the confiscation of all of his personal property following his conviction for these offences. 10. On 21 December 1999 the Supreme Court rejected the applicant's cassation appeal against this conviction. However, it reduced the sentence to thirteen years' imprisonment. 11. Shortly after the ruling of the Supreme Court, the applicant was transferred to Penitentiary no. 45 in the Dnipropetrovsk region to serve his sentence. 12. In 2007 the applicant complained to the prosecution authorities about his alleged ill-treatment during the pre-trial investigation in 1999. In reply, he was informed that his complaint had been lodged too late and could not be investigated given the considerable lapse of time and that all the relevant documents had been destroyed. 13. During 2007 and 2008 the applicant unsuccessfully sought the overturning of his conviction through an extraordinary review procedure. 14. In September 2008 the applicant was released on parole. 15. On 15 June 1999 a forensic psychiatric examination was held to establish whether the applicant could be held criminally liable for the charges brought against him. Along with finding the applicant sane, it noted that he had complained of pain in his legs, weakened eyesight and dizziness, had painless concussion caused by a past head injury, had a diminished ankle reflex, and suffered from encephalopathy, a degenerative disease of the brain, caused by a trauma and atherosclerosis. 16. On 17 February 2005 the applicant was examined by a group of disability experts in Penitentiary no. 45 and recognised as falling into the “second category” of invalidity for a one-year period on account of stable moderate hypertension, hypertensive retinal angiopathy of both eyes, ischaemic heart disease, stable stenocardia, diffuse cardiosclerosis, Leriche's syndrome, cerebral atherosclerosis, phaco-sclerosis (cataracts), and chronic hepato-cholecystitis (inflammation of the gall bladder and liver). 17. From 6 to 18 February 2006 the applicant underwent inpatient treatment in the Dnipropetrovsk Hospital at SIZO-3 for obliterating atherosclerosis of the lower limbs, femoropopliteal occlusive disease (obstruction of the arteries), lower limb ischaemia, stable stenocardia and diffuse cardiosclerosis, after which he returned to Penitentiary no. 45 “in a satisfactory condition” and continued his treatment in the penitentiary hospital. 18. In 2006 the applicant complained to the prosecution authorities that although, according to him, he suffered from certain illnesses which he believed made him eligible for early release, on 17 February 2005 the medical experts had wrongly established his diagnoses because they were biased against him. He requested another medical examination to be held in any other region. The prosecution found the applicant's complaint unsubstantiated. The Dnipropetrovsk Regional Department of the State Department for Enforcement of Sentences (hereinafter “the SDES”) offered him the opportunity to undergo another medical examination by independent doctors in the Dnipropetrovsk region, which he refused. 19. On 18 August 2006 the SDES informed the applicant, following his request, that there were no medical reasons to seek his early release before the court and that he was being “provided medical treatment in accordance with the established diagnoses”. The applicant commented that it was not the medical treatment that he was complaining about, but the alleged inaccuracy of his medical diagnoses, due to which he had not been qualified for early release on health grounds. 20. According to the information provided by the applicant, in 2008 the prison doctors treated him for atherosclerosis of the lower limbs with nicotinic acid injections, which he found to be of little help. The applicant alleged that the treatment was insufficient and therefore, following his release in September 2008, he was in need of surgery. 21. On 1 October 2008 a Doppler sonography of the applicant's lower limbs was performed in the Chernigiv Hospital no. 2, which diagnosed him with blockage of the left and right iliac arteries. 22. On 29 December 2005 the applicant wrote to the Court expressing his intention to lodge an application under Article 34 of the Convention. 23. On 18 January 2006 the Registry of the Court provided him with a blank application form and copies of the explanatory documents necessary for lodging his application with the Court. 24. On 13 March 2006 the Registry received from the applicant the application form dated 3 March 2006, in which he maintained that he was unable to send copies of all the documents he needed to substantiate his complaints as the penitentiary authorities had allegedly refused to provide him with those copies. 25. In a letter of 24 March 2006 the Registry of the Court informed the applicant that under Article 34 of the Convention, State bodies are under an obligation not to create obstacles to the effective exercise of the right of individual petition. The letter also stated that the refusal of the prison administration to provide copies of the relevant documents could be examined by the Court from the point of view of compliance of its acts with the obligations of the State under Article 34 of the Convention. The letter also contained a copy of Order no. 13 of the SDES of 25 January 2006 “On Approval of the Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities”. 26. On 28 April and 24 May 2006 the applicant informed the Court that the penitentiary authorities had refused to hand the attachment sent by the Registry of the Court with the letter of 24 March 2006 over to him. He further stated that he still did not have access to copies of all the documents he needed. 27. The applicant complained about the above to the prosecution authorities. 28. On 28 September 2006, following the communication by the Court of the application to the Government, the applicant, at the request of the prison administration, wrote “an explanatory note”, in which he noted, inter alia: that starting from “mid 2006” he had been provided with the possibility to copy documents from his case file by hand; that the attachment sent by the Registry of the Court on 24 March 2006 had never been served on him; and that he had no complaints regarding the dispatching of his correspondence to the Court by the prison authorities. 29. According to the applicant, he was able to copy documents from his case file by hand twice a week for twenty to thirty minutes. 30. From 15 December 2006 to 24 May 2007 the applicant was represented before the Court by a lawyer. 31. On 31 July 2007 the Prosecutor of the Dnipropetrovsk Region found unsubstantiated the applicant's complaint concerning the seizure by the prison administration of the attachment sent to him by the Court. The prosecutor referred to the Prisons' Internal Regulations of 25 December 2003 (see paragraph 41 below), according to which convicts were entitled to keep copies of verdicts and judicial rulings. Thus, since the document at issue had been outside that category, its seizure did not amount to a violation on the part of the prison administration. 32. On 12 March 2008 the applicant received the attachment at issue from the prison administration. 33. On the same day the Dnipropetrovsk Regional Prosecutor's Office reaffirmed its earlier finding that by having seized the above document, the prison administration had not committed any violation. 34. The applicant alleged that on 27 October 2006 the prison duty officer had beaten him with a rubber truncheon, which had resulted in his hospitalisation in the penitentiary hospital on 2 November 2006. According to him, the prison doctor had refused to document his injuries. 35. In May 2007 the applicant complained to the SDES that between 1999 and 2005 over 700 prisoners had allegedly died of starvation in Penitentiary no. 60. 36. The Lugansk Regional Department of the SDES replied to the applicant that his allegation had been investigated and found unsubstantiated. 37. The relevant provisions of the Constitution read as follows: “Everyone is guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.” 38. Article 113 of the Code on Enforcement of Sentences (2003), following the amendments introduced to it on 1 December 2005, stipulates that prisoners are allowed to correspond with relatives, other persons and organisations. All such correspondence is subject to automatic monitoring and censorship by the prison administration, with the following exceptions, provided for in paragraph 4: “Proposals, applications and complaints addressed to the Ombudsman of the Verkhovna Rada of Ukraine, to the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or to prosecution authorities, shall not be subject to censorship and shall be dispatched within twenty four hours.” 39. The Instruction on Review of Correspondence of Persons Held in Penitentiaries and Pre-trial Detention Facilities, approved by Order no. 13 of the State Department for Enforcement of Sentences of 25 January 2006, elaborates the above provision as follows: “1.5. ... Correspondence of prisoners and detainees with the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as with other relevant international organisations of which Ukraine is a member or participant, authorised persons of those international organisations or prosecution authorities, shall not be subject to censorship and shall be dispatched or handed to the prisoner or detainee within twenty-four hours. ... 2.4. Prisoners or detainees shall personally and in the presence of the inspector seal the envelopes with correspondence addressed to the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as to other relevant international organisations of which Ukraine is a member or participant, to authorised persons of those international organisations or prosecution authorities. Prisoners or detainees shall personally and in the presence of the inspector open letters received from the Ombudsman of the Verkhovna Rada of Ukraine, the European Court of Human Rights, as well as from other relevant international organisations of which Ukraine is a member or participant, from authorised persons of those international organisations or from prosecution authorities. ...” 40. The relevant provisions of the Internal Regulations of Penitentiaries, approved by Order no. 275 of the State Department for Enforcement of Sentences dated 25 December 2003, read as follows: “18. ... Prisoners are entitled ... to receive and send letters in unlimited numbers. ... Prisoners may only dispatch letters and applications via the penitentiary's administration. There are mail boxes on the premises of the penitentiary for that purpose, which are checked by the responsible prison officers on a daily basis. Prisoners in confinement hand letters for dispatching to the administration. Letters shall be posted in mail boxes or handed to representatives of the administration unsealed. ... Correspondence received or dispatched by prisoners shall be reviewed. Proposals, applications and complaints addressed to the Ombudsman of the Verkhovna Rada of Ukraine, to a prosecutor or to the European Court of Human Rights shall not be subject to review and shall be dispatched within twenty-four hours.” 41. The Regulations also allow prisoners to keep with them copies of verdicts and rulings of the courts concerning their case. 42. According to Article 22 of the Code on Enforcement of Sentences (2003), prosecutors supervise the enforcement of sentences with a view to ensuring compliance with the existing legislation. 43. The relevant provisions of the Law on the Prosecution Service (1991, as amended) are summarised in Naumenko v. Ukraine, no. 42023/98, § 93, 10 February 2004. 44. Pursuant to paragraph 1 of Article 17 of the Code of Administrative Justice of 6 July 2005 (which entered into force on 1 September 2005), administrative courts are competent to examine inter alia claims by individuals against authorities concerning the latter's decisions, actions or omissions. Its paragraph 2 excludes from the competence of the administrative courts public-law cases dealt with by the Constitutional Court of Ukraine, disputes adjudicated under the criminal procedure, cases concerning administrative offences, and those concerning the internal activity of corporate entities. 45. According to Article 162 of the Code of Administrative Justice, the administrative court, should it find an administrative claim substantiated, may inter alia declare the impugned action, omission or decision unlawful, invalidate the decision in question and/or oblige the defendant to undertake, or abstain from taking, certain actions. It may also order the defendant to pay compensation for the damage caused by the unlawful action, omission or decision. 46. The relevant extracts from Article 55 of the Constitution of Ukraine read as follows: “Human and citizens' rights and freedoms are protected by the courts. Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies exercising State power, local self-government bodies, officials and officers... ... After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant ...” 47. Article 3 of the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights reads as follows: 1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of this Agreement to correspond freely with the Commission and the Court. 2. As regards persons under detention, the exercise of this right shall in particular imply that: a) if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration; b) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court; c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom. 3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health. | 1 |
train | 001-57469 | ENG | BEL | CHAMBER | 1,980 | CASE OF DEWEER v. BELGIUM | 2 | Violation of Art. 6-1;Not necessary to examine art. 6-2 and 6-3;Not necessary to examine P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient | Gaukur Jörundsson | 7. The applicant, a Belgian national, had been a retail butcher in Louvain since 1935. He died on 14 January 1978, but one month later his widow and three daughters advised the Commission that they considered themselves to have a material and moral interest in seeing completed the proceedings he had instituted. 8. On 18 September 1974, his shop, where he employed several persons, was the subject of a visit by Mr. Vanderleyden, an official in the Economic Inspectorate General. This official found an infringement of the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" ("the Decree of 9 August 1974"), in that Mr. Deweer had not reduced his prices of pork by 6.5 per cent as required by Article 2 par. 4 and his "retail margin" for that meat was 5.95 BF in excess of the maximum - 22 BF per kilogram - permitted under Article 3 par. 1 (see paragraph 18 below). When questioned in this connection, the applicant made the following statement, according to the report drawn up the same day by the inspector (translation from the Dutch original): "... As is shown by the price-markings recorded by you, for beef I have applied the reduction provided for in the Ministerial Decree of 9 August 1974 and my margin is less than 22 F. As concerns pig meat, I have not applied the reduction and my margin is in excess of 22 F. This is because my calculations were for category 2 pig meat instead of category 1 pig meat. This was a mistake on my part. I acted in good faith and, in your presence, I immediately reduced the prices in order not to exceed the margin of 22 F." He added the following note, signed, like the report, by Mr. Vanderleyden and himself: "... I buy my meat on the hoof and ... the costs listed below were not included by you in your calculations: (1) 1.50 F commission per live kg; (2) transport costs of 100 F per animal, that is 1 F per kg; (3) slaughter costs: 100 F per animal; (4) slaughter tax: 105.20 per animal; (5) transport costs for each carcase: 100 F per animal." The inspector did not supply a copy of the report to Mr. Deweer. He set out the foregoing facts in a formal statement, known as a "pro-justitia", dated 18 September 1974; the Economic Inspectorate General transmitted this formal statement on 26 September to the procureur du Roi attached to the Louvain Court of First Instance. 9. On 30 September, the Louvain procureur du Roi ordered the provisional closure of the applicant’s shop within forty-eight hours from notification of the decision. The decision cited the gravity of the facts, whilst noting that there was no need to request a sentence of imprisonment; it referred to the interview report of 18 September and to sections 1 par. 1, 2, 5 to 7, 9 and 11 of the Economic Regulation and Prices Act of 22 January 1945 (see paragraphs 12 to 16 below). The closure was to come to an end either on the day after the payment of a sum of 10,000 BF by way of friendly settlement (minnelijke schikking) or, at the latest, on the date on which judgment was passed on the offence; Mr. Deweer had eight days in which to indicate whether he accepted the offer of settlement. The same day the procureur du Roi wrote Mr. Deweer the following letter (translation from the Dutch original): "... You are hereby informed of the decision provisionally closing your business in pursuance of section 11 par. 2 of the Act of 22 January 1945. Your attention is particularly drawn to the heavy penalties imposed by the Act for failure to comply with this decision. The amount of the friendly settlement proposed is fixed at 10,000 F. I should be obliged if, within eight days, you would transfer this sum to Post Office Account no. ... and advise me whether you accept the offer of settlement. The closure of your business will be terminated the day after you make the required payment. ..." 10. On 1 October, a deputy superintendent of police delivered this letter to the applicant together with a copy of the decision to which it referred. Mr. Deweer replied on 3 October by registered letter in the following terms (translation from the Dutch original): "Dear Sir, ... Kindly note that I am today paying the sum proposed in your letter of 30 September 1974 by way of friendly settlement; consequently, the criminal proceedings become barred once and for all (section 11 par. 1 of the Act of 22 January 1945) and the closure of my establishment will no longer be put into effect. Kindly note, however, that I reserve all my rights to take action against the Belgian State before the civil courts, in particular for the restitution of this sum plus damages. In point of fact: - I have not as yet received any copy of the report which is the basis of the penalties imposed in my respect; - as far as I can recollect, the findings of those drawing up the report did not take account of the factors which are essential for calculating the prices; - an application for a declaration of annulment of the Decree of 9 August 1974 will be lodged before the Conseil d’État which has already annulled four similar Decrees (see the judgment of 5 July 1973); - a closure can only come into effect forty-eight hours after notification of the conviction (section 11 par. 2 of the Act refers to section 9 par. 5 which speaks exclusively of convictions). I have therefore paid the amount of the friendly settlement for the sole purpose of limiting the damage suffered by me; for the prejudice resulting from the closure of my establishment as from today until the eventual hearing of the case before the criminal court might be far in excess of 10,000 F and the civil court might then draw certain conclusions from the fact I had not mitigated my loss. ..." 11. Following this payment, which had in fact already been made on 2 October, the applicant did not have his shop closed. He did not bring any action before the civil courts for restitution of money paid over without cause and for damages; nor did he apply to the Conseil d’État for a declaration of annulment of the Decree of 9 August 1974. 12. At the relevant time, State intervention in the sphere of prices was governed in Belgium by the Economic Regulation and Prices Act ("the 1945/1971 Act"). This Act derived from the Legislative Decree of 22 January 1945 "on repression of offences against rules relating to the country’s supplies", as several times amended, in the last instance by an Act of 30 July 1971 which had modified the original title. Section 2 par. 1, 2 and 4, read in conjunction with section 1 par. 1, empowered the Minister responsible for economic affairs to fix by Decree, for the whole or part of the territory of the Kingdom, price-ceilings to be respected in transactions of sale, offer for sale or purchase of products, materials, foodstuffs, goods or animals, as well as the maximum profit to be made by any vendor or intermediary. The investigation and the finding of offences against the 1945/1971 Act were normally the responsibility of officials from the Economic Inspectorate General, acting on behalf of the Minister, and formed the subject of reports which were transmitted to the procureur du Roi; these reports were deemed to be conclusive until production of proof to the contrary (section 6). 13. In addition to imprisonment of one month to five years and a fine of 3,000 to 30,000,000 BF (section 9 par. 1), offenders were liable to various criminal and administrative sanctions (sections 2 par. 5, 3, 7, 9 par. 2 to 6, 10, 11 and 11 bis). One of the most serious of these sanctions was closure of the offender’s business, which took four forms: (a) Under section 2 par. 5, the Minister could direct closure on a provisional basis, for five days at the most, in the event of refusal to comply with the instructions given by officials empowered by him; an appeal having suspensive effect was available to the person concerned before the judge in chambers at the Court of First Instance with jurisdiction in criminal matters. (b) Section 3, second paragraph, allowed the Minister, even in the absence of any offence, also to close establishments whose activity he considered useless or harmful. (c) Section 9 par. 5 enabled the courts to order closure for a period not exceeding five years, without prejudice to any penalty of imprisonment, fine or forfeiture (section 9 par. 1 to 4). (d) In the instant case, the closure decision was taken by the procureur du Roi. It was based on section 11 par. 2 according to which: "The procureur du Roi or, where preliminary investigations have been instituted, the investigating judge may order the provisional closure of the offender’s establishment. The closure may not continue beyond the date on which judgment is passed on the offence. ..." The 1945/1971 Act did not provide for any appeal against such a decision to which, according to section 11 par. 2 in fine, section 9 par. 5 (b) applied. This latter section read as follows: "The closure ... shall come into effect forty-eight hours after notification of the conviction. If the decision of closure is contravened, the procureur du Roi shall take all appropriate action in order to secure compliance therewith, in particular by affixing seals ..., and the offender shall be liable to imprisonment of six months to two years and to a fine" which, in September 1974, was fixed at the amount of 3,000 to 3,000,000 BF. 14. Whereas the first three forms of closure had apparently not been used for fifteen years or so, the same was not true of the fourth form. Provisional closure of that type was ordered in the context of judicial proceedings already instituted or imminent and could thus precede a sentence of closure imposed by a court of law in pursuance of section 9 par. 5. However, according to decided case-law, provisional closure constituted an administrative measure differing in character from and incapable of being offset against any such sentence; it was not entered on the judicial records (casier judiciaire) or on the information extracts (bulletins de renseignements) and lists of convictions issued by the municipal authorities. 15. When he did not consider it necessary to seek a sentence of imprisonment and if proceedings for the offence had not yet been instituted before the trial court, the procureur du Roi could, under section 11 par. 1, inform the offender by registered letter that it was open to him to avoid prosecution by effecting one or more payments or services ("prestations"). The 1945/1971 Act listed five such payments or services from which the procureur du Roi made his choice. The first consisted of paying over a certain sum of money which might, if appropriate, be greater than the maximum fine fixed by the Act. The procureur du Roi called on the person concerned to advise him within a given period whether he accepted the settlement proposed; full and punctual performance of the settlement barred criminal proceedings. Although often referred to as a fine by way of settlement, the payment thus made was not regarded in Belgian law as a penalty. Consequently, the payment could not be taken into consideration when dealing with further offences and was not entered on the judicial records. It was nevertheless notified to the municipal authorities of the person’s place of residence; until a period of five years had expired, mention of it was included in the information extracts the municipalities supplied to the judicial authorities but not in the lists of convictions intended for other authorities. In that respect, settlements negotiated in accordance with section 11 par. 1 of the 1945/1971 Act resembled those provided for under, inter alia, Articles 166 to 169 and 180 to 180 ter of the Code of Criminal Procedure. With the possible exception of one or a few instances dating back to 1946, the closure orders issued by a procureur du Roi in pursuance of paragraph 2 of section 11 of the 1945/1971 Act were always accompanied by an offer of settlement made in accordance with paragraph 1. Such was the case in seven decisions - including the one affecting the applicant - taken in 1974 with regard to butchers in the district of Louvain. On the other hand, the converse situation - an offer of settlement without there being any closure order - was a frequent occurrence. 16. Again, under the terms of section 11 bis, a provision not applied in Mr. Deweer’s case, the officials specially empowered for these purposes by the Minister could, on finding an offence, fix a sum whose voluntary payment by the offender likewise barred criminal proceedings. In such cases, the settlement was not even entered on the information extracts issued by the municipal authorities. 17. Since the period under consideration, section 4 par. 4 of the 1945/1971 Act has been amended in one respect by section 24 of the Business Accounting and Annual Accounts Act of 17 July 1975, but each of the clauses quoted or summarised above, including in particular section 11, was left unchanged. 18. The offence established in the instant case by the Economic Inspectorate General related to the Ministerial Decree of 9 August 1974 "fixing the selling price to the consumer of beef and pig meat" (see paragraph 8 above). This Decree, which was passed pursuant to the 1945/1971 Act, came into force on 14 August 1974; it was intended, like numerous other Decrees preceding it, to restrain rises in the cost of products constituting a major item in the consumer’s budget and in the computation of the official price-index. Article 2 dealt with pig meat. Paragraph 1 of Article 2 required retailers in business before 1 November 1972 - such as the applicant - not to charge in excess of the prices prevailing during the first three weeks of October 1972 as increased by 10 per cent. Paragraph 4 specified that until 31 October 1974 the selling prices to the consumer, inclusive of value-added tax, charged in accordance with paragraph 1, had to be marked down by 15 per cent. The combined effect of these two paragraphs was to produce a price reduction of 6.5 per cent as compared with the levels current in October 1972. Article 3, however, contained a proviso. Under paragraph 1 of Article 3, retailers able to show that they were not obtaining a retail margin of 22 BF per kilogram were, subject to not exceeding that margin, allowed to charge prices other than those following from Article 2. Paragraph 2 indicated what was to be understood by "retail margin", namely the difference between "the weighted average selling price not inclusive of value-added tax" and "the weighted average purchase price", these two prices being in their turn defined in paragraphs 3 and 4. Paragraph 2 did not include any provisions regarding those butchers - a minority of the order of 2 per cent - who, like Mr. Deweer, purchased their meat on the hoof. Under Article 7, offences against the Decree of 9 August 1974 were to be investigated, established, prosecuted and punished in accordance with the provisions of Parts II and III of the 1945/1971 Act. Section II, which was applied in Mr. Deweer’s case, appeared in Part III of the latter Act. 19. The criminal prosecutions launched for failure to comply with the Decree of 9 August 1974 resulted, in numerous cases, in acquittals. For the most part, the relevant courts gave as the ground for their verdict the illegality of the Decree; in so doing they were acting in pursuance of Article 107 of the Constitution which states: "The courts and tribunals shall not apply any general, provincial or local decrees and regulations save insofar as they are in accordance with the law." In the early stages, the prosecuting authorities entered appeals which, however, failed; eventually they abandoned any attempt at appeal. Certain courts adopted another solution: faced with the accused pleading the incompatibility of the Decree with Community law, they requested the Court of Justice of the European Communities to give a preliminary ruling pursuant to Article 177 of the Treaty establishing the European Economic Community; for reasons that were the subject of dispute before the Commission, the Court of Justice did not have the occasion to deliver any ruling. 20. In a case brought before it on 14 October 1974 by a retail butcher and pork-butcher, the Conseil d’État declared the Decree of 9 August 1974 to be contrary to the principle of the equality of all Belgians before the law (Article 6 of the Constitution): the appreciable distinction drawn between retain according to the period of their establishment in business did not appear to the Conseil d’État to be justified either by any technical necessity or by imperative considerations of general economic interest. It accordingly annulled the Decree on 31 May 1978 (Ghekiere v. the State of Belgium). Four earlier Decrees of a similar kind, dating back to 1970 and 1971, had suffered the same fate on 5 July 1973 (National Federation of Retail Butchers and Pork-Butchers of Belgium v. the State of Belgium). 21. After being amended on 7 October 1974, 29 October 1974, 13 November 1974 and 12 February 1975, the Decree of 9 August 1974 was repealed on 27 March 1975. The Decree which replaced it on the latter date, and which came into force on 11 April 1975, contained - as did the Decrees of 7 October and 13 November 1974 – specific clauses relating to retailers who purchased their meat on the hoof (Article 3 par. 4, last sub-paragraph). The Decree of March 1975 was the subject of a request for a preliminary ruling submitted by the Neufchâteau Court of First Instance; the Court of Justice of the European Communities gave its decision on the request on 29 June 1978 (Procureur du Roi v. P. Dechmann, case 154/77, European Court Reports 1978, pp. 1573-1595). | 1 |
train | 001-68306 | ENG | AUT | ADMISSIBILITY | 2,005 | ECKER v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Alexander Ecker, is an Austrian national, who was born in 1966 and lives in Linz. He was represented before the Court by Hintermayr, Krüger, Haunschmidt, Minichmayr and Burgstaller, a company of lawyers practising in Linz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs. On criminal information laid by the Linz Federal Police Office (Bundespolizeidirektion) on 26 November 1996, the Linz Public Proscutor's Office (Staatsanwaltschaft) decided to open preliminary inquiries (Vorerhebungen) against the applicant on suspicion of fraud in the context of investment management. Between 10 December 1996 and 2 February 1999 the Linz Regional Court (Landesgericht) carried out the preliminary inquiries. On 16 January 1997 the applicant's premises were searched. The Regional Court also heard witnesses in Liechtenstein, Italy and Switzerland by way of letters rogatory (Rechtshilfeersuchen) and obtained an expert opinion on book keeping. The Regional Court repeatedly transmitted the file back to the Public Prosecutor's Office for consultation and eventual further requests. It did so on 25 February, 11 April, 16 May, 16 September, 18 November and 29 December 1997, and on 14 January, 27 October and 10 December 1998 and on 22 January 1999. The Public Prosecutor's Office remitted the file on 3 March, 6 May, 21 May, 9 October and 19 November 1997, and on 2 January, 20 January, 2 November and 14 December 1998 and on 27 January 1999 respectively. On 9 February 1999, the Public Prosecutor's Office requested the Regional Court to institute preliminary investigations (Voruntersuchungen) against the applicant. Having taken further evidence, the Regional Court transmitted the file to the Public Prosecutor's Office in October 1999, following which the Public Prosecutor's Office, on 9 November 1999, filed a bill of indictment (Strafantrag), charging the applicant with negligent bankruptcy (fahrlässige Krida) under Section 159 of the Penal Code (Strafgesetzbuch). Subsequently, on 16 November 1999, the President (Vorsteher) of the Linz Regional Court assigned the case to another judge as the judge in charge had declared himself biased. On 6 September 2000 the case was again assigned to another judge due to the fact that the judge in charge had been assigned to other duties. On 8 September 2000 the Regional Court transmitted the file to the Public Prosecutor's Office as, in the meantime, Section 159 of the Penal Code been amended. On 18 September 2000 the Public Prosecutor's Office declared that it would maintain the indictment. On 12 February 2001 the Public Prosecutor's Office urged the Regional Court to hold an oral hearing. On 5 March 2001 the Regional Court scheduled a hearing for 9 July 2001. On that day it held a hearing and postponed the proceedings for an indefinite time. On 30 October 2001 the President of the Linz Regional Court assigned another judge to deal with the case as the judge in charge had moved to the Wels Regional Court. Having held a further hearing on 26 February 2002, the Regional Court acquitted the applicant. The written transcript of the judgment was served on the applicant's counsel on 21 August 2002. SS. 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen). In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the Public Prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (S. 88 § 1). Where the Public Prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she shall either request the institution of preliminary investigations or file a formal accusation (Anklageschrift, Strafantrag; S. 90 §1). According to S. 91 § 2 the preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit for trial and prepare the taking of evidence at the trial. According to S. 93 § 1 the preliminary investigations are in principle conducted by the investigating judge personally and directly. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal." | 0 |
train | 001-98774 | ENG | RUS | CHAMBER | 2,010 | CASE OF VLADIMIR KOZLOV v. RUSSIA | 4 | Violation of Art. 3 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 5. The applicant was born in 1962 and lives in Moscow. 6. On 11 September 1996 Mr Z., the applicant's business partner, was killed. 7. In 1997 Mr Zh. and 17 other persons were charged as an organised group with numerous counts of robbery and murder, including the murder of Mr Z. and the planning of the murder of Ms A., Mr Z.'s girlfriend. 8. On 9 April 1997 the applicant was arrested. He was charged with aiding and abetting the murder of Mr Z. and the planning of the murder of Ms A. The applicant remained in custody pending investigation and trial. His case was joined to the case of Mr Zh. and the others. The applicant's numerous requests to disjoin the cases were rejected both by the prosecutor and the court. 9. On 24 March 1999 the preliminary investigation was completed and the case file was transferred to the Moscow City Court for consideration. 10. On 6 April 1999 the Moscow City Court scheduled the trial for 20 April 1999. 11. The trial lasted from 6 April 1999 until 18 July 2001. The court held 82 hearings. On 36 occasions the court adjourned the proceedings on account of the illness of some of the defendants, a quarantine in place in their detention facilities or their lawyers' failure to appear. The proceedings were interrupted twice on account of a security threat in the courthouse. On six occasions the proceedings were adjourned on account of clashes in the judge's schedule, his illness or the authorities' failure to transport the defendants to the court house. 12. On 18 July 2001 the Moscow City Court found the applicant guilty as charged and sentenced him to eleven years' imprisonment. 13. From 20 July 2001 until 15 October 2002 the defendants studied six volumes of the minutes of the court hearings. 14. On 10 September 2003 the Supreme Court of the Russian Federation heard the case on appeal. The court upheld the applicant's conviction in substance and reduced his sentence to ten years' imprisonment. 15. From 26 November 1997 to 17 August 2001 the applicant was detained in Lefortovo remand prison. He was held in a cell measuring 8 sq. m and had to share it with one or two other inmates. There was no hot water or shower facility in the cell. A partition separating the toilet from the living area of the cell was installed only in 1999. 16. On 17 August 2001 the applicant was transferred to remand prison no. IZ-77/3 where he was detained until October 2003. 17. According to the applicant, the cell where he was detained measured 33 square metres and was equipped with twenty-four bunk beds. The minimum number of inmates detained with the applicant at any one time was twenty-three. In August 2001 the cell housed forty inmates; that number had increased to forty-seven by the end of the year. The inmates took turns to sleep due to the lack of beds. By the beginning of 2003 twenty-three inmates were kept in the cell. The cell did not have any ventilation. It was stiflingly hot in the summer and very cold in the winter. Most of the inmates smoked and the applicant, a non-smoker, was exposed the tobacco smoke of others. The cell was infested with cockroaches and lice. Disinfection of the cell was performed once every three months and was to no avail. The television and the light were constantly on. Window panes were installed only in late 2002. The toilet was elevated from the floor by 0.5 metres. It was separated from the living area of the cell by a partition measuring one metre in height. The person using the toilet could be seen by both the inmates and the guards watching the inmates through the peep-hole in the door. The dinner table was some four metres away from the toilet. On several occasions HIV-infected inmates were placed in the cell. The applicant was allowed to take a 20-minute shower once a week. On one occasion between December 2001 and January 2002 the applicant did not have the opportunity to take a shower for three weeks. He was allowed to be outside for approximately one hour per day. The meals were of poor quality. 18. According to the Government, at all times the applicant was afforded at least 4 sq. m of living space. In particular, the Government provided the following data concerning the cell measurements: 19. Each cell had a window measuring 0.89 by 0.94 metres. The windows were equipped with vents which could be kept open to let additional fresh air in. The ventilation system functioned properly. Upon arrival at the remand prison, the applicant was provided with two bed sheets, a mattress, a blanket, a pillow, a pillow case, a towel, and cutlery. Each cell had a water heater and a potable water tank. The remand prison was equipped with a central water supply, sewage system, ventilation and lighting. In the day the lighting was on from 6 am to 10 pm. At night lower-voltage bulbs were used to maintain lighting for surveillance and safety reasons. The inmates were allowed to watch TV between 6 am and 10 pm. The use of the TV during the night-time was prohibited. The average temperature in the cells did not fall below +180C during the winter and did not exceed +200C during the summer. Window panes were installed for autumn and winter. 20. Each cell had a toilet, a sink, a table and benches. The toilet was separated from the living area of the cell by a one-metre-high partition and a screen to ensure the privacy of the person using the toilet. The applicant could take a shower once a week for at least fifteen minutes. 21. During the time of the trial, that is from 6 April 1999 to 18 July 2001, on the days of the court hearings the applicant was held in custody at the courthouse. 22. The cells at the courthouse measured 2 sq. m. Each time the applicant had to share the cell with two or three other persons. The ventilation system did not function properly and the cells were very hot in the summer. The applicant was not provided with food at all. 23. At the courthouse the applicant was detained in a cell measuring 1.95 by 1 metres. There was a bench in the cell. The cell was equipped with ventilation, lighting, and central heating. The metal door had a peephole. The average temperature in the cell was between 18 and 200C. The applicant was allowed to use the bathroom upon arrival and before departure or before the start of the court hearing, if necessary. He was provided with food and hot water. 24. According to the applicant, numerous newspapers and television channels covered his arrest and the circumstances of Z.'s murder before the trial was over. 25. A documentary made by Mr D. about the case was shown at least six times by one of the nationwide TV channels. The film featured footage of the applicant and Z. aboard a sea cruiser. 26. On 7 March 2002 the prosecutor's office dismissed the applicant's request for criminal proceedings to be instituted against Mr D. | 1 |
train | 001-96123 | ENG | SVK | ADMISSIBILITY | 2,009 | LESKO v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr Jozef Leško, is a Slovak national who was born in 1922 and lives in Soľnička. The Slovakian Government (“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 18 September 1992 the Social Security Administration refused to adjust the applicant’s old-age pension. The decision stated that the applicant had not fulfilled the statutory requirements which would entitle him to the pension’s adjustment according to the Law No. 319/1991 (see "The relevant domestic law" below). The case was subsequently dealt with by courts at two levels. On 8 April 2005 the Supreme Court upheld the judgment of the Košice Regional Court of 23 September 2004 by which the administrative decision of 18 September 1992 had been upheld. The courts established that the applicant had been abducted to the Union of Soviet Socialist Republics as a captive of the Hungarian army from the present territory of Austria and not as an individual from the territory of Slovakia. These established facts led to the conclusion that the applicant had not been entitled to the adjustment of his old-age pension. On 6 October 2005 the applicant complained to the Constitutional Court about unfairness and length of the proceedings before the Supreme Court. On 25 October 2006 the Constitutional Court rejected his complaint. The latter observed that the length of proceedings complaint had been submitted belatedly. As far as the alleged unfairness was concerned, the Constitutional Court stated that it was primarily for the ordinary courts to interpret and apply the domestic legislation and that its role was limited to verifying whether the effects of such interpretation are compatible with the Constitution or international conventions on human rights. The Constitutional Court declared this part of the complaint inadmissible as being manifestly-ill founded as the applicant had alleged errors of facts and law committed by ordinary courts. Section 2 of Law No. 319/1991 on Mitigation of Certain Wrongs of Material Nature and on Powers of State Authorities in the Sphere of Extrajudicial Rehabilitation (Zákon o zmiernení niektorých majetkových krívd a o pôsobnosti orgánov štátnej správy Slovenskej republiky v oblasti mimosúdnych rehabilitácií) was intended to give means of redress to individuals who were forcibly abducted to the Union of Soviet Socialist Republics or to the camps established by the Union of Soviet Socialist Republics in other states between 1944 and 1946. The persons concerned (or their heirs) are to be awarded pecuniary compensation for the period of abduction and for death during the period of abduction. The entitled person is an individual, who was unlawfully and forcibly abducted by the forces of the Ministry of the Interior of the Union of Soviet Socialist Republics to the Union of Soviet Socialist Republics from the present territory of the Slovak Republic, where such person is a citizen of the Czech and Slovak Federative Republic or its successor States, has permanent residence within its territory, originates from the present territory of the Slovak Republic and the descendants of such person live there. | 0 |
train | 001-105017 | ENG | SVN | ADMISSIBILITY | 2,011 | SUHADOLC v. SLOVENIA | 3 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | The applicant, Mr Uroš Suhadolc, is a Slovenian national who was born in 1961 and lives in Tržič. He was represented before the Court by Mr L. Poljanec from Slovenska Bistrica. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney. The facts of the case, as submitted by the parties, may be summarised as follows. On the evening of 12 May 2006 the applicant was driving a car near the town of Kranjska Gora, where a police officer using a laser speed measurement device identified his speed as 76 km/h. The speed limit was 50 km/h. The applicant’s car was stopped and he was asked to undergo a breath alcohol test. Two police officers conducted the procedure. The electronic device for measuring the level of alcohol in the applicant’s breath gave a reading of 0.39 mg/l. The applicant was informed that he was charged with committing two road traffic offences under the Road Traffic Safety Act, namely the offences of driving in excess of the speed limit and driving under the influence of alcohol, with a blood alcohol content of at least 0.34 milligrams of alcohol in one litre of breath. He was barred from continuing to drive. Two reports were prepared on the spot. A report concerning the measurement of the applicant’s speed contained, amongst other information, the specification of the speed measuring device, the date, time and place of the measurement and the results captured by the device, as well as the name of the officer using the device and the identification number of the certificate proving his competence to use the device. The report concerning the breath alcohol test contained, amongst other information, the specification of the device used and the results, and noted that the applicant had agreed with the results. The applicant also signed the report and was given a copy of it. Lastly, the applicant was issued with a written notice indicating the charges and inviting him to submit a written statement in reply within five days. On 16 May 2006 the applicant submitted a written statement in which he denied committing any offence. He argued that the speed measuring device should not have been used in the dark and that his vehicle did not have the capacity to reach the speed shown by the device. The police must have confused his car with another vehicle or misused the speed measuring device. He further argued that there had been no road signs indicating the speed limit on the road where he had been driving. Moreover, the applicant disputed the credibility of the breath alcohol test and alleged that it had been exposed to factors whose presence or functioning could have interfered with the results, such as the police radio. On 8 August 2006 the Kranjska Gora Police issued a decision. The applicant was found to have committed the two offences and was given a fine – combined to cover both offences – of 100,000 Slovenian tolars (SIT) (approximately 400 euros (EUR)) and seven penalty points. The decision referred to the two police reports, which indicated the results of the speed measurement and the breath alcohol test. It rejected the applicant’s arguments concerning the misuse of the speed measuring device, noting that the device had been designed in such a way that in the event of any interference, the wrong position being used or a loss of signal no result would be shown. It also referred to the confirmation of the Slovenian Metrology Institute that the type of device in question complied with the relevant technical requirements. As regards the breathalyser, the decision mentioned that special tests had been carried out at the request of the Ministry of Interior to verify the effect of mobile phones and radio devices on breathalyser results. The tests proved that there was no such effect. As regards the applicant’s argument concerning the lack of a road sign showing the speed limit, the police explained that the speed limit of 50 km/h applied by virtue of the general rule concerning the speed limit in inhabited areas. Finally, the applicant was ordered to pay approximately 20,000 SIT (approximately EUR 80) for the costs of the proceedings. On 12 September 2006 the applicant lodged a request for judicial review. He alleged that only a judge could have validly convicted him. He further complained that the time-limit for the submission of the request for judicial review was too short. He denied committing the offences and demanded that the police prove their allegations. In particular, he asked the police to prove that it had been his speed captured by the device, and to supply documents demonstrating the credibility of the laser machine’s results and the method used to measure the level of alcohol in his breath, as well the competence of the officer to handle the speed measuring device. The Jesenice Local Court delivered a judgment rejecting the request as unsubstantiated on 15 April 2008. The court noted at the outset that the applicant had lodged a “standard” request for judicial review. It found that the procedure had not infringed applicable legislation and, in particular, that the facts had been properly established by the police officers. The court referred to the two reports prepared by the officers on the spot, a certificate which demonstrated that the respective police officer had undergone appropriate professional training for the use of the laser device in question and the confirmation of the Slovenian Metrology Institute that this type of device complied with the relevant technical requirements. As regards the breath alcohol test, the court noted that the applicant’s conviction for driving under the influence of alcohol had been based on the report indicating the results of the breath alcohol test, which had been signed by the applicant without comment. Since the applicant had agreed with the report, no further steps had been taken by the police to establish the applicant’s level of intoxication. Finally, the court also found that the impugned decision had not violated the applicant’s constitutional rights, as it had been issued in accordance with applicable law and judicial review had been available to him. The court also rejected his complaint concerning the eight-day time-limit, stating that this was a statutory time-limit of which he had been informed in the police’s decision. The applicant was ordered to pay EUR 90 for the costs of the proceedings. On 9 May 2008 the applicant lodged a constitutional appeal, alleging a violation of fair trial guarantees – in particular, that any fine should be imposed by a judicial and not by a police procedure; that he had been charged and convicted by the police; and that the guarantees enshrined in Articles 23, 24 and 29 of the Constitution had not been provided to him. In addition, he complained that no ordinary appeal lay against the local court’s judgement. The Constitutional Court dismissed the applicant’s constitutional appeal on 26 May 2008. It relied on point three of the first paragraph of section 55b of the Constitutional Court Act, read together with point four of the second paragraph of section 55a of that Act (see “Relevant domestic law and practice” below). The Constitutional Court’s decision was served on the applicant on 6 June 2008. “Everyone has the right to have any decision regarding his rights, duties and any charges brought against him made without undue delay by an independent, impartial court constituted by law. Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual.” “Court hearings shall be public. Judgments shall be pronounced publicly. Exceptions shall be provided by law.” “Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights: - the right to have adequate time and facilities to prepare his defence; - the right to be present at his trial and to conduct his own defence or to be defended by a legal representative; - the right to present all evidence to his benefit; - the right not to incriminate himself or his relatives or those close to him, and to not admit [his] guilt.” Prior to 1 January 2005, proceedings concerning regulatory offences were regulated by the Minor Offences Act 1983 (Zakon o prekrških, Official Gazette of the Socialist Republic of Slovenia no. 25/1983, as amended). Under that law, proceedings were conducted by judges handling minor offences. Appeals against their decisions were dealt with by judicial panels handling minor offences. On 18 December 2002 a new Minor Offences Act (hereinafter referred to as “the MOA”, Official Gazette no. 7/2003) was enacted by the Slovenian Parliament. It came into force on 7 February 2003 and began to be implemented from 1 January 2005. As stated in the travaux préparatoires to this law, the reform was considered necessary because of the heavy backlogs faced by the courts and the need to simplify and expedite the processing of cases concerning minor offences. Under section 6 of the MOA, an “offence” means any act that is against the law, or is in breach of a Government regulation or local self-government ordinance, and which is, as such, designated as a punishable minor offence. While the MOA contains some specific provisions concerning the elements of a minor offence and responsibility for such an offence, it also refers to provisions of the Penal Code, which are to be applied by analogy in minor offence procedure. In addition, the principle of the presumption of innocence is included in the MOA, which in section 7 states that “persons accused of having committed minor offences are innocent until their responsibility is established by a final decision”. The MOA provides for sanctions in respect of minor offences, namely a fine, a warning, penalty points (which can lead to withdrawal of a driving licence), a ban on driving, expulsion of a foreigner from Slovenia and seizure of items (sections 17-25 of the MOA). The significant difference between the old and the new system introduced by the MOA is the establishment of a summary procedure (hitri postopek), which is conducted by administrative authorities such as the police or inspectorates. An administrative authority may start a procedure upon its own motion or upon request. If a defendant has not had an opportunity to reply to the charges when the offence was recorded or considered by the authority, the latter, before issuing any decision, shall invite the defendant to submit a written reply. The decision should include a short reference to the defendant’s statement and state the facts and evidence on which it is based. It must also include a warning as to the possibility of imprisonment for non-payment (sections 49-58). Summary procedure is used as a rule for minor offences, subject to the following exceptions: cases where another person has been injured; offences where an additional sentence can be imposed; cases where an additional penalty of a driving ban is envisaged; cases where a pecuniary claim or a minor is involved, or which concern military duties; or cases where an additional sentence of penalty points which are sufficient to lead to the withdrawal of a driving licence is envisaged (section 52 of the MOA). These cases are dealt with by courts handling minor offences in ordinary judicial proceedings (redni sodni postopek) in which the Criminal Procedure Act is applied by analogy. After the summary procedure, judicial review is available. An application for such review is dealt with by a single judge at a court handling minor offences, which is normally a local court (sections 59-66 of the MOA). A defendant has the right to lodge an application for judicial review within eight days from the receipt of an administrative authority’s decision concerning a minor offence. By lodging such an application, a defendant renounces the opportunity of paying a reduced fine. In addition, an application, in principle, suspends payment of the fine. An application can be lodged on standard appeal grounds (a violation of procedural or substantive law, erroneous or insufficient establishment of facts, and/or a challenge to the sanction). It should be filed with the administrative authority that issued the relevant decision. If the authority considers that the request is well-founded, it may annul or change its decision. If not, it sends the file and any additional evidence to the local court (section 63 of the MOA). A judge can decide on the admissibility and merits of the application on the basis of the file received from the administrative authority. Under section 65 of the MOA, the judge may reject the application in a judgment, if there is no need for further fact-finding and if the grounds for appeal are not established. This is done without hearing the applicant. If the judge finds that the facts were correctly established but that a different sanction should be imposed, he may uphold the application in part and modify the administrative authority’s decision accordingly. If a violation of procedural or substantive law is established or if further fact-finding is required, the judge quashes the decision and decides on the case in ordinary judicial proceedings to which the accused and the authority that issued the impugned decision are parties. In these judicial proceedings, the defendant has a right to be heard orally by the judge, to adduce evidence, to make procedural requests and to appeal against the judgment (sections 67-168 of the MOA). An appeal to the Higher Court can be lodged on all grounds against a first-instance court’s decision declaring an application inadmissible and against a judgment by which the administrative authority’s decision has been modified to the defendant’s disadvantage following additional fact-finding. In addition, an appeal can be lodged on all grounds, except factual ones, against a decision imposing a fine higher than the minimum amount or ordering a seizure of items worth more than 400 euros. The relevant provisions of the Road Traffic Safety Act (Zakon o varnosti cestnega prometa, Official Gazette no. 3/2004, implemented from 1 January 2005) read as follows: “(1) The speed limit shall be: – 50 km/h – on roads in inhabited areas; ... (7) A driver who exceeds the speed limit determined by the general rule or road signs on a road in an inhabited area, shall be liable for the following fine: ... (c) if he exceeds the speed limit by more than 20 but less than 30 km/h, - 60.000 SIT. The driver shall also be given 3 penalty points; ...” “... (2) All other drivers may have a maximum of 0.50 grams of alcohol per kilogram in their blood or 0.24 milligrams of alcohol in one litre of breath.... ... (4) A driver... who violates paragraph 2 of this section, shall be punished with a fine [as follows]: ... (b) if he has more than 0.50 but less than 0.80 grams of alcohol per kilogram of blood or more than 0.24 but less than 0.38 milligrams of alcohol in one litre of breath, with a minimum [fine of] 40,000 SIT. ... The driver ... shall also be given 4 penalty points. ...” “(1) An administrative body can also decide in summary proceedings on a minor offence for which, apart from a fine, a sentence of a maximum of five penalty points is prescribed [for each offence]... ... (3) A court ... shall declare invalid the driving licence of a driver who, on the basis of the decision of the administrative body, reaches or exceeds eighteen penalty points. ...” The Constitutional Court Act (Zakon o ustavnem sodišču, Official Gazette no. 15/1994) was adopted on 8 March 1994. It stated that a constitutional appeal was inadmissible if it did not concern an important legal issue and if an alleged violation of human rights or fundamental freedoms did not have significant consequences for the complainant. On 30 May 2007 the Slovenian Parliament adopted an amendment to the Constitutional Court Act (Official Gazette no. 51/2007, hereinafter referred as “the Amendment”) which limited the availability of constitutional appeals by, inter alia, excluding the possibility of challenging decisions issued in proceedings concerning minor offences. However, such cases could, exceptionally, be examined if they raised important constitutional questions extending beyond a specific case. The Amendment came into force on 15 July 2007. The relevant provisions of the amended Act (Official Gazette no. 64/2007 – official consolidated version) read as follows: “(1) The Constitutional Court shall decide in a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional appeal.” “(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. ...” Section 38 of the Amendment, concerning transitional rules, provides so far as relevant: “(1) Proceedings which are pending at the time of entry into force of this Amendment shall be continued according to the provisions of the Amendment. ... (3) If the Constitutional Court has declared a constitutional appeal admissible before the entry into force of this Amendment, it shall decide [the case] regardless of Articles 55a and 55b.” The Supreme Court has established precedents as regards the rights of the defence in minor offence proceedings. Its case-law has been developed on the basis of its jurisdiction to decide on requests for the protection of legality (zahteva za varstvo zakonitosti) lodged by the public prosecutor in cases concerning minor offences. According to the extracts from the relevant case-law submitted by the Government, the Supreme Court has found that an offender must have the opportunity to defend himself in the proceedings, in particular, to respond to all the factual and legal aspects of the case (judgments nos. IV Ips 58/2007, IV Ips 49/2007, IV Ips 78/2008). The Supreme Court has also decided that the local courts are not required to examine every piece of evidence put forward by the offender. They must, however, examine evidence whose relevance is sufficiently established (judgment no. IV Ips 45/2007). In the context of minor offences which entail a presumption of the vehicle owner’s liability, the Supreme Court has found that that the accused must offer convincing and reasonable evidence in his defence. The defendant must specify the evidence and the facts which it is claimed are proved by it (judgment no. IV Ips 45/2008). Finally, the Supreme Court has found that the local courts must examine every specific argument which refers to significant facts, reply to such arguments and explain its decision taken on those points. However, the courts do not have to examine statements which are legally irrelevant and are not required to reply to statements of a general nature. Neither must they repeat the reasons given by the administrative authority, but rather can simply endorse its findings (judgment no. IV Ips 30/2007). By decision no. Up-3663/07 of 10 September 2009, the Constitutional Court assessed a local court’s refusal to hear a witness in minor offence proceedings. The appellant had been fined for parking his car illegally, but denied that he had been using his car at that time. In his request for judicial review, he asked the local court to hear a witness who would prove his alibi. However, that request was rejected by the court, which decided that the applicant should have submitted documents in his defence. The Constitutional Court found that the applicant’s right to defend himself enshrined in Article 29 of the Constitution had been violated, as the local court, which should have heard the witnesses, had unlawfully limited the appellant’s choice of defence method. | 0 |
train | 001-102975 | ENG | DEU | CHAMBER | 2,011 | CASE OF HERRMANN v. GERMANY | 3 | Remainder inadmissible;No violation of P1-1;No violation of Art. 14+P1-1;No violation of Art. 9 | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 6. The applicant was born in 1955 and lives in Stutensee. 7. Under the German Federal Hunting Law (Bundesjagdgesetz), owners of hunting grounds with a surface of less than 75 hectares are de jure members of a hunting association (Jagdgenossenschaft), while owners of bigger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate which are smaller than 75 hectares in a single block. He is thus an automatic member of a hunting association, in the instant case of the municipality of Langsur. 8. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority to terminate his adherence to the hunting association. The authority rejected his request on the grounds that his adherence was prescribed by law and that there was no provision on the termination of adherence. 9. The applicant brought proceedings before the Treves Administrative Court. Relying in particular on the Court's judgment in the case of Chassagnou and Others v. France ([GC] nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III), he requested the court to establish that he was not a member of the hunting association of the municipality of Langsur. 10. On 14 January 2004 the administrative court rejected the applicant's request. It considered that the Federal Hunting law did not violate the applicant's rights. With regard to the Chassagnou-judgment the administrative court considered that the situation in Germany differed from the one in France. It observed, in particular, that the German owners of hunting grounds, by way of their adherence to the hunting association, were in a position to influence the decision-making process on how the hunting rights should be exercised. Furthermore, they had a right to receive a share of the profits derived from the exploitation of the hunting rights. All owners of plots which were too small to allow a proper management of hunting rights adhered to a hunting association. The court also considered that the hunting associations did not only serve the leisure interests of those who exercised the hunting rights, but imposed certain specific obligations on them, which served the general interest, in particular the duty to manage the game stock with the aim of maintaining varied and healthy game populations and to avoid damages caused by wild game. They were furthermore obliged to comply with specific quotas set by the administration for the hunting of game. These duties applied in the same way to the owners of hunting grounds more the 75 hectares of area, notwithstanding the fact that these bigger plots were not regrouped in hunting associations. 11. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court rejected the applicant's appeals on the same grounds as the administrative court. 12. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit the applicant's constitutional complaint for adjudication. It noted, at the outset, that the provisions of the Federal Hunting Law did not violate the applicant's right to the peaceful enjoyment of his property, but defined and limited the exercise of this right in a proportionate way. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on the landowners. 13. When defining the content and the limits of property rights, the legislator had to weigh the proprietors' legitimate interests against the general interest. He had, in particular, to respect the principles of proportionality and of equal treatment. The limitations imposed on the exercise of property rights must not infringe the core area of the protected right. The margin of appreciation allocated to the legislator depended on the specific context; the stronger the social context, the wider the margin of appreciation. 14. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant's obligatory adherence to a hunting association did not violate his property rights. The core-area of that right was not infringed. The Federal Hunting Law pursued legitimate aims and limited the property rights in a proportionate way. Encompassed in the notion of “management and protection of the game stock (Hege)”, it had the aim to preserve the game in a way that was adapted to the rural and cultural conditions, and to ensure a healthy and varied wildlife. Under the Federal Hunting Law, game keeping was not only an instrument to prevent damages caused by wild-life, but also to avoid any impediment to the agricultural, forestry and fishery exploitation of the land. These aims served the general interest. 15. The obligatory adherence to a hunting association was an appropriate and necessary means to achieve these aims. Referring to paragraph 79 of the above-cited Chassagnou judgment, the Constitutional Court considered that the Court had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. The obligatory adherence to a hunting association was also a proportionate means. The impact on the property rights was not particularly serious and did not outweigh the general interest in a rational management of game stocks. Furthermore, the Federal Hunting Law endowed every member with the right to participate in the decisionmaking process and to receive a share of the profits derived from the lease of the hunting rights. 16. The Constitutional Court further considered that there was no violation of the applicant's freedom of conscience. Referring to paragraph 114 of the Chassagnou judgment, it accepted that the applicant's convictions attained a certain level of cogency, cohesion and importance and where therefore worthy of respect in a democratic society. Accordingly, the Federal Constitutional Court considered that the applicant's complaint might fall within the scope of freedom of conscience, but that there was, in any event, no violation of that right. The applicant was neither enjoined to exercise the hunt himself, nor to participate in it or to support it. The fact that he had to tolerate the exercise of the hunt on his premises did not result from his own decision, but was the result of the legislator's legitimate decision. The right to freedom of conscience did not encompass the right that the whole legal order was submitted to one's own ethical standards. If the legal order distributed the right to exploit a certain property to several claimholders, the owner's conscience did not necessarily outweigh the other claimholders' constitutional rights. If the applicant's landholding – and that of other owners who were opposed to hunting – were removed from the hunting association because of their convictions, the whole system of property ownership and of the management of the game stock would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case. 17. The Federal Constitutional Court further considered that the applicant's complaint did not come within the scope of the right to freedom of association, because the German hunting associations were of a public nature. Vested with administrative, rule-making and disciplinary prerogatives, they remained integrated into State structures. There was thus no doubt that the association was not simply qualified as “public” in order to remove it from the scope of Article 11 of the Convention. 18. The Federal Constitutional Court further considered that the applicant's right to equal treatment had not been violated. There was an objective reason which justified drawing a distinction between the owners of landholdings less than 75 hectares in area and those more than 75 hectares in area. Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Law applied to the whole surface of Germany and was binding on all landowners. The owners of land more than 75 hectares in area had the same duties in game keeping as those adhering to hunting associations. 19. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had accentuated the differences between the German law and the French Law as applicable at the relevant time. 20. Article 20a of the Basic Law provides: “Mindful also of its responsibility toward future generations, the State shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” Section 1 § 1 of the Federal Hunting Law (Bundesjagdgesetz) provides that the hunting right encompasses the right to manage and protect the game stock on a particular area of land, to exercise the hunt and to take possession of the game. The hunting right is linked to the duty to manage and protect the game stock (Pflicht zur Hege). Under § 2 of that section, the management of the game stock is aimed at maintaining varied and healthy game populations at level compatible with land care and cultural conditions and at avoiding game damage. § 3 distinguishes between the hunting right (Jagdrecht) and the right to exercise the hunt (Ausübung des Jagdrechts). The landowner has the hunting right on his premises. The right to exercise the hunt is regulated by the following provisions: Section 4 of the Hunting Law provides: “The hunt may be exercised either on private hunting districts (section 7) or common hunting districts (section 8).” Section 6 (enclosed premises, stay of the hunt) reads as follows: “The hunt is stayed on surfaces, which do not belong to a hunting district, and on enclosed surfaces (befriedete Bezirke). A limited exercise of the hunt may be permitted. This law does not apply to zoological gardens.” Section 7 provides, inter alia, that plots of at least 75 hectares of surface which can be exploited on an agricultural, forestry or fishery level and which belong to one single owner constitute a private hunting district. Section 8 provides that all surfaces which do not belong to a private hunting district constitute a common hunting district if they have an overall surface of at least 150 hectares. Section 9 § 1 provides as follows: “The owners of surfaces belonging to a common hunting district form a hunting association. Owners of surfaces on which the hunt must not be exercised do not belong to the hunting association.” Section 10 reads as follows: “(1) The hunting association generally exploits the hunt by lease-hold. The lease can be limited to the members of the association(...) (2) The hunting association is allowed to practice the hunt on its own account by chartered hunters. With the agreement of the competent authority, it can decide to stay the hunt (Ruhen der Jagd ). (3) The association decides about the use of the net profit of the hunt. If the association decides not to distribute it to the owners of hunting grounds according to the surface they own, each owner who had contested this decision is allowed to claim his share. ...” Section 20 provides: “(1) Hunting is prohibited in areas where the practice of the hunt would, under the specific circumstances of the case, disturb public peace, order or security or would endanger human life. (2) The practice of the hunt in nature and wildlife protection areas and in national and wildlife parks is regulated by the Länder.” Section 21 provides: “(1) The shooting of the game is to be regulated in a way which fully safeguards the legitimate interests of agriculture, fishery and forestry to be protected from damages caused by wild game and which takes into account the necessities of nature protection and landscape conservation. Within these limits, the regulation of the shooting of the game shall contribute to maintain a healthy population of all domestic game in adequate numbers and, in particular, ensure the protection of endangered species.” Section 7 of the Hunting Law of the Land of Rhineland-Palatinate provides, inter alia, as follows: “(1) The Hunting association is a public law corporation. It is subject to State supervision. The supervision is exercised by the lower hunting authority...The hunting association has to issue its own internal statute (Satzung). The internal statute has to be approved by the supervising authority unless it is in accordance with a model statute issued by the highest hunting authority; in this case notice of the statute has to be given to the lower hunting authority. If the hunting association fails to issue a statute within one year after the issue of the model statute, the supervising authority issues an internal statute and publishes it...at the expense of the association. ... (4) Cost orders (Umlageforderungen) are to be executed under the provisions of the law on the execution of administrative acts. The execution rights are exercised by the exchequer who executes the claims of the community in which the association is situated....” | 0 |
train | 001-109108 | ENG | SWE | ADMISSIBILITY | 2,012 | ESKILSSON v. SWEDEN | 4 | Inadmissible | André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska | The applicant, Mrs Annette Eskilsson, is a Swedish national who was born in 1952 and lives in Bor. The Swedish Government (“the Government”) were represented by their Agent, Ms A. Erman, of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. As from 1994 the applicant held a leading position in a big hospital. From 1996 onwards she suffered increasingly from stress and hypertension to the extent that she experienced burnout and was no longer able to work and therefore went on sick leave as from August 1998. At this time she also submitted an occupational injury report (arbetsskadeanmälan) to the Social Insurance Office (Försäkringskassan) in Mora. In June 1999 the Social Insurance Office granted her an early retirement pension on the ground that she had permanently lost her work capacity because she suffered from hypertension and burnout. In the meantime, on 6 May 1999, the applicant filed an application for life annuity (livränta) with the Social Insurance Office, claiming that her burnout and hypertension had been directly caused by her work. In January 2000 the applicant submitted a medical certificate from her doctor, Dr E.F., which stated that she suffered from burnout and hypertension and that her work situation had caused or worsened these conditions. However, on 7 November 2000, Dr B.K., one of the Social Insurance Office’s own medical doctors (försäkringsläkare), made the assessment that the applicant’s work had involved such a high level of stress that it had worsened her hypertension but that it had not caused it. As concerned the burnout, there was a lack of scientific consensus that burnout could be caused by factors such as those to which the applicant had been exposed at her work. On 21 November 2000 the Social Insurance Office informed the applicant that it was considering rejecting her application for life annuity. It sent her a copy of the case-file and asked her to submit any comments she might have. The applicant replied on 26 November 2000 that she maintained her claims and, in December 2000, she submitted a new medical certificate by Dr E.F. In view of these documents, the Social Insurance Office again asked Dr B.K. to assess the applicant’s condition. Dr B.K. did not alter his assessment. On 24 April 2001 the Social Insurance Office rejected the applicant’s application for life annuity on the ground that her medical problems could not be regarded as work-related. The medical opinion given on 7 November 2000 by Dr B.K. was attached to the decision. By letter dated 22 May 2001 the applicant appealed to the County Administrative Court (länsrätten) of Jönköping, claiming that she had a right to a life annuity and maintaining that her medical conditions had been caused by her work. On 17 October 2001 the County Administrative Court rejected the applicant’s appeal. It found, on the basis of several medical opinions including the ones given by Dr B.K. and Dr E.F., that it had not been established that the working conditions had caused the burnout and the hypertension. By letter dated 5 December 2001 the applicant appealed to the Administrative Court of Appeal (kammarrätten) of Jönköping, reiterating her claims already presented before the County Administrative Court. The appellate court decided to request an expert opinion which was received by the court on 30 April 2002. By decision of 17 December 2002, the court granted leave to appeal. Subsequently, in June 2004, the applicant, who was now represented by legal counsel, requested that an expert opinion be obtained from a psychiatrist. The court granted the request and ordered that the opinion be submitted no later than 1 October 2004. After the court had contacted the psychiatrist, Dr I.W., on five occasions over the phone and once by mail, the opinion was finally submitted on 14 March 2005. Both parties were given the opportunity to comment on the expert opinions and each others’ submissions, which they did. Moreover, the applicant requested and was granted an extension of time-limit to submit her comments and further medical certificates on several occasions. On 9 June 2005 the Administrative Court of Appeal rejected the appeal, finding that the applicant’s working conditions had not contained harmful elements of such scale, duration and intensity that they could have caused, with a high level of probability, her hypertension and burnout. By letter dated 1 September 2005 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances. On 18 September 2007 the Supreme Administrative Court refused the applicant leave to appeal. Chapter 3 of the Tort Liability Act deals with the civil liability of the State. According to Section 2 of that chapter, acts or omissions by a public authority may give rise to an entitlement to compensation in the event of fault of negligence. An individual who wants to claim compensation from the State may proceed in either of two different ways: He or she may either petition the Chancellor of Justice (Justitiekanslern) in accordance with Section 3 of the Ordinance on the Administration of Claims for Damages against the State (Förordning om handläggning av skadeståndsanspråk mot staten, 1995:1301), or bring a civil action against the State before a district court, with the possibility to appeal to a court of appeal and the Supreme Court. No appeal lies against a decision of the Chancellor of Justice. However, if the claim is rejected, the claimant still has the possibility to institute civil proceedings before the courts. In such proceedings, the State is represented by the Chancellor of Justice (section 2 of the Ordinance with Instructions for the Chancellor of Justice [Förordning med instruktion för Justitiekanslern, 1975:1345]). In a judgment of 9 June 2005 (NJA 2005 p. 462) the Supreme Court dealt with a claim for damages brought by an individual against the Swedish State, inter alia, on the basis of an alleged violation of Article 6 of the Convention. The case concerned the excessive length of the criminal proceedings and the Supreme Court held that the plaintiff’s right under Article 6 of the Convention to have the criminal charges against him determined within a reasonable time had been violated. Based on this finding, and with reference, inter alia, to Articles 6 and 13 of the Convention and the Court’s case-law under these provisions, in particular the case of Kudła v. Poland ([GC], no. 30210/96, ECHR 2000XI), the Supreme Court concluded that the plaintiff was entitled to compensation under Swedish law for both pecuniary and non-pecuniary damage. With respect to the level of compensation for non-pecuniary damage, the Supreme Court took note of the criteria established in the Court’s case-law stating that the Court’s practice constituted a natural point of departure in this regard. In a decision of 4 May 2007 (NJA 2007 p. 295), the Supreme Court held that the principle concerning a right to damages established in the above-mentioned case of 9 June 2005 also applied with regard to the rights contained in Article 5 of the Convention. The Supreme Court stated that the plaintiff’s right to damages on account of a violation of Article 5 should be assessed in the first place under the Tort Liability Act (Skadeståndslagen, 1972:207) and the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövanden och andra tvångsåtgärder, 1998:714). To the extent necessary, the relevant provisions of domestic law should be interpreted in accordance with the Convention. If Sweden’s obligations under Article 5 § 5 could not be met by such an interpretation, the domestic courts should award compensation without the support of specific legal provisions. As concerned the determination of the level of compensation, the Supreme Court repeated that the Court’s case-law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from one country to another in what should be regarded as a reasonable level of compensation. In a judgment of 21 September 2007 (NJA 2007 p. 584), the Supreme Court held that the plaintiffs’ right to respect for their private life under Article 8 had been violated on the basis that a police decision on a medical examination of some of them had not been “in accordance with the law”. Having found that compensation for the violation could not be awarded directly on the basis of the Tort Liability Act, the Supreme Court held that there was no reason to limit the scope of application of the principle established in the above-mentioned cases of 9 June 2005 and 21 September 2007 to violations of Articles 5 and 6 of the Convention. In view of this and with reference to, inter alia, Articles 8 and 13 of the Convention and the Court’s case-law under these Articles, the Supreme Court concluded that the plaintiffs should be awarded non-pecuniary damages for the violation of Article 8. With regard to the levels of compensation, the Supreme Court concluded that they should not be too far removed from the levels which applied when awarding damages under the Tort Liability Act. Generally speaking these levels should, however, be compatible with the case-law of the Court. In the same case, Svea Court of Appeal had also concluded, in a judgment dated 12 January 2006, that there had been a violation of Article 8 and that an award for non-pecuniary damage should be made on the basis of the principle established in the case of 9 June 2005. A further Supreme Court judgment of 28 November 2007 (NJA 2007 p. 891) concerned a claim for damages against the Swedish State on the basis of an alleged violation of Article 2 of the Convention relating to the suicide of the plaintiffs’ father while in detention. The Supreme Court concluded that the case revealed no violation of Article 2. However, in its reasoning leading to this conclusion, the Supreme Court noted, inter alia, that according to the Court’s case-law there was a right to an effective remedy under Article 13 connected to the State’s duty under the Convention to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty, which should, in principle, include a possibility of obtaining compensation for damage. The Supreme Court referred in particular to the judgment in Keenan v. the United Kingdom (no. 27229/95, § 130, ECHR 2001III). In a judgment of 3 December 2009 (NJA 2009 N 70), the Supreme Court confirmed its previous case-law in a case concerning claims for damages against the Swedish State on account of excessive length of tax proceedings. The court affirmed that it is now a general principle of law that to the extent that Sweden has a duty to provide redress to victims of Convention violations through a right to compensation for damages, and that this duty cannot be fulfilled even by interpreting national tort law in accordance with the Convention (fördagskonform tolkning), compensation for damages may be ordered without direct support in law. Lastly, on 16 June 2010 the Supreme Court ordered compensation for non-pecuniary damage to be paid to an applicant for proceedings which had complied neither with the “reasonable length” requirement in Article 6 nor the right to an effective remedy in Article 13. The proceedings in question had concerned a claim for damages against the State. In May 2009 the Government decided to set up a working group on tort liability and the Convention to study the current legal situation. In December 2010 the working group submitted its report (Skadestånd och Europakonventionen, SOU 2010:87) to the Government. In the report it is proposed that the Tort Liability Act be amended in order to allow natural and legal persons to obtain damages from the State or a municipality for violations of the Convention. Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the Convention has been violated. The aim of the proposal is to provide a legal basis for granting non-pecuniary damages arising from disregard of the Convention and to fulfil, together with the other already existing legal remedies, Sweden’s obligations under Article 13 of the Convention. In its comments on the above report the Office of the Chancellor of Justice, on 7 July 2011, stated that, since the autumn of 2007 following the Supreme Court’s case-law developments (as set out above), it had dealt with a large number of requests from individuals for compensation on the basis of violations of the Convention. It estimated that it had dealt with roughly 1000 cases over the previous three years. During this time the Chancellor of Justice had also represented the Swedish State in a number of cases before the civil courts concerning alleged violations of the Convention. A majority of the cases that the Office had dealt with had concerned non-pecuniary damages for excessive length of proceedings under Article 6 § 1 of the Convention. Since November 2009, it had received more than 400 such complaints and in more than half of them, the Chancellor of Justice had found a violation and granted compensation. The level of compensation for non-pecuniary damage had been determined with reference to the Court’s case-law and varied between SEK 10,000 and SEK 30,000 (approximately EUR 1,100 and EUR 3,300). Furthermore, the Chancellor of Justice had dealt with a substantial number of cases (around 160) concerning the registration of individuals in the register of the Security Police. These cases had concerned one or more of Articles 8, 10, 11 and 13 of the Convention. There had also been other individual cases relating to alleged violations of Articles 5 and 7 of the Convention, among others. | 0 |
train | 001-107362 | ENG | UKR | ADMISSIBILITY | 2,011 | VASYLENKO v. UKRAINE | 3 | Inadmissible | Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Stanislav Shevchuk | The applicant, Mr Sergey Konstantinovich Vasylenko, is a Ukrainian national who was born in 1977 and lives in Dnipropetrovsk. He was represented before the Court by Mr V. Koloshin, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 March 2003 an officer of the Traffic Police stopped the applicant for having exceeded a displayed 40 kph (kilometres per hour) speed limit by 40 kph. The officer, using a speed measurement device, noted that the speed limit had been exceeded. He drew up an official report in the presence of the applicant, who made no objections, and sent the report to the Krasnogvardiysky District Court of Dnipropetrovsk (“the District Court”) for its consideration. On 30 April 2003 the District Court considered the applicant’s case in the absence of any party. It found that the applicant had exceeded the speed limit while driving a vehicle. It further found the applicant guilty of the offence defined in Article 122 § 1 of the Code of Administrative Offences, and imposed a fine of 17 Ukrainian hryvnias (UAH) on him. The District Court noted in its judgment that the applicant had been notified of the date of the hearing. According to the applicant, he never received any notice concerning the hearing in the District Court. On 2 June 2003 the applicant was served with a copy of the judgment of 30 April 2003. The judgment was not subject to an ordinary appeal. On 5 June 2003 a prosecutor of the Dnipropetrovsk Regional Prosecutor’s Office, replying to a request by the applicant for an extraordinary review of the judgment of 30 April 2003, informed him that there were no grounds for lodging an objection (протест) against that judgment. On 11 June 2003 the applicant submitted to the President of the Dnipropetrovsk Regional Court of Appeal a request for an extraordinary review of the judgment of 30 April 2003. The applicant contended that he had not been notified of the hearing and that his case had been wrongly determined. By a letter dated 26 June 2003 the President of the Regional Court of Appeal notified the applicant that his request for an extraordinary review had been refused since the impugned court judgment was lawful and reasonable. Article 122 § 1 of the Code prohibited drivers of vehicles from, inter alia, exceeding the prescribed speed limit by more than 20 kph. A breach of that provision was punishable by a written warning or a fine of up to an amount equal to the tax-free monthly income. In accordance with Article 268 of the Code, any administrative case had to be considered in the presence of the person concerned. The case could be considered in the absence of that person only if there was information that he or she had been duly notified of the hearing and if he or she had not made any request for an adjournment. Article 307 of the Code provided, inter alia, that the fine was to be paid within fifteen days of the date of receipt of the relevant decision. Article 308 of the Code provided that in the event of failure to pay the fine within the time-limit provided under Article 307 of the Code the decision imposing the fine had to be enforced by the bailiffs. | 0 |
train | 001-58021 | ENG | GBR | CHAMBER | 1,997 | CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM | 2 | No violation of Art. 8 | C. Russo;John Freeland | 7. Mr Laskey, Mr Jaggard and Mr Brown, all British citizens, were born in 1943, 1947 and 1935 respectively. Mr Laskey died on 14 May 1996. 8. In 1987, in the course of routine investigations into other matters, the police came into possession of a number of video films which were made during sado-masochistic encounters involving the applicants and as many as forty-four other homosexual men. As a result the applicants, with several other men, were charged with a series of offences, including assault and wounding, relating to sado-masochistic activities that had taken place over a ten-year period. One of the charges involved a defendant who was not yet 21 years old - the age of consent to male homosexual practices at the time. Although the instances of assault were very numerous, the prosecution limited the counts to a small number of exemplary charges. The acts consisted in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant’s bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o’-nine tails. There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring. These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification. The infliction of pain was subject to certain rules including the provision of a code word to be used by any "victim" to stop an "assault", and did not lead to any instances of infection, permanent injury or the need for medical attention. 9. The activities took place at a number of locations, including rooms equipped as torture chambers. Video cameras were used to record events and the tapes copied and distributed amongst members of the group. The prosecution was largely based on the contents of those videotapes. There was no suggestion that the tapes had been sold or used other than by members of the group. 10. The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the "victims" as an answer to the prosecution case. 11. On 19 December 1990, the defendants were convicted and sentenced to terms of imprisonment. On passing sentence, the trial judge commented: "... the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them. The homosexuality of the defendants is only the background against which the case must be viewed." Mr Laskey was sentenced to imprisonment for four years and six months. This included a sentence of four years’ imprisonment for aiding and abetting keeping a disorderly house (see paragraph 31 below) and a consecutive term of six months’ imprisonment for possession of an indecent photograph of a child. Under section 47 of the Offences against the Person Act 1861 ("the 1861 Act" - see paragraph 27 below), Mr Laskey also received concurrent sentences of twelve months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm. 12. Mr Jaggard was sentenced to imprisonment for three years. He received two years’ imprisonment for aiding and abetting unlawful wounding - contrary to section 20 of the 1861 Act (see paragraph 25 below) -, and a further twelve months’ imprisonment for assault occasioning actual bodily harm, aiding and abetting the same offence, and unlawful wounding. 13. Mr Brown was sentenced to imprisonment for two years and nine months. He received twelve months’ imprisonment for aiding and abetting assault occasioning actual bodily harm, a further nine months’ imprisonment for assault occasioning actual bodily harm, and a further twelve months’ imprisonment for further assaults occasioning actual bodily harm. 14. The applicants appealed against conviction and sentence. 15. On 19 February 1992, the Court of Appeal, Criminal Division, dismissed the appeals against conviction. Since, however, the court found that the applicants did not appreciate that their actions in inflicting injuries were criminal, reduced sentences were imposed. 16. Mr Laskey’s sentence was thus reduced to eighteen months’ imprisonment as regards the charge of aiding and abetting keeping a disorderly house. This sentence was to run concurrently with another three months’ sentence in respect of the various counts of assault and consecutively with six months’ imprisonment for the possession of an indecent photograph of a child, totalling two years’ imprisonment. 17. Mr Jaggard’s and Mr Brown’s sentences were reduced to six months’ and three months’ imprisonment respectively. 18. The applicants appealed to the House of Lords on the following certified point of law of public importance: "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the 1861 Act?" 19. On 11 March 1993, the appeal, known as the case of R. v. Brown ([1993] 2 All England Law Reports 75), was dismissed by a majority of the House of Lords, two of the five law lords dissenting. 20. Lord Templeman, in the majority, held after reviewing the case-law that: "... the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the Act of 1861. They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters ... Counsel for the appellants argued that consent should provide a defence ... because it was said every person has a right to deal with his own body as he chooses. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the appellants in this case did not mutilate their own bodies. They inflicted harm on willing victims ... In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty ... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised." 21. Lord Jauncey of Tullichettle found that: "In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence ... unless the circumstances fall within one of the well known exceptions such as organised sporting contests or games, parental chastisement or reasonable surgery ... the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer. ... Notwithstanding the views which I have come to, I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest. Considerable emphasis was placed by the appellants on the well-ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention. There was, it was said, no question of proselytising by the appellants. This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice: ‘They [Laskey and Cadman] recruited new participants; they jointly organised proceedings at the house where much of this activity took place; where much of the pain inflicting equipment was stored. Cadman was a voyeur rather than a sado-masochist, but both he and Laskey through their operations at the Horwich premises were responsible in part for the corruption of a youth "K" who is now it seems settled into a normal heterosexual relationship.’ Be that as it may, in considering the public interest it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sado-masochism in England and Wales. This House must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claiming to be. Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV-positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. Your Lordships have no information as to whether such situations have occurred in relation to other sadomasochistic practitioners. It was no doubt these dangers which caused Lady Mallalieu to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity. In my view such a restriction is quite unjustified. When considering the public interest potential for harm is just as relevant as actual harm. As Mathew J. said in Coney 8 Queen’s Bench 534, 547: ‘There is however abundant authority for saying that no consent can render that innocent which is in fact dangerous.’ Furthermore, the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships." 22. Lord Mustill and Lord Slynn of Hadley dissented. The first considered that the case should not be treated as falling within the criminal law of violence but rather within the criminal law of private sexual relations. He gave weight to the arguments of the appellants concerning Article 8 of the Convention (art. 8), finding that the decisions of the European authorities clearly favoured the right of the appellants to conduct their private life undisturbed by the criminal law. He considered after an examination of the relevant case-law that it was appropriate for the House of Lords to tackle afresh the question whether public interest required penalising the infliction of this degree of harm in private on a consenting recipient, where the purpose was not profit but gratification of sexual desire. He found no convincing argument on grounds of health (alleged risk of infections or spread of AIDS), the alleged risk of the activities getting out of hand or any possible risk of corruption of youth which might require the offences under the 1861 Act to be interpreted as applying to this conduct. 23. Lord Slynn of Hadley found that as the law stood adults were able to consent to acts done in private which did not result in serious bodily harm. He agreed that it was in the end a matter of policy in an area where social and moral factors were extremely important and where attitudes could change. It was however for the legislature to decide whether such conduct should be brought within the criminal law and not for the courts in the interests of "paternalism" to introduce into existing statutory crimes relating to offences against the person concepts which did not properly fit there. 24. The proceedings were given widespread press coverage. All the applicants lost their jobs and Mr Jaggard required extensive psychiatric treatment. 25. Section 20 of the Offences against the Person Act 1861 ("the 1861 Act") provides: "Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, ... shall be liable ... to [imprisonment] ... for not more than five years." 26. According to the case-law, to constitute a wound for the purposes of the section, the whole skin must be broken, not merely the outer layer or epidermis. 27. By section 47 of the 1861 Act: "Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for not more than five years." Actual bodily harm is defined as "any hurt or injury calculated to interfere with health or comfort" (Liksey J, in R. v. Miller [1954] 2 Queen’s Bench Reports 282, at 292). 28. In the case of R. v. Donovan ([1934] 2 King’s Bench Reports, at 498), the accused had beaten with a cane a girl for the purposes of sexual gratification, with her consent. Swift J held: "It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence, and when such an act is proved, consent is immaterial." 29. In Attorney-General’s Reference (No. 6 of 1980) ([1980] Queen’s Bench Reports, at 715) where two men quarrelled and decided to fight each other, Lord Lane CJ in the Court of Appeal had held: "It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases." 30. In R. v. Wilson ([1996] 3 Weekly Law Reports, at 125), where a man had been convicted of assault occasioning actual bodily harm for having branded his initials with a hot knife on his wife’s buttocks with her consent, the Court of Appeal, Criminal Division, allowed the appeal. In the course of the court’s judgment, Lord Justice Russell stated: "... there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant ... ... We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing ... Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution." 31. Keeping a "disorderly house" is a common law offence. A disorderly house is defined as "one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order. There must be an element of ‘open house’, but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house, it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort (a) amounts to an outrage of public decency, or (b) tends to corrupt or deprave, or (c) is otherwise calculated to injure the public interest so as to call for condemnation and punishment" ([1996] Archbold’s Criminal Pleading, Evidence and Practice 20, at 224). | 0 |
train | 001-4636 | ENG | TUR | ADMISSIBILITY | 1,999 | T.T. v. TURKEY | 4 | Inadmissible | null | The applicant is a Turkish citizen, born in 1945 in Istanbul. At the time of the facts, the applicant was an officer with the rank of captain. The facts of the present case, as submitted by the applicant, may be summarised as follows. In late 1979 investigations were initiated against a number of persons including the applicant, who was the District Gendarmerie Commander of Çorlu, concerning various smuggling incidents in this region. In an indictment dated 22 December 1980, the Kırklareli Public Prosecutor's Office charged only the applicant, under Article 240 of the Turkish Criminal Code, with abuse of office by assisting and protecting smugglers. On 23 February 1982 the Tekirdağ Assize Court convicted the applicant for abuse of office and sentenced him to one year and eight months' imprisonment and to a heavy fine. The applicant appealed. On 30 June 1982 the Court of Cassation quashed the judgement delivered by the Tekirdağ Assize Court, indicating that the classification of the offence was incorrect and that the investigation was incomplete. According to the Court of Cassation, the applicant ought to have been tried for collective smuggling. The Tekirdağ Assize Court joined the applicant’s case with another case of collective smuggling initiated against 13 co-accused. The Court, inter alia, took oral evidence from various witnesses, consulted experts and examined extracts from customs registries and customs service reports. On 12 December 1990 the Tekirdağ Assize Court convicted the applicant and the other co-accused for collective smuggling and sentenced the applicant to one year and eight months' imprisonment. The Court found that the applicant and the other accused had arranged the entry into Turkey of a truck loaded with smuggled goods. On 15 April 1992 the Court of Cassation upheld the decision of the Tekirdağ Assize Court. It noted that the Assize Court had examined the charges as well as the defence, evaluated all the evidence submitted to it and delivered an impartial judgment. On 23 September 1992 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s judgment dated 15 April 1992. On 5 November 1992 the Tekirdağ Assize Court admitted the applicant's request for the reopening of the trial. Accordingly, the court initiated new proceedings. On 16 September 1993 the Tekirdağ Assize Court convicted the applicant confirming its former decision dated 12 December 1990. The Assize Court considered that the new elements submitted by the applicant could not have any effect on the reasoning of the judgment of 12 December 1990. The applicant appealed. On 5 October 1994 the Court of Cassation upheld the decision of the Tekirdağ Assize Court dated 16 September 1993. On 7 December 1994 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s decision. On 15 February 1995 the Tekirdağ Assize Court rejected the applicant's second petition for the reopening of his trial. | 0 |
train | 001-5598 | ENG | TUR | ADMISSIBILITY | 2,000 | OGUZ AND OGUZ v. TURKEY | 4 | Inadmissible | Gaukur Jörundsson;Wilhelmina Thomassen | The applicants are Turkish nationals, who were born in 1954 and 1971 respectively and they both live in the province of Siirt (Turkey). They are represented before the Court by Mr Philip Leach, a lawyer practising in London. A. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, who had been detained several times between 1983 and 1990, became a member of the Siirt Branch of the Human Rights Association in 1990. Following his election as chairman of the Siirt Branch in August 1992, the applicant received several threats from the Siirt Security Department as a result of his activities. On 26 February 1993 the first applicant was taken into police custody by policemen from the Anti-Terrorism Branch of the Siirt Security Directorate, in relation with an investigation conducted by the Siirt Public Prosecutor. Subsequently, he was placed in detention on remand and criminal proceedings were initiated against him. On 25 June 1993 the applicant was released on bail and on 1 December 1993 he was acquitted of the charges against him. On 17 January 1994 the security officers from the Siirt Security Department came to the first applicant’s house and conducted a search of his house. At the time of the events, the applicant’s wife, his sister, and his eight children were present at home. During the search, the police officers found a black plastic bag, which contained a defensive-type hand grenade, a full Kalashnikov cartridge and some Kalashnikov bullets. The applicant states that this bag was brought and left by the police officers themselves. Following the search, the police officers took the applicant, his sister Sinem and his daughter Halime into custody. A few hours later, the applicant’s wife and his second daughter were also taken into police custody and the applicant’s other children aged between two to thirteen years were left on their own at home without the supervision of an adult. Following their interrogation, on 19 January 1994 the first applicant and his family members who were also detained with him, were taken to the Siirt Forensic Medicine Institute to be examined by a medical expert. According to the report of the Siirt Forensic Institute’s medical expert, dated 19 January 1994, there were no signs of injury on their bodies. Thereafter, on the same day, the applicant and his relatives were taken to the Siirt Magistrate’s Court in Criminal Matters. The court ordered the applicant to be placed in detention on remand, whereas it released the rest of the detainees. The Siirt Public Prosecutor declared lack of jurisdiction and transferred the case-file to the Diyarbakır State Security Court. The Diyarbakır State Security Court Public Prosecutor initiated criminal proceedings against the first applicant and charged him with aiding and abetting the PKK under Section 169 of the Turkish Criminal Code and for illegal possession of explosives and firearms under Section 264 of the Turkish Criminal Code. On 9 November 1994 the court acquitted the applicant of aiding and abetting the PKK. It further decided to send the case to the Siirt Assize Court for a further examination of the allegation about illegal possession of explosives and firearms. On 4 April 1995 the Siirt Assize Court found the applicant guilty of illegal possession of explosives and firearms. Consequently it sentenced the applicant to 25 days’ imprisonment and a fine. It further suspended the execution of these sentences. B. Relevant domestic law Criminal law and procedure: The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants). In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the local public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision not to institute criminal proceedings. Civil action for damages: Section 1 of Law No. 466 on the payment of compensation to persons arrested or detained provides: "Compensation shall be paid by the State in respect of all damage sustained by persons (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being released or detained in accordance with the law, are not subsequently committed for trial..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only." | 0 |
train | 001-75837 | ENG | HRV | CHAMBER | 2,006 | CASE OF SKARE v. CROATIA | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1939 and lives in Zagreb. 5. On 17 July 1991 the Government adopted a decree forbidding any transactions with the immovable property situated in Croatia and belonging to the former Yugoslavia’s federal institutions or legal entities having seat in one of its former federal units (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – “the Decree”, Official Gazette no. 36/1991). The Decree entered into force on 24 July 1991 and was to remain in force pending the process of succession of the former Yugoslavia. 6. In the period between 1993 and 1999 the Decree was challenged on five occasions by various petitioners in abstract constitutional review proceedings. The Constitutional Court refused all the petitions finding that the Decree had not been in breach of the Constitution. 7. In the period between July 1991 and April 1994, starting with the decree of 31 July 1991, the Government adopted several successive decrees forbidding transactions with other property that had remained in Croatia and belonging to the legal entities having seat in one of the former Yugoslavia’s federal units. Eventually, on 24 March 1994 Parliament passed an act of the same content (Zakon o zabrani raspolaganja i preuzimanju sredstava određenih pravnih osoba na teritoriju Republike Hrvatske – “the Act”, Official Gazette nos. 29 and 35/1994). 8. The applicant was working as a professor at the former Military Academy in Zagreb. 9. On 13 and 16 August 1991, the Zagreb Garrison of the Yugoslav People’s Army (“the YPA”), issued two decisions granting the applicant the right to occupy a flat in Zagreb of 99.35 square metres that was owned by the YPA. He was also obliged to give back a flat of 51.56 square metres that had previously been awarded to him by the YPA, in which he had been living with his wife and two children until then. They still live in the last-mentioned flat. 10. On 11 September 1992 the applicant brought a civil action against the State in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking to use the flat granted to him by the above-mentioned YPA decisions. 11. On 5 October 1992 the Municipal Court dismissed the applicant’s claim. It found that the YPA decisions had no legal effect since they had been issued contrary to the peremptory rules of the Decree. 12. The applicant appealed to the Zagreb County Court (Okružni sud u Zagrebu), which on 2 March 1993 quashed the first-instance judgment for incomplete facts and remitted the case. 13. In the resumed proceedings, on 7 March 1995 the Zagreb Municipal Court again dismissed the applicant’s claim repeating its previous findings. The applicant again appealed. 14. On 30 December 1996 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal and upheld the first-instance judgment. 15. The applicant then lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). On 18 May 2000 the Supreme Court dismissed the applicant’s appeal on points of law. 16. On 20 November 2000 the applicant lodged a constitutional complaint against the Supreme Court’s decision with the Constitutional Court (Ustavni sud Republike Hrvatske). 17. Before dealing with the applicant’s complaint, the Constitutional Court decided first to examine three petitions for constitutional review (prijedlog za ocjenu ustavnosti) directed against the Decree and the Act – which, in the Government’s view, constituted the relevant substantive law applicable to his case. The Constitutional Court dismissed the two petitions against the Decree on 18 July and 28 December 2001, respectively. On 12 April 2002 it dismissed the petition against the Act. 18. At the Constitutional Court’s panel meeting held on 30 June 2004 the rapporteur informed his colleagues that, meanwhile, a new case had been assigned to him raising apparently the same legal issues as that of the applicant. The rapporteur therefore withdrew the case from the agenda. Subsequently, it was established that no such similarity had existed as it initially appeared. 19. On 6 April 2005 the Constitutional Court dismissed the applicant’s constitutional complaint. It observed obiter dictum that it could not deal with the applicant’s argument that the Decree had been adopted ultra vires, since that issue could be examined only in abstract constitutional review proceedings, and not in those concerning a constitutional complaint. | 1 |
train | 001-95907 | ENG | TUR | CHAMBER | 2,009 | CASE OF ÖZCAN KORKMAZ AND OTHERS v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial | Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky | 3. The applicants were all former members of the Turkish Armed Forces, who had been discharged for disciplinary reasons. 4. The applicants brought separate proceedings before the Supreme Military Administrative Court, requesting the annulment of their discharge. 5. The Supreme Military Administrative Court held, after hearing the parties (except in application no. 44058/04 where no hearing was held) and examining the confidential documents submitted by the Ministry of Defence by virtue of Article 52 (4) of Law no. 1602, that the applicants' discharges had been in conformity with the applicable laws. Consequently, it rejected their annulment requests. Neither the written opinion of the principal public prosecutor submitted to the Supreme Military Administrative Court prior to the hearings, nor the comments of the reporting judge which were entertained during the deliberations, were communicated to the applicants. 6. The applicants subsequently requested the rectification of the Supreme Military Administrative Court's decisions. Their requests were rejected on the following days: - application no. 44058/04: 20 April 2004 (decision served on the applicant on 3 May 2004) - application no. 19807/05: 26 April 2005 - application no. 26384/05: 2 February 2005 7. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008). In particular, Article 79 of Law no. 1602 on the Supreme Military Administrative Court provides as follows: “Prosecutors shall examine the files assigned to them on behalf of the Principal Prosecutor and shall give their written reasoned opinions on [his or her] behalf within thirty days at the latest in proceedings [on the merits] ... [They] shall perform other tasks assigned by the President and the Principal Prosecutor... Prosecutors may demand, through the President, all types of information and files from the relevant authorities. Where deemed necessary by the Chambers and Assembly of Chambers, prosecutors may [be asked to] express their opinions orally...” 8. Provisional Article 2 of Law no. 1602 provides as follows in respect of the functions of the reporting judge: “...Rapporteurs shall duly examine the cases assigned to them by the Presidents of the Chamber[s] and shall provide the Chamber or the Assembly of Chambers with the necessary explanations. [The rapporteurs] shall give their opinion[s] and conclusions orally and in writing, shall write draft judgments, [and] draw up the necessary minutes. [They] shall perform other tasks assigned by the President or the President of the Chamber[s].” | 1 |
train | 001-93560 | ENG | HRV | ADMISSIBILITY | 2,009 | ROJE v. CROATIA | 4 | Inadmissible | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Ms Atlantida Roje, is a Croatian national who was born in 1953 and lives in Split. She is represented before the Court by Mr O. Roje, a lawyer practising in Split. The Croatian Government (“the Government”) are represented by their Agent, Mrs Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 December 1992 the applicant brought a civil action against her employer, company D.-V. d.d., in the Split Municipal Court (Općinski sud u Splitu), seeking payment of her salary arrears and that the defendant be ordered to pay the mandatory contributions to the relevant funds. She also applied for an interim measure (privremena mjera) to secure the payment. In the period before the entry into force of the Convention in respect of Croatia (5 November 1997), the court held several hearings, and a financial expert report was drawn up. The applicant was absolved from bearing the costs of proceedings. On 19 June 1997 the applicant brought another civil action in the Split Municipal Court against the company D. d.d,, which was the sole shareholder of her employer. Her claim was the same as the one in the proceedings instituted in 1992. On 25 March 1998 the Split Municipal Court joined these two sets of proceedings. At a hearing held on 9 October 2001 the Split Municipal Court gave a judgment, accepting in part the applicant’s claim for the payment of her salary arrears. It declared the part of the applicant’s claim that the defendants be ordered to pay the mandatory contributions inadmissible for lack of jurisdiction. It also dismissed the applicant’s request for an interim measure. On 10 October 2001 the defendants lodged an appeal against the above judgment. The applicant lodged an appeal on 12 October 2001, and the case-file was forwarded to the Split County Court (Županijski sud u Splitu). On 20 November 2003 the Split Commercial Court (Trgovački sud u Splitu) opened bankruptcy proceedings against company D.-V. d.d. The applicant subsequently submitted her claims in the bankruptcy proceedings. On 13 May 2004 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the length of civil proceedings pending before the Split County Court. On 28 September 2006 the Split County Court stayed the proceedings against company D.-V. d.d., since the bankruptcy proceedings had meanwhile been opened against it. As to the claim against company D. d.d., it upheld the first-instance judgment as regards the applicant’s salary arrears, and quashed the decision on lack of jurisdiction as regards the remaining applicant’s claims. Thus the decision concerning the applicant’s salary arrears became final and as to the remainder of the applicant’s claim the case was remitted to the first-instance court. Following the constitutional complaint by the applicant, on 25 October 2006 the Constitutional Court found a violation of the applicant’s right to a hearing within a reasonable time. It awarded the applicant a sum of 11,500 Croatian kunas (HRK), and also ordered the Split Municipal Court to decide the case in the shortest time possible but no later than six months after the publication of the decision of the Constitutional Court in the Official Gazette. The Constitutional Court’s decision was published in the Official Gazette of 29 November 2006, and the six-month period expired on 29 May 2007. On 17 March 2008 the applicant lodged a fresh complaint about the length of proceedings with the Split County Court. On 10 October 2008 that court found a violation of the applicant’s right to a hearing within a reasonable time for the period after the Constitutional court’s decision. It awarded the applicant a sum of HRK 4,500 and also ordered the Split Municipal Court to decide the case in the shortest time possible but no later than six months form the receipt of the case file at that court. The case file was returned to the Split Municipal Court on 21 November 2008. At the hearing held on 27 April 2009 the applicant withdrew her claim and sought only the costs of the proceedings. On 27 April 2009 the Split Municipal Court terminated the proceedings on the ground that the applicant had withdrawn her claim and awarded the applicant the costs of the proceedings. Thus the proceedings were finally concluded. | 0 |
train | 001-60521 | ENG | POL | CHAMBER | 2,002 | CASE OF BERLINSKI v. POLAND | 3 | No violation of Art. 3;Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Georg Ress | 9. The first applicant, Roman Berliński, is a Polish national born in 1971. The second applicant, Słavomir Berliński, is a Polish national born in 1974. The applicants are brothers. At present they live in Poland. 10. On 4 October 1993 the applicants, who practice body-building, were attending an athletics club at a Lublin university. The club manager urged the applicants to exit, as they had been present at the club without the appropriate permission. He warned that he would call the police if they did not leave. The applicants did not agree to leave. The manager called the police, and six uniformed officers arrived soon thereafter. 11. According to the applicants' account, the officers allegedly “showed a hostile attitude” towards them and “were not interested in checking their [identity documents] but simply to force them out” of the athletics club. The policemen “immediately wanted to handcuff them and pulled their arms backwards”. The applicants state that they “resisted this treatment”. The first applicant “managed to get free for a moment”, while the second applicant was “pushed and pulled” by two police officers. He was treated with tear-gas and struck with a stick. 12. According to the Government, the applicants resisted and attacked the policemen who were trying to apprehend them. One of the officers was kicked in the face and another in the crotch. 13. The parties submit that only when one officer drew a gun from his holster did the applicants yield. They were then handcuffed. 14. The applicants were immediately put in a police vehicle. 15. The Government state that the applicants still resisted whilst being taken to the vehicle, and force again had to be used against them. 16. The applicants were taken to a police station situated 4 kilometres from the athletics club. 17. According to the applicants' account, in the police van they were put on the ground and stayed handcuffed. The van had no separate cell for the arrested. The policemen and the applicants were closed together in the rear part of the van. The applicants “had no chance but to expose their bodies to the treatment of the policemen”. They “suffered heavy blows in their heads, kidneys, backs and spines”. The policemen used their police sticks to beat them up. The first applicant lost consciousness. 18. The Government deny that any ill-treatment occurred in the van. 19. At the police station the applicants were briefly questioned. The part of the first applicant's custody interview record concerning his physical condition reads: “before [the arrest the applicant was] well, at present [he complains of] pain in the left eye, the neck, the left kidney, the jaw and the head”. The relevant part of the second applicant's custody interview record reads: “pain in the temples, the hands, the nose, the teeth, the right thumb”. In the late evening of the same day the applicants were examined by doctors. The x-ray photograph of the first applicant's cranium showed no apparent injuries to his head. On the basis of the applicants' physical examination, which disclosed no problems in their circulatory and respiratory systems, a doctor concluded that they could be regarded as fit for detention. 20. The applicants remained in custody until the afternoon of the next day, 5 October 1993, when they were brought before a district prosecutor. They were released after having been questioned by the prosecutor. 21. The first applicant was taken to a hospital where he remained for 11 days. The second applicant was taken to the same hospital, was immediately released, and later underwent out-patient treatment. 22. On 5 October 1993, when being questioned by the prosecutors, the applicants complained that they had been beaten up by the police officers in the athletics club and in the police van. The applicants said that they had doubts as to the officers' identity, and that they had asked the policemen to present documents attesting to their authority. They alleged that the officers had refused to do so and that the policemen had instead attempted to arrest them. The applicants further stated that, in the police van, which lacked a separate cell for the arrested, the officers had started to inflict heavy blows all over their bodies. They had been defenceless and had not been able to lessen the impact of the blows because of their hands being handcuffed behind their backs and themselves being pushed onto the vehicle's floor. They submitted that the officers had beaten them all the way to the police station. 23. On 15 March 1994 a district prosecutor, on suspicion that offences against the applicants' personal rights had been committed in breach of the Polish Criminal Code and the Police Act, instituted investigations relating to the applicants' complaints against the police officers. The police officers who allegedly ill-treated the applicants were regarded as witnesses, not as accused, in the proceedings. 24. The applicants were called to appear before the district prosecutor on 25 March 1994, but failed to present themselves on that date. 25. On 28 March 1994 the prosecutor examined a witness DK (policeman). On 30 March witnesses MK and MS (police officers) were examined. On 6 April witnesses MW (the applicants' acquaintance) and EP (the club manager) were questioned. On 13 April the prosecutor summoned witnesses JS and MB, and on 20 April he summoned a witness PW (all police officers). 26. The applicants were examined on 5 and 9 May 1994. During the inquiries the applicants maintained that the officers had been very hostile towards them from the very beginning, that they had not asked them to leave the athletics club, and that they had, without any reason, beaten them up. The policemen contended that they had been attacked by the applicants, and that only threatening them with a firearm had permitted their apprehension. 27. On 23 May 1994 the prosecutor heard witnesses MW, JR and JN (police officers). On 24 May 1994 he summoned witnesses AG and JP (doctors). On 26 May the prosecutor examined a witness DJ, and on 27 May he questioned a witness MH (both doctors). 28. The investigation into the conduct of the policemen was prolonged by decision of a regional prosecutor of 10 June 1994, with a view to examining further witnesses. 29. On 14 June 1994 the district prosecutor examined witnesses AW and RM (doctors). 30. On 16 June 1994 the Forensic Department of the Białystok Academy of Medicine produced an opinion as to the applicants' physical condition following the incident. The opinion was delivered at the request of the Lublin District Court in the proceedings against the applicants (also see § 44 below). 31. The forensic experts, based on the medical records collected throughout the applicants' treatment from 5 October 1993, found that immediately after the incident the first applicant had a haematoma around the left eye, a bruise of 2 x 2 cm on the back of his head, a bruise with grazed skin of 7 x 7 cm on the left side of his jaw, four band-like bruises of significant size on his chest, and that his abdomen and spine were sensitive. The second applicant had small isolated bruises on his chin and neck, bruises on a grazed upper lip, an inner wound in the mucous membrane of the upper lip, lesions of the front teeth, and an injury to the right knee and wrist. 32. The forensic experts also stated that several days after the incident the first applicant had been increasingly complaining of pain in his head, vertigo, diminished clarity of sight and hearing, and that the second applicant had been complaining about a weak right hand, diminished sensitivity of his fingers, severe headaches, vertigo, nausea, pain in the spine and a reduced ability to move. The experts noted that the subsequent examinations of the applicants had not confirmed any deviations from the normal state of their heath. The experts stated that on 8 October 1993 the first applicant should have been released from hospital but remained following an intervention by the applicants' father. The experts also stressed that the father, himself a doctor, during his visits at the hospital had been instructing the first applicant of what and how he should complain. The first applicant had been released from hospital on 15 October 1993, although after this date he underwent further out-patient treatment of his jaw, chest and spine. 33. The forensic experts concluded that the injuries sustained by the applicants might have occurred from the use of a rigid, blunt instrument, e.g. a truncheon, and that the lesions might have occurred in the circumstances alleged by them, e.g. from blows by truncheons and fists. The experts held that the damage caused by these injuries to the applicants' soft tissues did not last more than seven days, but that those injuries were serious enough to warrant application of Article 156 § 2 of the Polish Criminal Code [causing light bodily harm] against the police officers. The experts also emphasised that the applicants' grievances had contained a certain measure of simulation and exaggeration. 34. On 29 June 1994 the district prosecutor requested experts at the Wrocław Academy of Medicine to produce a medical opinion specifically in the context of the proceedings concerning the applicants' allegations against the police officers. 35. By decisions of 9 September and 15 November 1994 the regional prosecutor again prolonged the investigation. 36. The opinion of the experts at the Wrocław Academy of Medicine was produced on 6 December 1994. They found that following the arrest the first applicant had had bruises on his face and a swollen left eye, and that the second applicant had isolated bruises on the face, a grazed lip and lesions of three teeth. The experts also found that the first applicant had not been suffering from concussion. The experts stated that the injuries of the applicants could occur in the circumstances alleged by the police officers, the applicants or in other circumstances. 37. The applicants requested the district prosecutor to hear additional witnesses, namely their parents, two district prosecutors and an American basketball player who had witnessed the events of 4 October 1993. On 9 September 1994 the prosecutor dismissed the request on the ground that the applicants' parents had not witnessed the incident, that the testimonies of the prosecutors had not been relevant to the determination of the facts, and that the statements of the American basketball player had been recorded in the proceedings against the applicants. On these grounds the prosecutor considered that no examination of further witnesses was necessary. 38. On 12 December 1994 the prosecutor decided to discontinue the investigation against the policemen. The prosecutor held that there was a lack of evidence in favour of the applicants' allegations that the officers had committed an offence. On the basis of witnesses' evidence, he held that the policemen had been compelled to use force only following the applicants' refusal to leave the sports club. The prosecutor did not establish that any force had been used against the applicants in the police van. By virtue of the medical opinion of the Wrocław Academy of Medicine, the prosecutor stated that the fact of the applicants' hospitalisation for seven days did not necessarily infer that the full period of seven days had been required to complete the treatment of lesions suffered by the applicants. The prosecutor concluded that “the injuries [sustained by the applicants] could occur both in the circumstances alleged by themselves, as well as in the circumstances alleged by the police officers”. Given the principle of benefit of doubt in favour of the accused, the prosecutor decided to discontinue the case against the police officers. 39. The applicants appealed against the decision. On 16 January 1995 a regional prosecutor dismissed the appeal and finally discontinued the proceedings. The regional prosecutor found no “unequivocal evidence” of the officers' guilt. He held that the district prosecutor had properly assessed the collected material, and that he had adopted a well-motivated decision. 40. After questioning the applicants on 5 October 1993, a district prosecutor commenced investigations against them on suspicion that they had attacked the police officers, thereby obstructing them in the course of their duties. On the same day the prosecutor ordered the applicants' bail on suspicion of their having committed an offence under Article 234 of the Criminal Code in regard to the events of 4 October 1993. 41. On 6 October 1993 the applicants appealed against the bail decision, requesting the prosecuting authorities to appoint a free defence lawyer on the ground of their difficult financial situation, referring inter alia to Article 6 § 3 (c) of the Convention. The applicants received no reply to the requests. 42. In the course of the investigation the policemen, the applicants and witnesses of the events of 4 October 1993, including witnesses on the applicants' behalf, were summoned. The applicants submitted many applications in which they contended that the allegations against them should have been examined from the angle of their own complaints that the officers had beaten them up. However, by virtue of relevant provisions of domestic criminal procedure, the prosecution decided that the material contained in the case-file relating to the applicants' allegations on their maltreatment by the police officers be separated and that two parallel investigations be conducted in relation to the incident of 4 October 1993. 43. On 17 February 1994 the applicants were charged with affray, assault and battery on the police officers in the course of the execution of their duties. 44. On 7 April 1994 the Lublin District Court decided to obtain from the Forensic Department of the Białystok Academy of Medicine an opinion as to the applicants' injuries following the incident. The opinion was produced on 16 June 1994 (also see §§ 30-33 above). 45. On 17 October 1994 the Lublin District Court decided to obtain an opinion from forensic psychiatrists to establish whether the applicants had been “able to ascertain and measure their actions” to determine their criminal responsibility. The court also decided to appoint a free lawyer to represent the applicants in view of the concern over their state of mind, in accordance with Article 70 § 1 of the Code of Criminal Procedure. 46. By a letter of 18 October 1994 the applicants informed the court that they refused to undergo a psychiatric examination. They did not appear for the out-patient psychiatric examination at the Lublin Centre for Mental Health on the date fixed by the court on 10 January 1995. The court ordered compulsory appearance of the applicants on the next date fixed for out-patient psychiatric examination on 2 February 1995. The applicants were brought to the experts on the above date, but refused to be subjected to an examination. The above situation repeated itself on 8 March 1995. In view of the fact that the applicants had refused to undergo out-patient psychiatric examination three times, on 8 March 1995 the forensic psychiatrists requested the court to place the applicants at a mental hospital for a forensic-psychiatric opinion to be produced. 47. On 23 March 1995 the Lublin District Court ordered the applicants' compulsory placement at the Lublin Centre for Mental Health for a period of no longer than six weeks. The applicants and their counsel appealed against the above decision. In the appeal the applicants' representative declared that he undertook to ensure their voluntary appearance for out-patient psychiatric examination. On 3 April 1995 the Lublin Regional Court, having regard in particular to the above commitment by the applicants' defence counsel, quashed the decision of 23 March 1995. 48. On the next day fixed for the applicants' out-patient psychiatric examination on 30 May 1995, they again failed to submit to out-patient examination. On 21 June 1995 the experts repeatedly requested the court to order compulsory measures against the applicants in order to produce a forensic-psychiatric opinion. 49. On 11 July 1995 the Lublin District Court again ordered the applicants' compulsory placement at a mental hospital for a period of no more than six weeks. On the applicants' appeal from this decision, on 24 July 1995 the Lublin Regional Court upheld the decision of the District Court. 50. On 1 December 1995 the first applicant was placed at the Lublin Centre for Mental Health. Upon the experts' application requesting to prolong the first applicant's stay at the ward in view of his negative attitude obstructing the production of a proper diagnosis, on 11 January 1996, the Lublin District Court extended the term of the first applicant's examination until 23 February 1996. On his appeal against the above decision, on 22 January 1996 the Lublin Regional Court upheld the decision of the District Court. The first applicant was released from the psychiatric ward on 15 February 1996. 51. On 22 February 1996 the final opinion as to the mental condition of the first applicant was issued. The forensic psychiatrists concluded that at the moment of the incident with the police on 4 October 1993 he was able to comprehend the meaning of his acts and to control his conduct. The first applicant was not found to be of unsound mind. The experts also noted that he had been very suspicious and distrustful of the examination. 52. As the second applicant expressed his willingness to undergo out-patient psychiatric observation, he was not placed in a mental hospital. The forensic psychiatrists delivered their opinion in regard to the second applicant on 27 February 1996. According to the experts' conclusions, the second applicant was mentally sane. The experts also noted that he had been very stressed throughout the examination, often speaking with a raised voice and not noticing the requests to calm him down. 53. On 7 August 1996 the Lublin District Court found the applicants guilty under Article 234 of the Criminal Code in that they had resisted and assaulted the officers on 4 October 1993. It held that the manager of the athletics club had been entitled to demand the applicants' removal notwithstanding his motives therefor, and that the police had lawfully enforced this demand. The applicants were sentenced: the first applicant to one year and six months' imprisonment and the second applicant to one year's imprisonment. The court suspended the sentences for three years for each of the applicants. 54. On 17 December 1996 the Lublin Regional Court, upon the applicants' appeal, upheld the first-instance judgment. The Regional Court concluded that “the fact that the defendants did not comply with the request of the five police officers to leave the sports hall shows a lack, on their part, of a critical judgment of their own conduct - this was also confirmed by the forensic psychiatrists”. That decision was final. The applicants were not imprisoned as a result of the conviction. 55. Articles 15 and 16 of the Police Act entitle the police to arrest a person who obstructs the public order and to use direct coercive force “to accomplish subordination to given orders”. A special governmental ordinance of 17 September 1990 (DZ.U.90.70.410) provides that coercive means should cause as little ailment as possible, and should be abandoned if a person conforms to orders. Under Article 69 of the Code of Criminal Procedure, an accused may apply to a prosecutor to be appointed a free defence counsel in case of insufficiency of means. The prosecutor must refer the request to the court for a lawyer to be appointed. Under Article 70 § 1, in the course of the trial the court may of its own motion appoint a lawyer to represent the defendant in view of the justified concern over his state of mind. | 1 |
train | 001-84646 | ENG | CZE | ADMISSIBILITY | 2,008 | MEIER AND GRAFOVA v. THE CZECH REPUBLIC | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicants, Mr Petr Meier and Gerte Gráfová, are Czech nationals who were born in 1945 and 1913 respectively and live in Prague and Vienna respectively. They were represented before the Court by Mr J. Kalista, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In 1949 a Prague company having belonged to the applicants’ family was nationalised. On 24 September 1991 the first applicant made a request to the company and the Ministry of Administration of National Property and its Privatisation (Ministerstvo pro správu národního majetku a jeho privatizaci) under the Extra-Judicial Rehabilitation Act for restitution of the company which, according to him, had been nationalised contrary to the law then in force. He claimed restitution on his behalf and on behalf of the second applicant, who had originally owned one fourth of the property, and three successors in title to the other original co-owners. As the company apparently refused to restore the property, the first applicant brought an action in the Prague 8 District Court (okresní soud) for its recovery. On 16 September 1992, the District Court granted the restitution action. On 29 January 1993 the Prague Municipal Court (městský soud) quashed the judgment and remitted the case to the District Court which, on 26 January 1995, dismissed the restitution action, finding that the first applicant had not proved that the property had been unlawfully nationalised. On 22 May 1995 the Municipal Court upheld this judgment. On 15 May 1996 the Supreme Court (Nejvyšší soud) rejected the first applicant’s appeal on points of law (dovolání). On 19 December 1996 the Constitutional Court (Ústavní soud) quashed the Supreme Court’s judgment, finding that the company had been nationalised contrary to Presidential Decree no. 115/1948 and, therefore, should be restored under section 6(1)(k) of the Extra-Judicial Rehabilitation Act. On 18 September 1998, the District Court, being bound by the legal opinion of the Constitutional Court, granted the restitution action, ordering the company to conclude a restitution agreement with the first applicant. On 8 October 1999 the Municipal Court upheld this judgment in respect of the three fourths of the property, modifying it in respect of the remaining fourth which had belonged to the second applicant. The Supreme Court quashed the Municipal Court’s judgment in respect of the above fourth of the property and, at the same time, quashed the relevant part of the District Court’s judgment of 18 September 1998. On 18 May 2001 the District Court dismissed the remainder of the restitution action, holding that the second applicant was the only person who was entitled to seek restitution of the outstanding fourth of the property and, therefore, could not validly assign her restitution entitlement to the first applicant. On 11 October 2002 the Municipal Court, upheld the operative part of this judgment with certain modifications to the reasoning. On 3 March 2004 the Constitutional Court dismissed the first applicant’s constitutional appeal. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-118970 | ENG | CYP;GRC | ADMISSIBILITY | 2,013 | GUNESEL AND OTHERS v. CYPRUS AND GREECE | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicants state that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia. 2. The facts of the cases may be summarised as follows. The applicants are relatives of Turkish-Cypriot men who went missing in either December 1963 or April-May 1964 during incidents of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted. 3. These men were listed as missing persons, the information being given to the Cypriot authorities, the Red Cross and the United Nations. 4. The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) in 200610. 5. The Government have submitted that investigations had been commenced in all cases. The police had taken statements from relatives of the victims, taken steps to pursue investigation in the various localities and to trace police officers stationed there at the relevant time, to locate witnesses and to seek information from local inhabitants as to the transportation, murder and burial of the victims; 6. The applicants have submitted that it is not apparent that any progress has been made in the investigations and that they have not been given any copies of reports, witness statements or information gathered from various sources. | 0 |
train | 001-120070 | ENG | RUS | CHAMBER | 2,013 | CASE OF SABANCHIYEVA AND OTHERS v. RUSSIA | 1 | Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Locus standi;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 6. Early in the morning of 13 October 2005 law-enforcement agencies in the town of Nalchik, in the Republic of Kabardino-Balkariya, were attacked by a number of heavily armed persons, who appear to have been local insurgents. The agencies included the Republican Department of the Ministry of the Interior, Centre T. of the Main Department of the Ministry of the Interior, various district departments of the Ministry of the Interior, the Special Purpose Police Unit of the Republican Ministry of the Interior, various checkpoints of the Traffic Police, the Republican Department of the Federal Security Service, the Republican Department of the Federal Service for the Execution of Penalties, the office of the Border Guard Service of the Federal Security Service and a few privately owned weapons shops. According to the Government, there were over two hundred and fifty participants in the attack. 7. The ensuing fight between the governmental forces and the insurgents lasted until at least 14 October 2005. 8. The applicants submitted that they were relatives of participants in the attack who died on 13 and 14 October 2005 or shortly afterwards (see the annex listing the applicants’ family connections to the deceased persons). 9. The Government did not dispute this claim, with the exception of the nineteenth applicant, Mrs Zhanna Fyodorovna Ifraimova, who, in their view, was not in any way related to the deceased Mr Ruslan Borisovich Tamazov. 10. According to the nineteenth applicant’s initial statement, the deceased Mr Ruslan Borisovich Tamazov was her husband. She later changed this submission, stating that they were not officially married but had lived together since February 2005. At the time of the events in October 2005 she was eight months pregnant. The nineteenth applicant has submitted a copy of a birth certificate issued on 9 July 2008 in the name of S.T., born on 8 December 2005. The certificate names Mr Ruslan Borisovich Tamazov as the girl’s father and the nineteenth applicant as her mother. 11. According to the information initially provided by the Government, on 13 and 14 October 2005 their forces successfully repelled the attack and killed eighty-seven local insurgents. The Government did not specify the names of those killed. 12. The Government also stated that on 14 October 2005 they arrested Mr Aslan Yuriyevich Bagov (one of the two nephews of the fiftieth applicant), who had gunshot wounds to the head and chest. He died in prison on 23 October 2005. 13. On 18 October 2005 Mr Kazbulat Betalovich Kerefov (one of the seventeenth applicant’s sons and a participant in the attack of 1314 October 2005) fired shots at police officers manning a local checkpoint and was killed when the officers returned fire. 14. In their observations on the admissibility of the case, the Government stated that the authorities had killed a total of ninety-five insurgents in the anti-terrorist operations mounted in response to the attack of 13 October 2005. 15. In essence, they acknowledged that all of the deceased referred to by the applicants were among those killed by the authorities. 16. It appears that on 13 October 2005 the authorities instituted criminal proceedings no. 25-78-05 in connection with the attack in Nalchik. 17. In the course of the investigation it was established that between 1999 and February 2005 a group of individuals, including A. Maskhadov, Sh. Basayev, I. Gorchkhanov, A. Astemirov, Abu-Valid Khattab and AbuDzeit, had formed a terrorist group. It was this group that organised the attack. Thirty-five law-enforcement officers and fifteen civilians were killed, whilst one hundred and thirty-one law-enforcement officers and ninety-two civilians were injured. Massive damage was done to property. 18. The applicants did not have any procedural status in the criminal proceedings in case no. 25-78-05. 19. Immediately following the attack, on 13, 20, 21 and 25 October 2005 an unspecified number of persons (including some of the applicants) signed collective petitions requesting various officials, including the prosecutors, to return the bodies for burial. 20. Between the end of October 2005 and until at least April 2006 the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed. 21. Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful, as they were rejected as premature both at first instance and on appeal. 22. On 13-14 April 2006 the investigation authority terminated the criminal proceedings in respect of the ninety-five deceased insurgents on account of their deaths. An individual decision had been taken in respect of each of them, describing the degree and character of their individual involvement and concluding that these persons had taken part in the attack and died as a result of the ensuing fight. It appears that the deceased referred to by the applicants were among those concerned by this decision. 23. The Prosecutor General’s Office notified the applicants of the above decisions on 14 April 2006, but no copies of the decisions in question were attached to the notifications. 24. Some of the applicants applied to the domestic courts in connection with the authorities’ failure to provide them with copies of the decisions of 13-14 April 2006. As a result of the proceedings, most of these applicants were furnished with a copy of the relevant decision. However, they were refused standing to take part in the criminal proceedings against the deceased as their official representatives or to have the deceased’s personal belongings returned to them. 25. In the Strasbourg proceedings the Government submitted copies of the decisions of 13-14 April 2006 in respect of each of the applicants’ relatives. 26. According to the Government, ninety-five corpses of the presumed terrorists were cremated on 22 June 2006. According to the applicants’ submissions, it appears that they first learned of the cremations from the Government’s observations in the present case. 27. According to the Government, the cremations took place pursuant to a decision not to return the bodies of the deceased to their families, dated 15 May 2006. In contrast to the individual decisions of 13-14 April 2006, the decision of 15 May 2006 referred to the deceased persons collectively. The decision stated, in particular: “... the head of investigation group ... [official S.], having examined the materials in case file no. 25-78-05, established: ... [that] in the course of the counter-terrorist special operation aimed at tackling the attack, 95 terrorists were eliminated, namely: [The decision names among the deceased all of the persons referred to by the applicants, see the list in the annex.] At present all forensic expert examinations, including molecular genetic examinations, involving ... the corpses of the deceased terrorists, have been finalised and their identities have been established by way of proper procedure. By decisions of 13-14 April 2006 the criminal proceedings in respect of these 95 persons, who had committed ... the attack on various sites and law-enforcement agents of the town of Nalchik ... were discontinued on account of their deaths, under Article 27 part 1 subpart 2 and Article 24 part 1 subpart 2 of the Code of Criminal Procedure. Pursuant to section 14(1) of the Federal Interment and Burial Act (Law no. 8-FZ): “persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed.” Pursuant to part 3 of Decree no. 164, “On interment of persons whose death was caused by the interception of terrorist acts carried out by them”, approved by the Government of the Russian Federation on 20 March 2003, “the interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government ...” [In view of the above, official S. decided to:] bury the bodies of the 95 terrorists ...; forward the decision to the President of the Republic of Kabardino-Balkariya for execution; inform [his superiors] of this decision”. 28. The Government alleged that the authorities had notified the applicants of the decision of 15 May 2006, but acknowledged that no copy of that decision had been provided to them. 29. It appears that on several occasions the Prosecutor General’s Office informed the applicants, in substance, of the refusal to return the bodies. It does not appear that the applicants were furnished with a copy of the decision of 15 May 2006. 30. The applicants submitted that they had first obtained a copy of the decision of 15 May 2006 in May 2007, along with the Government’s observations on the admissibility of the case. They also indicated that they had learned about the cremation of the corpses of their deceased relatives in September 2007 (see paragraph 26 above). 31. The applicants’ initial attempts to obtain judicial review of the decisions of 13-14 April and 15 May 2006 were unsuccessful, as the courts refused to examine their arguments. 32. Some of the applicants contested the legislation governing the interment of terrorists before the Constitutional Court. Their initial complaints were rejected as premature. Eventually, the complaints of the thirteenth and twenty-fourth applicants were accepted for examination. 33. On 28 June 2007 the Constitutional Court delivered a judgment (no. 8-P) in which, in essence, it rejected their complaints alleging that section 14(1) of the Interment and Burial Act and Decree no. 164 of the Government of the Russian Federation of 20 March 2003 were unconstitutional. The ruling stated, in particular, that the impugned legal provisions were, in the circumstances, necessary and justified. The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question: “... At the same time, the interest in fighting terrorism, in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts, coupled with the risk of mass disorder, clashes between different ethnic groups and aggression by the next of kin of those involved in terrorist activity against the population at large and law-enforcement officials, and lastly the threat to human life and limb, may, in a given historical context, justify the establishment of a particular legal regime, such as that provided for by section 14(1) of the Federal Act, governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph 4 of Recommendation 1687 (2004) of the Parliamentary Assembly of the Council of Europe on combating terrorism through culture, dated 23 November 2005, in which it was stressed that extremist interpretations of elements of a particular culture or religion, such as heroic martyrdom, self-sacrifice, apocalypse or holy war, as well as secular ideologies (nationalist or revolutionary) could also be used for the justification of terrorist acts. 3.2. Action to minimise the informational and psychological impact of the terrorist act on the population, including the weakening of its propaganda effect, is one of the means necessary to protect public security and the morals, health, rights and legal interests of citizens. It therefore pursues exactly those aims for which the Constitution of the Russian Federation and international legal instruments permit restrictions on the relevant rights and freedoms. The burial of those who have taken part in a terrorist act, in close proximity to the graves of the victims of their acts, and the observance of rites of burial and remembrance with the paying of respects, as a symbolic act of worship, serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question, creating the preconditions for increasing inter-ethnic and religious tension. In the conditions which have arisen in the Russian Federation as a result of the commission of a series of terrorist acts which produced numerous human victims, resulted in widespread negative social reaction and had a major impact on the collective consciousness, the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security, including incitement to hatred and incitement to engage in acts of vandalism, violence, mass disorder and clashes which may produce further victims. Meanwhile, the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity. In such circumstances, the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part. ...” 34. The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards, such as effective judicial review, were in place to protect individuals from arbitrariness. The court noted that Articles 123-127 of the Code of Criminal Procedure provided for such review (see paragraph 87 below). 35. In sum, the Constitutional Court upheld the impugned provisions as being in conformity with the Constitution but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority’s decision. It reasoned as follows: “... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue, on account of the deaths of the suspects, a criminal case against or prosecution of participants in a terrorist act. Accordingly, they also presuppose an obligation on the court’s part to examine the substance of the complaint, that is, to verify the lawfulness and well-foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act, and to establish the absence of grounds for rehabilitating [the suspects] and discontinuing the criminal case. They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures. Until the entry into force of the court judgment the deceased’s remains cannot be buried; the relevant State bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition, in particular through the burial of the remains in the ground ... or by [cremation], individually, if possible, and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time, location and cause of death...” 36. Judge G.A. Gadzhiyev issued a separate opinion in which he agreed that the impugned provisions were in conformity with the Constitution but held a different view as to how they should be interpreted. The opinion stated as follows: “... if the relevant law-enforcement agencies find, as a result of a preliminary investigation, that a terrorist act has been committed and that a given person was involved, but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act, and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health, morals, rights, lawful interests and safety of others, they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial. At the same time, in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him, the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased’s identity, the time and place of death, the cause of death, the place of burial and the data necessary for the proper identification of the grave (a given location and number). The burial must take place with the participation of the relatives, in accordance with custom and tradition and with humanitarian respect for the dead. The administrative authorities of a State governed by the rule of law must respect the cultural values of a multi-ethnic society, transmitted from generation to generation. ...” 37. Judge A.L. Kononov issued a dissenting opinion in which he described the legislation in question as incompatible with the Constitution. In particular, he noted: “... The impugned norms banning the return of the deceased’s bodies to their relatives and providing for their anonymous burial are, in our view, absolutely immoral and reflect the most uncivilised, barbaric and base views of previous generations ... The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law. This right is clearly self-evident and stems from human nature as, perhaps, no other natural right. Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them, to have an opportunity to perform one’s moral duty and display one’s human qualities, to bid farewell, to grieve, mourn and commemorate the deceased, however he may be regarded by society and the state, to have the right to a grave, which in all civilisations represents a sacred value and the symbol of memory. ...” 38. After the Constitutional Court’s judgment of 28 June 2007 the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of 13-14 April and 15 May 2006. 39. Three applicants (nos. 12, 21 and 33) were able to obtain a copy of the decisions of 13-14 April 2006 concerning their deceased relatives, but did not pursue any proceedings in this connection or in connection with the decision of 15 May 2006. 40. Fifteen applicants (nos. 1, 2, 4, 8, 18, 25, 26, 32, 34, 35, 37, 39, 42, 43 and 44) did not claim or receive a copy of the decisions of 13-14 April 2006 and did not institute proceedings in connection with any of the decisions in this case. 41. The remaining applicants, with the exception of three (nos. 39, 42 and 43) obtained a copy of the decisions of 13-14 April 2006 concerning their relatives and brought court proceedings to contest them. 42. Seven applicants (nos. 3, 15, 17, 30, 38, 41 and 49; see table 1 in the annex), after a few sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of KabardinoBalkariya, which quashed both the decisions of 1314 April 2006 and the decision of 15 May 2006 as unlawful. In respect of the decisions of 13-14 April 2006, the court noted that these decisions had failed to take account of the recent amendments to Article 205 of the Criminal Code (see paragraph 76 below) and remitted the case to the investigating authority for fresh examination. The decision of 15 May 2006 was quashed in so far as it relied on the decisions of 1314 April 2006 and also because it had not been taken by a competent official. According to the applicants, these judgments remained without enforcement. 43. It appears that the domestic courts subsequently changed their position in connection with the requirement to take account of the amendments to Article 205 of the Criminal Code and began quashing the decisions by way of supervisory review (see paragraph 45 below). 44. Nineteen applicants (nos. 5, 6, 9, 10, 11, 13, 14, 16, 19, 20, 22, 24, 27, 28, 31, 40, 45, 46, 50; see table 2 in the annex), after several sets of proceedings, obtained a favourable judgment, issued at final instance by the Supreme Court of the Republic of Kabardino-Balkariya. These judgments concerned only the decisions of 13-14 April 2006, and quashed them as unlawful. The court noted that the decisions failed to take account of the recent amendments to Article 205 of the Criminal Code and remitted the case to the investigating authority for fresh examination. These applicants did not apparently bring separate proceedings in respect of the decision of 15 May 2006. According to the applicants, the judgments remained without enforcement. 45. According to the information submitted by the Government in connection with the proceedings brought by the thirteenth applicant, a fresh examination of the case in the lower courts resulted in a final decision of 3 November 2007 upholding the decision of 13-14 April 2006 in full. 46. In the domestic proceedings three applicants (nos. 7, 23 and 47; see table 3 in the annex) were expressly denied a copy of the decisions of 1314 April 2006 concerning their deceased relatives and, as a result, the competent courts were unable to review the lawfulness of the decisions of 13-14 April and 15 May 2006. The Supreme Court of the Republic of Kabardino-Balkariya specifically stated in their respective judgments that the investigating authority had unlawfully refused to furnish the applicants and the courts with a copy of the decisions of 13-14 April 2006 and to provide access to the relevant case-file materials in respect of these applicants’ deceased family members. In their submissions the respondent Government explained that the evidence collected by the investigation in respect of the deceased family members of the applicants in question had also been used in the criminal proceedings against the surviving participants in the attack, and that the refusal in question had been motivated by the need to preserve the integrity of these criminal proceedings. 47. Two applicants (nos. 29 and 36; see table 4 in the annex) obtained a copy of the decisions of 13-14 April 2006 in respect of their deceased relatives and unsuccessfully contested them in court. The Supreme Court of the Republic of Kabardino-Balkariya rejected their appeals and upheld the decisions as lawful. These applicants were subsequently successful in obtaining a favourable judgment from the same court, declaring the decision of 15 May 2006 unlawful because it had not been taken by a competent official. 48. The forty-eighth applicant, Mrs Oksana Nikolayevna Daova obtained a copy of the decisions of 13-14 April 2006 in respect of her brother Mr Valeriy Nikolayevich Tleuzhev and her husband Mr Zurab Nazranovich Daov and unsuccessfully contested them in court. By final judgments of 6 February 2007 and 8 July 2008 the Supreme Court of the Republic of Kabardino-Balkariya rejected her appeals in respect of her brother and husband respectively. It does not appear that she brought any court proceedings in respect of the decision of 15 May 2006. 49. The Government argued that the applicants could have obtained copies of the decisions of 13-14 April 2006 and relevant case-file documents whenever they wished. 50. The forty-eighth applicant indicated that only some of the applicants had been provided with such access. 51. According to the applicants who took part in the identification of the bodies, for several days following the events of 13 and 14 October 2005 the corpses were kept in the town morgue and other locations, in wholly unsatisfactory conditions. In particular, the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of each other. 52. On an unspecified date Mrs G.G. Kushkhova, apparently a relative of the thirtieth applicant, complained in writing that the bodies had been piled up and stored at street temperature, noting that some of the corpses were decomposing and giving off an intense putrid smell. On an unspecified date Mrs F.N. Arkhagova, the forty-second applicant, stated that she had seen the bodies on the ninth day after the events in question and that some of them were decomposing and contained worms. Mr Kereshev, the husband of the sixteenth applicant, said that when he had taken part in the identification procedure on 15 October 2005, the bodies had been naked and piled on top of each other. Similar written observations were made by Mr Alakayev, the fifth applicant’s husband, and Mrs Sabanchiyeva, the first applicant. 53. The applicants produced a video recording in support of their submissions, apparently filmed inside refrigerator wagons and confirming that the bodies were naked and that some of them were piled on top of one another. 54. In response to an enquiry by the Court dated 4 November 2005, the Government submitted that the bodies of those who had attacked the town had been kept at “premises specifically designed for the long-term storage of corpses and containing all the necessary equipment”. 55. In response to a letter from the applicants requesting an explanation for the appalling storage conditions, the Prosecutor General’s Office stated in a letter of 14 April 2006 that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms, in refrigerated chambers set to the appropriate temperature. The authorities did not disclose the locality where the bodies were stored. 56. In their observations on admissibility of 22 May 2007, the Government explained that following the events the corpses had initially been sent to the Nalchik morgue. They had then been stripped and the clothes sent for forensic expert examination. Thereafter all the corpses had been placed in two refrigerated wagons, equipped with all necessary storage facilities, and sent to the town of Rostov-on-Don for genetic examination. The Government also acknowledged that immediately after the attack no facilities had been available to keep the bodies and that this was probably what had been filmed in the recording submitted by the applicants. 57. There is no information in the applicants’ submissions which could confirm the participation of four applicants, nos. 2, 8, 26 and 32, in the relevant identification procedure. 58. Thirteen applicants (nos. 4, 5, 6, 11, 14, 16, 30, 33, 36, 41, 44, 46 and 50) did not participate in the identification procedure in person because the relevant corpses were identified by someone else. 59. The remaining thirty-three applicants (nos. 1, 3, 7, 9, 10, 12, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 34, 35, 37, 38, 39, 40, 42, 43, 45, 47, 48 and 49) submitted hand-written statements confirming their personal participation in the identification procedure (see table 5 in the annex). 60. According to the applicants, they had access to the bodies both in the Nalchik town morgue and in two refrigerator wagons parked on a plot of land belonging to the Ministry of the Interior. Provision of access to the bodies was random, as not everyone who wanted to take part in the identification process was admitted. In some cases the provision of access was not properly documented. 61. Since the provision of access was limited, the relevant facilities were usually surrounded by crowds of relatives of the deceased. 62. The Government partly disputed the applicants’ submissions. They referred to the protocols of identification, confirming that all four applicants listed in paragraph 57 and the forty-forth applicant, Mrs Lyubov Mikhaylovna Gonibova, had taken part in the identification. They contested the personal participation in the identification procedure of the ninth (Mrs Anzhelika Yuryevna Arkhestova), the seventeenth to the twentieth applicants (Mr Betal Muradinovich Kerefov, Mr Magomed Khassimovich Attoyev, Mrs Zhanna Fyodorovna Ifraimova and Mrs Aysha Ismailovna Chagiran) and the thirty-ninth applicant (Mr Karalbi Masadovich Amshokov). They confirmed the participation of the remaining applicants listed in paragraph 59 above. 63. In the Government’s submissions all corpses had been initially held in the Nalchik morgue. Between 14 and 18 October 2005 the applicants examined the corpses and the clothing. From 19 October 2005 the bodies were placed in two refrigerator wagons. On 1 November 2005 the wagons were moved to the town of Rostov-on-Don for molecular genetic examinations and on 22 June 2006 all of the bodies were cremated. Between 13 and 22 October 2005 the person in charge of the identification procedure was the head of the investigation group, investigator P. From 22 October 2005 he was replaced by investigator S. 64. According to the Government’s most recent submissions, the overall number of human casualties as a result of the events of 13 October 2005 was twelve civilians, thirty-five police and law-enforcement officers and eighty-seven participants in the attack. 65. The Interment and Burial Act (no. 8-FZ, dated 12 January 1996) contains the following provisions: “The present Federal Law defines interment as the ritual actions of burying a person’s body (or its remains) after his or her death in accordance with customs and traditions which are not contrary to sanitary or other requirements. The interment may be carried out by way of placing the body (or its remains) in the earth (burial in a grave or in a vault), in fire (cremation with subsequent burial of the urn containing the ashes), in water (burial at sea). ...” “1. The locations of interment are specially designated [in accordance with relevant rules] areas with ... cemeteries for burial of bodies (remains) of the dead, walls of sorrow for the storage of urns containing the deceased’s ashes..., crematoriums ... as well as other buildings ... designed for carrying out burials of the dead. ...” “1. The statement of wishes of a person concerning the dignified treatment of his or her body after death (the will of the deceased) is a wish expressed in oral form in the presence of witnesses or in writing: about consent or lack of consent to undergo an autopsy; about consent or lack of consent to have parts or tissues of the body removed; to be buried in a specific location, in accordance with a specific set of customs and traditions, next to specific people who died previously; to be cremated; entrusting the fulfilment of these wishes to a specific person. 2. Actions in respect of the dignified treatment of the body of a dead person should be carried out in accordance with [his/her] wishes, unless there are circumstances that render impossible the fulfilment thereof or if the [national] legislation provides for different rules. 3. Where a deceased made no statement of wishes, the right to authorise the actions specified in part 1 of this section shall belong to a spouse, close family members (children, parents, adopted children and adoptive parents, brothers and sisters, grandchildren and grandparents), other relatives or the legal representative of the dead, and in the absence of such persons, other persons who have assumed responsibility for burying the dead person.” “The executors of a deceased person’s statement of wishes shall be persons as nominated in the statement, if they agree to act accordingly. Where there is no specific indication regarding the executors of the statement of wishes or if the nominated persons do not agree to act accordingly, the directions in the statement shall be executed by the surviving spouse, close family members or other relatives or legal representatives of the deceased. In the event of a reasoned refusal by the nominated persons to execute the directions of the deceased’s statement of wishes, he or she may be buried by another person who has agreed to assume this obligation, or by a specialised funeral service.” “1. On the territory of the Russian Federation every human being shall be guaranteed that after his or her death interment will be carried out regard being had to his or her wishes, with the provision for free of a plot of land for burial of a body (remains) or ashes in accordance with the present Federal Act ...” “A spouse, close family members, other relatives, legal representatives of a deceased person or another person who has assumed the obligation to bury the deceased, shall enjoy the following guarantees: (1) the issuance of documents necessary for interment of a deceased within one day of the cause of death being established; in cases where there were reasons to place the deceased in a mortuary for an autopsy, the delivery of the body of the deceased at the request of a spouse, close family members, other relatives, legal representative or another person who has assumed the obligation to bury the deceased cannot be delayed for more than two days from the time when the cause of death is established; ...” 66. Section 3 of Russian Federation Law no. 130-FZ (the Suppression of Terrorism Act) defines terrorism as follows: “... violence or the threat of its use against physical persons or organisations, and also destruction of (or damage to) or the threat of destruction of (or damage to) property and other material objects which creates a danger for people’s lives, causes significant loss of property or entails other socially dangerous consequences, perpetrated with the aim of undermining public safety, intimidating the population or exerting pressure on State bodies to take decisions favourable to terrorists or to satisfy their unlawful property and/or other interests; an attempt on the life of a State or public figure, committed with the aim of halting his or her State or other political activity or in revenge for such activity; or an attack on a representative of a foreign State or an official of an international organisation who is under international protection, or on the official premises or means of transport of persons under international protection, if this act is committed with the aim of provoking war or of straining international relations.” 67. Terrorist activity within the meaning of the Act encompasses: “(1) organisation, planning, preparation and commission of a terrorist act; (2) incitement to commit a terrorist act or violence against physical persons or organisations, or to destroy material objects for terrorist purposes; (3) organisation of an illegal armed formation, a criminal association (criminal organisation) or an organised group for the commission of a terrorist act, or participation therein; (4) recruitment, arming, training and deployment of terrorists; (5) intentional financing of a terrorist organisation or terrorist group or other assistance provided thereto.” 68. Section 3 defines a terrorist act as: “... the direct commission of a crime of a terrorist nature in the form of an explosion, an act of arson, the use or threat of the use of nuclear explosive devices or of radioactive, chemical, biological, explosive, toxic, or strong-acting poisonous substances; destruction of, damage to or seizure of means of transport or of other objects; attempts on the life of State or public figures or of representatives of national, ethnic, religious or other population groups; seizure of hostages or abduction of persons; causing of danger to the life, health or property of an indefinite number of persons by creating the conditions for accidents or disasters of a technogenic character or a real threat to cause such danger; the spreading of threats in any form or by any means; other actions that endanger people’s lives, cause significant loss of property or entail other socially dangerous consequences.” 69. In the same section a terrorist is defined as: “... a person who takes part in carrying out terrorist activity in any form.” 70. On 26 October 2002 a terrorist attack took place in the Nord-Ost Theatre in the city of Moscow, resulting in a hostage incident which produced heavy casualties, including the death of several dozen hostages (see Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, §§ 8-14, ECHR 2011 (extracts)). 71. Shortly after the attack, on 11 December 2002, Russia enacted changes to the Suppression of Terrorism Act by adding section 16(1), which reads as follows: “[The] interment of terrorists who die as a result of the interception of a terrorist act shall be carried out in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall remain undisclosed.” 72. On the same date Russia also enacted changes (FZ - no. 170) to the Interment and Burial Act by adding section 14(1), which states: “Persons against whom a criminal investigation concerning their terrorist activities has been closed on account of their death following interception of the said terrorist act shall be interred in accordance with the procedure established by the Government of the Russian Federation. Their bodies shall not be handed over for burial and the place of their burial shall not be disclosed.” 73. Decree no. 164 of the Government of the Russian Federation of 20 March 2003, adopted in accordance with section 16(1) of the Suppression of Terrorism Act, defines the procedure for the interment of persons whose death was caused by the interception of terrorist acts conducted by them: “... 3. Interment of [these] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements, set up by organs of the executive branch of the subjects of the Russian Federation or by organs of local government... 4. Services provided by the specialist funeral agency in connection with the interment of [these] persons shall include: processing of documents necessary for interment; clothing of the body; provision of a grave; transfer of the body (remains) to the place of burial (cremation); burial. The transfer of the body (remains) to the place of burial (cremation) by rail or air shall be carried out on the basis of a transfer permit issued under an established procedure. The place of burial shall be determined with reference to the limitations laid down by the Interment and Burial Act. 5. For the purposes of the burial the official conducting the preliminary investigation shall send the necessary documents to the specialist funeral agency, including a copy of the decision to close the criminal case and the criminal investigation with regard to [these] persons; he or she shall also send a statement confirming the death to the civilian registry office in the person’s last place of permanent residence. 6. The relatives of the persons [concerned] shall be notified by the official conducting the preliminary investigation of the location of the registry office from which they can obtain a death certificate. 7. At the discretion of the official conducting the preliminary investigation, the relatives of [these] persons may be provided with copies of the medical documents concerning the death, produced by a medical organisation, and the report on the autopsy (if conducted); personal belongings shall also be returned if they are not subject to confiscation. 8. The specialist funeral agency shall produce a report on the completed burial, which shall be sent to the official conducting the preliminary investigation; the document shall become part of the criminal case file.” 74. On 14 July 2011 the Constitutional Court of the Russian Federation examined a complaint lodged by two individuals challenging the constitutionality of Article 24 part 1 sub-part 4 (Grounds for a decision refusing to institute or to discontinue criminal proceedings) and Article 254 part 1 (Discontinuance of criminal proceedings in a court hearing) of the Code of Criminal Procedure. The court concluded that the above-mentioned statutory provisions were unconstitutional, in so far as they provided for the possibility of terminating a criminal case owing to the death of a suspect (or an accused person) without obtaining the consent of that person’s close relatives. The court noted, in particular, as follows: “... respect for fundamental procedural guarantees of individual rights, including the presumption of innocence, must be secured also in resolving the question concerning the termination of a criminal case with reference to non-rehabilitating circumstances. In taking their decision to refuse the institution of a criminal case or to terminate the criminal case at the pre-trial stages of the criminal proceedings, the competent bodies should take it as a point of departure that persons in respect of whom the criminal proceedings have been discontinued [who were not pronounced guilty of an offence] cannot be viewed as guilty – in the constitutional sense these persons can only be regarded as having been involved in criminal proceedings at the said stage owing to the relevant suspicions or accusations ... At the same time, by discontinuing a criminal case owing to the death of a suspect (or an accused person) [the authority] also stops the process of proving his or her guilt, but in so doing the accusation or suspicion is not lifted, quite the contrary: in reality [the authority] reaches a conclusion as to the commission of the criminal act by ... a specific person and the impossibility of criminal prosecution owing to the said person’s death. By this logic, the person in question, without the adoption or entry into force of any verdict, is declared guilty, and this constitutes a breach by the State of its duty to secure the judicial protection of that person’s honour, dignity and good name protected by [various provisions of] ... the Constitution, and as regards the persons whose interests may be affected by this decision – it constitutes a breach of their right of access to a court... ... [in other words,] the termination of a criminal case with reference to nonrehabilitating circumstances in general is possible only if the rights of the participants in the criminal proceedings are respected, which means, in particular, that there is a need to secure the consent of the suspect (or the accused person) to take such a decision] ... ... If, however, the person in question objects to [such a decision], he must be entitled to have the case against him proceed to the stage of its examination by the trial court ... [The court, having analysed the applicable domestic provisions, concludes that] the Code of Criminal Procedure did not provide that [the relatives of the deceased person in respect of whom the criminal case was discontinued] had any rights which would allow them to protect the rights of their deceased relative who was formerly accused. Since the interested persons, and primarily the close relatives of the deceased, are not permitted to take part in the proceedings, the [relevant] procedural decisions ... are taken by an investigator or a court – without participation of the defence... Such limitations do not have an objective or reasonable justification and entail a breach of [the constitutional rights of the persons in question] ... [The court further decides that] the protection of the rights and legal interests of the close relatives of the deceased person ... aimed at [securing] his or her rehabilitation should take place through the provision to them of the necessary legal status and the resulting legal rights within the framework of the criminal proceedings ... [The court concludes that the rights provided for by Article 125 of the Code of Criminal Procedure were insufficient to guarantee an adequate level of judicial protection to the interested persons]... [Thus, in cases where] the close relatives object to the discontinuance of the proceedings owing to the death of the formerly suspected or accused person, the competent investigative body or the court should proceed with the examination of the case. At the same time, the interested persons should enjoy the same rights as the deceased person [himself or herself] would have enjoyed ...” 75. Article 105 (“Murder”) of the Criminal Code, as in force at the relevant time, provides: “1. Murder, that is the intentional infliction of death on another person, shall be punishable by deprivation of liberty for a term of six to fifteen years.” 76. Article 205 (“Terrorism”) of the Criminal Code, as in force before the entry into force on 1 January 2007 of Federal Law no. 153-FZ of 27 July 2006, provides: “1. Terrorism, that is the commission of an explosion, arson or other action, creating a danger for people’s lives, or causing considerable pecuniary damage or other socially dangerous consequences, if such actions were committed with the aim of undermining public safety, threatening the population or influencing decision-making by the authorities, or the threat of committing such actions with the same aims, shall be punishable by deprivation of liberty for a term of eight to twelve years ...” 77. The same Federal Law of 27 July 2006 renamed and amended Article 205 of the Criminal Code, which is now entitled “Terrorist act” and provides: “1. The commission of an explosion, arson or other action, creating public fear and a danger for people’s lives, causing considerable pecuniary damage or other grievous consequences, with the aim of exerting pressure on decision-making by the authorities or international organisations, or the threat of committing such actions with the same aims shall be punishable by deprivation of liberty for a term of eight to twelve years.” 78. Article 5 of the Code of Criminal Procedure defines close relatives as spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren. 79. Part 1 of Article 11 of the Code provides: “... a court, a prosecutor and an investigator shall be obliged to inform a suspect, an accused, a victim, a civil claimant and other participants in criminal proceedings of their respective rights, duties and liability and to provide them with the possibility of enforcing such rights.” 80. Articles 20 and 21 of the Code of Criminal Procedure and Chapter 16 of the Criminal Code of Russia provide that incidents resulting in the death of a person are cases of public prosecution which are to be investigated and prosecuted irrespective of the will of the victim of the crime. In all circumstances displaying signs of the commission of a crime the relevant officials are to take the measures set out in the Code of Criminal Procedure aimed at an investigation into the event and the identification of the person or persons responsible for committing the crime in question. 81. Article 22 of the Code describes the status of a victim in the criminal proceedings: “The victim, his legal representative and (or) legal counsel shall have the right to take part in the criminal prosecution of the accused ...” 82. Article 24 of the Code lists possible grounds for a decision refusing to institute a criminal case or discontinuing the proceedings: “(1). A criminal case cannot be instituted and an instituted criminal case should be discontinued on one of the following grounds: ... (4) the death of an accused or a suspect, except for cases where the continuation of the proceedings is necessary for rehabilitation of the deceased person. ...” 83. Article 27 of the Code also states: “1. Criminal prosecution in respect of a suspect or an accused shall be discontinued with reference to one of the following grounds: (2) discontinuance of a criminal case with reference to [one of the grounds mentioned in part 1 of Article 24, including sub-part 4] ...” 84. Part 2 of Article 27 lists the situations in which it is necessary for the relevant official to obtain the consent of a suspect or an accused to discontinue criminal prosecution. There is no need to obtain anyone’s consent in the event of that person’s death. 85. Article 42 of the Code defines the victim as a “physical person who has sustained physical, pecuniary or non-pecuniary damage” as a result of the criminal offence, the decision on recognising someone as a victim being taken by an investigator or a court. It further states that: “... (2) The victim shall be entitled: (4) to submit evidence; (5) to make challenges and motions; ... (8) to have a representative; (9) to take part, with leave from an [investigator] in investigative actions which take place at his or her request ...; ... (12) upon termination of the preliminary investigation, to study all of the materials of the criminal case ...; (13) to receive copies of decisions instituting a criminal case, recognising him or her as a victim or refusing to do so, on discontinuance of a criminal case ...; (22) to avail himself or herself of other rights set out in this Code.” Part 8 of this provision states: “In criminal cases concerning crimes which resulted in the death of a person, the rights of the victim as set out in the present provision shall be transferred to one of his or her close relatives.” 86. Article 45 of the Code states: “1. A victim ... may be represented by counsel ... 4. Personal participation in a criminal case by the victim ... shall not preclude him or her from enjoying the right to be represented [by counsel in that criminal case].” 87. Article 19 of the Code provides for the possibility of appeal against the decisions of various authorities, in accordance with the procedure set out in the Code and particularly in Articles 123-127 thereof: “The actions (or inactions) and decisions of the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the court shall be amenable to appeal in accordance with the procedure established in the present Code, by the participants in the criminal court proceedings and by other persons in so far as the procedural actions in question and the procedural decisions adopted affect their interests.” “1. The public prosecutor shall consider the complaint within three days of the date of its receipt. In exceptional cases, where it is necessary to request that additional materials be supplied or other measures be taken for checking the complaint, it shall be admissible to consider it within a period of up to ten days; the applicant shall be duly informed. 2. Following consideration of the complaint, the public prosecutor shall take a decision allowing it in whole or in part or rejecting it. 3. The applicant shall be immediately notified of the decision taken on the complaint and of the further procedure for lodging an appeal against it. 4. In the cases stipulated by the present Code the inquiring officer, the investigator or the public prosecutor shall be entitled to lodge an appeal with a higher-ranking prosecutor against the actions (inactions) and decisions of the public prosecutor.” “1. Decisions by the inquiring officer, the investigator and the public prosecutor concerning a refusal to institute a criminal case or the termination of the criminal case, and other decisions and actions (or lack of action) on their part which are liable to inflict damage on the constitutional rights and freedoms of the participants in the criminal court proceedings or interfere with citizens’ access to the administration of justice, may be appealed against before the district court at the place where the preliminary inquiry is conducted. 2. The complaint may be lodged with the court by the applicant or his or her defence counsel, legal representative or representative, either directly or through the inquiring officer, investigator or public prosecutor. 3. The judge shall verify the legality and well-foundedness of the actions (or lack of action) and the decisions taken by the inquiring officer, the investigator and the public prosecutor, not later than five days after the date of the lodging of the complaint, at a court session in the presence of the applicant and his or her defence counsel, legal representative or representative, if they are taking part in the criminal case, other persons whose interests are directly affected by the action (or lack of action) or by the decision against which the appeal has been lodged, and the public prosecutor. Failure to attend by persons who have been duly informed of the time of consideration of the complaint and have not insisted that they be present, shall not be seen as an obstacle to consideration of the complaint by the court. Complaints shall be considered by the court at a public hearing unless stipulated otherwise. ... 4. At the start of the court session, the judge shall announce what complaint is being considered, introduce himself to the persons attending the court session and explain their rights and responsibilities. The applicant, if he is taking part in the court session, shall then adduce the grounds for the complaint, following which evidence shall be heard from other persons in attendance. The applicant shall have the right to respond. 5. After considering the complaint, the judge shall adopt one of the following decisions: (1) a decision finding the action (or lack of action) or the decision of the corresponding official to be illegal or ill-founded and finding him or her liable to provide redress for the violation; (2) a decision rejecting the complaint. 6. Copies of the judge’s decision shall be sent to the applicant and to the public prosecutor. 7. The lodging of a complaint shall not suspend performance of the action and the decision appealed against unless the body of inquiry, the inquiring officer, the investigator, the public prosecutor or the judge deems it necessary.” “1. Complaints and prosecutors’ appeals against judgments, rulings and resolutions of the courts of first instance and appeal courts, as well as complaints and prosecutors’ appeals against court decisions taken in the course of the pre-trial proceedings in the criminal case, shall be lodged in accordance with the arrangements laid down in ... [other provisions of the Code]. 2. Complaints and prosecutors’ appeals against court decisions which have acquired legal force shall be lodged in accordance with the arrangements laid down by [other provisions of the Code].” 88. Article 148 of the Code establishes the arrangements governing appeals against decisions not to institute criminal proceedings: “1. If there are no grounds for the institution of criminal proceedings the public prosecutor, the investigator, the body of inquiry or the inquiring officer shall take a decision not to institute criminal proceedings. A decision not to institute criminal proceedings on the ground set out in point 2 of the first paragraph of Article 24 of the present Code shall be admissible only in respect of the individual concerned. 2. When taking the decision not to institute criminal proceedings after checking the available information about the crime based on the suspicion of its perpetration by the person or persons concerned, the public prosecutor, the investigator or the body of inquiry shall be obliged to consider the possibility of instituting criminal proceedings against the person who reported or spread false information about the crime on a charge of making deliberately false accusations. 3. A decision not to institute criminal proceedings following verification of information concerning a crime that has been publicised in the mass media must be made public. 4. A copy of the decision not to institute criminal proceedings shall be sent to the applicant and to the public prosecutor within 24 hours of the time the decision was given. In this case, the applicant shall be informed of his or her right to appeal against the decision and of the procedure for lodging an appeal. 5. A decision not to institute criminal proceedings may be appealed against to the prosecutor or the court in accordance with the procedure laid down in Articles 124 and 125 of the present Code. 6. If the prosecutor finds a decision not to open criminal proceedings to be unlawful or unfounded, he or she shall revoke the decision not to open the case and shall institute criminal proceedings in the manner established by the present article or return the materials for additional verification. 7. If the judge finds the decision not to institute criminal proceedings to be unlawful or unfounded, he or she shall adopt the corresponding decision, forward it for execution to the public prosecutor and notify the applicant.” 89. By Resolution no. 16 of 1 November 1985 “On the practice of application by the courts of the legislation governing the participation of a victim in criminal proceedings” the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the old 1960 Code of Criminal Procedure: “... 2. ... is recognised as a victim an individual who has sustained non-pecuniary, physical or pecuniary damage directly. The recognition of such an individual as the victim does not depend on his age, physical or psychological condition. ... 4. Since ... in cases involving crimes which resulted in the death of a victim, the [relevant] rights [are transferred] to [his or her] close relatives, one of whom, regard being had to the agreement between them, shall be recognised as the victim. If certain persons outside the circle of the close relatives of the deceased insist on being recognised as victims, they may also be recognised as such ...” 90. By Resolution no. 17 of 29 June 2010 “On the practice of application by the courts of the norms governing the participation of a victim in criminal proceedings”, which replaced in full Resolution no. 16 of 1 November 1985, the Plenary Supreme Court summarised and explained the existing practice in relation to the status of the victim in criminal proceedings under the new 2001 Code of Criminal Procedure: “... 2. In accordance with the law, a victim, being a physical person who has suffered physical, pecuniary or non-pecuniary damage ... has in the criminal proceedings his or her own interests, for the protection of which he or she, as a participant in the criminal proceedings on the side of the prosecution, enjoys the rights of a party. A person who has suffered as a result of a criminal offence shall be recognised as a victim irrespective of his or her nationality, age, physical or psychological condition or other aspects of his or her personality, and irrespective of whether anyone has been identified as being involved in the commission of that offence. The courts should also take into account any damage inflicted on the victim by the offence, or by a criminally prohibited act committed in a state of insanity. ... 3. In accordance with part 1 of Article 42 of the Code of Criminal Procedure a person who sustained damage [from an offence] shall acquire the rights and obligations set out in the legislation governing criminal procedure as of the time of adoption by a [competent] investigator ... or a court of the decision recognising that person as a victim. At the same time, it should be borne in mind that the legal status of that person as a victim is determined on the basis of his or her factual situation... [thus, this procedural decision does nothing but reflect the existing factual situation and does not determine it]. The person in question can obtain recognition as a victim by making a relevant application ... The refusal to recognise someone as a victim, as well as the inaction of the [relevant official] leading to a failure to recognise that person as a victim can be appealed against in court by way of a pre-trial procedure in a criminal case set out in Articles 124 and 125 of the Code of Criminal Procedure. ... 5. In criminal cases concerning crimes which resulted in the death of a person, the rights of a victim shall be transferred to one of his or her close relatives (part 8 of Article 42 of the Code of Criminal Procedure). By virtue of part 4 of Article 5 of the Code of Criminal Procedure the close relatives are spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandparents and grandchildren. If the criminal offence affected the rights and legal interests of a few close relatives at the same time and they all insist on acquiring the rights of victims, these persons can also be recognised as victims. ... 7. The meaning of part 1 of Article 45 of the Code of Criminal Procedure is that representatives of the victim ... could be not only counsel, but also other persons ... capable of providing them with qualified legal assistance. ... 9. The courts must comply with the requirements of the law in that the victim, acting with the aim of using his ... powers as set out in the legislation on criminal procedure ... has the right to receive copies of the decision on the institution of a criminal case, recognition of his victim status ... on the discontinuance of a criminal case ... and copies of other procedural documents affecting his interests (Article 42 of the Code of Criminal Procedure). ... 11. On the basis of the principle of equality of the rights of the parties (Article 244 of the Code of Criminal Procedure) a victim has the same rights as the defence to make challenges and applications, to submit evidence, to participate in its examination, to plead ... The victim, his or her representative or legal representative at any stage of the criminal proceedings should be given an opportunity to inform the court about his or her position on the substance of the case and the arguments he or she deems necessary to justify that position. At the same time, the court should take into account the arguments of the victim in respect of the questions which affect his or her rights and legal interests, and to give them a reasoned assessment in taking the judicial decision. ... With a view to creating the necessary conditions for the victim to carry out his procedural duties and to enforce his rights ..., the courts, where there are justified grounds, should take measures to assist the victim in collecting the evidence (receipt of documents, lodging of requests for certificates, etc.). 12. The victim, his legal representative, representative ... shall have the right to take part in all court proceedings in the examined case for the protection of his or her rights and legal interests. In order to secure that right, the presiding judge should inform them of the date, time and place of the court proceedings. ...” 91. The applicants submitted that no other European country had a law on its statute book similar to section 14(1) of the Interment and Burial Act. 92. They also submitted that a similar practice had existed de facto in Israel and been used at an administrative level without ever being codified in law. They referred to the judgment in the case of Barake and Others v. Minister of Defence & Others, 14 April 2002, no. HCJ 3114/02, in which the Israeli High Court of Justice condemned the practice. According to the applicants, in 2004 the Israeli authorities announced that they were putting an end to the practice of refusing to return the bodies of Palestinians, “except in exceptional circumstances”. 93. The applicants also referred to seven opinions of the UN Human Rights Committee issued under the International Covenant on Civil and Political Rights in cases against Belarus, Tajikistan and Uzbekistan, in which the authorities had refused to inform the relatives of a prisoner under sentence of death of the date of execution, to return the body for burial or to disclose the place of burial (no. 886/1999, Bondarenko v. Belarus, 3 April 2003, paragraph 10.2; no. 887/1999, Lyashkevich v. Belarus, 3 April 2003, paragraph 9.2; no. 915/2000, Sultanova v. Uzbekistan, 30 March 2006, paragraph 7.10; no. 959/2000, Bazarova v. Uzbekistan, 14 July 2006, paragraph 8.5; no. 973/2001, Khalilova v. Tajikistan, 30 March 2005, paragraph 7.7; no. 985/2001, Aliboeva v. Tajikistan, 18 October 2005, paragraph 6.7; no. 1044/2002, Shukurova v. Tajikistan, 17 March 2006, paragraph 8.7). In particular, in the case of Aliboeva v. Tajikistan (no. 985/2001) the Human Rights Committee ruled as follows: “6.7 The Committee has taken note of the author’s claim that the authorities did not inform her about [her] husband’s execution but continued to acknowledge her intercessions on his behalf following the execution. The Committee notes that the law then in force did not allow for a family of an individual under sentence of death to be informed either of the date of execution or the location of the burial site of the executed prisoner. The Committee understands the continued anguish and mental stress caused to the author, as the wife of a condemned prisoner, by the persisting uncertainty of the circumstances that led to his execution as well as the location of his gravesite. It recalls that the secrecy surrounding the date of execution and the place of burial, as well as the refusal to hand over the body for burial, have the effect of intimidating or punishing families by intentionally leaving them in a state of uncertainty and mental distress. The Committee considers that the authorities’ initial failure to notify the author of the execution of her husband and the failure to inform her of his burial place, amounts to inhuman treatment of the author, in violation of article 7 of the Covenant”. 94. The applicants also relied on the judgment of the Inter-American Court of Human Rights of 15 June 2005 in the case of Moiwana Village v. Suriname (Inter-Am Ct. H.R., (Ser. C) No. 145 (2005). In that case State agents attacked Moiwana village in 1986, killing thirty-nine members of the N’djuka clan (paragraph 86 (15)). The authorities also prevented the survivors from recovering the bodies. It was further reported that some of the corpses were cremated. The Court gave a detailed account of the specific funeral rituals of the N’djuka, having noted that: “86(7). The N’djuka have specific rituals that must be precisely followed upon the death of a community member. A series of religious ceremonies must be performed, which require between six months and one year to be completed; these rituals demand the participation of more community members and the use of more resources than any other ceremonial event of N’djuka society. 86(8). It is extremely important to have possession of the physical remains of the deceased, as the corpse must be treated in a specific manner during the N’djuka death rituals and must be placed in the burial ground of the appropriate descent group. Only those who have been deemed evil do not receive an honourable burial. Furthermore, in all Maroon societies, the idea of cremation is considered very offensive. 86(9). If the various death rituals are not performed according to N’djuka tradition, it is considered a moral transgression, which will not only anger the spirit of the individual who died, but may also offend other ancestors of the community. This leads to a number of ‘spiritually-caused illnesses’ that become manifest as actual physical maladies and can potentially affect the entire natural lineage. The N’djuka understand that such illnesses are not cured on their own, but rather must be resolved through cultural and ceremonial means; if not, the conditions will persist through generations.” 95. The Inter-American Court held in paragraph 100 of its judgment that the applicants had suffered inhuman treatment, contrary to Article 5 of the American Convention on Human Rights, because: “... one of the greatest sources of suffering for the Moiwana community members is that they do not know what has happened to the remains of their loved ones, and, as a result, they cannot honor and bury them in accordance with fundamental norms of N’djuka culture. The Court notes that it is understandable, then, that community members have been distressed by reports indicating that some of the corpses were burned ...”. 96. As part of the just satisfaction award (paragraph 208 of the judgment) the Government of Suriname was ordered: “... to recover promptly the remains of the Moiwana community members killed during the 1986 attack. If such remains are found by the State, it shall deliver them as soon as possible thereafter to the surviving community members so that the deceased may be honoured according to the rituals of N’djuka culture”. | 1 |
train | 001-61002 | ENG | NLD | CHAMBER | 2,003 | CASE OF M.M. v. THE NETHERLANDS | 2 | Violation of Art. 8;Costs and expenses partial award | Gaukur Jörundsson | 9. The applicant is a Netherlands national, born in 1953 and living in The Hague. He has been a practising lawyer (advocaat) since 1979. 10. At the beginning of November 1993, the applicant agreed to act as defence counsel for a Mr K. in criminal proceedings brought against the latter. At that time, Mr K. was in pre-trial detention. In connection with this case, the applicant met several times with Mrs S., who at that time was Mr K.'s wife. 11. At some point Mrs S. told Mr K. that on 9 November 1993 the applicant had made sexual advances towards her. Mr K. informed the police officer investigating his case, Officer N., of this, who in turn informed the public prosecutor in charge of the investigation against Mr K., Public Prosecutor T. The latter gave instructions that a criminal complaint against the applicant should be filed with the vice squad. On this basis, Officer N. contacted both Mrs S. and Officer R. of the vice squad. 12. Mrs S. was initially reluctant to lodge a criminal complaint against the applicant as she feared that her word – the only evidence available – would be insufficient against that of the applicant. 13. Following discussions between Officers R. and R.K. of the vice squad and Public Prosecutor T., the suggestion was made to Mrs S. to connect a tape recorder to her telephone in order to allow her to tape incoming conversations with the applicant. Police officers subsequently connected a cassette tape recorder to Mrs S.'s telephone in her home and suggested that she steer her conversations with the applicant towards the latter's advances. Mrs S. was shown how to operate the device. The police came to her home twice in order to collect the recordings and load new cassette tapes into the tape recorder. 14. Mrs S. recorded three conversations with the applicant, which were transcribed by the police. These transcripts were added to the case-file on the investigation against the applicant. 15. The case was reported in the press. This induced two other women to come forward and lodge criminal complaints against the applicant: one Mrs V., who claimed to have been raped and sexually assaulted by the applicant, and one Mrs C., who also complained that she had been sexually assaulted by the applicant. 16. The applicant was subsequently summoned to appear on 14 April 1994 before the Regional Court (arrondissementsrechtbank) of The Hague on charges of sexual assault and rape. 17. In its judgment of 28 April 1994, following adversarial proceedings in the course of which a hearing was held on 14 April 1994, the Regional Court convicted the applicant of having sexually assaulted Mrs S. and Mrs C., and acquitted him of the charges brought in respect of Mrs V. The Regional Court sentenced the applicant to eight months' imprisonment, four months of which were suspended for a probationary period of two years. 18. Both the applicant and the public prosecutor lodged an appeal with the Court of Appeal (gerechtshof) of The Hague. 19. In its judgment of 16 June 1995, the Court of Appeal quashed the judgment of 28 April 1994, convicted the applicant of having sexually assaulted Mrs S. and Mrs C. and acquitted him of the charges in respect of Mrs V. It sentenced the applicant to four months' imprisonment, suspended for a probationary period of two years, and a fine of 10,000 Netherlands guilders. It based the applicant's conviction on statements taken from the applicant, Mrs S., Mrs C. and three other persons. The recorded telephone conversations were not relied on as evidence. 20. The applicant's subsequent appeal on points of law was rejected by the Supreme Court (Hoge Raad) on 18 February 1997. 21. In so far as is relevant to the case before the Court, the applicant complained under inter alia Article 8 of the Convention that the Court of Appeal had wrongly rejected his argument that the prosecution should be declared inadmissible or that evidence had been unlawfully obtained in respect of the recordings made of his telephone conversations with Mrs S. The Supreme Court dismissed this complaint in the following terms: “6.2.2. It is ... correctly assumed in the grounds of appeal on points of law that no interference by any public authority is permitted in the exercise of the right to 'respect for his private life and his correspondence' guaranteed by Article 8 § 1 of the Convention unless, and to the extent, provided for by law. 6.3.1. What is decisive in the instant case is therefore the answer to the question whether, noting the part played by the police in the recording of the telephone conversations that S. has had with the suspect, there has been an interference by the police in the exercise of the right of the accused to 'respect for his private life and his correspondence'. 6.3.2. Against the background of the facts and circumstances ... the finding of the Court of Appeal that the police has not acted in such a directive manner – in which finding the Court of Appeal apparently had in mind the entire part played by the police in the recording of the telephone conversations by S. – that there has been an interference by any public authority within the meaning of Article 8 § 2 of the Convention is not incomprehensible, and furthermore it does not reflect an incorrect understanding of the law, in particular, not as regards the contents of that provision of the Convention ... After all, [the case] concerns in essence a (female) victim of a sexual offence, this woman not having any other prima facie evidence than her own account and to whom the police has given information about a possibility for her to obtain additional proof and to whom and to this end the police has subsequently provided practical (technical) aid for performing certain acts – the recording, in her own home and in the absence of the police and with the aid of a device connected by the police to her own telephone line, of an incoming telephone conversation which the perpetrator conducts with her –, which act does not, for that woman, she being a party to the telephone conversation recorded, constitute an act prohibited by law. Nor does the finding that the circumstance that the suspect in his capacity of practising lawyer has a 'privileged status' is not relevant in this matter reflect an incorrect understanding of the law. On the above grounds, the Court of Appeal could conclude that this was not a situation referred to in Article 125g of the Code of Criminal Procedure. The findings of the Court of Appeal are sufficiently reasoned.” 22. At the relevant time, Articles 125f-h of the Code of Criminal Procedure (Wetboek van Strafvordering) provided as follows: Article 125f “1. In case of discovery in flagrante delicto of a criminal offence in respect of which detention on remand is permitted, or of the criminal offence referred to in Article 138a of the Criminal Code (Wetboek van Strafrecht) <i.e. bugging and the unlawful interception of communications by computer>, any person employed by the holder of the concession referred to in Article 3, first paragraph, of the Telecommunication Services Act (Wet op de telecommunicatievoorzieningen) (...) shall, when so required, provide to the Public Prosecutor, or during the preliminary judicial investigation (gerechtelijk vooronderzoek), to the investigating judge, all desired information concerning all traffic not intended for the public that has taken place through the telecommunication infrastructure and in respect of which there is a presumption that the person suspected of the offence has taken part in it. 2. Articles 217 – 219 shall apply by analogy.” Article 125g “During the preliminary judicial investigation the investigating judge is empowered, if the investigation urgently so requires and if it concerns a criminal offence in respect of which detention on remand is permitted, to determine that data traffic through the telecommunications infrastructure that is not intended for the public, and in respect of which there is a presumption that the person suspected of the offence is taking part in it, shall be tapped or recorded by an officer with powers of investigation (opsporingsambtenaar). An official record of the tapping or the recording shall be made within forty-eight hours.” Article 125h “1. The investigating judge shall order the destruction in his presence, as soon as possible, of the official records and other objects from which information can be derived that he has obtained as a result of the information referred to in Article 125f, or that has been obtained by tapping as referred to in the preceding Article, and which is of no importance to the investigation. An official record of the tapping or the recording shall be made without delay. 2. The investigating judge shall, in the same way, order the destruction without delay of official records and other objects as referred to in the previous paragraph in so far as they relate to statements made by or to a person who, pursuant to Article 218, would be able to decline to give evidence if he were questioned as a witness as to the content of those statements. 3. The investigating judge shall add the other official records and other objects as referred to in the first paragraph to the case-file no later than the moment at which the decision to close the preliminary judicial investigation becomes final. 4. The public prosecutor shall order the destruction in his presence of the official records or other objects from which information can be derived that he has obtained as a result of the information referred to in Article 125f, if he does not seek the opening of a preliminary judicial investigation within one month after obtaining that information. He shall make an official record of the destruction.” 23. Article 218 of the Code of Criminal Procedure, which is referred to in the provisions quoted above, provides as follows: “Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.” 24. Guidelines for the Interception of Telephone Conversations (Richtlijnen Onderzoek van Telefoongesprekken) of 2 July 1984, a copy of which could be obtained by any interested person, set out the way in which the power to intercept telephone conversations was to be exercised in practice. These Guidelines, which were in the nature of published policy and official instructions rather than “law”, were issued in the form of a circular letter from the senior public prosecutors to the police. The model of this circular letter was published in, inter alia, the Netherlands Journal for Human Rights (Nederlands Tijdschrift voor de Mensenrechten) of July/August 1989, pages 545 and following. According to these Guidelines, the procedure to be followed was this: 25. The interception and recording of telephone conversations should be considered only if it could lead to the detection of crimes which, in view of their nature or frequency or the organised context in which they were committed, constituted a serious interference with the legal order. It should be limited to those cases in which the aim pursued could not reasonably be achieved otherwise. 26. A police officer in charge of an investigation who considered such a measure indicated was, after consulting his commanding officer, to discuss the matter with the public prosecutor. The latter, if he agreed with the police officer, was to discuss it with the investigating judge. If the public prosecutor decided that the measure was necessary, the police officer in charge of the investigation was to provide certain necessary factual information in the form of a written report. The public prosecutor would then submit this report to the investigating judge and ask for permission in writing to proceed with the measure. 27. An official record was to be made of all interceptions, even if they yielded nothing useful, within forty-eight hours. Any recordings, transcripts or documents were to be kept in such a way that they were not accessible to persons not involved in the case. The tapes, with a final report, should be submitted to the investigating judge, with an indication of the number of copies still in the hands of the police. If the investigating judge decided that any part of the recordings or transcripts was to be destroyed, the copies too should be handed to him for that purpose. 28. Articles 125f-h of the Code of Criminal Procedure (see paragraph 22 above) were repealed by the Act of 19 October 1998, Staatsblad (Official Gazette) 1998, no. 610, with effect from 1 February 2000. It is now provided that the public prosecutor may order the recording of telecommunications if the investigation urgently so requires; if the criminal offence concerned is one in respect of which detention on remand is permitted; and which, in view of its nature or its connection with other criminal acts committed by the suspect, the criminal offence concerned constitutes a serious interference with the legal order (Article 126m § 1 of the Code of Criminal Procedure). The requirement of a preliminary judicial investigation no longer applies, nor is there any involvement of an investigating judge. | 1 |
train | 001-23197 | ENG | SVK | ADMISSIBILITY | 2,003 | HODY v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Štefan Hody, is a Slovakian national, who was born in 1947 and lives in Bratislava. He is represented before the Court by Mr J. Jurovský, a lawyer practising in Piešťany. 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 18 May 1994 the applicant requested the enforcement of a payment order of 20 April 1994 by which a sum of money had been awarded to him. The case was examined several times by the Vranov nad Topľou District Court and the appellate court, and on 28 April 1999 the President of the Vranov nad Topľou District Court admitted that there had been undue delays in the enforcement proceedings. On 23 October 2002 the Vranov nad Topľou District Court discontinued the proceedings as the debtor’s truck which the applicant had proposed to sell had been destroyed. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ... The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002. After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred. According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings were instituted also before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. | 0 |
train | 001-71601 | ENG | RUS | CHAMBER | 2,005 | CASE OF GARTUKAYEV v. RUSSIA | 4 | Violation of P4-2;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed | null | 7. The applicant is an ethnic Chechen; he was born in 1941 in the Chechen Republic and lived there. In 1994 his property in the Chechen Republic was destroyed as a result of military hostilities. Since 1996 the applicant has been living in Nalchik; on 30 December 1996 a forced migrant’s card was issued to him. At the material time the applicant was the deputy chairman of the Board of the Union of Consumer Associations of the Chechen Republic. 8. On 27 January 2000 the applicant returned by car from a mission in the Chechen Republic to Nalchik in Kabardino-Balkaria. He was accompanied by Mr Ba., driver, Mr M., a member of the Parliament of the Chechen Republic, and Mr Bi., a representative of the Chechen elders. 9. At about 5 p.m. the applicant’s car was stopped at the check-point “Kurp-2” on the administrative border between Ingushetia and Kabardino-Balkaria. After three hours of checking the documents and identities of the applicant and his travelling companions, officers of the Kabardino-Balkaria State Inspectorate for Road Safety (ГИБДД МВД КБР) refused them entry to Kabardino-Balkaria on the ground of their Chechen ethnic origin. 10. In the night of 27 January 2000, the applicant and his companions took a long detour and reached Nalchik through a different check-point. 11. On 24 February 2000 the applicant lodged a complaint with the Nalchik Town Court against the Kabardino-Balkaria Ministry of the Interior (МВД КБР). The applicant sought a declaration that the actions of the police officers had been unlawful, and claimed compensation for non-pecuniary damage caused by the alleged violation of his constitutional right to liberty of movement. 12. The Nalchik Town Court accepted the complaint, but no proceedings took place for more than a year. Following the applicant’s complaint to the Supreme Court of the Kabardino-Balkaria Republic, the Nalchik Town Court held a hearing. 13. On 13 April 2001 the Nalchik Town Court gave its judgment. The court found that on 28 September 1999 the Ministry of the Interior of Kabardino-Balkaria had issued Directive no. 1/220 (Указание МВД КБР № 1/220) on the procedure for crossing the administrative border of Kabardino-Balkaria by residents of the Chechen Republic. The regulation provided for stricter checks of vehicles and passengers of Chechen origin, as well as for the special registration of Chechens on the basis of migrants’ cards. The court questioned the police officers who had been on duty on 27 January 2000. The officers maintained that neither the applicant nor his companions had produced their migrants’ cards; the officers had informed their superior on duty of this situation and, pursuant to his oral order, they refused admission to the applicant and his companions. The court held that the applicant had failed to prove that he had indeed shown his migrant’s card to the police officers and, therefore, there was no ground to declare their actions unlawful. The court noted that on the same night the applicant had gained admission into Kabardino-Balkaria through a different check-point. The court also inspected the registration log of 27 January 2000 and noted that on the same day other Chechen passengers carrying migrants’ cards had been admitted into Kabardino-Balkaria. 14. The applicant appealed against the judgment of 13 April 2001. He submitted, in particular, that the regulation of 28 September 1999 had not been valid and enforceable because it had never been officially published. 15. On 22 May 2001 the Supreme Court of the Kabardino-Balkaria Republic upheld the judgment of 13 April 2001. The court pointed out that the burden of proof was on the applicant, who had failed to show that he had been denied entry because of his ethnic (Chechen) origin. 16. Article 19 of the Constitution of the Russian Federation provides for the equality of all before the law and courts of law, and equality of rights and liberties. 17. Article 27 provides that everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence. | 0 |
train | 001-83173 | ENG | POL | ADMISSIBILITY | 2,007 | OTOMANSKI v. POLAND | 4 | Inadmissible | Josep Casadevall | The applicant, Mr Andrzej Otomański, is a Polish national who was born in 1956 and presently is detained in Rawicz Prison, Poland. The Polish Government were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 November 1997 the applicant, who was a police officer, was arrested by the police and detained on remand on a charge of murder. On 4 August 2000 the Poznań Regional Court (Sąd Okręgowy) convicted the applicant as charged and sentenced him to 25 years’ imprisonment. The applicant appealed. On 3 July 2001 the Poznań Court of Appeal (Sąd Apelacyjny) upheld the impugned judgment. On 3 September 2002 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly illfounded. The applicant submitted copies of envelopes addressed to the Rawicz Prison Governor (Dyrektor Zakładu Karnego, Rawicz) but which, apparently, contained letters concerning official correspondence in the applicant’s cases pending before the domestic courts. Two envelopes from the Poznan Court of Appeal (Sąd Apelacyjny w Poznaniu) concerning cases no I AK 521/01 and IIWKK 180/01: posted on 16 October 2001 and delivered to the Rawicz Prison on 17 October 2001; posted on 25 October 2001 and delivered to the Rawicz Prison on 26 October 2001. Both envelopes also bear a handwritten note: “Otomański”. An envelope from the Supreme Court in Warsaw, Criminal Chamber (Sąd Najwyższy, Izba Karna, Warszawa) concerning case no. VKK 15/02 (the applicant’s cassation proceedings) posted on 23 July 2002 and delivered to the Rawicz Prison on 25 July 2002. An envelope from the Poznań Court of Appeal concerning case no. I AKZ 656/02 sent on 24 July 2002 and delivered to the Rawicz Prison on 26 July 2002. An envelope from the Poznań Court of Appeal concerning case no. IIAKZ 901/02 sent on 10 October 2002 and delivered to the Rawicz Prison on 14 October 2002. An envelope from the Poznan Court of Appeal concerning case no. IIAKZ 446/03 sent on 14 May 2003 and delivered to the Rawicz Prison on 16 May 2003. The following envelopes from the Poznan Regional Court (Sąd Okręgowy w Poznaniu) and concerning proceedings no. IIIK 248/01: posted on 27 February 2003; posted on 10 March 2003; posted on 20 March 2003 and delivered to the Rawicz Prison on 24 March 2003; posted on 22 April 2003 and delivered to the Rawicz Prison on 24 April 2003. Article 102 §11 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) of 6 June 1997 (“the 1997 Code”) provides that convicted persons are entitled to uncensored correspondence with the judicial authorities and other State authorities. Article 242 § 5 of the 1997 Code reads as follows: “The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.” | 0 |
train | 001-58242 | ENG | MLT | GRANDCHAMBER | 1,999 | CASE OF T.W. v. MALTA | 2 | Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber | 7. The applicant, T.W., is a United Kingdom national, born in 1943. At the relevant time, he resided in Luqa, Malta, and was a storekeeper. 8. On the evening of Thursday 6 October 1994, at approximately 8.30 p.m., he was arrested by the police. 9. On Friday 7 October 1994 the applicant was brought before a magistrate of the Court of Magistrates. The charge was read out by a police inspector and alleged that the applicant had defiled his minor daughter (an offence involving sexual acts) and committed acts of violent assault on her. The applicant pleaded not guilty. 10. After the hearing, the applicant contacted a lawyer who arranged to meet with him the next day, 8 October, which was a Saturday. On the morning of Monday 10 October 1994 the applicant’s lawyer filed a written application for bail. It stated that the applicant lived in Malta, was employed there, and although he had problems with his Maltese wife he had nevertheless very good relations with his in-laws. There was no fear of him absconding. Even if he were to go to the United Kingdom, extradition provisions would make it impossible for him to avoid being brought to trial if the Attorney-General decided to indict him. The application further stated that the applicant strenuously denied the charges and was being detained on the basis of mere unfounded allegations. The magistrate before whom he had been brought had no power to order his release. He had not been assisted by a lawyer and his application was being filed with the registry of the Court at the first opportunity. He requested the court to release him as there were no reasons justifying his continued detention. The application was immediately sent to the Attorney-General who was given twenty-four hours in which to reply. 11. On the same day, that is on 10 October 1994, the Attorney-General, by a declaration in writing, stated his opposition to the applicant’s release. 12. Still on 10 October 1994, a magistrate of the Court of Magistrates took the decision to reject the applicant’s bail application. The recollection of the magistrate is that this decision was taken either late in the morning or early in the afternoon of 10 October 1994. The magistrate in question was not the same magistrate before whom the applicant had appeared on 7 October 1994 and had not himself examined the applicant. On 11 October 1994 the registrar of the Court of Magistrates entered the second magistrate’s decision in the court’s records. 13. On 20 October 1994 the second magistrate began hearing evidence and on 25 October 1994 he ordered the applicant’s release on bail. 14. On 8 May 1995 the Court of Magistrates convicted the applicant and gave him a two-year suspended prison sentence. On 8 January 1996 the Court of Criminal Appeal upheld the applicant’s conviction. 15. Section 137 of the Criminal Code provides as follows: “Any magistrate who, in a matter within his powers, fails or refuses to attend to a lawful complaint touching an unlawful detention, and any officer of the Executive Police, who, on a similar complaint made to him, fails to prove that he reported the same to his superior authorities within twenty-four hours shall, on conviction, be liable to imprisonment for a term from one to six months.” 16. In its judgment of 7 January 1998 in Carmelo Sant v. Attorney-General the Constitutional Court rejected the appellant’s argument that section 137 of the Criminal Code only provided for a penalty and not for a remedy. According to the Constitutional Court, if the way in which this section had been applied were to be examined, the conclusion would be the same as that reached by Chief Justice John J. Cremona. The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of Malta, there are in the Maltese Criminal Code two provisions, namely sections 137 and 353 which, taken together, may be regarded as providing an equally effective safeguard of personal freedom. 17. The parties before the European Court referred to the following examples of cases in which section 137 had been invoked. On 13 June 1990 the First Hall of the Civil Court ordered Christopher Cremona to be detained for twenty-four hours for contempt of court. The detainee appealed under section 1003 of the Code of Organisation and Civil Procedure. The Attorney-General, with reference to Cremona having invoked section 137 of the Criminal Code, requested the Court of Magistrates to order the acting registrar of the court and the Commissioner of Police to bring Cremona before the court and order either of them to set him free at once. Cremona’s appeal had suspensive effect on the execution of the judgment and, as a result, his continued detention was illegal. The Court of Magistrates acceded to the Attorney-General’s request. Ibrahim Hafes Ed Degwej, later christened Joseph Leopold, invoked section 137 of the Criminal Code to challenge his prolonged and indefinite detention further to a removal order. He claimed that his detention, which had started in November 1983, had been rendered illegal because of its length and indefinite duration. On 4 July 1995 the Court of Magistrates ordered that the Attorney-General be notified and, having heard his views, still on 4 July 1995, decided to reject the application. On 28 April 1997 Joachim sive Jack Spagnol relied on section 137 of the Criminal Code to challenge the lawfulness of his prolonged detention pending an investigation into his assets, which had been sequestrated by court order. He claimed that the detention had been unduly prolonged. Moreover, he asserted that he had very little property. On 28 April 1997 the Court of Magistrates transmitted the case file to the Attorney-General and abstained from further consideration of the application. On 5 October 1994 the Court of Magistrates rejected an application for release by Emanuela Brincat. It observed: “As results from the records several applications have been filed, before this Court and before the Criminal Court, so that the person charged may be released, which applications have always been dealt with expeditiously, which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is, where it refers to section 137 of the Criminal Code.” (unofficial translation from Maltese) 18. Moreover, the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person’s release. The magistrate had this obligation by virtue of the provisions of section 137 of the Criminal Code. Every person in Malta was assured that an arrest could not last beyond forty-eight hours and the appearance before the magistrate ensured that if the arrested person had any submissions to make, he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority. In connection with habeas corpus decisions, under section 137 of the Criminal Code the magistrate did not need to hear the Attorney-General. However, since this was an adversarial procedure where the prosecution was led by the police, the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms. This was a power quite separate and distinct from the power to grant bail. If the arrest was found by the magistrate to be unlawful then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise. Only if there was nothing to show that the arrest was unlawful did the question of bail arise. 19. Section 353 of the Criminal Code, read together with section 137, is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus (see paragraph 16 above). Section 353 addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows: “353. (1) Every officer of the Executive Police below the rank of inspector shall, on securing the person arrested, forthwith report the arrest to an officer not below the rank of inspector who, if he finds sufficient grounds for the arrest, shall order the person arrested to be brought before the Court of Judicial Police; otherwise he shall release him. (2) Where an order is given for the person arrested to be brought before the Court of Judicial Police, such order shall be carried into effect without any undue delay and shall in no case be deferred beyond forty-eight hours.” 20. The powers of the Court of Magistrates in respect of arrested persons who are brought before it under section 353 of the Criminal Code were discussed in extenso in the Ellul case. On 23 December 1990 Nicholas Ellul, who had been arrested on suspicion of having committed a criminal offence punishable with more than three years’ imprisonment, was brought before the Court of Magistrates. He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful. This request was dealt with by the Court of Magistrates on the same day in the following manner: “The procedure which should be followed by the Court of Magistrates as a Court of Inquiry is set out in sections 389 to 409 of the Criminal Code. Subsection (1) of section 390 provides how proceedings should start before this court: it ‘shall hear the report of the police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report’. The time-limit for the conclusion of this inquiry is one month as indicated in section 401. In no way is the Court bound to hear any evidence in support of the report. Moreover, the fact that the prosecuting officers confirm the report on oath is meant to satisfy the Court that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him. This Court does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges; after all, in this contest, the word ‘report’ means ‘charge’. This is the procedure followed in this case and it is the correct procedure. Consequently, the Court declares that the requests of the person charged are unfounded and therefore rejects them.” (unofficial translation from Maltese) Mr Ellul lodged a constitutional application arguing that there had been a breach of Article 5 § 3 of the Convention. On 31 December 1990 the First Hall of the Civil Court found that Article 5 § 3 did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person’s arrest had been made on a reasonable suspicion. Moreover, the court considered that Article 5 § 3 did not impose on the prosecution any duty, on presenting the arrested person, to adduce evidence that the police had a reasonable suspicion at the time of the arrest. On 8 January 1991 the Constitutional Court upheld the decision of the First Hall of the Civil Court. 21 “According to the constant practice of this Court and according to the Criminal Code, this Court cannot consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution. The Court, furthermore, cannot enter into any question to consider ex officio the release from arrest, but first an application has to be filed which has to be notified to the Attorney-General, and after his reply or failing such a reply after the time set by law, it may decide on release under guarantees. Therefore what the defence is requesting is outside the functions of this Court. Having regard to sections 574(1), 575(2) and 582(1) of the Criminal Code, the Court declares itself not competent to comply with the request and directs the person charged, that if his request for release is to be considered, he has to comply with what is provided in the sections herementioned.” (unofficial translation from Maltese) 22. The Criminal Code contains the following sections concerning bail: “574. (1) Any accused person who is in custody for any crime or contravention may, on application, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place. … 575. ... (2) The demand for bail shall be made by an application, a copy whereof shall be communicated to the Attorney-General on the same day, whenever it is made by – ... (c) persons accused of any crime punishable with more than three years’ imprisonment… (3) The Attorney-General may, within the next working day, by a note, oppose the application, stating the reasons for his opposition. … 576. The amount of the security shall be fixed within the limits established by law, regard being had to the condition of the accused person, the nature and quality of the offence, and the term of the punishment to which it is liable. 577. (1) Security for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed. (2) It may also be given, whenever the court shall deem it proper, by the mere deposit of the sum or of an equivalent pledge, or by the mere recognisance of the person accused. … 582. (1) The Court may not ex officio grant bail, unless it is applied for by the person charged or accused. …” 23. By virtue of the European Convention Act of 19 August 1987 the Convention became part of the law of Malta. 24. In its Aquilina judgment of 13 June 1994, the Constitutional Court held that judges in Malta have to take into consideration the case-law of the European Court of Human Rights. | 1 |
train | 001-104462 | ENG | RUS | ADMISSIBILITY | 2,011 | BELAYEV v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in the town of Pyatigorsk in Stavropol Region. The Russian Government (“the Government”) were represented by Messrs P. Laptev and G. Matyushkin, the successive Representatives of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a military serviceman. On 8 June 1999 the Khabarovsk Garrison Military Court (“the Khabarovsk Court”) ruled in the applicant’s favour. It declared certain actions of the Magadan Regional Military Commissioner (“the Regional Commissioner”) unlawful. The Khabarovsk Court further ordered the Regional Commissioner to appoint the applicant to a specific post, to send him for medical examination and to pay him certain monetary sums. The applicant was also granted monetary compensation for the nonpecuniary damage caused by the Regional Commissioner’s unlawful actions. On 30 November 1999 the Khabarovsk Court’s judgment was mainly upheld on appeal by the Far-Eastern Circuit Military Court. On 8 December 1999 the applicant was appointed to the post pursuant to the judgments in his favour. The Regional Commissioner invited the applicant to undergo the medical examination on 10 December 1999. The applicant failed to arrive to the hospital of the Magadan Regional Directorate of the Interior for that purpose either on that date or on any date thereafter. The monetary compensation ordered by the Khabarovsk Court’s judgment of 8 June 1999 was fully paid to the applicant’s account in several tranches in 1999 and 2000. On 15 November 2001 the Pyatigorsk Garrison Military Court (“the Pyatigorsk Court”) again found for the applicant. It declared the Regional Commissioner’s order on the applicant’s discharge unlawful. The Pyatigorsk Court further ordered the Regional Commissioner to reinstate the applicant, to re-calculate his salary and to pay compensation to him and to give him four days of paid leave. The Pyatigorsk Court’s judgment was upheld on appeal by the North-Caucasian Circuit Military Court on 27 February 2002. On 30 August 2002 the applicant was formally re-instated by the Regional Commissioner pursuant to the Pyatigorsk Court’s judgment of 15 November 2001. The applicant was informed accordingly by the letter of the acting Regional Commissioner of 3 September 2002. He was also invited to report to the Regional Commissioner’s office in order to comply with other formalities. The documents in question were handed over to the applicant on 16 September 2002. As the applicant failed to arrive to his office, the Regional Commissioner on 11 February 2003 decided to deposit the monetary award due to the applicant with a bank account which had been opened for that purpose with the Savings Bank of Russia. On 4 April 2003 the military officials attempted to hand down the corresponding documents to the applicant personally but he refused to take them. In July 2003 the applicant received the documents which had been mailed to him. Relevant domestic law and practice are summarized, among many other judgments and decisions of the Court, in Pridatchenko and Others v. Russia, nos. 2191/03, 3104/03, 16094/03 and 24486/03, §§ 33-39, 21 June 2007. | 0 |
train | 001-85618 | ENG | CZE | ADMISSIBILITY | 2,008 | ADAMICEK v. THE CZECH REPUBLIC | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | The applicant, Mr Richard Adamíček, is a Czech national who was born in 1964 and lives in Napajedla. He was represented before the Court by Mr I. Juřena, a lawyer practising in Zlín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 February 1997 the applicant lodged an action with the Zlín District Court (okresní soud) against a certain B.D., seeking the payment of CZK 352,000 (EUR 13,541). It appears that the proceedings are still pending. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
train | 001-60532 | ENG | FRA | CHAMBER | 2,002 | CASE OF COLOMBANI AND OTHERS v. FRANCE | 1 | Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings | Gaukur Jörundsson | 8. The first two applicants were born in 1948 and 1960 respectively and live in Paris. 9. In order to consider an application by Morocco for membership of the European Union, the European Commission decided it would need very precise information on the issue of cannabis production in that State and the measures being taken to eradicate it, that being the avowed political aim of the King of Morocco in person. To that end, the Secretariat General of the Commission requested the Observatoire géopolitique des drogues (OGD – Geopolitical Drugs Observatory) to prepare a report on drug production and trafficking in Morocco. Investigations and reports by the OGD, which closed down in 2000, were considered authoritative. The Paris tribunal de grande instance and the Paris public prosecutor’s office were among the subscribers to its publications. 10. The OGD delivered its report to the European Commission in February 1994. The report contained the names of people implicated in drug trafficking in Morocco. However, the Commission asked the Observatory for a revised version of the report, with the names of the drug traffickers deleted in order to make it more suitable for the discussions that were scheduled with the Moroccan authorities. This expurgated version of the initial report was published, notably in a book sold by the OGD entitled Etat des drogues, drogue des Etats (“State of drugs, drugs of States”) and containing a chapter on Morocco. The book was referred to in the newspaper Le Monde on 25 May 1994. 11. After initially remaining confidential, the original version of the report began to circulate. Le Monde learnt of its existence in the autumn of 1995. The report contained twelve chapters with the following titles: (1) “Cannabis in Morocco – the historical background”; (2) “General overview of Er Rif”; (3) “The characteristics of cannabis growing”; (4) “The socio-economic impact and areas of production”; (5) “The increase in the land set aside for cannabis production”; (6) “Morocco – the world’s leading exporter of hashish”; (7) “Drug-trafficking routes”; (8) “The criminal networks”; (9) “The emergence of hard drugs”; (10) “Drug money”; (11) “The ‘war on drugs’ ”; and (12) “Conclusion”. It related how, over a period of ten years, there had been a tenfold increase in the area of land that had historically been used for cannabis production in the region of Er Rif and that current levels of production made “the sharif kingdom a serious contender for the title of the world’s leading exporter of cannabis”. 12. On 3 November 1995 Le Monde published an article by Mr Incyan giving details of the report. 13. The front page of the newspaper carried an introductory article under the main headline: “Morocco, world’s leading exporter of cannabis”, and a sub-heading: “King Hassan II’s entourage implicated by confidential report.” The article, which was relatively short (it ran to some thirty or so lines in two columns), summarised the terms of the OGD’s report. A more detailed article (covering six columns) appeared on page two under the headline: “Moroccan government implicated in cannabis trafficking according to confidential report”, and a sub-heading: “The report, which was commissioned by the European Union from the Geopolitical Drugs Observatory, says Morocco is the world’s leading exporter and the European market’s main supplier. It points to the direct responsibility of the sharif authorities in these lucrative activities”. A summary of the article also appeared in an introductory passage which read: “Drugs – Le Monde has obtained a copy of a confidential report sent to the European Union in 1994 in which the OGD says that ‘in just a few years Morocco has become the world’s leading cannabis exporter and the European market’s main supplier’. The report casts doubt on the sharif authorities’ determination to put an end to the trafficking, despite the ‘war on drugs’ they declared in a blaze of publicity in the autumn of 1992. Corruption guarantees the drug-trafficking rings the protection of officials ‘ranging from the humblest customs officer to the King’s inner circle ...’.” 14. In a letter of 23 November 1995, the King of Morocco made an official request to the French Minister of Foreign Affairs for criminal proceedings to be instituted against Le Monde. The request was forwarded to the Minister of Justice, who referred the matter to the Paris public prosecutor’s office, as required by section 48(5) of the Freedom of the Press Act of 29 July 1881. 15. Mr Colombani, the editor-in-chief of Le Monde, and Mr Incyan, the author of the article, were summoned to appear in the Paris Criminal Court on charges of insulting a foreign head of State. 16. In a judgment of 5 July 1996, the Criminal Court found that the journalist had merely quoted extracts from what was undisputedly a reliable report, without distorting or misinterpreting it or making groundless attacks and, consequently, had pursued a legitimate aim. It accepted that he had acted in good faith and acquitted both him and Mr Colombani. 17. The King of Morocco and the public prosecutor’s office appealed against that decision. 18. In a judgment of 6 March 1997, the Paris Court of Appeal, while recognising that “informing the public about matters such as the international drug trade is obviously a legitimate aim for the press”, found that the desire to draw the public’s attention to the involvement of the royal entourage and to “the authorities’ accommodating attitude” that pointed to “tolerance on the part of the King ... was not entirely innocent”, since it was “tainted with malicious intent”. The articles in question contained “accusations of duplicity, artifice and hypocrisy that were insulting to a foreign head of State”. The circumstances taken as a whole excluded good faith on the part of the journalist: he had not established that he had “sought to check the accuracy of the OGD’s comments”; instead, he had simply reproduced its unilateral account of events, thus “propounding a theory that contained serious accusations”, without leaving any room for doubt about the reliability of the source. Nor had he sought to check whether the 1994 report remained valid in November 1995. The Court of Appeal noted that the journalist had not shown that he had “contacted any Moroccan dignitaries, officials, public authorities or services for an explanation for the failure to match words with deeds or even to obtain their observations on the tenor of the OGD’s report”. In addition, he had refrained from mentioning the existence of the White Paper published by the Moroccan authorities in November 1994 on “Morocco’s general policy on the prevention of drug trafficking and the economic development of the northern provinces”. 19. The applicants were therefore found guilty of insulting a foreign head of State and sentenced to fines of 5,000 French francs (FRF) each. They were ordered to pay King Hassan II, who had successfully applied to be joined as a civil party to the proceedings, FRF 1 in damages and FRF 10,000 pursuant to Article 475-1 of the Code of Criminal Procedure. The Court of Appeal also ordered Le Monde to make additional reparation in the form of a report publishing details of the convictions. 20. The applicants appealed on points of law against that judgment. 21. In a judgment of 20 October 1998, the Criminal Division of the Court of Cassation dismissed their appeal, approving the Court of Appeal’s view that “what [made] the article insulting [was] the suspicion with which the King of Morocco’s determination to put an end to drug trafficking in his country [was] viewed, and the charge that pernicious statements had been made to dramatic effect solely in order to preserve the country’s image”, especially as the Court of Appeal had found that the charge of duplicity had been repeated twice and that the insistence on drawing the reader’s attention to the King in person, in an article that portrayed Morocco as the world’s leading hashish exporter and alleged direct responsibility on the part of the Moroccan government and members of the royal family, was tainted with malicious intent. 22. The statutory basis for the offence (délit) of publicly insulting a foreign head of State is section 36 of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”), which, at the material time, read as follows: “It shall be an offence punishable by one year’s imprisonment or a fine of 300,000 francs or both publicly to insult a foreign head of State, a foreign head of government or the minister for foreign affairs of a foreign government.” 23. That provision was amended by the Presumption of Innocence and Victims (Reinforcement of Rights) Act of 15 June 2000, which removed the power to impose a custodial sentence for this offence. 24. The rationale behind making it a criminal offence to insult a foreign head of State is to protect senior foreign political figures from certain forms of attack on their honour or dignity. In that regard, the offence is similar to that established by section 26 of the same Act of insulting the President of the French Republic. 25. Under the case-law, the notion of insulting a foreign head of State is to be construed as meaning abuse, defamatory remarks, or expressions that are insulting or liable to offend the sensibilities of the persons the Act seeks to protect. Thus, the Court of Cassation has ruled: “The actus reus of the offence of insulting a head of State ... is constituted by any expression of contempt or abuse or any accusation that is liable to undermine the honour or dignity of the head of State in his or her private life or in the performance of his or her functions” (Court of Cassation, Criminal Division (“Cass. crim.”), decision of 17 July 1986). 26. The 1881 Act established a specific legal procedure for the offence. Section 48 introduced a special legal rule by providing that a prosecution will only lie at the request of the person at whom the insults are directed. Requests must be sent to the Minister for Foreign Affairs, who then communicates them to the Minister of Justice. Furthermore, unlike the position with criminal defamation, bad faith is not presumed. It is for the prosecution to prove malice. On the other hand, the defence of justification (exceptio veritatis), which is available to a charge of criminal defamation, cannot be pleaded on a charge of insulting a foreign head of State. Lastly, sections 42 and 43 establish a system of different levels of liability, with editors-in-chief and editors being prosecuted as principals, and the authors of the offending articles as accomplices. 27. According to the Government, the French courts have restricted the scope of section 36 by ruling that it is only intended to “prevent abuses of freedom of expression” (Paris Court of Appeal, judgment of 2 October 1997) and have construed the notion of abuse of that freedom narrowly. 28. As to the scope of section 36, they consider that the offence created by that section does not preclude political criticism (Paris Court of Appeal, judgments of 2 October 1997 and 13 March 1998). Section 36 may only be relied on in the event of a personal attack on a foreign head of State. The insult must therefore be directed at the head of State and his or her reputation, not his or her policies (Paris Court of Appeal, judgment of 27 June 1995). 29. The French courts have also held that accusations concerning the conduct of the members of a reigning sovereign’s family, even if excessive in tone, do not amount to an attack on the person of the head of State. They have likewise accepted that the intentionally insulting and sarcastic tone inherent in the satirical form used by the makers of a television programme did not violate the right of foreign public figures to respect for their private life (Paris Court of Appeal, judgment of 11 March 1991). Only particularly virulent attacks, demonstrating a deliberate intention to cause harm, could come within section 36 (Paris Court of Appeal, judgment of 27 June 1995). 30. As regards the intention to cause harm, the French courts have consistently held that no presumption of an intention to insult arises. It is necessary to prove that the maker of the offending remarks intended the insult (Paris Court of Appeal, judgment of 13 March 1998). The defendant is entitled to present his defence in public in adversarial proceedings, without having to go through the complex process of seeking leave to tender evidence (Cass. crim., judgment of 22 June 1999). 31. The Government said that in that respect the rules governing the offence of insulting a head of State contained more safeguards than those governing ordinary criminal defamation, for which bad faith was presumed. In determining whether there was an intention to cause harm, the courts would consider whether the journalists had made proper, objective inquiries (Paris Court of Appeal, judgment of 13 March 1998) and whether there was evidence supporting the allegations (Paris Court of Appeal, judgment of 2 October 1997). The absence of a defence of justification, which was available to a charge of criminal defamation, was therefore compensated for by the manifestly liberal approach adopted by the courts when determining whether an intention to cause harm existed (Cass Crim., judgment of 22 June 1999). 32. The applicants have produced to the Court a judgment of the Seventeenth Division (Press Division) of the Paris tribunal de grande instance dated 25 April 2001 in criminal proceedings instituted at the request of three African heads of State, Presidents Idriss Deby, Omar Bongo and Denis Sassou Nguesso, on charges of publicly insulting a foreign head of State through the publication by Les Arènes of a book entitled Noir Silence. Qui arrêtera la Françafrique ? (“Black silence. Who will stop Francafrica?”). 33. The tribunal de grande instance held: “The offence established by section 36 of the Press Act and the manner in which that provision is applied in the courts does not satisfy all the requirements set out in Article 10 of the European Convention.” It so found for three reasons. Firstly, section 36 had established in favour of foreign heads of State “a special set of rules that rel[ied] on a particularly wide definition of the actus reus and exclude[d] any defence based on evidence that the allegations [we]re true, to the point where commentators agree[d] that foreign heads of State enjoy[ed] a higher degree of protection in France than the French head of State himself or the head of the French government”. 34. Secondly, the tribunal de grande instance noted that the term “insult” was not defined in the Act and was an elusive expression that was not easily construed. In support of that statement, the tribunal de grande instance referred to the definition of “insult” in the case-law: “Any offensive or disparaging expression, or defamatory or abusive insinuation, which is liable to harm the honour, dignity or personal sensibility of the head of State in the performance of his or her functions or in his or her private life.” It reasoned that such a general definition introduced “a wide subjective margin of appreciation into the definition of the statutory element of the offence” that prevented journalists and writers from determining the extent of the prohibition with sufficient certainty in advance. Even more significantly, the tribunal de grande instance considered that the distinction legal commentators had sought to draw between acceptable criticism (that is to say criticism of the foreign head of State’s political acts) and unlawful insults (that is to say insults directed at the foreign head of State personally) was difficult to apply in practice, for, as the relevant case-law showed, the courts considered that “insults proffered at political events necessarily affect[ed] the person [concerned]”. 35. Thirdly, the tribunal de grande instance found that the offence was not “necessary in a democratic society”, as any head of State – or anyone else – whose honour or character was undermined or who found himself insulted had a sufficient remedy through criminal proceedings for criminal defamation or proffering insults under the 1881 Act. 36. Lastly, with reference to Article 6 of the Convention, it noted that defendants to a charge under the 1881 Act were impeded in their defence by the vagueness of the word “insult”; likewise, their inability to adduce evidence of the truth of their allegations deprived them of equality of arms. 37. It is not possible to determine from the case file whether an appeal was lodged against that judgment, or the outcome of any such appeal. 38. On 12 March 2001 a senator introduced a bill proposing the repeal of the offence of insulting foreign heads of State. Again, it is unclear from the case file whether that recent proposal will be implemented. | 1 |
train | 001-106410 | ENG | ROU | ADMISSIBILITY | 2,011 | ZELCA AND OTHERS v. ROMANIA | 4 | Inadmissible | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | The applicants are all Romanian nationals. Details as to their names are indicated in the appended table. All of them are represented before the Court by the Sed Lex Constanţa Financial Trade Union (“the Union”), which has its headquarters in Constanţa. 1. The facts of the case, as submitted by the applicants, may be summarised as follows. 2. On 19 November 2008 the Union, on behalf of its members (the applicants), filed a petition against their employer, a State agency, namely the Constanţa Department of Public Finance, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of the Public Servants’ Statute (Law no. 188/1999), they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary. The aforesaid allowances were to be paid retroactively, starting from 1 April 2004, and correspondingly updated in line with the inflation index. The amounts were to be paid for the whole duration of the employment contract. The employer dismissed the petition as ill-founded, in so far as the legislation did not allow the payment of the allowances in question; moreover, the budget allocated to the payment of salary entitlements did not include the allowances and in any event, a regional department of public finance was not competent to decide on budgetary matters. 3. On 20 November 2008 the applicants contested that decision before the Constanţa County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, the suspension did not mean the extinction of the rights, and in any event, the suspension was in breach of Articles 41 and 53 of the Constitution; therefore, the allowances claimed were to be paid retroactively, from 2004 onwards. The applicants also invoked Article 1 of Protocol No. 1 to the Convention, alleging that their right to obtain the allowances in issue was a “possession” within the meaning of that Article. In support of their claims and referring also to Articles 6 and 14 of the Convention and the case of Beian v. Romania (no. 1) (no. 30658/05, ECHR 2007V), the applicants invoked the case-law of other courts of appeal in Romania, which had granted the requested allowances to their fellow public servants across the country. The applicants made specific reference to judgments given in 2008 by the Botoşani County Court, the Suceava County Court and the Caraş-Severin County Court, which had all become final after being upheld on appeal by the corresponding courts of appeal. 4. On 14 April 2009 the Constanţa County Court dismissed the applicants’ claim. The court acknowledged that the two supplements claimed were provided for by law, albeit without any indication of a precise amount. In fact, none of the subsequent legal texts regulating civil servants’ salary entitlements made any reference to a method or criteria for determining the amount of each of the supplements. Therefore, even though Law no. 188/1999 expressly provided that a civil servant’s salary also included the grade supplement and the salary-step supplement, the determination of the corresponding amounts was not possible. Consequently, the court held: “For the calculation of the two allowances, as components of public servants’ salaries, explicit legal rules for the application of section 31(1) (c) and (d) are necessary, and this task belongs either to the legislative power, in the event that a law is passed, or to the executive power, in the event that a decision for the application of the law is delivered.” The court further considered that to grant the allowances in the absence of precise criteria for their calculation would mean obliging the employer to pay sums that were impossible to calculate, and thus delivering a judgment that was impossible to enforce; on the other hand, the potential calculation of those allowances by the court would mean encroaching on the powers of the administrative authorities and completely disregarding the Constitutional Court’s case-law to the effect that: “the courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.” With respect to the allegations raised under Article 1 of Protocol No. 1 to the Convention, the court held that the applicants could not claim to have a possession, in so far as their requests had never been allowed or confirmed by the courts in a final judgment. 5. The applicants appealed against that judgment before the Constanţa Court of Appeal, reiterating their arguments submitted before the first-instance court. They again referred to the fact that several other courts across the country had already granted the allowances in issue to colleagues of theirs, meaning that by denying them the right to also receive the allowances, the County Court had discriminated against them in relation to other public servants, in violation of Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1. In addition, they stated that the allowances were provided for by law, and that their right to receive them had been confirmed by the first-instance court, which had nonetheless decided not to grant the allowances in the absence of criteria for their calculation. The applicants further mentioned that their lack of financial means and the defendant’s omission to include the related costs in the budget could not be held against them in order to deprive them of the two allowances in question, to which they were entitled by law. When asked to comment on the judgment given on 21 September 2009 by the High Court of Cassation and Justice on an appeal in the interests of the law, in which it held that the two allowances in question could not be granted by the judiciary, the applicants’ representative stated that he was not able to give an opinion on the issue. 6. On 27 January 2010 the Constanţa Court of Appeal dismissed the applicants’ appeal. The court noted that according to the above-mentioned judgment given by the High Court of Cassation and Justice, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step could not be granted by the judiciary. In so far as the High Court’s interpretation of the law, as set out in the decision given in the appeal in the interests of the law, was obligatory, the court was bound to follow the High Court’s ruling and thus to dismiss the applicants’ claims as ill-founded. 7. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants: “1. For discharging their activities public servants have the right to a salary composed of the following: (a) basic salary; (b) seniority allowance; (c) grade allowance; (d) step allowance. 2. Public servants shall be granted bonuses and other salary rights, in accordance with the law. 3. The remuneration of public servants shall take place in accordance with [the criteria] prescribed in the law on the implementation of a unitary remuneration system concerning public servants.” On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content. The application of these provisions was suspended from 2004 until 2006, firstly by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006. With effect from 12 November 2009, the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009, which itself was repealed on 1 January 2011. 8. Starting with 2008, a divergent case-law emerged across the country concerning the granting of the grade supplement and of the allowance corresponding to the salary step. 9. It is why on 13 May 2009, in order to ensure the uniform interpretation and application of the law, the Prosecutor General applied to the High Court of Cassation and Justice, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure. In the judgment delivered on 21 September 2009, the High Court confirmed the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, on the granting of allowances to public servants. The High Court held that the entitlements claimed did not constitute a “possession” within the meaning of the European Convention, being only “virtual rights” in the absence of criteria for their calculation; it consequently held that: “for the uniform interpretation and application of section 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.” The High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided. | 0 |
train | 001-58019 | ENG | FRA | CHAMBER | 1,997 | CASE OF GUILLEMIN v. FRANCE | 2 | Violation of Art. 6-1;Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 6. In a decision of 7 October 1982 the Prefect of the département of Essonne made a declaration that it was in the public interest to acquire by compulsory purchase land needed for the development of a residential area in the town of Saint-Michel-sur-Orge, known as the Fontaine de l’Orme project. The land included a plot belonging to the applicant on which stood a building used as a secondary residence by a member of her family. 7. On 10 September 1982 the mayor of Saint-Michel-sur-Orge had applied to the Essonne expropriations judge, who on 6 December 1982 made an expropriation order transferring the applicant’s land to the municipality and setting the amount of compensation to be paid to her. On 28 March 1983 the applicant appealed against the order. 8. On 28 July 1983 the Evry New Town Development Corporation (EPEVRY), which was responsible for carrying out the scheme, informed Mrs Guillemin that she should have vacated the land by 14 July 1983. In the same month the town council demolished the fence, the buildings, the infrastructure for the supply of services, the vegetable garden and the orchard on the land. 9. On 14 October 1983, on the appeal by the expropriated applicant, the Expropriations Division of the Paris Court of Appeal increased the amount of the expropriation compensation to 221,858 French francs (FRF), which is currently held in deposit at the Bank for Official Deposits (Essonne Treasury). 10. On 19 November 1982 Mrs Guillemin had brought proceedings in the Versailles Administrative Court. On 24 October 1985 the court set aside the public-interest declaration on the grounds that it was ultra vires. It held that the declaration should have been made in a decree after consultation of the Conseil d’Etat and not in a prefectoral decision (see paragraph 23 below). The inspector appointed to conduct the inquiry prior to the declaration in question had recommended that the scheme should not include existing houses that had sufficient land to make a garden for family use, as was the case with the applicant’s property. 11. The town council appealed on 26 December 1985 and lodged a pleading on 28 April 1986. In a judgment of 13 March 1989 the Conseil d’Etat upheld the Administrative Court’s judgment. It refused Mrs Guillemin’s application for formal note to be taken that the town council had automatically abandoned the proceedings as it had failed to file a supplementary pleading in time, and also refused her claim for compensation, which had been submitted for the first time on appeal. 12. The applicant lodged two appeals on points of law with the Court of Cassation, the first against the expropriation order of 6 December 1982 and the second against the judgment of the Paris Court of Appeal of 14 October 1983. In two judgments of 4 January 1990 the Court of Cassation (Third Civil Division) set aside the expropriation order providing for the transfer of ownership and "in consequence" set aside the judgment of the Paris Court of Appeal, which had ruled on the expropriation compensation. These judgments were served on the town council on 22 May 1990. 13. On 20 June 1990 Mrs Guillemin applied unsuccessfully to the town council, seeking either restoration of her rights or compensation in the amount of FRF 4,194,655.65. 14. On 10 November and 17 December 1990 Mrs Guillemin applied to Evry State Counsel. On 11 March 1991 he decided to take no action. 15. On 23 December 1991 the applicant challenged the town council’s implied decision to refuse her application in the Versailles Administrative Court. Her claim for restoration of her rights was accompanied by an application for compensation for non-pecuniary damage and loss of enjoyment of her property, which she assessed at FRF 1,971,795. 16. On 13 January 1992 she brought proceedings in the Evry tribunal de grande instance against the mayor of Saint-Michel-sur-Orge and EPEVRY, seeking an order for demolition of the buildings erected on her land by the town council, with periodic penalties in the event of failure to comply, and damages. In joint submissions the defendants argued that it was not possible to return the property. It had been sold to EPEVRY with a view to a housing development and the individual building plots had in turn been sold to various different purchasers and had now been built on and were occupied. 17. On 1 February 1993 the Evry tribunal de grande instance deferred judgment until the Versailles Administrative Court ruled and listed the case for the hearing that was to be held on 10 June 1993 by the judge in charge of preparing the case for trial. 18. The Administrative Court held a hearing on 10 May 1994 and gave judgment on 24 May 1994. It held that the claim for return of the land was inadmissible on the ground that "it [was] not for the administrative courts to issue orders to the authorities" and ruled as follows on the claim for compensation: "It is clear from the preparation of the case for trial that the expropriation ... in the public interest [on] 7 October 1982 was carried out unlawfully. The dispossession of [Mrs Guillemin] was accordingly an illegal expropriation of private property. It is for the ordinary courts alone, which protect private property, to deal with [her] claim for compensation for the loss [she allegedly] sustained as a result of the dispossession or of any direct consequences of it." 19. In the meantime, on 3 March 1994, Mrs Guillemin’s application had been struck off the list of the Evry tribunal de grande instance. It was entered in the list again on 25 November 1994. On 5 January 1995 the applicant filed fresh submissions seeking compensation. 20. In a judgment of 23 October 1995 the Evry tribunal de grande instance noted that Mrs Guillemin had implicitly abandoned her application for the buildings on her land to be demolished and held that she was entitled to compensation from the expropriating town council. It deferred judgment on the compensation claim, ordered an expert report on the value of the expropriated plot of land as at December 1982 and on the loss arising from her being deprived of her land and the price of it since then, and ruled that the town council should pay an advance on the costs of the expert report. 21. The expert received the file on 27 November 1995. He summoned the parties to an inspection of the site on 12 March 1996 and filed his report on 29 July 1996. He assessed the total value at FRF 1,602,805, which he broke down as follows: FRF 462,139 for the value of the property, covering the sum needed to purchase a similar property, FRF 746,338 for the interest on the principal sum from 14 July 1983 to 30 September 1996 and FRF 394,328 compensation for loss of the enjoyment of the property over the same period. For this last item he adopted a rate of return of 6.50% on the value of the property, excluding the sum needed to purchase a similar property. 22. The proceedings are at present pending in the Evry tribunal de grande instance. 23. Expropriation proceedings in the public interest comprise two separate stages. The first stage is administrative. It begins with a preliminary inquiry - opened by a prefectoral decision - to gather information on the grounds for the expropriation. The inspector appointed to conduct the inquiry has one month from the date on which it ends to consider observations from the public, to draw up his findings and then to forward the file to the administrative authority. If his opinion is unfavourable, or is favourable subject to conditions that the expropriating authority is not minded to satisfy, the public-interest declaration must be made in a decree adopted after consultation of the Conseil d’Etat rather than in a prefectoral decision. This declaration establishes that the scheme is in the public interest. The expropriation liability order subsequently made by the Prefect identifies the property to be expropriated and ends the administrative stage of the expropriation. The next step in the procedure is for the expropriating authority to forward the expropriation liability order, within six months of its publication, to the judicial authority for expropriation matters, a judge of the ordinary court, failing which it will lapse. 24. The second stage takes place before the expropriations judge. He alone has the power to order expropriation and assess compensation. He does not, however, have competence to assess the lawfulness of the steps taken by the administrative authority. On receipt of the expropriation liability order that has been forwarded to him, he will issue an expropriation order transferring ownership to the expropriating authority and depriving the former owner of the right to dispose of his property. The former owner, however, retains the use of it as a provisional occupier until compensation for the loss of possession is paid or, in the event of a dispute, deposited. The proceedings for issuing the expropriation order are separate from those leading to the judicial assessment of the expropriation compensation; they are generally conducted entirely by the expropriating administrative authority. This second set of proceedings may commence as soon as the prefectoral decision to open the public inquiry has been taken. The calculation of the expropriation compensation takes into account the value of the expropriated property, all the costs necessarily incurred in purchasing a replacement and, as subsidiary compensation, the depreciation in value of the remaining property where only part of it has been expropriated. The compensation amount may always be fixed by agreement, even after the expropriation order has been issued. 25. Anyone affected by an expropriation that enables a scheme in the public interest to be carried out may challenge the validity of the public-interest declaration in the administrative court within two months of its publication. Appeals against expropriation liability orders must be brought within the same time. As a prefectoral decision to open a public-interest inquiry is seen as a purely preliminary measure, its lawfulness may only be challenged in conjunction with one of those two remedies. Any application on the merits may be accompanied by an application for a stay of execution, but appeals to the administrative courts do not in any event have a suspensive effect and do not prevent the expropriation proceedings continuing in the ordinary courts. 26. The only means of challenging an expropriation order is by lodging an appeal on points of law within two weeks of the order being served. An appeal against a judgment in which compensation has been assessed may be brought within two weeks of the decision being served and any appeal on points of law must then be brought within two months of the Court of Appeal’s judgment being served. These appeals do not have a suspensive effect and do not prevent possession being taken of the expropriated property. Lastly, if the compensation has not been either paid or deposited by the expropriating authority within a year of the decision whereby it was assessed, the person expropriated may seek review of it by the expropriations judge. 27. Once a public-interest declaration has been set aside, there is no legal basis for the expropriation order. If, however, the declaration is set aside after the order has become final, the expropriation cannot be legally challenged. It is accepted that a further public inquiry may be held to rectify the situation. In any event, the adage "public buildings that have been erected unlawfully are not demolished" applies. | 1 |
train | 001-58900 | ENG | TUR | CHAMBER | 2,000 | CASE OF JABARI v. TURKEY | 1 | Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient | Georg Ress | 9. In 1995, at the age of 22, the applicant met a man (“X”) in Iran while attending a secretarial college. She fell in love with him and after some time they decided to get married. 10. However, X’s family was opposed to their marriage. In June 1997 X married another woman. The applicant continued to see him and to have sexual relations with him. 11. In October 1997 the applicant and X were stopped by policemen while walking along a street. The policemen arrested the couple and detained them in custody as X was married. 12. The applicant underwent a virginity examination while in custody. After a few days she was released from detention with the help of her family. 13. In November 1997 the applicant entered Turkey illegally. In February 1998 the applicant went to Istanbul, from where she tried to fly to Canada via France using a forged Canadian passport. 14. When the applicant arrived at the airport in Paris, the French police found her to be in possession of a forged passport. 15. On 4 February 1998 the applicant was put on a plane for Istanbul. Following her arrival at Istanbul Airport at 1 a.m. on 5 February 1998 she was arrested by policemen on the ground that she had entered Turkey using a forged passport. Her passport was sent for examination. 16. On 6 February 1998 the applicant was transferred from a police station inside the airport to the Aliens Department of the Istanbul Security Directorate. She was brought before the Bakırköy public prosecutor on the ground that she had entered Turkey using a forged passport in contravention of the Passport Act 1950. The public prosecutor ordered her release, finding she had not entered Turkey of her free will. The applicant was handed over to the Istanbul Security Directorate with a view to her deportation. When the applicant realised that she was going to be sent to Iran she told the Aliens Department that she was an Iranian national. The applicant lodged an asylum application with the Aliens Department. The police rejected her application as it had been submitted out of time. The applicant was informed that under section 4 of the Asylum Regulation 1994 she should have lodged her application for asylum within five days of her arrival in Turkey. 17. According to the applicant, she was held in detention at the Aliens Department until 26 March 1998. Thereafter, following the intervention of the Ankara branch office of the United Nations High Commissioner for Refugees (UNHCR), she was accommodated at a hotel in Istanbul. 18. On 12 February 1998 a staff member of the UNHCR, with the permission of the authorities, interviewed the applicant about her asylum request under the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”). On 16 February 1998 the applicant was granted refugee status by the UNHCR on the basis that she had a well-founded fear of persecution if removed to Iran as she risked being subjected to inhuman punishment, such as death by stoning, or being whipped or flogged. 19. On 8 March 1998 the applicant lodged an application with the Ankara Administrative Court against her deportation. She also asked for a stay of execution of her deportation. 20. On 16 April 1998 the Ankara Administrative Court dismissed the applicant’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. 21. On 4 November 1998 the Ankara Administrative Court found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under the European Convention on Human Rights. The court found that it was not required to suspend the deportation order since no such order had yet been made. 22. Article 125 of the Turkish Constitution provides, inter alia: “All acts or decisions of the authorities are subject to judicial review ... If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...” 23. Article 155 of the Constitution states, inter alia: “The Supreme Administrative Court is the final instance for reviewing decisions and judgments given by administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law. ...” 24. Article 5 of the Code on the establishment and duties of tax courts, administrative courts and regional administrative courts (no. 25765) provides, inter alia: “Administrative courts deal with: (a) actions for annulment (b) administrative actions (c) ... except for those actions which are within the competence of tax courts and those which should be dealt with by the Supreme Administrative Court as a first-instance court.” 25. Article 25 of the Act on the Supreme Administrative Court provides: “Final decisions rendered by the administrative courts and the tax courts, as well as final decisions rendered by the Supreme Administrative Court acting as a first-instance court may be appealed to and dealt with by the Supreme Administrative Court.” 26. Turkey has ratified the Geneva Convention and the 1967 Protocol thereto. It has exercised the geographic preference option under the 1951 Convention in order to limit the grant of refugee status to asylum-seekers from European countries. For humanitarian reasons, Turkey issues temporary residence permits to asylum-seekers from non-European countries who are recognised by the UNHCR as refugees pending their resettlement in a third country by that organisation. 27. The Ministry of the Interior issued a regulation on 30 November 1994 concerning asylum-seekers seeking asylum in Turkey or who are to be resettled in a third country. According to this Regulation, foreign nationals arriving in Turkey to seek asylum must submit their asylum application to the police within five days of their arrival in Turkey. Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country. Asylum-seekers entering the country legally may submit their application to the police in any city within five days of their arrival. 28. A person who enters Turkey illegally and does not apply to the Turkish authorities within five days of his or her entry cannot be accepted as a refugee. 29. Asylum requests are examined by the Ministry of the Interior. Non-European asylum-seekers who receive a positive decision may then submit their cases to the UNHCR for resettlement. The Ministry of the Interior considers the merits of an asylum application from the standpoint of Turkey’s obligations under the Geneva Convention and has regard to the opinions of the Ministry of Foreign Affairs and other relevant ministries and agencies. Foreigners whose requests are not accepted are liable to be deported by the local authorities. 30. An amendment was introduced to the 1994 Asylum Regulation in January 1999. According to the amendment, the five-day period in which to lodge an asylum request has now been increased to ten days. Furthermore, an asylum-seeker whose application has been refused may now appeal within fifteen days of the refusal to the competent governorship. The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum. 31. In its 1999 Annual Report, Amnesty International concluded that judicial punishments amounting to torture or cruel, inhuman or degrading punishment continued to be reported. Flogging was reportedly imposed for a wide range of offences, at times in conjunction with the death penalty or a custodial sentence. An Iranian woman, the co-accused of a foreign businessman, was reportedly sentenced to 100 lashes in October 1999 after she was convicted of illicit sexual relations. It was unknown whether the sentence was carried out. In November 1999 an Iranian national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of Lahijan. He had been sentenced to death for adultery. 32. The 1999 Country Reports on Human Rights Practices, released on 25 February 2000 by the US Department of State, mention, with reference to Iran, that harsh punishments are carried out, including stoning and flogging. Article 102 of the Islamic Penal Code details the methods authorities should follow when conducting a stoning: “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.” According to press accounts, a man was stoned to death in April 1999 in the town of Babol, which borders the Caspian Sea. He was alleged to have killed three of his own sons. Prior to the stoning, he received sixty lashes. The first stone was cast by the judge who sentenced him to death. The law also allows for the relatives of murder victims to take part in the execution of the killer. | 1 |
train | 001-110144 | ENG | SWE | GRANDCHAMBER | 2,012 | CASE OF GILLBERG v. SWEDEN | 2 | Inapplicable (Article 10-1 - Freedom of expression);Inapplicable (Article 8-1 - Respect for private life;Article 8-2 - Interference) | Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Jean-Paul Costa;Karel Jungwiert;Kristina Pardalos;Ledi Bianku;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque | 9. The applicant was born in 1950 and lives in Gothenburg. 10. He is a professor, specialising in child and adolescent psychiatry, at the University of Gothenburg. 11. In the period between 1977 and 1992 a research project was carried out at the University of Gothenburg in the field of neuropsychiatry, focusing on cases of AttentionDeficit Hyperactivity Disorder (ADHD) or Deficits in Attention, Motor Control and Perception (DAMP) in children. The aim was to elucidate the significance thereof and associated problems from a long-term perspective. Parents to a group of one hundred and fortyone preschool children volunteered to participate in the study, which was followed up every third year. Certain assurances were made to the children’s parents and later to the young people themselves concerning confidentiality. The research file, called the Gothenburg study, was voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. It contained a very large amount of privacy-sensitive data about the children and their relatives. Several doctoral theses have been based on the Gothenburg study. The material was stored by the Department of Child and Adolescent Psychiatry, of which the applicant was director. The project was originally set up and started by other researchers but the applicant subsequently took over responsibility for completing the study. 12. The applicant alleged that the Ethics Committee of the University of Gothenburg had made it a precondition in their permits that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that he had therefore promised absolute confidentiality to the patients and their parents. That fact was disputed by the Government. 13. Two permits were issued by the Ethics Committee of the University of Gothenburg, on 9 March 1984 and 31 May 1988 respectively, consisting of one page each and indicating, among other things, the dates of application (respectively 26 January 1984 and 24 March 1988), the researchers involved in the project, the name of the project and the date of approval; they bore the signatures of the chairman and the secretary of the Ethics Committee. They contained no specific requirements and no reference to “secrecy” or “absolute secrecy”. 14. In a letter of 17 February 1984 to the parents of the children participating in the study, the applicant stated, inter alia: “All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.” 15. A later undated letter from the applicant to the participants in the study included the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.” 16. In February 2002 a sociologist, K, requested access to the background material. She was a researcher at Lund University and maintained that it was of great importance to have access to the research material and that it could, without risk of damage, be released to her with conditions under Chapter 14, section 9, of the Secrecy Act (Sekretesslagen; SFS 1980:100). She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions. Her request was refused by the University of Gothenburg on 27 February 2002 because K had not shown any connection between the requested material and any research, and on the ground that the material contained data on individuals’ health status which, if disclosed, might harm an individual or persons related to that individual. An appeal against the decision was lodged with the Administrative Court of Appeal (Kammarrätten i Göteborg), which referred the matter to the University of Gothenburg to examine whether the material could be released after removal of identifying information or with a condition restricting K’s right to pass on or use the data. The University of Gothenburg again refused the request on 10 September 2002, on the ground that the data requested was subject to secrecy, that there was no possibility of releasing the material after removal of identifying information, nor was there sufficient evidence to conclude that the requested material could be released with conditions. K again appealed against the decision to the Administrative Court of Appeal. 17. In the meantime, in July 2002, a paediatrician, E, also requested access to the material. He submitted that he needed to keep up with current research, that he was interested in how the research in question had been carried out and in clarifying how the researchers had arrived at their results, and that it was important to the neuropsychiatric debate that the material should be exposed to independent critical examination. His request was refused by the University of Gothenburg on 30 August 2002, for the same reasons as its refusal to K, a decision against which E appealed to the Administrative Court of Appeal. 18. By two separate judgments of 6 February 2003, the Administrative Court of Appeal found that K and E had shown a legitimate interest in gaining access to the material in question and that they could be assumed to be well acquainted with the handling of confidential data. Therefore, access should be granted to K and E, but subject to conditions made by the University of Gothenburg in order to protect the interests of the individuals concerned in accordance with various named provisions of the Secrecy Act. 19. The University of Gothenburg’s request to the Supreme Administrative Court (Regeringsrätten) for relief for substantive defects (resning) was refused on 4 April 2003. 20. In vain the applicant and some of the individuals participating in the study also applied to the Supreme Administrative Court for relief for substantive defects. Their requests were refused on 4 April, 16 May and 22 July 2003 respectively, because they were not considered to be party to the case (bristande talerätt). 21. In the meantime, on 7 April 2003 the University of Gothenburg decided that, “provided that the individuals concerned gave their consent”, the documents would be released to K and E with conditions specified in detail in the decisions. 22. K and E appealed against certain of the conditions imposed by the University of Gothenburg. They also reported the University of Gothenburg’s handling of the case to the Parliamentary Ombudsman, which in decisions of 10 and 11 June 2003 criticised the University of Gothenburg, notably regarding the delays in replying to the request for access. 23. In two separate judgments of 11 August 2003, the Administrative Court of Appeal lifted some of the conditions imposed by the university. It pointed out that in the judgments of 6 February 2003 K and E had already been given the right of access to the requested documents and that the only matter under examination was the conditions of access, which could only be imposed if they were designed to remove a given risk of damage, and that a condition should be framed to restrict the recipient’s right of disposal over the data. Thereafter, six conditions were set regarding K’s access, including that the data was only to be used within the Swedish Research Council funded research project called “The neurological paradigm: on the establishment of a new grand theory in Sweden” which K had specified before the Administrative Court of Appeal, that she was not allowed to remove copies from the premises where she was given access to the documents, and that transcripts of released documents containing data on psychological, medical or neurological examinations or treatment, or concerning the personal circumstances of individuals, and notes concerning such examinations, treatment or circumstances from a document released to her, would be destroyed when the above research project was completed and at the latest by 31 December 2004. Six similar conditions were also imposed on E, including that data in the released documents referring to psychological, medical, psychiatric or neurological examinations or treatment, and data in the released documents concerning the personal circumstances of an individual, was to be used for examination of how the researchers who participated in the research project in which the documents had been used had arrived at their results and conclusions, and so that E could generally maintain his competence as a paediatrician. 24. The University of Gothenburg did not have a right to appeal against the judgments and on 5 November 2003 the applicant’s request to the Supreme Administrative Court for relief for substantive defects was refused because he was not considered to be a party to the case. 25. In the meantime, in a letter of 14 August 2003 to the applicant, the ViceChancellor of the university stated that, by virtue of the judgments of the Administrative Court of Appeal, K and E were entitled to immediate access to the documents on the conditions specified. Furthermore, by decision of the university, K and E were to be given access to the documents on the university’s premises on a named street and the documents therefore had to be moved there from the Department of Child and Adolescent Psychiatry without delay. The letter stated that the transportation of the documents was to begin on 19 August 2003 at 9 a.m. The applicant was requested to arrange for the documents to be available for collection at that time and, if necessary, to ensure that all the keys to the rooms where the material was kept were delivered to a person P. 26. The applicant replied in a letter of 18 August 2003 that he did not intend to hand over either the material or the keys to the filing cabinets to P. On the same day the Vice-Chancellor had a meeting with the applicant. 27. On instruction by the Vice-Chancellor, on 19 August 2003 P visited the Department of Child and Adolescent Psychiatry. He was met by controller L, who handed him a document showing that L had been instructed by the applicant not to release either the material in question or the keys to the filing cabinets. 28. By letter of 1 September 2003 the Vice-Chancellor of the University of Gothenburg informed K and E that since the applicant refused to transfer the material for the present he could not help them any further and that he was considering bringing the applicant before the Public Disciplinary Board (Statens ansvarsnämnd) on grounds of disobedience. 29. On 18 October 2003 the applicant had a meeting with the Vice-Chancellor of the University of Gothenburg about the case. Moreover, in autumn 2003 the applicant and various persons corresponded with the ViceChancellor, including a professor of jurisprudence and Assistant Director General of the Swedish Research Council who questioned the judgments of the Administrative Court of Appeal, which prompted the Vice-Chancellor to consider whether it would be possible to impose new conditions on K and E. The case was discussed within the University Board and subsequently, by decision of 27 January 2004, the University of Gothenburg decided to refuse to grant access to K because, in the light of a memorandum drawn up on 12 March 2003 by the Swedish Research Council, there was no connection between K’s research and the research project that she had specified before the Administrative Court of Appeal. Likewise, in a decision of 2 February 2004 the university decided to impose a new condition on E before giving him access. It stated that it had reason to believe that E’s activities and position did not justify giving him access to the material, even subject to restrictions. E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based. 30. The decisions were annulled by the Administrative Court of Appeal by two separate judgments of 4 May 2004. 31. The applicant’s request to the Administrative Supreme Court for relief for substantive defects was refused on 28 September 2004 and 1 July 2005, because he was not considered to be party to the case. 32. In the meantime, according to the applicant, the research material was destroyed during the weekend of 7 and 9 May 2004 by three of his colleagues. 33. On 18 January 2005 the Parliamentary Ombudsman decided to initiate criminal proceedings against the applicant and by a judgment of 27 June 2005 the District Court (Göteborgs Tingsrätt) convicted the applicant of misuse of office pursuant to Chapter 20, Article 1 of the Penal Code (Brottsbalken). The applicant was given a suspended sentence and ordered to pay fifty day-fines of 750 Swedish kronor (SEK), amounting to a total of SEK 37,500, (approximately 4,000 Euros (EUR). 34. The Vice-Chancellor of the university was also convicted of misuse of office for having disregarded, through negligence, his obligations as Vice-Chancellor by failing to ensure that the documents were available for release as ordered in accordance with the judgments of the Administrative Court of Appeal. The Vice-Chancellor was sentenced to forty dayfines of SEK 800, amounting to a total of SEK 32,000 (approximately EUR 3,400). 35. The Parliamentary Ombudsman also decided to initiate criminal proceedings against the Chair of the Board of Gothenburg University, but the charges were later dismissed. 36. Finally, by a judgment issued on 17 March 2006, the three officials who had destroyed the research material were convicted of the offence of suppression of documents and given a suspended sentence and fined. 37. On appeal, on 8 February 2006 the applicant’s conviction and sentence were upheld by the Court of Appeal (Hovrätten för Västra Sverige) in the following terms: General observations on the university’s management of the case “In its two initial judgments of 6 February 2003 the Administrative Court of Appeal held that K and E were entitled to have access to the documents requested. In its two subsequent judgments of 11 August 2003 the Administrative Court of Appeal decided on the conditions that would apply in connection with the release of the documents to them. The judgments of the Administrative Court of Appeal had therefore settled the question of whether the documents were to be released to K and E once and for all. At the hearing in the Administrative Court of Appeal, the university had the opportunity to present reasons why the documents requested should not be released to K and E. Once the judgments, against which no appeal could be made, had been issued in February 2003, whether or not the university considered that they were based on erroneous or insufficient grounds had no significance. After the February judgments the university was only required to formulate the conditions it considered necessary to avoid the risk of any individuals sustaining harm through the release of the documents. Subsequently the university had the opportunity to present its arguments to the Administrative Court of Appeal for the formulation of the conditions it had chosen. After the Administrative Court of Appeal had determined which conditions could be accepted, the question of the terms on which [K and E] could be allowed access to the documents requested was also settled once and for all. There was then no scope for the university to undertake any new appraisal of K’s and E’s right of access to the documents. Therefore, in the period referred to in the indictment [from 11 August 2003 until 7 May 2004] it was no longer the secrecy legislation that was to be interpreted but the judgments of the Administrative Court of Appeal. Their contents were clear. [The Vice-Chancellor’s] letters of 14 August 2003 to [the applicant] and of 1 September 2003 to K and E show that the university administration had understood that it was incumbent on the university to release the documents without delay. The promptness required by the Freedom of the Press Act in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the documents. Despite this, in its interpretation of the conditions and in laying down additional conditions, the university made it more difficult for K and E to gain access to the documents.” The applicant’s liability “The prosecutor has maintained that after the judgments of the Administrative Court of Appeal of 11 August 2003 and until 7 May 2004, when the material is said to have been destroyed, [the applicant] in his capacity as head of the Department of Child and Adolescent Psychiatry, wilfully disregarded the obligations of his office by failing to comply with the judgments of the Administrative Court of Appeal and allow [E and K] access to the documents. According to the indictment, [the applicant] in so doing not only refused to hand over the documents in person but also refused to make them available to the university administration. The research material was the property of the university and hence to be regarded as in the public domain. It was stored in the Department of Child and Adolescent Psychiatry, where [the applicant] was the head. [The Vice-Chancellor’s] letter of 14 August 2003, to which copies of the judgments of the Administrative Court of Appeal relating to the conditions were attached, made it clear to [the applicant] that the material in question must be released. As head of the department, [the applicant] was responsible for making the material available to [K and E]. [The applicant’s] awareness of his immediate responsibility is revealed not least by the instructions that he gave to [L] before the visit of [P] not to allow the university administration access to the material. It is also shown by [the applicant’s] written reply on 18 August 2003 to [the Vice-Chancellor]. Through [the Vice-Chancellor] the university had instructed [the applicant] to release the material to the university, so that it could be moved to premises where K and E could examine it. In view of this, the Court of Appeal, like the District Court, does not consider that [the applicant] can be held culpable because he refused to hand over the documents in person. However, it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university. [The applicant] has protested that he did not consider that there was any serious intent behind the instruction he received from the [Vice-Chancellor] on 14 August 2003. Here he has referred in particular to the meeting on 18 August 2003 and to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available. [The Vice-Chancellor], however, has stated that on no occasion did he withdraw the instructions issued on 14 August 2003, and that it must have been quite clear to [the applicant] that they continued to apply, even though they were not explicitly repeated. According to the Vice-Chancellor, nothing transpired at the meeting on 18 August 2003 that could have given [the applicant] the impression that these instructions no longer applied or that they were not intended seriously. [The Vice-Chancellor’s] statement in this respect has been confirmed by the Director at the Vice-Chancellor’s office, W. It is further borne out by the fact that after the meeting on 18 August 2003 W was given the task of drawing up a complaint to the Government Disciplinary Board for Higher Officials on the subject of [the applicant’s] refusals and that the latter was aware that a complaint of this kind was being considered. In addition, it can be seen from a number of e-mails from [the applicant] to [the Vice-Chancellor] that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions. It has also been shown that when the Board met on 17 December 2003, [the Vice-Chancellor] was still considering making a complaint to the Disciplinary Board. Finally, [a witness, AW] has testified that at a meeting with [the applicant] shortly after the beginning of 2004, when asked whether he still persisted in his refusal, he confirmed that this was the case. All things considered, the Court of Appeal finds that it has been shown that [the applicant] was aware that the instructions to make the material available to the administration applied during the entire period from when he learnt about the judgments of the Administrative Court of Appeal on 14 August 2003. It was incumbent on him to take the action required to comply with the judgments. [The applicant] has stated that he was never prepared to participate in the release of the documents to K and E. His actions were, in other words, intentional and their result was that K and E were categorically denied a right that is guaranteed by the Constitution and that is also of fundamental importance in principle. All things considered, the Court of Appeal finds that [the applicant’s] conduct means that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered. [The applicant] has however also objected that his conduct should be regarded as excusable in view of the other considerations that he had to bear in mind. He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives. He referred in particular to international declarations drawn up by the World Medical Association and to the Convention. The nature of the international declarations agreed on by the World Medical Association is not such as to give them precedence over Swedish law. [The applicant’s] objections on the basis of the contents of these declarations therefore lack significance in this case. Article 8 of the Convention lays down that everyone has the right to respect for his or her private and family life, and that this right may not be interfered with by a public body except in certain specified cases. The provisions of the Secrecy Act are intended, in accordance with Article 8 of the Convention, to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administration. These regulations must be considered to comply with the requirements of the Convention, and the judgments of the Administrative Court of Appeal lay down how they are to be interpreted in this particular case. [The applicant’s] objection that his conduct was excusable in the light of the Convention cannot, therefore, be accepted. [The applicant] has also asserted that he risked criminal prosecution for breach of professional secrecy if he released the documents to [K and E]. However, the judgments of the Administrative Court of Appeal determined once and for all that the secrecy Act permitted release of the documents. For this reason there was of course no possibility of prosecution for breach of professional secrecy, which, in the opinion of the Court of Appeal, [the applicant] must have realised. [The applicant] has also stated that he was bound by the assurances of confidentiality he had given to the participants in the study in accordance with the requirements established for the research project. The assurances were given in 1984, in the following terms: “All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital and its present results will, as was the case for the previous study three years ago, be followed up.” A later assurance of confidentiality had the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.” The assurances of confidentiality given to the participants in the study go, at least in some respects, further than the Secrecy Acts permits. The Court of Appeal notes that there is no possibility in law to provide greater secrecy than follows from the Secrecy Act and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stands or a court’s application of the statutes. [The applicant’s] objections therefore have no relevance in assessing his criminal liability. Finally, [the applicant] has claimed that his actions were justifiable in view of the discredit that Swedish research would incur and the decline in willingness to participate in medical research projects that would ensue if information submitted in confidence were then to be disclosed to private individuals. The Court of Appeal notes that there are other possibilities of safeguarding research interests, for example by removing details that enable identification from research material so that sensitive information cannot be divulged. What [the applicant] has adduced on this issue cannot exonerate him from liability. [The applicant’s] actions were therefore not excusable. On the contrary, for a considerable period he failed to comply with his obligations as a public official arising from the judgments of the Administrative Court of Appeal. His offence cannot be considered a minor one. [The applicant] shall therefore be found guilty of misuse of office for the period after 14 August 2003, when he was informed of the judgments of the Administrative Court of Appeal. The offence is a serious one as [the applicant] wilfully disregarded the constitutional right of access to public documents. On the question of the sentence, the Court of Appeal concurs with the judgment of the District Court. 38. Leave to appeal to the Supreme Court was refused on 25 April 2006. 39. The principle of public access to official documents (offenlighetsprincipen) has a history of more than two hundred years in Sweden and is one of the cornerstones of Swedish democracy. One of its main characteristics is the constitutional right for everyone to study and be informed of the contents of official documents held by the public authorities. This principle allows the public and the media to exercise scrutiny of the State, the municipalities and other parts of the public sector which, in turn, contributes to the free exchange of opinions and ideas and to efficient and correct management of public affairs and, thereby, to maintaining the legitimacy of the democratic system (see Govt. Bill 1975/76:160 pp. 69 et seq.). The principle of public access to official documents is enshrined in Chapter 2, Sections 1 and 12, of the Freedom of the Press Act. Thus, every Swedish citizen is entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information (Chapter 2, Section 1; foreign nationals enjoy the same rights in this respect as Swedish citizens, Chapter 14, Section 5). 40. A document is official if it is held by and is regarded as having been received or “drawn up” by a public authority (Chapter 2, Sections 3 and 6-7, of the Freedom of the Press Act). A document is “drawn up” when it is dispatched by an authority. A document that is not dispatched is “drawn up” when the matter to which it relates is finally settled by the authority in question. If the document does not relate to any specific matter, it is “drawn up” when it has been finally checked or has otherwise received its final form. As research is considered to be an activity in its own right (faktiskt handlande) (see, for example, the Chancellor of Justice, 1986 p. 139), it cannot be said to relate to any specific matter. This means, in turn, that research material, as a rule, is “drawn up” and thereby official, as soon as it has been finally checked or otherwise received its final form. It could be added that preliminary outlines, drafts, and similar documents enumerated in Chapter 2, Section 9, of the Freedom of the Press Act are not deemed to be official unless they introduce new factual information or have been accepted for filing. Finally, there is no general requirement that a document be filed in order to be considered official, and registration does not affect the issue of whether a document is official or not (cf. Chapter 15, Section 1, of the Secrecy Act). 41. An official document to which the public has access shall be made available on request forthwith, or as soon as possible, at the place where it is held, and free of charge, to any person wishing to examine it, in such form that it can be read, listened to, or otherwise comprehended; a document may also be copied, reproduced or used for sound transmission (Chapter 2, Section 12). Such a decision should normally be rendered the same day or, if the public authority in question has to consider whether the requested document is official or whether the information is public, within a few days (see, for example, the Parliamentary Ombudsman’s decision of 23 November 2007 in case no. 5628-2006). A certain delay may also be acceptable if the request concerns very extensive material. If a document cannot be made available without disclosure of such part of it as constitutes classified material, the rest of the document shall be made available to the person requesting access in the form of a transcript or copy (Section 12). A public authority is under no obligation to make a document available at the place where it is held if this presents serious difficulty. 42. An unlimited right of public access to official documents could, however, result in unacceptable harm to different public and private interests. It has therefore been considered necessary to provide exceptions. These exceptions are laid down in Chapter 2, Section 2 (first paragraph), of the Freedom of the Press Act, which reads as follows: The right of access to official documents may be restricted only if restriction is necessary having regard to 1. the security of the State or its relations with another State or an international organisation; 2. the central fiscal, monetary or currency policy of the State; 3. the inspection, control or other supervisory activities of a public authority; 4. the interest of preventing or prosecuting crime; 5. the economic interest of the public institutions; 6. the protection of the personal or economic circumstances of private subjects; 7. the preservation of animal or plant species. 43. According to paragraph 2 of the same provision, restrictions on the right of access to official documents shall be scrupulously specified in a provision of a special act of law or, if this is deemed more appropriate in a particular case, in another act of law to which the special act refers (see, for example, Govt. Bill 1975/76:160 pp. 72 et seq. and Govt. Bill 1979/80:2, Part A, pp. 48 et seq.). The special act of law referred to is the Secrecy Act. Pursuant to such a provision, the Government may issue more detailed provisions for its application in an ordinance (förordning). Since the mandate to restrict the right of public access to official documents lies exclusively with the Swedish Parliament (Riksdag), it is not possible for a public authority to enter into an agreement with a third party exempting certain official documents from the right of public access, or to make similar arrangements. 44. The Secrecy Act contains provisions regarding the duty to observe secrecy in the activities of the community and regarding prohibitions against making official documents available (Chapter 1, Section 1). The latter provisions limit the right of access to official documents provided for in the Freedom of the Press Act (Tryckfrihetsförordningen, SFS 1949:105). They relate to prohibitions on disclosing information, irrespective of the manner of disclosure. The question of whether secrecy should apply to information contained in an official document cannot be determined in advance, but must be examined each time a request for access to a document is made. Decisive for this issue is whether making a document available could imply a certain risk of harm. The risk of harm is defined in different ways in the Secrecy Act, having regard to the interests that the secrecy is intended to protect. Thus, the secrecy may be more or less strict depending on the interests involved. The secrecy legislation has been elaborated in this way in order to provide sufficient protection, for example, for the personal integrity of individuals, without the constitutional right of public access to official documents being circumscribed more than is considered necessary. In the present case, the Administrative Court of Appeal, in its judgments of 6 February 2003, found that secrecy applied to the research material under Chapter 7, Sections 1, 4, 9 and 13, of the Secrecy Act (Chapter 7 deals with secrecy with regard to the protection of the personal circumstances of individuals). 45. If a public authority deems that such a risk of loss, harm, or other inconvenience which, pursuant to a provision on secrecy, constitutes an obstacle to information being communicated to a private subject, can be removed by imposing a restriction limiting the private subject’s right to re-communicate or use the information, the authority shall impose such a restriction when the information is communicated (Chapter 14, Section 9, of the Secrecy Act). As an example of such a restriction, the preparatory notes mention prohibiting the dissemination of the content of a document or the publication of secret information contained in a document (see Govt. Bill 1979/80:2, Part A, p. 349). An individual who has been granted access to a document subject to a restriction limiting the right to use the information may be held criminally liable if he or she does not respect that restriction (see Chapter 20, Section 3, of the Penal Code). 46. A request to examine an official document must be made to the public authority which holds the document (Chapter 2, Section 14, of the Freedom of the Press Act and Chapter 15, Section 6, of the Secrecy Act). As mentioned above, there are specific requirements of promptness regarding the handling of such requests. A decision by an authority other than the Swedish Parliament or the Government to refuse access to a document is subject to appeal to the courts – as a general rule, an administrative court of appeal – and, further, to the Supreme Administrative Court (Chapter 2, Section 15, of the Freedom of the Press Act; Chapter 15, Section 7, of the Secrecy Act and Sections 33 and 35 of the 1971 Administrative Court Procedure Act (Förvaltningsprocesslagen; SFS 1971:291)). Leave to appeal is required in the last-mentioned court. Only the person seeking access has a right of appeal. Thus, if the Administrative Court of Appeal – contrary to the public authority holding the document in question – decides that a document must be made available, its judgment is not open to appeal by the public authority in question, or by private subjects who consider that harm would be inflicted on them as a consequence of access to the document being granted (see RÅ 2005 note 1 and RÅ 2005 ref. 88). The reason why the right of appeal has been narrowly limited is that once the competing interests have been considered by a court the legislator has given priority to the principle of public access to official documents over other private and public interests (see, for example, Govt. Bill 1975/76:160 p. 203 and RÅ 2003 ref. 18, which concerned an institution’s request for relief for substantive defects). 47. The principle of public access to official documents is applicable to all activities within the public sector and every public official is obliged to be acquainted with the laws and regulations in this area. This is in particular the case where a certain official – following a special decision or otherwise – has the duty to examine requests for access to official documents (Chapter 15, Section 6, second paragraph of the Secrecy Act). Formally, the head of the public authority has the primary responsibility to ensure that such requests are duly examined. However, the task may be delegated to other office holders within the authority and this is what is usually done in practice for the purposes of the authority’s daily activities. Such delegation has to be in accordance with the regulations of the authority (Section 21 of the former Government Agencies and Institutes Ordinance, Verksförordningen SFS 1995:1322, applicable at the relevant time). Irrespective of a public official’s particular competence or power under the regulations of the authority in question, he or she has a general duty to perform the tasks that are part of his or her official duties. As previously mentioned, this duty involves the obligation to assist in making official documents available forthwith, or as soon as possible, to persons who are considered to have the right of access to them under the legislation described above. 48. By virtue of Chapter 20, Article 1, of the Penal Code a person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, will be sentenced for misuse of office (tjänstefel). The provision reads as follows: “A person who, in the exercise of public authority, by act or by omission, intentionally or through carelessness, disregards the duties of his office, shall be sentenced for misuse of office to a fine or a maximum term of imprisonment of two years. If, having regard to the perpetrator’s official powers or the nature of his office considered in relation to his exercise of public power in other respects or having regard to other circumstances, the act may be regarded as petty, punishment shall not be imposed. If an offence mentioned in the first paragraph has been committed intentionally and is regarded as serious, the perpetrator shall be sentenced for gross misuse of office to a term of imprisonment of at least six months and at most six years. In assessing whether the crime is serious, special attention shall be given to whether the offender seriously abused his position or whether the crime occasioned serious harm to an individual or the public sector or gave rise to a substantial improper benefit. A member of a national or municipal decision-making assembly shall not be held responsible under the provisions of the first or second paragraphs of this Article for any action taken in that capacity. Nor shall the provisions of the first and second paragraphs of this Article apply if the crime is punishable under this or some other Law.” 49. A suspended sentence may be imposed by the courts for an offence for which a fine is considered an inadequate penalty, and such a sentence is, as a general rule, combined with day-fines. A maximum total of 200 day-fines may be imposed. When determining the amount, account is taken of the economic circumstances of the accused, but a dayfine may not exceed 1,000 Swedish kronor (SEK) (Chapter 25, Section 2, Chapter 27, Sections 1 and 2, and Chapter 30, Section 8 of the Penal Code). 50. In Sweden a suspended sentence does not refer to any specific number of days of imprisonment. Under Chapter 27 of the Penal Code a suspended sentence is always subject to a probationary period of two years. A suspended sentence may be linked to specific conditions. If the person convicted commits a new crime during the probationary period the courts may, having due regard to the nature of the new crime, revoke the suspended sentence and impose a joint sanction for the crimes (Chapter 34 of the Penal Code). 51. The functions and powers of the four Parliamentary Ombudsmen are laid down in particular in Chapter 12, Section 6 of the Instrument of Government (Regeringsformen) and in the Act with Instructions for the Parliamentary Ombudsmen (Lagen med instruktion för Riksdagens ombudsmän; SF5 1986:765). Their main task is to supervise the application of laws and other regulations in the public administration. It is their particular duty to ensure that public authorities and their staff comply with the laws and other statutes governing their actions. An Ombudsman exercises supervision, either on complaint from individuals or of his or her own motion, by carrying out inspections and other investigations which he or she deems necessary. The examination of a matter is concluded by a decision in which the Ombudsman states his or her opinion whether the measure taken by the authority contravenes the law or is otherwise wrongful or inappropriate. The Ombudsmen may also make pronouncements aimed at promoting uniform and proper application of the law. An Ombudsman’s decisions are considered to be expressions of his or her personal opinion. They are not legally binding upon the authorities. However, they do have persuasive force, command respect and are usually followed in practice. An Ombudsman may, among many other things, institute criminal proceedings against an official who has committed an offence by departing from the obligations incumbent on him or her in his or her official duties (for example, as in the present case, misuse of office). The Ombudsman may also report an official to the competent authority for disciplinary measures. The Ombudsman may attend deliberations of the courts and the administrative authorities and is entitled to have access to their minutes and other documents. 52. The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly in Finland in June 1964, with later amendments, states, inter alia: INTRODUCTION 1. The World Medical Association (WMA) has developed the Declaration of Helsinki as a statement of ethical principles for medical research involving human subjects, including research on identifiable human material and data. The Declaration is intended to be read as a whole and each of its constituent paragraphs should not be applied without consideration of all other relevant paragraphs. 2. Although the Declaration is addressed primarily to physicians, the WMA encourages other participants in medical research involving human subjects to adopt these principles. 3. It is the duty of the physician to promote and safeguard the health of patients, including those who are involved in medical research. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty. 4. The Declaration of Geneva of the WMA binds the physician with the words, "The health of my patient will be my first consideration," and the International Code of Medical Ethics declares that, "A physician shall act in the patient’s best interest when providing medical care." 5. Medical progress is based on research that ultimately must include studies involving human subjects. Populations that are underrepresented in medical research should be provided appropriate access to participation in research. 6. In medical research involving human subjects, the well-being of the individual research subject must take precedence over all other interests. ... 10. Physicians should consider the ethical, legal and regulatory norms and standards for research involving human subjects in their own countries as well as applicable international norms and standards. No national or international ethical, legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration. BASIC PRINCIPLES FOR ALL MEDICAL RESEARCH 11. It is the duty of physicians who participate in medical research to protect the life, health, dignity, integrity, right to self-determination, privacy, and confidentiality of personal information of research subjects. ... 14. The design and performance of each research study involving human subjects must be clearly described in a research protocol. The protocol should contain a statement of the ethical considerations involved and should indicate how the principles in this Declaration have been addressed. The protocol should include information regarding funding, sponsors, institutional affiliations, other potential conflicts of interest, incentives for subjects and provisions for treating and/or compensating subjects who are harmed as a consequence of participation in the research study. The protocol should describe arrangements for post-study access by study subjects to interventions identified as beneficial in the study or access to other appropriate care or benefits. 15. The research protocol must be submitted for consideration, comment, guidance and approval to a research ethics committee before the study begins. This committee must be independent of the researcher, the sponsor and any other undue influence. It must take into consideration the laws and regulations of the country or countries in which the research is to be performed as well as applicable international norms and standards but these must not be allowed to reduce or eliminate any of the protections for research subjects set forth in this Declaration. The committee must have the right to monitor ongoing studies. The researcher must provide monitoring information to the committee, especially information about any serious adverse events. No change to the protocol may be made without consideration and approval by the committee. ... 23. Every precaution must be taken to protect the privacy of research subjects and the confidentiality of their personal information and to minimize the impact of the study on their physical, mental and social integrity. 24. In medical research involving competent human subjects, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, and any other relevant aspects of the study. The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information. After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed. ... | 0 |
train | 001-111690 | ENG | DEU | GRANDCHAMBER | 2,012 | CASE OF HERRMANN v. GERMANY | 2 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award | André Potocki;Angelika Nußberger;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Erik Møse;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Paulo Pinto De Albuquerque;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 10. The applicant was born in 1955 and lives in Stutensee. 11. Under the German Federal Hunting Act (Bundesjagdgesetz), owners of hunting grounds with a surface area of less than 75 hectares are de jure members of a hunting association (Jagdgenossenschaft), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur. 12. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership. 13. The applicant brought proceedings before the Trier Administrative Court. Relying in particular on the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III), he requested the Administrative Court to find it established that he was not a member of the hunting association of the municipality of Langsur. 14. On 14 January 2004 the Administrative Court rejected the applicant’s request. It considered that the Federal Hunting Act did not violate the applicant’s rights. With regard to the Chassagnou judgment, the Administrative Court took the view that the situation in Germany differed from that in France. It observed, in particular, that German owners of hunting grounds were able, by virtue of their membership of the hunting association, to influence the decision-making process as to how the relevant hunting rights should be exercised. Furthermore, they had the right to receive a share of the profits derived from the exercise of those hunting rights. All owners of plots which were too small to allow proper management of hunting rights joined a hunting association. The court further considered that the hunting associations not only served the leisure interests of those who exercised the hunting rights, but also imposed certain specific obligations on them which served the general interest, in particular a duty to manage game stocks with the aim of maintaining varied and healthy game populations and a duty to prevent damage caused by wild game. They were further obliged to comply with specific quotas set by the authorities for the hunting of game. These duties applied in the same way to the owners of hunting grounds of more than 75 hectares, notwithstanding the fact that these bigger plots were not grouped together in common hunting districts. 15. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court dismissed the appeals lodged by the applicant, on the same grounds as the Administrative Court. 16. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit a constitutional complaint by the applicant for adjudication. It noted at the outset that the provisions of the Federal Hunting Act did not violate the applicant’s right to the peaceful enjoyment of his property, but defined and limited the exercise of that right in a proportionate manner. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on landowners. 17. When defining the content and limits of property rights, the legislature had to weigh the landowners’ legitimate interests against the general interest. It had, in particular, to respect the principles of proportionality and equal treatment. The limitations imposed on the exercise of property rights must not infringe the core area of the protected right. The margin of appreciation allowed to the legislature depended on the specific context; the more important the social considerations, the wider the margin of appreciation. 18. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant’s compulsory membership of a hunting association did not violate his property rights. The core area of that right had not been infringed. The Federal Hunting Act pursued the legitimate aims of preserving game in a manner adapted to the rural and cultural environment and ensuring healthy and varied wildlife, aims encompassed in the notion of “management and protection of game stocks” (Hege). Under the Federal Hunting Act, gamekeeping was a means not only of preventing damage caused by wildlife, but also of avoiding any impediment to the use of the land for agriculture, forestry and fishing. These aims served the general interest. 19. Compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims. Referring to paragraph 79 of the Chassagnou judgment, cited above, the Constitutional Court considered that the European Court of Human Rights had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. Compulsory membership of a hunting association was also a proportionate means. The impact on property rights was not particularly serious and did not outweigh the general interest in the rational management of game stocks. Furthermore, the Federal Hunting Act conferred on every member of the hunting association the right to participate in the decisionmaking process within the association and to receive a share of the profits derived from the leasing of the hunting rights. 20. The Constitutional Court further considered that there had been no violation of the applicant’s right to freedom of conscience. It noted that in paragraph 114 of the Chassagnou judgment the European Court of Human Rights had accepted that the convictions of the applicants in that case attained a certain level of cogency, cohesion and importance and were therefore worthy of respect in a democratic society. The Constitutional Court left open the question whether this assessment was correct in Mr Herrmann’s case. It agreed, however, to take this assumption as a starting point as it considered that in any case there had been no violation of Article 4 of the Basic Law (see paragraph 25 below). It was doubtful whether there had been any interference with the applicant’s right to freedom of conscience. Even assuming that there had been, it was, in any event, not of a serious nature. As the applicant was not forced to participate in hunting himself and did not have to take any decision in that respect, the court considered that he had not been placed in a position of conflict of conscience. It further observed that the right to freedom of conscience did not encompass a right to have the entire legal order made subject to one’s own ethical standards. If the legal order distributed the right to make use of a certain property among several stakeholders, the owner’s conscience did not necessarily outweigh the other stakeholders’ constitutional rights. If the applicant’s landholding – and those of other owners who were opposed to hunting – were taken out of the common hunting districts because of the landowners’ convictions, the whole system of property ownership and management of game stocks would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case. 21. According to the Federal Constitutional Court, the applicant’s complaint did not come within the scope of the right to freedom of association because German hunting associations were of a public nature. They were vested with administrative, rule-making and disciplinary prerogatives and remained integrated within State structures. There was thus no doubt that the association was not characterised as “public” simply in order to remove it from the scope of Article 11 of the Convention. 22. The Federal Constitutional Court further considered that the applicant’s right to equal treatment had not been breached. The administrative courts had put forward relevant reasons for drawing a distinction between the owners of landholdings of less than 75 hectares and those of more than 75 hectares (see paragraph 11 above). Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Act applied to the whole of Germany and was binding on all landowners. The owners of land of more than 75 hectares had the same duties with regard to gamekeeping as those who belonged to hunting associations. 23. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had emphasised the differences between German and French law as applicable at the relevant time. 24. Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in a written statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse. 25. The Basic Law provides: “(1) Freedom of faith and conscience and freedom to profess a religious or philosophical creed shall be inviolable.” “(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the law. (2) Property entails obligations. Its use shall also serve the public good.” “Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation and, in accordance with law and justice, through executive and judicial measures, all within the framework of the constitutional order.” “(1) On matters falling within the scope of concurrent legislative powers, the Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative powers by enacting a law. (2) ... (3) If the Federation has made use of its power to legislate, the Länder may enact laws at variance with this legislation with respect to: 1. hunting (except for the law on hunting licenses); ... Federal laws on these matters shall enter into force no earlier than six months following their promulgation unless otherwise provided with the consent of the Bundesrat. As regards the relationship between Federal law and the laws of the Länder, the more recent law shall take precedence in respect of matters coming within the scope of the first sentence.” 26. Section 960(1)(1) of the Civil Code provides: “Wild animals shall be ownerless as long as they are not in captivity. ...” 27. Section 1 of the Federal Hunting Act (Bundesjagdgesetz) reads as follows: “(1) Hunting rights shall comprise the exclusive rights to protect, hunt and acquire ownership of wild game in a specific area. Hunting rights shall be linked to a duty to manage and protect game stocks (Pflicht zur Hege). (2) The management of game stocks shall be aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game ... (3) Persons engaging in hunting shall abide by the commonly accepted standards of the German ethical principles governing hunting (deutsche Weidgerechtigkeit). (4) Hunting shall encompass the search for, pursuit, killing and catching of wild game. ...” 28. The Federal Hunting Act distinguishes between hunting rights (Jagdrecht) and the exercise of hunting rights (Ausübung des Jagdrechts). The landowner has hunting rights over his or her property. The exercise of hunting rights is regulated by the following sections of the Hunting Act: “Hunting rights may be exercised either in private hunting districts (section 7) or in common hunting districts (section 8).” “The hunt shall be suspended on land which does not belong to a hunting district, and on enclosed properties (befriedete Bezirke). Limited exercise of hunting rights may be permitted. This law does not apply to zoological gardens.” 29. Section 7 provides, inter alia, that plots of at least 75 hectares which can be used for agriculture, forestry or fishing and which belong to a single owner constitute private hunting districts. 30. Section 8 provides that all land which does not belong to a private hunting district constitutes a common hunting district if it has an overall surface area of at least 150 hectares. The owners of land belonging to a common hunting district are de jure members of a hunting association according to the following provisions: “The owners of land belonging to a common hunting district shall form a hunting association. The owners of land on which hunting is prohibited shall not belong to the hunting association.” “(1) The hunting association shall as a rule operate the hunt on a leasehold basis. The lease may be limited to the members of the association. (2) The hunting association shall be allowed to lease out the hunting rights on its own account. With the agreement of the competent authority, it may decide to suspend the hunt (Ruhen der Jagd). (3) The association shall decide on the use to be made of the net profits from the hunt. If the association decides not to distribute them among the owners of the hunting grounds according to the amount of land they own, each owner who contests this decision shall be allowed to claim his or her share. ...” 31. The practice of hunting is regulated as follows: “(1) Hunting shall be prohibited in areas where it would, in the specific circumstances, disturb public peace, order or safety or endanger human life. (2) Hunting in nature and wildlife conservation areas and in national and wildlife parks shall be regulated by the Länder.” “The shooting of game is to be regulated in a manner which fully safeguards the legitimate interest of agriculture, fishery and forestry in being protected from damage caused by wild game, and which takes into account the requirements of the conservation of nature and the landscape. Subject to these restrictions, the regulation of game shooting shall contribute to maintaining a healthy population of all domestic game in adequate numbers and, in particular, to ensuring the protection of endangered species.” 32. Liability for damage caused by game is regulated as follows: “If a plot belonging to a common hunting district or being incorporated in a common hunting district is damaged by cloven-hoofed game, wild rabbits or pheasants, the hunting association shall compensate the landowner for the damage. The cost of compensation shall be borne by the members of the association in proportion to the size of their respective plots. If the leaseholder of the hunt has assumed partial or full liability for compensation in respect of game damage, he or she shall be liable. The hunting association shall remain liable if the person who sustained the damage is unable to obtain compensation from the leaseholder.” “(1) Hunting association are public-law corporations. They are subject to State supervision, exercised by the local hunting authority ... Each hunting association shall create its own statutes (Satzung). The statutes must be approved by the supervisory authority unless they are in accordance with the model statutes issued by the highest hunting authority; in this case, notice of the statutes shall be given to the local hunting authority. If the hunting association fails to create statutes within one year after the issue of the model statutes, the supervisory authority shall create and publish them ... at the association’s expense. ... (4) Cost orders (Umlageforderungen) shall be enforced in accordance with the provisions of the law on the enforcement of administrative acts. The powers of enforcement shall be exercised by the treasury office responsible for enforcing the claims of the municipality in which the association is situated ...” 34. The research undertaken by the Court in relation to forty Council of Europe member States shows that membership of a hunting association is not compulsory in thirty-four countries (Albania, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom). In Austria, France and Sweden membership of a hunting association is obligatory in principle. The legislation in Georgia and in Switzerland makes no provision for hunting associations. Lastly, hunting is not practised in Monaco. 35. Considerable differences exist between these member States’ laws as regards the obligation for landowners to tolerate hunting on their land. Of the thirty-nine member States in which hunting is practised, eighteen (Albania, Azerbaijan, Belgium, Estonia, Finland, Georgia, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Portugal, “the former Yugoslav Republic of Macedonia”, the United Kingdom and Ukraine) do not oblige landowners to tolerate hunting, while eighteen others (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Greece, Italy, Montenegro, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden and Turkey) do. However, both groups provide for exceptions of varying degrees to their respective rules. In France and the Czech Republic, the obligation to tolerate hunting depends on the specific situation regarding the plot of land and on administrative decisions. In Switzerland, there is no legislation governing the obligation to tolerate hunting. 36. In four member States the legislation or case-law has been amended following the Court’s judgment in the case of Chassagnou and Others, cited above. In France, under the Loi Voynet of 26 July 2000, owners of land who are opposed to hunting for ethical reasons may, under certain conditions, request the termination of their membership of a hunting association. In Lithuania, following a ruling by the Constitutional Court, section 13(2) of the Hunting Act ceased to apply on 19 May 2005. Under this provision, landowners could object to hunting on their land only in cases where it might cause damage to their crops or forest land. In Luxembourg, in the wake of the judgments in Schneider v. Luxembourg (no. 2113/04, 10 July 2007) and Chassagnou and Others, cited above, the Hunting Act of 20 July 1929 was repealed and a new Act entered into force on 31 May 2011. It provides that landowners opposed to hunting on their land may, under certain conditions, request termination of their membership of a hunting association. Lastly, in the Czech Republic, the Constitutional Court ruled on 13 December 2006 that the administrative authority had to decide whether land could be included in a hunting district by weighing the different interests at stake in the light of the principles set out in the Chassagnou judgment. | 1 |
train | 001-57479 | ENG | NLD | CHAMBER | 1,976 | CASE OF ENGEL AND OTHERS v. THE NETHERLANDS | 2 | Violation of Art. 5-1;Violation of Art. 6-1;No violation of Art. 6-2;No violation of Art. 6-3-b;No violation of Art. 6-3-c;No violation of Art. 6-3-d;No violation of Art. 14+6;Just satisfaction reserved | null | 11. The facts of the case may be summarised as follows: 12. All applicants were, when submitting their applications to the Commission, conscript soldiers serving in different non-commissioned ranks in the Netherlands armed forces. On separate occasions, various penalties had been passed on them by their respective commanding officers for offences against military discipline. The applicants had appealed to the complaints officer (beklagmeerdere) and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in substance confirmed the decisions challenged but, in two cases, reduced the punishment imposed. Mr. Engel 33. In March 1971, Mr. Engel was serving as a sergeant in the Netherlands Army. He in fact lived at home during off-duty hours. The applicant was a member of the Conscript Servicemen's Association (Vereniging van Dienstplichtige Militairen - V.V.D.M.) which was created in 1966 and aims at safeguarding the interests of conscripts. It was recognised by the Government for taking part in negotiations in this field and its membership included about two-thirds of all conscripts. Mr. Engel was a candidate for the vice-presidency of the V.V.D.M. and on 12 March he submitted a request to his company commander for leave of absence on 17 March in order to attend a general meeting in Utrecht at which the elections were to be held. He did not, however, mention his candidature. Subsequently he became ill and stayed home under the orders of his doctor who gave him sick leave until 18 March and authorised him to leave the house on 17 March. On 16 March, the company commander had a talk with the battalion commander and it was agreed that no decision should be taken regarding the above-mentioned request pending further information from the applicant who had given no notice of his absence or return. However, on the following day a check was made at the applicant's home and it was discovered that he was not there. In fact, he had gone to the meeting of the V.V.D.M. where he had been elected vice-president. 34. On 18 March Mr. Engel returned to his unit and on the same day his company commander punished him with four days' light arrest for having been absent from his residence on the previous day. The applicant considered this penalty a serious interference with his personal affairs in that it prevented him from properly preparing himself for his doctoral examination at the University of Utrecht which had been fixed for 24 March. According to the applicant, he had made several attempts on 18 March to speak to an officer on this point but without success. Believing that under the army regulations non-commissioned officers were allowed to serve their light arrest at home, he left the barracks in the evening and spent the night at home. However, the next day his company commander imposed a penalty of three days' aggravated arrest on him for having disregarded his first punishment. The applicant, who had just been informed that, with effect from 1 April 1971, he had been demoted to the rank of private, again left the barracks in the evening and went home. He was arrested on Saturday 20 March by the military police and provisionally detained in strict arrest for about two days, by virtue of Article 44 of the 1903 Act (paragraph 26 above). On Monday 22 March his company commander imposed a penalty of three days' strict arrest for having disregarded his two previous punishments. 35. The execution of these punishments was suspended by ministerial decision in order to permit the applicant to take his doctoral examination which he passed on 24 March 1971. Moreover, on 21, 22 and 25 March Mr. Engel complained to the complaints officer about the penalties imposed on him by the company commander. On 5 April the complaints officer decided, after having heard the parties, that the first punishment of four days' light arrest should be reduced to a reprimand, the second punishment of three days' aggravated arrest to three days' light arrest, and the third punishment of three days' strict arrest to two days' strict arrest. In the last two cases the decision was based on the fact that the previous punishment(s) had been reduced and that the applicant had obviously been under considerable stress owing to his forthcoming examination. The complaints officer further decided that Mr. Engel's punishment of two days' strict arrest should be deemed to have been served from 20 to 22 March, during his provisional arrest. 36. On 7 April 1971 the applicant appealed to the Supreme Military Court against the decision of the complaints officer relying, inter alia, on the Convention in general terms. The Court heard the applicant and obtained the opinion of the State Advocate for the Armed Forces. On 23 June 1971, that is about three months after the date of the disciplinary measures in dispute, the Court confirmed the contested decision. It referred to Article 5 para. 1 (b) (art. 5-1-b) of the Convention and held that the applicant's detention had been lawful and had been imposed in order to secure the fulfilment of an obligation prescribed by law. The system under the 1903 Act and the applicable Regulations required in fact that every serviceman should submit to and co-operate in maintaining military discipline. This obligation could be enforced by imposing disciplinary punishments in accordance with the procedure prescribed by the above Act. In these circumstances, the applicant's punishment of two days' strict arrest had been justified in order to secure the fulfilment of that obligation. The applicant had not received the assistance of a legally trained person at any stage in the proceedings against him; perusal of the file in the case does not reveal if he asked for such assistance. Mr. van der Wiel 37. Mr. van der Wiel, at the time of his application to the Commission, was serving as a corporal in the Netherlands Army. On the morning of 30 November 1970 he was about four hours late for duty. His car had broken down during his weekend leave and he had had it repaired before returning to his unit instead of taking the first train. On these grounds, the acting company commander, on the same day, imposed a penalty of four days' light arrest on the applicant. The following day he revised the above grounds to include a reference that the applicant had not previously requested the commander's leave of absence. 38. On 2 December, the applicant complained about his punishment to the complaints officer invoking, inter alia, Articles 5 and 6 (art. 5, art. 6) of the Convention. In this respect he alleged that he had been deprived of his liberty by a decision which, contrary to the requirements of Article 5 (art. 5), had not been taken by a judicial authority; that furthermore his case had not been heard by an independent and impartial tribunal (Article 6 para. 1) (art. 6-1); that he did not have adequate time and facilities for the preparation of his defence (Article 6 para. 3 (b)) (art. 6-3-b), and that he did not have legal assistance (Article 6 para. 3 (c)) (art. 6-3-c). 39. On 18 December, following the rejection by the complaints officer of his complaint on 16 December, the applicant appealed to the Supreme Military Court. On 17 March 1971, the Court heard the applicant, who was assisted by a lawyer, Sergeant Reintjes, and obtained the opinion of the State Advocate for the Armed Forces. The Court then quashed the complaints officer's decision but confirmed the punishment of four days' light arrest imposed on the applicant on the original grounds stated on 30 November 1970. The Court first found that Article 6 (art. 6) of the Convention was not applicable in a case where neither the determination of a criminal charge nor the determination of civil rights and obligations was in question. The Court referred to the definition of military disciplinary offences contained in Article 2 of the 1903 Act (paragraph 15 above) and concluded therefrom that disciplinary proceedings clearly did not fall within the scope of Article 6 (art. 6). Nor was there any substance in the applicant's argument that, since a conscripted man had not volunteered to come within the jurisdiction of the military authorities, any disciplinary measure imposed upon him in fact had a criminal character. As regards the complaints based on Article 5 (art. 5), the Court first held that four days' light arrest did not constitute "deprivation of liberty". In the alternative, the Court further stated that the disputed punishment was meant to "secure the fulfilment of (an) obligation prescribed by law", within the meaning of Article 5 para. 1 (b) (art. 5-1-b). 40. At first and second instance in the proceedings Mr. van der Wiel had not received any legal assistance, and during the proceedings before the Supreme Military Court the legal assistance granted to him had, in line with the practice described above at paragraph 32, been restricted to the legal aspects of the case. Mr. de Wit 41. Mr. de Wit, at the time of his application to the Commission, was serving as a private in the Netherlands Army. On 22 February 1971, he was sentenced to committal to a disciplinary unit for a period of three months by his company commander on the grounds that, on 11 February 1971, he had driven a jeep in an irresponsible manner over uneven territory at a speed of about 40 to 50 km. per hour; that he had not immediately carried out his mission, namely to pick up a lorry at a certain place, but that he had only done so after having been stopped, asked about his orders and summoned to execute them at once; that, in view of his repeatedly irregular behaviour and failure to observe discipline, he had previously been warned about the possibility of being committed to a disciplinary unit. On 25 February, the applicant complained about his punishment to the complaints officer alleging, inter alia, violations of the Convention. On 5 March, the complaints officer heard the applicant who was assisted by Private Eggenkamp, a lawyer and member of the central committee of the V.V.D.M., such assistance having been granted by reason of the fact that the applicant had invoked the Convention. The complaints officer also examined six witnesses, including one, namely Private de Vos, on the applicant's behalf, and then confirmed the punishment while altering slightly the grounds stated therefore. He rejected the allegations under the Convention, referring to a judgment of the Supreme Military Court dated 13 May 1970. On 11 March, the applicant appealed to the Supreme Military Court against that decision. In accordance with Article 64 of the 1903 Act, the applicant's successive appeals had the effect of suspending execution of his punishment (paragraph 28 above). The Court heard the applicant and his above-mentioned legal adviser and obtained the opinion of the State Advocate for the Armed Forces. On 28 April 1971, the Court, without mentioning the applicant's previous behaviour, reduced the punishment to twelve days' aggravated arrest, which sentence was executed thereafter. It considered that, in the circumstances, the committal to a disciplinary unit for three months was too heavy a penalty. 42. The applicant alleges that in his case the calling of two other witnesses on his behalf, namely Privates Knijkers and Dokestijn, was prevented at every juncture. He also complains that the legal assistance granted to him had been restricted to the legal aspects of his case. Mr. Dona and Mr. Schul 43. Mr. Dona was serving as a private in the Netherlands Army at the time of his application to the Commission. As editor of a journal called "Alarm", published in stencilled form by the V.V.D.M. at the General Spoor barracks at Ermelo, he had collaborated in particular in the preparation of no. 8 of that journal dated September 1971. Acting in pursuance of the "Distribution of Writings Decree", a ministerial decree of 21 December 1967, the commanding officer of the barracks provisionally prohibited the distribution of this number, whose contents he considered inconsistent with military discipline. On 28 September, two officers met in commission on the instructions of the commanding officer in order to hold an enquiry into the appearance of the said number. The applicant, among others, was heard by the commission. On 8 October 1971, the applicant was sentenced by his competent superior to three months' committal to a disciplinary unit for having taken part in the publication and distribution of a writing tending to undermine discipline. The decision was based on Article 2 para. 2 of the 1903 Act, read in conjunction with the first paragraph of Article 147 of the Military Penal Code which provides: "Any person who, by means of a signal, sign, dumb show, speech, song, writing or picture, endeavours to undermine discipline in the armed forces or who, knowing the tenor of the writing or the picture, disseminates or exhibits it, posts it up or holds stocks of it for dissemination, shall be liable to a term of imprisonment not exceeding three years." Entitled "The law of the strongest" (Het recht van de sterkste), the article objected to in no. 8 of "Alarm" alluded to a demonstration that had taken place at Ermelo on 13 August 1971 on the initiative of the executive committee of the V.V.D.M. According to Mr. van der Schans, the demonstration was terminated almost at once since the demonstrators had promptly returned to their quarters following the promise by the commanding officer that, if they did so, no disciplinary sanctions would ensue. Nevertheless, a few soldiers were allegedly transferred soon afterwards for having participated in the incident. The passages in the article which gave rise to the disciplinary punishment of 8 October 1971 read as follows: (a) "There happens to be a General Smits who writes to his 'inferiors' 'I will do everything to keep you from violating the LAW'! But this very General is responsible for the transfers of Daalhuisen and Duppen. Yet, as you know, measures are never allowed to be in the nature of a disguised punishment. How devoted to the law the General is - as long as it suits him"; (b) "... in addition to ordinary punishments, the army bosses have at their disposal a complete series of other measures - of which transfer is only one - to suppress the soldiers. That does not come to an end by questions in Parliament - that makes them at most more careful. That only comes to an end when these people, who can only prove their authority by punishment and intimidation, have to look for a normal job." 44. The decision ordering the applicant's committal to a disciplinary unit referred to the extracts quoted above. Furthermore, the decision took into account some aggravating circumstances: Mr. Dona had collaborated in the publication of no. 6 of the journal, which had likewise been prohibited under the "Distribution of Writings Decree" by reason of its objectionable contents; in addition, he had taken part in the demonstrations at Ermelo and had, in particular, published in connection therewith a pamphlet, for which he received on 13 August 1971 a punishment of strict arrest. 45. Mr. Schul, a private in the Netherlands Army at the time of his application to the Commission, was also an editor of the journal "Alarm". The facts regarding his case are identical to those of Mr. Dona's except that his punishment initially amounted to four months' committal to a disciplinary unit owing to the additional aggravating circumstance of his participation in the publication of an "Information Bulletin" for new recruits the distribution of which had been prohibited by reason of its negative content. 46. As early as 8 October 1971, the two applicants announced their intention to complain about their punishment. According to them, they were then asked to refrain from any further publication while proceedings were pending against them. The Government maintain that they were only requested not to publish other articles tending to undermine military discipline. The applicants replied before the Court that they had not the slightest intention to write such articles and that they had emphasised this on 28 September 1971 before the commission of enquiry. According to the report of the latter, Mr. Dona had declared that it was not at all his aim to write articles that he expected to be prohibited, and Mr. Schul is recorded as saying: "When we produce pamphlets of this kind, it is not our intention that they should be prohibited. The intention is that they should be read. The risk of their being prohibited is great." Be that as it may, the applicants refused to give the undertaking requested and they were thereupon both placed under aggravated arrest in accordance with Article 20 of the 1903 Act. 47. The applicants complained about their punishment to the complaints officer who on 19 October confirmed it, while in the case of Mr. Dona slightly modifying the grounds. He rejected the applicants' submissions, including those concerning Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention. In connection with Articles 5 and 6 (art. 5, art. 6), he referred to a decision of the Supreme Military Court delivered on 13 May 1970. The complaints officer also specified that the applicants should remain in interim custody in accordance with Article 20 of the 1903 Act. 48. The applicants appealed to the Supreme Military Court, Mr. Schul on 21 October and Mr. Dona on the next day, invoking Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention. Pursuant to Article 64 of the 1903 Act, the successive complaints and appeals by the applicants suspended their committal to a disciplinary unit but not their interim custody (paragraph 28 above). On 27 October 1971, the Court ordered release of the applicants after they had promised to accept the Court's judgment on the merits of the case, to comply therewith in the future and, while proceedings were pending against them, to refrain from any activity in connection with the compilation and distribution of written material the contents of which could be deemed to be at variance with military discipline. According to the applicants, this undertaking was given only in extremis as there was no legal remedy available to terminate their interim custody. Like Mr. de Wit, the applicants had been assisted before the Court by Private Eggenkamp who was, however, able only to deal with the legal aspects of their case (paragraphs 41-42 above). 49. On 17 November 1971 the Supreme Military Court confirmed Mr. Dona's committal to a disciplinary unit for three months, reduced Mr. Schul's committal from four to three months and modified slightly the grounds for punishment in both cases. The Court rejected as being ill-founded the applicants' allegations. Making mention in both cases of their previous conduct and convictions, the Court recalled particularly that they had previously participated in the publication and distribution of writings that were prohibited on the basis of the decree of 21 December 1967 (paragraphs 44-45 above). When fixing the punishment, the Court deemed these factors to be indicative of their general behaviour. The Court then dealt with the applicants' allegations under Articles 5, 6 and 10 (art. 5, art. 6, art. 10) of the Convention, and also rejected them. As regards Article 5 (art. 5), the Court held that the obligation to serve in a disciplinary unit did not constitute "deprivation of liberty". In the alternative, adopting reasoning similar to that contained in its decision on Mr. Engel's appeal (paragraph 36 above), the Court found that the disputed punishments had been justified under Article 5 para. 1 (b) (art. 5-1-b). On the issue of Article 6 para. 1 (art. 6-1), the Court considered that the disciplinary proceedings relating to the publication of the journal "Alarm" had involved the determination neither of any "civil right", such as freedom of expression, nor of any "criminal charge"; on the latter point, the Court based its decision on reasons similar to those given in the decision on Mr. van der Wiel's appeal (paragraph 39 above). The applicants also contended that the measures taken against them interfered with their freedom of expression. In this respect, the Court relied on paragraph 2 of Article 10 (art. 10-2); in its opinion, the restrictions objected to had been necessary in a democratic society for the prevention of disorder within the field governed by Article 147 of the Military Penal Code. Finally, the applicants maintained that their interim custody had been inconsistent with Article 5 para. 1 (c) (art. 5-1-c) of the Convention and claimed compensation on this account under Article 5 para. 5 (art. 5-5). The Court held that it had no competence to examine and decide such a claim. 50. A few days after the dismissal of their appeals, Mr. Dona and Mr. Schul were sent to the Disciplinary Barracks (Depot voor Discipline) at Nieuwersluis in order to serve their punishment. They were not allowed to leave this establishment during the first month; moreover, they were both locked up in a cell during the night. 51. Apart from the particular facts relating to Mr. Dona and Mr. Schul, there was in the background a pattern of conflict between the Government and the V.V.D.M. In mid-August 1971, for instance, there had occurred the demonstration at Ermelo mentioned above at paragraph 43. The applicants also cite the fact that prior to their punishment, and in particular between 1 January and 20 October 1971, the Minister of Defence had decreed a great number of prohibitions on publications by the V.V.D.M. Furthermore, other servicemen, as editors of sectional journals of the Association, had been punished in criminal or in disciplinary proceedings - by aggravated arrest, fines and, in one case, military detention (Article 6 para. 3 of the Military Penal Code) - for writing or distributing publications considered as likely to undermine military discipline within the meaning of Article 147 of the Military Penal Code. Since a ministerial instruction, dated 19 November 1971, and thus subsequent to the measures presently complained of, all cases involving a possible infringement of Article 147 of the Military Penal Code have had to be submitted to the military criminal courts (paragraph 14 above) and not to the disciplinary authorities. The "Distribution of Writings Decree" of 21 December 1967, mentioned above at paragraph 43, was repealed on 26 November 1971. | 1 |
train | 001-114445 | ENG | TUR | ADMISSIBILITY | 2,012 | TAŞÇI AND DUMAN v. TURKEY | 4 | Inadmissible | András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre | 1. The applicants, whose particulars are set out in the appendix, are Turkish nationals. They are the wife and children of Mr Osman Nuri Taşçı, who disappeared in 1987. They were represented before the Court by Mr Yurdan Dağaşan, a lawyer practising in Oltu, near Erzurum. 2. s and as they appear from the documents submitted by them, may be summarised as follows. 3. On 4 July 1987 Osman Nuri Taşçı and two men were seen getting into a white car outside Osman Nuri Taşçı’s shop in the town of Oltu. Nothing has been heard from Mr Taşçı since that date. 4. On 7 July 1987 Mr Taşçı’s son, Necati Taşçı, who is one of the applicants, applied to Oltu police headquarters and informed them of the disappearance of his father. 5. Police officers subsequently questioned three witnesses, one of whom informed them that two persons, fitting the description of the men who had taken Mr Taşçı away, had asked him for directions to Mr Taşçı’s shop. The remaining two witnesses told the police officers that they had seen Mr Taşçı getting into the car together with the two persons. 6. On 15 July 1987 the Oltu prosecutor took statements from a petrol station attendant who claimed that the two persons had bought petrol for the white car in question and paid with a cheque. It was later established that the cheque belonged to a bank account of the National Intelligence Service (hereinafter “the MIT”) but that it had been given to the petrol station at an earlier date by one of the two persons who was seen together with Mr Taşçı on the day of the incident. 7. On 24 July 1987 Necati Taşçı submitted a petition to the office of the Oltu governor, and complained about the disappearance of his father. In his petition Mr Taşçı claimed that his family was worried about the fate of his father and that, in his opinion, his father had been abducted by members of the MIT. The governor forwarded the petition to the Oltu police headquarters the same day. 8. Further investigative steps were taken by the police and the prosecutor in the coming days and months. During that investigation a number of other eyewitnesses confirmed having seen Osman Nuri Taşçı in a white car together with the two persons who, it was later established, were members of the MIT. The Director of the MIT denied that his service had taken away Osman Nuri Taşçı. 9. On 11 February 1988 the Oltu prosecutor issued a continuous search order for Mr Taşçı, and asked the police to give him progress reports every three months. Police officers complied with this instruction and gave progress reports to the prosecutor on a regular basis. 10. Fifteen years later, the Oltu prosecutor sought permission to prosecute three MIT officers in relation to the abduction. In May 003 permission was granted and the officers were questioned by the prosecutor. They all denied the accusations. On 16 January 2004 the Oltu prosecutor rendered a decision not to prosecute the three MIT officers for lack of sufficient evidence. 11. The police continued their search for Mr Taşçı and kept the prosecutor informed about their progress. No further information came to light about Mr Taşçı’s fate. On 11 June 2008 the investigation was closed due to the expiry of the statute of limitations. The applicant objected to the decision terminating the investigation, but that request was rejected by the Erzurum Assize Court on 23 February 2010. | 0 |
train | 001-80575 | ENG | FIN | CHAMBER | 2,007 | CASE OF MUTTILAINEN v. FINLAND | 3 | Violation of Art. 6-1;Not necessary to examine Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 6. The applicant was born in 1971 and lives in Kylänpää. 7. On 14 June 1998 the applicant and T.A. were arrested by police officers M.H. and S.H. in the act of committing a theft. The applicant had a hammer in his hand at the time of arrest. Later he was charged with attempted theft and violent resistance to a public official (virkamiehen väkivaltainen vastustaminen, våldsamt motstånd mot tjänsteman). 8. At the trial hearing before the Helsinki District Court (käräjäoikeus, tingsrätten) the applicant admitted the attempted theft but denied the charge of violent resistance to a public official. Both the applicant and police officer M.H. were heard. M.H. testified, inter alia, that the applicant had threatened him and his colleague S.H. with a hammer by waving it above his head when the police officers had interrupted the attempted theft. The applicant, for his part, said that he had seen the police arrive and that he had raised the hammer above his head while leaving the building, before the police officers had ordered him to drop it. He denied any intention to threaten the police officers. T.A. testified that the applicant had tried to escape. S.H. was not heard as a witness. 9. On 11 September 2000 the District Court convicted the applicant of attempted theft and violent resistance to a public official, finding M.H.’s statement reliable. The applicant was sentenced to an aggregate punishment of six months’ imprisonment. 10. On 11 October 2000 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten) requesting an oral hearing in which he, T.A., M.H. and S.H. should be heard in order to clarify his behaviour outside the building where he was arrested and the alleged threatening of the police officers. He did not specify why S.H. in particular should be called as a witness. 11. On 28 June 2001 the Court of Appeal upheld the conviction, reducing the sentence to three months’ imprisonment. It found an oral hearing manifestly unnecessary, holding that the applicant’s account before the District Court - which he had not contested - and his writ of appeal indisputably proved that he had seen the police officers outside the building. He had then left the building with a hammer raised in the air and had taken some steps towards the police officers. His intention had been to escape. Having seen one of the police officers draw a handgun, he obeyed their orders to drop the hammer when approximately five to six metres away from them. The Court of Appeal held that the question whether the applicant had violently resisted a public official could be reliably resolved on the basis of these undisputed facts without hearing witnesses. As to the merits, it ruled that “the applicant must have understood that he had threatened the police officer with violence by, as he had stated himself, stepping towards him with a hammer in the air. The intention to escape mentioned by the applicant proves that he also intended to threaten the police officer with violence in order to escape from the scene of the crime.” 12. On 27 August 2001 the applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). He claimed that according to the domestic legislation (Chapter 26, sections 14 and 15 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), see paragraphs 14 and 15 below) the Court of Appeal should have held an oral hearing and heard the witnesses. He stressed that the matter turned on the credibility of the oral evidence. 13. On 22 March 2002 the Supreme Court, by a majority, refused the applicant leave to appeal. 14. Chapter 26, section 14 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 165/1998) provides that the Court of Appeal shall hold an oral hearing if the defendant in a criminal case so requests. An oral hearing may however be dispensed with if the appeal is manifestly ill-founded or if a hearing would be manifestly unnecessary for another reason. 15. Under Chapter 26, section 15 of the Code, the Court of Appeal shall hold an oral hearing regardless of whether one has been requested, if the decision on the matter turns on the credibility of the testimony admitted in the District Court or on new testimony to be admitted in the Court of Appeal. In that event, the evidence admitted in the District Court shall be readmitted at the hearing before the Court of Appeal unless there is an impediment to doing so. 16. Under Chapter 17, section 7 of the said Code (Act no. 571/1948) if a piece of evidence that a party wishes to adduce pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may decide not to admit this piece of evidence. | 1 |
train | 001-22592 | ENG | CYP | ADMISSIBILITY | 2,002 | PARRIS v. CYPRUS | 3 | Inadmissible | Christos Rozakis | The applicant, Mr Dave Parris, is a British national. He is now detained in the Central Prison of Nicosia, in Cyprus. He is represented before the Court by Mr M.Shaw, professor of Law and barrister practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 February 1996 Mrs Augustina Parris was found dead in the apartment where she lived with her husband. Some hours later her husband was arrested and charged with manslaughter. The applicant contended that his wife had committed suicide by throwing herself out of the second floor window on the pavement below. The police reported to the coroner that there was reasonable suspicion of violent death or death brought about by an unknown cause. The coroner instructed pathologists Professor Psaroulis and E. Antoniou to carry out a post mortem examination of the body of the deceased. The examination was carried out on the same day by these pathologists in the presence of Dr Matsakis (also a pathologist) who was present as representative of the family of the deceased and as an observer in pursuance of a relevant order by the coroner. The pathologists concluded that a deep fracture of the scull and brain and the inhaling of a quantity of blood had led to the victim’s suffocation. In particular, Professor Psaroulis noted that the victim had received blows in the neck which had distorted the vocal cords so that the victim was unable to scream. Moreover, the bleeding of the nose, the lips and the larynx brought about a huge bleeding of the respiratory system so that the victim could not be in a position to take the decision to fall from the window. The coroner made an order for the immediate burial of the body. Dr Matsakis had also carried out a review of the scene of the crime, at the request of the victim’s family, in which he noted : “Regarding the above spots and splashes of blood, it is the suggestion of the witness that they prove the manner in which the deceased fell from the second-floor window. In particular, the witness is of the opinion that the body was not ejected, as it happens in the ordinary cases of persons falling by their own will, but it fell after having come in touch with the front surface of the ledge under the window of flat n° 4.” After the post-mortem examination of the body, Dr Matsakis concluded as follows: “In the area of the throat and the respiratory system, the witness observed multiple bruises on the soft tissues in the area of the larynx, in the front and the sides. The appearance, the size and the position of the bruises suggested that they had been caused by the exertion of forceful pressure by human fingers. He also observed a suppressed total fracture of the right front gristle of the larynx. According to the witness, this fracture suggests the exertion of forceful pressure by the edge of a human thumb.” On 27 February 1996, the father of the victim filed an ex-parte application for ordering Dr Matsakis to carry out a second post mortem examination. On the same day, the coroner dismissed the application. On 28 February upon request of the relatives of the victim and the oral authorisation of the Attorney General and the police, Dr Matsakis carried out a second post mortem examination of the body. The cause of death given by Dr Matsakis was strangulation. On 28 March 1997 the applicant was convicted by the Nicosia Assize Court of the offence charged and sentenced to 15 years imprisonment. The applicant challenged the accuracy of the second post mortem examination. Dr Matsakis was exhaustively cross-examined and the defence called their own expert witness, a professor of forensic pathology at the Glasgow University. The Assize Court evaluated both reports and decided to accept the evidence provided by Dr Matsakis by a reasoning covering 13 pages of the judgment. The applicant appealed on points of law to the Supreme Court. On 5 May 1999 the Supreme Court dismissed the applicant’s appeal. It based its decision, inter alia, on the Schenk judgment of the European Court. The Supreme Court held that the second post mortem examination was illegal because, in the circumstances, it amounted to a breach of Section 15(2) of the Coroners Law and of the order to bury the body made thereunder. The Supreme Court further held: “The relatives of the victim had applied to the coroner for leave for the carrying out of a second post mortem examination. Their application was dismissed. Instead of seeking to quash this ruling through the procedures provided for by law, they sought and succeeded the carrying out of a post mortem examination through a relevant oral authorisation of the Attorney General of the Republic and the police. What actually happened, amounted to getting around the ruling of the coroner not through the procedures provided for by the law but through means which are unknown to the law”. The Supreme Court added that the fact that the prosecution had the initiative in the preliminary examination and in gathering material of evidence did not render the trial unfair. The applicant had the opportunity to cross-examine witnesses against him and enjoyed a full equality of arms in the proceedings. Furthermore, the Supreme Court held: “However, we note that the relevant illegality was brought about in an effort to help the relatives of the victim, who, in their distress, were seeking a second opportunity to investigate the circumstances in which their beloved met her death”. The Supreme Court further stressed that besides the evidence of Dr Matsakis, there was the evidence of the victim’s father, who was at the flat of the first floor, right below the couple’s flat, and whose narration reads as follows in the Assize Court’s judgment: “Then, he heard a loud shout by the accused like roaring (he imitated the roaring in the court room) and a few seconds later the noise of something like a bundle falling on the floor. Then, after a few seconds, he heard something like dragged steps as if somebody was dragging something heavy, furniture being bumped and the noise of a window or a door being opened.” Article 15 § 2 of the Coroner’s Law Cap. 153 provides: “An order authorising the burial or other disposal of a body upon which it has been decided to hold an inquest may be issued by the coroner at any time after the body has been viewed.” Under the domestic laws of the Republic, a distinction is drawn between the admissibility of illegally obtained evidence according to the nature of the illegality. In the leading case of the Police v. Andreas Georgiades (1982) 3 CLR 33, the Supreme Court held in the light of Articles 34 and 35 of the Constitution that evidence obtained in violation of constitutional rights and liberties was inadmissible. If evidence is obtained by other illegal means, its admissibility is a matter falling within the discretion of the trial court. The domestic courts have adopted the principles established by the English common law as set out by the House of Lords in the case of R. v. Sang (1979) 2 All E.R. 1222. In practice, the test applied under the common law is the same as that now applied in England under section 78 of the Police and Criminal Evidence Act 1984, which was explained in paragraph 38 of the Court’s judgment in the case of Kahn v. the United Kingdom. | 0 |
train | 001-58586 | ENG | ROU | GRANDCHAMBER | 2,000 | CASE OF ROTARU v. ROMANIA | 1 | Preliminary objection dismissed (victim);Preliminary objection dismissed (non-exhaustion);Violation of Art. 8;Violation of Art. 13;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | Luzius Wildhaber | 7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bârlad. 8. In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” (Suflet de student) and “Protests” (Proteste), on the ground that they expressed antigovernment sentiments. 9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment. 10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below). 11. On 30 July 1990 the applicant brought proceedings in the Bârlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements. 12. The court gave judgment on 11 January 1993. Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iaşi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990. 13. As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service (Serviciul Român de Informaţii – “the RIS”). The letter read as follows: “In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bârlad: (a) during his studies in the Faculty of Sciences at Iaşi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [legionar]-type[] movement. (b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them; (c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948; (d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions; (e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...” 14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iaşi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained. He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past. 15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it. 16. The applicant appealed. 17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990. 18. On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms: “... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.” 19. On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action. In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court. 20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review. 21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iaşi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”. The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bârlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iaşi and Vaslui have not provided any other information to confirm that the two names refer to the same person.” 22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation. 23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose. 24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms: “It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol. 796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iaşi, entry 165 of which contains the following: 'Rotaru Aurel – science student, rankand-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iaşi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name 'Aurel Rotaru' does not seem to be connected with an individual living in Bârlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant. Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control. That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors. Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour. In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed. It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.” 25. The court did not make any order as to damages or costs. 26. The relevant provisions of the Constitution read as follows: “(1) The constitutional provisions on citizens' rights and liberties shall be interpreted and applied in accordance with the Universal Declaration of Human Rights and with the covenants and other treaties to which Romania is a party. (2) In the event of conflict between the covenants and treaties on fundamental human rights to which Romania is a party and domestic laws, the international instruments shall prevail.” “(1) Anyone may apply to the courts for protection of his rights, liberties and legitimate interests. (2) The exercise of this right shall not be restricted by any statute.” 27. The relevant provisions of the Civil Code are worded as follows: “A judge who refuses to adjudicate, on the pretext that the law is silent, obscure or defective, may be prosecuted on a charge of denial of justice.” “Any act committed by a person who causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” 28. The relevant provision of the Code of Civil Procedure reads as follows: “An application may be made for review of a final decision ... where written evidence which has been withheld by the opposing party or which it was not possible to submit for a reason beyond the parties' control is discovered after the decision has been delivered ...” 29. The relevant provisions of Decree no. 31 of 1954 on natural and legal persons are worded as follows: “(1) Anyone whose right ... to honour, reputation ... or any other non-economic right has been infringed may apply to the courts for an injunction prohibiting the act which is infringing the aforementioned rights. (2) Similarly, anyone who has been the victim of such an infringement of rights may ask the courts to order the person responsible for the unlawful act to carry out any measure regarded as necessary by the court in order to restore his rights.” “If a person responsible for unlawful acts does not within the time allowed by the court perform what he has been enjoined to do in order to restore the right infringed, the court may sentence him to pay a periodic pecuniary penalty to the State ...” 30. At the material time, the relevant provisions of Legislative Decree no. 118/1990 read: “The following periods shall be taken into account in determining seniority and shall count as such for the purpose of calculating retirement pension and any other rights derived from seniority: periods during which a person, after 6 March 1945, for political reasons – (a) served a custodial sentence imposed in a final judicial decision or was detained pending trial for political offences; ...” “A committee composed of a chairman and at most six other members shall be set up in each county ... in order to verify whether the requirements laid down in Article 1 have been satisfied ... The chairman must be legally qualified. The committee shall include two representatives from the employment and social-welfare departments and a maximum of four representatives from the association of former political detainees and victims of the dictatorship. ...” “The persons concerned may establish that they satisfy the conditions laid down in Article 1 by means of official documents issued by the relevant authorities or ... of any other material of evidential value. ...” “The provisions of this decree shall not be applicable to persons who have been convicted of crimes against humanity or to those in respect of whom it has been established, by means of the procedure indicated in Articles 5 and 6, that they engaged in Fascist activities within a Fascist-type organisation.” 31. The relevant provisions of Law no. 14 of 24 February 1992 on the organisation and operation of the Romanian Intelligence Service, which was published in the Official Gazette on 3 March 1992, read as follows: “The Romanian Intelligence Service shall organise and carry out all activities designed to gather, verify and utilise the information needed for discovering, preventing and frustrating any actions which, in the eyes of the law, threaten Romania's national security.” “The Romanian Intelligence Service shall be authorised to hold and to make use of any appropriate resources in order to secure, verify, classify and store information affecting national security, as provided by law.” “All internal documents of the Romanian Intelligence Service shall be secret, shall be kept in its own archives and may be consulted only with the consent of the Director as provided in law. Documents, data and information belonging to the Romanian Intelligence Service shall not be made public until forty years after they have been archived. The Romanian Intelligence Service shall, in order to keep and make use of them, take over all the national-security archives that belonged to the former intelligence services operating on Romanian territory. The national-security archives of the former Securitate shall not be made public until forty years after the date of the passing of this Act.” 32. The relevant provisions of Law no. 187 of 20 October 1999, which came into force on 9 December 1999, are worded as follows: “(1) All Romanian citizens, and all aliens who have obtained Romanian nationality since 1945, shall be entitled to inspect the files kept on them by the organs of the Securitate ... This right shall be exercisable on request and shall make it possible for the file itself to be inspected and copies to be made of any document in it or relating to its contents. (2) Additionally, any person who is the subject of a file from which it appears that he or she was kept under surveillance by the Securitate shall be entitled, on request, to know the identity of the Securitate agents and collaborators who contributed documents to the file. (3) Unless otherwise provided by law, the rights provided in subsections (1) and (2) shall be available to the surviving spouses and relatives up to the second degree inclusive of a deceased.” “(1) In order to provide for a right of access to information of public interest, all Romanian citizens ..., the media, political parties ... shall be entitled to be informed ... if any of the persons occupying the following posts or seeking to do so have been agents or collaborators of the Securitate: (a) the President of Romania; (b) member of Parliament or of the Senate; ...” “A National Council for the Study of the Archives of the Securitate ... (hereinafter 'the Council'), with its headquarters in Bucharest, shall be set up to apply the provisions of this Act. The Council shall be an autonomous body with legal personality, subject to supervision by Parliament. ...” “The Council shall consist of a college of eleven members. The members of the college of the Council shall be appointed by Parliament, on a proposal by the parliamentary groups, according to the political composition of the two Chambers ... for a term of office of six years, renewable once.” “(1) The beneficiaries of this Act may, in accordance with section 1(1), request the Council – (a) to allow them to consult the files ... compiled by the Securitate up to 22 December 1989; (b) to issue copies of ... these files ...; (c) to issue certificates of membership or non-membership of the Securitate and of collaboration or non-collaboration with it; ...” “(1) The content of certificates under section 13(1)(c) may be challenged before the college of the Council ...” “(1) The right of access to information of public interest shall be exercisable by means of a request sent to the Council. ... ... (4) In response to requests made under section 1, the Council shall verify the evidence at its disposal, of whatever form, and shall immediately issue a certificate ...” “(1) Any beneficiary or person in respect of whom a check has been requested may challenge before the college of the Council a certificate issued under section 15. ... The college's decision may be challenged ... in the Court of Appeal ...” | 1 |
train | 001-113430 | ENG | BGR | COMMITTEE | 2,012 | CASE OF PETKOVA AND OTHERS v. BULGARIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 4. The applicant, Ms Tsvetana Stoycheva Petkova, was born in 1932 and lives in Plovdiv. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 5. The applicant and her two sisters inherited their mother’s estate after her death in 1972. In 1991, following the adoption of the Agricultural Land Act (see paragraph 28 below), the applicant sought, on behalf of all heirs, restitution of a plot of land measuring 6,500 square metres. 6. In a decision of 2 December 1994 the Plovdiv agricultural land commission found that the land, which had in the meantime been included in the urban territory of Plovdiv, had been built upon and could not be subject to restitution. As no appeal was lodged against that decision, it became final shortly afterwards. 7. Nevertheless, in 1995 the land commission advised the applicant to seek from the municipality and submit additional documents, whereupon it would re-examine the possibility for partial restitution “in actual boundaries” and, if appropriate, modify its decision of 2 December 1994. After some delays, which in their submissions to the Court the parties imputed to each other, the applicant submitted the additional documents in 2000. However, in a letter dated 8 November 2000 she was informed that the decision of 2 December 1994 could no longer be modified as the twoyear statutory time-limit during which it had been possible to do so had expired. 8. The applicant brought an action seeking nullification of the decision of 2 December 1994. On 6 July 2001 the Plovdiv District Court dismissed the action. The applicant did not appeal against that judgment. 9. The parties have not informed the Court of the relevant developments afterwards. At the time of her latest communication to the Court in June 2011 the applicant had not yet received the compensation in lieu of restitution she was entitled to under domestic law. 10. The first applicant, Ms Radka Yovcheva Ivanova, a Bulgarian national who was born in 1910, passed away on 2 December 2006. She was inherited by the second and third applicants, Ms Maria Zhekova Mincheva and Mr Atanas Zhekov Tanev, Bulgarian nationals who were born in 1932 and 1929 respectively and who stated that they wished to continue the application in her stead. On 17 January 2011 Mr Tanev passed away too. On 30 October 2011 his heirs, Ms Margarita Ganeva Slavova and Ms Rumyana Atanasova Taneva, informed the Court that they wished to continue the application in his stead. The second applicant, Ms Mincheva, as well as Mr Tanev’s heirs, live in Stara Zagora. 11. In 1991 and 1992 the applicants requested the restoration of their title to agricultural land formerly owned by an ancestor of theirs. In two decisions dated 23 March 1994 and 3 May 1995 the Radnevo agricultural land commission found that the applicants should receive compensation in lieu of restitution for 34,000 square metres of land in the area around Radnevo and the village of Golyama Detelina. 12. In two further decisions dated 19 April 2000 and 18 April 2001 the land commission determined the value of the compensation that the applicants were to receive. 13. However, following appeals lodged by the applicants, by judgments dated 16 April 2001 and 17 December 2002 the Radnevo District Court found the last two decisions to be null and void on the ground that the land commission had committed material breaches of the relevant procedural rules. 14. On 10 May 2002 the applicants filed those judgments with the land commission and demanded that it adopt new decisions concerning their compensation. 15. On 28 March 2005 and 6 April 2005 the Radnevo Agriculture and Forestry Department (former land commission) adopted new decisions concerning the applicants’ compensation. However, on an appeal by the applicants, by judgments dated 8 February and 1 March 2006 the Radnevo District Court found these decisions null and void. 16. On 14 May 2007 the Agriculture and Forestry Department allotted municipally-owned land to the second and third applicants in compensation for their plots in Golyama Detelina. The second applicant, Ms Mincheva, lodged an appeal, arguing that the land was not of good quality. In a judgment of 7 January 2008 the Radnevo District Court quashed the impugned decision and remitted the case for fresh consideration, finding that the decision had been based on the previous decisions of 19 April 2000 and 6 April 2005 (see paragraphs 12 and 15 above), which had already been found to be null and void. 17. In a letter dated 15 December 2010 the Agriculture and Forestry Department (now called Agriculture Department) stated that it had not adopted any new decision concerning the applicants’ restitution claims “because [it] had not received a court decision [...] of 7 January 2008”. 18. In its submissions on the case of February 2011 the Government admitted that no compensation had yet been provided to the applicants and their heirs. 19. The applicant, Mr Dimitar Ognyanov Yankov, is a Bulgarian national who was born in 1942 and lives in the village of Herakovo. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practicing in Sofia. 20. The applicant’s grandfather, who passed away in 1952, owned agricultural land, which was expropriated after 1945. The applicant is entitled to one ninth of his grandfather’s inheritance. 21. In February 1992 the applicant and the remaining heirs requested the restitution of nine plots of land in the village of Hrabarsko totalling 23,600 square metres. 22. In a decision of 11 July 1996 the Bozhurishte agricultural land commission found that the claimants were entitled to compensation in the form of other land or compensation bonds. 23. In another decision of 16 February 2007 the Bozhurishte Agriculture and Forestry Department (the former agricultural land commission) allotted to the heirs of the applicant’s grandfather a plot of 14,870 square metres as partial compensation for the nine plots. At the time of the applicant’s latest communication to the Court in June 2011 he had not yet received compensation for the remaining land. 24. On an unspecified date the heirs of the applicant’s grandfather requested the restitution of other land in the village of Herakovo. 25. Apparently, the Bozhurishte land commission refused restitution and the heirs of the applicant’s grandfather appealed to a court. 26. In a final judgment of 10 March 1998 the Slivnitsa District Court held that the heirs of the applicant’s grandfather were entitled to the restitution through a “land redistribution plan” of several plots of land totalling 36,100 square metres of land. On 15 July 1998 the judgment of 10 March 1998 was amended to include an additional 15,950 square metres of land. 27. On unspecified dates the applicant and the remaining heirs of his grandfather were allotted land totalling 33,300 square metres. At the time of the applicant’s latest communication to the Court in June 2011 he and the remaining heirs had not yet been allotted the remainder of their land, measuring 18,750 square metres, or compensation in lieu thereof. 28. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) was enacted in 1991. Its provisions concerning the restitution of agricultural land, the possibility of compensation in lieu of restitution, and the relevant procedures have been summarised in the Court’s judgments in the cases of Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-88 and 92-92, 7 January 2010) and Vasilev and Doycheva v. Bulgaria (no. 14966/04, §§ 19-23, 31 May 2012). | 1 |
train | 001-115705 | ENG | TUR | CHAMBER | 2,012 | CASE OF AHMET YILDIRIM v. TURKEY | 1 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award | András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque | 6. The applicant was born in 1983 and lives in Istanbul. 7. The applicant owns and runs a website (http://sites.google.com/a/ahmetyildirim.com.tr/academic/) on which he publishes his academic work and his views on various topics. The website was created using the Google Sites website creation and hosting service (http://sites.google.com/). 8. On 23 June 2009, under section 8(1)(b) of Law no. 5651 on regulating Internet publications and combating Internet offences, the Denizli Criminal Court of First Instance ordered the blocking of the website http://sites.google.com/site/kemalizminkarinagrisi/benimhikayem/atatuerk-koessi/at (hereinafter “the offending website”). The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner, who was accused of insulting the memory of Atatürk. 9. On the same day, under section 8(3) of Law no. 5651, a copy of the blocking order was sent to the Telecommunications and Information Technology Directorate (“the TİB”) for execution. 10. On 24 June 2009, at the request of the TİB, the Denizli Criminal Court of First Instance varied its decision of 23 June and ordered the blocking of all access to Google Sites under section 8 of Law no. 5651. The TİB had indicated that this was the only means of blocking the offending website, as its owner did not have a server certificate and lived abroad. 11. The TİB, implementing the order of 24 June 2009, blocked all access to Google Sites and the applicant was thus unable to access his own website. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court. 12. On 1 July 2009 the applicant applied to have the blocking order of 24 June 2009 set aside in respect of his website. He pointed out that he used the website regularly in order to publish his academic work and his opinions on various topics, and that the measure had barred all access to his site, which had no connection with the offending website. He argued, in particular, that in order to prevent other websites being affected by the measure, a method should have been chosen which would make only the offending website inaccessible. He cited as an example blocking the site’s URL. In support of his request, the applicant furnished the court with a copy of the webpage which appeared when he tried to access his own website. The following warning was displayed: “The Telecommunications and Information Technology Directorate has applied the order issued by the Denizli Criminal Court of First Instance on 24 June 2009 in respect of this website (sites.google.com) as a preventive measure.” 13. On 13 July 2009 the Denizli Criminal Court dismissed the applicant’s application. Referring to a recommendation issued by the TİB, it considered that the only means of blocking access to the offending website, in accordance with the blocking order, had been to block access to the Google Sites service, which had hosted the content complained of. 14. The applicant wrote to the Court on 25 April 2012 informing it that he was still unable to access his website even though, as far as he understood it, the criminal proceedings against the owner of the offending website had been discontinued on 25 March 2011 because of the impossibility of determining the identity and address of the accused, who lived abroad. 15. The relevant parts of Law no. 5651 read as follows: “(1) For the purposes of this Law, ... (e) Access provider [(erişim sağlayıcı) shall mean] any natural or legal person which provides users with Internet access; (f) Content provider [(içerik sağlayıcı) shall mean] any natural or legal person which produces, modifies or supplies any kind of information or data for Internet users; ... (ğ) Internet publication [(yayın) shall mean] data which can be accessed via the Internet by an indeterminate number of persons; ... (l) Publication [(yayın) shall mean] publication on the Internet; ...” “(1) Content providers shall be held liable for any content they provide via the Internet. (2) Content providers shall not be held liable for content belonging to others which can be accessed by means of a link provided by them ... ...” “(1) Hosting service providers shall not be required to monitor the content hosted by them or to ascertain whether it constitutes illegal activity. (2) Subject to their criminal responsibility, hosting service providers who are informed, in accordance with sections 8 and 9 of this Law, of the illegal nature of content hosted by them shall be required to cease publishing it, in so far as they have the technical capacity to do so.” “(1)(a) Where they are informed, in accordance with the provisions of this Law, of the illegal nature of content published by a user, access providers shall be required to block access to the illegal content, in so far as they have the technical capacity to do so. ... (2) Access providers shall not be required to monitor the legality of the content and information to which they provide access. ...” “(1) A blocking order [erişimin engellenmesi] shall be issued in respect of Internet publications where there are sufficient grounds to suspect that their content is such as to amount to one of the following offences: (a) offences under the Criminal Code ... (1) incitement to suicide (Article 84); (2) sexual abuse of minors (Article 103 § 1); (3) facilitating the use of narcotic drugs (Article 190); (4) supplying products dangerous to health (Article 194); (5) obscenity (Article 226); (6) prostitution (Article 227); (7) hosting gambling activities; (b) offences against Atatürk under Law no. 5816 of 25 July 1951; ... (2) The blocking order shall be issued by a judge if the case is at the investigation stage or by the court if a prosecution has been brought. During the investigation, the blocking of access may be ordered by the public prosecutor in cases where a delay in acting could have harmful effects. The order must then be submitted to the judge for approval within twenty-four hours. The judge must give a decision within a further twenty-four hours. If he or she does not approve the blocking of access, the measure shall be lifted by the prosecutor forthwith. Blocking orders issued as a preventive measure may be appealed against in accordance with the provisions of the Code of Criminal Procedure (Law no. 5271). (3) A copy of the blocking order issued by the judge, court or public prosecutor shall be sent to the [Telecommunications and Information Technology] Directorate for execution. (4) Where the content provider or the hosting service provider is abroad ... the blocking order shall be issued by the Directorate of its own motion. It shall then be notified to the access provider with a request for execution. (5) Blocking orders shall be implemented immediately or at the latest twenty-four hours after notification. ... (7) If the criminal investigation ends in a decision to discontinue the proceedings, the blocking order shall automatically cease to apply ... (8) Where the trial ends in an acquittal, the blocking order shall automatically cease to apply ... (9) If the illegal content is removed, the blocking order shall be lifted ...” 16. The Telecommunications and Information Technology Directorate was established under provisional section 7 of Law no. 2559 on police powers and responsibilities, as amended on 3 July 2005 by Law no. 5397. As an administrative body it is responsible, among other tasks, for recording and monitoring information disseminated using telecommunications tools. 17. In practice, where a court orders the blocking of access to a specific website, it falls to the TİB to implement the measure. If the content provider or hosting service provider is abroad, the TİB may block all access to the pages of the intermediary service provider under section 8(3) and (4) of Law no. 5651. Therefore, the issuing of a blocking order does not result only in access to the website which is the subject of criminal proceedings being blocked; access to all the content on the Internet domain concerned is also liable to be blocked. Thus, domains such as blogspot.com, blogger.com, Google Groups, myspace.com and youtube.com have been the subject of blocking orders over long periods of time because of the websites which they host. 18. The notion of what constitutes a “publication” within the meaning of section 2(1) of Law no. 5651 has also been the subject of debate among legal commentators. In the view of some commentators, sub-paragraph (ğ), according to which the concept of “Internet publication” denotes “data which can be accessed via the Internet by an indeterminate number of persons” is in contradiction with the notion contained in subsection (l) of the same section, which states that “[p]ublication [(yayın) shall mean] publication on the Internet”. The difficulty stems from the reference to “data which can be accessed via the Internet”, which could apply to all kinds of data transmitted over the Internet. 19. The Convention on Cybercrime (ETS No. 185), which came into force on 1 July 2004, was drawn up by the member States of the Council of Europe, Canada, Japan, South Africa and the United States of America. It deals with various types of offences in the sphere of cybercrime: action directed against the confidentiality, integrity and availability of computer data and systems; computer-related forgery and fraud; content-related offences, especially those related to child pornography; and offences concerning infringements of copyright and related rights (Chapter II, Section 1, Titles 14). 20. The preamble to the Declaration of the Committee of Ministers on human rights and the rule of law in the Information Society (CM(2005)56 final of 13 May 2005) recognises that “limited or no access to [information and communication technologies (ICTs)] can deprive individuals of the ability to exercise fully their human rights”. The first chapter of the Declaration, entitled “Human rights in the Information Society” contains the following passages: “1. The right to freedom of expression, information and communication ICTs provide unprecedented opportunities for all to enjoy freedom of expression. However, ICTs also pose many serious challenges to that freedom, such as State and private censorship. Freedom of expression, information and communication should be respected in a digital as well as in a non-digital environment, and should not be subject to restrictions other than those provided for in Article 10 of the [Convention], simply because communication is carried in digital form. In guaranteeing freedom of expression, member States should ensure that national legislation to combat illegal content, for example racism, racial discrimination and child pornography, applies equally to offences committed via ICTs. Member States should maintain and enhance legal and practical measures to prevent State and private censorship. ...” 21. The preamble to the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers on 28 May 2003 at the 840th meeting of the Ministers’ Deputies states that prior control of communications on the Internet, regardless of frontiers, should remain an exception, and that there is a need to remove barriers to individual access to the Internet. The Declaration sets forth, inter alia, the following principles: “... Principle 1: Content rules for the Internet Member States should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery. ... Principle 3: Absence of prior State control Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality. ...” 22. The explanatory note to the Declaration includes the following commentary on Principle 3: “Absence of prior State control This principle underlines the importance of no prior State control over what the public can search for on the Internet. In some countries, there is a tendency to block access by the population to content on certain foreign or domestic websites for political reasons. This and similar practices of prior State control should be strongly condemned. Although the State should by no means take broad measures to block undesirable content, exceptions must be allowed for the protection of minors. Where minors have access to the Internet, for example in schools or libraries, public authorities may require filters to be installed on computers to block access to harmful content. The absence of prior control by the State does not of course rule out measures being undertaken to remove content from the Internet or block access to it following a preliminary or final decision of the competent national authorities on its illegality, not only under penal law, but also under other branches of law such as civil or administrative law. This would typically be the case when injunctions are sought to prevent the publication on the Internet of content which is illegal. Such measures, which could entail some sort of prior control, would have to fulfil the requirements of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms and they would have to be directed at a clearly identifiable Internet content.” 23. In 2007 the Committee of Ministers adopted Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet. The second and third chapters, entitled “Access” and “Openness” respectively, deal implicitly with the issues of accessibility of the Internet and the restrictions that may be permitted. 24. Also in 2007, the Committee of Ministers adopted Recommendation CM/Rec(2007)11 on promoting freedom of expression and information in the new information and communications environment. 25. In 2008 the Committee of Ministers adopted Recommendation CM/Rec(2008)6. The appendix to this Recommendation sets out guidelines on using and controlling Internet filters in order to fully exercise and enjoy the right to freedom of expression and information. 26. On 4 April 2012 the Committee of Ministers adopted Recommendation CM/Rec(2012)3 on the protection of human rights with regard to search engines. Paragraph 1 of the Recommendation stresses, inter alia, that “[s]earch engines enable a worldwide public to seek, receive and impart information and ideas and other content in particular to acquire knowledge, engage in debate and participate in democratic processes”. 27. Recommendation 2008/2160(INI), adopted by the European Parliament on 26 March 2009, stated expressly that States should participate in efforts to establish an e-democracy on the basis of full and safe access to the Internet. Parliament therefore recommended to member States that they should condemn governmentimposed censorship of the content that could be searched on Internet sites, and called on them “to ensure that freedom of expression is not subject to arbitrary restrictions from the public and/or private sphere and to avoid all legislative or administrative measures that could have a ‘chilling effect’ on all aspects of freedom of speech”. 28. Case C-70/10, examined by the Court of Justice of the European Union (CJEU), concerned a reference for a preliminary ruling following an order issued by a Belgian court requiring an Internet service provider to install a permanent monitoring system blocking all online activity liable to infringe intellectual property rights. 29. In its judgment of 24 November 2011 the CJEU held that the holders of intellectual property rights should have the possibility of applying for an injunction against an intermediary who carried a third party’s infringement of a protected work or other subject matter in a network, and that the arrangements governing such injunctions should be left to national law. However, the national rules had to observe the limitations arising from European Union law and in particular from the Directive on electronic commerce (2000/31/EC), which prohibited national authorities from adopting measures which would require an Internet service provider to carry out general monitoring of the information that it transmitted on its network. The CJEU took the view that injunctions of the kind issued in the case under consideration did not respect the requirement that a fair balance be struck between the right to intellectual property on the one hand and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information on the other. Accordingly, it concluded that European Union law, and in particular Directive 2000/31/EC and the applicable fundamental rights, precluded an injunction imposed on an Internet service provider to introduce a system for filtering all electronic communications passing via its services, applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period. 30. In its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (1129 July 2011), the United Nations Human Rights Committee stated as follows: “43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information-dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.” 31. In view of the fact that legislation concerning the Internet, which has to be seen against a background of rapidly changing new technologies, is particularly dynamic and fragmented, it is difficult to identify common standards based on a comparison of the legal situation in Council of Europe member States. A survey carried out by the Court of the legislation of twenty member States (Austria, Azerbaijan, Belgium, the Czech Republic, Estonia, Finland, France, Germany, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Romania, Russia, Slovenia, Spain, Switzerland and the United Kingdom) reveals that the right to Internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information. The right to Internet access is considered to be inherent in the right to access information and communication protected by national Constitutions, and encompasses the right for each individual to participate in the information society and the obligation for States to guarantee access to the Internet for their citizens. It can therefore be inferred from all the general guarantees protecting freedom of expression that a right to unhindered Internet access should also be recognised. 32. In a decision of 10 June 2009 (no. 2009-58 DC), the French Constitutional Council, for instance, stated clearly that freedom of expression implied freedom of access to the Internet. The Constitutional Council also set forth a number of basic principles concerning the restriction of Internet access. Restrictions on the public’s right to access online communication services could be ordered only by a judge, following a fair trial, and had to be proportionate. Finding that “in view of the nature of the freedom guaranteed by Article 11 of the 1789 Declaration, the legislature may not ... confer powers [to restrict or prevent Internet access] on an administrative authority with the aim of protecting the holders of copyright and related rights”, the Constitutional Council declared to be unconstitutional the legislative provisions which provided for the blocking of Internet access in cases of infringement of copyright, in the absence of a prior judicial decision. It held that the suspension of access could be ordered only after adversarial judicial proceedings, as an ancillary penalty. Interim measures or injunctions could be ordered by the urgent-applications judge, provided that they were “strictly necessary in order to preserve the rights in question”. 33. As regards possible restrictions in cases of illegal Internet content, European countries have adopted a wide variety of approaches and legislative measures, ranging from the suspension of individual rights of Internet access or the removal of the illegal content, to the blocking of access to the specific website in question. In most European countries, the protection of the rights of minors and efforts to combat the sexual exploitation of minors constitute a basis for appropriate measures restricting access to the websites concerned (this is the case in France, Germany, Switzerland and the United Kingdom). When it comes to ordinary crime, the measures restricting access are different and less severe in six countries (Austria, Estonia, Finland, Italy, Lithuania and the Netherlands). 34. As to the scope of the restrictions, a distinction is generally made according to the nature of the offence committed, namely between offences against intellectual property rights and other offences. According to a report by the Organization for Security and Co-operation in Europe (OSCE) entitled “Freedom of expression on the Internet: study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States”, there are no general legislative provisions on the blocking of Internet access in Austria, the Czech Republic, Germany or Poland. Five countries (Estonia, Finland, the Netherlands, Russia and the United Kingdom) have no legislation providing for wholesale blocking irrespective of the offence but have enacted specific legislative provisions allowing access to be blocked in the case of certain types of offence. These include child pornography, racism, hate speech, incitement to terrorism and defamation. 35. In Russia, although a blanket prohibition on Internet access is not possible, access restrictions may be imposed under federal legislation on specific grounds, for instance to protect the foundations of the constitutional order, morals, health or the legitimate rights and interests of others, or in the interests of national defence and security (Federal Law no. 149-FZ). 36. In those countries which do not have a general or specific legislative framework providing for the closure of sites and/or the blocking of access, blocking measures may nonetheless be ordered by a judge or applied on a voluntary basis. 37. The possibility of appealing against a measure prohibiting Internet access is closely linked to the general guarantees protecting the right to receive information and to express one’s views. In Azerbaijan, Belgium, the Czech Republic, Lithuania, Spain and the United Kingdom, no specific provisions exist governing appeals against measures restricting access to an Internet page. Reference is made instead to the general constitutional provisions on freedom of expression and information or, in the case of the United Kingdom, to the possibility of judicial review if the user can prove that he or she has a sufficient interest linked to the subject of the impugned measure. In Estonia, the legislation makes express provision for contesting a measure restricting access to information on the Internet before a higher administrative authority or a specialised agency or directly before the courts in cases concerning public information which the authorities are required to make accessible (the Public Information Act). | 1 |
train | 001-101033 | ENG | CZE | ADMISSIBILITY | 2,010 | LESNÍ SPOLEČNOST PŘIMDA, A.S. v. THE CZECH REPUBLIC | 4 | Inadmissible | Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste | The applicant, Lesní společnost Přimda, a.s., is a joint-stock company with its seat in Přimda. It was represented before the Court by Mrs R. Tunklová, practising in Plzeň. The Czech Government (“the Government”) were represented by their Agent, Mr. V.A. Schorm, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. By Resolution no. 323 of 29 April 1992 of the Government of the Czech Republic and the decision of the Ministry of Administration of National Property and Privatisation (ministerstvo pro správu národního majetku a jeho privatizaci) of 30 April 1992, privatisation project no. 3132 of the State enterprise Západočeské státní lesy Plzeň was approved. On the basis of that project, the applicant company was founded on 1 September 1992. In accordance with the privatisation project approved by the Government, the property transferred to it included the building in issue. On 3 June 1996, further to the applicant company's notification (oznámení), its title to the building was recorded in the Land Register. On 8 December 1995 the Přimda Municipality (Město Přimda) brought a civil action against the applicant company, seeking to determine that it was the owner of the building. It referred to the Act on Transfer of Certain Property of the Czech Republic to Municipalities (Act no. 172/1991) which provided that certain property was to be ipso jure transferred to municipalities with effect from the date on which the law came into force, that was, on 24 May 1991. Judgments of the Tachov District Court (okresní soud) of 14 June 1996 and of 18 November 1997 in favour of the Municipality were quashed by the Plzeň Regional Court (krajský soud) on 19 May 1997 and on 19 January 1999 respectively. The Regional Court held that the first-instance court had failed to establish the facts of the case properly, and instructed it to supplement the evidence. On 19 December 2000 the District Court again allowed the Municipality's action, holding that the conditions set forth in section 2(1)(c) of Act no. 172/1991 were met, specifically that the plaintiff had been the owner of the property in issue as of 31 December 1949 and that the property was in State ownership on the date on which the Act entered into force. Responding to one of the applicant company's objections and with reference to the conclusions of an expert opinion drawn up on the court's request of 1 November 1999, it concluded that the building owned by the Municipality as of 31 December 1949 was the one in issue. Notwithstanding the reconstruction works carried out by the applicant company's legal predecessor, the building had not lost its character, that is, it had not ceased to exist and a new building had not been created. In an appeal of 19 February 2001 the applicant company argued that the reasoning of the District Court did not comply with the statutory requirements. It further challenged the court's interpretation of section 2(1)(c) of Act no. 172/1991 and its finding that a new building had not been created. In a judgment of 21 August 2002 the Regional Court upheld the first-instance judgment finding that its reasoning had been in compliance with the Code of Civil Procedure since it referred, inter alia, to the expert opinion and it had therefore been possible to ascertain the evidence on which the court had based its decision. It further rejected the applicant company's interpretation of the provision cited above and accepted the interpretation given by the District Court. Lastly, it upheld the conclusion that the original building had never ceased to exist. The Regional Court's judgment became final on 30 September 2002. On 21 March 2003 the Supreme Court (Nejvyšší soud), holding that the courts had decided in compliance with the established case-law and that therefore no issue of crucial legal importance arose, rejected an appeal on points of law (dovolání) by the applicant company as inadmissible. On 15 September 2004 a constitutional appeal (ústavní stížnost) by the applicant company alleging a violation of the right to a fair hearing and its property rights was dismissed as manifestly ill-founded. The Constitutional Court (Ústavní soud) found that the applicant company had merely disputed the ordinary courts' findings of fact and law and had presented the same legal opinion again. However, its status as a party to the proceedings had been respected and the courts had examined enough evidence and reasoned their decisions. As to the alleged violation of property rights, the court held that ownership that was merely the subject of legal proceedings did not enjoy constitutional protection. The decision was served on the applicant's legal representative on 27 September 2004. On 22 August 2005, pursuant to Act no. 58/1969 on State Liability Act, the applicant company brought an action in the Prague 1 District Court (obvodní soud) against the Ministry of Finance (ministerstvo financí). The damages sought consisted of (i) the price of the building in issue which had been transferred to it under the privatisation project and in respect of which it had later been established that it had been the property of the Přimda Municipality, (ii) legal costs incurred in the proceedings for a determination of ownership, and (iii) costs incurred for the upkeep of the property. On 31 January 2007 the District Court excluded the first two claims for a separate hearing and transferred the case to the Prague High Court (Vrchní soud) for a decision which level of courts had jurisdiction to hear the case. In a judgment of the same day, the District Court dismissed the applicant company's third claim. On 11 June 2007 the High Court remitted the case to the District Court. It appears that the proceedings are still pending before that court. On 17 October 2007 the District Court's judgment concerning the third claim was upheld by the Prague Municipal Court (městský soud). On 21 January 2008 the applicant company lodged an appeal on points of law (dovolání) in which it submitted, inter alia, that should it not have been possible to infer the State's liability under Act no. 58/1969 or Act no. 82/1998, its liability should have been given under general provisions of civil law. The proceedings appear to be pending before the Supreme Court. At the material time, the relevant provisions of Act no. 172/1991 as amended read as follows: “(1) As of the date when this law comes into force, the following property shall be transferred to municipalities: ... (c) Buildings with land constituting a single functional unit with the building, ... which were owned by municipalities as of 31 December 1949 and provided that they are owned by the Czech Republic ...” “Within one year after acquiring the ownership of real estate in accordance with this law, municipalities shall be obliged to lodge an application with the Geodetic Centre to record [the title to] such real estate in the Register of Real Property.” At the material time, the relevant provision of Act no. 92/1991, on the conditions of transfer of State property to other persons (the Privatisation Act) read as follows: “(3) Privatisation proceedings are not subject to general rules on administrative proceedings and a privatisation decision is not subject to judicial review.” Act no. 58/1969 on State liability for damage caused by a State body's decision or its incorrect administrative procedure. As of 5 May 1998 it has been replaced by Act no. 82/1998. Resolution of the Constitutional Court no. III. ÚS 380/97 “ ... a decision (of the State) on privatisation, under the Act on the conditions of transfer of State property to other persons (Law no. 92/1991, as amended) is a decision of the State, however not in its capacity as the holder of public power, but in its capacity as the owner of the privatised property; it follows ... that any disposition of (decision on) the property in the framework of the above-mentioned law is an expression and a consequence of the owner's will and that the liability of any authority empowered to carry out privatisation falls outside the scope of general liability under domestic legislation.” Resolution of the Constitutional Court no. III. ÚS 93/99 “The activity of privatisation commissions ... has the character of decision-making by the owner of property on the manner in which the property will be treated, and the State does not act as a superior subject. ... A prerequisite for application of Law no. 58/1969 is that the State, through its bodies, must act as the holder of public power and exercise that power. If [in the context of the activity of privatisation commissions] the State acts as the owner of the property and disposes of its property in the framework of civil-law relation, it is clear that the State's liability cannot be based on Law no. 58/1969.” Resolution of the Constitutional Court no. III. ÚS 1734/07 “In the instant case the ordinary courts ... referred to the established case-law of the Constitutional Court and the Supreme Court and held that a decision of the State in the context of privatisation is one of the owner, not the holder of public power. ... On the other hand they did not rule out a State's mistake from the point of view of statutory provisions in making a decision. They merely ruled out that such mistakes would be covered by special laws on the State's liability.” | 0 |
train | 001-5220 | ENG | GBR | ADMISSIBILITY | 2,000 | BOLLAN v. THE UNITED KINGDOM | 1 | Inadmissible | Nicolas Bratza | The first and second applicants are British citizens, born in 1947 and 1948 respectively, and live in Alexandria, Scotland. The third applicant is a British citizen born in 1994 and lives at the same address as the first and second applicant. The first applicant was the stepfather of Angela Bollan, the second applicant was her mother and the third applicant her daughter. The applicants are represented before the Court by Cairns Brown, solicitors practising in Dumbarton, Scotland. A. The facts of the case, as submitted by the parties, may be summarised as follows. Angela Bollan was born on 5 March 1977. She died, aged 19, on 26 April 1996 from asphyxia caused by self-suspension whilst on remand at HM Prison Cornton Vale (“Cornton Vale”) awaiting sentence for an offence of theft. Angela Bollan was a heroin addict by the time she gave birth to her daughter, the third applicant, on 2 September 1994. As she was unable to care for the child, the third applicant lived with her grandparents. Until the age of 16, she lived with the first and second applicant, after which she moved out to live with friends. She was given the tenancy of a local authority house next door to the first and second applicants. She kept in close touch with them and the third applicant. Angela Bollan had a number of convictions for shoplifting and breach of the peace, and had passed several spells in drug rehabilitation clinics. She had been held on remand in Cornton Vale on three occasions prior to her final remand on 15 April 1996 - 9 February 1995 to 24 February 1995, 5 February to 6 February 1996, and 27 February 1996 to 19 March 1996. In December 1995, the deceased went to a drug rehabilitation centre but she left after 3 weeks before completing the programme. In March 1996, she was readmitted to the centre and stayed until 9 April 1996 when she again left early. On 12 April 1996, Angela Bollan was arrested on charges of theft and vandalism. On appearance at Glasgow District Court on 15 April 1996, she pleaded guilty and was remanded in custody for Social Enquiry Reports. She was due back in court on 3 May 1996 for sentencing. She was remanded in Cornton Vale in the block used for remand prisoners. On arrival in Cornton Vale, Angela Bollan was seen by a nurse. She was seen by a doctor on the day after admission and assessed again. According to the Prevention of Suicide Policy, each prisoner on admission is assessed as to the likelihood of being suicidal. Angela Bollan claimed, as on previous admissions, that she had taken heroin and was vulnerable to withdrawal symptoms. She was prescribed the relevant medicine. She was not found to present any risks of suicide. On 26 April 1996, Angela Bollan was woken up in the normal way by a prison officer at about 7.15 a.m. She was allowed out of her cell for breakfast and to go to the toilet and wash. Afterwards, she was asked to clean a corridor. The prison officer asked her to do it again properly. She complied. She was then locked in her cell again. The mail for the unit was distributed. There was none for Angela Bollan. She did not go that morning to the medical officer to receive her medication, diazepam, a drug substitute. From 10.00 a.m., prisoners who wished were taken under supervision to the canteen to make purchases. Angela Bollan had no money and remained in her cell as was the routine. Generally, when prisoners were brought back from the canteen, they were placed under supervision in the sitting room where they were joined by prisoners brought from their cells for the period immediately preceding lunch. At about 11.10 a.m. the deceased started kicking her cell door. Prison Officer Taylor asked what was wrong and she said she wanted to know why she could not get out of her cell. Prison Officer Taylor explained she would get out when there was enough staff back from canteen escort duty. As he walked away, she kicked the door a couple of times. He returned and told her she would be kept in the cell for a bit longer for kicking the door again. Angela Bollan replied, “That’s fine”. At 11.30 a.m. Prison Officer Taylor met the Residential Officer for Angela Bollan’s unit and told him about her behaviour. He was concerned as this was not like her usual behaviour but did not consider it a serious situation. He did not think that it amounted to a disciplinary offence and did not tell her that she was being punished. The Residential Officer went up to Angela Bollan’s cell and found her lying on her bunk. He told her that she would remain in her cell until she calmed down, probably until the midday meal was ready. He told her that she would not be put on report. Angela Bollan shrugged her shoulders, seemed angry and tense but did not say anything in reply. The Residential Officer returned to his office and was then called to another unit soon after midday. He did not mention Angela Bollan to his supervisor or anyone else. He overlooked her. Later, after 12.30 p.m., Prison Officer Taylor was serving dinners to the inmates and noticed towards the end of lunch that he had not seen Angela Bollan come for lunch. He went to her cell at about 12.50 p.m., unlocked the door and found her hanging from the window. The subsequent attempts at resuscitation failed and Angela Bollan was declared dead at about 1.24 p.m. Angela Bollan had not previously been involved in disciplinary incidents in the prison. In a period of two years, there had been six suicides in Cornton Vale and therefore, in January 1997, the Procurator Fiscal set up a Fatal Accident Inquiry which was delayed due to a further suicide at the prison. The inquiry lasted 36 days and the determination by the Sheriff was dated 18 November 1997. The Sheriff found the cause of death of Angela Bollan to be asphyxia due to hanging, and the verdict was suicide. The Sheriff did not make any determination about the reasonable precautions whereby her death might have been avoided, nor about any defects in the prison system which contributed to her death. The Sheriff did however make various general determinations in respect of the systems in place at the prison, including proposals for improving procedures to prevent suicide which were relevant to the other cases under consideration. In his determination the Sheriff stated: “The weight of the evidence was clearly that <Angela Bollan> was forward looking, expressed a desire to obtain a house for herself and her child and gave no indication that she had any desire or impulse to kill herself. ... ... It was ... accepted by <counsel for the applicants> that certainly up until the final day of her life <Angela Bollan> did not present as a likely person to commit suicide ... Looking at the evidence as to what <the deceased> did it is clear that it did not amount to a breach of discipline meriting a report to the Governor. If that is correct then <counsel for the applicants> would argue that the Officers were at fault in keeping <the deceased > in her cell at a time when other prisoners were in free association. The two officers did not consider they were operating in terms of the Rules ... .What they did say they were doing was giving her a “cooling-off period”. ... It was a practice whereby somebody who created a scene or a fuss which of itself did not merit a Governor’s report was left in her cell or put in her cell for a short period to calm down. It was not part of any official code of practice ... It was known to the Governor and Assistant Governor. They accepted it as a necessary part of the discretion in each Officer in carrying out his or her duties of control. On one view <the deceased> was not locked up for operational reasons, for example in the course of a security alert. On the other hand if cooling-off was used as a tool by Officers to quell situations and calm people down then in my view it was a valid exercise of the Governor’s powers exercised through the Prison Officers. The evidence from the Officers was not clear. They changed from a cooling-off period through an alternative to a Report to a punishment. I fully accept that Officers might in the course of their duties have to put prisoners in cells for disciplinary reasons to keep order and so on. It may be a fine distinction but it is one which in my view has to be made. I am of the view that Prison Officers do not have the power to mete out punishment. They do not in my mind have the right to impose periods behind doors as a punishment for some minor infraction of the Rules. It is one thing to say to a prisoner: “Now I’m going to keep you in your cell for a bit to let you calm down.” It is quite another matter to say: “Because you are creating a fuss ... I will punish you by keeping you in your cell for 20 minutes.” It seems to me that the Prison Officer does not have the power to behave as in the second example. ... ... Some time was spent on considering the consequences of <the deceased> missing her medication in the morning. The weight of the evidence was that it would have made little or no difference to her physical condition or her state of mind. ... I cannot set out any reasonable precautions which might have prevented the death of <the deceased> ... I cannot set out any defects in the system which contributed to her death. I do not know why <the deceased> killed herself. ... I make a composite determination in terms of Section 6 (1)(e) of the <Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976< as follows: - ... 3. In relation to <Angela Bollan>, <the Residential Officer> had no power to inflict punishment upon her; therefore insofar as he imposed a further period behind the door as a punishment he was acting incorrectly.” On 29 April 1999, the applicants commenced an action in the Stirling Sheriff Court, claiming on behalf of the third applicant damages for loss of society of her mother and loss of support due to the negligence and breach of statutory duties by Scottish Prison Service employees. It is claimed, inter alia, that the officers had no right to keep Angela Bollan locked in as a punishment and that if she had been reported to the Governor under rule 95, instead of being left in her cell until lunchtime, she would not have taken her own life. The applicants requested an adjournment, agreed by the court, in order to apply for legal aid. An opinion as to causation was obtained from Queen’s Counsel. Legal aid was refused. An application for review of that refusal was rejected. The applicants state that without funding the action will proceed no further. B. Relevant domestic law and practice Prison disciplinary provisions The principal statute regulating the management of prisons is the Prisons (Scotland) Act 1989. This provides that the Secretary of State is responsible for prisons and is empowered to appoint governors and officers to run them. He is empowered to make rules for the regulation of prisons and the control of persons detained in them. The relevant rules in this case are The Prisons and Young Offenders Institutions (Scotland) Rules 1994 (“the Rules”). The management of a prison and supervision of prisoners is vested in the Governor (Rule 78(1)). Officers act under the authority of the governor in carrying out the daily tasks of running the prison (Rule 3). Part 9 of the Rules deals with security and control. In particular, by Rule 80, the Governor may order in writing that a prisoner be removed from association with other prisoners where it seems desirable for the purpose of maintaining good order and discipline, protecting the interests of any prisoner or ensuring the safety of other persons. An order may be general or related to a specific activity. If general, it shall not be effective for more than 72 hours without the written authority of the Secretary of State. An authority granted by the Secretary of State may not exceed one month but may be renewed. Where the order relates to a specific activity, it may not exceed 72 hours but the Governor may make a further order, subject to weekly review. By Rule 83, the Governor may order that a prisoner be restrained by means of a body belt if it seems necessary to restrain a prisoner who threatens to injure, or is injuring himself or others; who threatens to damage, or is damaging property or who threatens to create or is creating a disturbance. The medical officer must be advised of the use of a body belt. If he does not concur, the belt must be removed. By Rule 85, the Governor may order the temporary confinement in a special cell of any prisoner who is refractory or acting in a violent manner. Such confinement must last no longer than necessary and in any event not more than 24 hours. Notice of it must be given to a medical officer and the prisoner must be visited once every fifteen minutes. A special cell is other than one normally occupied by the prisoner, and having special facilities for observation. Part 10 of the Rules deals with breaches of discipline. Rule 94, interpreted in accordance with Schedule 3, indicates a range of behaviours, including conduct disrespectful to an officer, use of threatening, abusive or insulting words or behaviour, refusal to obey a lawful order or failure to comply with any rule or regulation. Rule 95 provides that the officer to whose notice it has come shall report every suspected breach of discipline to the Governor, who may then order that the prisoner be removed from association, such removal save in exceptional circumstances, to last no longer than 72 hours. Rule 96 provides that a charge of breach of discipline shall be brought as soon as possible and in any event within 48 hours. The prisoner must have written notice of the charge at least two hours prior to the inquiry. Rule 96 further provides for the Governor to hear an inquiry into a charge. The prisoner must have full details of the charge, receive a full opportunity to present his own case, call witnesses on his own behalf and cross-examine witnesses. In exceptional cases the Governor may allow the prisoner legal representation. Rule 100 provides for punishment, including a caution, a forfeiture of privileges and postponement of the release date. Rule 111, in Part 11, provides for appeals to the Secretary of State, on findings of guilt and sentence. Complaint procedures available to prisoners Part 11 of the Rules deals with requests and complaints. By Rule 102, a prisoner may ask to speak to an officer of the Secretary of State, a member of the Visiting Committee or a sheriff or justice of the peace who is visiting the prison. Rule 103 provides that a prisoner wishing to complain to the Visiting Committee shall be given paper and his letter posted without delay. Rules 104 to 109 provide a system whereby a prisoner may complain firstly to a residential officer, then to the residential unit manager and then to an internal complaints committee, from there to the Governor and finally to the Secretary of State. A Scottish Prison Complaints Commissioner operates outside the statutory framework to hear complaints by prisoners. Prisoners alleging a breach of the rules may challenge decisions of the Governor or officers acting on his behalf by way of judicial review proceedings in the Court of Session. Domestic case-law on confinement within prison In the case of Hague v. Deputy Governor of Parkhurst Prison and others, and Weldon v. the Home Office (1991 3 AER 734) the House of Lords held concerning the complaints of prisoners that their liberty had been unlawfully restricted by measures taken within the prison: “He is lawfully committed to prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.” | 0 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.